Trump v. United States
Oral argument transcript · No. 23-939 · October Term 2023 · argued April 25, 2024 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- D. John Sauer, St. Louis, Missouri, for the petitioner
- Michael R. Dreeben, Department of Justice, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 23-939, Trump versus United States. Mr. Sauer. ORAL ARGUMENT OF D. JOHN SAUER ON BEHALF OF THE PETITIONER
D. John Sauer: Mr. Chief Justice, and may it please the Court: Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in Official 1 office. The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies? The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. The original meaning of the Executive Vesting Clause, the Framers' understanding and intent, an unbroken historical tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it. I welcome the Court's questions.
Justice Thomas: Mr. Sauer, to -- to your last point, could you be more precise as to Official 1 the source of this immunity?
D. John Sauer: The source of the immunity is principally rooted in the Executive Vesting Clause of Article II, Section 1.
Justice Thomas: And how does that happen?
D. John Sauer: That -- that it -- the source of it, Justice Thomas, I think is, as you described in your separate opinion in Zivotofsky, for example, that the Executive Vesting Clause does not include only executive powers laid out explicitly therein but encompasses all the powers that were originally understood to be included therein. And Marbury against Madison itself provides strong evidence of this kind of immunity, a broad principle of immunity that protects the president's official acts from scrutiny, direct -- sitting in judgment, so to speak, of the Article III courts, it -- that that matches the original understanding of the Executive --
Justice Thomas: So how --
D. John Sauer: -- Vesting Clause.
Justice Thomas: -- how exactly would Official 1 we determine what the -- what an official act is?
D. John Sauer: I'd say -- I'd point the Court to two cases for that. Obviously, Fitzgerald against Nixon is the best guidance that the Court gives where it -- of course, the Court adopted the outer perimeter test, and this Court engaged in analysis -- analysis there that's very instructive here, where it looked at the level of specificity at which the acts are described, in -- in -- in that case, a civil case. Here, it would be the indictment. And --
Chief Justice Roberts: Well, what if you have -- let's say the official act is appointing ambassadors, and the president appoints a particular individual to a country, but it's in exchange for a bribe. Somebody says, I'll give you a million dollars if I'm made the ambassador to whatever. How do you analyze that?
D. John Sauer: That, I think, would fall under this Court's discussion in Brewster, where the Court held with respect to legislative acts that bribery is not an official act, which also matches the court -- common law background. Official 1 So I -- the way that this Court in Brewster kind of sliced at the joint was to say accepting the bribe and the agreement to accept the bribe are not official acts. That's private conduct --
Chief Justice Roberts: Okay. It's not --
D. John Sauer: -- where a subsequent appointment would not be -- would be essentially an unrestrictable power of this Court that Congress couldn't directly regulate.
Chief Justice Roberts: It's not -- accepting a bribe isn't an official act, but appointing an ambassador is certainly within the official responsibilities of the president. So how -- how could you -- how -- how does your official acts or the official acts border, boundary come into play when it's going to be official, assuming that the president is innocent, but the whole question is whether he's going to be found innocent or guilty?
D. John Sauer: Again, it -- I -- I think Brewster and Johnson do address that or very persuasively at least in a slightly different context. Brewster and Johnson say the Official 1 indictment has to be expunged of all the immune official acts, so there has to be a determination what's official, what's not official, and --
Chief Justice Roberts: Well, you expunge the official. You say, okay, we're prosecuting you because you accepted a million dollars. They're supposed to say -- not say what it's for because the what's for part is within the president's official duties?
D. John Sauer: There -- there has to be, we would say, an independent source of evidence for that. And keep in mind that this indictment charges what this Court has described as unrestrictable powers of the president. So the premise, the logical premise, of this indictment is that Congress, by passing vague and general criminal statutes, has purported to directly regulate the president's exercise of things like the exercise of the employment and removal power, things like his ability to speak directly to the American public, core exercises of his authority under the Recommendations Clause to recommend to Congress, members of Congress, the measures he thinks necessary and expedient. Official 1 So you have a indictment in this case that goes right to the heartland of the president's powers, that alleges a whole series of official acts and tries to tie them together by saying, well, there's a private aim or a private purpose in that case. And that's a situation which, of course, could be alleged in virtually any indictment.
Justice Sotomayor: Counsel, it can be alleged, but it has to be proven. Malum in se is a concept long viewed as appropriate in law, that there are some things that are so fundamentally evil that they have to be protected against. Now I think -- and -- and your answer below, I'm going to give you a chance to say if you stay by it. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts that -- for which he can get immunity?
D. John Sauer: It would depend on the hypothetical. But we can see that could well be an official act.
Justice Sotomayor: It could, and why? Official 1 Because he's doing it for personal reasons. He's not doing it, at -- like President Obama is alleged to have done it, to protect the country from a terrorist. He's doing it for personal gain. And isn't that the nature of the allegations here, that he's not doing them -- doing these acts in furtherance of an official responsibility; he's doing it for personal gain?
D. John Sauer: I -- I agree with that characterization of the indictment. And that confirms immunity because the characterization is that there's a series of official acts that were done for an unlawful or improper --
Justice Sotomayor: No, because --
D. John Sauer: -- purpose.
Justice Sotomayor: -- immunity says, even if you did it for personal gain, we won't hold you responsible. What do you -- how could that be?
D. John Sauer: That's an extremely strong doctrine in this Court's case law in cases like Fitzgerald, the heartland, Johnson and supports --
Justice Sotomayor: Well, we go back to Justice Thomas's question, which was, where Official 1 does that come from? There are amici here who tell us that the Founders actually talked about whether to grant immunity to the president. And, in fact, they -- had state constitutions that granted some criminal immunity to governors. And yet they didn't take it up. Instead, they find -- they pass an impeachment clause that basically says you can't remove the president from -- from office except by a trial in the Senate, but you can impeach him after. So -- or you can impose criminal liability. We would be creating a situation in which we would be saying is -- this is what you're asking us to say -- which is that a president is entitled not to make a mistake but more than that. A president is entitled for total personal gain to use the trappings of his office -- that's what you're trying to get us to hold -- without facing criminal liability.
D. John Sauer: Your Honor, I -- I would say three things in response to that. First, the doctrine that immunity does not turn on the allegedly improper motivation or purpose is something that this Court has Official 1 reaffirmed in at least nine or ten cases.
Justice Sotomayor: That's absolute immunity. But qualified immunity does say that whatever act you take has to be within what a reasonable person would do. I'm having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.
D. John Sauer: Your Honor, as this Court said very persuasively in Fitzgerald, that the allegation that this particular act would be done for an unlawful purpose or was unlawful could be made in every case, and, therefore, if that were the doctrine, that the allegation of improper purpose is what deprives the objective acts of their immunity, then the immunity would have no purchase. And that's reflected in many of the other Court's cases.
Justice Sotomayor: So --
Justice Jackson: Isn't -- isn't the work, though, of the improper motive at least in Official 1 the absolute immunity context to tell us what are official acts and what are not? I mean, I had understood that even in the -- first of all, your ask is absolute immunity, isn't it? I mean, that's --
D. John Sauer: That's our principal position, yes.
Justice Jackson: -- that's your -- your position is you want the same kind of doctrine that we've applied in other contexts when we say an official has absolute immunity. And my understanding is that when we say that, we mean for their official acts. Is that right?
D. John Sauer: Yes.
Justice Jackson: Okay. So any official acts. But then, in that world, the real decision-making from the Court's standpoint is whether or not something is an official act or not, correct?
D. John Sauer: That is an important determination by all means.
Justice Jackson: I mean, that's the determination in the absolute immunity world because, if you determine that it's an official Official 1 act, then the principle is that you get immunity for it, correct?
D. John Sauer: That is correct.
Justice Jackson: All right. So my question -- and I think the Chief Justice may have asked this at the beginning -- is how do you determine what -- or maybe Justice Thomas -- how do you determine what is an official act? And when we're talking about the kinds of scenarios that Justice Sotomayor brought up, one could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially, even if the doctrine was absolute immunity. So what do you say about that?
D. John Sauer: Two things in response to that. First, to the last point, that allegation that this was really motivated by an improper private purpose could be made in every single case.
Justice Jackson: No, I understand that, but -- but -- but it would have to be made -- I'm -- I'm just trying to assess. Even if we had the Doctrine of Absolute Immunity, that same Official 1 allegation and the facts related to it would come in because the person would be arguing that he was not acting in his official capacity. He wasn't doing something official. He was doing it personal, correct?
D. John Sauer: If he -- I agree, the -- the objective -- or I'm not sure I agree, but -- but the point I would make in response to that is, in Fitzgerald against Nixon, this Court emphasized that that would result in an intrusive discussion or determination of the president's personal motives for every official act. And, again, this is not just in the case of the presidency. It's for virtually every --
Justice Jackson: All right. Can I just ask you another -- another quick question before my colleagues take it over here? At the beginning of your analysis, when you were giving your opening statements, you were talking about, you know -- the -- you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an innovation. And I understood it to be the status quo. I mean, I -- I understood that every Official 1 president from the beginning of time essentially has understood that there was a threat of prosecution if for no other reason than the -- the Constitution suggests that they can be prosecuted after impeachment, that, you know, the Office of Legal Counsel has said forever that presidents are amenable to a threat of prosecution and they have continued to function and do their jobs and do all the things that presidents do. So it seems to me that you are asking now for a change in what the law is related to immunity.
D. John Sauer: I would quote from what Benjamin Franklin said at the Constitutional Convention, which I think reflects best the Founders' original understanding and intent here, which is, at the Constitutional Convention, Benjamin Franklin said: History provides one example only of a chief magistrate who is subject to public justice, criminal prosecution. And everybody cried out against that as a --
Justice Jackson: No, I understand. But, since Benjamin Franklin, everybody has Official 1 thought, including the presidents who have held the office, that they were taking this office subject to potential criminal prosecution, no?
D. John Sauer: I don't -- I see the opposite. I see all the evidence going the other way. Marbury against Madison, Mississippi against Johnson discussed this broad immunity principle that naturally extends to the --
Justice Jackson: So what -- what was up with the pardon -- what was up with the pardon for President Nixon?
D. John Sauer: I think that --
Justice Jackson: I mean, if everybody thought that presidents couldn't be prosecuted, then what -- what was that about?
D. John Sauer: Well, he was under investigation for both private and public conduct at the time, official acts and private conduct. And I think everyone has properly understood that the president -- since, like, President Grant's carriage-riding incident, everyone has understood that the president could be prosecuted at least for things like private conduct. Official
Justice Gorsuch: Counsel, on -- on -- on that score, you -- there does seem to be some common ground between the -- you and your colleague on the other side that no man's above the law and that the president can be prosecuted after he leaves office for his private conduct. Is that right?
D. John Sauer: We agree with that.
Justice Gorsuch: And then the question becomes, as we've been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and we -- I'm sure we're going to spend a lot of time exploring that. But the D.C. Circuit in Blassingame, the chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?
D. John Sauer: Yes. We think, in the main, that test, especially if it's understood through the lens of Judge Katsas' separate Official 1 opinion, is a very persuasive test. It would be a great source for this Court to rely on in drawing this line. And it emphasizes the breadth of that test. It talks about how actions that are, you know, plausibly connected to the president's official duties are official acts. And it also emphasizes that if it's a close case or it appears there's considerations on the other side, that also should be treated as immune. Those are the -- the aspects of that that we'd emphasize as potentially guiding the Court's discretion.
Justice Gorsuch: And that left open in that case the possibility of further proceedings and trial.
D. John Sauer: Exactly right. And -- and that would be a very natural course for this Court to take. In this place, the Court can and should reverse the categorical holding of the D.C. Circuit that there's no such thing as official acts, especially when it comes to --
Justice Gorsuch: But you'd agree further proceedings would be required?
D. John Sauer: That is correct. There Official 1 would have to be -- and -- and I would point the Court to Anderson against Creighton, where the Court said there would be kind of two stages of these further proceedings. There's looking at the indictment itself or, in that case, it was a -- you -- you know, a complaint, but look at the charging document itself and see whether on the face of it this is alleging official acts. And if not or it can't be determined, then there would be a factual proceeding. And all of that under Mitchell against Forsyth and so forth would have to occur before any other proceedings in the District.
Justice Kavanaugh: Can you --
Justice Barrett: Counsel, speaking of --
Justice Kavanaugh: -- you tell us --
Justice Alito: Mr. Sauer, you --
Justice Kavanaugh: -- what the -- go ahead.
Justice Alito: Mr. Sauer, you began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency. But my question is whether the very Official 1 robust form of immunity that you're advocating is really necessary in order to achieve that result. So just to take one possible alternative, suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken. Would that be sufficient? Or, if it is insufficient, why would it be insufficient?
D. John Sauer: That might be a much better rule than what emerged in the lower courts here. We think it would be insufficient because, again, that long line of cases talking about using the president's motives and the intrusive sort of consideration of the president's motives as transforming acts to official and unofficial would be -- would come into play. And, of course, once you can make that allegation, all of a sudden you've opened the door. You no longer have a per se clear bright-line rule. You have a -- a determination Official 1 in every single case, a case by case.
Justice Alito: But what if it were not -- what if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors?
D. John Sauer: That sounds to me a lot like Blassingame and especially viewed through the lens of Judge Katsas' separate opinion, and that may not be different than what we're proposing to the Court today.
Justice Alito: Well, Blassingame had to do with the difference between official conduct and private conduct, right?
D. John Sauer: That's correct. I -- sorry -- I understood the Court to be asking that.
Justice Alito: No. This -- this would apply -- and it's just a possibility. I don't know whether it's a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the Vesting Clause or any other source. But this would be applied in a purely objective -- on -- on purely objective grounds when the president invokes an Official 1 official power in taking the action that is at issue?
D. John Sauer: Yes, I believe -- the reason I think of Blassingame is because it talks about an objective context-specific determination to winnow out what's official and what is purely private conduct, and, again, in a -- with -- with a strong degree of deference to what --
Justice Sotomayor: I -- I'm sorry. I -- if I understood Justice Alito, he's suggesting not that. He's suggesting whether -- even if it is an official act, whether you still grant immunity if that act is not plausibly viewed as within the realm of law, of -- he can correct me if I'm wrong. He's not --
Justice Alito: No, that's -- that -- that was the question.
D. John Sauer: That, I think, would be a superior rule than what -- than the categorical denial that emerged in the trial court here. I do think it would kind of be --
Justice Sotomayor: I -- I'm not -- I'm not quite sure why he used the word "plausible," because that seems to negate -- Official 1 might as well give absolute if you're saying plausible because anybody could argue plausibility. We don't even require plausible. We require reasonable in qualified immunity. So --
Justice Alito: Well, I mean, one might argue that it isn't plausibly legal to order SEAL Team 6 -- and I -- I -- I -- I don't want to slander SEAL Team 6 -- (Laughter.)
Justice Alito: -- because they're -- no, seriously, they're honorable. They're honorable officers, and they are bound by the Uniform Code of Military Justice not to obey unlawful orders. But no one -- I think one could say it's not plausible that that is legal, that that action would be legal. And -- and I'm sure you've thought -- I've thought of lots of hypotheticals, I'm sure you've thought of lots of hypotheticals, where a president could say, I'm using an official power, and yet the president uses it in an absolutely outrageous manner.
D. John Sauer: That, if it were an Official 1 objective determination, may well be a -- an interesting approach to take in this case.
Justice Sotomayor: So apply it to the allegations here. What is plausible about the president insisting in creating a -- a fraudulent slate of electoral candidates? Assuming you accept the facts of the complaint on their face, is that plausible that that would be within his right to do?
D. John Sauer: Absolutely, Your Honor. The -- we have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes. The notion that it's completely implausible I think just can't be supported based on the face of this indictment or even really --
Justice Sotomayor: Knowing that the slate is fake? Knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state, he knows all those things?
D. John Sauer: The indictment itself Official 1 alleges -- I dispute that characterization. The -- the indictment affixes the word -- label to the so-called fraudulent electors -- it affixes the word "fraudulent." But that's a complete mischaracterization. On the face of the indictment, it appears that there was no deceit about who had emerged from the relevant state conventions, and this was being done as an alternative basis. But I want to address a more higher-level point, a fundamental point, which is that, as Justice Alito's question indicated, there's a whole series of structural checks other than criminal prosecution that are designed to deter these kind of, you know, outlandish scenarios or extraordinarily obviously illegal things, and that's been viewed in this Court's opinions going all the way back to at least Martin against Mott.
Justice Kavanaugh: Where -- where do you think the D.C. Circuit went wrong in how it determined what was official versus what's personal?
D. John Sauer: Well, I read -- I read the -- the opinion below in this particular case as Official 1 adopting a categorical view. It does not matter, is the -- the logic of their -- their opinion because there is no immunity for official acts and, therefore, you know, that's the end of the story. I don't really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what's official and what isn't official. There, we agree with most of what that opinion said.
Justice Kavanaugh: And for some official acts that are not within the Article II exclusive power, okay, so official acts but not within the Article II exclusive power, even for those, I assume you would think that a clear statement has to be required, a clear statement in the statute covering the president, if the president's official acts are going to be criminalized?
D. John Sauer: Absolutely. Obviously, the issue is, you know, at the highest possible level when it comes to the unrestrictable powers like, as in this indictment, the allegation about the performance clause. Official
Justice Kavanaugh: Well, I'm assuming the exclusive powers are walled off and can't be prosecuted before -- there's a lot of official powers that are not exclusive to the president under his Article II authority, but for those, I understood you to be saying, at a minimum, there would need to be a clear statement in the statute referencing the president so that the president's on notice and can conduct himself or herself accordingly.
D. John Sauer: That's absolutely correct, and that would be consistent both with Franklin and Public Citizen and cases -- a long series of other clear statement rule cases.
Justice Jackson: Can I follow up on that because I --
Justice Barrett: Can I ask you -- go ahead.
Justice Jackson: Go ahead.
Justice Barrett: So you concede that private acts don't get immunity?
D. John Sauer: We do.
Justice Barrett: Okay. So, in the Special Counsel's brief on pages 46 and 47, he urges us, even if we assume that there was -- Official 1 even if we were to decide or assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment for the trial to go -- for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts as private. "Petitioner turned to a private attorney who 'was willing to spread knowingly false claims' of election fraud to spearhead his challenges to the election results." Private?
D. John Sauer: As alleged. I mean, we dispute the allegation, but --
Justice Barrett: Of course.
D. John Sauer: -- that sounds private to me.
Justice Barrett: Sounds private? "Petitioner conspired with another private attorney who caused the filing in court of a 'verification' signed by Petitioner that contained false allegations to support a challenge." Private?
D. John Sauer: That also sounds private.
Justice Barrett: "Three private Official 1 actors, two attorneys, including [those] mentioned above, and a political consultant -- helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort."
D. John Sauer: You read it quickly. I believe --
Justice Barrett: Yeah.
D. John Sauer: -- that's private. I don't want to --
Justice Barrett: So those acts, you would not dispute those were private, and you wouldn't raise a claim that they were official?
D. John Sauer: As characterized. We would say -- Your Honor, if I may?
Chief Justice Roberts: Sure.
D. John Sauer: What we would say is official is things like meeting with the Department of Justice to deliberate about who's going to be the acting attorney general of the United States.
Justice Barrett: Sure.
D. John Sauer: Communicating with the American public, communicating with Congress Official 1 about matters of enormous federal concern.
Justice Barrett: Thank you. Thank you.
Chief Justice Roberts: Thank you, counsel. And what is the consequence in terms of going forward with your acknowledgment that those are private acts as opposed to official acts?
D. John Sauer: If you look at the -- if you look at the -- the indictment here, there's a bunch of acts that we think are just clearly official. There may be allegations that mostly relate to what the government has described here as private aim or private end. And the Court should remand or -- or address itself but remand for a Brewster-like determination, which is what's official and what's private. The official stuff has to be expunged completely from the indictment before the case can go forward, and there has to be a determination at least on remand of what's official -- a two-stage determination of what's official and what's private.
Chief Justice Roberts: Well, if you Official 1 expunge the official part from the indictment, how do you -- I mean, that's like a -- a -- a one-legged stool, right? I mean, giving somebody money isn't bribery unless you get something in exchange, and if what you get in exchange is to become the ambassador to a particular country, that is official, the appointment. It's within the president's prerogatives. The unofficial part is I'm going to get a million dollars for it. So, if you say you have to expunge the official part, how does that go forward?
D. John Sauer: In this particular indictment, where we say virtually all the overt conduct is official, we don't believe it would be able to go forward. I mean, there could be a case where it would, but if you look at -- even the government's brief in this case divides up the indictment into things that, other than the electors allegations, don't really -- are -- they haven't disputed that they are official acts. But what they do is say, well, we tie it all together by characterizing it as done -- and these are the allegations that the Court just referred to -- by an improper private aim or Official 1 private end. Again, that's their words. And that just runs loggerheads, you know, dead-set against this Court's case law saying you don't look at, what immunity determinations, the -- the -- the motive -- improper motivation or purpose.
Chief Justice Roberts: Thank you. Justice Thomas?
Justice Thomas: Mr. Sauer, in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?
D. John Sauer: Yes, we do. And -- and we don't dispute essentially the Blassingame discussion of that.
Justice Thomas: Okay. Now --
D. John Sauer: But, of course, that has to be done by objective determinations, not by looking at what was the purpose of what you did this, and that's the most important point there.
Justice Thomas: Did you, in this litigation, challenge the appointment of special counsel?
D. John Sauer: Not directly. We have Official 1 done so in the Southern District of Florida case, and we totally agree with the analysis provided by Attorney General Meese and Attorney General Mukasey. And -- and it points to a very important issue here because one of their arguments is, of course, that, you know, we should have this presumption of regularity. That runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who was never nominated by the president or -- or -- or confirmed by the Senate at any time. So we agree with that position. We -- we hadn't raised it yet in this case when this case went up on appeal.
Chief Justice Roberts: Justice Alito?
Justice Alito: When you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial. So is that what you're saying, that the prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are alleged? Official
D. John Sauer: Absolutely. And we think that's just the clear implications of Brewster and Johnson and their discussion of this in a very analogous context.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: I -- I'm a little bit confused by that. If you have a scheme to defraud or a scheme to accept bribery, there's evidence from which you can infer that scheme, and one of it is that the appointment actually happened. It's an official act. You wouldn't expunge that as evidence. You would instruct the jury that there's no liability for the actual appointment, that the liability is for accepting the bribe. Similarly here, I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department. They're saying you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent, from them. So I'm not sure that I understand why Official 1 your problems couldn't be taken care of at trial with an instruction if we believe -- if the Court were to find -- I'm not even sure how they could -- but if it were to find that some public acts could not be the basis of criminal liability.
D. John Sauer: I -- I think the best thing I can say to that is -- and I think this ties into the Chief Justice's question about a one-legged stool. Brewster and Johnson and subsequent cases like Helstoski versus Meanor essentially say that, that this is a one-legged stool problem. It will be difficult for some of these prosecutions to proceed. And that is the implications of official immunity, which is dictated in the Constitution here by the Executive Vesting Clause.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: Can I continue on in -- in Justice Barrett's vein a little bit and ask you about some of the allegations of the indictment and whether they're official acts or not in your view. So the defendant signed a verification affirming false election fraud allegations made Official 1 on his behalf and a lawsuit filed in his name against the Georgia government -- governor.
D. John Sauer: I don't think we've disputed that that's official. I -- I'm sorry, that that is unofficial.
Justice Kagan: That that's unofficial. Same for the defendant called the chairwoman of the Republican National Committee, asked her to gather electors, and targeted states falsely represented to her that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the defendant's favor.
D. John Sauer: We have taken the position that that is official.
Justice Kagan: That's official?
D. John Sauer: Yes.
Justice Kagan: Why would that be official?
D. John Sauer: Because the organization of alternate slates of electors is for -- based on, for example, the historical example of President Grant as something that was done pursuant to and ancillary and preparatory to the Official 1 exercise of the core Recommendation Clause power. So, when President Trump was --
Justice Kagan: Couldn't -- couldn't he have taken this action just in the status of a candidate?
D. John Sauer: The fact that he could have done so doesn't demonstrate that he did do so in this case. And based on the allegations, we think it's clear he did not, that this was done in an official capacity.
Justice Kagan: The defendant asked the Arizona house speaker to call the legislature into session to hold a hearing based on their claims of election fraud.
D. John Sauer: Absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the -- the integrity of a federal election, to communicate with state officials and urge them to view what he views as their job, under state law and federal law, that's an official act.
Justice Kagan: Well, attempting to defend the integrity of the election, I mean, Official 1 that's the defense. The allegation is that he was attempting to overthrow a -- an election.
D. John Sauer: Essentially exactly right. And neither allegation of what the purpose is should make a determination -- should make a difference as to whether it's immune. That is extremely strong precedent from this Court.
Justice Kagan: Does it -- does it strike you as odd that your understanding of immunity goes way beyond what OLC has ever claimed for the -- a former president?
D. John Sauer: I -- I view the OLC opinions here as strongly supporting us because anytime a congressional statute basically got anywhere near touching the president's prerogatives, they've said, oh, we're going to interpret the statute narrowly to avoid that. So we have --
Justice Kagan: Well, that's a different question. I mean, what OLC has always said is that sitting presidents get immunity, but former presidents? No. Now there might be a different argument made about whether a statute or whether a statute as applied to particular conduct is -- Official 1 is -- is properly available against the president, but that's a very different argument than the immunity claim that you're making here, which OLC has definitively not supported.
D. John Sauer: I don't -- I don't know if I'd put it that way. I don't recall an opinion directly addressing it, but more fundamental to us, Your Honor, is, in fact, the language of cases like Marbury and statements like made by Benjamin Franklin at the Constitutional Convention, statements of George Washington talking about the massive risk of factional strife and how that could destroy the Republic and erect a new government on the ruins of public liberty. That's what we rely on principally here. I cite the OLC opinions -- because, of course, what you see there is a very strong trend that if there's any statute that might trench in any way on the president's prerogatives, which they -- they adopt -- they interpret it to avoid that.
Justice Kagan: If a president sells nuclear secrets to a foreign adversary, is that immune? Official
D. John Sauer: That sounds like, similar to the bribery example, likely not immune. Now, if it's structured as an official act, he would have to be impeached and convicted first before --
Justice Kagan: What does that mean, if it's structured as an official act?
D. John Sauer: Well, I don't know in the hypothetical whether or not that would be an official act. You'd probably have to have more details to apply the Blassingame analysis or even the Fitzgerald analysis that we've been talking about.
Justice Kagan: How about if a president orders the military to stage a coup?
D. John Sauer: I -- I think that, as the Chief Justice pointed out earlier, where there's a whole series of, you know, sort of guidelines against that, so to speak, like the UCMJ -- prohibits the military from following a plainfully unlawful act, if one adopted Justice Alito's test, that would fall outside. Now, if one adopts, for example, the Fitzgerald test that we advance, that might well be an official act and he would have to be, as Official 1 I'll say in response to all these kinds of hypotheticals, has to be impeached and convicted before he can be criminally prosecuted. But I emphasize to the Court that --
Justice Kagan: Well, he's gone. Let's say this president who ordered the military to stage a coup, he's no longer president, he wasn't impeached, he couldn't be impeached. But -- but he ordered the military to stage a coup. And you're saying that's an official act?
D. John Sauer: I think it would depend on --
Justice Kagan: That's immune?
D. John Sauer: I think it would depend on the circumstances whether it was an official act. If it were an official act, again, he would have to be impeached and convicted.
Justice Kagan: Well, what does that mean, depend on the circumstances? He was the president. He is the commander in chief. He talks to his generals all the time. And he told the generals: I don't feel like leaving office, I want to stage a coup. Is -- is -- is that immune? Official
D. John Sauer: If -- if it's an official act, there needs to be impeachment and conviction beforehand because the Framers viewed the risk -- that -- that kind of very low risk --
Justice Kagan: If it's an official act, is it an official act?
D. John Sauer: If it's an official act, it's impeaching --
Justice Kagan: Is it an official act?
D. John Sauer: On -- on the way you've described that hypothetical, it could well be. I -- I just don't know. You'd have to -- again, it's a fact-specific, context-specific determination that it's contemplating.
Justice Kagan: That answer sounds to me as though it's like, yeah, under my test, it's an official act, but that sure sounds bad, doesn't it?
D. John Sauer: Well, it certainly sounds very bad, and that's why the Framers have -- and that's why the Framers have a whole series of structural checks that have successfully for the last 234 years prevented that very kind of extreme hypothetical. Official 1 And that is the wisdom of the Framers. What they viewed as the risk that needed to be guarded against was not the fact -- the notion that the president might escape, you know, criminal prosecution for something, you know, sort of very, very unlikely in these unlikely scenarios. They viewed much more likely and much more destructive to the Republic the risk of factional strife discussed by George Washington --
Justice Kagan: The Framers did not put an immunity clause into the Constitution. They knew how to. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president. And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?
D. John Sauer: I would say two things in response to that. Immunity -- they did put an immunity clause in in a sense. They put in the Executive Vesting Clause, which was originally Official 1 understood to -- to adopt a broad immunity principle that's set forth in the very broad language of Marbury against Madison. And also, they did discuss and consider what would be the checks on the presidency. And they did not say, oh, we need to have criminal prosecution. Right there at the Constitutional Convention, Benjamin Franklin says, we don't have that. That's not an option. Everybody cried out against that as unconstitutional. The structural check we're adopting is impeachment. And they're very clear on that in pages 64 to 69 of the second volume of Farent.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: Just returning to the Chief Justice's hypothetical about the ambassador sale and bribery, Congress has a statute that specifically names the president and says he can be criminally prosecuted for bribery, presumably after he leaves office. Outside the core areas that -- that Justice Kavanaugh was talking about, when Official 1 Congress speaks clearly, couldn't a statute like that -- Congress provide a statute like that that would allow all manner of evidence to come in to prove the case?
D. John Sauer: I think our position is that would have to be an unofficial act, purely private conduct, for that prosecution to go forward.
Justice Gorsuch: All right. But -- but outside the core areas of executive power, if there is a clear statement from Congress that something is unlawful and it applies to the president, I -- I'm struggling to see why in that case perhaps the evidence could come in.
D. John Sauer: Yeah. The strongest possible case in our view is what you've described as kind of the core executive powers, the unrestrictable powers within the meaning of Seila Law. But, again, the holding of, for example, Brewster and Johnson that we've relied on doesn't turn on how central it is of -- of a legislative act. It just says, if it's an official act, which, here, we would say is -- applies basically the outer perimeter test of Fitzgerald against Nixon. That doesn't come in. Official
Justice Gorsuch: What -- what would happen if presidents were under fear -- fear that their successors would criminally prosecute them for their acts in office, whether it's -- whether they've engaged in drone strikes -- all the hypotheticals. I'm not going to go through them. It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves. Do you have any thoughts about that?
D. John Sauer: That is -- I didn't think of that until Your Honor asked it. That is certainly one incentive that might be created. What we think is most important is --
Justice Gorsuch: I mean, we've never answered whether a president can do that. Happily --
D. John Sauer: And the --
Justice Gorsuch: Happily, it's never been presented to us.
D. John Sauer: And if -- if the doctrine of immunity remains in place, that's likely to remain the case for those very issues. As Fitzgerald, I think, very powerfully emphasized, the real concern here is, is there going to be Official 1 bold and fearless action? Is the president going to have to make a controversial decision where his political opponents are going to come after him the minute he leaves office? Is that going to unduly deter, is that going to dampen the ardor of that president to do what our constitutional structure demands of him or her, which is bold and fearless action in the face of controversy?
Justice Gorsuch: And perhaps, if he feels he has to, he'll pardon himself every -- every -- every four years from now on.
D. John Sauer: But that, as the Court pointed out, wouldn't provide the security because the legality of that is something that's never been addressed.
Justice Gorsuch: Now one of the checks and balances in addition to impeachment that you've discussed is subordinate liability. You don't contest that everybody following an unlawful order beneath the president of the United States can be immediately prosecuted, do you?
D. John Sauer: I'm sorry. If -- if the Court is asking whether they could be -- Official
Justice Gorsuch: If the president gives an unlawful order, call in the troops, what -- all the examples we've heard, it -- every subordinate beneath him faces criminal prosecution, don't they?
D. John Sauer: That is what Gouverneur Morris said explicitly at the Constitutional Convention, that his co-agitators could be prosecuted. There is an important caveat because, of course, there would have to be a -- a statute that would govern that for them to be prosecuted to that extent.
Justice Gorsuch: Oh, we've got lots of statutes. The criminal law books are -- are replete. But -- I mean, do you agree, is that one check that's available?
D. John Sauer: Absolutely. And, again, the only caveat that I was making is, if that statute was doing what Marbury says you can't do, which is going after the subordinates to restrict, for example, a core executive function, the Franklin clear statement rule might be triggered, and -- you might not be able to go after that president. So I don't think Congress can say, Official 1 well, we can't go after the president directly, but we're going to criminalize the way that the president speaks to Congress under the exercise of the Recommendations Clause, and, therefore, we're going to put in a criminal statute that says, if you provide false information to Congress in -- in carrying out the president's recommendation powers, you -- you can be immediately prosecuted. That would at least be a very difficult question. But the fundamental point of drawing that distinction between the president himself and his co-agitators, in the word of Gouverneur Morris at the Constitutional Convention, is an excellent distinction.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: Just to follow up on the OLC opinions question, as you read them and I think I read them, they articulate a clear statement rule, as do this Court's cases for covering official acts. And your point, I think, but I just want to underscore this, is that none of the statutes alleged here or cited here have a clear statement covering the Official 1 president, therefore, meaning that the president can't be charged for any official acts under this -- under these statutes.
D. John Sauer: That's absolutely correct. They're extended way beyond. I mean, this is --
Justice Kavanaugh: Now that's separate from the question of what's official versus what's personal. But, for that bucket that is official, there's no clear statement, period?
D. John Sauer: That's right. And as to purely private conduct, we don't think the clear statement rule would be invoked. But, as to official acts, these statutes, the ones charged in the indictment, are just way far afield from purporting to criminalize in clear terms the president's official acts.
Justice Kavanaugh: And then your -- just to clarify this, the -- the president's not above the law, the president's not a king, the Founders thought that. I think your point in response to that is the president is subject to prosecution for all personal acts, just like every other American for personal acts. The question is acts taken in an official capacity. Official
D. John Sauer: That's correct. And even those, of course, if there was impeachment and conviction, could be prosecuted on our view. And we'd emphasize the whole series of structural checks in addition to that which deter those kind -- and have successfully deterred presidential misfeasance for 234 years.
Justice Kavanaugh: Then, on the source of immunity, it's not explicit in the Constitution, but also executive privilege is not explicit in the Constitution, yet in United States versus Nixon, the Court unanimously said that the Article II executive power in the Constitution encompassed executive privilege. And the same principle presumably would apply to executive immunity being encompassed within that executive power as historically understood.
D. John Sauer: That's absolutely correct. And there's a very telling passage in Free Enterprise Fund where this Court talked about how there's a letter from James Madison to Thomas Jefferson at the time of the founding where Madison said, hey, the -- as to the removal power, they did not expressly take this away, so the 1789 Congress understood that it Official 1 was left in place. So, if the original understanding of the Executive Vesting Clause is broad enough to encompass that, it would have to be expressly taken away, which is the opposite of the presumption that they're advancing here.
Justice Kavanaugh: And then, lastly, I think you've acknowledged in response to others' questions that some of the acts in the indictment are private and your view is that some are official. Is it your position then that that analysis of which is which should be undertaken in the first instance by the D.C. Circuit or the district court?
D. John Sauer: Most likely the district court under the logic of Anderson.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: So, Mr. Sauer, you've argued that the Impeachment Clause suggests or requires impeachment to be a gateway to criminal prosecution, right?
D. John Sauer: Yes. I think that's the plain meaning of that second phrase in the Official 1 clause.
Justice Barrett: Okay. So there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn't say so?
D. John Sauer: Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork, which is reaffirmed in the OLC opinions on this, where the -- where Solicitor General Bork, in 1973, as to the issue of the vice president, reviewed the historical materials, and he said the sequence is mandatory only as to the president. That is DOJ's view of the original understanding of the Impeachment Judgment Clause, which is exactly our position. The sequence is mandatory only as to the president. Keep in mind that the criminal prosecution of a president -- president prior to impeachment contradicts, in our view, the plain language of Official 1 the Constitution but also hundreds of years of history and what DOJ admits is the Framers' intent. And so we say that that practice, whatever its validity, should not be extended to this novel context, where it clashes with the constitutional structure.
Justice Barrett: What if the criminal conduct isn't discovered until after the president is out of office, so there was no opportunity for impeachment?
D. John Sauer: We say the Framers assumed the risk that -- of under-enforcement by adopting these very structural checks. As Justice Scalia said in Morrison against Olson, the separation of powers prevents us from righting every wrong, but it does so that we do not lose liberty.
Justice Barrett: Okay. And -- and the Special Counsel makes a point that I think is a pretty compelling one. You admit that if the president were successfully impeached that he could be criminally prosecuted after impeachment, right?
D. John Sauer: Assuming the prosecution Official 1 was for the same conduct of which he was convicted, not impeached. He must be convicted. That word "conviction" is right there in the clause.
Justice Barrett: Okay. Okay. Granted. But you also say that these criminal statutes, unless they explicitly mention the president, don't apply to him. So how can you say that he would be subject to prosecution after impeachment while at the same time saying that he's exempt from these criminal statutes?
D. John Sauer: Well, there are statutes, as they concede, where a president -- Congress has purported to do so.
Justice Barrett: A few. Two or three.
D. John Sauer: They haven't done a comprehensive review. I think it -- this looks like all they did was text search for "president" in 18 U.S. Code. Again, under Franklin, that's a very telling indication that the word "president" is not in the statute isn't necessarily a -- a -- a magic word requirement, so to speak. But more fundamentally than that -- Official 1 more fundamentally than that, they concede there are statutes that exist. In addition to that, much impeachment could occur as a result of private conduct. So the Impeachment Judgment Clause does do significant work by authorizing the subsequent prosecution of a president there because of what the Framers, if you look at what they're discussing in the thing, is -- or in the Constitutional Convention, is principally concerns about private conduct, which, of course, we concede are not immune.
Justice Barrett: Okay. So just to pick up Justice Kagan's example of a president who orders a coup, let's imagine that he is impeached and convicted for ordering that coup. And let's just accept for the sake of argument your position that that was official conduct. You're saying that he couldn't be prosecuted for that, even after a conviction and an impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?
D. John Sauer: There would have to be a -- a statute that made a clear statement that Official 1 Congress purported to regulate the president's conduct.
Justice Barrett: Okay. Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So I think I now understand better your position. In -- in your discussions with Justice Kavanaugh, it became clear that you are saying that for the private acts of a president, there's no immunity, but for the official acts of the president, there is immunity. Is that your position?
D. John Sauer: I agree with that.
Justice Jackson: All right. So one thing that occurs to me is that this sort of difficult line-drawing problem that we're having with all of these hypotheticals, is this a private act or a public act, is being necessitated by that assumption, because, of course, if official acts didn't get absolute immunity, then it wouldn't matter. We wouldn't have to identify which are private and which are public, correct?
D. John Sauer: That, in fact, is the Official 1 approach of the D.C. Circuit. There's no determination that needs to be made --
Justice Jackson: Right. But I'm just -- I'm just making -- so, to the extent we're worried about, like, how do we figure out whether it's private or public, we have to -- we have to understand that we're only doing that because of an underlying assumption that the public acts get immunity. So let me explore that assumption. Why is it as a matter of theory -- and I'm hoping you can sort of zoom way out here -- that the president would not be required to follow the law when he is performing his official acts? Everyone else -- everyone else, there are lots of folks who have very high-powered jobs, who make a lot of consequential decisions, and they do so against the backdrop of potential criminal prosecution if they should break the law in that capacity. And we understand and we know as a matter of fact that the president of the United States has the best lawyers in the world. When he's making a decision, he can consult with Official 1 pretty much anybody as to whether or not this thing is criminal or not. So why would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law?
D. John Sauer: I respectfully disagree with that characterization. The president absolutely does have responsibility. He absolutely is required to follow the law in all of his official acts, but the remedy for that is the question, could he be subject to personal vulnerability, sent to prison --
Justice Jackson: But --
D. John Sauer: -- for making a bad decision after he leaves office.
Justice Jackson: But -- but other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk. So what is it about the president -- I mean, I've heard you say it's because the president has to be able to act boldly, do -- you know, make kind of consequential decisions. I mean, sure, but, again, there are Official 1 lots of people who have to make life-and-death kinds of decisions and yet they still have to follow the law, and if they don't, they could be sent to prison, et cetera, et cetera. So --
D. John Sauer: I'd say two things in response to that --
Justice Jackson: Yes.
D. John Sauer: -- both from Fitzgerald. That's the very sort of inference or reasoning that this Court rejected in Fitzgerald.
Justice Jackson: No, but let me just -- Fitzgerald was a civil situation in which the president actually was in a different position than other people because of the nature of his job, the high-profile nature and the fact that he touches so many different things, when you're talking about private civil liability, you know, anybody on the street can sue him, we could see that the president was sort of different than the ordinary person when you say should he be immune from civil liability from anybody who wants to sue him. But, when we're talking about criminal liability, I don't understand how the president stands in any different position with respect to Official 1 the need to follow the law as he is doing his job than anyone else.
D. John Sauer: He -- he is required to follow the law. And what Fitzgerald said is that the --
Justice Jackson: But he's not if there's no criminal -- if there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants?
D. John Sauer: All the structural checks that are identified in Fitzgerald and a whole series of this Court's cases that go back to Martin against Mott, for example, impeachment, oversight by Congress, public oversight. There's a long series. And Fitzgerald directly addresses this in the civil context, and we think --
Justice Jackson: Well, I'm not sure --
D. John Sauer: -- that language naturally imports to the criminal context.
Justice Jackson: -- I'm not sure that's -- that that's much of a backstop. And what I'm, I guess, more worried about, you seem to be worried about the president being chilled. Official 1 I think that we would have a really significant opposite problem if the president wasn't chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the -- the -- the -- the seat of criminal activity in this country.
D. John Sauer: I don't think there's any allegation of that in this case. And what George Washington said is -- what Benjamin Franklin said is we view the prosecution of a chief executive as something that everybody cried out against as unconstitutional. And what George Washington said is we're worried about factional strife which will bring the Republic --
Justice Jackson: No. I'm -- so let me -- let me -- let me put this worry on the table. If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be Official 1 emboldened to commit crimes with abandon while they're in office? It's right now the fact that we're having this debate because OLC has said that presidents might be prosecuted. Presidents from the beginning of time have understood that that's a possibility. That might be what has kept this office from turning into the kind of crime center that I'm envisioning. But, once we say no criminal liability, Mr. President, you can do whatever you want, I'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office.
D. John Sauer: I respectfully disagree with that because it -- the -- the regime you've described is the regime we've operated under for 234 years. There has not been an expectation based on 234 years of unbroken political --
Justice Jackson: All right. Let me ask you another question that --
D. John Sauer: -- or legal tradition that that might occur.
Justice Jackson: -- let me ask you Official 1 another question about this clear statement line of questioning. First of all, I -- I didn't see you argue that below. I don't know -- I -- I understand that you had that set of in your briefs here, but did you argue before the D.C. Circuit something about a clear statement with respect to the statutes?
D. John Sauer: Yes. In our separately filed motion for -- motion to dismiss based on statutory grounds, we extensively argued not just this clear statement rule but a whole panoply of clear statement rules --
Justice Jackson: Right. But that's not -- that's not the question presented in this case. The question presented in this case comes out of your motion for immunity. So, to bring in now an argument that you didn't raise below, it seems to me you forfeited it, no?
D. John Sauer: I -- I believe it's fairly included within the question presented, especially --
Justice Jackson: Why?
D. John Sauer: Especially because the Court expanded the question presented from what Official 1 either of the parties submitted to discuss here.
Justice Jackson: But not to statutory interpretation.
D. John Sauer: I think --
Justice Jackson: I mean, that -- that argument goes to statutory avoidance, you know, constitutional avoidance, statutory interpretation. You asked for immunity, which is a totally different thing.
D. John Sauer: I think they're very closely related logically. The question is -- is does immunity exist and to what extent does it. And the argument is immunity at least exists to the extent that it raises a grave constitutional question, and that triggers the clear statement rule. That's a really tight logical relationship.
Justice Jackson: But that's totally circular. You're -- you -- you -- you use that argument to avoid constitutional questions. You are asking us a constitutional question here. So it doesn't even make sense to talk about clear statement in -- rule the way that it's come up in the context of an immunity question. But let me just -- let me ask you this Official 1 about it. I had one more question. Yeah. So what -- what is the argument that the president of the United States, who you say is bound by the law, is not on notice that he has to do his job consistent with the law? I mean, to the extent that the clear statement rule comes in at all, it's about the person not being on notice. So I -- I guess I don't understand why Congress in every criminal statute would have to say and the president is included. I thought that was the sort of background understanding that if they're enacting a generally applicable criminal statute, it applies to the president just like everyone else. So -- so what is the clear statement that would have to be made in this context?
D. John Sauer: Under Franklin and under Public Citizen, Congress has to speak clearly before it interferes with the president's powers, and we have here an indictment that seeks to criminalize objective conduct that falls within the heartland of core executive authority.
Justice Jackson: Thank you. Official
Chief Justice Roberts: Thank you, counsel. Mr. Dreeben. ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT
Michael R. Dreeben: Mr. Chief Justice, and may it please the Court: This Court has never recognized absolute criminal immunity for any public official. Petitioner, however, claims that a former president has permanent criminal immunity for his official acts, unless he was first impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here, the executive branch is Official 1 enforcing congressional statutes and seeking accountability for Petitioner's alleged misuse of official power to subvert democracy. That is a compelling public interest. In response, Petitioner raises concerns about potential abuses. But established legal safeguards provide layers of protections, with the Article III courts providing the ultimate check. The existing system is a carefully balanced framework. It protects the president but not at the high constitutional cost of blanket criminal immunity. That has been the understanding of every president from the framing through Watergate and up to today. This Court should preserve it. I welcome the Court's questions.
Justice Thomas: Mr. Dreeben, does the president have immunity, or are you saying that there's no immunity, presidential immunity, even for official acts?
Michael R. Dreeben: Yes, Justice Thomas, but I think that it's important to put in perspective the position that we are offering Official 1 the Court today. The president, as the head of the Article II branch, can assert as-applied Article II objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing his constitutionally assigned functions. That is the constitutional doctrine that currently governs the separation of powers. What Petitioner is asking for is a broad blanket immunity that would protect the president, a former president, from any criminal exposure absent impeachment and conviction, which has never happened in our history. And we submit that is not necessary in order to assure that the president can perform all of the important tasks that the Constitution reposes in him.
Justice Thomas: Over -- over in the not so distant past, the presidents or certain presidents have engaged in various activity, coups or operations like Operation Mongoose when I was a teenager, and yet there were no prosecutions.
Michael R. Dreeben: Yeah. Official
Justice Thomas: Why? If you -- if what you're saying is right, it -- it would seem that that would have been ripe for criminal prosecution of someone.
Michael R. Dreeben: So, Justice Thomas, I think this is a central question. The reason why there have not been prior criminal prosecutions is that there were not crimes. And I want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts. At the outset, there is a statutory construction principle that is applicable here. It arises when there is a serious constitutional question about applying a criminal statute to the president's acts. It is not -- and I'm sure that we will discuss this -- that no statute can apply to the president in his official capacity absent a designation of the president in it. But there is a principle that if there is a serious constitutional question, courts will strive to construe the statute so that it does not apply to the president. In addition to that, the president, I Official 1 think has been mentioned earlier, has access to advice from the attorney general. And it would be a due process problem to prosecute a president who received advice from the attorney general that his actions were lawful absent the kind of collusion or conspiracy that itself represented a criminal violation, which I don't really see as being a --
Justice Thomas: Well --
Michael R. Dreeben: -- realistic option. And then, if I could say one more thing, because you raised the question about potential overseas taking of life, and the Office of Legal Counsel has addressed this quite specifically. There is a background principle of criminal law called the public authority exception to liability, and it is read into federal law unless Congress takes specific action to oust it, which it never has done as far as I am aware. And in a case in which the president sought to engage in overseas activity that would result in the taking of life, OLC did not say the federal murder statute doesn't apply. That Official 1 would be the -- the thrust of my friend's argument on clear statement. Instead, OLC went through an extensive analysis on why the public authority defense would prevent it from being considered a violation of law to go after a terrorist, for example.
Chief Justice Roberts: Counsel --
Justice Alito: Well, Mr. -- I'm sorry.
Chief Justice Roberts: -- the court of appeals below, whose decision we're reviewing, said: "A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws." It -- do you agree with that statement?
Michael R. Dreeben: Well, I think it sounds tautologically true, but I -- I want to underscore that the obligation of a president is to take care that the laws are faithfully executed.
Chief Justice Roberts: Well, I -- the Official 1 -- I think it sounds tautologically true as well, and that, I think, is the clearest statement of the court's holding, which is why it concerns me. It -- It -- as I read it, it says simply a former president can be prosecuted because he's being prosecuted.
Michael R. Dreeben: Well, I -- I would not suggest that that's either the proper approach in this case or certainly not the government's approach. A prosecution does, of course, invoke federal criminal law. The allegations have to be presented to a grand jury, which votes upon the indictment.
Chief Justice Roberts: Well, that's what I -- I mean, shortly after that statement in the court, that -- court's opinion, that's what they said, but there's no reason to worry because the prosecutor will act in good faith and there's no reason to worry because a grand jury will have returned the indictment. Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment, and reliance on the faith -- good faith of the prosecutor may not be Official 1 enough in the -- some cases. I'm not suggesting here. So, if it's tautological and those are the only protections that the court of appeals below gave and that is no longer your position, you're not defending that position, why shouldn't we either send it back to the court of appeals or issue an opinion making clear that that's not the law?
Michael R. Dreeben: Well, I -- I am defending the court of appeals' judgment. And I do think that there are layered safeguards that the Court can take into account that will ameliorate concerns about unduly chilling presidential conduct. That concerns us. We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution under Wayte versus United States. It's not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath. So -- Official
Chief Justice Roberts: Well --
Michael R. Dreeben: -- I -- I don't want to overstate the -- Your Honor's concern with potentially relying solely on good faith, but that's an ingredient. And then the courts stand ready to adjudicate motions based on selective prosecution, political animus. This Court relied on those very protections in --
Chief Justice Roberts: Right.
Michael R. Dreeben: -- the Vance case just two years ago.
Justice Kavanaugh: What's the test --
Chief Justice Roberts: But -- but what -- what concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about --
Michael R. Dreeben: Mm-hmm.
Chief Justice Roberts: -- or what documents we're talking about because of its adoption of what you termed, and I agreed quite correctly, as a tautological statement. Because the fact of prosecution was enough, enough to take away any official immunity, the fact of prosecution, they had no need to look at what Official 1 courts normally look at when you're talking about a privilege or immunity question.
Michael R. Dreeben: Well, I -- I think I would take issue, Mr. Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution, unless this Court creates it today. There certainly is no textual immunity. We do not submit that that's the end of the story. United States versus Nixon wasn't a textually-based case. Neither was Nixon versus Fitzgerald. We endorse both of those holdings. But what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of, even with respect to the Speech or Debate Clause. It's very narrow. It's focused on legislative acts. It's not focused on everything that a Congressman does. And it responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs. That's why it ended up in the Constitution. Official 1 Nothing like that ended up in -- in the Constitution for the presidents, and that's because one of the chief concerns of the Framers was the risk of presidential misconduct. They labored over this. They adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. This departed from the British model. The British model was you get impeached and criminally prosecuted and convicted in the same proceeding. The Framers did not want that. They wanted a political remedy in case a president was engaging in conduct that endangered the nation. He could be removed. He can't be prosecuted while he's a sitting president. That's been the longstanding Justice Department position.
Justice Alito: Mr. Dreeben, you dispute the proposition that a former president has some form of immunity.
Michael R. Dreeben: Mm-hmm.
Justice Alito: But, as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to Official 1 everybody must be interpreted differently under some circumstances when they are applied to a former president. Isn't that true?
Michael R. Dreeben: It -- it is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions. And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.
Justice Alito: All right. So this is more, I think, than just a -- a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection, because it involves this difference which I'm sure you're very well aware of. That if it's just a form of special protection, in other words, statutes will be interpreted differently as applied to a former president, then that is something that has to be litigated at trial. The -- the former president can make a motion to dismiss and may cite OLC opinions, and the district court may say: Well, that's fine, I'm not bound by OLC and I Official 1 interpret it differently, so let's go to trial. And then there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the -- the former president may be unable to engage in other activities that the former president would want to engage in. And then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal. So the protection is greatly diluted if you take the form -- if it takes the form that you have proposed. Now why is that better?
Michael R. Dreeben: It -- it's better because it's more balanced. The -- the blanket immunity that Petitioner is arguing for just means that criminal prosecution is off the table, unless he says that impeachment and conviction have occurred. Those are political remedies that are extremely difficult to achieve. In a case where the conduct, misconduct, occurs close to the end of a president's term, Congress is unlikely to crank up the machinery to do it, and if the impeachment trial has to occur after the Official 1 president has left office, there's an open question about whether that can happen at all. So --
Justice Alito: Well it -- you're arguing against the most far-reaching --
Michael R. Dreeben: Correct.
Justice Alito: -- aspects of -- of Mr. Sauer's argument, right?
Michael R. Dreeben: That -- that is -- that is correct. And -- and let me turn then to why we --
Justice Kavanaugh: Well -- well, what about, to unpack it a little more, do you agree that there's some aspects of Article II presidential power that are exclusive and that Congress cannot regulate and therefore cannot criminalize?
Michael R. Dreeben: Absolutely.
Justice Kavanaugh: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there's not blanket immunity for those --
Michael R. Dreeben: Mm-hmm.
Justice Kavanaugh: -- official acts Official 1 but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest -- I know you have a little bit of a disagreement with that -- and what this Court's cases also suggest.
Michael R. Dreeben: So, Justice Kavanaugh, I'd like -- like to take all of those in turn because I don't think this Court's cases speak that broadly. I definitely don't think that the Office of Legal Counsel opinions stand for this broad proposition that unless the president is specifically named, he's not in -- in the statute. And I don't think that that's necessary in order to afford adequate protection for the president's valid Article II functions.
Justice Kavanaugh: Well, you said unless -- I'm sorry to interrupt, but I want to just get this out and you can incorporate it in the answer. You said unless there's a serious constitutional question.
Michael R. Dreeben: Correct. Official
Justice Kavanaugh: Well, it's -- isn't -- it's a serious constitutional question whether a statute can be applied to the president's official acts. So wouldn't you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?
Michael R. Dreeben: I -- I don't think -- I don't think across the board that a serious constitutional question exists on applying any criminal statute to the president.
Justice Kavanaugh: The problem is the vague stat, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a -- a creative prosecutor who wants to go after a president.
Michael R. Dreeben: Well, let me try to backtrack a little bit to the --
Justice Kavanaugh: That's the -- that's the -- that's what we're talking about historically, is the risk that -- and -- and going forward the -- the risk. So you can take all of that.
Michael R. Dreeben: I -- I think that the -- Official 1 the question about the risk is very serious, and, obviously, it is a question that this Court has to evaluate. For the executive branch, our view is that there is a -- a balanced protection that better serves the interests of the Constitution that incorporates both accountability and protection for the president. And I want to go through the protections that do exist, but perhaps it's worth returning at the outset to the statutory construction question that you raised. The Office of Legal Counsel has said the offense of bribery, of course, applies to the president. It does not name the president, Justice Gorsuch. Section 201 does not specifically name the president.
Justice Kavanaugh: Right. Well, assume that's personal. So that's --
Michael R. Dreeben: Well, I think that it's -- it's --
Justice Kavanaugh: -- that's what Brewster said.
Michael R. Dreeben: It --
Justice Gorsuch: The bribe -- bribery Official 1 statute in 607 says the president. I've got it in front of me. And so there is -- there is that.
Michael R. Dreeben: Well, Section --
Justice Gorsuch: Let -- let -- let me just back up, though, just --
Michael R. Dreeben: Okay.
Justice Gorsuch: -- a second to what was a quick exchange with Justice Kavanaugh that I just want to make sure I understand.
Michael R. Dreeben: Yeah.
Justice Gorsuch: Did you agree that there are some core functions of the executive that a president conduct that Congress cannot criminalize?
Michael R. Dreeben: Yes. We --
Justice Gorsuch: So is -- is that a form -- I mean, we can call it immunity or you can call it they can't do it. But what's the difference?
Michael R. Dreeben: We call it an as-applied Article II challenge that we think --
Justice Gorsuch: Okay, okay.
Michael R. Dreeben: -- fits within --
Justice Gorsuch: Can we call it Official 1 immunity just for shorthand's sake so we -- so I think we are kind of narrowing the ground of dispute here. It seems to me there is some -- some area you -- you concede that on official acts that Congress cannot criminalize, and now we're just talking about the scope.
Michael R. Dreeben: Well, I don't think it's a "just," but I -- I think it's a very significant gap between any official act and the small core of exclusive official acts.
Justice Gorsuch: No, I -- I -- I got that, but I -- I want to explore that, okay?
Michael R. Dreeben: Okay.
Justice Gorsuch: So, for example, let's say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a -- a piece of legislation that's going through.
Michael R. Dreeben: Mm-hmm.
Justice Gorsuch: And it, in fact, delays the proceedings in Congress. Now, under 1512(c)(2), that might be corruptly impeding a proceeding, an official proceeding. Could -- is that core and therefore immunized or whatever word, euphemism you want Official 1 to use for that?
Michael R. Dreeben: So --
Justice Gorsuch: Or is that not core and therefore prosecutable --
Michael R. Dreeben: Well, it -- it's --
Justice Gorsuch: -- without a clear statement that applies to the president?
Michael R. Dreeben: It's not -- it's not core. The core kinds of activities that the Court has acknowledged are the things that I would run through the Youngstown analysis. And it's a pretty small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments, these are things that the Constitution specifically allocates to the president. Once you get out --
Justice Gorsuch: So a president then could be prosecuted for the conduct I described after he leaves office?
Michael R. Dreeben: Probably not, but I want to explain the framework --
Justice Gorsuch: Why -- why?
Michael R. Dreeben: -- of -- of why I don't Official 1 think that that would be prosecution that would be valid. First, I think you need to run through all of the sort of normal categories of analysis. Is there a serious constitutional question that's posed by applying that statute to the president? If so, then you may well default to it does not apply at least on that fact pattern.
Justice Gorsuch: Well, I thought you said it -- that -- that was my question.
Michael R. Dreeben: Yes. I understand.
Justice Gorsuch: And you said it -- it fell outside that core, we'll call it immunity for simplicity's sake.
Michael R. Dreeben: Yes, I understand. But --
Justice Gorsuch: But --
Michael R. Dreeben: There's a -- there's a separate --
Justice Gorsuch: So they couldn't --
Michael R. Dreeben: -- category of --
Justice Gorsuch: Okay. So why couldn't he be prosecuted for leading a civil rights protest in front of the Capitol that -- Official 1 that delays a vote on a piece of important legislation?
Michael R. Dreeben: So I think what you need to do is run through all of the very president-specific protective layers of analysis. So one of them is whether the statute would be construed not to apply to his conduct, even if it's not part of that small core of things that Congress can't regulate at all. If it operates to prevent the president from fulfilling his Article II --
Justice Gorsuch: Well, he -- he could have given speeches against it. He did.
Michael R. Dreeben: Yes.
Justice Gorsuch: But he left -- he -- he -- he did something more, and it -- and it corruptly impeded and sought to influence an official proceeding.
Michael R. Dreeben: Well, so I -- I don't know -- we're -- we're starting with the layers, I think, of protection. And we're now down through whether the statute would be construed to apply to him. Then there would be a question of whether --
Justice Gorsuch: Assume it does. Official
Michael R. Dreeben: I will assume it. Then -- then there's the question of whether he has the state of mind necessarily --
Justice Gorsuch: Assume he does.
Michael R. Dreeben: -- to violate it.
Justice Gorsuch: Corrupt --
Michael R. Dreeben: Okay.
Justice Gorsuch: Nobody knows what corrupt intent means? We've been around that tree --
Michael R. Dreeben: I think we will probably --
Justice Gorsuch: -- twice already.
Michael R. Dreeben: -- find out.
Justice Gorsuch: And -- and maybe it means that he knows that he was doing wrong, is what --
Michael R. Dreeben: Perhaps.
Justice Gorsuch: -- the government told us.
Michael R. Dreeben: Right.
Justice Gorsuch: He knows he's doing wrong. He knows he shouldn't be out there blocking congressmen from going to vote.
Michael R. Dreeben: Well, let me get to the Official 1 next layer then, which is that the president does have access to the attorney general to provide legal advice and regularly gets legal advice from the -- the attorney general on the lawful scope of the president's activities. We could go down two tracks here. One is that the attorney general advises him that, as an incident of his Article II authority and in carrying out the functions of the presidency, he can lawfully participate in that protest. It's kind of the First Amendment analogue to the president's official powers, which the Court is exploring in other cases. Alternatively, the attorney general could advise him, I'm sorry, Mr. President, there's nothing in the language of this statute that carves you out. I don't see a serious constitutional question in it --
Justice Gorsuch: I got it.
Michael R. Dreeben: -- because you don't have to do that, and I would advise you not to --
Justice Gorsuch: And then --
Justice Sotomayor: Mr. Dreeben --
Michael R. Dreeben: -- violate criminal law. Official
Justice Gorsuch: -- and then he could be prosecuted?
Michael R. Dreeben: No.
Justice Gorsuch: No? If -- if he gets a negative opinion from the attorney general, he still couldn't be prosecuted?
Michael R. Dreeben: I'm going to assume that most presidents are not going to take in a --
Justice Gorsuch: Well, but if he gets one and does it anyway, then he could be prosecuted?
Michael R. Dreeben: Well, so then, if we are down at that level, I think what we are really asking is whether the president is subject to the criminal law.
Justice Gorsuch: And your answer?
Michael R. Dreeben: And our answer is yes --
Justice Gorsuch: Yeah. Okay.
Michael R. Dreeben: -- he is subject to the criminal law, but --
Justice Sotomayor: Mr. Dreeben, can we go back to the bribery statute? I, like you, understand that the only thing that is covered by that is the president is barred from soliciting or receiving funds in any room or Official 1 building in the United States.
Michael R. Dreeben: That is -- that is correct. And it's an extremely --
Justice Sotomayor: Official building. It's a very limited --
Michael R. Dreeben: Yes.
Justice Sotomayor: -- mention of the president.
Michael R. Dreeben: And -- and, really, I think others --
Justice Sotomayor: Can -- can -- so, as I understand this, there's two very limited provisions mentioning the president as included.
Michael R. Dreeben: That's right.
Justice Sotomayor: There's a whole number of provisions that exclude the president, many, many, many more that exclude the president, correct?
Michael R. Dreeben: It's a kind of small number on both --
Justice Sotomayor: All right. Now --
Michael R. Dreeben: -- sides of the fence, Justice Sotomayor.
Justice Sotomayor: -- Justice Barrett made the point that if we say a president can't Official 1 be included in a criminal law unless explicitly named, then that would bar the Senate from impeaching him for high crimes or misdemeanor because that means that he's not subject to the law at all. Correct?
Michael R. Dreeben: So I -- I think, it -- Justice --
Justice Sotomayor: That's a tautology you can't escape.
Michael R. Dreeben: Justice Sotomayor, what I -- I think that Justice Barrett was saying -- and we would agree with it -- is that under my friend's position, after impeachment, he could be prosecuted, but under his statutory construction approach, there would be nothing to prosecute him for.
Justice Sotomayor: Exactly. That's the point.
Michael R. Dreeben: Exactly.
Justice Sotomayor: Which is, if he's not covered by the criminal law, he can't be impeached for it.
Michael R. Dreeben: Yes.
Justice Sotomayor: For violating it. All right. Now could we go further on this Official 1 clear statement rule? The situations -- and you mentioned it earlier -- in which we have looked to see if the president is covered is contextual, correct?
Michael R. Dreeben: Correct.
Justice Sotomayor: And what are the factors that generally we'll look at? I -- I'm thinking specifically about whether the APA covers the president.
Michael R. Dreeben: Correct.
Justice Sotomayor: And what we did there was analyze what powers were being given to -- in the lawsuit and -- et cetera. We looked at words. We looked at structure. We looked at separation-of-powers issues relating to our case law that said you can't direct the president to do anything and this would have been a subterfuge for that, correct?
Michael R. Dreeben: All correct.
Justice Sotomayor: All right. So I don't know why, two of my colleagues, how they would fashion a clear statement rule that would say when a law says any person can't accept a bribe, that that permits the president to do it.
Michael R. Dreeben: So I agree, Justice Official 1 Sotomayor, that -- that -- that the way that this Court has interpreted statutes that do carve out the president -- Justice Kavanaugh asked about this -- was very context-specific. The Franklin case basically involved a holding that we are highly unlikely to say that the president is an agency, something that the government said would be a peculiar understanding of agency, when the effect of it would be that we would review the president's decisions under statutes for abuse of discretion, which is a very extraordinary thing to do. I think even going back to Marbury -- this is perhaps a point on which I agree with my friend. Marbury says discretionary acts of the president are not the kind of thing that the Court reviews.
Justice Sotomayor: All right. Could I go back to your brief and -- and -- and going back to what some of my colleagues have asked you. There appears to be some narrowing principles to the concept that the president is subject to all criminal laws in all situations.
Michael R. Dreeben: Correct. Official
Justice Sotomayor: You agree that if it affects core powers, then the -- he would not be subject to any laws that attempted to limit those core powers, correct?
Michael R. Dreeben: That is right.
Justice Sotomayor: You're defining core powers as those specified by Article II?
Michael R. Dreeben: That is essentially correct, yes.
Justice Sotomayor: All right. And the only words in the Constitution is -- that -- that have to do with the president and law is that he shall "take care that the law be faithfully executed," correct?
Michael R. Dreeben: That is right.
Justice Sotomayor: Hard to imagine that a president who breaks the law is faithfully executing the law, correct?
Michael R. Dreeben: He has to execute all of the laws.
Justice Sotomayor: All right.
Justice Barrett: Counsel --
Justice Alito: Well, Mr. Dreeben --
Justice Barrett: Oh.
Justice Alito: -- do you really -- I Official 1 mean, presidents have to make a lot of tough decisions about enforcing the law, and they have to make decisions about questions that are unsettled, and they have to make decisions based on the information that's available. Do you really -- did -- did I understand you to say, well, you know, if he makes a mistake, he makes a mistake; he's subject to the criminal laws just like anybody else?
Michael R. Dreeben: Well, I --
Justice Alito: You don't think he's in a special -- a peculiarly precarious position?
Michael R. Dreeben: He's in a special position for a number of reasons. One is that he has access to legal advice about everything that he does. He's under a constitutional obligation to -- he's supposed to be faithful to the laws of the United States and the Constitution of the United States. And making a mistake is not what lands you in a criminal prosecution. There's been some talk about the statutes that are issue in this case. I think they are fairly described as malum in se statutes, engaging in conspiracies Official 1 to defraud the United States with respect to one of the most important functions, namely, the certification of the next president.
Justice Alito: Well, I -- I don't want to dispute the particular application of -- of that, of 371, conspiracy to defraud the United States, to the particular facts here, but would you not agree that that is a peculiarly open-ended statutory prohibition in that -- that fraud under that provision, unlike under most other fraud provisions, does not have to do -- doesn't require any impairment of a property interest?
Michael R. Dreeben: It's designed to protect the functions of the United States Government. And it's difficult to think of a more critical function than the certification of who won the election.
Justice Alito: Yeah, I -- I'm not -- as I said, I'm not discussing the particular facts of this case, but it applies to any fraud that interferes seriously with any government operation, right?
Michael R. Dreeben: So what -- what the government needs to show is an intent to impede, Official 100 interfere, or defeat a lawful government function by deception, and it has to be done with scienter. These are not the kinds of activities that I think any of us would think a president needs to engage in in order to fulfill his Article II duties and particularly in a case like this one. I -- I want to pick up on something that the Court said earlier about the distinction between a public official acting to achieve public ends and a public official acting to achieve private ends. As applied to this case, the president has no functions with respect to the certification of the winner of the presidential election. It seems likely that the Framers designed the Constitution that way because, at the time of the founding, presidents had no two-term limit. They could run again and again and were expected potentially to want to do that. So the potential for self-interest would explain why the states -- conduct the elections. They send electors to certify who Official 101 won those elections and to provide votes. And then Congress in a joint -- extraordinary joint session certifies the vote. And the president doesn't have an official role in that proceeding. So it's difficult for me to understand how there could be a serious constitutional question about saying you can't use fraud to defeat that function. You can't obstruct it through deception. You can't deprive millions of voters of their right to have their vote counted for the candidate who they chose.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Could we just briefly review the layers of protection that you think exists? And I'm going to start with what the D.C. Circuit said. So the first layer of protection is that attorneys general and other Justice Department attorneys can be trusted to act in a professional and ethical manner, right?
Michael R. Dreeben: Yes. Official
Justice Alito: How robust is that protection? I mean, most of the -- the vast majority of attorneys general and Justice Department attorneys -- and we both served in the Justice Department for a long time -- are honorable people and they take their professional ethical responsibilities seriously, but there have been exceptions, right, both among attorneys general and among federal prosecutors?
Michael R. Dreeben: There have been rare exceptions, Justice Alito, but when we're talking about layers of protection, I do think this is the -- the starting point. And if the Court has concerns about the robustness of it, I -- I would suggest looking at the charges in this case. They involve --
Justice Alito: Well, I want to talk about this in -- in the abstract because what is before us, of course, does involve this particular case, which is immensely important, but whatever we decide is going to apply to all future presidents. So, as for attorneys general, there have been two who were convicted of criminal Official 103 offenses while in office. There were others, A. Mitchell Palmer is one that comes to mind, who is widely regarded as having abused the power of his office. Would you agree with that?
Michael R. Dreeben: I would, but they are two officials in a long line of attorneys generals who did not and in Departments of Justice that are staffed by multiple people who do adhere to their office. And, Justice Alito, if I could just -- the point that I wanted to make about this case does go to the general proposition. The allegations about the misuse of the Department of Justice to perpetuate election fraud show exactly how the Department of Justice functions in the way that it is supposed to. Petitioner is alleged to have tried to get the Department of Justice to send fraudulent letters to the states to get them to reverse electoral results. The Department of --
Justice Alito: Yeah, I --
Michael R. Dreeben: -- Justice pushed back --
Justice Alito: -- I -- I understand Official 104 -- I understand -- I understand that, Mr. Dreeben, but as I said, this case will have effects that go far beyond this particular prosecution. So moving on to the second level of protection that the D.C. Circuit cited, federal grand juries will shield former presidents from unwarranted indictments. How much protection is that?
Michael R. Dreeben: Well, it -- it affords two levels of protection. One is the probable cause finding requires evidence. I think some of the fears about groundless prosecutions aren't supported by evidence, and they're not going to get out of the starting gate.
Justice Alito: I mean, there -- there's the old saw about indicting a ham sandwich.
Michael R. Dreeben: Yes, but I think, Justice Alito we --
Justice Alito: I mean, you -- you have a lot of experience in the Justice Department. Do you come across a lot of cases where the -- the -- the U.S. attorney or another federal prosecutor really wanted to indict a Official 105 case and the grand jury refused to do so?
Michael R. Dreeben: There are such cases.
Justice Alito: Are there? Yeah?
Michael R. Dreeben: Yes. But I think that the other --
Justice Alito: Every once in a while there's an eclipse too. (Laughter.)
Michael R. Dreeben: Well, I think that that's for the most reason is prosecutors have no incentive to bring a case to a grand jury and secure an indictment when they don't have evidence to prove guilt beyond a reasonable doubt. It's self-defeating.
Justice Alito: All right. Then the third level is that former presidents enjoy all the protections afforded all criminal defendants, right? I mean, we've discussed that. And that may be true at the end of the day, but a lot can happen between the time when an indictment is returned and the time when the former president finally gets vindication perhaps on appeal. Isn't that correct? Official
Michael R. Dreeben: It -- it is correct, Justice Alito, but I think that we should also consider the history of this country. As -- as members of the Court have observed, it's baked into the Constitution that any president knows that they are exposed to potential criminal prosecution. My friend says after impeachment and conviction. We don't read the Impeachment Judgment Clause that way, but we are -- it's common ground that all former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding. The Watergate smoking gun tape involved President Nixon and H.R. Haldeman talking about and then deciding to use the CIA to give a bogus story to the FBI to shut down a criminal investigation.
Justice Alito: I mean, Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime, and you -- you say, well, no, that's not really true. This is page 42 of your brief. So what about President Franklin D. Roosevelt's decision to intern Japanese Official 107 Americans during World War II? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?
Michael R. Dreeben: Today, yes. Given this Court's decision in Trump versus United States in which the -- you know, Trump versus Hawaii, excuse me, where the Court said Korematsu is overruled. I mean, President Roosevelt made that decision with the advice of his attorney general. That's a layer of safeguard.
Justice Alito: Is that really true? I thought -- I thought Attorney General Biddle thought that there was really no threat of sabotage, as did J. Edgar Hoover.
Michael R. Dreeben: So I think that there is a lot of historical controversy, but it underscores that that occurred during wartime. It implicates potential commander in chief concerns, concerns about the exigencies of national defense that might provide an as-applied Article II challenge at the time. I'm not suggesting today. But the idea that a decision that was made and ultimately endorsed by this Court, perhaps wrongly in the Korematsu case, would Official 108 support criminal prosecution under 241, which requires under United States versus Lanier that the right had been made specific so that there is notice to the president, I don't think that would have been satisfied.
Justice Alito: All right. Well, we could go through other historical examples. I won't do that. Let me just touch briefly on a couple of other things. One is the relevance of advice of counsel, and I wasn't clear what your answer is. So, if the president gets advice from the attorney general that something is lawful, is that an absolute defense?
Michael R. Dreeben: Yes, I -- I think that it is. Under the principle of entrapment by estoppel, this is a due process doctrine that we referred to in our brief or reply brief in Garland versus Cargill this term at page 19 where we cited authority of this Court that if a authorized government representative tells you that what you are about to do is lawful, it would be a -- a root violation of due process to prosecute you for that.
Justice Alito: Well, will that -- Official 109 won't that give presidents an incentive to be sure to pick an attorney general who can -- will -- who will reliably tell the president that it is lawful to do whatever the president wants to do if there's any possibly conceivable argument in favor of it?
Michael R. Dreeben: So I think the constitutional structure protects against that risk. The president nominates the attorney general and the Senate provides advice and consent. And these are the sort of structural checks that have operated for 200 years to prevent the kind of abuses that my friend fears going forward as a result of this once-in-history prosecution.
Justice Alito: On the question of whether a president has the authority to pardon himself, which came up earlier in the argument --
Michael R. Dreeben: Mm-hmm.
Justice Alito: -- what's the answer to that question?
Michael R. Dreeben: I don't believe the Department of Justice has taken a position. The -- the only authority that I'm aware of is a Official 110 member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the Department has not addressed it further. And, of course, this Court had not addressed it either.
Justice Alito: Well, when you addressed that question before us, are you speaking in your capacity solely as a member of the Special Counsel's team, or -- or are you speaking on behalf of the Justice Department, which has special institutional responsibilities?
Michael R. Dreeben: I am speaking on behalf of the Justice Department, representing the United States.
Justice Alito: Now how -- don't you think we need to know the answer to -- at least to the Justice Department's position on that issue in order to decide this case? Because, if a president has the authority to pardon himself before leaving office and the D.C. Circuit is right that there is no immunity from prosecution, won't the -- the predictable result be that presidents on the last couple of days of office are going to Official 111 pardon themselves from anything that they might have been conceivably charged with committing?
Michael R. Dreeben: I -- I really doubt that, Justice Alito. I mean, it sort of presupposes a regime that we have never had except for President Nixon and as alleged in the indictment here, presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves. I think the political consequences of a president who asserted a right of self-pardon that has never been recognized, that seems to contradict a bedrock principle of our law that no person shall be the judge in their own case. Those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve.
Justice Alito: All right. Let me end -- end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office Official 112 peacefully if that candidate is -- is the incumbent.
Michael R. Dreeben: Of course.
Justice Alito: All right. Now, if a -- an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.
Michael R. Dreeben: So I think it's exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election. And outside the record but I think of public knowledge, Petitioner and his allies filed dozens of electoral challenges and, in my understanding, has lost all but one that was not outcome determinative in any respect. There were judges the -- that said, in order to Official 113 sustain substantial claims of fraud that would overturn an election result that's certified by a state, you need evidence, you need proof. And none of those things were manifested. So there is an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation's experience. I think the Court is well familiar with that.
Justice Alito: All right. Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: A stable democratic society needs the good faith of its public officials, correct?
Michael R. Dreeben: Absolutely.
Justice Sotomayor: And that good faith assumes that they will follow the law?
Michael R. Dreeben: Correct.
Justice Sotomayor: Now, putting that aside, there is no fail-safe system of government, meaning we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail Official 114 routinely, but we succeed more often than not. In the vast majority of cases, the innocent do go free. Sometimes they don't, and we have some post-conviction remedies for that. But we still fail. We've executed innocent people. Having said that, Justice Alito went through step by step all of the mechanisms that could potentially fail. In the end, if it fails completely, it's because we've destroyed our democracy on our own, isn't it?
Michael R. Dreeben: It -- it is, Justice Sotomayor, and I also think that -- that there are additional checks in the system. Of course, the constitutional Framers designed a separated powers system in order to limit abuses. I think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations. But the ultimate check is the goodwill and faith in democracy. And crimes that are alleged in this case that are the antithesis of democracy, that subvert it --
Justice Sotomayor: An encouragement --
Michael R. Dreeben: -- undermine that. Official
Justice Sotomayor: An encouragement to believe words have been somewhat put into suspicion here, that no man is above the law either in his official or private acts?
Michael R. Dreeben: Yes -- yes. I think that is an assumption of the Constitution.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: Mr. Dreeben, I want to go through your framework and make sure I understand it. So, first, on the small category of things that you say have absolute protection --
Michael R. Dreeben: Yes.
Justice Kagan: -- that they are core executive functions --
Michael R. Dreeben: Yes.
Justice Kagan: -- what are those small categories?
Michael R. Dreeben: Pardon power.
Justice Kagan: Pardon. Veto?
Michael R. Dreeben: Veto, foreign recognition, appointments. Congress cannot say you can't appoint a federal judge who hasn't received, you know, a certain diploma, hasn't achieved a certain age. There are a few other Official 116 powers in the Constitution.
Justice Kagan: Is commander in chief?
Michael R. Dreeben: Commander in chief is -- is on the list, but I want to add to my answer on that that Congress has substantial authority in the national security realm. Congress declares war. It raises armies. It has power over the purse. That's more of a --
Justice Kagan: So that may be viewed as not really in that core set of functions which nobody has any power but the president over?
Michael R. Dreeben: Yes. I think that there may be some aspects like directing troops on the field in which the president's power is completely unreviewable.
Justice Kagan: Okay. Now, in -- in -- in -- in the next category, where you -- where -- where we've left the core set behind --
Michael R. Dreeben: Yes.
Justice Kagan: -- but we're still in the world of official actions --
Michael R. Dreeben: Mm-hmm.
Justice Kagan: -- and that's where you say there are various statutory construction Official 117 rules that might come into play.
Michael R. Dreeben: Correct.
Justice Kagan: But you have characterized those as something different from just saying, oh, look, the statute doesn't say the president; therefore, it doesn't apply to the president.
Michael R. Dreeben: That is right.
Justice Kagan: So I wanted to give you an opportunity to say, you know, how that would look, how that analysis would look in a given case. And -- and in the course of responding to that, you know, I'm sort of thinking of something like the OLC opinion --
Michael R. Dreeben: Mm-hmm.
Justice Kagan: -- which says bribery --
Michael R. Dreeben: Mm-hmm.
Justice Kagan: -- the president can be tried and convicted of bribery, even in the part of the bribery statutes that do not say the president.
Michael R. Dreeben: Mm-hmm.
Justice Kagan: Why is that true?
Michael R. Dreeben: That is true because Official 118 there is no serious constitutional question that the president needs to engage in bribery in order to carry out his constitutional functions, and the Office of Legal Counsel pointed out that bribery is enumerated in the Impeachment Clause. So it falls outside of anything that could be viewed as inherent in the need of Article II to function.
Justice Kagan: Do you think the premise of that OLC opinion was that the bribery was simply not official?
Michael R. Dreeben: No.
Justice Kagan: Or is the premise that the bribery was official and -- and still the president could be prosecuted for it?
Michael R. Dreeben: I think that bribery is -- is the kind of hybrid that illustrates the abuse of public office for private gain that we think is paradigmatic of the kinds of things that should be not held to be immune. In a bribery case, the public official cannot extract the bribe without the official power to offer as the quid or the pro. I guess the quo actually. So it -- it really is a crime that can only be committed by public officials Official 119 who misuse their power, and it was one of the things that was most mistrusted. Many of the acts that are charged in this indictment or that would violate federal criminal law similarly involve the misuse of official power for private gain.
Justice Kagan: So, if you were to say, like, what the line is in this category, like, when it is that the statute should be understood as precluding presidential prosecution and when it is that the statute should be understood as allowing it, what general principles should guide?
Michael R. Dreeben: So the -- the -- the general principles, I think, kind of emerge from looking at what the Office of Legal Counsel has done. So, for example, with respect to a federal statute that prohibited appointments to courts of people within certain degrees of consanguinity, the Office of Legal Counsel said this infringes on a very important appointment power of the president, the power to appoint federal judges. It cannot be presumed that Congress intended to do that because it would raise a very serious constitutional question. Official 120 The president is out. Then there are categories of statutes where the president is in, like, for example, the grassroots lobbying statute. The Office of Legal Counsel wrote an opinion about that, and it said for the president or other public officials to go out into the world and to promote their programs, that can't be what Congress intended to prohibit. What it did intend to prohibit is using federal funds to gin up -- gin up an artificial grassroots campaign that gave the appearance of emerging from the people, but it was really top-down. And the Office of Legal Counsel said the president and officials who carry out the president's mandates are subject to that statute. So that's a more nuanced one. And then the third example that I will give you is the statute that would permit prosecution for contempt of Congress. The Office of Legal Counsel concluded that a good-faith assertion of executive privilege as a reason for not providing information to Congress would preclude prosecution because Congress cannot be deemed to have altered the separation Official 121 of powers in such a manner. I think OLC probably would have gone on to say, if Congress tried to do it, it would be deemed unconstitutional. But, again, this was a statute that did not specifically name the president. There are only two that do that. So the entire corpus of federal criminal law, including bribery offenses, sedition, murder, would all be off limits if it were taken to the -- to the -- to the extent that some of the questions have suggested and for the general principle, does it raise a serious constitutional question, and, if so, to what extent? Can it be carved out individually? And there may be some instances where the statutes here could be carved out and a particular act could be found to be protected. Or does the statute across the board, in such a wide range of applications, somewhat analogous to overbreadth analysis, infringe on the president's power so that we're going to say that -- that the president is just out?
Justice Kagan: Now that set of issues, they seem important and may occasionally be difficult. Official
Michael R. Dreeben: Mm-hmm.
Justice Kagan: They -- they also seem not really before us in the way Justice Jackson suggested earlier.
Michael R. Dreeben: Mm-hmm.
Justice Kagan: What do you -- I mean, do you think they are before us, we should just clear it up, here it is, we have a case? What -- what else could we do? How should we deal with this, that there are these --
Michael R. Dreeben: Yes. Yes.
Justice Kagan: -- lingering issues that go beyond the question of whether there's the kind of absolute immunity that the former president is invoking?
Michael R. Dreeben: So I think the Court has discretion to reach that issue even though Justice Jackson is totally right, it was not raised in the district court and it was not raised in the court of appeals. And the -- the analysis that I would use to get there is a fusion of a couple of principles. One is the Court has often resolved threshold questions that are a prerequisite to an intelligent resolution of the question Official 123 presented. So, in a case like United States versus Grubbs, for example, the Court reached out to decide what -- whether anticipatory warrants are valid under the Fourth Amendment before turning to the question whether the triggering condition for an anticipatory warrant had to be in the warrant. So that's one principle. And then a -- a precedent that bears some analogy to this is Vermont Natural Resources Agency versus United States ex rel Stevens. It was a qui tam case, and the first question was whether a state agency was a person within the meaning of the False Claims Act, and the second question was whether, if the state agency was, Eleventh Amendment immunity kicked in. And the Court wrote an analysis of why it could reach both questions. The reaching the person question didn't expand the Court's jurisdiction, and it made sense as a matter of constitutional avoidance to do that. There are some considerations that cut against this. And I -- I want to be clear that Official 124 for overall government equities, we are not wild about parties who raise a -- an immunity case that can be presented to a court on an interlocutory appeal and then smuggling in other issues. So we would want to guide the Court not to have an expansive approach to that issue. But the final thing that I would say about this is part of our submission to this Court is that the Article I branch and the Article II branches are aligned in believing that this prosecution is an appropriate way to enforce the law, Congress by making the law, the current executive by deciding to bring it. And since a building block of that submission is that Congress actually did apply these criminal laws to official conduct, the Court may wish to exercise its discretion to resolve that issue.
Justice Kagan: Okay. I have one last set of questions, which has to do with the official/unofficial line.
Michael R. Dreeben: Yes.
Justice Kagan: And you heard Mr. Sauer's responses to both Justice Barrett's questions and my questions about what he thinks Official 125 counts as official here and what he thinks counts as unofficial here. And I'm just wondering what you took from his responses and also how you would characterize what is official and what is not official in this indictment.
Michael R. Dreeben: So I -- I think Petitioner conceded that there are acts that are not official that are alleged in the indictment. And we agree with him on all of that. I think I disagree with him on everything else that he said about what is official and what is not. Organizing fraudulent slates of electors, creating false documentation that says I'm an elector, I was appointed properly, I'm going to send a -- a vote off to Congress that reflects that Petitioner won rather than the candidate that actually got the most votes and who was ascertained by the governor and whose electors were appointed to cast votes, that is not official conduct. That is campaign conduct. And I think that the D.C. Circuit in the Blassingame case did draw an appropriate distinction. A first-term president who's Official 126 running for re-election can act in the capacity as office-seeker or office-holder. And when working with private lawyers and a private public relations advisor to gin up fraudulent slates of electors, that is not any part of a president's job. So --
Justice Kagan: There's -- I'm sorry, there's an allegation in the indictment that has to do with the removal of a Justice Department official. Would -- would -- is that core protected conduct?
Michael R. Dreeben: We don't think that that's core protected conduct. I don't think that -- that I would characterize that episode quite that way. We do agree that the Department of Justice allegations were a use of the president's official power. In many ways, we think that aggravates the nature of this offense. Seeking as a candidate to oust the lawful winner of the election and have oneself certified with private actors is a private scheme to achieve a private end, and many of the co-conspirators alleged in the indictment are Official 127 private. But for an incumbent president to then use his presidential powers to try to enhance the likelihood that it succeeds makes the crime in our view worse --
Justice Kagan: And --
Michael R. Dreeben: So -- in the Department of Justice episode occurs very late in the election cycle, after many other schemes had failed. And at that point, the -- the Petitioner is alleged to have tried to pressure the Department of Justice to send false letters to the states claiming that there were serious election irregularities and that they should investigate who they certified as the president. None of this was true. The Department of Justice officials all said this is not true. We are not going to do that. And at that point, Petitioner is alleged to have threatened to remove the Department of Justice officials who were standing by their oath and replace them with another person who would carry it out. We're not seeking to impose criminal Official 128 liability on the president for exercising or talking about exercising the appointment and removal power. No. What we're seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election, one means of which was to try to get the Justice Department to be complicit in this. The case would have been no different if Petitioner were successful and he had actually exercised the appointment and removal power and it had gone through and those fraudulent letters were sent. It would have made the scheme more dangerous, but it would not have changed the crime.
Justice Kagan: And how do we think about things like conversations with the vice president? In other words, things that if you say it that way, it's clear that they would fall under executive privilege.
Michael R. Dreeben: Mm-hmm.
Justice Kagan: But how does that relate to the question that we're asking here?
Michael R. Dreeben: So this is one of the most difficult questions for the Department of Justice, and I -- I want to explain why that is. Official 129 If we are operating under a Fitzgerald versus Nixon lens and looking at this the way that we look at things when there is a private lawsuit filed against the president, we take a very broad view of what the outer perimeter of official presidential action is in order to be as protective of the president against private lawsuits that, as this Court explained in Nixon versus Fitzgerald, can be very deleterious to the president's conduct of business. So, if we were putting this under a Fitzgerald lens, we would then have to answer to the question: Was he acting in -- in the capacity as office-seeker, or was he acting in the capacity as office-holder? And if you run through the indictment, you can find support for those two characterizations, and the Department of Justice has not yet had to come to grips with how we would analyze that set of interactions.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: If you did, though, you -- I just wanted to confirm, I thought I Official 130 heard you thought that the Blassingame framework was the appropriate one. Is that right?
Michael R. Dreeben: Largely -- largely yes, Justice Gorsuch. We -- we agree with the idea of the distinction between office-holder and office-seeker. We also agree that if it's objectively reasonable to view the activities as those of office-holder, then the Fitzgerald immunity kicks in. I think we would look more at the content of the actual interaction in order to make that determination than Blassingame suggested at least on the facts of that case might be appropriate.
Justice Gorsuch: Can you give me an example of what you have in mind? I'm just trying to understand what nuance you're suggesting.
Michael R. Dreeben: So -- so -- so Blassingame adopted a, you know, generally very favorable, pro-government framework that -- we endorse in tried civil cases.
Justice Gorsuch: I would have thought, yeah. Official
Michael R. Dreeben: Okay. Not here, because we don't think that Fitzgerald applies in the criminal context.
Justice Gorsuch: Well, I understand that.
Michael R. Dreeben: Okay.
Justice Gorsuch: But -- but -- but -- but -- but putting that aside, the distinction between official act and private office-seeker --
Michael R. Dreeben: Yes.
Justice Gorsuch: -- their test is, you think, good enough for government work?
Michael R. Dreeben: I -- I -- on -- on this one, the Department hasn't taken a next step since the Blassingame decision, but let me offer a few thoughts that, Justice Gorsuch, I think might clarify it. The Blassingame decision focused on objective contextual indications to try to see whether the president was acting as a campaigner as opposed to --
Justice Gorsuch: Yeah.
Michael R. Dreeben: -- a -- a you know, an office-holder. Official
Justice Gorsuch: President, yeah.
Michael R. Dreeben: I think that -- that that decision can also be made by looking at what the president actually said. And let me illustrate that with an allegation that I think my friend --
Justice Gorsuch: Briefly.
Michael R. Dreeben: -- talked -- briefly. That it -- in one of the interactions between Petitioner and a state official, Petitioner is alleged to have said: All I need you -- you to do is to find me 11,000 votes and change. I think, if you look at that -- that content, it's pretty clear that Petitioner is acting in the capacity as office-seeker, not as president. And we would look at that content.
Justice Gorsuch: Okay. Okay. But the test -- I'm just focused on the legal test.
Michael R. Dreeben: Right.
Justice Gorsuch: I'm not hearing any objections to it.
Michael R. Dreeben: Other than I think that the D.C. Circuit placed more content consideration off limits than I would.
Justice Gorsuch: Okay. All right. Official 133 And then I wanted to understand, on the core immunity or whatever word we use, that -- that it seems to me that we're narrowing the ground of dispute here considerably, do -- do we look at motives, the president's motives for his actions? I mean, the -- for example, he has lots of war powers, as we discussed, but he might use them in order to enhance his election, his personal interests. Is that a relevant consideration when we're looking at core powers?
Michael R. Dreeben: So I -- I -- I am thinking of this more as looking at the objective of the activity as opposed to the kind of subjective motive in the sense that Your Honor is talking about. I think that there is a lot of concern about saying an electoral motive to be reelected as such --
Justice Gorsuch: Right.
Michael R. Dreeben: -- is problematic --
Justice Gorsuch: I mean, every first-term president --
Michael R. Dreeben: Yes.
Justice Gorsuch: -- everything he does can be seen through the prism, by critics Official 134 at least, of his personal interest in re-election.
Michael R. Dreeben: Yes.
Justice Gorsuch: And so you wouldn't want that -- I -- I think you would say personal motivations off limits with respect to the core powers.
Michael R. Dreeben: Probably -- well, with respect to the core powers, we think those are just things that can't be regulated at all, like the pardon power and veto.
Justice Gorsuch: Right.
Michael R. Dreeben: Can't --
Justice Gorsuch: Regardless of motive?
Michael R. Dreeben: Correct.
Justice Gorsuch: Regardless of motive?
Michael R. Dreeben: That is right.
Justice Gorsuch: Okay.
Michael R. Dreeben: That is right.
Justice Gorsuch: All right. So then we're in the non-core powers --
Michael R. Dreeben: Right.
Justice Gorsuch: -- where we're Official 135 fighting over. What role do motives play there? I mean, it -- one could remove an -- an appointee that -- well, first of all, is -- maybe ask this first -- is removing an appointee, a presidential appointee, a core power or a non-core power in your world?
Michael R. Dreeben: So, here -- here, I might need to differentiate between the principal officers that this Court in cases like Myers and Seila Law has regarded as having constitutional status of being removable at will from inferior officers, where Congress does have some regulatory latitude to impose restrictions on removal.
Justice Gorsuch: Sure.
Michael R. Dreeben: And -- and a restriction --
Justice Gorsuch: Put -- put that aside. Yeah, I -- I understand that.
Michael R. Dreeben: All right. Putting -- putting that aside, yes, appointing a principal officer is a core power. I am not prepared to say that there is no potential criminal regulation to say you can't do it for corrupt purposes, to enrich yourself, for example. Official
Justice Gorsuch: Well, bribery, all right.
Michael R. Dreeben: Yes.
Justice Gorsuch: But -- but that's what I was wondering. Do motives come into the core power analysis or not? And now I'm hearing -- I thought I heard no, and now I'm hearing maybe.
Michael R. Dreeben: I think "maybe" might be a little bit more appropriate because it's not involved in this case. The Department has not had to take a position on exactly how these core powers would be resolved under an as-applied constitutional analysis. None is involved in this case.
Justice Gorsuch: And I guess I'm wondering -- and I'm not concerned about this case so much as future ones too --
Michael R. Dreeben: Yes.
Justice Gorsuch: -- but these non-core powers, and maybe --
Michael R. Dreeben: Yes.
Justice Gorsuch: -- core powers where a president is acting with, at least in part, a personal interest in getting re-elected. Official 137 Everything he does --
Michael R. Dreeben: Yeah.
Justice Gorsuch: -- he wants to get reelected. And if you're -- if you're allowing in motive to color that, I -- I -- I'm wondering how much is left of -- of either the core or non-core powers under your view?
Michael R. Dreeben: So I -- I -- I would be fine with carving that out and deeming that to be something that's intrinsic in our electoral system. We're not talking about applying criminal law to somebody who makes an announcement that this program will be good for the United States, and somebody could come along and say, well, you really did it to get re-elected. Leaving aside whether any of that violates a criminal law -- I know that the next question is assume that it does -- I'm doubtful that it, in fact, does because I don't think criminal laws generally operate on motives as opposed to objectives and purposes. But --
Justice Gorsuch: Well, all right --
Michael R. Dreeben: -- that -- that's --
Justice Gorsuch: -- intentions. I Official 138 mean, you --
Michael R. Dreeben: Yeah.
Justice Gorsuch: -- you can frame a motive as an intention and an intention as a motive, as you well know, every day of the week.
Michael R. Dreeben: Yes.
Justice Gorsuch: So let's put that aside too.
Michael R. Dreeben: I understand. Well, putting -- putting that aside, that really to me falls in a very different category. And it is also possible --
Justice Gorsuch: So there are some motives or intents that -- that are cognizable and others that aren't? I mean, it's -- it's awkward, right, when we look at back at, like, the injunction, back to Marbury and the early cases, you can't enjoin a president.
Michael R. Dreeben: Yeah.
Justice Gorsuch: Also meant --
Michael R. Dreeben: A sitting president.
Justice Gorsuch: -- you couldn't hold him in contempt, right?
Michael R. Dreeben: A sitting -- a sitting president. Official
Justice Gorsuch: For sure. For sure.
Michael R. Dreeben: Justice Gorsuch, could I try one more time --
Justice Gorsuch: Well, let me just --
Michael R. Dreeben: -- to clarify?
Justice Gorsuch: -- spin this -- spin this out just a second, right?
Michael R. Dreeben: Okay.
Justice Gorsuch: And -- and -- and it didn't matter what the president's motives were. We're not going to look behind it.
Michael R. Dreeben: Right. Right.
Justice Gorsuch: And -- and same thing in Nixon. We said, gosh, in Nixon versus Fitzgerald, that's something courts shouldn't get engaged in because presidents have all manner of motives. And, again, I'm not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.
Michael R. Dreeben: Mm-hmm.
Justice Gorsuch: Whether it's re-election or who knows what "corrupt" means in 1512, right? We -- we don't know what that Official 140 means. Maybe we'll find out sometime soon. But the -- the dangerousness of accusing your political opponent of having bad motives.
Michael R. Dreeben: Mm-hmm.
Justice Gorsuch: And -- and if that's enough to overcome your core powers or any other limits. I -- reactions, thoughts?
Michael R. Dreeben: Yeah. So -- so I -- I think that you're raising a very difficult question about --
Justice Gorsuch: That's the idea, right? I mean --
Michael R. Dreeben: That is the idea. And --
Justice Gorsuch: -- testing -- testing the limits of both sides' arguments.
Michael R. Dreeben: And -- and I'm going to say something that I don't normally say, which is that's really not involved in this case. We don't have -- (Laughter.)
Michael R. Dreeben: We don't have bad political motive in that sense. I would start -- Official
Justice Gorsuch: I -- I -- I understand that. I appreciate that, but you also appreciate that we're --
Michael R. Dreeben: Yes.
Justice Gorsuch: -- writing a rule for --
Michael R. Dreeben: Yes.
Justice Gorsuch: -- for the ages.
Michael R. Dreeben: Yes. And -- and I think I would start by looking at the statutes and -- and seeing what restrictions they do place on the president's conduct. And, for example, the statute that prohibits fraud to defeat the lawful functions of the United States, the statute defines what the purpose is that the defendant has to have in mind. It has to be to defeat something that the United States is doing and it has to be by deception. I don't think that that gets us into the realm of motive hunting in the area where we are as concerned, I think, as the Court would be, about doing something that would undermine the presidency and the executive branch. And 1512(c)(2), we may have different Official 142 views on the clarity and the scope of that statute. I think, if the Court does interpret "corruptly" as involving a consciousness of wrongdoing and elevates that to consciousness of illegality, then we're in a different realm. Wanting to get re-elected is not a -- an illegal motive, and you don't have to worry about prosecuting presidents for that.
Justice Gorsuch: Yeah. Okay. Thank you, Mr. Dreeben.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: As you've indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country in my view. You've referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?
Michael R. Dreeben: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice. The regulations Official 143 envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have --
Justice Kavanaugh: So it's the solicitor general?
Michael R. Dreeben: Yes.
Justice Kavanaugh: Okay. Second, like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future. And I think one of the Court's biggest mistakes was Morrison versus Olson.
Michael R. Dreeben: Mm-hmm.
Justice Kavanaugh: I think that was a terrible decision for the presidency and for the country and not because there were bad people who were independent counsels, but President Reagan's administration, President Bush's administration, President Clinton's administration were really hampered --
Michael R. Dreeben: Yes.
Justice Kavanaugh: -- in their view --
Michael R. Dreeben: Mm-hmm. Official
Justice Kavanaugh: -- all three, by the independent counsel structure. And -- and what I'm worried about here is that that was kind of let's relax Article II a bit for the needs of the moment. And I'm worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances and someone picked from the opposite party, the current president, and -- usually --
Michael R. Dreeben: Mm-hmm.
Justice Kavanaugh: -- was how it worked. And -- and Justice Scalia wrote that "the -- the fairness of a process must be adjudged on the basis of what it permits to happen --
Michael R. Dreeben: Mm-hmm.
Justice Kavanaugh: -- not what it produced in a particular case." You've emphasized many times regularity, the Department of Justice. And he said -- and I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. "One Official 145 thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the Executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as 'picking the man and then searching the law books or putting investigators to work to pin some offense on him?' To be sure, the investigation must relate to the area of criminal offense" specified by the statute, but that has often been and nothing prevents it from being very broad. I paraphrased at the end because it was referring to the judges.
Michael R. Dreeben: Mm-hmm. Yes.
Justice Kavanaugh: That's the concern going forward, is that the -- the system will -- when -- when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it's not going to stop, it's Official 146 going to -- it's going to cycle back and be used against the current president or the next president or -- and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you?
Michael R. Dreeben: Well, first of all, the -- the independent counsel regime did have many structural features that emphasized independence at the expense of accountability. We don't have that regime now. But, even under that regime, Justice Kavanaugh, I think, if you look at Lawrence Walsh's report on Iran/Contra, I think this goes to a very fundamental point for the Court to consider. Judge Walsh said: I investigated these matters. The proof did not nearly come close to establishing criminal violations. So we've lived from Watergate through the present, through the independent counsel era with all of its flaws, without these prosecutions having gone off on a runaway train. We --
Justice Kavanaugh: Well, I think President Reagan, President Bush, and President Official 147 Clinton, whether rightly or wrongly, thought opposite, thought contrary to what you just said.
Michael R. Dreeben: I think nobody likes being investigated for a crime, but it didn't result in the kind of vindictive prosecutions that I think Your Honor is -- is raising as a possibility.
Justice Kavanaugh: Yeah.
Michael R. Dreeben: We -- we have a different system now. I think there was a consensus throughout Washington that there were flaws in the independent counsel system. It lapsed. We now are inside the Justice Department with full accountability resting with the attorney general, so the special counsel regulations now don't operate the way that the independent counsel regulations do. And this Court would have something to say about it, I think, if the independent counsel statute were revived. I'm not sure that anybody is in favor of that.
Justice Kavanaugh: Right. No, I was just saying this is kind of the mirror image of Official 148 that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me -- I do not mean to suggest anything of the sort in the present case. I'm not talking about the present case. So I'm talking about the future. Second, another point, you said talked about the criminal statutes, it's very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War --
Michael R. Dreeben: Mm-hmm.
Justice Kavanaugh: -- say something's false, turns out to be false that he says about the Vietnam War, 371 prosecution --
Michael R. Dreeben: So --
Justice Kavanaugh: -- after he leaves office?
Michael R. Dreeben: -- I think not, but I -- when you -- this is an area that I do think that merits some serious and nuanced consideration. Statements that are made by a president to the public are not really coming within the realm of Official 149 criminal statutes. They've never been prosecuted. I realize that the Court can say: Well, what if they were? And -- and then I think you get to what I would regard as a hard constitutional question that I would probably guide the Court away from trying to resolve today, although I do think it's very different from our case and distinguishable in important ways, but you're dealing here with two branches of government that have a paramount interest in the integrity and freedom of their interactions with each other. On the one hand, the president, of course, should be very free to send, usually, his cabinet officials and sub-cabinet officials to testify to Congress to provide them with the information needed to enact legislation and to make national policy. And we're very concerned about anything that would trammel that. On the other side of the equation, Congress has a compelling interest in receiving accurate information and at the very least --
Justice Kavanaugh: I -- I agree.
Michael R. Dreeben: -- not information that Official 150 is intentionally and knowingly false.
Justice Kavanaugh: Right.
Michael R. Dreeben: That would pollute the legislative process.
Justice Kavanaugh: How about, I think it came up before, President Ford's pardon?
Michael R. Dreeben: Mm-hmm.
Justice Kavanaugh: Very controversial in the moment.
Michael R. Dreeben: Yes.
Justice Kavanaugh: Hugely unpopular, probably why he lost in '76.
Michael R. Dreeben: Yes.
Justice Kavanaugh: Now looked upon as one of the better decisions in presidential history, I think, by most people. If he's thinking about, well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon?
Michael R. Dreeben: So this would fall into that small core area that I mentioned to Justice Kagan and Justice Gorsuch of presidential responsibilities that Congress cannot regulate. Official
Justice Kavanaugh: How about President Obama's drone strikes?
Michael R. Dreeben: So the -- the Office of Legal Counsel looked at this very carefully and determined that, number one, the federal murder statute does apply to the executive branch. The president wasn't personally carrying out the strike, but the aiding and abetting laws are broad, and it determined that a public authority exception that's built into statutes and that applied particularly to the murder statute, because it talks about unlawful killing, did not apply to the drone strike. So this is actually the way that the system should function. The Department of Justice takes criminal law very seriously. It runs it through the analysis very carefully with established principles. It documents them. It explains them. And then the president can go forward in accordance with it. And there is no risk of prosecution for that course of activity.
Justice Kavanaugh: Thank you for your answers.
Chief Justice Roberts: Justice Barrett? Official
Justice Barrett: Mr. Dreeben, I want to pick up with that public authority defense. So I'm looking at the OLC memo that David Barron wrote that you cited in your briefs, and in -- he describes the public authority defense citing the model penal code. There are a few different definitions, but I'll just highlight this one: Justifying conduct which is required or authorized by the law defining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war, or any other provision of law imposing a public duty. That sounds a lot like dividing a line between official and private conduct. It -- it -- I think it's narrower, and I recognize it's a defense, not an immunity, but when we look at -- when you look at the definition of it, are you acting within the scope of authority conferred by law or discharging a duty conferred by law? I think it's narrower than Blassingame, narrower than Nixon versus Fitzgerald.
Michael R. Dreeben: Mm-hmm.
Justice Barrett: But that's what it Official 153 sounds like to me. Do you agree or disagree?
Michael R. Dreeben: You -- you know, Justice Barrett, I certainly understand the intuition that when you act outside of your lawful authority, you've kind of gone on a frolic and detour, you're no longer carrying it out. I don't really think that that quite works for presidential activity. The only way that he could have implemented the orders is by exercising his commander-in-chief authority over the armed forces or his authority to supervise the executive branch. Those seem like core executive acts to me. There is such a possibility as an unlawful executive act.
Justice Barrett: I'm not sure that I understand your answer. I mean, I was thinking, it -- it seemed to me that in your briefs and today, when you referred to the public authority defense --
Michael R. Dreeben: Yes.
Justice Barrett: -- you said that's one of the built-in protections and --
Michael R. Dreeben: Yes.
Justice Barrett: -- why immunity is Official 154 not necessary --
Michael R. Dreeben: Yes.
Justice Barrett: -- because, in some of these instances, when the president takes such actions that, you know, the courts have been asking you might this result in criminal prosecution, you say: Well, he could raise this public authority defense. And so I'm saying isn't this public authority defense, if raised, doesn't it sound like a defense that says: Well, I had -- I was authorized by law to discharge this function?
Michael R. Dreeben: And, therefore, I acted lawfully?
Justice Barrett: Therefore, I acted lawfully --
Michael R. Dreeben: Yes.
Justice Barrett: -- and am not criminally liable?
Michael R. Dreeben: Correct.
Justice Barrett: Does that involve a look into motives? Kind of this is -- gets to what Justice Gorsuch was asking you. Could you say I was acting within the scope of my authority by granting a pardon, removing a Official 155 cabinet officer, but then the public authority defense might not apply because you had a bad motive in doing so?
Michael R. Dreeben: No, I -- I -- I don't think so, Justice Barrett. I think that it operates based on objective facts disclosed to counsel. Counsel then provides the advice, in this case the Department of Justice, and it -- it's an objectively valid defense. It's a complete defense to prosecution.
Justice Barrett: So what would be so bad -- I mean, one thing that strikes me as different -- well, one thing that's obviously different between a public authority defense and immunity is an interlocutory appeal and having it resolved at the outset.
Michael R. Dreeben: Mm-hmm. Mm-hmm.
Justice Barrett: What would be so bad about having a question like that resolved at the threshold, having it be an immunity, the same kind of question that could be brought up as a defense later, but have it be brought up at the threshold as an immunity, and then an interlocutory appeal would be available --
Michael R. Dreeben: Mm-hmm. Official
Justice Barrett: -- and it would be a freedom from standing trial but not a -- a jet -- not a get-out-of-jail-free card?
Michael R. Dreeben: Yes, I -- I understand that, and I think that if the Court believed that that was the appropriate way to craft presidential protections, it has the authority to craft procedural rules that implement its Article II concerns. That said, public authority is -- we're calling it a defense, but under many statutes, it's actually an exception to liability itself. And what you're really talking about is trying the general issue. And, generally, in criminal cases, even cases that involve First Amendment issues, like threat statutes, the jury is the determinant of the facts. And I have a little bit of difficulty with the idea of trying the whole public authority issue separately to the judge and having that go up on interlocutory appeal with review of facts before you could ever get it forward into a criminal case. That said, if -- I would prefer a regime in which the Court altered some of the Official 157 procedural rules surrounding the president than a total absolute blanket immunity that takes away the -- the possibility of criminal prosecution, even if it was a core violation of the statute in the teeth of attorney general advice and has no overriding public purpose.
Justice Barrett: You think it has to be a jury question? And, I -- I mean, I -- let's see. I wasn't necessarily proposing actually treating it as a defense that was done at the outset --
Michael R. Dreeben: Mm-hmm.
Justice Barrett: -- and then subject to interlocutory appeal. I was proposing what about an immunity doctrine that drew from the public authority defense that the Department of Justice thinks would otherwise apply. So just -- just go with me on that for a minute.
Michael R. Dreeben: Okay.
Justice Barrett: Why would it be so bad for it not to be a jury question? I mean, it seems to me that some of these Article II concerns would be exacerbated by having it go to a jury rather than a judge.
Michael R. Dreeben: So I -- I think some of Official 158 them are judge questions that could be resolved on the face of the indictment. If the Department of Justice ever returned an indictment that said the issuance of this pardon or this series of pardons constituted obstruction of justice, I have a little difficulty hypothesizing it, but a motion could be made on the face of the indictment that says Article II precludes Congress from regulating these activities; the indictment needs to be dismissed. And if the Court wished to attach to that kind of a rule interlocutory appeal, then that -- that would be a -- a lesser safeguard than the -- the one that my friend is proposing here. Other kinds of defenses, though, really do intersect with the general issue. And for those, I have a much greater time seeing how the Court could implement that. And would there be costs in going to trial? Yes. There is no perfect system here. We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law. Official 159 And the perfect system that calibrates all of those values probably has not been devised. I think that the system that we have works pretty well. Maybe it needs a few ancillary rules. It is different from the radical proposal of my friend.
Justice Barrett: Oh, I -- I agree. Let -- let me ask you about state prosecutions --
Michael R. Dreeben: Mm-hmm.
Justice Barrett: -- because, if the president has some kind of immunity that's implicit in Article II --
Michael R. Dreeben: Mm-hmm.
Justice Barrett: -- then that immunity would protect him in -- from state prosecutions --
Michael R. Dreeben: Of course.
Justice Barrett: -- as well. A lot of the protections that you're talking about are internal protections that the federal government has, protections in the Department of Justice, which obviously are not applicable at the many, many, many, many state and local jurisdictions across the country. Official 160 What do you have to say to that?
Michael R. Dreeben: So that raises a Supremacy Clause issue, and the Court would run a Supremacy Clause analysis that would probably start with basic principles like McCulloch versus Maryland. The states do not have the authority to burden federal functions and would then kind of move through In re Neagle, where the Court said that a state murder prosecution of a federal official guarding a Supreme Court Justice and who fired a shot was not permissible. If the Court thought that you needed a more categorical rule for the states, I think the Supremacy Clause certainly leaves it within the Court's prerogative to determine that the president, unlike all other officials, deserves more of a robust federal defense than what I have just described.
Justice Barrett: But it would still be a defense in -- in the states? It wouldn't be -- I mean --
Michael R. Dreeben: Well, any --
Justice Barrett: -- because that -- that's my point. Like, you know, it's one thing Official 161 to say, well, the president -- there are not going to be these prosecutions that are politically motivated, the things that Justice Kavanaugh was referring to that might be the danger of -- of this system, one thing that we have to worry about, that might not carry the day, but, you know, that's a concern. It's totally different when you take it outside of the Department of Justice and its structures and then you throw it out elsewhere, the idea across -- across the states, the idea of an immunity, I think, has a lot more purchase if you're talking about something that protects the former president from standing trial and the stake in state and local level.
Michael R. Dreeben: So I -- I -- I don't know that you would have to design a system in which the president would have to stand trial at the state and local level. It's certainly within the Court's authority as a matter of Supremacy Clause law to find an immunity. But we -- we have been talking here about -- at some length on the distinction between official acts and private acts.
Justice Barrett: Yeah. Official
Michael R. Dreeben: That will have to be determined by some sort of a process. Any immunity defense that the Court announces can still be met by a state assertion that we're prosecuting private conduct. You're going to have to have some process. I think having some legal process is not a reason to cast aside a nuanced system that actually looks at what protections are necessary as opposed to what would provide the absolute maximum insulation for former presidents even if we acknowledge that it's highly prophylactic.
Justice Barrett: Totally agree, and I wasn't actually contrasting the absolute immunity rule. I was saying that --
Michael R. Dreeben: Yes.
Justice Barrett: -- if there was some sort of official private -- there are consequences --
Michael R. Dreeben: Yes.
Justice Barrett: -- towards -- about making immunity. Okay. And since you bring up the private acts, this is my last question. So I -- I had asked Mr. Sauer about, on page 46 and 47 of your Official 163 brief --
Michael R. Dreeben: Yes.
Justice Barrett: -- you say, "Even if the Court were inclined to recognize some immunity for a former president's official acts, it should remand for trial because the indictment alleges substantial private conduct."
Michael R. Dreeben: Yes.
Justice Barrett: And you said that the private conduct would be sufficient.
Michael R. Dreeben: Yes.
Justice Barrett: The Special Counsel has expressed some concern for speed and wanting to move forward. So, you know, the normal process, what -- what Mr. Sauer asked, would be for us to remand if we decided that there were --
Michael R. Dreeben: Mm-hmm.
Justice Barrett: -- some official acts immunity and to let that be sorted out below. It is another option for the Special Counsel to just proceed based on the private conduct and drop the official conduct?
Michael R. Dreeben: Well -- well, two things Official 164 on that, Justice Barrett. First -- first of all, there's really an integrated conspiracy here that had different components as alleged in the indictment, working with -- with private lawyers to achieve the goals of the fraud and, as I said before, the -- the Petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred. That said, if the Court were to say that the fraudulent elector scheme is private, reaching out to state officials as a candidate is private, trying to exploit the violence after January 6th by calling senators and saying please delay the certification proceeding, is private campaign activity, we still think, contrary to what my friend said, that we could introduce the interactions with the Justice Department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant's knowledge and intent. And we would take a jury instruction that would Official 165 say you may not impose criminal culpability for the actions that he took. However, you may consider it insofar as it bears on knowledge and intent. That's the usual rule with protected speech, for example, under Wisconsin versus Mitchell. My friend analogizes this to the Speech or Debate Clause, but we don't think the Speech or Debate Clause has any applicability here. It's a very explicit constitutional protection that says senators and representatives shall not be questioned in any other place. So it carries an evidentiary component that's above and beyond whatever official act immunity he is seeking. And the last thing I would say on this is we think that the concerns about the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by United States versus Nixon. That balances the president's interests in confidentiality against the need of the judicial system for all available facts to get to the truth. And once that has been overcome, we Official 166 submit that evidence can be used even if culpability can't rest on it.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Just to pick up where Justice Barrett left off, I -- I think I heard you say that it -- even if we decide here something a -- a rule that's not the rule that you prefer that is somehow separating out private from official acts and saying that that should apply here, there's sufficient allegations in the indictment in the government's view that fall into the private acts bucket that the case should be allowed to proceed?
Michael R. Dreeben: Correct.
Justice Jackson: Because, in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree that some are immunized, if there are other acts that aren't, the case would go forward?
Michael R. Dreeben: That is right.
Justice Jackson: All right. Going Official 167 back to the clear statement argument, I -- I -- I'm struggling with that argument because my understanding was that when a charged criminal statute is read narrowly in the presidential context to not apply to the president, a constitutional question is being avoided, so that you're doing that to avoid having to deal with the constitutional question. So what is the constitutional question that is being avoided in those kinds of situations?
Michael R. Dreeben: A serious one. This is just an application of this Court's ordinary construction of criminal statutes that if there is an available interpretation that would avoid a serious constitutional question, the Court's preference is to --
Justice Jackson: Right.
Michael R. Dreeben: -- go in that way.
Justice Jackson: And the nature -- I guess I'm going at what is -- what is -- my understanding is that what is being avoided in that situation is the question of whether a former president or, you know, can be held criminally liable for doing the alleged act that Official 168 is being asserted in that statute, consistent with the Constitution. So we look at the statute. It's got some elements in it. And we are saying, well, geez, if this statute and those elements apply to the president's conduct in this situation, we'd have to answer the question can the president be held liable, consistent with the Constitution, for that behavior, is that right?
Michael R. Dreeben: So the first step in that analysis, I just want to --
Justice Jackson: Yes, please.
Michael R. Dreeben: Yes, but the first step is, is there ambiguity.
Justice Jackson: Okay. Right.
Michael R. Dreeben: And these statutes apply to any person. They apply to whoever. There's no ambiguity in those phrases. This Court in Nardone versus United States concluded that similar words, "any person" --
Justice Jackson: Yes.
Michael R. Dreeben: -- apply to government officials.
Justice Jackson: All right. Well, assume -- let's just assume that we -- I -- I Official 169 guess I'm just trying to get at we're avoiding a constitutional question if we do that in -- in the ordinary case, and -- and what's confusing to me about this case is that we're not being asked to avoid the constitutional question. In fact, the question of whether or not the president can be held liable consistent with the Constitution or does he have immunity is the question that's being presented to us. So I don't understand how the clear statement kind of analysis even works. It seems completely tautological to me for us to hold that presidents cannot be prosecuted under any criminal statute without a clear statement from Congress to avoid the question of whether or not the Constitution allows them to be prosecuted. We'd have to have a reason, right? I mean, we'd have -- we'd have to have a rationale for applying the -- clear statement rule.
Michael R. Dreeben: I -- I think the Court would have to have some rationale that's not evident in either the existing doctrine or the text. And just one data point for the Court in thinking about how the clear statement rule works. Official 170 In United States versus Sun-Diamond, a case about gratuities that the Court is probably familiar with, Justice Scalia wrote an opinion for a unanimous Court in which he used a hypothetical about what would happen if the president received a sports replica jersey at a typical White House event. Would that violate Section 201(c)? And the Court offered a construction that it had to be for or because an official act to avoid that problem. I think, if there was such a well-received understanding that presidents are not included in general federal criminal law unless the president is specifically named, which he is not in Section 201, Justice Scalia would have thought of that and some member of the Court would have reacted, and none did.
Justice Jackson: All right. Let me go on to ask about what you take the Petitioner's position to be in this case because we've had a lot of talk about drawing the lines. Justice Kavanaugh, Justice Gorsuch suggested that we should be thinking about Blassingame and that within the -- first, we have private versus official and then within official now we have Official 171 something about core acts versus other acts as we try to figure out, you know, at what level the president is going to have immunity. But I took the Petitioner's argument in this case not to be inviting us to engage in that kind of analysis. I thought he was arguing that all official acts get immunity -- of? And so I didn't understand us to be having to drill down on which official acts do. And so my question is, why isn't it enough for the purposes of this case, given what the Petitioner has argued, to just answer the question of whether all official acts get immunity?
Michael R. Dreeben: That -- that is enough. And if the Court -- answers that question the way that the government has submitted, that resolves the case. I -- I want to make a clarification that I may have left the Court with some uncertainty about. The official act analysis that my friend is talking about is the Fitzgerald versus Nixon outer perimeter test, which is extremely protective of the president. It's not looking at core versus ancillary. It's Official 172 saying everything the president does is a target for private civil lawsuits. That is not a great thing. And, therefore, they are all cut off.
Justice Jackson: That's an absolute immunity kind of concept, right?
Michael R. Dreeben: Correct. That's right.
Justice Jackson: Anything that's official in the outer perimeter is not subject to liability.
Michael R. Dreeben: That is right.
Justice Jackson: And so we don't have to then go, well, okay, we have the bucket of official, now let's figure out which within that might be subject to liability. Not on the theory of absolute immunity, correct?
Michael R. Dreeben: Neither on the theory of absolute immunity or on our theory. On -- on his theory, everything's protected. On our theory, there is no immunity, but this is where I would draw the distinction. There are as-applied constitutional challenges that you run through the Youngstown framework and this Court's customary method of analysis, and you determine whether there's a infringement of Article II. Official
Justice Jackson: So what you're saying is, even if we reject the absolute immunity theory, it's not as though the president is -- you know, doesn't have the opportunity to make the kinds of arguments that arise as -- at the level of, you know, this particular act or this particular statute has a problem in retrospect. I think I hear you saying we should not be trying to, in the abstract, set up those boundaries ahead of time. As a function of sort of blanket immunity, allow each allegation to be brought and then we would decide in that context.
Michael R. Dreeben: Yes, with -- with the additional note that Petitioner has never made that argument. And I think it would be up to a district court to decide whether to go that route. At this point in the litigation, he's put all -- all of his eggs in the absolute immunity basket.
Justice Jackson: All right. And if we -- if we invite -- you know, if we see the question presented as broader than that and we do say let's engage in the core official versus Official 174 not core and try to figure out the line, is -- is this the right vehicle to hammer out that test? I mean, I -- I had understood that the -- most, if not all, but most of the allegations here, there's really no plausible argument that they would fall into core versus not such that they are immune.
Michael R. Dreeben: We don't think there are any core acts that have been alleged in the indictments that would be off limits as a matter of Article II.
Justice Jackson: So, if we were going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that actually presents it in a way that allows us to test the different sides of the -- the standard that we'd be creating, right?
Michael R. Dreeben: I don't see any need in this case for the Court to embark on that analysis.
Justice Jackson: All right. The final sort of set of questions that I have have to do with what I do take as a very legitimate concern about prosecutorial abuse, about future Official 175 presidents being targeted for things that they have done in office. I -- I -- I take that concern. I think it's a real thing. But I wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency, that they understand that if they go after the former guy, soon they're going to be the former guy and they will have created precedent that will be problematic. So I wonder if you might comment on whether some of the caution from the Justice Department and the prosecutors and whatnot comes from an understanding that they will soon be former presidents as well.
Michael R. Dreeben: I -- I think, absolutely. And -- and I would locate this as a structural argument that's built into the Constitution itself. The executive branch, I think, as this Court knows, has executive branch interests that it at times asserts in opposition to Congress so that the proper functioning of the president is protected. And I believe that that value would be operative and is operative Official 176 in anything as momentous as charging a former president with a crime.
Justice Jackson: And I would also say, I think, and ask you to comment on, you know, presidents are concerned about being investigated and prosecuted, and it chills to some extent their, you know, ability to do what they want in office. And that's a concern on one side. But can -- can you comment on the concern about having a president unbounded while in office, a president who knows that he does not have to ultimately follow the law because there is really nothing more than, say, political accountability in terms of -- of impeachment? I mean, we have amicus briefs here from Professor Lederman, for example, who says, you know, a president would not be prohibited by statute from perjuring himself under oath about official matters, from corruptly altering, destroying, or concealing documents to prevent them from being used in an official proceeding, from suborning others to commit perjury, from bribing witnesses or public officials. And he goes on and on and on about the things that a Official 177 president in office with the knowledge that they have no criminal accountability would do. I see that as a concern that is at least equal to the president being worried -- so worried about criminal prosecution that he, you know, is a little bit limited in his ability to function. So can you talk about those competing concerns?
Michael R. Dreeben: So, Justice Jackson, I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed. I think we have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct. The Nixon era is the paradigmatic one. The indictment in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works, and to alter it poses more risks.
Justice Jackson: Thank you.
Michael R. Dreeben: Thank you.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. Sauer? Official
D. John Sauer: I have nothing further, Your Honor.
Chief Justice Roberts: Thank you, counsel. Counsel. The case is submitted. (Whereupon, at 12:40 p.m., the case was submitted.)