. I think I heard you say that even if we decide here Or something
or rule. That's not the rule that you prefer. Um, that is somehow
separating out private from official acts and saying that that should
apply here. They're 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. Correct 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. That is right.
All right, um Going back to the clear statement. Uh, argument. 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. Um, a constitutional question
is being avoided so that you're doing that to avoid having to deal
with the constitutional questions. So what is the constitutional
question that is being avoided in those kinds of situations? 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 courts preferences
to 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 is being asserted in that statute
consistent with the Constitution, So we look at the statute its got
some elements in it. And we are saying Well, jeez, if this statute
and those elements applied 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?
First step in that analysis. I just want to Yes, yes, but the first
step is their ambiguity, and these statutes apply to any person they
applied to whoever. There is no ambiguity in those phrases. This
court in Arden versus United States concluded that similar words
any person yes, government officials. Alright, we'll assume let's
just assume that we I guess I'm just trying to get at. We're avoiding
a constitutional question. If we do that, in the ordinary case, 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 to have a rationale for applying
the clear statement role. I 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 in the United States versus Sun Diamond Case about gratuities
at 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 with that violates section 201 c And
the court offered a construction that it had to be for 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. All
right. Let me go on to ask about, um, what you take the petitioners
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 blasting game and
that within the first week of private versus official and then within
official now we have something about core act. 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. And so
I didn't Understand us to be, um having to drill down on which official
acts do And so my question is. Why isn't it enough? Um, for the purposes
of this case, given what the petitioner has argued to just answer
the question of whether all official acts get immunity of
That that is enough. And if the court answers that question the way
that the government has submitted that resolves the case. 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 saying everything the president does as a
target for price. But civil lawsuits That is not a great thing, and
therefore they are all cut off. That's an absolute immunity kind
of concepts, right? Anything that's official in the outer perimeter
is not subject to liability. That is right. 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 neither on the Theory of absolute immunity
or on our theory and 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 two.
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. Yes, we 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 of
his eggs in the absolute immunity basket. Alright, 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 not
core and try to figure out the line. Um, Is this the right vehicle
to hammer out that test? I mean, I'd 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. We don't think there are any core
acts that have been alleged in the indictment. That would be off
limits as a matter of Article two. 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 standard that would be creating,
right. I don't see any need in this. Case for the court to embark
on that analysis. 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 presidents being
targeted for things that they have done in office. I take that concern.
I think it's a real thing, but I wonder Weather. 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 in the prosecutors and whatnot comes from
an under. Standing that they will soon be former presidents as well.
I think absolutely, and I would locate this as a structural argument.
That's built into the Constitution itself. The executive branch.
I think, as this court nose has executive branch interest 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 in anything as momentous has charging
a former president of the crime, and I would also say, I think and
ask you to comment on
presidents. Are concerned about being investigated, invaded and prosecuted
and chills. To some extent there, 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 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 Peach mint. I mean, we have Amicus briefs
Hear from Professor Liederman, for example, Who says, you know, the
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 the president in office with the knowledge that they have no
criminal accountability would do I see. That is 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?
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 hasn't
seen occasional episodes of presidential misconduct. The Nixon Yura
is the parenting Matic 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. Thank
you. Thank