Return to Transcripts main page
CNN Newsroom
CNN International: Justices Question Attorney For Special Counsel Jack Smith; Supreme Court Hearing Presidential Immunity Arguments Underway; Special Counsel's Lawyer: Trump Not Immune From Prosecution. Aired 11a-12p ET
Aired April 25, 2024 - 11:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[11:00:00]
MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL JACK SMITH: His normal theory would immunize former presidents for 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 enforcing congressional statutes and seeking accountability for petitioner's alleged misuse of official power to subvert democracy. That has a compelling public interest. In response, petitioner raises concerns about potential abuses, but established legal safeguards provide layers of protections with the Article Three 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.
CLARENCE THOMAS, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Mr. Dreeben, does the President have immunity, or are you saying that there is no immunity, presidential immunity even for official acts?
DREEBEN: Yes, Justice Thomas. But, I think that it's important to put in perspective the position that we are offering the court today. The President, as the head of the Article Two branch, can assert, as applied, Article Two 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. THOMAS: Over -- in not so distant past, the presidents or certain presidents have been engaged in various activity coups or operations like Operation Mongoose, when I was a teenager, and yet there were no prosecution.
DREEBEN: Yes.
THOMAS: Why? If you -- if what you're saying is right, it would seem that that would have been ripe for a criminal prosecution of someone.
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 act. 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 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 realistic option.
And then, if I can 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'm aware.
[11:05:00]
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 would be 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,
JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: The Court of Appeals below, whose decision we're reviewing said, quote "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." Do you agree with that statement? DREEBEN: Well, I think it sounds tautologically true. But, I want to underscore that the obligation of a President is to take care that the laws are faithfully executed.
ROBERTS: Well, 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. As I read it, it says simply, a former President can be prosecuted because he is being prosecuted.
DREEBEN: Well, 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.
ROBERTS: Well, that's what I -- I mean, shortly after that statement in the court, court's opinion, that's what they said, but there is no reason to worry because the prosecutor will act in good faith, and there is 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 good faith of the prosecutor may not be 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?
DREEBEN: Well, 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 Waite v. United States. It's not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath. So --
ROBERTS: Well --
DREEBEN: -- 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 Vance case just two years ago.
ROBERTS: What concerns me is, as you know, the Court of Appeals did not get into a focus consideration of what acts we're talking about, or what documents we're talking about, because of its adoption of what you termed and I agree quite correctly as a tautological statement, because the fact of prosecution was enough to take away any official immunity, the fact of prosecution. They had no need to look at what courts normally look at when you're talking about a privilege or immunity question.
DREEBEN: Well, 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 v. Nixon wasn't a textually based case, neither was Nixon v. 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.
[11:10:00]
That's why it ended up in the Constitution. Nothing like that ended up 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 is sitting President. That's been the long-standing Justice Department position.
SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Mr. Dreeben, you dispute the proposition that a former President has some form of immunity. 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 everybody must be interpreted differently under some circumstances when they are applied to a former President. Isn't that true?
DREEBEN: It is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions, and that has been the long-standing practice of the Office of Legal Counsel in the Department of Justice.
ALITO: All right. So, this is more, I think, than just 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, 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 former President can make a motion to dismiss and may site OLC opinions, and the district court may say, well, that's fine. I'm not bound by OLC, and I interpreted 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 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. And why is that better?
DREEBEN: It's better because it's more balanced. 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 President has left office, there is an open question about whether that can happen at all. So --
ALITO: You're arguing against most far-reaching --
DREEBEN: Correct.
ALITO: -- aspects of Mr. Sauer's argument. Right?
DREEBEN: That is correct. And let me turn then to why --
BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: What about -- to unpack it a little more, do you agree that there are some aspects of Article Two presidential power that are exclusive and that Congress cannot regulate and therefore cannot criminalize?
DREEBEN: Absolutely.
KAVANAUGH: OK. 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 is not blanket immunity for those official acts, 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 that and what this court's cases also suggest.
DREEBEN: So, Justice Kavanaugh, I'd 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 is not in the statute, and I don't think that that's necessary in order to afford adequate protection for the President's valid Article Two functions.
[11:15:00]
KAVANAUGH: When you said unless -- sorry to interrupt, but I want to just get this out and you can incorporate in the answer, you said unless there is a serious constitutional question --
DREEBEN: Point.
KAVANAUGH: -- well, 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?
DREEBEN: I don't think across the board that a serious constitutional question exists on applying any criminal statute to the President.
KAVANAUGH: The problem is the vague stat, obstruction in 371, conspiracy to defraud the United States can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a President.
DREEBEN: Well, let me try to back pedal a little bit.
KAVANAUGH: That's what we're talking about historically, is the risk that -- and going forward, the risks. So, you can take all of that.
DREEBEN: I think that 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 balanced protection that better serves the interest 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, of course, this Section 201 does not specifically name the President.
KAVANAUGH: Well, I assume that's personal. So --
DREEBEN: Well, I think that it's --
(CROSSTALK)
NEIL GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Bribery statute 607 says the President, I've got it in front of me. And so, there is that.
DREEBEN: Well, Section --
GORSUCH: Let me just back up, though, just a second of what was a quick exchange with Justice Kavanaugh, that I just want to make sure I understand.
DREEBEN: Yeah.
GORSUCH: Did you agree that there are some core functions of the executive that a President's conduct that Congress cannot criminalize?
DREEBEN: Yes. We --
GORSUCH: So, 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?
DREEBEN: We call it an as applied Article Two challenge that will --
GORSUCH: OK. OK. Can we call it immunity just for shorthand sake? So, we -- so, I think we are kind of narrowing the ground of dispute here. It seems to me there is some area you can see that in official acts that Congress cannot criminalize. And now, we're just talking about the scope.
DREEBEN: Well, I don't think I said just, but I think it's a very significant gap between any official act and the small core of exclusive official act.
GORSUCH: I got that, but I want to explore that. OK?
DREEBEN: Got it.
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 piece of legislation that's going through, and it in fact delays the proceedings in Congress. Now, under 1512 C two, that might be corruptly impeding an official proceeding. Is that core and therefore immunized or whatever word, euphemism you want to use for that, is that core and therefore prosecutable?
DREEBEN: But --
GORSUCH: Without a clear statement that applies to the President.
DREEBEN: 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 --
GORSUCH: So, a President then could be prosecuted for the conduct I described, after he leaves office?
DREEBEN: Probably not. But, I want to explain the framework of why I don't think that that would be a prosecution that would be valid. First, I think you need to run through all of the sort of normal categories of analysis. It's very 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.
GORSUCH: Well, I thought you said it. That was my question.
DREEBEN: Yes.
GORSUCH: And when you said it, it fell outside that core. We'll call it immunity, for simplicity's sake.
DREEBEN: Yes. I understand. There is a separate category -- GORSUCH: OK. So, why couldn't he be prosecuted for leading a civil rights protest in front of the Capitol that delays a vote on a piece of important legislation?
DREEBEN: So, I think what you need to do is run through all of the various President-specific protective layers of analysis.
[11:20:00]
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 --
GORSUCH: He could have given speeches against it. He did.
DREEBEN: Yes.
GORSUCH: But, he left. He did something more and it corruptly impeded and sought to influence an official proceeding.
DREEBEN: Well, so, I don't know. 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'd be a question of whether --
GORSUCH: I assume he does.
DREEBEN: I'm assuming (ph). Then there is the question of whether he has the state of mind necessarily.
GORSUCH: I assume he does.
DREEBEN: OK.
GORSUCH: Well, nobody knows what corrupt intent means? We've been around that trees.
(CROSSTALK)
DREEBEN: We will probably find out.
GORSUCH: And maybe it means that he knows that he was doing wrong, is what the government told us?
DREEBEN: Perhaps. Right.
GORSUCH: He knows he is doing wrong. He knows he shouldn't be out there blocking a congressman from --
(CROSSTALK)
DREEBEN: Well, let me get to the 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 attorney general on the lawful scope of the President's activities. We can go down two tracks here. One is that the attorney general advises him that as an incident of his Article Two authority, and in carrying out the functions of the presidency, he can lawfully participate in that protest. It's kind of the First Amendment analog 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 is nothing in the language of this statute that carves you out. I don't see a serious constitutional question --
GORSUCH: I got it.
DREEBEN: -- because you don't have to do that, and I would advise you not to --
(CROSSTALK)
GORSUCH: And then he could be prosecuted.
DREEBEN: No.
GORSUCH: No. If he gets a negative opinion from the attorney general, he still couldn't be prosecuted?
DREEBEN: I'm going to assume that most presidents are not going to take in a --
GORSUCH: Well, but, if he gets one and does it anyway, then he could be prosecuted.
DREEBEN: Well, so then if we are down at that level, I think what we're really asking is whether the President is subject to the criminal law. And our answer is, yes. He is subject to the criminal law. But --
SONIA SOTOMAYOR, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: 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 building in the United States.
DREEBEN: That is correct. It's an extremely --
SOTOMAYOR: Official building. It's a very limited --
DREEBEN: Yes.
SOTOMAYOR: -- (inaudible).
DREEBEN: And really, I think --
(CROSSTALK)
SOTOMAYOR: So, as I understand this, there is two very limited provisions mentioning the President is included.
DREEBEN: That's right. SOTOMAYOR: There is a whole number of provisions that exclude the
President, many, many, many more that exclude the President. Correct?
DREEBEN: It's that kind of small number on both sides of the --
SOTOMAYOR: Now, Justice Barrett made the point that if we say a President can't 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 is not subject to the law at all. Correct?
DREEBEN: So, I think --
SOTOMAYOR: That's a tautology you can't escape.
DREEBEN: Justice Sotomayor, 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'd be nothing to prosecute him for.
SOTOMAYOR: Exactly. That's the point, which is if he is not covered by the criminal law, he can't be impeached for it --
DREEBEN: Yes.
SOTOMAYOR: -- for violating it. All right. Now, could we go further on this clear statement room? The situations, and you mentioned it earlier, in which we have looked to see if the President is covered, is contextual. Correct?
DREEBEN: Correct.
SOTOMAYOR: And what are the factors that generally we'll look at? I'm thinking specifically about whether the APA covers the President.
DREEBEN: Correct.
SOTOMAYOR: And what we did there was just analyze what powers were being given to in the lawsuit and etc. We looked at words. We looked at structure. We looked at separation of powers issues relating to our case law that says you can't direct the President to do anything, and this would have been a subterfuge for that. Correct?
DREEBEN: All correct.
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 the law says any person can't accept the bribe, that that permits the President to do it.
DREEBEN: So, I agree Justice Sotomayor that the way that this court has interpreted statutes that do carve out the President, Justice Kavanaugh asked about this, was very context specific.
[11:25:00] 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 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.
SOTOMAYOR: All right. Could I go back to your brief, 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.
DREEBEN: Correct.
SOTOMAYOR: Do you agree that if it affects core powers, then that he would not be subject to any laws that attempted to limit those core powers? Correct.
DREEBEN: That is correct.
SOTOMAYOR: You're defining core powers as those specified by Article Two?
DREEBEN: That is essentially correct. Yes.
SOTOMAYOR: All right. And the only words in the Constitution is that has to do with the President than law is that he shall take care that the law be faithfully executed. Correct?
DREEBEN: That is right.
DREEBEN: Hard to imagine that a President who breaks the law is faithfully executing the law. Correct?
DREEBEN: He has to execute all of the laws.
ALITO: Well, Mr. Dreeben, you really -- I 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 I understand you to say, well, you know, if he makes a mistake, he makes a mistake, he is subject to the criminal laws just like anybody else? You don't think he is in a special -- a peculiarly precarious position?
DREEBEN: He is in a special position for a number of reasons. One is that he has access to legal advice about everything that he does. He is under a constitutional obligation to -- he is 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 has 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 to defraud the United States with respect to one of the most important functions, namely the certification of the next President.
ALITO: Well, I don't want to dispute that particular application of that 371, conspiracy to defraud the United States of the particular facts here. But, would you not agree that that is a peculiarly open- ended statutory prohibition, and 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?
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.
ALITO: 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?
DREEBEN: So, what the government needs to show is an intent to impede, interfere or defeat a lawful government function by deception, and it has to be done with see enter (ph). 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 Two duties. And particularly, in a case like this one, 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 that time of the founding, presidents had no to term limit. They could run again and again. And we're 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 won those elections and to provide votes. And then, Congress, in an 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.
[11:30:00]
UNIDENTIFIED MALE: Thank you, Counsel. Justice Thomas? Justice Alito?
ALITO: Can 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?
DREEBEN: Yes. 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, our honorable people, and they take their professional ethical responsibilities seriously, but there had been exemptions, right, both among attorneys general and among federal prosecutors.
DREEBEN: There have been rare exceptions, Justice Alito. But, when we're talking about layers of protection, I do think this is the starting point. And if the court has concerns about the robustness of it, I would suggest looking at the charges in this case. They --
ALITO: Well, I'm going to talk about this 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 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?
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.
ALITO: 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?
DREEBEN: Well, it affords two levels of protection. One is the probable cause finding and 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 game.
ALITO: I mean, there are -- there is the old saw about (inaudible) ham sandwich.
DREEBEN: Yes. But, I think --
ALITO: You had a lot of experience in the Justice Department. You come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so.
DREEBEN: There are such cases. Yes. But, I think that the other --
ALITO: Every once in a while there is an eclipse too. 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 where they don't have evidence to prove guilt beyond a reasonable doubt. It's self-defeating.
ALITO: All right. Then the third level is that former presidents enjoy all the protections afforded all criminal defendants. Right? 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 an indication, perhaps on appeal. Isn't that correct?
DREEBEN: It is correct, Justice Alito. But, I think that we should also consider the history of this country. 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.
ALITO: And Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as federal crime. And you say, well, no, that's not really true.
[11:35:00]
This is page 42 of your brief. So, what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War Two? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?
DREEBEN: Today, yes, given this court's decision in Trump v. United States in which the -- Trump v. Hawaii -- excuse me, where the court said Korematsu was overruled, and President Roosevelt made that decision with the advice of his attorney general. That's a layer --
(CROSSTALK)
ALITO: Is that really true? I thought Attorney General Bedell, thought that there was really no threat of sabotage, as the J. Edgar Hoover.
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, and as applied, Article Two 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 with support criminal prosecution under 241, which requires under United States v. Linear that the right had been made specific so that there is notice to the President. I don't think that would have been satisfied. 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?
DREEBEN: Yes. I think that 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 v. Cargill, this term at page 19 where we cited authority of this court that if a authorized government representative tells you that what you're about to do is lawful, it would be a route violation of due process to prosecute you for that.
ALITO: Won't that give presidents some incentive to be sure to pick an attorney general, who will reliably tell the President that it is lawful to do whatever the President wants to do if there is any possibly conceivable argument in favor of it?
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 sorts 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.
ALITO: On the question of whether a President has the authority to pardon himself, which came up earlier in the argument, what's the answer to that question?
DREEBEN: I don't believe the Department of Justice has taken a position. The only authority that I'm aware of is a 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.
ALITO: Well, when you address that question before us, are you speaking in your capacity solely as a member of the special counsel's team, or are you speaking on behalf of the Justice Department, which has special institutional responsibilities?
DREEBEN: I am speaking on behalf of the Justice Department. We're representing the United States.
ALITO: Now, how -- don't you think we need to know the answer at least to the Justice Department's position on that issue in order to decide this case? Because the 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 predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?
DREEBEN: I really doubt that, Justice Alito. 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 deterrence, I think, so that this kind of dystopian regime is not going to evolve.
ALITO: All right. Let me end with just a question about, what is required for functioning of the stable democratic society, which is something that we all want?
[11:40:00]
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 peacefully if that candidate is s the incumbent?
DREEBEN: Of course.
ALITO: All right. Now, if 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.
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 of petitioner and his allies filed dozens of electoral challenges, and in my understanding is lost all but one that was not outcome determinative in any respect. There were judges that said, in order to sustain substantial claims of fraud that would overturn an election results, that's certified by a state, you need evidence, you need proof, and none of those things were manifested. So, there was 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.
ALITO: Thank you.
UNIDENTIFIED MALE: Justice Sotomayor.
SOTOMAYOR: A stable democratic society needs the good faith of its public officials. Correct?
DREEBEN: Absolutely.
SOTOMAYOR: And that good faith assumes that they will follow the law.
DREEBEN: Correct.
SOTOMAYOR: Now, putting that aside, there is no failsafe 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 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?
DREEBEN: It is, Justice Sotomayor. And I also think that there are additional checks in the system. Of course, the constitutional framers designed a separated power 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 subverted under --
(CROSSSTALK)
SOTOMAYOR: And encourage him to believe words that have been somewhat put into suspicion here that no man is above the law, either in his official or private acts.
DREEBEN: I think that is an assumption of the Constitution.
UNIDENIFIED MALE: Justice Kagan.
ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: 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 --
DREEBEN: Yes.
KAGAN: -- that they are core executive functions --
DREEBEN: Yes.
KAGAN: -- what are those small categories?
DREEBEN: Pardon power.
KAGAN: Pardon, veto.
DREEBEN: Veto, foreign recognition, appointments, Congress cannot say you can't appoint a federal judge who hasn't received a certain diploma, or hasn't achieved a certain age. There are a few other powers --
KAGAN: Is commander-in-chief?
DREEBEN: Commander-in-chief 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.
[11:45:00]
It has power over the purse. That's more of the --
KAGAN: So, that may be viewed as not really in that core set of functions which nobody has any power but the President over.
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.
KAGAN: OK. Now, in the next category where we've left the core set behind --
DREEBEN: Yes.
KAGAN: -- but we're still in the world of official actions, and that's where you say there are various statutory construction rules that might come into play.
DREEBEN: Correct.
KAGAN: But, you have characterized those as something different from just saying, look, the statute doesn't say the President. Therefore, it doesn't apply to the President.
DREEBEN: That's right.
KAGAN: So, I wanted to give you an opportunity to say, how that would look? How that analysis would look in a given case? And in the course of responding to that, I'm sort of thinking of something like the OLC opinion, which says bribery. The President can be tried and convicted of bribery, even in the part of the bribery statutes that do not say the President. Why is that true?
DREEBEN: That is true because 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 Two to function.
KAGAN: Do you think the premise of that OLC opinion was that the bribery was simply not official?
DREEBEN: No.
KAGAN: Or is the premise that the bribery was official, and still the President could be prosecuted for?
DREEBEN: I think that bribery 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 really is a crime that can only be committed by public officials 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.
KAGAN: So, if you were to say what the line is in this category, like, when it is that the statute should be understood as precluded presidential prosecution, and when it is that the statute should be understood as allowing it, what general principles should guide?
DREEBEN: So, the general principles that 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 with certain degrees of consanguinity, the Office of Legal Counsel said this infringes on a very important employment 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. 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 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 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 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 offences, sedition, murder, would all be off limits if it were taken 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?
[11:50:00]
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 of infringe on the President's power, so that we're going to say that the President is just that?
KAGAN: Now, that set of issues they seem important and may occasionally be difficult. They also seem not really before us in the way Justice Jackson suggested earlier. 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 else could we do? How should we deal with this, that there are these lingering issues --
DREEBEN: Yes.
KAGAN: -- that go beyond the question of whether there is the kind of absolute immunity that the former President is invoking?
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 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 presented. So, in a case like United States v. 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 precedent that bears some analogy to this is "Vermont Agency of Natural Resources v. United States ex rel. Stevens", was a key 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 11th 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 want to be clear that for overall government equities, we are not wild about parties who raise a 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 One branch and the Article Two 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.
KAGAN: OK. I have one last set of questions, which has to do with the official and unofficial line.
DREEBEN: Yes.
KAGAN: And you heard Mr. Sauer's responses to both Justice Barrett's questions and my questions about what he thinks 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?
DREEBEN: So, I think petitioner conceded that there are acts that are not official that are alleged in the indictment, and we agree with them 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 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 an 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 is running for reelection 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 fractional slates of electors, that is not any part of a President's job. So --
KAGAN: There is -- I'm sorry. There is an allegation in the indictment that has to do with the removal of a Justice Department official. Would -- is that core protected conduct?
DREEBEN: We don't think that that's core protected conduct. I don't think that I would characterize that episode quite that way.
[11:55:00]
We do agree that the Department of Justice allegations were 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 won self-certified with private actors, is a private scheme to achieve a private end, and many of the co-conspirators alleged in the indictment are 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.
So, in the Department of Justice episode, it occurs very late in the election cycle, after many other schemes had failed. And at that point, 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 a 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 are standing by their oath and replace them with another person who would carry it out.
We're not seeking to impose criminal 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.
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. But, how does that relate to the question that we're asking here?
DREEBEN: So, this is one of the most difficult questions for the Department of Justice, and I want to explain why that is. If we are operating under a Fitzgerald v. 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 v. 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 the question, was he acting 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.
KAGAN: Thank you.
UNIDENTIFIED MALE: Justice Gorsuch.
GORSUCH: If you did, though, I just wanted to confirm I thought I heard you thought that the Blassingame framework was the appropriate one. Is that right?
DREEBEN: Largely, yes, Justice Gorsuch. 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.
GORSUCH: Can you give me an example of what you have in mind? I'm just trying to understand what nuance your suggest.
DREEBEN: So, Blassingame adopted generally very favorable pro- government framework that we endorse --
GORSUCH: I would have thought.
DREEBEN: -- in practical cases.
GORSUCH: Yeah.
DREEBEN: OK? Not here, because we don't think that Fitzgerald applies in the criminal code. GORSUCH: Well, I understand that.
DREEBEN: OK.
GORSUCH: But, putting that aside, the distinction between official act and private office secrets --
DREEBEN: Yes.
GORSUCH: -- their test is you think good enough for government work?
DREEBEN: I -- 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. The Blassingame decision focused on objective contextual indications to try to see whether the President was acting as a campaigner as opposed to an office holder.
GORSUCH: Yeah.
DREEBEN: I think that that decision can also be made by looking at what the President actually said.
