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Supreme Court Hearing Presidential Immunity Arguments; Trump Hush Money Trial; Aired 10-11a ET
Aired April 25, 2024 - 10:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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JIM SCIUTTO, CNN ANCHOR AND CHIEF NATIONAL SECURITY CORRESPONDENT: Welcome back to CNN's breaking news coverage. Donald Trump facing two enormous
legal challenges this hour.
We're standing by for the U.S. Supreme Court to begin hearing oral arguments on the former president's claim that he is immune from criminal
prosecution over all actions he took while in office.
The decision will determine whether Trump can be tried over his efforts to overturn the 2020 election. It will also, of course, set a fundamental
precedent for the powers of the executive.
I'm Jim Sciutto in Washington. We're going to listen into those arguments in just a moment.
OMAR JIMENEZ, CNN CORRESPONDENT: And I'm Omar Jimenez in New York outside the Manhattan courthouse, where the criminal hush money trial has just
resumed.
SCIUTTO: An update on that hush money trial momentarily.
Let's begin here though, in Washington, the case before the Supreme Court has to do with special counsel Jack Smith's assertion that Donald Trump
committed four felonies on January 6, 2021. That's of course, when insurrectionists tried to take over the U.S. Capitol violently.
He contends that he cannot be prosecuted for his actions that day or any other day while he was president. Trump says, if presidents have to worry
about being prosecuted, it would be harder to make tough decisions.
Two lower courts disagreed vehemently. Jack Smith, for his part, says that no one is above the law; no president, either. It's not clear when the
Supreme Court will issue a ruling following hearing those arguments today; may not be until the end of June.
The outcome could impact two of Trump's other pending legal cases, not to mention, of course, his campaign schedule. We're going to have much more as
those oral arguments in court begin. For now, let's go back to Omar in New York for an update there.
JIMENEZ: Thank you, Jim.
Well, moments ago, the man who bought and buried unflattering stories about Donald Trump returned to the witness stand. And David Pecker, though, has
not yet testified about the deal with adult film star Stormy Daniels.
That they'll likely changes today. First, however, however, as the judge was calling Pecker to return to the stand, the DA stopped him to put on the
record another alleged violation of the gag order.
The prosecutor claiming Trump has violated the gag order four times in the last three days. The judge, though, has yet to rule on Monday's special gag
order hearing. We'll have much more over the next few hours.
For now though, I'm now going to hand it back over to Jim in Washington where oral arguments get underway at the Supreme Court over Trump's claims
of presidential immunity.
SCIUTTO: All right, thanks so much, Omar. Let's go back to the Supreme Court. CNN senior crime and justice reporter Katelyn Polantz, she's been
covering the latest for us from Washington.
Katelyn, these are going to come in via audio only, no cameras, of course, inside the Supreme Court. But we will hear those arguments play out live.
Scheduled for an hour, I believe. But we do expect them to go longer than that.
KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE CORRESPONDENT: Yes.
You never know how long they're going to go. I think the arguments yesterday before the Supreme Court were maybe two hours. So they could go
long, they could go short. You never know.
They are on the bench though, all nine justices, according to our reporter in the room, John Fritze over at the Supreme Court building. And they're
going to get started with questioning. Often questioning goes in order of seniority by the Supreme Court.
So we're going to have to watch to see who jumps in, how they jump in and what they focus on.
Are they focused on Donald Trump and his case itself, his specific issues here, what he was doing at the end of his White House?
And then what happened --
(CROSSTALK)
SCIUTTO: OK, Katelyn, sorry to interrupt you. We do have the audio from inside the courtroom. Let's listen in.
D. JOHN SAUER, TRUMP ATTORNEY: -- itself provides strong evidence of this kind of immunity, a broad principle if immunity protects the president's
official acts from scrutiny direct, sitting in judgment, so to speak, of the Article Three courts that that matches the original understanding of
the executive --
ASSOCIATE JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: How exactly would we determine what the -- what an official act is?
SAUER: I point the court to two cases for that. Obviously Fitzgerald against Nixon is the best guidance the court gives, the court adopted the
outer perimeter test and this court engaging in that analysis there, that's very instructive here, where it looked at the level of specificity at which
the acts are described in that case, a civil case here.
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I'll give you the indictment --
CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: 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 will give you $1 million if I am made the ambassador to
whatever.
How do you analyze that?
SAUER: That would follow 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 common-law background. So the way the court in Brewster sliced at the joint was to say accepting a bribe and the agreement
that accepts the bribe are not official acts.
That's private conduct.
ROBERTS: OK, it's not --
SAUER: -- appointment would not be -- would be essentially unrestrictable power before this court that Congress couldn't directly regulate.
ROBERTS: It's not -- accepting a bribe is not an official act but appointing an ambassador is certainly within the official responsibility of
the president.
How does your official acts or the official acts order or boundary come into play when it's going to be official, assuming the president is
innocent?
But the question is whether he will be found innocent or guilty.
SAUER: Again, I think Bruce versus Johnson do address that in a slightly different context. It says the indictment has to be expunged, all the
immune official acts (INAUDIBLE) determination what's official, what's not official --
ROBERTS: Well, you explain to the official, you say, OK, we are prosecuting you because you accepted $1 million. You're supposed to say --
not say what it's for because the what's for part is within the president's official duties?
SAUER: There has to be independent source of evidence for that. And keep in mind that his indictment charges what this court describes as
unrestrictable powers by the president.
So the logical premise of this indictment is that Congress, by passing vague in general criminal statutes has purported to directly regulate the
president's exercise of things like the exercise of the appointment 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 members of Congress the measures he thinks necessary and
expedient. So you have an indictment of this case that goes to the heartland of the president's powers.
It alleges a series of official acts and tries to tie them together by saying there was a private aim or a private purpose in that case. And
that's the situation which could be alleged (INAUDIBLE) --
ASSOCIATE JUSTICE SONYA SOTOMAYOR, U.S. SUPREME COURT: Counsel, it can be alleged but it has to be proven. Mellom en say (ph) is a concept long
viewed as appropriate in law, that there are some things so fundamentally evil that they have to be protected against.
Now I think -- and your answer below -- I will 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 for which he can get immunity?
SAUER: It would depend on (INAUDIBLE). We could see that could well be an official act.
SOTOMAYOR: It could?
And why?
Because he's doing it for personal reasons. He's not doing it, like President Obama's 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 for furtherance of an official responsibility. He's doing it for personal gain.
SAUER: I agree with the characterization of the indictment and that confirms immunity because the characterization is that if the series of
official acts that were done for --
SOTOMAYOR: No, because immunity says, even if you did it for personal gain, we will hold you responsible.
What do you -- how could that be?
SAUER: That's an extremely strong doctrine in this court's case law in cases like Fitzgerald --
SOTOMAYOR: Where we go back to Justice Thomas' question, which was, where does that come from?
There are amica 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 passed an impeachment clause that basically says you cannot remove the president from office except by a trial in the Senate. But you
can impeach him after so -- or you can impose criminal liability.
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We would be creating a situation in which we would be saying, this is what you are asking us to say, which is that a president is entitled not to make
a mistake but more than that. The president is entitled, for total personal gain, to use the trappings of his office. That's what you are trying to get
us to hope without facing criminal liability.
SAUER: I would say three things in response. The doctrine that immunity does not turn on allegedly improper motivation or purpose is something this
court has reaffirmed in at least nine or 10 --
SOTOMAYOR: That's absolute immunity but qualified immunity says 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.
SAUER: 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 in every case.
And therefore if that were the doctrine, that the allegation of improper purposes what deprives the objective act of immunity then the immunity
would have no purchase and that's reflected in many --
ASSOCIATE JUSTICE KETANJI BROWN JACKSON, U.S. SUPREME COURT: So isn't the work, though, of the improper motive, at least in the absolute immunity
context, to tell us what are official acts and what are not?
I had understood that even in the -- well, first of all, your ask is absolute immunity, isn't it?
SAUER: Our principal position.
JACKSON: Your position is you want the same kind of doctrine that we've applied in other contexts when you say an official has absolute immunity.
My understanding is when we say that, we mean for their official acts.
Is that right?
SAUER: Yes.
JACKSON: OK. So any official acts in that world, the real decision-making from a court standpoint is whether or not something is an official act or
not, correct?
SAUER: That's an important determination by all means.
JACKSON: And that's the determination in the absolute immunity world, because if you determine that it's an official act, then the principle is
you get immunity for it, correct?
SAUER: That is correct.
JACKSON: All right. So my question -- and I think the Chief Justice may have asked this at the beginning -- is how do you determine -- or maybe
Justice Thomas -- how do you determine what's an official act?
And when we talk 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, he's actually not acting officially, even if the doctrine was absolute immunity.
So what do you say about that?
SAUER: To the last point, that allegation that this was motivated by an improper private purpose could be made in every single case.
JACKSON: No, I understand that but it would have to be made -- I'm just trying to assess -- even if we had the doctrine of absolute immunity, that
same 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 and
not doing something official.
He was doing it personal, correct?
SAUER: I agree but the objective or -- I'm not sure I agree 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 --
JACKSON: Can I just ask another quick question before my colleagues take it over here -- at the beginning of your analysis, when you were giving
your opening statement, you were talking about -- you suggested the lack of immunity and the possibility of prosecution in the presidential context is
like an innovation.
And I understood to be the status quo. I understood that every president from the beginning of time essentially has understood that there was a
threat of prosecution if for no other reason than the Constitution suggests they can be prosecuted after impeachment, that 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
presidents do.
So it seems to me that you are asking now for a change in what the law is related to immunity.
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.
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Which is at the Constitutional Convention, Benjamin Franklin said history provides one example only of a chief magistrate who was subject to public
justice, criminal prosecution. And everybody cried out against that.
JACKSON: No, I understand but since Benjamin Franklin, everybody has thought, including the presidents who held the office, that they were
taking this office subject to potential criminal prosecution, no?
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 --
JACKSON: So what was up with the pardon -- what was up with the pardon for President Nixon?
If everybody thought that presidents couldn't be prosecuted, then what was that about?
SAUER: Well, he was under investigation for both private and public conduct at the time. Official acts and private conduct. 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 --
(CROSSTALK)
ASSOCIATE JUSTICE NEIL GORSUCH, U.S. SUPREME COURT: -- on that score, you -- there does seem to be some common ground that you and your colleague on
the other side, that no man is above the law and that the president can be prosecuted after he leaves office for his private conduct.
Is that right?
SAUER: We agree with that.
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 I'm sure we will spend a lot of time exploring that.
But the D.C. Circuit in Blasingame, the chief judge there advised 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?
SAUER: Yes, we, in the main in that test, especially if it's understood through the lens of the judge's separate opinion, is a very persuasive
test. It would be a great source for this court to rely on.
It emphasizes the breadth of that test and talks about how actions that are plausibly connected to the president's official duties are official acts.
And it also emphasizes it's a close case or appears there are other considerations that also should be treated as immune. Those are the aspects
that that we emphasize as potentially guiding this.
GORSUCH: And that left open in that case the possibility of further proceedings and trial.
SAUER: Exactly right, and that would be a very natural course for this court to take in this case. The court can and should and reverse the
categorical (INAUDIBLE) that the D.C. Circuit, that there is no such thing as official acts, especially when it comes to --
GORSUCH: And you would agree further proceedings would be required?
SAUER: That's correct. I would point to Anderson versus Creighton, where the court said there are two stages of further proceedings. There is
looking at the indictment and at the charging documents and see if this is alleging official acts and if not or can't be determined, there would be a
factual proceeding.
And all that under Mitchell against Forsythe (ph) and so forth would have to occur before any other proceedings in the district --
(CROSSTALK)
UNIDENTIFIED MALE: Go ahead.
ASSOCIATE JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: Mr. Sauer, you began by explaining what you believe that immunity from criminal prosecution is
essential for proper functioning of the presidency.
My question is whether the very robust form of immunity you are advocating is really necessary in order to achieve that result.
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?
SAUER: That might be a much better rule that what emerged in the lower courts. We think it would be insufficient because the long line of cases is
talking about using the president's motives and intrusive -- consideration of the president's motives as transforming acts to official and unofficial
would come into play.
Once you can make that allegation, you've opened the door. You no longer have a per se clear right by rule. You have a determination in every single
case.
ALITO: 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.
SAUER: That sounds a lot like Blasingame. If you look at the (INAUDIBLE) separate opinion, that may not be different than what we propose to the
court today.
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ALITO: Well, Blasingame had to do with the difference between official conduct and private conduct, right.
SAUER: That's right. That's what I understood the court to be asking that.
ALITO: No, this would apply and it's just a possibility. I don't know whether it's a good or a bad idea or can be derived from the structure of
the Constitution or the divestment clause (ph) or any other source.
But this would be applied in a truly objective -- on purely objective grounds. When the president invokes an official power in taking the action,
that is at issue.
SAUER: Yes, I believe, the reason I think of Blasingame is it talks about an objective context with specific determination to winnow out what's
official and purely private conduct.
Again, with a strong degree of deference to --
SOTOMAYOR: I'm sorry. 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. He can correct me if I'm wrong.
(CROSSTALK)
ALITO: That was the question.
SAUER: That I think would be a superior rule than what is in the categorical denial that emerged in the trial court here.
SOTOMAYOR: I'm not quite sure why he use the word "plausible," because that seems to negate -- might as well give absolute if you say plausible
because anybody could argue plausibility. We don't even require plausible. We require reasonable and qualified immunity. So...
ALITO: Well, I mean, one might argue that it is not plausibly legal to order SEAL Team Six and I don't want to slander SEAL Team Six because --
seriously, they are honorable. They are bound by the Uniform Code of Military Justice not to obey unlawful orders.
I think one could say that it's not plausible that is legal, that the action would be legal. I'm sure you've -- I've thought of lots of
hypotheticals and I'm sure you have as well, where a president could say I'm using an official power. And yet the president uses it in an outrageous
manner.
SAUER: That may well be an objective determination.
SOTOMAYOR: So apply it the allegations here.
What is plausible about the president assisting in creating 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?
SAUER: Absolutely, Your Honor. We've had historical precedent with President Grant sending federal troops to Louisiana and Mississippi to make
sure the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes. The notion that that is
implausible can't be supported based on this indictment --
SOTOMAYOR: Knowing that the slate is fake?
And they weren't actually elected and they weren't certified by the state, he knows all those things?
SAUER: The indictment itself alleges -- affixes the word label to the so- called fraudulent electors. That's a complete mischaracterization. It appears there was there no deceit about who had emerged from the
convention. And this was done on an alternative basis.
I want to address a higher level point, which is that there is a whole series of structural checks other than criminal prosecution that are
designed to deter these kinds of outlandish scenarios or obviously illegal things. That's been viewed in this court's opinions going back to --
ASSOCIATE JUSTICE BRETT KAVANAUGH, U.S. SUPREME COURT: Where do you think the D.C. Circuit went wrong in how it determined what was official versus
what personal?
SAUER: I read the opinion below in this case. It does not matter the logic of their opinion. There is no immunity for official acts and therefore
that's the end of the story. I don't really think they went wrong in Blasingame when they engaged in the same determination with respect to
what's official and what isn't.
There we agree with most of what that opinion says.
KAVANAUGH: For some official acts that are not within the article to exclusive power, so official acts but not within the article to exclusive
power, even for those, I assume you would think that a clear statement has to be required.
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A clear statement in the statute covering the president if their official acts are going to be criminalized.
SAUER: Obviously, at the highest possible level, when it comes to the unrestricted powers, as in this indictment --
KAVANAUGH: I'm assuming the exclusive powers are walled off and can't be prosecuted. There are a lot of official powers that are not exclusive to
the president under Article Two authority.
For those, I understood you to say, at a minimum, there would need to be a clear statement in the statute referencing the president so that the
president is on notice and can conduct himself or herself accordingly.
SAUER: That's correct and that would be consistent.
(CROSSTALK)
UNIDENTIFIED FEMALE: Can I follow up on that?
(CROSSTALK)
AMY CONEY BARRETT, U.S. SUPREME COURT JUSTICE: So you can see the private acts don't get immunity.
SAUER: We do.
BARRETT: So in the special counsel brief on pages 46 and 47, he urges us, even if we assume or were to decide or assume there was some sort of
immunity for official acts, that there was sufficient private acts for the trial to go -- for the case to go back into trial immediately.
I want to know if you agree or disagree about the characterization of these acts as private. The petitioner turned to a private attorney who was
willing to spread false claims of election fraud to spare his challenges ahead to election results.
Private?
SAUER: It sounds private.
BARRETT: Sounds private.
Petitioner conspired with another private attorney who caused the filing that had false allegations to support a challenge.
SAUER: That also sounds right.
BARRETT: Three private actors through attorneys and also a political consultant helped implement a plan to submit fraudulent electors to
obstruct the certification.
SAUER: I believe that's private.
BARRETT: So those acts you would not dispute, those were private and you wouldn't raise a claim they were official?
SAUER: We would say is official, things like being with the Department of Justice to deliberate about who will be the acting attorney general of
United States, (INAUDIBLE) American public, communicating with Congress about matters of enormous --
BARRETT: Thank you. Thank you.
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?
SAUER: If you look at the indictment here, there's a bunch of acts that are clearly official. There may be allegations that most relate to what the
government has described as private aim or private end.
And the court should address itself but remand for a Brewster like determination like determination what's official and what's private. The
official stuff has to be expunged from the indictment. And there has to be a determination of remand on what's official to stage a determination.
ROBERTS: If you expunge the official part from the indictment, that's like a one-legged stool. Giving somebody money is not bribery unless you get
something in exchange. What you get in exchange is to become the ambassador of a country, that is official. The appointment is within the president's
prerogatives.
The unofficial part is I will get $1 million for it.
If you say you have to expunge the official part, how does that go forward?
SAUER: This particular indictment, we don't believe it would be able to go forward. If you look at the government's brief in this case divides the
indictment into things other than the electors' allegations.
They haven't disputed it if they are official acts. But they say we tie it together by characterizing it as done and these are allegations the court
just referred to by an improper private aim or private end. That just runs at loggerheads. The improper motivation is what you look at.
ROBERTS: Thank you.
Justice Thomas?
THOMAS: In assessing the official acts of a president, do you differentiate between the president acting as president and the president
acting as a candidate?
SAUER: Yes, we do. We don't dispute the Blasingame discussion of that.
THOMAS: OK --
SAUER: That has to be done by objective determination.
THOMAS: In this litigation, did you challenge the appointment of special counsel?
SAUER: Not directly. We have done so like in the Southern District of Florida case and we agree with the analysis provided by Attorney General
Meese and Attorney General Casey (ph). And it points to an important issue. One of their arguments is that we should have the presumption of
regularity.
[10:30:00]
That runs into the reality that we have here an extraordinary prosecutorial power exercised by someone never nominated by the president or confirmed by
the Senate at any time. We agree with that position. We haven't raised it yet in this case when it went up on appeal.
ROBERTS: Justice Alito?
ALITO: When you say the official action be expunged from the indictment, that in itself would not achieve much, unless evidence of those official
acts were precluded at trial.
Is that what you are saying, that prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are
alleged?
SAUER: Absolutely and that's the clear indications of Brewster and Johnson.
ALITO: Thank you.
SOTOMAYOR: I'm a little bit confused by that. If you have a scheme to defraud or a scheme to accept bribery, there is evidence from which you can
infer that scheme and one is the appointment actually happened. It's an official act. You wouldn't expunge that as evidence.
You would instruct the jury that there is no liability for the actual appointment. 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 are 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 your problems couldn't be taken care of at trial with an instruction, if we believe, if the court were to find -
- and I'm not sure how they could -- but if it were to find that some public acts could not be the basis of criminal liability.
SAUER: The best thing I can say to that -- and I think this ties into the Chief Justice's question about a one legged stool. Brewster and Johnson in
subsequent cases say that, that this is a one legged stool problem.
Typical for some of the prosecutions to proceed and that the implication of official immunity, which is dictated in the Constitution here by the
executive vesting clause.
KAGAN: To continue on in Justice Barrett's vein and ask you about some of the allegations of the indictment and whether they are official acts or not
in your view. The defendant signed a verification, affirming full selection of fraud allegations made on his behalf in a lawsuit filed in his name
against the Georgia governor.
SAUER: I don't think we've disputed that. That is unofficial.
KAGAN: That's unofficial; same for the defendant calling the chairwoman of the Republican National Committee, asked her to gather electors in targeted
states, falsely represented that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the
defendant's favor?
SAUER: We have taken the position that that's official.
KAGAN: That's official?
SAUER: Yes.
KAGAN: Why would that be official?
SAUER: It's based on the historical example of President Grant and it's something that was done pursuant to the exercise of the core recommendation
clause out.
KAGAN: Couldn't he have taken this action just in the status of a candidate?
tsunami The fact that he could have done so doesn't demonstrate that he did do so. Based on the allegations, it's clear he did not, that this was done
in an official capacity.
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.
SAUER: Absolutely an official act for president to communicate with state officials, to defend the integrity of a federal election and 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.
KAGAN: Well, attempting to defend the integrity of the election, that is the defense. The allegation is that he was attempting to overthrow an
election.
SAUER: Exactly right. And neither allegation should make a difference as to whether it's immune. That's extremely strong with this court.
KAGAN: Does it strike you as odd that your understanding of immunity goes way beyond what OLC has ever claimed for a former president?
SAUER: I think the OLC opinions here are 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. (INAUDIBLE) --
[10:35:08]
KAGAN: Well, that's a different question. I mean, would 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 -- 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?
SAUER: I don't -- I don't know if I 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 Republican, erect a new government on the ruins of public
liberty. That's what we rely on principally here.
I cite the OLC opinions visit, because of course, what do you see there's a very strong trend that if there's any statute that might trench in any way
on the President's prerogatives which they adopted -- they interpret it to avoid that.
KAGAN: If a president sells nuclear secrets to a foreign adversary, is that immune?
SAUER: That sounds like similar to the bribery example likely not immune. Now, if it's structured as an official act, you would have to be impeached
and convicted first before --
KAGAN: What does that mean, if it's structured as an official act?
SAUER: Well, I don't know in hypothetical whether or not that would be an official act, you probably have to have more details to apply the blazing
game analysis or even if it's Gerald (ph) analysis that we've been talking about.
KAGAN: How about if a president orders the military to stage a coup?
SAUER: 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 for prohibits the military from following a playfully unlawful act. If one adopted Justice Alito was test that would fall
outside. Now, if one adopts, for example, the Fitzgerald test that we advanced, that may well be an official act, it would have to be, as I'll
say, in response, all these kinds of hypotheticals, has to be impeached and convicted before it can be criminally prosecuted.
But I emphasize to the court --
KAGAN: Well, he's gone that 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?
SAUER: I think it was (INAUDIBLE).
KAGAN: That's in noon(ph).
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 a
impeached --
KAGAN: But 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 that immune?
SAUER: If it's an official act. There needs to be impeachment and conviction beforehand, because the framers viewed the writ. That kind of --
KAGAN: It's an official act. Isn't an official act?
SAUER: If it's an official act, it's impeached (ph) --
KAGAN: Is it an official act?
SAUER: On -- on the way you've described that hypothetical, it could well be. I just don't know, you'd have to again, it's a fact specific context
(INAUDIBLE).
KAGAN: That answer sounds to me as though it's like, yes, under my test, it's an official act. But that sure sounds bad, doesn't it?
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. And that is the wisdom of the framers. What they
viewed as the risks that needed to be guarded against was not fact (ph) -- the notion that the President might escape, you know, a 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 --
KAGAN: The framers did not put an immunity clause into the Constitution. They knew how to, they 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 claims 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.
SAUER: I would say two things in response to that. Immunity, they did put an immunity clause and, in a sense, they put in the executive vesting
clause, which was originally understood to have to adopt a broad immunity principle that 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'd 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 and pages 64 to 69 of the second (INAUDIBLE).
[10:40:01]
KAGAN: Thank you.
UNIDENTIFIED MALE: Justice Gorsuch?
NEIL GORSUCH, JUSTICE: 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 the Justice Kavanaugh was talking about, when 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.
SAUER: I think our position is that would have to be an unofficial act, purely private conduct for that prosecution to go forward.
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'm struggling to see why in that case, perhaps the evidence could come in.
SAUER: Yes, strongest possible case in our view is what you've described as kind of the core executive powers, the unrestricted 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 a
legislative act. It just as it was an official act, which here would say is applies basically, the outer perimeter tests of Fitzgerald against Nixon,
that doesn't come in.
GORSUCH: 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 engaged in drone strike, 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?
SAUER: That is, I didn't think of that until Your Honor ask it. That is certainly one instead of that might be creative. What we think is most
important --
GORSUCH: But we've never answered whether a president can do that. Happily, it's never been presented to us.
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 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 order 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?
GORSUCH: And perhaps if he feels he has to, he'll pardon himself every -- every four years from now on.
SAUER: But that, as the Court pointed out, wouldn't provide a security because the legality of that is something that's never been addressed.
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 United States can be immediately prosecuted, do you?
SAUER: I'm sorry, this Court is asking whether they --
GORSUCH: If the President gives an unlawful order, calling the troops what all the examples we've heard. Every subordinate beneath him faces criminal
prosecution, don't they?
SAUER: That is what Gouverneur Morris said explicitly at the Constitutional Convention that his co-agitators can be prosecuted. There is an important
caveat, because of course, there would have to be a statute that would govern that for them to be prosecuted (INAUDIBLE) --
GORSUCH: But we've got lots of statutes, the criminal law books are replete. But I mean, do you agree is that one check that's available?
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, well, we can't go up to the President directly, but we're going to criminalize the way that the President speaks
to Congress under the exercise the recommendations clause, and therefore we're going to put in a criminal statute that says, if you provide false
information to Congress, in carrying out the President's recommendation powers you -- you can be (INAUDIBLE) 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, the
Constitutional Convention is an excellent distinction.
UNIDENTIFIED MALE: Justice Kavanaugh?
BRETT KAVANAUGH, JUSTICE: Follow up on the OLC opinions question. As you read them, and I think I read them they articulate a clear statement rule
as to 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 President therefore, meaning that the President can't be charged for any official
acts under this -- under the statutes.
SAUER: That's absolutely correct. They're extended way beyond (INAUDIBLE) - -
[10:45:03]
KAVANAUGH: Now that separate from the question what's official versus what's personal. But for that bucket that is official, there's no clear
statement, period.
SAUER: That's right. And as to purely private conduct, we don't think that clear statement rule would be invoked. But as to official acts, the
statutes, the ones charged in the indictment are this way far afield from purporting to criminalize in clear terms at the President's official acts.
KAVANAUGH: And then you're -- just to clarify this 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?
SAUER: That's correct. And even though of course, if there was impeachment conviction could be prosecuted our view, and we'd emphasize the whole
series of structural checks, in addition to that, which deter those that have successfully deterred presidential misfeasance for 234 years.
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 the 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 is
historically understood.
SAUER: That's actually correct. And there's a very telling passage and free enterprise fund where this court talks about how there's a letter from
James Madison to Thomas Jefferson, at the time of the founding, where Madison said, hey, the rest of renewable power, they did not expressly take
this away. So, the 78 -- 79th Congress understood that it was left in place.
So, if the original understanding of 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.
KAVANAUGH: And then lastly, I think you've acknowledged in response to others questions that some of the acts and the indictment are private, and
your views 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?
SAUER: Most likely a district court under the logic of Anderson (ph).
KAVANAUGH: Thank you.
UNIDENTIFIED MALE: Justice Barrett?
AMY CONEY BARRETT, JUSTICE: So, Mr. Sauer, you've argued that the impeachment clause suggests or requires impeachment to be a gateway to
criminal prosecution, right?
SAUER: Yes, I think that's the plain meaning of that second phrase in the clause.
BARRETT: OK. 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?
SAUER: Someone very important has made the opposite suggestion as to the President himself, which Solicitor General Bork, which is very informed in
the OLC opinions on this, where they -- were Solicitor General Bork read in 1973 as to that issue, the Vice President reviewed the historical
materials, 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 the
Constitution, but also hundreds of years of history. And what DOJ admits is the framer's intent. And so, we say that that practice, whatever its
validity should not be extended at this novel context, where it clashes with the Constitution (INAUDIBLE) --
BARRETT: What if a criminal conduct isn't discovered until after the President is out of office? So, there was no opportunity for impeachment?
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 writing every wrong, but it does so that we do not lose liberty.
BARRETT: OK. 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?
SAUER: Assuming the prosecution was for the same conduct in which he was convicted, not impeach, he must be convicted that more conviction --
BARRETT: OK.
SAUER: -- right there in the clause.
BARRETT: OK. Granted. But you also say that these criminal statutes just -- unless they explicitly mentioned 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?
SAUER: Well, there are statutes as they concede, were President -- Congress has been (INAUDIBLE) --
BARRETT: A few. Two or three.
SAUER: They haven't done a comprehensive review. I think it looks like all they did was tech search for President in 18 U.S. Code. Again, under
Franklin, that's a very telling indication of the word president is not in the statute isn't necessarily a magic word requirement so to speak.
[10:50:00]
But more fundamentally than that, more fundamentally that they can see 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 what the framers if you look at what they're discussing, and the thing is prayer (ph) in the Constitution Convention is
principally concerned about private conduct, which of course, we can see they're not immune.
BARRETT: OK. So just 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 conviction and an impeachment proceeding? If there was not a statute that expressly referenced the President and made it
criminal for the President.
SAUER: There would have to be a statute that made it clear statement that Congress purported to regulate the President's conduct.
BARRETT: OK. Thank you.
UNIDENTIFIED MALE: Justice Jackson.
KETANJI BROWN JACKSON, JUSTICE: 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.
Does that your position?
SAUER: I agree with that.
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 private act or public act, is being necessitated by that assumption. Because of course, if official acts didn't get absolute
immunity, then it would matter, we wouldn't have to identify which are private and which are public. Correct?
SAUER: That in fact, is the approach of the D.C. Circuit. There's no determination that needs to be (INAUDIBLE) --
JACKSON: Right. But I've 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 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 United States has the best lawyers in the world,
when he's making a decision, he can consult with 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?
SAUER: I respectfully disagree with that characterization. The President absolutely does have responsibility. He absolutely is required to follow
the law in all of those official acts. But the remedy for that is the question, could he be subject to personal vulnerability sent to prison --
JACKSON: But --
SAUER: -- about making a bad decision after he leaves office?
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 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.
SAUER: I'd say two things in response to that.
JACKSON: Yes.
SAUER: It was from Fitzgerald, that's the very sort of inference or reasoning that this Court rejected in Fitzgerald --
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 the need to
follow the law as he's doing his job than anyone else.
SAUER: He is required to follow the law. And what (INAUDIBLE) --
JACKSON: But he is not. Is there's no criminal process -- if there's no threat of criminal prosecution, what prevents the President from just doing
whatever he wants?
SAUER: All the structural checks that are identified in Fitzgerald and a whole series of his court cases that go back to (INAUDIBLE) against
(INAUDIBLE) for example, impeachment oversight by Congress, public oversight. There's a long series that Fitzgerald directly addresses in the
civil context and we've (INAUDIBLE) --
[10:55:04]
JACKSON: Well, I'm not sure --
SAUER: -- and actually --
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. 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 seat of criminal activity in this country.
SAUER: I don't know if there's any allegation of that in this case. And what George Washington said is -- what Benjamin Franklin said, as we view
the prosecution of a chief executive is something that everybody cried out against, it's unconstitutional. And what George Washington said is, we're
worried about factional strife, which will --
JACKSON: No, I meant well, 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 emboldened to commit crimes with abandon while they're in office? It's
right now the fact that we're having this debate, because oh, well see, 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.
SAUER: I respectfully disagree with that, because 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 (INAUDIBLE) --
JACKSON: All right. Let me ask you another question.
SAUER: -- (INAUDIBLE).
JACKSON: Let me ask you another question about this clear statement line of questioning. First of all, I didn't see you argue that below. I don't know
-- I understand that you have that set of in your briefs here. But did you argue before the D.C. Circuit something about a clear statement with
respect to statutes?
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 panel.
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?
SAUER: I believe it's fairly included within the prep (ph) question presented especially --
JACKSON: Why?
SAUER: Especially because the court expanded the question presented from what either the parties submitted (INAUDIBLE) --
JACKSON: But not the statutory interpretation. I mean, that -- that argument goes to statutory and board -- avoidance, you know, constitutional
avoidance, statutory interpretation, you asked for immunity, which is a totally different then.
SAUER: I think you'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 extent that it raises a grave constitutional question that triggers the clear statement rule. That's a really
(INAUDIBLE) --
JACKSON: But that's totally circular. 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 and rule, the way that it's come up in the context of an immunity question.
But let me just -- let me ask you this about it. One more question. Yes, so what -- what is the argument that the President 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 the clear statement rule
comes in at all, it's about the person not being on notice.
So, 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,
what is the clear statement that would have to be made in this context?
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.
JACKSON: Thank you.
UNIDENTIFIED MALE: Thank you, counsel. Mr. Dreeben.
MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL JACK SMITH: 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.
END
