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CNN Live Event/Special
Trump in Court for Immunity Hearing; Live Coverage of the Immunity Hearing. Aired 9:30-10a ET
Aired January 09, 2024 - 09:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KAITLAN COLLINS, CNN ANCHOR: Any actions that he took while in office constitute official acts. The district judge overseeing the case has rejected had, but now it is up to this appellate panel to really make the final decision here. We saw the former president's motorcade arriving at the courthouse just a few moments ago. I should note, there are no cameras allowed in court today. You won't hear Trump himself answering any questions. He's actually not required to be there. He is choosing to attend today's hearing.
CNN's Kristen Holmes is joining us from Washington this morning.
Kristen, it is -- obviously, you know, an incredible time for him when it comes to what this could mean for him legally. It is incredibly significant. But also we're less than a week now away from the Iowa caucuses. And the former president is making this choice to be in the court instead of on the campaign trail. What have you heard from your sources as to why?
KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Absolutely, Kaitlan and Laura, he does not have to be here. He could be in Iowa doing meet and greets, but he has chosen to go to court. And as you noted, this is not mandatory. But this doesn't go to -- this goes to his narrative that all of this is election interference, that this is political prosecution. And, in fact, he sent out a text message last night, a fundraising text message, in which he said that he was burning the midnight oil but not because of the election, instead because Joe Biden was forcing him to go to court. And this is what he wrote. He wrote, "crooked Joe is forcing me into a courtroom in our nation's capital to defend my right to presidential immunity, a right granted to every other president in history."
Of course, as we know, no one is forcing him to be there. And, of course, this has nothing to do with President Joe Biden. But that's the narrative he continues to sell. And he's selling it not only to his base, but to Republicans broadly, trying to say that this is a two tier justice system.
The other part of this is that he knows he can suck all the oxygen out of the room a week ahead of those caucuses if he is in court. And that is something they're trying to do.
But, Kaitlan, as you noted, this is not the kind of circus that we see when he goes to New York. He's already gone in underneath, in a garage --
LAURA COATES, CNN ANCHOR: Wait, for a second. Kristen, hold on, I'm sorry to stop you, but we actually -- the courtroom is staring right now.
COATES: The appellate argument about to begin. Let's listen in.
UNIDENTIFIED FEMALE: (INAUDIBLE) appears for the (INAUDIBLE).
UNIDENTIFIED FEMALE: (INAUDIBLE), good morning.
Before you get started, can I just get a couple of things on the record?
Our jurisdiction was challenged by an amicus. But from your (INAUDIBLE) brief you are not questioning our collateral order jurisdiction?
D. JOHN SAUER, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: Correct. We defend the collateral order jurisdiction, that's correct, your honor.
UNIDENTIFIED FEMALE: And then also you have either abandoned or not made the Fifth Amendment double jeopardy argument before us.
SAUER: We have framed the double jeopardy argument as arising priestly (Ph) from the impeachment judgment clause. So, we haven't argued that. If you go straight to the double jeopardy clause, that that alone would result in reversable, focusing on the impeachment judgement clause. Now, that incorporates principles of double jeopardy --
UNIDENTIFIED FEMALE: Right.
SAUER: But -- but we haven't said a straightforward directly under the double jeopardy clause in this court at this time.
UNIDENTIFIED FEMALE: Right.
UNIDENTIFIED FEMALE: Go ahead. Thank you.
UNIDENTIFIED FEMALE: Well, before that occurs then, I do want to speak to you a little bit more about jurisdiction because we still have to satisfy ourselves that we have the jurisdiction.
So, even though you believe that there's interlocutory jurisdiction with respect to the collateral order doctrine, how do you place that in line with Midland Asphalt case which specifically says, in a criminal case your jurisdiction needs to stem from the Constitution or be explicit as well in statutory law?
SAUER: Yes, we have three responses to that, if I may, Your Honor. One is, of course, that if you look at the language of Midland Asphalt, what Justice Scalia is discussing in that case is particularly right the -- a situation where the right has won the legal and practical value of which would be destroyed if it were not violated for trial. And these claims of absolute immunity fall right in the heartland of that description of that right. That's been reinforced by the Supreme Court.
UNIDENTIFIED FEMALE: But having to deal with explicitly --
UNIDENTIFIED FEMALE: Stating that because we don't have an explicit communication here with respect to any -- anything in the Constitutional or statute.
SAUER: Yes, I respectfully disagree with that. The doctrine of presidential immunity arises directly from Article 2, Section 1, in the executive vesting clause. It's reinforced by the plain language of the impeachment judgment clause, which specifically refers to triumph (ph). Remember what Midland Asphalt is talking about is situation where the right not to be tried is at stake. And it distinguishes that from the right. The remedy for which is the dismissal of an indictment. So, when you're talking about the right not to be tried, we have the clearest and most explicit reference to trial of any of the clauses in which the Supreme Court has found interlocutory jurisdiction.
UNIDENTIFIED FEMALE: But there have been other circuits that have indicated on the issue of immunity Midland Asphalt still applies.
SAUER: Yes, not presidential immunity with respect to this courts --
UNIDENTIFIED FEMALE: That's what you're making, your distinction?
SAUER: Right. And -- well, I -- what I would say is, this court's decision in Cisenarious (ph) explicitly says, you know, right there, in it it says, most separation of powers claims may not be subject to interlocutory view, but there are some that may.
And then it goes on to say, presidential immunity arising from the separation of powers citing Clement against Jones. So as this narrows, I think expressly contemplates that there be interlocutory jurisdiction in this sort of claim. And that's further reinforced by the court's subsequent decision in Rose (ph) and Roskatowski (ph), situations where -- where the court said look, there's a speech and debate claim. And there's also other claim that it isn't derised (ph) directly from the Contusion, but it's closely akin or analogous to such a claim.
UNIDENTIFIED FEMALE: But let me talk again about explicit because in the double jeopardy trial scenario you have twice put in jeopardy. So you cannot be tried again in that regard. Then in the speech and debate it says shall not be questioned. So, the language was explicit. You're not giving me anything that says explicitly in the references that you cite.
SAUER: Two responses to that. One is the plain language of the impeachment judgement clause, which says that only the party convicted shall be subject to indictment, trial, judgment and punishment according to law. So, right there --
UNIDENTIFIED FEMALE: But that's if you take the negative inference, correct?
SAUER: That's (INAUDIBLE) language supports to me very -- from the very beginning that (INAUDIBLE). It is the natural and ordinary meaning of the impeachment judgement clause. So, that is an argument that is explicit.
And also point out that this court, in Rose, in Rostentowski (ph), in Cisnaros (ph) expressly held, this is not a magic words (ph) requirement. In other words, it isn't that you've got to say -- it's got to say right there in the text of the Constitution or a statute that this is a right meant to be tried. It's that one -- the right once formulated has to explicitly included the right not to be tried. And that's why what actually -- the language that's previously in Midland Asphalt is heavily emphasized by Justice Scalia is the situation where there's interlocutory appeal and the right -- it's a right, the legal and practical value of which is destroyed if it's not vindicated before trial. There's similar language in Cisnaros (ph) and (INAUDIBLE).
I'd also point out the judgment also has not challenged the court's jurisdiction. It has conceded.
UNIDENTIFIED FEMALE: It would have to be --
SAUER: Absolutely. Yes.
UNIDENTIFIED FEMALE: Occurred (ph) in our own jurisdiction?
SAUER: Yes, yes, all --
UNIDENTIFIED FEMALE: OK.
UNIDENTIFIED FEMALE: Can I ask, the (INAUDIBLE) itself, referred to the Midland Asphalt as a suggestion?
SAUER: I -- yes, I'm not aware of that, but I think --
UNIDENTIFIED FEMALE: And digital equipment.
SAUER: Gotcha. Yes, Your Honor. I believe Your Honor is correct about that, and I think that's an excellent point. And that's reenforced by this court's case law in Cisnaros, Rose and Rostentowski.
Turning to the merits, if I may, Your Honor, to authorize the prosecution of a president for his official acts would open a pandora's box from which this nation may never recover. Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses? Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad? Could President --
UNIDENTIFIED FEMALE: So, can I explore sort of the implications of what you're arguing? I understand your position to be that a president is immune from criminal prosecution of any official act that he takes as president, even if that action is taken for unlawful or unconstitutional purpose. Is that correct?
SAUER: With an -- with an important exception, which is that if the president is impeached and convicted by the United States Senate in a, you know, a proceeding that reflects, you know, widespread political consensus, that would authorize the prosecution under the plain language of the impeachment judgement clause.
UNIDENTIFIED FEMALE: OK.
SAUER: So, yes, with that exception.
UNIDENTIFIED FEMALE: So it seems to me that there are a lot of things that might not go through that process because it's quite a cumbersome process that requires the action of a whole branch of government that has a lot of different people involved. And so in your view, could a president sell pardon or sell military secrets? Those are official acts, right? It's an official act to grant a pardon. It's an official act to communicate with a foreign government. And such a president would not be subject to criminal prosecution?
SAUER: The sale of pardons example is an excellent example because there were allegations about a sale of a pardon, essentially, when it came to President Clinton's pardon of Marc Rich and U.S. DOJ could carefully (INAUDIBLE) and for the very reasons we've emphasized in our brief decided not to prosecute President Clinton with that because it raised concerns about whether or not a president could be prosecuted for his official acts. There was actually an op-ed in "The National Review" from Andrew McCarthy (ph).
UNIDENTIFIED FEMALE: But your position is that he can't be prosecuted for that unless he's (INAUDIBLE).
SAUER: Yes. Yes. And that was -- as long as it's an official act. I mean certain cases, purely private conduct under Clinton against Jones, he'd be subject to prosecution for that as long as he's not in office but as long as he's officially --
UNIDENTIFIED FEMALE: Could -- could a president -- could a president order Seal Team 6 to assassinate a political rival? That's an official act and order to Seal Team 6.
SAUER: He would have to be and would speedily be, you know, impeach and convicted before the criminal prosecution.
UNIDENTIFIED FEMALE: But if he weren't -- but if he weren't there would be no criminal prosecution, no criminal liability for that?
SAUER: Chief Justice's opinion in Marbury against Madison and -- and our (INAUDIBLE) and the plain language of the impeachment judgement clause all clearly pre-suppose that.
What the founders were concerned about was not a --
UNIDENTIFIED FEMALE: I asked you a yes/no -- yes or no question. Could a president who ordered Seal Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?
SAUER: If he were impeached and convicted first. So, no.
UNIDENTIFIED FEMALE: So -- so, your answer is no.
SAUER: Is -- is -- my answer is qualified yes. There is a political process that would have to occur under the structure of our Constitution, which would require impeachment and conviction by the Senate. In these exceptional cases, as the OLC memo itself points out from the Department of Justice, you'd expect a speedy impeachment and conviction.
But what the founders are much more worried about then using criminal prosecution to discipline presidents was what James Madison calls in Federalist Number 47, the -- you know, the -- the new-fangled and artificial treasons. They were much more concerned about the abuse of the criminal process for political purposes to disable the presidency from factions and political opponents. And, of course, that's exactly what we see in this case.
UNIDENTIFIED FEMALE: But I've -- I've asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and I've asked you, would such a president be subject to criminal prosecution if he's not impeached or convicted.
UNIDENTIFIED FEMALE: And your answer, your yes or no answer, is no.
SAUER: I believe I said qualified yes if he's impeached and convicted first. We may be saying the same thing.
UNIDENTIFIED FEMALE: But my -- my question was -- OK, so he's not impeached or convicted. Let's put that aside. You're saying a president could sell pardons, could sell military secrets, could order Seal Team 6 to assassinate a political rival?
SAUER: Sale of military secrets strikes me as something that might not be held to be an official act. The sale of pardons is something that's come up historically and was not prosecuted. So --
UNIDENTIFIED FEMALE: But your brief says that communicating with an executive branch agency is an official act and communicating with a foreign government is an official act. That's what presidents do.
SAUER: Yes, but (INAUDIBLE) situation. (INAUDIBLE) official (INAUDIBLE). If he couldn't achieve justice (INAUDIBLE). He said (INAUDIBLE) directly into Article 2, Section (ph) that the -- the courts -- that the president's official acts are, quote, never examinable by the courts. And he says it like four different times on page 164 to 166 (ph) about it. UNIDENTIFIED FEMALE: But let me ask you about that then, council, because your position is, as I understand it, if a president is impeached or convicted, impeached and convicted, by Congress, then he is subject to criminal prosecution, correct?
SAUER: That would be unnecessary (INAUDIBLE).
UNIDENTIFIED FEMALE: Is that a yes?
SAUER: Yes. Yes.
UNIDENTIFIED FEMALE: OK. So, therefore, he's not completely and absolutely immune because under the procedure that you concede, he can be prosecuted if there's an impeachment and conviction by the Senate?
SAUER: Very, very formidable, structural (INAUDIBLE) against the astonishing, radical action of prosecuting a former (INAUDIBLE) official acts.
UNIDENTIFIED FEMALE: Right, but you're conceding that presidents can be criminally prosecuted under certain circumstances?
SAUER: Specifically if they're impeached and convicted. I think that's the main (INAUDIBLE) of the impeachment judgement clause.
UNIDENTIFIED FEMALE: And isn't that also a concession that a president can be criminally prosecuted for an official act because presidents can be impeached for official acts?
SAUER: (INAUDIBLE) unique circumstances.
UNIDENTIFIED FEMALE: Correct. But given that you're conceding that presidents can be criminally prosecuted under certain circumstances, doesn't that narrow the issues before us to, can a president be impeached -- I'm sorry, can a president be prosecuted without first being impeached and convicted?
SAUER: (INAUDIBLE) --
UNIDENTIFIED FEMALE: All of your other arguments seem to fall away, your separation of powers argument falls away, your policy arguments fall away, if you concede that a president can be criminally prosecuted under some circumstances.
SAUER: I disagree with that. The Constitution in the Article 2 section (INAUDIBLE) clause, as interpreted very clearly by Chief Justice Marshall in Marbury against Madison says, Article 3 (INAUDIBLE) lack of jurisdiction to engage in examination of the president's official acts. That's been reaffirmed by --
UNIDENTIFIED FEMALE: But you just conceded that -- that Article 3 (INAUDIBLE) can do so if he's been impeached and convicted.
SAUER: The Constitution makes a carefully balanced, explicit exception to that principle in the impeachment judgment clause. So, the problem for the separation of powers, the Constitution does this in many other situations, where it engages in a balancing. What the framers were most concerned about was not the notion the president would never be prosecuted for things that outrageous political opponents, what they were concerned about was politically motivated prosecutions. But they didn't say the president could never be prosecuted. They set up these separation of powers and then created a very narrow exception that would allow prosecution in those cases.
UNIDENTIFIED FEMALE: Correct. Correct, but -- but once you concede that there's not this absolute immunity, that the judiciary can hear criminal prosecutions under any circumstances, you're saying there's one specific circumstance, that that means that there isn't this absolute immunity that you claim.
SAUER: I'm not aware of any case or constitutional doctrine that would say that the Constitution sets up a very strong principle, and it creates a very narrow exception, and therefore the exception just makes the -- the principle vanish. I just disagree with that.
UNIDENTIFIED FEMALE: That's -- that's not what I'm -- I'm asking you. I'm saying that you are coming before us and say that there is this absolute immunity that in grounded in the separation of powers, that the judiciary can never sit in judgment on what the president is doing. But you're conceding that that's not true because under some circumstances the judiciary can do that. That's all I'm saying.
SAUER: I did (INAUDIBLE) very strong principle in the separation of powers that prohibits (INAUDIBLE) courts sitting in judgment over (INAUDIBLE) official acts. There's a very narrow exception for conviction after impeachment. And that's (INAUDIBLE) position.
UNIDENTIFIED FEMALE: I understand. I understand. But it just seem to me that once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away, and the issues before us are narrowed to, are you correct in your interpretation of the impeachment judgment clause. Does the impeachment judgement clause actually say what you say it says. That's -- that's all that's really -- we need to decide.
SAUER: I respectfully disagree with that. I respectfully disagree with that. There is a strong principle. It's reinforced by Chief Justice Marshall in Marbury against Madison. He didn't say, we can never sit in judgment over a president's official acts but because he can be impeached and convicted, there we can do it whenever we want to. He said the exact opposite. He says, they are never -- they are never examinable by the courts. And that's --
UNIDENTIFIED FEMALE: So, answering the larger question about whether there's presidential immunity from criminal prosecution for official acts, or are we looking to a standard on a motion of dismiss which says, look to the allegations, take those as true, and then look to whether or not we should be looking at official acts in that lens?
SAUER: Actually both. The threshold (ph) question (INAUDIBLE) judgment. Essentially there's no such thing as criminal immunity for a former president and therefore the district court never reached the second issue, which is, if you actually look at the face of the indictment, are these all official acts. We have strong arguments on both of those things. The notion that criminal immunity for a president doesn't exist is a shocking ruling. It would authorize, for example, the indictment of President Biden in the western district of Texas after he leaves office for mismanaging the border allegedly and let a Texas jury and Texas judge sit in judgement over the validity of the tax (INAUDIBLE) border.
UNIDENTIFIED FEMALE: But you also indicated earlier that when there were pardons or when people were not prosecuted, not everybody goes through an impeachment proceeding before they actually get prosecuted, because that's within the discretion of the prosecutor.
SAUER: Only for subordinate officers. So, as the OLC memo points out very clearly, the founding -- the founders, the framers, actually in the Constitution convention, clearly contemplated that that sequence that I described would be mandatory. He would have to be impeached and convicted first before it could even go on to --
UNIDENTIFIED FEMALE: But impeachment also only deals with certain crimes, bribery, treason, high crimes and misdemeanor.
SAUER: Yes, and if you look actually at what they said in the Federalist Number 65 by Hamilton about that, high crimes and misdemeanors would basically cover anything that the U.S. Senate makes a political judgment justifies removing him from office and authorizing prosecution.
UNIDENTIFIED FEMALE: But a prosecutor is impartial, does not make political judgements, assumingly, to charge.
SAUER: I think that that has no basis on the context of the current prosecution where the current incumbent of presidency is prosecuting his number one political opponent and his greatest electoral (ph) threat in this particular --
UNIDENTIFIED FEMALE: Asking you from the standpoint of what the impeachment judgement clause is designed to do, that it limits itself to certain acts and then therefore if convicted, as you indicated, impeached and convicted thereafter could be prosecution, but not everybody goes through that process. And, of course, it's limited to the certain actors in that regard, but not everybody has to go through that process. Prosecutors later on can come into information and evidence after they've investigation to make their determination about what they'd like to criminally prosecute.
SAUER: They could (ph) --
UNIDENTIFIED FEMALE: And you're not always confined to whatever would be in the impeachment judgment clause.
SAUER: Whatever the -- whatever the practice is being with respect to subordinate officers, the frame -- the evidence from the founding generations as clear as you can to do that with respect to the (INAUDIBLE). And this is one example of many that's reinforced in the (INAUDIBLE) Supreme Court's case law, the uniqueness of the presidency and the person who occupies the office of the presidency.
So, for example, you get repeated statements in Nixon against Fitzgerald. It's reaffirmed in Trump against Mazers. Reaffirmed in Trump against Vance and so forth about the unique nature of that particular office and therefore it's --
SAUER: But why even under Clinton, where there's a deal cut under President Nixon, where there's a pardon given, there's an assumption that you could be prosecuted because why enter into those particular acts.
SAUER: Those examples are examples of purely private conduct. For example, Clinton against Jones makes very clear that there's stuff that President Clinton got an indictment deal about -- by admitting to certain wrongdoing in exchange for not being indicted was purely private conduct.
Nobody has contended that the president's immune from prosecution from purely private conduct. It's -- the question is, can he be indicted for official acts. And you have referred to the pardon -- the pardon of President Nixon. We have two things to say about that. President Nixon was accused of a wide range of purely private conduct and he was facing a potential indictment for that and that's why the pardon was issued.
UNIDENTIFIED FEMALE: OK, so, that's a purely private conduct. If we go to the indictment, they are not alleging purely -- they're alleging that this is private conduct subject to fraud, not official acts. So, why don't you speak to that since you said that we have to look at the broader question as well as the indictment?
SAUER: Sure. Yes, Your Honor. So, the allegations of the indictment allege only official acts. They wouldn't even characterized them as private acts is to turn to the alleged motive or purpose for that. So their whole theory, their characterization of the language in the indictment is, oh, we're alleging purely private conduct because it was engaged in for particular purposes. And that's foreclosed by a very long and strong line of Supreme Court precedents (ph) --
UNIDENTIFIED FEMALE: But how does (INAUDIBLE) case fit here, that we -- this circuit distinguish office seeker versus office holder in terms of how you're committing the acts.
SAUER: This Blassingame (ph) strongly reinforces what was said -- has been said in Supreme Court cases in Stump against Sparkman, going back to, for example, Marbury against Madison, where it's the nature of the act itself. I understand the Blassingame opinion, to reenforce that by saying, it's an objective. They use the word objective multiple time. Objective context specific assessment. It does not turn on the purpose or motive. That was strongly pushed in Blassingame. And this court properly rejected it. That's consistent with Nixon against Fitzgerald, Bradley against Fisher, Spalding against Felas (ph), Judge Hands' (ph)opinion at Greguar (ph). I mean it's the strongest -- strongest principle (INAUDIBLE) in this context. UNIDENTIFIED FEMALE: (INAUDIBLE) turn to my colleagues because I've taken up your time, but we'll give you what you need.
With respect to the actual indictment, it does not gloss over what, you know, and put it in terms as you're describing. So, if we look at the face of the indictment as to what's charged, when it's gone through a grand jury process, unlike the impeachment judgement clause, how do we look at those particular acts as described, because we have to take those at face value.
SAUER: There's clear guidance on this from Nixon against Fitzgerald. In Nixon against Fitzgerlad, the allegation was President Nixon had unlawful terminated a whistleblower essentially, and that whistleblower came into court and says, this is not subject to immunity because it was unlawful. And the court said, we're not looking at that granular level of detail and we're not considering, most importantly, the alleged motive for these acts. It said that the level of specificity to consider it is, how -- conducting the business of the Air Force.
Similar here, if you look at the indictment, there's five classes of conduct that are alleged, many of which are just obviously, obviously official conduct. Meeting with the U.S. Department of Justice about who should be the cabinet level officer running that is at the heartland (ph) of the appointments power.
UNIDENTIFIED FEMALE: You said many of which. So now --
SAUER: I -- really, all of which. I mean (INAUDIBLE) is just one exception because there's allegations about the Ellipse speech. And under Blassingame the contention was made that he should be remanded for that.
But if you look at the other public statements, for example, President Trump's tweets, the Second Circuit held (INAUDIBLE) First Amendment centered, that it was based on overwhelming evidence that's an official channel, his Twitter account during the presidency was an official channel of government communication. And under the objective test in Blasingame, all those tweets are obviously immune.
So also with meetings with the Department of Justice, meeting with members of Congress, that falls right within the heartland of Article 2, Section 3, which authorized the president to communicate with Congress about the matters that he views as expedient.
UNIDENTIFIED FEMALE: Let me ask you (INAUDIBLE) I don't -- I don't believe you were council then, but what about the two concessions made in the first impeachment proceeding and then in Trump v. Vance, that impeachment should be stayed and wait until he's out of office when he would be subject to criminal liability?
SAUER: As to Trump against Vance was a purely private conduct that involved a subpoena, a criminal subpoena for tax records that long predated President Trump's time in office. So, it was purely private conduct. The concession that he could be subject to prosecution is also correct. As for the impeachment brief, for example, that they've cited in their briefs, what that says is, we have a judicial process in this country, period. We have an investigative process in this country to which no former officer is immune. It did not say that it could never be raised, an immunity defense. It said criminal process can go forward.
UNIDENTIFIED FEMALE: I'm sorry, there's a quote in the congressional record in which your council -- I'm sorry, your client said through council no former office holder is immune from investigation and prosecution.
SAUER: Investigation is what (INAUDIBLE) too.
UNIDENTIFIED FEMALE: (INAUDIBLE) Constitution.
SAUER: Well, that may be true of subordinate officers, but as to the principle officer, the president, he is immune unless he is impeached and convicted.
UNIDENTIFIED FEMALE: But he --
SAUER: Again, it comes back to the point we made --
UNIDENTIFIED FEMALE: He was -- he was president at the time and his position was that no former office holder is immune. And, in fact, the argument was, there's no need to vote for impeachment because we have this backstop, which is criminal prosecution.
And it seems that many senators relied on that, voting to acquit.
SAUER: That (ph) relies on speculation. (INAUDIBLE) statement and what -- I mean the court, I think, lacks the ability to intuit what senator -- what motivated senator's votes in the impeachment process. What the Constitution says is you must be impeached and convicted.
UNIDENTIFIED FEMALE: The question -- I think the question that Judge (INAUDIBLE) is asking you was, you took the position, or your client did, during the impeachment proceedings that there would be an option for criminal prosecution later. And it's in the congressional record. And I guess the question is, what has changed, or why have you changed your position?
SAUER: (INAUDIBLE) disagree with that characterization of the statements and the congressional record. I believe there was a distinction between the judicial process and the investigative process. That was in the quote that I just read. In addition to that, whatever concession may or may not have been made there would not have a (INAUDIBLE) effect in this proceeding. These are veery different proceedings. And, again, several -- again, the notion that no one is immune from the judicial process and the judicial process should go forward is fully consistent with the notion that defenses, including presidential immunity, which, again, is rooted in the separation of powers, would quickly raise in those processes. So, the notion that there could be a criminal process and then defenses like this could be raised in this process is -- is, I think pretty straightforward. There's no concession that there's no such thing as criminal immunity, there's no concession in those proceedings that what the district court in this case did, the very kind of astonishing holding that no president is criminally immune from prosecution is -- is -- is just -- I think it's not here in the congressional record.
UNIDENTIFIED FEMALE: Le me go back to Marbury versus Madison. And you isolated that one sentence. Isn't it true that the progeny of Marbury versus Madison has distinguished between discretionary official act and ministerial by which they mean imposed by law, and that -- it's the -- it's the later one in which he can be held liable. And -- and I want you to address both U.S. V. Johnson and the Commonwealth of Virginia because the first one deals with the speech and debate clause and the Supreme Court said in essence, lop off all of the evidence dealing with speech and debate. He can still be prosecuted, that is that congressman, or I think it was conspiracy to defraud the U.S. or something, and then in the Commonwealth of Virginia, you had the judge who had been charged with a crime under which you could not discriminate in picking jurors based on rape. And I -- my reading of that case is that the language that you isolate in your reply brief, that it could just as easily be done, that is the choosing of the jury, a ministerial act by someone on the street, to me that means, when you have a duty that is imposed by law, picking a jury they said was ministerial, imposed by law, whether you're the man on the street, whether you're the president, whether in that case you're the judge, who can be held criminally liable. And that's how I -- that's how I read, if not Marbury, the progeny that is you cannot stop an official act. You have to say, was it a discretionary official act or was it a ministerial?
SAUER: I agree with that characterization of Marbury. I think that distinction is present in Marbury itself. And I think it -- what I'd respond to that is to say, first of all, that extension has never been extended up to the president, and for good reason, because for over 200 years the courts have held we can't sit in judgement over the president's official acts under any circumstances. So, for example, Mississippi against Johnson --
UNIDENTIFIED FEMALE: Not criminal (ph) through (ph). Not criminal (ph). We don't have any (INAUDIBLE).
SAUER: That's correct. It's never arisen until this case. That is absolutely correct. But if you look at every civil context what they've said -- you keep in mind that what -- what Chief Justice Marshall says is never examinable. Never examinable.
So there would be no judicial proceed where you could say, the president did this and we're going to sit in judgement directly over that. That's reinforced by Mississippi against Johnson, by Swan against Clinton from this court more recently where the courts hold that we can't even enjoin or even really enter a declaratory judgement directly against the president for his official acts, whereas the distinction between ministerial and discretionary has been held totally with respect to subordinate officers. And that goes all the way back to Marbury. However, if you look at the indictment in this case, nothing that's
alleged against President Trump could remotely be described as ministerial. I'm not aware the government has ever argued that if you're talking about, you know, responding to widespread allegations of fraud, abuse and -- and misfeasance in a presidential election, trying to find how to respond to that, and (INAUDIBLE) that's in the national interest.
Matters of that nature are not ministerial at all.