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Fed Judge Hears Critical Arguments on Presidential Immunity; Trump's Attorney Warns That Prosecuting a Former President Would Open Pandora's Box. Aired 10-10:30a ET

Aired January 09, 2024 - 10:00   ET


D. JOHN SAUER, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: -- respond to that and, Mayor (ph), that's in the national interest, matters of that nature not ministerial at all.


So, even if that distinction goes all the way up to (INAUDIBLE) the so to speak it wouldn't save the indictment here.

UNIDENTIFIED FEMALE: Why is isn't it (INAUDIBLE) and his constitutional duty to take care that the laws be faithfully executed requires him to follow those laws, every one of them?

SAUER: Yes. I mean, I would say that the Take Care Clause, carrying out one's duties in the Take Care Clause, are inherently discretionary. An example of a ministerial act, for example, in Marbury against Madison is like delivering a seal when you're requested, because there's a separate statute, right?

What they emphasized is there's a separate statute. The secretary of state had kind of these two hats on. He was on one hand a direct agent of the president, and that could never be examined by the courts. On the other hand, the original statute had posed all these like purely ministerial duties that had to do with the record keeping and delivering documents, like if you've got a land deed that's got a seal on it and a person asks for it, where there's no discretion at all.

When you're talking about the Take Care Clause, there's no statute that could impose on the president a mandatory duty to engage. I mean, the notion that when the president's meeting with the Department of Justice, for example, saying, hey, we should investigate and enforce federal fraud statutes, the notion that that's ministerial strikes me as insupportable.

UNIDENTIFIED FEMALE: Well, I think you're missing what I'm asking, which is, I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.

Now, we're at the motion to dismiss stage. The government has charged the specific criminal laws. We have to assume they're true.

SAUER: I mean, my response to that I think would be to emphasize what Chief Justice Marshall said in Marbury, which is that they can never be examined by courts that naturally includes a criminal proceeding.

UNIDENTIFIED FEMALE: But I thought you read with me that we've gotten beyond Marbury in the sense that official acts has been subdivided into discretionary and duty bound or ministerial. And in the ministerial or duty bound, at least with respect to even legislators and judges, they have been held criminally law. And that's in the face, at least with respect to the legislators, of an explicit constitutional privilege.

SAUER: I don't view United States against Johnson and even ex parte Virginia as resting on the ministerial versus discretionary distinction. I think what Johnson says is it doesn't say, hey, when you were doing these other things, they were ministerial. What it says is these were not legislative acts, right? And so what it draws attention between legislative and non legislative acts. So also, I think that's the right reading of ex parte Virginia. It goes, they go on to say, judicial act. In other words, the argument that picking a jury, I don't even believe they use the words my recollection ministerial. They say the --

UNIDENTIFIED FEMALE: Because they were criminal acts. They were criminal acts. And picking the jury based on race is a criminal act. And whatever Johnson did, I think it was the very same statute fraud against the United States that is before us today.

SAUER: I would say that the distinction in those cases is between, in the judicial case, Johnson, let the judiciary -- sorry, legislative -- sorry, the legislative case, Johnson, is between legislative acts and non-legislative acts. The distinction in ex parte Virginia is between judicial acts and non-judicial act that phrases use and hear the distinction is between presidential acts and non-presidential acts and everything that's alleged in the indictment is a presidential act.

Your honor, see, I think -- go ahead.

UNIDENTIFIED FEMALE: May I? There are a number of precedents or cases in which the Supreme Court has reviewed actions by the president, the civil (ph) case of Youngstown Sheet and Tube, where the Supreme Court reviewed Harry Truman's seizure of the steel mills during the Korean War.

There's also the case of Little-Barreme, where -- Little versus Barreme, where Chief Justice Marshall reviewed the actions of President Adams when he seized certain vessels. Trump versus Hawaii was reviewing President Trump's order restricting the entry into the United States of nationals from certain foreign countries.

How does that square with your position that the judiciary can never review executive action?

SAUER: All those cases fall squarely within the well-established exception in ex parte Young where the judiciary is allowed and does frequently issue declaratory judgments and junctions judgments against subordinate officers, even when they're --

UNIDENTIFIED FEMALE: These are presidents. Harry Truman was the president when he seized the steel mill. How does that comport with your theory?


SAUER: In that case, it was an injunction against the secretary of commerce, not against the president. This court has reaffirmed very recently that you cannot issue an injunction directly against the president. The court has no jurisdiction to do that. Cannot enter -- it strongly indicates in Newdale (ph) against Roberts that the court can't even enter a clear judgment.

UNIDENTIFIED FEMALE: But the quote, can review presidential action if, on paper, they direct their judgment to a supported officer, is that what you're saying? Because these are presidential actions.

SAUER: The court can definitely enjoin the actions of subordinate officers that violate the Constitution. This ex parte Young, all the cases follow --

UNIDENTIFIED FEMALE: I understand that, but I'm asking you a different question, because these are presidential decisions, presidential actions, and you're saying that the court can review presidential actions as long as when they issue the judgment, they issue it to a (INAUDIBLE).

SAUER: Indirect context, it can't directly sit in judgment over the presence of officials. It's been established for over two years.

UNIDENTIFIED FEMALE: You're using the impeachment judgment clause essentially as a negative implication with respect to that the civilian officer or president, of course, has to be impeached and convicted and then nevertheless thereafter.

If there is an acquittal, how are you using it in that regard? Because sometimes, and particularly in this case, the acquittal can arise from lack of jurisdiction, not actually trying the merits of the case.

SAUER: The impeachment judgment clause does distinguish between those sort of merits related acquittals and not merits related acquittals. (INAUDIBLE) acquittals, frankly, this same sort of thing comes up in just criminal prosecutions under the Double Jeopardy Clause where, you know, a determination that the defendant is acquitted does not necessarily reflect an actual determination that they're not factually guilty.

And, in fact, this is emphasized in the OLC memo that they themselves address that actually, you know, that determination often reflects things that are distinct from the merits. So, that doesn't, I think, in any way, undermine the sort of double jeopardy force, so to speak, of the Impeachment Judgment Clause.

UNIDENTIFIED FEMALE: And one of the briefs indicated that Jack Smith is improperly appointed. Do you have a position there?

SAUER: That's a very persuasive brief, but I can see we have not raised it in this case. I think it raises very powerful questions, but we haven't raised it in this case at this time. UNIDENTIFIED FEMALE: Just about the effect of Blasingame (ph), if we say we can't determine if these acts are official or private, I want to stay away from that, I'm going to say ministerial or discretionary, and Blastingame characterized in terms of office seats or versus officeholder, what is your position about, would we have to remand it? Would the district judge to decide in the first instance whether these various, the four points that the defense has made against imposing criminal liability hinge on whether the acts are ministerial, discretionary, official, private, however you want to characterize it?

SAUER: I'd use to phrase from Clinton against Jones, which says purely private conduct is what can be, you know, subject to judicial process after a president leaves office.

In response to your question, our principal position is you can look at this indictment and it alleges official acts and it can be ordered to dismiss. We acknowledge though that the district court didn't reach that issue when Blasingame did remand and the court absolutely has a discretion to remand to the district court for the application of the doctrine of criminal immunity in the first instance. And we admit that that would be a natural thing for the court to do.

UNIDENTIFIED FEMALE: To the specific task (ph)?

SAUER: Correct, yes. In other words, if the court holds that there is presidential immunity, which it should, then remand to the district court to say, okay, go through the indictment and/or else hold factual findings and so forth to decide how it applies the conduct alleged in this case. We acknowledge that would be -- the court has a discretion to do that and that would be a natural force (ph). And if there are no further questions.

UNIDENTIFIED FEMALE: I have one more question. So, under the framework established in, were discussed in Nixon versus Fitzgerald, we're supposed to conduct a balancing test, where we balance the need for the asserted immunity versus other public interests. And I see you as trying to represent a need for the executive to have this immunity to facilitate executive functions, the ability to act without hesitation to be fearless to make decision-making with, to make decisions without being inhibited by the fear of prosecution.

But it seems to me that there are some other Article II interests here that are countervailing. For example, under Article II, there's an Executive Vesting Clause. And so there is an interest of the executive branch as an institution to have constitutional executive power vest in a newly elected president.


There's also an executive interest as an institution in law enforcement, in enforcing criminal laws. And so it seems to me, if we're weighing executive interests versus public interests, public interests in things like the integrity of an election, that President Trump's position is not fully aligned with the institutional interests of the executive branch, and in this balancing test, that weakens the executive power that he's trying to assert. SAUER: I say three things in response to that. First of all, Nixon against Fitzgerald emphasizes that the most compelling consideration, when one considers what it describes as policy considerations rooted in the separation of powers, is the rendering of the executive branch official unduly cautious, unduly cautious in the exercise of highly controversial and sensitive decisions that come up all the time.

If a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision and worry after I leave office, am I going to jail for this, when my political opponents take power, that inevitably dampens the ability of the president.

UNIDENTIFIED FEMALE: I understand that that's your position. But I guess I'm asking you, what about other Article II interests? That's one interest but there are other Article II interests in play here, too, and they seem to be countervailing. The interest in executive vesting, the interest in law enforcement, those are also executive branch interests, and how should that affect the analysis?

SAUER: To the extent the court conducts a balancing our principal positions, you can go back to Marbury versus Madison and adopt a categorical rule, which is also referenced in Nixon against Fitzgerald. But to the extent the court reaches the balancing of policy considerations, those are decisively outweighed by the sort of republic-shattering consequences of subjecting our chief executives in an endless cycle to prosecution once they leave office.

The founders were very much against that. They were deeply concerned with that. You see that in Hamilton's writings in Federalist 65, 69, and 77. You see it reflected in Madison's concern about newfangled and artificial treasons in Federalist 47, and that is the original meaning of the Constitution.

UNIDENTIFIED FEMALE: Do you think we should -- it just occurred to me, do you think we should take any cognizance of the fact that when they wrote that, George Washington was the president? I mean, a very, very strong executive, the Congress was brand new, everything else was brand new, and things have balanced out. I mean, we've got a strong Congress, we've got a strong judiciary and we've got a strong president.

SAUER: I think that if you look at the writings of the founders, they were definitely looking past the presidency of George Washington, obviously an iconic figure looking past the presidency of George Washington future presidencies. And they correctly anticipated that the nation might.

What they're deeply concerned about was that the nation would devolve into factions. Factionalism did not govern the presidency of George Washington because of his moral authority. However, immediately when you got to Adams and Jefferson, you immediately devolved into factions. They correctly anticipated and were deliberately looking past that presidency to the future of the republic, a tradition that stood for 234 years until last year, when it was shattered by the indictment of President Trump. And if the court has no further questions, we would ask the court to reverse. And if the court rules against us in any respect, we renew our request that the court stay its mandate to allow us to seek further review, both en banc and/or Supreme Court review.

UNIDENTIFIED FEMALE: Right. And you give me five minutes. (INAUDIBLE).

SAUER: Thank you, your honor.


JAMES PEARCE, ASSISTANT SPECIAL COUNSEL, U.S. DEPARTMENT OF JUSTICE: Good morning, and may I please the court? Never in our nation's history until this case has a president claimed that immunity from criminal prosecution extends beyond his time in office. The president has a unique constitutional role, but he is not above the law.

Separation of powers principles, constitutional text, history, precedent, and other immunity doctrines all point to the conclusion that a former president enjoys no immunity from criminal prosecution. At a minimum, this case, in which the defendant is alleged to have conspired to overturn the results of a presidential election, is not the place to recognize some novel form of criminal immunity.

Now, I want to start with jurisdiction, as Judge Childs raised. It is our view that the court has and should entertain both claims before it. With respect to the immunity claim, I think this court's decision in Cisneros, ten years after Midland Asphalt, did allude to a type of separation of powers claim that would -- involving presidential immunity. I think Judge Henderson pointed out the Supreme Court itself has acknowledged that this idea of an explicit guarantee is more of a suggestion than some sort of statutory prescription.


UNIDENTIFIED FEMALE: But there's been no cases since then that have actually used that word, suggestion, to follow up on that line of thinking.

PEARCE: Within the Supreme Court, I don't believe there have been cases, but, certainly, this court in Cisneros, as well as in cases also post Midland Asphalt, like Rose, Rostenkowski and Durenberger have recognized that this type of a separation of powers claim when you're talking about immunity is something for which a collateral order, appellate jurisdiction on a collateral order theory is available.

UNIDENTIFIED FEMALE: And there are also other circuits, I think it's first, second, and tenth that keep following that line of thinking with respect to Midland Asphalt that requires an explicit constitutional or statutory language that says you cannot be tried.

PEARCE: So, two responses. One, I think in cases like Cisneros, this court has spoken otherwise. But, nonetheless, I think the only one there is the First Circuit's decision in Joseph, where it was the case of a judge seeking a criminal -- raising an immunity defense to a criminal prosecution.

As this court acknowledged in both, I believe, Rostenkowski and Durenberger, that's in some tension where it didn't acknowledge that. But the court there talked about Clayborne and Hastings, which are Ninth Circuit and 11th Circuit cases.

I think Judge Easterbrook, in his shock opinion, noted that when it deals with a personal immunity like that, it's different than the kind of transactional immunities that were considered in the Tenth and the Second Circuit cases.

And at the end of the day, I think we do -- sort of a small point of common ground between us and the defendant, we do think that with respect to jurisdiction, there is a little bit of a different inquiry with respects to a president. We don't think that carries over to the merits in the least. And I think United States versus Nixon is sort of the perfect example of that.

There, the court said it would be unseemly to hold the president -- to require the president to go into contempt. Nonetheless, reaching the merits, of course, rejected President Nixon's absolute executive privilege claim and required that the --

UNIDENTIFIED FEMALE: You don't see a distinction on the civil versus criminal context, because the cases I'm referring to are civil criminal cases?

PEARCE: So, I don't. And Rose said as much here when talking about civil and criminal with respect to speech or debate. And, again, I mean, I know that I know that Nixon versus Fitzgerald is a civil case and we strongly disagree that it should be applied here for many of the reasons that a judge pan set out. But I do think with respect to the immunity, again, given the language in Rose, that would supply a basis for this court to entertain the immunity claim.

Now --

UNIDENTIFIED FEMALE: But why aren't you taking the position that we should dismiss this appeal because it's interlocutory? Doesn't that advance your interests?

PEARCE: Our interests are twofold. One, as in United States versus Nixon, it is doing justice. And then the second is, indeed, to move promptly to satisfy and vindicate the public's and the defendant's interest in a prompt resolution of this trial.

But doing justice means getting the law right, and it's our view that even if a dismissal on jurisdiction might move this case faster, actually, empirically, that's hard to know, we just don't think that's the right analysis here on either immunity or the second claim.

UNIDENTIFIED FEMALE: So, we have a line of cases, including Kramer versus Gates, an American Hospital Association versus Azar. It says that we can assume hypothetical statutory jurisdiction and reach the merits of a case, statutory jurisdiction being distinct from Article III jurisdiction, which we could never assume because that implicates the power of the court to act.

So, if we had discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent, which suggests that this appeal is interlocutory and does not fall into the collateral order doctrine, how should we determine how to exercise that jurisdiction about whether or not we should reach the merits?

PEARCE: So, I think in the American Hospitals decision, the 2020 decision, the court said some -- the formulation was something like we're doubtful as to our jurisdiction, but, nonetheless, invoking the line of cases you've just described went on to decide the merits.

We would urge the courts to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the measure.

UNIDENTIFIED FEMALE: But doesn't that lead to a hypothetical decision and an advisory opinion?

PEARCE: No. I think that that -- so we disagree --

UNIDENTIFIED FEMALE: The Supreme Court has said that.

PEARCE: No, I don't think the Supreme Court has said that. I mean, the Steel Co. is kind of the leading to the Supreme Court decision and then some courts including this court has devised a hypothetical statutory jurisdiction doctrine.

Now, if this court were dismiss for lack of jurisdiction, and then say, nonetheless, as an alternative holding, here's how we would come out on the merits, that, I think, would be improper and that is what I understand the American oversight brief to be suggesting at footnote 11 on page 20 of its brief.


That, I don't think, is something the court could do.

I understand the hypothetical statutory jurisdiction piece to allow the court to say, you know what, this is hard, there might be arguments on both sides. We think that there is. We assume hypothetical statutory jurisdiction. We move forward. We decide the merits.

Now --

UNIDENTIFIED FEMALE: Let me ask you about Marbury versus Madison. What's your interpretation of its progeny or even the case itself?

PEARCE: So, our interpretation is much closer in line with what I think I heard Judge Pan setting out and similar to yours, it certainly does not erect an unreviewable power for the presidency.

I think sort of the prime example of that is the steel seizure case, the Youngstown case. That was President Truman closing the steel mills. That was the court coming in and reviewing that. We see that all the way through to the present. And so, it's hard to see any world in which the court just says, you know, we can't intervene here.

We do see -- I accept the court's Judge Henderson the distinction between sort of ministerial and discretionary acts. Compliance with the law is not some sort of discretionary call, right? It is something that I fully endorse or agree with the idea of the paradox of a president's, on the one hand, having the Article II take care responsibility and on the other hand, sort of seeing the laws as compliance with the law is optional.

UNIDENTIFIED FEMALE: Let me switch and ask you, how do we write an opinion that would stop the floodgates? Your predecessors in their OLC opinions recognize that criminal liability would be unavoidably political.

PEARCE: So, a couple of responses. For one, of course, that was with respect to a sitting president. I think the analysis is extraordinarily different with respect to a former president, which OLC in that very same -- I'm sorry.

UNIDENTIFIED FEMALE: But with respect to being necessarily political?

PEARCE: Well, I think there is a political process which is impeachment, and we can talk about that, but there is a legal process, which is decidedly not political. And that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to. We're talking about prosecutors who follow strict codes and who are presumed to act with regularity, grand jurors, petit jury eventually, and this court sort of standing -- your Article III court standing above it.

But I also want to push back a little bit against this idea of a floodgate. At least since the Watergate era, 50 years ago, has there been widespread societal recognition, including by presidents and the executive branch, that a former president is subject to criminal prosecution.

And Nixon was not about private conduct. Nixon was about, among other things, using the CIA to try to interfere with an FBI investigation. He then accepts a pardon, understanding that after having resigned. So, again, I think that also undermines this impeachment first argument.

After Nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct. You saw Independent Counsel Lawrence Walsh in the Iran-Contra affair. That's an example that the defendant invokes in his reply brief.

In Chapter 27 of that report, the independent counsel assumes that President Reagan is subject to prosecution and says, but we didn't get there evidentially, like that we thought there was some sort of immunity. And that has continued through to the present.

And so this notion that we're all of a sudden going to see a floodgate, I think, again, the careful investigations in the Clinton era didn't result in any charges. The fact that this investigation did doesn't reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here.

Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. And, frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren't some sort of mechanism by which to reach that criminally.

UNIDENTIFIED FEMALE: In your brief, you raised some sort of lesser immunity potentially.


Do you want to speak to that?

PEARCE: I do. We don't think that comes into play here. I think the point was, in some sort of more challenging cases, it might be that where a president is operating under extraordinary time pressure has to make a very difficult kind of national security type of decision. Do I go in and commit this kind of -- do we order the drone strike under these circumstances? A president will often have a cadre of lawyers to advise him or her. The lawyers say, Madam President, we'll get you a memo in two months. That's not going to be enough in that situation.

If there were a drone strike, civilians were killed, that theoretically could be subject to some sort of prosecution as murder. I think that might be the kind of place in which the court would properly recognize some kind of immunity. But that is, of course, nothing like what we've got here. I sort of take the former officials brief discussing the vesting clause to talk about the kind of the nature of charges when they focus on, again, subverting the electoral process. At a minimum, there should be no type of immunity that covers that.

UNIDENTIFIED FEMALE: So, are you saying it should be a case by case balancing in each case, whether there's immunity, or how does this work as a legal standard?

PEARCE: So, we think that it should just be, as the district court held, a finding -- there is a balancing under Fitzgerald, right? That's our view. You start with this question, what are the burdens against the presidency and what are the interests to be furthered?

I think the answer to that question under Fitzgerald, we think that the burdens that my friend talks about on the other side are overstated. I'm happy to just describe why. We think the public's interest in an ongoing criminal prosecution means that there should be an across the board rule that a former president is indeed subject to criminal prosecution.

What I'm describing in response to Judge Child's questions is, in a particular case, might there be some extraordinary circumstance where a former president could invoke an immunity? Maybe. I don't think the court has to reach that there. I think the court could write an opinion that reserves and says, based on the nature of the allegations, which we take as true, there is no reason to recognize that here.

And so I don't think it needs to be a case by case analysis, but I think the court can reserve that type of question to the extent it gives one pause about a president in future situations.

UNIDENTIFIED FEMALE: Can you answer the question I posed earlier to your opposing counsel about are we to look at the broader question that was dealt with by Judge Chutkan and with respect to presidential immunity, no criminal, absolute immunity for no criminal prosecution of official acts versus looking at this indictment and accepting as true the allegations that it brought there or both?

PEARCE: So, we have a strong preference that the court adopts the former view and looks at the question in the way as the district court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, is there, in fact, immunity for a former president? We think the answer to that is no, for, of course, all of the reasons we put in the brief, and I'm happy to sort of address here.

Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And, frankly, as I think Judge Pan's hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other sides to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. A president sells a pardon, resigns, or is not impeached, not a crime.

I think that is extraordinarily frightening future, and that is the kind of -- we're talking about a balancing and a weighing of the interest, I think that should weigh extraordinarily heavily in the court's consideration.

UNIDENTIFIED FEMALE: Let me ask you about the effect of Blasingame. How does it either bind us? How is it persuasive for us?

PEARCE: So, I think it formally has no application at all because of course very early on in the opinion, the court says, we're not dealing with any questions of immunity in the criminal context.

I tend to agree with my friend on the other side that, in many respects, it does reinforce the nature of the Fitzgerald civil outer perimeter standard. It says you don't look at intent or you don't look at purpose. Context plays a more important role than often the content of communications.

I think that the significant change, of course, is the acknowledgement of the -- looking at a president whether that president is acting in his or her role as office seeker or officeholder.