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Fed Judges Hear Critical Arguments on Presidential Immunity; Interview with Selendy Gay Elsberg Partner Temidayo Aganga-Williams. Aired 10:30-11a ET

Aired January 09, 2024 - 10:30   ET



JAMES PEARCE, ASSISTANT SPECIAL COUNSEL, U.S. DEPARTMENT OF JUSTICE: But again, to go back to my response to Judge Childs' question, although that would change the nature of whether certain -- may change the nature of whether certain things are or are not official acts in the indictment, we just think that's entirely the wrong paradigm to use. We think under Fitzgerald -- in fact, that would be inconsistent with Fitzgerald's reasoning and also just irreconcilable with the nature of how criminal law works.

I mean, to say that we're not going to take account of motive or intent, there are plenty of acts that in -- that every day. I mean, for example, if I were to encourage someone not to testify at trial because I wanted to go on a hike with that person, it's not a crime. But if I would encourage someone not to go on a hike because their testimony and trial -- sorry. Encourage them to skip their trial testimony because they were -- their testimony was going to incriminate me, it's the same underlying act.

And now, when you map that on to the criminal -- to the presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic or a business rival, that would seem to then be exempt potentially from criminal prosecution. We certainly wouldn't concede that if that's the world we need to live in. I think we would advance plenty of arguments below, but we really -- but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.

J. MICHELLE CHILDS, JUDGE, U.S. COURT OF APPEALS: But looking and thinking about your answer about potentially not looking at motive and intent. When there is a criminal prosecution that mens rea and that intent is part of the actual statute charged criminally.

PEARCE: Yes, precisely. And that's why it wouldn't make sense to then come in and use this nonmotive intent. As I understand how Fitzgerald outer perimeter standard might work, it could say those types of official acts, official conduct of that is something from which the president is immune, you don't ever get to that second question of well, did that person act then with mens rea out. Can we prove it beyond unreasonable doubt? Because it is at least under a theory where it's not available at trial, then there's no way to reach that conduct. CHILDS: When we're looking at this indictment, though, back to Judge Henderson's question about the use of blasting (ph) game. Some of the acts are same or similar, and there was direct discussion of it in that opinion as determining whether it was office seeker versus office holder. So, do we use blasting (ph) game, at least for that?

PEARCE: So, if this court decides the case, the way the district court does -- did, pardon me, then I don't think blasting (ph) game has any role to play at all, because there is no question of whether, you know, was this act official or were these sets of allegations official?

The question is based on a Fitzgerald analysis and, you know, history precedent, et cetera, you know, is there any quantum of immunity for a former president? We think the answer to that question is no. There is no reason, as the district court also found, to turn to the indictment and consider this outer perimeter, this civil outer perimeter standard.

KAREN HENDERSON, JUDGE: How about if you don't decide it the way the district court did?

PEARCE: If you don't -- I mean, I suppose a lot would --

HENDERSON: I mean, on the blasting game portion.

PEARCE: So, there are a lot of different ways this court could not decide it that way. I think -- to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter. And that, I think, is enough to affirm. I think either parties are urging the court at that point to then send, of course, the case back to the district court. I think that then would create a series of challenging questions that I mentioned earlier. What are the evidentiary theories under which that evidence could potentially come in?

And -- but it would be our strong view, and we would want, if the court follow that route, which we urge the court not to, to make clear that immunity is an on-off switch, right? This is the immunity appeal. If the court says we affirm, we send it back, there's no immunity. Then other things become evidentiary questions or questions really up jury instructions which any appeal is then an appeal from a final judgment if any final judgment.

HENDERSON: And the immunity defense is never lost.

PEARCE: Well, I don't think it's immunity at that point. I think this court will, in what I've just described, will have said there is no immunity. There may be some types of other challenges as evidence comes in a trial. But again, I think that would lead to this extraordinarily complicated litigation that is not the top line reason but certainly among the reasons why the court should not go down that path.

FLORENCE Y. PAN, JUDGE: Since President Trump concedes that a president can be criminally prosecuted under some circumstances.


He says that that is true only if he is first impeached and convicted by Congress. Do you agree that this appeal largely boils down to whether he's correct in his interpretation of the impeachment judgment clause? That is, if he's correct, that the impeachment judgment clause includes this impeachment first rule, then he wins. And if he's wrong, if we think the impeachment judgment clause does not contain an impeachment first rule, then he loses.

PEARCE: So, I think that's basically right. I mean, the defendant's theory over the course of this litigation has evolved a bit. And I think now, before this court, I understand the arguments to be principally -- sort of the principal submission to be as you've just described. This -- what we call in our brief, the condition precedent argument that there is only liability, criminal liability for a former president if that president has been impeached and convicted.

And that is wrong for textual, structural, historical reasons, and a host of practical ones. One of which I'll start with, again, just to just amplify the point, it would mean that if a former president engages in assassination selling pardons, these kinds of things, and then isn't impeached and convicted, there is no accountability for that individual, and that is frightening.

Now, to go back to some of the textual and historical and structural, you know, my friend on the other side sort of suggests this is what the founders were talking about and this is what they were worried about. I think that's entirely an inaccurate representation of the founding era history.

There's basically no discussion of the impeachment judgment clause, which I take the defendant's principled textual arguments to be. What the impeachment judgment clause did was two things, as the district court described, right? It constrained the sanctions that Congress could place on an impeached and convicted officer, not only a president, any kind of officer to removal or disqualification. And then it made clear that that impeachment did not impose some sort of preclusive bar on subsequent criminal prosecution.

You would think that if there was this kind of impeachment first requirement, impeachment and conviction first, you might actually find something somewhere in the sources the framing -- the convention in Philadelphia, the ratification discussions, early history, there is nothing of that.

We've cited certain things in our brief from James Wilson, from Edmund Pendleton, from Representative Dana that say this, just a story. I don't hear the defendant to offer anything other than -- well, Hamilton. All that Hamilton was describing was the undisputed point here that a sitting president can't be subject to criminal prosecution. Until that sitting president is no longer in office, whether the removal from office is through impeachment and conviction, or simply the end of the term. Now, a structural point as well that I just want to quickly make, the district court made this which is if this rule were right, that would put -- if the condition precedent rule were correct, it would pose significant separation of powers problem of its own. It would basically mean that the executive branch would only be able to prosecute someone if Congress had acted. And there are all sorts of reasons why, of course, Congress won't act. For one, they've never believed that it was required. And also, in certain instances they may decide that they don't have jurisdiction. Many of the members of Congress seem to hold that view with respect to the defendant's second impeachment.


PEARCE: Thank you very much.

HENDERSON: Yes, go ahead.

Thank you, Your Honor. In my limited time remaining, I just want to make three points to the court in response to the opposing counsel's argument there. One is that the opposing counsel used the phrase above the law. Saying that an immunity doctrine for criminal immunity would place the president above the law. I would just direct the court's attention to what the Supreme Court said at Nixon against Fitzgerald in the context of civil immunity.

D. JOHN SAUER, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: They describe the allegation that immunity sets the official above the law as, "Rhetorically chilling, but wholly unjustified." The U.S. Constitution, the separation of powers, the Executive Vesting Clause, the Impeachment judgment clause, these are the foundational and fundamental law of our country, and the President's immunity is determined on that. So that is more rhetoric than reality, is what the Supreme Court said in Nixon against Fitzgerald.

I'd also point out that when it comes to the question of whether or not the indictment alleges solely official acts, the indictment does not allege that President Trump did anything wrong after he left office. So, it focuses solely on acts that he took while he was in office, and that's a telling indication that we're dealing with official acts here.


And then finally, I would address, Judge Henderson, to your question about the floodgates and I tie that to what my opposing counsel said about a so-called frightening future. The frightening future that he alleges where presidents are very, very seldom if ever prosecuted because they have to be impeached and convicted first is the one we've lived under for the last 235 years. That's not a frightening future. That's our Republic.

What he is forecasting is a situation where the floodgates will be open. We are in a situation where we have the prosecution of the chief political opponent who's winning in every poll -- eventual election upcoming next year and is being prosecuted by the administration that he's seeking to replace. That is the frightening future. That is tailor made to launch cycles of recrimination that will shake our republic for the future.

CHILDS: If you have the impeachment judgment clause, as you indicate, indicate impeachment, then conviction, but then the president either resigns, is removed, and then later on is prosecuted for a different crime. Can that happen, or is there immunity?

SAUER: I'm not sure I understand the hypothetical. Could you say it again? I apologize.

CHILDS: Just indicating that if you're resting on that there must be impeachment and conviction, and it's for one set of crimes. But then later on, the president either removes -- is removed from office or resigns. And later on, there's a prosecution for something different. Is there immunity for that later crime?

SAUER: Yes, I -- that's the better reason. Obviously, it's not presented in this case because we have a close match between the conduct, the underlying conduct or transaction occurrence that's alleged in the articles of impeachment of which there was an acquittal. An acquittal, right? Which is the strongest case for double jeopardy and between the facts alleged in the indictment. But if there were like, unrelated prosecution --

CHILDS: Just answer the question because you just made a statement about, he's only being prosecuted for crimes while in office. And so, that's why I'm asking about leaving office and then thereafter being prosecuted for something different.

SAUER: To be on the plain text of the constitution, the best reading would be, he has to be impeached and convicted for the thing that he subsequently prosecuted. So, if he were impeached, convicted, and removed from office, and they charge him with another official act, that was unrelated to the impeachment. I think that what Chief Justice Marshall says and Marbury would still govern. I think that's obviously it's not presented in this case. The court doesn't have to decide it, but that would be my answer.

PAN: So, I just want to confirm, your position is if President Trump had been convicted after his impeachment trial on incitement of insurrection, if he'd been convicted, then this prosecution would be entirely proper.

SAUER: Which I would say that if he were impeached and convicted for the same and similar conduct, then that would authorize a subsequent prosecution which we had many --

PAN: So, then --

SAUER: -- other issues with this prosecution. So, I don't --

PAN: Is that a, yes? Because I think you said in your brief that that impeachment for incitement of insurrection is based on the same or related conduct as that, which is in the indictment. You said that.

SAUER: Yes. Yes. Yes, I agree with that.

PAN: So, if he had been convicted by the Senate then this prosecution would be entirely proper, correct?

SAUER: But not phrase it that way because there's lots of other problems with this prosecution that we've raised in extensive place in the district court.

PAN: Under the --

SAUER: He could be prosecuted --

PAN: Under the impeachment judgment clause, if he had been convicted by the Senate when he was impeached for incitement of insurrection on same or related conduct, as what's in the indictment, then this prosecution would be properly brought.

SAUER: There's a prosecution that could be properly brought. This prosecution which has tons of other problems. I just want to be very clear about that. I'm not making any concession that this prosecution is --

PAN: All right. Let me try one more time. Under your interpretation of the Impeachment judgment clause, if President Trump had been convicted when he was previously impeached on same or related conduct, as that which is in this indictment, the government could properly prosecute him for that same or related conduct. Yes or no?

SAUER: Potentially, provided they qualified with all kinds of other legal doctrines that are violated in this case. So, I admit that a prosecution --

PAN: I'm only asking you under your interpretation of the impeachment judgment clause. Is that proper? Is that allowed?

SAUER: And I stand on my prior answer, I think we would agree --

PAN: I understand there might be other reasons why you would challenge this prosecution. I'm saying, based on your interpretation of the clause, this prosecution would be properly brought.

SAUER: If a -- yes, I would not say this prosecution would be very clear about that.

PAN: But it's a prosecution based on same or related conduct.

SAUER: This prosecution which has many other issues related to it, what I would say is that the impeachment adjustment judgment clause authorizes the prosecution of a president who's been impeached and convicted by the Senate which President Trump was not --

PAN: All right. Let's make it a hypothetical. Say a president was impeached and convicted on a charge of incitement of insurrection that is under the same allegations as a criminal indictment he's convicted, then the government could bring a prosecution for the same or related conduct, correct? [10:45:00]

SAUER: I don't disagree with that.



PAN: And then that means that the conduct, that same or related, even if it's official, they -- he could be prosecuted for it, correct?


PAN: Correct. OK. Thank you.

CHILDS: But my question goes to after the fact, and the reason I state that even though you're challenging that these actions are only occurring while president, the district court decision was that there is no presidential immunity from prosecution for official acts. It doesn't put a time frame in there. And so, that's why I'm going to be on your investigation. Your prosecution might not come until later after the president has left office. So, are you telling us that we are limited to a time frame in answering this question?

SAUER: I think the time frame is set forth by Chief Justice Marshall against Marbury, Madison when he says never examinable by the courts. So, unless there is that one gatekeeping incident that has to occur, which is impeachment and conviction, the official acts of the court has no jurisdiction to review them under the separation of powers and the executive vesting courts.

CHILDS: But that also assumes that an impeachment proceeding occur, if there is not one, because we discussed earlier that not all officials go through that process.

SAUER: Absolutely.

CHILDS: That's a judgment call as to whether that process would even be brought.

SAUER: I would say we have two arguments that reinforce each other. So, if there's no impeachment ever and no conviction, then the official acts are immune. Period. Now, further, the Impeachment judgment clause incorporates a doctrine of, you know, a doctrine of double jeopardy that prohibits this -- especially in the case of acquittal. So, those are reinforcing doctrines that are set forth in the constitution.

If there are no further questions, we'd ask the court to reverse it.

CHILDS: OK. Thank you.

LAURA COATES, CNN SENIOR LEGAL ANALYST, FORMER FEDERAL PROSECUTOR, AND SIRIUSXM HOST, "THE LAURA COATES SHOW": You know what we are now hearing, we've heard for a better part of over an hour now, Kaitlan. We've been hearing from the appellate court in a very consequential case today involving the big question, whether a president of the United States, a former president, will experience immunity for what they did while they were in office.

We went through a whole lot of very interesting points. A very major concession that was made almost at the beginning of the entire discussion was that the counsel for Donald Trump's legal team, D. John Sauer, said that a president could be prosecuted under certain circumstances. It was not a case of absolute immunity. But here was the big condition for everyone at home, that if a president were impeached, and if that president were convicted, that would be one of the singular ways for a president to then be criminally prosecuted. That's a huge if.

KAITLAN COLLINS, CNN ANCHOR, THE SOURCE AND CNN CHIEF CORRESPONDENT: I mean -- but also putting that, you know, in a way is that they also argued that a sitting president could order his political opponents to be killed, to be murdered, and they could not be prosecuted for that unless they were impeached and convicted by the Senate.

I mean, Elie, I wonder what you made of just the questioning from that three-judge panel to Trump's attorney in a really fascinating back and forth?

COATES: I think we have that clip too at one point. Well, go ahead.

ELIE HONIG, CNN SENIOR LEGAL ANALYST, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NY, AND FORMER FEDERAL AND NEW JERSEY STATE PROSECUTOR: There was a real twist that just happened here. I mean, Donald Trump's team changed their argument from their original brief. In fact, DOJ's lawyer said politely, he said, their argument has evolved.

What Donald Trump's team did just now was they made it harder on themselves than they needed to. I'll quote what a different federal judge once said to me, "You've climbed out on a limb you need not have climbed out on, and now you're in the process of sawing it out from under yourself." Because now they've taken this sort of awkward, difficult to reconcile with reality view that the only way they've argued that a president or a former president can be criminally prosecuted is if he's already been impeached and convicted by the Senate.

And that leads to bizarre scenarios, like Kaitlan, the one you pointed out where they said, well, what if a president did something like order the assassination of a political rival --

COATES: Let's play that clip --

HONIG: -- but was not impeached.

COATES: Let's play it because it's so -- it's such a poignant moment that Judge Florence Pan asked of this very court. She had a litany of things including selling military secrets, selling pardons, and ending with this huge hypothetical. Listen to this.

(BEGIN VIDEO CLIP) PAN: Could a president order SEAL Team 6 to assassinate a political rival? That's an official act, an order to SEAL Team 6.

SAUER: He would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution.

PAN: 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 our constitution mission and the plain language of the impeachment judgment clause, all clearly presuppose that what the founders were concerned about was not --

PAN: I asked you a 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 --

PAN: So, your answer is --

SAUER: Is --

PAN: -- no?

SAUER: My answer is qualified, yes.


COATES: I mean, I'm -- we all -- at that point, we all in the room kind of sat back for a second. Because first of all, to make a concession of any kind, it's major. But when you hear that, trying to go through the hypotheticals, trying to follow that thread of common sense and logic, what struck you about that moment where he essentially has a qualified guess that a president could actually order an assassination and if he's not impeached or convicted, immune?

TEMIDAYO AGANGA-WILLIAMS, PARTNER, SELENDY GAY ELSBERG: I think he's really making the arguing for Jack Smith. This is exactly what Jack Smith has been worrying about, that are we a country of presidents or a country of kings? And I think what Trump's lawyer effectively argues that we are a country of kings. That the president can act as he wants, as he chooses, whether it be violence. You know, we had violence on January 6th, but he's saying the president can take it a lot further. The president himself can direct that violence openly, using official government resources and that's fine.

I think what it does, it establishes how dangerous this presidential immunity argument truly is. And to your point, Elie, you know, we could -- had the -- kind of, the original argument that spoke about the so-called outer perimeter, which is saying, hey, I was just doing my job and to protect me and to protect institution, I should be given some coverage. The same way presidents get civil immunity. What they've done is say, let's go further. That the president, even when he effectively is not upholding and basically executing the laws, in that scenario, he's still covered. When he's breaking the law, he's still covered. That no one gets to sit in judgment over a president, and I think that danger was seen by the court today.

COLLINS: Well, and there was skepticism, a lot of it, from which we expected, though, from the judges but I think in a real way. I mean, Judge Henderson who is the senior judge out of these three, the Republican -- who was appointed by Republican presidents, said at one point, 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 law.

But what Judge Pan also noted is that that is not the understanding that that senators have, because when Trump was actually impeached and then it went to the Senate, a lot of them, including Senator Mitch McConnell, said this is something for the courts to take care of. This is something that he -- should be handled in a criminal prosecution or that could be handled in that way.

HONIG: Yes, that's a great point. There's obviously two very different talking points. The problem with the argument that Trump's lawyers just staked out there has to be an impeachment and a conviction before there could be a prosecution is it leads to absurd results that cannot be the way this works. We all know impeachment is entirely different. A judgment about whether to impeach could be political. It could be based on any number of factors. That is just a different ballgame altogether than a decision whether to prosecute and eventually convict somebody.

And the thing I keep coming back to is, they had an easier way. Trump's team had an easier way. They briefed a better way. They just made the traditional argument of what he's charged with doing here was within the scope, within the outer perimeter of his job as president. And if they stuck to that, I still think they probably would have had a losing argument, but they wouldn't have had a preposterous argument, and I think they would have had a stronger case to make.

COATES: Well, first of all -- I mean, just think about this. What that would suggest, as long as I can hide my behavior, long enough to be in office and avoid impeachment, I can get away with anything I want. All I have to do is not have transparency or eyes into what I'm doing because the only way to have an impeachment is if one, I know about your behavior, right?

If the House is going to bring the impeachment articles. If then we'll actually have the actual moment to conduct an actual trial. So, all I got to do, if I'm the president of the United States is just bide my time. That's part of that argument. But there was a moment here, too, when the council -- I mean, the special counsel from DOJ, spoke about this issue.

But I want to go back for a second to the lawyer for Trump, because in this sound bite here, he talks about the idea that the notion for criminal immunity not existing is a shocking holding. They are standing tall and saying, look, there has got to be some level of immunity because they're talking about President Biden and other people. Listen to this.


SAUER: 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?


COATES: That's the political question that Trump was raising and we were -- we played that clip earlier about the threat, so to speak, and what would happen next? That's the heart of the matter. If you open this sort of Pandora's box, politically, Trump will suggest, well, then everyone is fair game.


COLLINS: But the argument that James Pearce made, and as a rebuttal to that was, if you can't -- if you do go by what the prosecution or what the defendants or the -- Trump's attorneys are saying that, then it would open up presidents to being able to commit a whole host of criminal acts and to get away with it.

AGANGA-WILLIAMS: Yes, exactly. Both sides have this slippery slope argument that they're putting forward. But I think -- you know, an important argument from the Jack Smith side, speaking about history here, there's a whole lot of talk of what's happened in the past and the example of President Nixon, right? President Nixon engaged in his conduct, and what did he do? He accepted a pardon, right? He talked about -- we have special -- we have the Iran contract investigation, right? We have -- and Ronald Reagan, no one there thought that he could not be prosecuted.

So, I think the slippery slope argument. I think there's something there on both sides. But importantly, that is the nature of all prosecutions. We've both been prosecutors. For a system to work effectively, you have to have prosecutors that are acting with a sense of justice, that are using discretion appropriately. And that is true in every scenario for everyday Americans and for former presidents.

So, that faith in our system, we have to have that for our system to make sense no matter who the defendant is. So, I don't think it's an especially strong argument to say someone could abuse this. We have courts that will review indictments. We have standards of -- burdens of proof of reasonable doubt, you have to do a trial. So, we have other fail safes that's not just -- you know, a rogue prosecutor can go after a former president without any recourse. So, I do think Jack Smith's side had the better of the argument there when it comes to the slippery slopes. COATES: There was this huge moment -- and I mean, maybe some people might have lost it because when I hear the words ministerial or discretionary, I was probably like, just say what everyone's thinking, official or unofficial acts. Whether a president can do it or they can't do it.

That's important because the crux of this matter is going to come down to whether his actions around January 6th leading up to it were officially presidential actions. They were talking about it in the form of ministerial versus discretionary. And they talked about this thing called the Take Care Clause, which essentially says the president has the duty to ensure that the laws of this nation are executed and enforced.

But this idea, Elie, of whether what he's doing is official or rogue in some way, plays very big in this case and could end up back before Judge Chutkan.

HONIG: Right, it could end up back before Judge Chutkan or it could end up before the United States Supreme Court as well. And that's what it looked like the argument was going to be is, was Donald Trump's conduct around January 6th within the scope of his job or outside the scope of his job. Now, I think the argument that it's outside is laid out in the indictment. This is not what presidents do.

Donald Trump's team actually puts on a pretty spirited case in their brief saying, well, what was he doing? He was speaking with members of Congress. He was speaking with election officials. He was using his powers under that take care clause, which is a very broad power of the president to make sure that laws are properly enforced. Therefore, he was within his job as president. And if this case goes up to the Supreme Court, I think they're going to be looking at that question.

COLLINS: I mean, and what they both made clear today, Trump's attorneys and the attorneys from Jack Smith's team, is they want this court to decide the merits of this case. They don't want that to be delayed until later. A lot more to break down from what we just listened to. An incredibly fascinating argument. Elie and Tim are going to stay with us. We'll be back in just a moment.

We are continuing to look at what we just heard from these three judges, including that remarkable argument from Trump's team that presidents cannot be prosecuted unless they have first been impeached and then convicted on Capitol Hill. More on those legal arguments. We're going to take a quick break, we'll be back in a moment.