LISTEN: Jackson asks what stops presidents from committing crimes if they're immune from prosecution

Is the president immune from prosecution So I think I now understand better your position in in your discussions with Justice Kavanaugh became clear that you are saying that for the private acts of a president, there's no immunity but for the official acts, the president, there is immunity. Is that your position? I agree with that. All right, Um So one thing that occurs to me is that this sort of difficult line drawing problem that we're having with all of these hypotheticals. Is this a private act or a public act? Um, is being necessitated by that assumption, because, of course, if official acts didn't get absolute immunity, then it would matter. We wouldn't have to identify which are private and which are public correct. That, in fact, is the approach of the D C circuit. There's no determination that needs to be, but I'm just I'm just making so, to the extent we're worried about, like, how do we figure out whether it's private or public? We have to. We have to understand that we only doing that because of an underlying assumption that the public acts get immunity. So let me explore that exemption. Why is it As a matter of theory, and I'm hoping you can sort of zoom way out here that the president would not be required to follow the law. When he is performing. His official acts, everyone else everyone else. There are lots of folks who have very high powered jobs, who make a lot of consequential decisions. And they do so against the backdrop of potential criminal prosecution. If they should break the law in that capacity, and we understand and we know as a matter of fact that the president United States has the best lawyers in the world. When he is making a decision. He can consult with pretty much anybody as to whether or not this thing is criminal or not. So why Would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law respectfully disagree with that characterization That President absolutely does have responsibility. He absolutely is required to follow the law in all of those official acts. But the remedy for that is the question. Could he be subject of personal vulnerability sent to prison but making a bad decision after he leaves office, but other people who have consequential jobs What is it about the president And who are required to follow the law. Make those determinations against the backdrop of that same kind of risk. So what is it about the president? Um I mean, I've heard you say it's because the president has to be able to act boldly. Do you know make kind of consequential decisions? I mean, sure, But again, there are lots of people who have to make life and death kinds of decisions. And yet they still have to follow the law. And if they don't They could be sent to prison, etcetera, etcetera, so I say two things in response to those from Fitzgerald. That's the very sort of inference or reasoning at this court rejected in Fitzgerald, But let me just Fitzgerald was a civil situation in which the president actually was in a different position than other people. Because of the nature of his job, the high profile nature and the fact that he touches so many different things. When you're talking about private civil liability. You know, anybody on the street can sue him. We could see that the president was sort of different. Than the ordinary person. When you say, should he be immune from civil liability from anybody who wants to sue him? But when we're talking about criminal liability, I don't understand how the president stands in any different position with respect to the need to follow the law as he is doing his job than anyone else. He is required to follow the law and what not if there's no criminal process If there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants all the structural checks that are identified in Fitzgerald and a whole series of Courts cases that go back to Martin against Maat. For example, impeachment oversight by Congress public oversight. There's a long series that Fitzgerald directly addressed this in the civil context, and we think I'm not sure I'm not sure that's that. That's much of a backstop The president being chilled and what I'm I guess more worried about using to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled if someone with those kinds of powers the most powerful person in the world With the greatest amount of authority could go into office, knowing that there would be no potential penalty for committing crimes. I'm trying to understand what the disincentive is from turning the Oval Office into you know that the seat of criminal activity in this country Uh, I don't think there's any allegation of that in this case, and what George Washington said is, Benjamin Franklin said, is we view the prosecution of a chief executive is something that everybody cried out against us Unconstitutional in what George Washington said is we're worried about factional strife, which will also let me let me let me put this worry on the table The risk of emboldened presidents if the potential for criminal liability is taken off the table. Wouldn't there be a significant risk that future presidents would be in bold IND. To commit crimes with abandoned while they're in office? It's right now. The fact that we're having this debate because L. C has said that presidents might be prosecuted. Um presidents from the beginning of time have understood that that's a possibility. That might be what has kept this office from turning into the kind of crime center that I'm envisioning. But once we say no criminal liability, Mr President, you can do whatever you want. I'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. I respectfully disagree with that, because The regime you've described is the regime we've operated under. For 234 years. There has not been an expectation based on 234 years of unbroken political. Let me ask you another question The clear statement that let me ask you another question about this clear statement, um, line of questioning. First of all, I didn't see you argue that below. I don't know. I understand that you had that set of in your briefs here, but Did you argue before the D C circuit something about a clear statement with respect to statutes? Yes, In our separately filed motion for motion's dismissed based on statutory grounds, we extensively argued, not just this clear statement role but a whole panel, But that's not that's not the question Presented. In this The question presented case. The question presented in this case comes out of your motion for immunity. So to bring in now and argument that you didn't raise below. It seems to me you've forfeited it. No. I believe it's fairly included within the question presented, especially especially because the court expanded the question presented from what either the party submitted, but not to statutory interpretation. I mean that that Does immunity exist argument goes to statutory and avoidance. Um, you know, constitutional and avoidance, statutory interpretation. You asked for immunity, which is a totally different thing. I think they're very closely related. Logically, the question is is does immunity exist in to what extent does it And the argument is immunity, at least exists to extent that it raises a grave constitutional question that triggers the clear statement. Rule that's a really tight, totally circular. The clear statement rule You, you, you You use that argument to avoid constitutional questions. You are asking us a constitutional question here. So it doesn't even make sense to talk about clear statement in rule the way that it's come up in the context of an immunity question. But let me just let me ask you this. Um, about it. Uh, one more question. Um Yeah. So what? What is the argument that the president of the United States who you say is bound by the law is not on notice that he has to do his job consistent with the law. To the extent that the clear statement rule comes in at all, it's about the person not being unnoticed. So I guess I don't understand why Congress in every criminal statute would have to say, and the president is included. I thought that was the sort of background understanding that if they're enacting a generally applicable criminal statute, it applies to the president just like everyone else. So So what is the clear statement that would have to be made in this context under Franklin and under Public Citizen Congress has to speak clearly before it interferes with the president's powers. And we have here an indictment that seeks to criminalize objective conduct that falls within the Heartland of Core Executive authority. Thank you