LISTEN: Justice Jackson questions whether Trump’s case can determine presidential immunity limits

Intro . I think I heard you say that even if we decide here Or something or rule. That's not the rule that you prefer. Um, that is somehow separating out private from official acts and saying that that should apply here. They're sufficient allegations in the indictment in the government's view that fall into the private acts bucket that the case should be allowed to proceed. Correct because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized even if people agree that some are immunized if there are other acts that aren't The case would go forward. That is right. All right, um Going back to the clear statement. Uh, argument. I'm The clear statement argument struggling. With that argument, because my understanding was that When a charged criminal statute is read narrowly in the presidential context to not apply to the president. Um, a constitutional question is being avoided so that you're doing that to avoid having to deal with the constitutional questions. So what is the constitutional question that is being avoided in those kinds of situations? A serious one? This is just an application of this court's ordinary construction of criminal statutes that if there is an available interpretation That would avoid a serious constitutional question. The courts preferences to nature. I guess I'm going at what is what is my understanding is that what is being avoided in that situation is the question of whether a former president, or you know, can be held criminally liable for doing the alleged act that is being asserted in that statute consistent with the Constitution, So we look at the statute its got some elements in it. And we are saying Well, jeez, if this statute and those elements applied to the president's conduct in this situation, we'd have to answer the question. Can the president be held liable consistent with the Constitution for that behavior? Is that right? First step in that analysis. I just want to Yes, yes, but the first step is their ambiguity, and these statutes apply to any person they applied to whoever. There is no ambiguity in those phrases. This court in Arden versus United States concluded that similar words any person yes, government officials. Alright, we'll assume let's just assume that we I guess I'm just trying to get at. We're avoiding a constitutional question. If we do that, in the ordinary case, and what's confusing to me about this case is that we're not being asked to avoid the constitutional question. In fact, The question of whether or not the president can be held liable consistent with the Constitution, Or does he have immunity is the question that's being presented to us, So I don't understand how the clear statement kind of analysis even works. It seems completely tautological to me for us to hold that presidents cannot be prosecuted under any criminal statute without a clear statement from Congress. To avoid the question of whether or not the constitution allows them to be prosecuted. We'd have to have a reason, right? I mean, we'd have to have a rationale for applying the clear statement role. I would have to have some rationale. That's Scalias opinion not evident in either the existing doctrine or the text and just one data point for the court in thinking about How the clear statement. Rule works in the United States versus Sun Diamond Case about gratuities at court is probably familiar with justice. Scalia wrote an opinion for a unanimous court in which he used a hypothetical about what would happen if the president received a sports replica jersey at a typical White House event with that violates section 201 c And the court offered a construction that it had to be for because an official act to avoid that problem. I think if there was such a well received understanding that presidents are not included in general Federal Criminal law unless the president is specifically named which he is not in section 201 Justice Scalia would have thought of that and some member of the court would have reacted. And none did. All Partitioner position right. Let me go on to ask about, um, what you take the petitioners position to be in this case, because we've had a lot of talk about drawing the lines. Justice Kavanaugh Justice. Gorsuch suggested that we should be thinking about blasting game and that within the first week of private versus official and then within official now we have something about core act. Versus other acts as we try to figure out, you know, at what level the president is going to have immunity, But I took the petitioner's argument in this case not to be inviting us to engage in that kind of analysis. I thought he was arguing that all official acts get immunity. And so I didn't Understand us to be, um having to drill down on which official acts do And so my question is. Why isn't it enough? Um, for the purposes of this case, given what the petitioner has argued to just answer the question of whether all official acts get immunity of That that is enough. And if the court answers that question the way Fitzgerald v Nixon that the government has submitted that resolves the case. I want to make a clarification that I may have left the court with some uncertainty about the official act. Analysis that my friend is talking about is the Fitzgerald versus Nixon Outer Perimeter test, which is extremely protective of the president. It's not looking at core versus ancillary. It's saying everything the president does as a target for price. But civil lawsuits That is not a great thing, and therefore they are all cut off. That's an absolute immunity kind of concepts, right? Anything that's official in the outer perimeter is not subject to liability. That is right. Don't have to then go well. Okay, we have the bucket of official. Now. Let's figure out which within that might be subject to liability, Not on the theory of absolute immunity. Correct neither on the Theory of absolute immunity or on our theory and his theory. Everything's protected on our theory. There is no immunity, but this is where I would draw the distinction. There are as applied constitutional challenges that you run through the Youngstown framework and this court's customary method of analysis, and you determine whether there's a infringement of Article two. Blanket immunity So what you're saying is even if we reject the absolute immunity theory, it's not as though the president is, you know, doesn't have the opportunity to make the kinds of arguments That arise as at the level of you know this particular act or this particular statute has a problem in Retrospect, I think I hear you saying we should not be trying to in the abstract set up those boundaries ahead of time as a function of sort of blanket immunity, allow each allegation to be brought and then we would decide in that context. Yes, we with the additional note that petitioner has never made that argument, and I think it would be up to a district court to decide whether To go that route. At this point in the litigation, he's put all of his eggs in the absolute immunity basket. Alright, and if we if we invite, you know if we see the question presented as broader than that, and we do, say, let's engage in the core official versus not core and try to figure out the line. Um, Is this the right vehicle to hammer out that test? I mean, I'd understood that the most, if not all, but most of the allegations here, there's really no plausible argument that they would fall into core versus not such that they are immune. We don't think there are any core Prosecutorial abuse acts that have been alleged in the indictment. That would be off limits as a matter of Article two. So if we were going to do this kind of analysis, try to figure out what the line is. We should probably wait for a vehicle that actually presents it in a way that allows us to test the different sides of the standard that would be creating, right. I don't see any need in this. Case for the court to embark on that analysis. The final sort of set of questions that I have have to do with what I do take as a very legitimate concern about prosecutorial abuse about future presidents being targeted for things that they have done in office. I take that concern. I think it's a real thing, but I wonder Weather. Some of it might also be mitigated by the fact that existing administrations have a self interest in protecting the presidency that they understand that if they go after the former guy soon, they're going to be the former guy, and they will have created precedent that will be problematic. So I wonder if you might comment on whether some of the caution from the Justice Department in the prosecutors and whatnot comes from an under. Standing that they will soon be former presidents as well. I think absolutely, and I would locate this as a structural argument. Executive branch interests That's built into the Constitution itself. The executive branch. I think, as this court nose has executive branch interest that it at times asserts in opposition to Congress so that the proper functioning of the president is protected. And I believe that that value would be operative and is operative in anything as momentous has charging a former president of the crime, and I would also say, I think and ask you to comment on presidents. Are concerned about being investigated, invaded and prosecuted and chills. To some extent there, you know, ability to do what they want in office, and that's a concern on one side. But can can you comment on the concern about having a president unbounded while in office president who knows that he does not have to ultimately follow the law? Because there is really nothing more than, say political accountability in terms of Peach mint. I mean, we have Amicus briefs Hear from Professor Liederman, for example, Who says, you know, the president would not be prohibited by statute from perjuring himself under oath about official matters from corruptly altering, destroying or concealing documents to prevent them from being used in an official proceeding from suborning others to commit perjury from bribing witnesses or public officials, and he goes on and on and on about the things That the president in office with the knowledge that they have no criminal accountability would do I see. That is a concern that is at least equal to the president. Being worried. So worried about criminal prosecution that he you know, is a little bit limited in his ability to function. So can you talk about those competing concerns? So Justice Jackson. I think it would be a sea change to announce conclusion a sweeping rule of immunity that no president has had or has needed. I think we have also had a perfectly functioning system that hasn't seen occasional episodes of presidential misconduct. The Nixon Yura is the parenting Matic one. The indictment in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works and to alter it poses more risks. Thank you. Thank