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Trump Immunity Case Heard by Supreme Court; Justice Presses Trump's Lawyer on the Exempt Actions of the President; Supreme Court's Skepticism on Trump's Full Immunity Claim. Aired 10:30-11a ET

Aired April 25, 2024 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

D. JOHN SAUER, ATTORNEY FOR DONALD TRUMP: And we totally agree with the analysis provided by Attorney General Meese and Attorney General Mukasey. And it points to a very important issue here because one of their arguments is of course that, you know, we share this presumption of regularity. That runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who has never nominated by the president or confirmed by the Senate at any time.

So, we agree with that position. We hadn't raised it yet. In this case when this case went up on appeal.

JOHN ROBERTS, U.S. SUPREME COURT CHIEF JUSTICE: Justice Alito.

SAMUEL ALITO, U.S. SUPREME COURT JUSTICE: When you say that the official act should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial. So, is that what you're saying that prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are alleged?

SAUER: Absolutely. And we think that's just the clear implications of Brewster and Johnson in their discussion in this very -- in a very analogous context.

ALITO: Thank you.

ROBERTS: Justice Sotomayor?

SONIA SOTOMAYOR, U.S. SUPREME COURT JUSTICE: I'm a little bit confused by that. If you have a scheme to defraud or a scheme to accept bribery, there's evidence from which you can infer that scheme. And one of it is that the appointment actually happened. It's an official act. You wouldn't expunge that as evidence. You would instruct the jury that there's no liability for the actual appointment, that the liability is for accepting the bribe.

Similarly here, I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department. They're saying, you look at all of the private acts, and you look in the context of some of the public acts, and you can infer the intent, the private intent from them. So, I'm not sure that I understand why your problems couldn't be taken care of at trial with an instruction, if we believe, if the court were to find, I'm not even sure how they could, but if it were to find that some public acts could not be the basis of criminal liability.

SAUER: I think the best thing I can say to that is -- and I think this ties into the Chief Justice's question about a one-legged stool. Brewster and Johnson and subsequent cases like Keltowski versus Meaner essentially say that, that this is a one-legged stool problem. It will be difficult for some of these prosecutions to proceed, and that is the implications of official immunity which is dictated in the constitution here by the Executive Vesting Clause.

ROBERTS: Justice Kagan.

ELENA KAGAN, U.S. SUPREME COURT JUSTICE: I continue on in justice Barrett's vein a little bit and ask you about some of the allegations of the indictment and whether they are official acts or not in your view. So, the defendant signed a verification affirming false election fraud allegations made on his behalf, and a lawsuit filed in his name against the Georgia government -- governor.

SAUER: I don't think we've disputed that that's official -- I'm sorry that that is unofficial.

KAGAN: That that's unofficial. Same for the defendant called the chairwoman of the Republican National Committee, asked her to gather electors in targeted states, falsely represented to her that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the defendant's favor.

SAUER: We have taken the position that that is official.

KAGAN: That's official?

SAUER: Yes.

KAGAN: Why would that be official?

SAUER: Because the organization of alternate slates of electors is for -- based on, for example, the historical example of President Grant is something that was done pursuant to an ancillary and preparatory to the exercise of the core recommendation clause power.

So, when President Trump was --

KAGAN: Couldn't he have taken this action just in the status of a candidate?

SAUER: The fact that he could have done so doesn't demonstrate that he did do so in this case. And based on the allegations, we think it's clear he did not, that this was done in an official capacity.

KAGAN: The defendant asked the Arizona House Speaker to call the legislature into session, to hold a hearing based on their claims of election fraud. SAUER: Absolutely an official act. For the president to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the integrity of a federal election, to communicate with state officials and urge them to view what he views as their job, under state law and federal law, that's an official act.

KAGAN: Well, attempting to defend the integrity of the election, I mean, that's the defense. The allegation is that he was attempting to overthrow an election.

SAUER: Essentially exactly right. And neither allegation of what the purpose is should make a determination -- should make a difference as to whether it's immune. That is extremely strong precedent from this court.

KAGAN: Does it strike you as odd that your understanding of immunity goes way beyond what OLC has ever claimed for the former president?

[10:35:00]

SAUER: I do. The OLC opinions here is strongly supporting us because anytime a congressional statute basically got anywhere near touching the president's prerogatives, they've said, oh, we're going to interpret the statute narrowly to avoid that.

KAGAN: Well, that's a different question. I mean, what OLC has always said is that sitting presidents get immunity, but former presidents, no. Now, there might be a different argument made about whether a statute or whether a statute has applied to particular conduct properly available against the president. But that's a very different argument than the immunity claim that you are making here which OLC has definitively not supported.

SAUER: I don't know if I'd put it that way. I don't recall an opinion directly addressing it, but more fundamentals of us, Your Honor, is in fact the language of cases like Marbury, and statements like -- made by Benjamin Franklin at the constitutional convention. Statements that George Washington talking about the massive risk of factional strife and how that could destroy the Republican, erect a new government on the ruins of public liberty.

That's what we rely on principally here. I cite the OLC opinions visit because of course what you see there is a very strong trend that if there's any statute that might trench in any way on the president's prerogatives, which they adopt -- they interpret it to avoid that.

KAGAN: If a president sells nuclear secrets to a foreign adversary, is that immune?

SAUER: That sounds like similar to the bribery example, likely not immune. Now, if it's structured as an official act, you would have to be impeached and convicted first before --

KAGAN: What does that mean, if it's structured as an official act?

SAUER: Well, I don't know in the hypothetical whether or not that would be an official act. You would probably have to have more details to apply the blazing game analysis or even the Fitzgerald analysis that we have been talking about.

KAGAN: How about if a president orders the military to stage a coup?

SAUER: I think that -- as the Chief Justice pointed out earlier, where there is a whole series of, you know, sort of guidelines against that, so to speak, like the UCMJ for -- prohibits the military from following a plainly unlawful act. If one adopted Justice Alito's test, that would fall outside.

Now, if one adopts, for example, the Fitzgerald test that we advanced, that may well be an official act. And he would have to be, as I'll say in response to all these kinds of hypotheticals, has to be impeached and convicted before it can be criminally prosecuted. But I emphasize to the court --

KAGAN: Well, he's gone. Let's say this president who ordered the military to stage a coup. He's no longer president. He wasn't impeached. He couldn't be impeached. But he ordered the military to stage a coup, and you're saying that's an official act.

SAUER: I think it would depend on --

KAGAN: That's immune?

SAUER: I think it would depend on the circumstances whether it was an official act. If it were an official act, again, he would have to be impeached.

KAGAN: Well, what does that mean depend on the circumstances? He was the president. He is the commander in chief. He talks to his generals all the time. And he told the generals, I don't feel like leaving office. I want to stage a coup. Is that immune?

SAUER: If it's an official act, there needs to be impeachment and conviction beforehand because the framers viewed the writ -- that kind of very low risk --

KAGAN: If it's an official act. Is it an official act?

SAUER: If it's an official act, it's impeachment.

KAGAN: Is it an official act?

SAUER: On the way you've described that hypothetical, it could well be. I just don't know. You'd have -- again, it's a fact specific context, specific determination that's about --

KAGAN: That answer sounds to me as though it's like, yes, under my test, it's an official act, but that sure sounds bad, doesn't it?

SAUER: Well, it certainly sounds very bad, and that's why the framers have a whole series of structural checks that have successfully, for the last 234 years, prevented that very kind of extreme hypothetical. And that is the wisdom of the framers. What they viewed as the risk that needed to be guarded against was not the fact -- the notion that the president might escape, you know, a criminal prosecution for something, you know, sort of very, very unlikely in these unlikely scenarios.

They viewed it much more likely and much more destructive to the Republic, the risk of factional strife discussed by George Washington.

KAGAN: The framers did not put an immunity clause into the constitution. They knew how to. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president.

And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn't the whole point that the president was not a monarch and the [resident was not supposed to be above the law?

SAUER: I would say two things in response to that immunity. They did put an immunity clause and, in a sense, they put in the Executive Vesting Clause, which was originally understood to have -- to adopt a broad immunity principle that set forth in the very broad language of Marbury against Madison.

And also, they did discuss and consider what would be the checks on the presidency and they did not say, oh, we need to have criminal prosecution right there at the constitutional convention. Benjamin Franklin says we don't have that. That's not an option. Everybody cried out against that is unconstitutional.

[10:40:00]

The structural check we're adopting is impeachment. And it's very clear on that in pages 64 to 69 of the second volume of Ferrant (ph).

KAGAN: Thank you.

ROBERTS: Justice Gorsuch.

NEIL GORSUCH, U.S. SUPREME COURT JUSTICE: Just returning to the Chief Justice's hypothetical about the ambassador sale and bribery. Congress has a statute that specifically names the president and says he can be criminally prosecuted for bribery, presumably after he leaves office. Outside the core areas that Justice Kavanaugh was talking about, when Congress speaks clearly, couldn't a statute like that, Congress provide a statute like that, that would allow all manner of evidence to come in to prove the case?

SAUER: I think our position is that would have to be an unofficial act, purely private conduct for that prosecution to go forward.

GORSUCH: All right. But outside the court areas of executive power, if there is a clear statement from Congress that something is unlawful and it applies to the President. I'm struggling to see why, in that case, perhaps, the evidence could come in.

SAUER: Yes, the strongest possible case in our view is what you have described as, kind of, the core executive powers, the unrestrictable powers within the meeting of seal of law. But again, the holding of, for example, Brewster and Johnson that we've relied on doesn't turn on how central it is of a legislative act. It just says, if it's an official act, which here would say is applies basically the outer perimeter tests of Fitzgerald against Nixon. That doesn't come in.

GORSUCH: What would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office, whether it's -- whether they're engaged in drone strike, all the hypotheticals. I'm not going to go through them. It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves. Do you have any thoughts about that?

SAUER: That is -- didn't think of that until, Your Honor, asked it. That is certainly one incentive that might be creative. What we think is most important --

GORSUCH: I mean, we've never answered whether a president can do that.

SAUER: And they're --

GORSUCH: Happily, it's never been presented to us.

SAUER: And if the doctrine of immunity remains in place, that's likely to remain the case for those very issues, as Fitzgerald, I think, very powerfully emphasize. The real concern here is, is there going to be bold and fearless action? Is the president going to have to make a controversial decision, whereas political opponents are going to come after him the minute he leaves office? Is that going to unduly deter? Is that going to dampen the ardor of that president to do what? Our constitutional structure demands of him or her, which is bold and fearless action in the face of controversy.

GORSUCH: And perhaps if he feels he has to, he'll pardon himself every four years from now on.

SAUER: But that, as the court pointed out, wouldn't provide the security because the legality of that is something that's never been addressed.

GORSUCH: Now, one of the checks and balances in addition to impeachment that you have discussed is subordinate liability. you don't contest that everybody following an unlawful order beneath the president of the United States can be immediately prosecuted, do you?

SAUER: I'm sorry. If court is asking whether they could be --

GORSUCH: If a president gives an unlawful order. Call in the troops. All the examples we've heard. Every subordinate beneath him faces criminal prosecution, don't they?

SAUER: That is what Gouverneur Morris said explicitly at the constitutional convention, that his co-agitators could be prosecuted. There is an important caveat, because of course there would have to be a statute that would govern that for them to be prosecuted. GORSUCH: Oh, we've got lots of statutes. And the criminal law books are replete. But I mean, do you agree is that one check that's available?

SAUER: Absolutely. And again, the only caveat that I was making is if that statute was doing what Marbury says you can't do, which is going after the subordinates to restrict, for example, a core executive function. The Franklin clear statement rule might be triggered and you might not be able to go after that president.

So, I don't think Congress can say, well, we can't go after the president directly, but we're going to criminalize the way that the president speaks to Congress under the exercise of the recommendations clause. And therefore, we're going to put in a criminal statute that says, if you provide false information to Congress in carrying out the President's recommendation powers, you can be immediately prosecuted. That will at least be a very difficult question.

But the fundamental point of drawing that distinction between the President himself and his co-agitators in the word of Gouverneur Morris in the constitutional convention is an excellent distinction.

ROBERTS: Justice Kavanaugh.

BRETT KAVANAUGH, U.S. SUPREME COURT JUSTICE: Just to follow up on the OLC opinions question. As you read them, and I think I read them, they articulate a clear statement rule as to this court's cases for covering official acts. And your point, I think, but I just want to underscore this is that none of the statutes alleged here or cited here have a clear statement covering the president.

[10:45:00]

Therefore, meaning that the president can't be charged for any official acts under this -- under these statutes.

SAUER: That's absolutely correct. They're extended way beyond. I mean, this is a --

KAVANAUGH: Now, that's separate from the question of what's official versus what's personal. But for that bucket that is official, there's no clear statement, period.

SAUER: That's right. And as to purely private conduct, we don't think that clear statement rule would be invoked. But as to official acts, these statutes, the ones charging the indictment are just way far afield from purporting to criminalize in clear terms the president's official acts.

KAVANAUGH: And then just to clarify this, the president's not above the law. The president's not a king. The founders thought that, I think your point in response to that is the president is subject to prosecution for all personal acts just like every other American for personal acts. The question is, acts taken in an official capacity.

SAUER: That's correct. And even those, of course, if there was impeachment conviction could be prosecuted on our view. And we'd emphasize the whole series of structural checks. In addition to that, which deter those kind -- and have successfully deterred presidential misfeasance for 234 years.

KAVANAUGH: Then on the source of immunity, it's not explicit in the constitution, but also executive privilege is not explicit in the constitution. Yet in United States versus Nixon, the court unanimously said that the article to executive power in the constitution encompassed executive privilege, and the same principle presumably would apply to executive immunity being encompassed within that executive power is historically understood.

SAUER: That's absolutely correct. And there's a very telling passage in Free Enterprise Fund, where this court talked about, how there's a letter from James Madison to Thomas Jefferson at the time of the founding where Madison said, hey, the -- as of the removal power, they did not expressly take this away. So, the 1789 Congress understood that it was left in place.

So, if the original understanding of the Executive Vesting Clause is broad enough to encompass that, it would have to be expressly taken away, which is the opposite of the presumption that they were advancing here.

KAVANAUGH: And then lastly, I think you've acknowledged in response to others questions that some of the acts in the indictment are private, and your view is that some are official. Is it your position then that that analysis of which is which should be undertaken in the first instance by the D.C. Circuit or the District Court?

SAUER: Most likely the District Court under the logic of Anderson.

KAVANAUGH: Thank you.

ROBERTS: Justice Barrett?

AMY CONEY BARRETT, U.S. SUPREME COURT JUSTICE: So, Mr. Sauer, you've argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right?

SAUER: Yes, I think that's the plain meaning of that second phrase in the clause.

BARRETT: OK. So, there are many other people who are subject to impeachment, including the nine sitting on this bench. And I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So, why is the president different when the impeachment clause doesn't say so.

SAUER: Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork which is reaffirmed in the OLC opinions on this, where the -- where Solicitor General Bork in 1973, as to the issue of the vice president, reviewed the historical materials and he said, the sequence is mandatory only as to the president. That is DOJ's view of the original understanding of the Impeachment Judgment Clause, which is exactly our position. The sequence is mandatory only as to the president. Keep in mind that the criminal prosecution of a president prior to impeachment contradicts, in our view, the plain language of the constitution, but also hundreds of years of history, and what DOJ admits is the framers' intent.

And so, we say that that practice, whatever its validity, should not be extended at this novel context where it clashes with the constitutional structure.

BARRETT: What if the criminal conduct isn't discovered until after the president is out of office? So, there was no opportunity for impeachment.

SAUER: We say the framers assumed the risk that of under enforcement by adopting these very structural checks. As Justice Scalia said in Morrison against Olson, the separation of power is -- prevents us from righting every wrong. But it does so that we do not lose liberty.

BARRETT: OK. And the special counsel makes a point that I think is a pretty compelling one. You admit that if the president were successfully impeached, that he could be criminally prosecuted after impeachment, right?

SAUER: Yes, assuming the prosecution was for the same conduct of which he was convicted, not impeached. He must be convicted. That word conviction is right there in the clause.

BARRETT: OK. Granted. But you also say that these criminal statutes, unless they explicitly mentioned the president don't apply to him. So, how can you say that he would be subject to prosecution after impeachment, while at the same time saying that he's exempt from these criminal statutes?

SAUER: Well, there are statutes, as they concede, where president -- Congress has purported --

BARRETT: A few, two or three.

SAUER: They haven't done a comprehensive review. I think it looks like all they did was text search for president in 18 U.S. code.

[10:50:00]

Again, under Franklin, that's a very telling indication that the word president is not in the statute isn't necessarily a magic word requirement, so to speak. But more fundamentally than that, more fundamentally than that, they can see there are statutes that exist. In addition to that, much impeachment could occur as a result of private conduct.

So, the Impeachment Judgment Clause does do significant work by authorizing the subsequent prosecution of a President there, because what the framers, if you look at whether discussing in the thing is -- in the constitutional convention is principally concerns about private conduct, which of course we can see they're not immune.

BARRETT: OK. So, just to pick up Justice Kagan's example of a president who orders a coup. Let's imagine that he is impeached and convicted for ordering that coup. And let's just accept, for the sake of argument, your position that that was official conduct. You're saying that he couldn't be prosecuted for that even after conviction and impeachment proceeding if there was not a statute that expressly referenced the president and made it criminal for the president.

SAUER: There would have to be a statute that made a clear statement that Congress purported to regulate the president's conduct.

BARRETT: OK. Thank you.

ROBERTS: Justice Jackson.

KETANJI BROWN JACKSON, U.S. SUPREME COURT ASSOCIATE JUSTICE: So, I think I now understand better your position 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?

SAUER: I agree with that.

JACKSON: All right. 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 is being necessitated by that assumption. Because, of course, if official acts didn't get absolute immunity, then it wouldn't matter. We wouldn't have to identify which are private and which are public, correct?

SAUER: That in fact is the approach of the D.C. Circuit. There's no determination that needs to be made --

JACKSON: Right, 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 understand that we're only doing that because of an underlying assumption that the public acts get immunity.

So, let me explore that assumption. 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.

SAUER: I respectfully disagree with that characterization. The president absolutely does have responsibility. He absolutely is required to follow the law in all of his official acts. But the remedy for that is the question, could he be subject to personal vulnerability, sent to prison but making a bad decision after he leaves office?

JACKSON: But other people who have consequential jobs 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 -- 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, et cetera, et cetera. So --

SAUER: I say two things in response to that.

JACKSON: Yes.

SAUER: Both from Fitzgerald, that's the very, sort of, inference or reasoning that this court rejected in Fitzgerald.

JACKSON: No, 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's doing his job than anyone else.

SAUER: He is required to follow the law. And what Fitzgerald said is that --

JACKSON: But he's not if there's no criminal -- if there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants?

[10:55:00]

SAUER: All the structural checks that are identified in Fitzgerald and a whole series of this court's cases that go back to Martin against Mott. For example, impeachment, oversight by Congress, public oversight. There's a long series that Fitzgerald directly addresses this in the civil context. And we've been --

JACKSON: Well, I'm not sure --

SAUER: -- in that language, naturally reports -- JACKSON: -- I'm not sure that that's much of a backstop. And what I'm

-- I guess, more worried about, you seem 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, the seat of criminal activity in this country.

SAUER: I don't think there's any allegation of that. In this case, and what George Washington said is -- what Benjamin Franklin said, as we view the prosecution of a chief executive is something that everybody cried out against is unconstitutional. And what George Washington said is, we're worried about factional strife which will --

JACKSON: No, I'm also -- let me --

SAUER: -- ruin the public --

JACKSON: -- let me put this worry on the table. If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office?

It's right now the fact that we're having this debate because OLC has said that presidents might be prosecuted. 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.

SAUER: I respectfully disagree with that because it -- 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 --

JACKSON: All right. Let me ask you another question --

SAUER: 00 legal conviction that might occur.

JACKSON: Let me ask you another question about this clear statement line of questioning. First of all, I didn't see you argue that below. I don't know -- I understand that you've -- have that set of in your briefs here, but did you argue before the D.C. Circuit something about a clear statement with respect to statute?

SAUER: Yes, in our separately filed motion for -- motion dismissed based on statutory grounds, we extensively argued not just this clear statement rule, but a whole panel with the other --

JACKSON: Right, but that's not the question presented in this case. The question presented in this case comes out of your motion for immunity. So, to bring in now an argument that you didn't raise below, it seems to me you forfeited it, no?

SAUER: I believe it's fairly included within the question presented especially --

JACKSON: Why?

SAUER: Especially because the court expanded the question presented from what either the parties submitted to statutory --

JACKSON: But not to statutory interpretation. I mean, that argument goes to statutory avoidance, you know, constitutional avoidance, statutory interpretation. You asked for immunity, which is a totally different thing.

SAUER: I think they are very closely related, logically. The question is, does immunity exist and to what extent does it? And the argument is, immunity at least exists to the extent that it raises a grave constitutional question that triggers the clear statement rule. That's a really tight logical --

JACKSON: But that's totally circular. You -- we -- you used 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 and rule the way that it's come up in the context of an immunity question. But let me just -- let me ask you this, about it. I have one more question. Yes.

So, 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? I mean, to the extent the clear statement rule comes in at all, it's about the person not being on notice.

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, what is the clear statement that would have to be made in this context?

SAUER: 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.

JACKSON: Thank you.

ROBERTS: Thank you, Counsel.

Mr. Dreeben.

MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL JACK SMITH: Mr. Chief Justice, and may it please the court. This court has never recognized absolute criminal immunity for any public official. Petitioner, however, claims that a former president has permanent criminal immunity for his official acts.

[11:00:00]