DC Circuit Court of Appeals Oral Argument: U.S. v. Trump
Speaker 2 (00:12):Mr. Sauer, good morning. Before you get started, can I just get a couple of things on the record? Our jurisdiction was challenged by an amicus, but from your reply brief, you are not questioning our collateral order jurisdiction.
Mr. Sauer (00:35):Correct. We defend the collateral order jurisdiction. That’s correct, Your Honor.
Speaker 2 (00:35):Then also you have either abandoned or not made the Fifth Amendment double jeopardy argument before us.
Mr. Sauer (00:46):
We have framed the double jeopardy argument as arising principally from the impeachment judgment clause. So we haven’t argued that if you go straight to the double jeopardy clause, that that alone would result in reversal, focusing on the impeachment judgment clause. Now that incorporates principles of double jeopardy, but we haven’t said a straightforward directly under the double jeopardy clause in this court at this time.
Speaker 2 (01:05):
Go ahead then.
Speaker 3 (01:06):
Well, before that occurs then I do want to speak to you a little bit more about jurisdiction, because we still have to satisfy ourselves that we have the jurisdiction. So even though you believe that there’s interlocutory jurisdiction with respect to the collateral order doctrine, how do you place that in line with Midland Asphalt case, which specifically says in a criminal case your jurisdiction needs to stem from the Constitution or be explicit as well in statutory law?
Mr. Sauer (01:38):
We have three responses to that, if I may, Your Honor. One is of course that if you look at the language of Midland Asphalt, what Justice Scalia is discussing in that case is particularly right, a situation where the right is one, the legal and practical value of which would be destroyed if it were not violated before trial. These claims of absolute immunity fall right in the heartland of that description of that right. That’s been reinforced by the Supreme Court.
Speaker 3 (02:02):But how do you deal with explicitly stating that because we don’t have an explicit communication here with respect to anything in the Constitution or statute?
Mr. Sauer (02:11):
Yeah, I respectfully disagree with that. The doctrine of presidential immunity arises directly from article two, section one, in the executive vesting clause, and it’s reinforced by the plain language of the impeachment judgment clause, which specifically refers to trial. Remember what Midland Asphalt is talking about is situation where the right not to be tried is at stake and it distinguishes that from the right, the remedy for which is a dismissal of an indictment. So when you’re talking about the right not to be tried, we have the clearest and most explicit reference to trial of any of the clauses in which the Supreme Court has found interlocutory jurisdiction.
Speaker 3 (02:41):But there have been other circuits that have indicated on the issue of immunity, Midland Asphalt still applies.
Mr. Sauer (02:48):Yeah, not presidential immunity with respect this court.
Speaker 3 (02:50):That’s what you’re making your distinction.
Mr. Sauer (02:51):
Right. Well, what I would say is this court’s decision in Cisneros explicitly says right there, and it says most separation of powers claims may not be subject to interlocutory view, but there are some that may. Then it goes on to say presidential immunity arising from the separation of powers citing Clinton against Jones. So Cisneros, I think expressly contemplates that there’d be interlocutory jurisdiction in this sort of claim. That’s further reinforced by the court’s subsequent decisions in Rose and Rostenkowski situations where the court said, look, there’s a speech and debate claim and there’s also another claim that, it isn’t derived directly from the Constitution, but it’s closely akin or analogous to such a claim.
Speaker 3 (03:30):
Again about explicit, because in the double jeopardy trial scenario, you have twice put in jeopardy, so you cannot be tried again in that regard. Then in the speech and debate it says, shall not be questioned. So the language was explicit. You’re not giving me anything that says explicitly in the references that you cite.
Mr. Sauer (03:51):I have two responses to that. One is the plain language of the impeachment judgment, Columbus, which says that only the party convicted shall be subject to indictment, trial, judgment and punishment according to law, so right there-
Speaker 3 (04:00):But that doesn’t take the negative inference correct?
Mr. Sauer (04:03):
The plain language supports that we agreed from the very beginning that it is the natural and ordinary meaning, the impeachment judgment clause. So that is an argument that that is explicit. Also point out that this court in rose, in Rostenkowski, in Cisneros expressly held this is not a magic words requirement. In other words, it isn’t that it’s got to say right there in the text of the Constitution or a statute that this is a right not to be tried. It’s that the right once formulated has to explicitly include the right not to be tried. That’s why what actually the language that’s previously in Midland Asphalt is heavily emphasized by Justice Scalia is the situation where there’s interlocutory appeal and it’s a right, the legal and practical value of which is destroyed if it’s not vindicated before trial. There’s similar language in Cisneros. I’d also point out that the government also has not challenged the court’s jurisdiction. It has conceded.
Speaker 3 (04:57):We have to be absolutely secured in our own jurisdiction.
Mr. Sauer (04:57):Yeah.
Speaker 2 (04:57):Has the Supreme Court itself referred to the Midland Asphalt as a suggestion?
Mr. Sauer (05:03):Yeah, I’m not aware of that, but I think-
Speaker 2 (05:04):In digital equipment.
Mr. Sauer (05:06):
Gotcha. Yes, Your Honor. I believe Your Honor is correct about that. I think that’s an excellent point and that’s reinforced by this court’s case law in Cisneros, Rose and Rostenkowski. Turning to the merits, if I may, Your Honor, 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 US citizens located abroad? Could President-
Speaker 1 (05:50):
Can I explore the implications of what you’re arguing? I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president, even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?
Mr. Sauer (06:10):
With an important exception, which is that if the president is impeached and convicted by the United States Senate in a proceeding that reflects widespread political consensus, that would authorize the prosecution under the plain language of the judgment clause. So yes, with that exception.
Speaker 1 (06:25):
So, it seems to me that there are a lot of things that might not go through that process because it’s quite a cumbersome process that requires the action of a whole branch of government that has a lot of different people involved. So in your view, could a president sell pardons or sell military secrets? Those are official acts, right? It’s an official act to grant a pardon. It’s an official act to communicate with the foreign government. Such a president would not be subject to criminal prosecution?
Mr. Sauer (07:00):
The sale of pardons example is an excellent example because there were allegations about a sale of a pardon essentially when it came to President Clinton’s pardon of Mark Rich. The US DOJ carefully considered, for the very reasons we’ve emphasized in our brief, decided not to prosecute President Clinton with that because it raised concerns about whether or not a president can be prosecuted for his official acts. There’s actually an op-ed in the National Review from Andrew McCarthy.
Speaker 1 (07:22):But your position is that he can’t be prosecuted for that unless he’s impeached.
Mr. Sauer (07:26):
Yes, as long as it’s an official act. Certain cases purely private conduct under Clinton against Jones, he’d be subject to prosecution for that so long as he’s not in office. But as long as it’s an official act-
Speaker 1 (07:35):
Could a president order SEAL Team Six to assassinate a political rival? That’s an official act in order to SEAL Team Six.
Mr. Sauer (07:43):He would have to be and would speedily be impeached and convicted before the criminal prosecution.
Speaker 1 (07:49):But if weren’t, there would be no criminal prosecution, no criminal liability for that?
Mr. Sauer (07:54):Chief Justice’s opinion in Marbury against Madison, and our Constitutional convention, and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not-
Speaker 1 (08:06):I asked you a yes or no question, could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?
Mr. Sauer (08:19):If he were impeached and convicted first?
Speaker 1 (08:21):So your answer is no.
Mr. Sauer (08:24):
My answer is qualified yes. There’s a political process that have to occur under the structure of our constitution, which would require impeachment and conviction by the Senate. In these exceptional cases, as the OLC memo itself points out from the Department of Justice, you’d expect a speedy impeachment and conviction. But what the founders are much more worried about than using criminal prosecution to discipline presidents was what James Madison calls in Federalist number 47, the newfangled and artificial treasons. They were much more concerned about the abuse of the criminal process for political purposes to disable the presidency from factions and political opponents. Of course, that’s exactly what we see in this case.
Speaker 1 (08:59):
I’ve asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts, and have asked you, would such a president be subject to criminal prosecution if he’s not impeached or convicted. And your answer, your yes or no answer, is no.
Mr. Sauer (09:19):I believe I said qualified yes if he’s impeached or convicted first.
Speaker 1 (09:24):Okay, so he’s not impeached or convicted. Let’s put that aside. You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team Six to assassinate a political rival.
Mr. Sauer (09:36):Sale of military secrets strikes me as something that might not be held to be an official act. The sale of pardons is something that’s come up historically and was not prosecuted.
Speaker 1 (09:43):But your brief says that communicating with an executive branch agency is an official act and communicating with a foreign government is an official act. That’s what presidents do.
Mr. Sauer (09:53):Those are very strange attempts at potential official acts. If you could, Chief Justice Marshall said in Marbury against Madison, he said arising directly under article two section one, that the president’s official acts are “never examinable by the courts”. He says it like four different times on pages 164 to 166.
Speaker 1 (10:13):Let me ask you about that then, counsel, because your position is, as I understand it, if a president is impeached and convicted by Congress, then he is subject to criminal prosecution. Correct?
Mr. Sauer (10:30):That would be a necessary [inaudible 00:10:33] to enable prosecution.
Speaker 1 (10:34):Is that a yes?
Mr. Sauer (10:35):Yes.
Speaker 1 (10:36):Okay. So therefore he’s not completely an absolutely immune because under the procedure that you concede he can be prosecuted if there’s an impeachment and conviction by the Senate.
Mr. Sauer (10:51):Very, very formidable structural check against the astonishing radical action of prosecuting a former president’s official acts.
Speaker 1 (10:57):Correct. But you’re conceding that presidents can be criminally prosecuted under certain circumstances.
Mr. Sauer (11:03):Specifically if they’re impeached or convicted. I think that’s the command of the impeachment judgment clause.
Speaker 1 (11:08):Isn’t that also a concession that a president can be criminally prosecuted for an official act because presidents can be impeached for official acts?
Mr. Sauer (11:19):Under those unique circumstances.
Speaker 1 (11:20):
Correct. But given that you’re conceding that presidents can be criminally prosecuted under certain circumstances, doesn’t that narrow the issues before us to can a president be prosecuted without first being impeached and convicted? All of your other arguments seem to fall away, your separation of powers arguments fall away, your policy arguments fall away if you concede that a president can be criminally prosecuted under some circumstances.
Mr. Sauer (11:54):I disagree with that. The Constitution and the article two, section one of the executive vesting clause, as interpreted very clearly by Chief Justice Marshall in Marbury against Madison, says article three, courts lack of jurisdiction to engage in examination of the president’s official acts. That’s been reaffirmed-
Speaker 1 (12:09):You just conceded that that article III Courts can do so if he’s been impeached and convicted.
Mr. Sauer (12:14):
The constitution makes a carefully balanced, explicit exception to that principle in the impeachment judgment clause. So, the problem for the separation of powers, the Constitution does this in many other situations where it engages in a balancing. What the framers were most concerned about was not the notion that the president would never be prosecuted for things that outrageous political opponents. What they were concerned about was politically motivated prosecutions, but they didn’t say the president can never be prosecuted. They set up the separation of powers and they created a very narrow exception that would allow prosecution in those cases.
Speaker 1 (12:45):But once you concede that there’s not this absolute immunity, that the judiciary can hear criminal prosecutions under any circumstances, you’re saying there’s one specific circumstance, then that means that there isn’t this absolute immunity that you claim.
Mr. Sauer (13:03):I’m not aware of any case or constitutional doctrine that would say the Constitution sets up a very strong principle and it creates a very narrow exception and therefore the exception just makes the principle vanish. I just disagree with-
Speaker 1 (13:15):
That’s not what I’m asking you. I’m saying that you are coming before us and saying that there is this absolute immunity, that it’s grounded in the separation of powers, that the judiciary can never sit in judgment on what the president is doing. But you are conceding that that’s not true because under some circumstances the judiciary can do that. That’s all I’m saying.
Mr. Sauer (13:38):I think that [inaudible 00:13:40], which is there’s a very strong principle in the separation of powers that pivots all three courts from sitting in judgment over a presidential official acts. There’s a very narrow exception for conviction after impeachment.
Speaker 1 (13:50):I understand. I understand-
Mr. Sauer (13:51):That’s the position.
Speaker 1 (13:52):
It just seems to me that once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away and the issues before us are narrowed to, are you correct in your interpretation of the impeachment judgment clause? Does the impeachment judgment clause actually say what you say it says? That’s all that really we need to decide.
Mr. Sauer (14:18):
I respectfully disagree with that. I respectfully disagree with that. There is a strong principle, it’s reinforced by Chief Justice Marshall in Marbury against Madison. He did not say, we can never sit in judgment over a president’s official acts, but because it could be again impeached and convicted, therefore we can do it whenever we want to. He said the exact opposite. He says they are never examinable by the courts.
Speaker 3 (14:36):So are we answering the larger question about whether there’s presidential immunity from criminal prosecution for official acts, or are we looking to a standard on a motion to dismiss, which says, look to the allegations, take those as true, and then look to whether or not we should be looking at official acts in that lens?
Mr. Sauer (14:55):
Actually, Both. Threshold question based on the district court judgment is essentially there’s no such thing as criminal immunity for a former president, and therefore the district court never reached the second issue, which is if you actually look at the face of the indictment, are these all official acts? We have strong arguments on both of those things. The notion that criminal immunity for a president doesn’t exist is a shocking holding. It would authorize, for example, the indictment of President Biden in the Western district of Texas after he leaves office for mismanaging the border allegedly, and let a Texas jury and Texas judge sit in judgment over the validity of the tax respect to court.
Speaker 3 (15:29):But it’s also indicated earlier that when there were pardons or when people were not prosecuted, not everybody goes through an impeachment proceeding before they actually get prosecuted because that’s within the discretion of the prosecutor.
Mr. Sauer (15:39):
Only for subordinate officers. So as the OLC memo points out very clearly, the founders, the framers actually in the Constitutional convention, clearly contemplated that that sequence that I’ve described would be mandatory. He would have to be impeached and convicted first before you could go on to-
Speaker 3 (15:55):But impeachment also only deals with certain crimes, bribery, treason, high crimes and misdemeanors.
Mr. Sauer (16:01):
Yeah. If you look actually at what is said in the Federalist number 65 by Hamilton about that, high crimes and misdemeanors basically cover anything that the US Senate makes a political judgment justifies removing him from office and authorizing prosecution.
Speaker 3 (16:15):But a prosecutor is impartial. Does not make political judgments, assumingly, to charge.
Mr. Sauer (16:20):I think that that has no basis in the context of the current prosecution where the current incumbent of presidency is prosecuting his number one political opponent and his greatest electoral threat in this particular case.
Speaker 3 (16:32):
I’m asking you from the standpoint of what the impeachment judgment clause is designed to do, that it limits itself to certain facts. Then therefore, and if convicted as you indicated, impeached and convicted thereafter, could be a prosecution. But not everybody goes through that process. Of course, it’s limited to the certain actors in that regard, but not everybody has to go through that process. Prosecutors later on can come into information and evidence after they’ve investigated to make their determinations about what they’d like to criminally prosecute. So, you’re not always confined to whatever would be in the impeachment judgment clause.
Mr. Sauer (17:10):
Whatever the practice has been with respect to subordinate officers, the evidence from the founding generation is clear is you cannot do that with respect to the president. This is one example of many that’s reinforced in the Supreme Court’s case law, the uniqueness of the presidency and the person who occupies the office of the presidency. So for example, you get repeated statements in Nixon against Fitzgerald, it’s reaffirmed in Trump against Mazars, reaffirmed in Trump against Vance and so forth about the unique nature of that particular office. Therefore it’s-
Speaker 3 (17:35):Even under Clinton where there’s a deal cut under President Nixon where there’s a pardon given, there’s an assumption that you could be prosecuted because why enter into those particular acts.
Mr. Sauer (17:48):
Those examples are Purely private conduct. For example, Clinton gets Jones makes very clear that the stuff that President Clinton cut an indictment deal about by admitting to certain wrongdoing in exchange for not being indicted was purely private conduct. Nobody has contended that the president’s immune for prosecution for purely private conduct. It’s a question is can he be indicted for official acts. You referred to the pardon of President Nixon. We have two things to say about that. President Nixon was accused of a wide range of purely private conduct and he was facing potential indictment for that at the time the pardon was issued.
Speaker 3 (18:19):Back to purely private conduct, if we go to the indictment, they’re alleging that this is private conduct, is subject to fraud, not official acts. So why don’t you speak to that since you said that we have to look at the broader question as well as the indictment.
Mr. Sauer (18:34):
Yes, Your Honor. So the allegations of the indictment allege only official acts. The only way to even characterize them as private acts is to turn to the alleged motive or purpose for that. So their whole theory, their characterization of the language and the indictment is we’re alleging purely private conduct because it was engaged in for particular purposes. That’s foreclosed by a very long and strong line of Supreme Court presences-
Speaker 3 (18:58):Does the [inaudible 00:18:59] case fit here that we, this circuit distinguish office seeker versus office holder in terms of how you’re committing the acts.
Mr. Sauer (19:07):
This Blassingame strongly reinforces what has been said in Supreme Court cases, in Stump against Sparkman, going back to, for example, Marbury against Madison where it’s the nature of the act itself. I understand the Blassingame opinion to reinforce that by saying it’s an objective, they use the word objective multiple times, objective context specific assessment.
(19:25)
It does not turn on the purpose or motive that was strongly pushed in Blassingame and this court properly rejected. That’s consistent with Nixon against Fitzgerald, Bradley against Fisher, Spalding against Vilas, Judge Han’s opinion in Gregg [inaudible 00:19:37]. I mean it’s the strongest principle of all in this context.
Speaker 3 (19:41):
[inaudible 00:19:41] concern to my colleagues because I’ve taken up your time, but we’ll give you what you need. With respect to the actual indictment, it does not gloss over what … and put it in terms as you’re describing. So if we look at the face of the indictment as to what’s charged, when it’s gone through a grand jury process, unlike the impeachment judgment clause, how do we look at those particular acts as described because we have to take those at face value?
Mr. Sauer (20:08):
There’s clear guidance on this from Nixon against Fitzgerald where Nixon against Fitzgerald, the allegation was President Nixon had unlawfully terminated a whistleblower essentially. And that whistleblower came into court and says, this is not subject to immunity because it was unlawful. And the court said, we’re not looking at that granular level of detail and we’re not considering most importantly the alleged motive for these acts.
(20:29)
It said that the level of specificity to consider it is conducting the business of the Air Force. Similar here, if you look at the indictment, there’s five classes of conduct that are alleged, many of which are just obviously, obviously official conduct, meeting with the US Department of Justice about who should be the cabinet level officer running that is at the court land of the appointments power.
Speaker 3 (20:48):You said, many of which. So not-
Mr. Sauer (20:50):
Really all of which. I mean our condition’s all versus there’s one exception because there’s allegations about the Ellipse speech and under Blassingame the contention was made that he should be remanded for that. But if you look at the other public standards, for example, President Trump’s tweets, the second circuit held at Knight First Amendment center, that it was based on overwhelming evidence.
(21:07)
That’s an official channel. His Twitter account during the presidency was an official channel of government communication and under the objective test and Blassingame, all of those tweets are obviously immune. So also with meetings with the Department of Justice, meeting with members of Congress, that falls right within the heartland of article two, section three, which authorized the president to communicate with Congress about the matters that he views as expedient.
Speaker 2 (21:28):Let me ask you, first of all, I don’t believe you were counsel then, but what about the two concessions made in the first impeachment proceeding and then in Trump v. Vance that impeachment should be stated and wait until he’s out of office when he would be subject to criminal liability.
Mr. Sauer (21:55):As to Trump against Vance was purely private conduct that involved a subpoena, criminal subpoena for tax records that long predated President Trump’s time in office. So it was purely private conduct, a concession that he could be subject to prosecution is also correct.
(22:08)
As for the impeachment brief for example, that they’ve cited in their briefs, what that says is we have a judicial process in this country, period. We have an investigative process in this country to which no former officer is immune. It did not say that it could never be raised in immunity defense. It said criminal process can go forward.
Speaker 1 (22:25):I’m sorry, there’s a quote in the congressional record in which your counsel, I’m sorry, your client said, “Through counsel, no former office holder is immune from investigation and prosecution.”
Mr. Sauer (22:35):Investigation is what … there’s no immune to. Well, that may be true of subordinate officers, but as to the principal officer, the president, he is immune unless he is impeached and convicted. Again, it comes back to the point we made-
Speaker 1 (22:47):He was president at the time and his position was that no former office holder is immune. And in fact the argument was there’s no need to vote for impeachment because we have this backstop which is criminal prosecution and it seems that many senators relied on that voting to acquit.
Mr. Sauer (23:07):[inaudible 00:23:07] relies on speculation. I think [inaudible 00:23:10] statement. And I think the court I think lacks the ability to intuit what motivated senators votes in the impeachment process. What the Constitution says is it must be impeachment-
Speaker 1 (23:21):I think the question that Judge Henderson is asking you was, you took the position or your client did during the impeachment proceedings that there would be an option for criminal prosecution later and it’s in the congressional record. And I guess the question is what has changed or why have you changed your position?
Mr. Sauer (23:39):
I would agree with that characterization of the statements in the congressional record, I believe there was a distinction between the judicial process and the investigative process. That was in the quote that I just read. In addition to that, whatever concession may or may not have been made, there would not have a ratio to counter effect in this proceeding.
(23:54)
These are very different proceedings. And again, the notion that no one is immune from the judicial process and the judicial process should go forward is fully consistent with the notion that defenses including presidential immunity, which again is rooted in the separation of powers, could be raised in those processes. So the notion that there could be a criminal process and then defenses like this could be raised in that process is I think pretty straightforward.
(24:18)
There’s no concession that there’s no such thing as criminal immunity. There’s no concession in those proceedings that what the district court in this case did that can very kind of [inaudible 00:24:26] that no president is criminally immune from prosecution is just, I think it’s not there in the congressional record.
Speaker 2 (24:35):
Let me go back to Marbury versus Madison and you isolated that one sentence. Isn’t it true that the progeny of Marbury versus Madison has distinguished between discretionary official acts and ministerial by which they mean imposed by law? And it’s the latter one in which he can be held liable and I want you to address both USB Johnson and the Commonwealth of Virginia because the first one deals with the speech and debate clause and the Supreme Court said in essence, lop off all of the evidence dealing with the speech and debate.
(25:25)He can still be prosecuted. That is that congressman or I think it was conspiracy to defraud the US or something, and then in the Commonwealth of Virginia you had the judge who had been charged with a crime under which you could not discriminate in picking jurors based on rape.
(25:52)
My reading of that case is that the language that you isolate in your reply brief that it could just as easily be done, that is the choosing of the jury, a ministerial act by someone on the street, to me that means when you have a duty that is imposed by law, picking a jury they said was ministerial imposed by law, whether you are the man on the street, whether you’re the president, whether in that case you’re the judge, you can be held criminally liable.
(26:29)And that’s how I read, if not Marbury, the progeny that is you can’t stop an official act. You have to say was it discretionary official act or was it a ministerial.
Mr. Sauer (26:44):
I agree with that characterization of Marbury. I think that distinction is President Marbury itself, and I think what I respond to that is to say first of all that extension has never been extended up to the president and for good reason because for over 200 years the courts probably can’t sit in judgment over the president’s official acts under any circumstances. So for example, Mississippi against Johnson-
Speaker 2 (27:03):No. We don’t have any criminal [inaudible 00:27:07].
Mr. Sauer (27:06):
That’s correct. It’s never arisen until this case. That is absolutely correct, but if you look at every civil context, what they’ve said … Keep in mind that what Chief Justice Marshall says is never examinable, never examinable. So there would be no judicial proceeding where you could say the president did this and we’re going to sit in judgment directly over that.
(27:23)
That’s reinforced by Mississippi against Johnson, by Swan against Clinton from this court more recently where the courts hold that we can’t even enjoin or even really enter a declaratory judgment directly against the president for his official acts. Whereas the distinction between ministerial and discretionary has been held totally with respect to subordinate officers and that goes all the way back to Marbury.
(27:45)
However, if you look at the indictment in this case, nothing that’s alleged against President Trump could remotely be described as ministerial. I’m not aware the government has ever argued that if you’re talking about responding to widespread allegations of fraud, abuse and misfeasance in a presidential election, trying to find how to respond to that in the manner 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 the president, so to speak, it wouldn’t save the indictment here.
Speaker 2 (28:12):Why isn’t it ministerial and his constitutional duty to take care that the laws be faithfully executed requires him to follow those laws, every one of them?
Mr. Sauer (28:25):
Yeah. 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 emphasize is there’s a separate statute. The Secretary of State had these two hats on.
(28:45)
He was on one hand a direct agent of the president in that could never be examined by the courts. On the other hand, the original statute had opposed all these purely ministerial duties that had to do with 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.
(29:12)I mean, the notion that when the president’s meeting with 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.
Speaker 2 (29:25):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.
Mr. Sauer (30:01):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 exampled by courts, that naturally includes a criminal proceeding.
Speaker 2 (30:09):
But I thought you agreed with me that we’ve gotten beyond Marbury in the sense that official act 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 liable and that’s in the face at least with respect to the legislators of an explicit constitutional privilege.
Mr. Sauer (30:44):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?
(30:57)And so it draws a distinction between legislative and non-GI legislative acts. So also I think that’s the right reading of ex parte Virginia. They go on to say judicial act in there. The argument that picking a jury, I don’t even believe they use the word to my recollection, ministerial, they say-
Speaker 2 (31:11):Because they were criminal acts, they were criminal acts. 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.
Mr. Sauer (31:29):
[inaudible 00:31:30] would say that the distinction in those cases is between, in the judicial case, Johnson, 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 acts. That phrase is used in here. The distinction is between presidential acts and non-presidential acts, and everything that’s alleged in the indictment is a presidential act. Your Honor, I see … Go ahead.
Speaker 1 (31:59):
May I? There are a number of precedents or cases in which the Supreme Court has reviewed actions by the president, the seminal 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 sees certain vessels.
(32:26)Trump versus Hawaii was reviewing President Trump’s order restricting the entry into the United States of nationalists from certain foreign countries. How does that square with your position, that judiciary can never review executive action?
Mr. Sauer (32:41):
All those cases fall squarely within the well-established exception and ex parte Young where the judiciary is allowed and does frequently issue declaratory judgments, injunctions, judgments against subordinate officers. Even when they-
Speaker 1 (32:55):These are presidents. These are presidents. Harry Truman was the president when he seized the steel mill. How does that comport with your theory?
Mr. Sauer (33:02):
[inaudible 00:33:02] in that case was an injunction against the Secretary of Congress, 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 Udall against Roberts that the court can’t even enter a declarative junction.
Speaker 1 (33:17):The court can review presidential action if on paper they direct their judgment to a subordinate officer. Is that what you’re saying? And because these are presidential actions.
Mr. Sauer (33:27):The court can definitely enjoin the actions of subordinate officers that violate the constitution that is ex parte Young. All the cases fall within-
Speaker 1 (33:34):I understand 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 00:33:46].
Mr. Sauer (33:48):In direct context, they can’t directly sit in judgment over over the president’s official acts. It’s been established for over 200 years.
Speaker 3 (33:54):
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.
Mr. Sauer (34:21):
The impeachment judgment clause does distinguish between those sorts of merits related acquittals and not merits related acquittals. Frankly, the same sort of thing comes up in just criminal prosecutions under the double jeopardy clause where a determination that the defendant is acquitted does not necessarily reflect an actual determination that they’re not factually guilty.
(34:41)
And in fact, this is emphasized in the OLC memo that they themselves address that actually 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.
Speaker 3 (34:56):And one of the briefs indicated that Jack Smith is improperly appointed. Do you have a position there?
Mr. Sauer (35:02):
It’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.
Speaker 2 (35:10):Let me ask you just about the effect of Blassingame. 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 Blassingame characterized it in terms of office seeker versus office holder.
(35:37)What is your position about, would we have to remand it for 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?
Mr. Sauer (36:08):I used the phrase from Clinton against Jones, which says, purely private conduct is what can be 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 be dismissed.
(36:24)We acknowledge though that the district court didn’t reach that issue, but Blassingame did remand and the court absolutely has the 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.
Speaker 2 (36:38):To the specific acts?
Mr. Sauer (36:40):
Correct, yeah. 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, or else hold factual findings and so forth to decide how it applies the conduct alleged in this case, we acknowledge that that would be … the court has the discretion to do that, and that would be a natural course. And if there are no further questions.
Speaker 1 (37:00):
I have one more question. So under the framework established in or 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 decisions without being inhibited by the fear of criminal prosecution.
(37:38)
But it seems to me that there are some other article two interests here that are countervailing. For example, under article two, 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 and 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.
Mr. Sauer (38:39):
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 are 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 too.
Speaker 1 (39:13):
No, 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?
Mr. Sauer (39:35):
No, to the extent the court conducts a balancing of principal positions, she 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 treason in Federalist 47, and that is the original meaning of the Constitution.
Speaker 2 (40:17):
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.
Mr. Sauer (40:48):
I think that if you look at the writings, 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 devolve 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.
(41:25)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 end bank and/or Supreme Court review.
Speaker 2 (41:40):Right. And you get that five minutes [inaudible 00:41:41].
Mr. Sauer (41:41):Thank you, your Honor.