Speaker 2 (41:42):Okay. Mr. Pierce?
Speaker 4 (41:49):
Good morning, and may it please the court. Never in our nation’s history until this case as a president claimed that immunity from criminal prosecution extends beyond his timed office. The president has a unique constitutional role, but he is not above the law. Separation of power’s principles, constitutional text, history, precedent, and other immunity doctrines all points to the conclusion that a former president enjoys no immunity from criminal prosecution. At a minimum, this case, in which the defendant is alleged to have conspired to overturn the results of a presidential election, is not the place to recognize some novel form of criminal immunity.
(42:33)
Now I want to start with jurisdiction as Judge Childs raised. It is our view that the court has and should entertain both claims before it. With respect to the immunity claim, I think this court’s decision in Cisneros 10 years after Midland Asphalt did allude to a type of separation of powers claim that would involving presidential immunity. I think Judge Henderson pointed out the Supreme Court itself has acknowledged that this idea of an explicit guarantee is more of a suggestion than some sort of statutory prescription.
Speaker 3 (43:09):But there’s been no cases since then that have actually used that word suggestion, to follow up on that line of. Thank you.
Speaker 4 (43:17):
Within the Supreme Court, I don’t believe there have been cases, but certainly this court in Cisneros as well as in cases also post Midland Asphalt like Rose, Rostenkowski, and Durenberger have recognized that this type of a separation of powers claim when you’re talking about immunity is something for which a appellate jurisdiction on a collateral order theory is available.
Speaker 3 (43:39):And there are also other circuits, I think it’s 1st, 2nd, and 10th that keep following that line of thinking with respect to Midlands Asphalt requires an explicit constitutional or statutory language that says you cannot be tried.
Speaker 4 (43:54):
So two responses. One, I think in cases like Cincinnati, this court has spoken otherwise. But nonetheless, I think the only one there is the 1st Circuit’s decision in Joseph where it was the case of a judge raising an immunity defense to a criminal prosecution. As this court acknowledged in both, I believe, Rostenkowski and Durenberger, that’s in some tension with… Or it didn’t acknowledge that, but the court there talked about Clayborne and Hastings, which are 9th Circuit and 11th Circuit cases. I think Judge Easterbrook in his shock opinion noted that when it deals with a personal immunity like that, it’s different than the kind of transactional immunities that were considered in the 10th and the 2nd Circuit cases.
(44:37)
And at the end of the day, sort of a small point of common ground between us and the defendant, we do think that with respect to jurisdiction, there is a little bit of a different inquiry with respect to a president. We don’t think that carries over to the merits in the least. And I think United States versus Nixon is sort of the perfect example of that. There, the court said it would be unseemly to hold the president, to require the president to go into contempt. Nonetheless, reaching the merits of course rejected President Nixon’s absolute executive privilege claim and required that-
Speaker 3 (45:10):You don’t see a distinction on the civil versus criminal context? Because the cases I’m referring to are criminal cases.
Speaker 4 (45:16):
So I don’t. Rose said as much here when talking about civil and criminal with respect to speech or debate. And again, I mean, I know this Nixon versus Fitzgerald is a civil case, and we strongly disagree that it should be applied here for many of the reasons that Judge Pan set out. But I do think with respect to the immunity, again given the language in Rose, that would supply basis for this court to entertain the immunity claim.
Speaker 1 (45:42):But why aren’t you taking the position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?
Speaker 4 (45:51):
Our interests are twofold. One as in United States versus Nixon, it is doing justice. And then a second is indeed to move promptly to satisfy and vindicate the public’s and the defendant’s interest in a prompt resolution of this trial. But doing justice means getting the law right. And it’s our view that even if a dismissal on jurisdiction might move this case faster, actually empirically that’s hard to know, we just don’t think that’s the right analysis here on either immunity or the second claim.
Speaker 1 (46:20):
So we have a line of cases including Kramer versus Gates, and American Hospital Association versus Azar. It says that we can assume hypothetical statutory jurisdiction and reach the merits of a case. Statutory jurisdiction being distinct from Article III jurisdiction, which we could never assume because that implicates the power of the court to act. So if we had discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent, which suggests that this appeal is interlocutory and does not fall into the collateral order doctrine, how should we determine how to exercise that jurisdiction about whether or not we should reach the merits?
Speaker 4 (47:10):
So I think in the American Hospital’s Decision, the 2020 decision, the court said the formulation was something like, “We’re doubtful as to our jurisdiction,” but nonetheless invoking the line of cases you’ve just described went on to decide the merits. We would urge the courts to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the merit.
Speaker 2 (47:38):But doesn’t that lead to a hypothetical decision and an advisory opinion?
Speaker 4 (47:42):No, I think that… So we disagree-
Speaker 2 (47:44):But the Supreme Court has said that.
Speaker 4 (47:45):
No, I don’t think the Supreme Court has said that. I mean, so Steel Co. is kind of the leading supreme court decision and then some courts, including this court, has devised a hypothetical statutory jurisdiction doctrine. Now, if this court were to dismiss for lack of jurisdiction and then say, “Nonetheless, as an alternative holding, here’s how we would come out on the merits,” that I think would be improper. And that is what I understand the American oversight brief to be suggesting at footnote 11 on page 20 of its brief. That I don’t think is something the court could do. I understand the hypothetical statutory jurisdiction piece to allow the court to say, “You know what? This is hard. There might be arguments on both sides. We assume hypothetical statutory jurisdiction, we move forward, we decide the merits.” Now-
Speaker 2 (48:34):Let me ask you about Marbury versus Madison. What’s your interpretation of its progeny, or even the case itself?
Speaker 4 (48:45):
So our interpretation is much closer in line with what I think I heard Judge Pan setting out and similar to yours, it certainly does not erect a unreviewable power for the presidency. I think sort of the prime example of that is the Steel Seizure Case, the Youngstown case. That was President Truman closing the steel mills, that was the court coming in and reviewing that. We see that all the way through to the present, and so it’s hard to see any world in which the court just says, “We can’t intervene here.” I accept the Judge Henderson, the distinction between ministerial and discretionary acts. Compliance with the law is not some sort of discretionary call, right? It is something that I fully endorse or agree with the idea of the paradox of a president on the one hand, having the Article II take care responsibility, and on the other hand, seeing compliance with the law as optional.
Speaker 2 (49:47):Let me [inaudible 00:49:47] and ask you, how do we write an opinion that would stop the floodgates? Your predecessors in their OLC opinions recognize that criminal liability would be unavoidably political.
Speaker 4 (50:08):So a couple of responses. For one, of course, that was with respect to a sitting president. I think the analysis is extraordinarily different with respect to a former president, which OLC in that very same… I’m sorry.
Speaker 2 (50:29):But with respect to being necessarily political.
Speaker 4 (50:31):
Well, I think there is a political process which is impeachment and we can talk about that. But there is a legal process which is decidedly not political, and that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to. We’re talking about prosecutors who follow strict codes and who are presumed to act with regularity, grand jurors, petit jury eventually, and Article III courts standing above it.
(51:00)
But I also want to push back a little bit against this idea of a floodgate. At least since the Watergate era 50 years ago, has there been widespread societal recognition including by presidents and the executive branch that a former president is subject to criminal prosecution. And Nixon was not about private conduct. Nixon was about, among other things, using the CIA to try to interfere with an FBI investigation. He then accepts a pardon understanding that after having resigned, right? So again, I think that also undermines this impeachment first argument.
(51:35)
After Nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct. You saw Independent Counsel Lawrence Walsh in the Iran Contra affair. That’s an example that the defendant invokes in his reply brief. In chapter 27 of that report, the independent counsel assumes that President Reagan is subject to prosecution and says, “But we didn’t get there evidentiary, not that we thought there was some sort of immunity.” And that has continued through to the present. And so this notion that we’re all of a sudden going to see a floodgate, I think the… Again, the careful investigations in the Clinton era didn’t result in any charges. The fact that this investigation did, doesn’t reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here.
(52:34)
Never before has there been allegations that a sitting president has with private individuals and using the levers of power sought to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.
Speaker 3 (52:57):In your brief, you raised some sort of lesser immunity potentially applying. You want to speak to that?
Speaker 4 (53:03):
I do. We don’t think that’s comes into play here. I think the point was, in some sort of more challenging cases, it might be that where a president is operating under extraordinary time pressure has to make a very difficult kind of national security type of decision. Do we order the drone strike under these circumstances? A president will often have a cadre of lawyers to advise him or her. The lawyers say, “Madam President, we’ll get you a memo in two months.” That’s not going to be enough in that situation. If there were a drone strike, civilians were killed, that theoretically could be subject to some sort of prosecution as murder. I think that might be the kind of place in which the court would properly recognize some kind of immunity. But that is of course nothing like what we’ve got here. I sort of take the former officials brief discussing the vesting clause to talk about the nature of charges when they focus on, again, subverting the electoral process. At a minimum, there should be no type of immunity that covers that.
Speaker 1 (54:16):So are you saying it should be a case by case balancing in each case whether there’s immunity? Or how does this work as a legal standard?
Speaker 4 (54:23):
So we think that it should just be as the district court held finding… There is a balancing under Fitzgerald, right? That’s our view. You start with this question, what are the burdens against the presidency and what are the interests to be furthered? The answer to that question under Fitzgerald, we think that the burdens that my friend talks about on the other side are overstated. I’m happy to just describe why we think the public’s interest on an ongoing criminal prosecution means that there should be an across the board rule that a former president is indeed subject to criminal prosecution.
(55:01)
What I’m describing in response to Judge Child’s questions is, in a particular case, might there be some extraordinary circumstance where a former president could invoke an immunity? Maybe. I don’t think the court has to reach that there. I think the court could write an opinion that reserves and says, “Based on the nature of the allegations, which we take as true, there is no reason to recognize that here.” And so I don’t think it needs to be a case by case analysis, but I think the court can reserve that type of question to the extent it gives one pause about a president in future situation.
Speaker 3 (55:36):
To that end, can you answer the question I posed earlier to your opposing counsel about, are we to look at the broader question that was dealt with by Judge Chutkin with respect to presidential immunity, absolute immunity for no criminal prosecution of official acts versus looking at this indictment and accepting as true the allegations that it brought there? Or both?
Speaker 4 (56:03):
So we have a strong preference that the court adopts the former view and looks at the question in the way as the district court did, which is to say, “Based on questions of separation of powers, of constitutional texts, history precedent, is there in fact immunity for a former president?” We think the answer to that is no for of course all of the reasons we put in the brief, and I’m happy to sort of address here. Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment? Not a criminal act. President sells a pardon, resigns, or is not impeached?… not a crime. I think that is extraordinarily frightening future and that is the kind of… We’re talking about a balancing and a weighing of the interest, I think that should weigh extraordinarily heavily in the court’s consideration.
Speaker 2 (57:13):
Let me ask you about the effect of blasting game. How does it either bind us? How is it persuasive for us?
Speaker 4 (57:25):
So I think it formally has no application at all, because of course, very early on, in the opinion, the court says, we’re not dealing with any questions of immunity in the criminal context. I tend to agree with my friend on the other side, that in many respects it does reinforce the nature of the Fitzgerald civil outer perimeter standard. It says you don’t look at intent or you don’t look at purpose. Context plays a more important role than often the content of communications. I think that the significant change, of course, is the acknowledgement of looking at a president, whether that president is acting in his or her role as office seeker or office holder. But again, to go back to my response to Judge Childs’s question, although that would change the nature of whether certain may change the nature of whether certain things are or are not official acts in the indictment, we just think that’s entirely the wrong paradigm to use.
(58:22)
We think under Fitzgerald, in fact, that would be inconsistent with Fitzgerald’s reasoning and also just irreconcilable with the nature of how criminal law works. I mean, to say that we’re not going to take account of motive or intent. There are plenty of acts that every day… I mean, for example, if I were to encourage someone not to testify at trial because I wanted to go on a hike with that person, it’s not a crime. If I were to encourage someone to skip their trial testimony because their testimony was going to incriminate me. It’s the same underlying act and now when you map that on to the presidential context, you come up with some of the frightening hypotheticals where, as long as something is plausibly official, even if it involves assassinating a prominent critic or a business rival, that would seem to then be exempt, potentially, from criminal prosecution. We certainly wouldn’t concede that, if that’s the world we need to live in, I think we would advance plenty of arguments below, but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.
Speaker 3 (59:39):But looking and thinking about your answer about potentially not looking at motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally?
Speaker 4 (59:53):
Yes, precisely. And that’s why it wouldn’t make sense to then come in and use this non-motive intent. As I understand, how Fitzgerald Outer Perimeter standard might work, it could say, those types of official acts, official conduct, that is something from which the president is immune. You don’t ever get to that second question of, “Well, did that person act then with mens rea? Can we prove it beyond a reasonable doubt.” Because it is at least, under a theory where it’s not available at trial, then there’s no way to reach that conduct.
Speaker 3 (01:00:26):When we’re looking at this indictment though, back to Judge Henderson’s question about the use of blasting game. Some of the acts are same or similar and there was direct discussion of it in that opinion as determining whether it was office seeker versus office holder. So do we use blasting game at least for that?
Speaker 4 (01:00:45):
So if this court decides the case the way the district court did, then I don’t think blasting game has any role to play at all, because there is no question of whether, was this act official or were these sets of allegations official? The question is based on a Fitzgerald analysis, history precedent, et cetera, is there any quantum of immunity for a former president? We think the answer to that question is no. There’s no reason, as the district court also found, to turn to the indictment and consider this outer perimeter, this civil outer perimeter standard.
Speaker 2 (01:01:21):How about if we don’t decide it the way the district court did?
Speaker 4 (01:01:26):If you don’t, I mean, I suppose that the law would-
Speaker 2 (01:01:27):I mean, on the blasting game.
Speaker 4 (01:01:30):
So there are a lot of different ways this court could not decide it that way. I think, to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter and that, I think, is enough to affirm. I think either parties are urging the court at that point to then send of course the case back to the district court. I think that then would create a series of challenging questions that I mentioned earlier. What are the evidentiary theories under which that evidence could potentially come in, but it would be our strong view and we would want, if the court followed that route, which we urge the court not to, to make clear that immunity is an on-off switch, right? This is the immunity appeal. If the court says, “We affirm, we send it back, there’s no immunity,” then other things become evidentiary questions or questions really of jury instructions in which any appeal is then an appeal from a final judgment, if any final judgment.
Speaker 3 (01:02:33):And the immunity defense is never lost?
Speaker 4 (01:02:37):
Well I don’t think it’s immunity at that point. I think this court will, in what I’ve just described, will have said there is no immunity. There may be some types of other challenges as evidence comes in at trial, but again, I think that would lead to this extraordinarily complicated litigation that is not the top line reason, but certainly, among the reasons why the court should not go down that path
Speaker 1 (01:02:59):
Since President Trump concedes that a president can be criminally prosecuted under some circumstances. He says that that is true, only if he is first impeached and convicted by Congress. Do you agree that this appeal largely boils down to whether he’s correct in his interpretation of the impeachment judgment clause? That is, if he’s correct, that the impeachment judgment clause includes this impeachment first rule, then he wins. And if he’s wrong, if we think the impeachment judgment clause does not contain an impeachment first rule, then he loses.
Speaker 4 (01:03:39):
So I think that’s basically right. I mean the defendant’s theory over the course of this litigation has evolved a bit and I think now, before this court, I understand the argument to be principally, sort of the principle submission, to be as you’ve just described, what we call in our brief, the conditioned precedent argument. That there is only liability, criminal liability, for a former president if that president has been impeached and convicted. And that is wrong for textual, structural, historical reasons and a host of practical ones, one of which I’ll start with again, just amplify the point. It would mean that if a former president engages in assassination, selling pardons, these kinds of things and then isn’t impeached and convicted, there is no accountability for that individual and that is frightening.
(01:04:32)
Now, to go back to some of the textual and historical and structural, my friend on the other side sort of suggests this is what the founders were talking about and this is what they were worried about. I think that’s entirely an inaccurate representation of the founding era history. There’s basically no discussion of the impeachment judgment clause, which I take the defendant’s principled textual arguments to be. What the impeachment judgment clause did was two things, as the district court described. Right, it constrained the sanctions that Congress could place on an impeached and convicted officer, not only a president, any kind of officer, to removal or disqualification, and then it made clear that that impeachment did not impose some sort of preclusive bar on subsequent criminal prosecution.
(01:05:19)
You would think that if there was this kind of impeachment first requirement, impeachment and conviction first, you might actually find something somewhere in the sources, the framing, the convention in Philadelphia, the ratification discussions, early history. There is nothing of that. We’ve cited certain things in our brief from James Wilson, from Edmund Pendleton from Representative Dana that say this justice story. I don’t hear the defendant to offer anything other than, “Well, Hamilton…” All that Hamilton was describing was the undisputed point here that a sitting president can’t be subject to criminal prosecution until that sitting president is no longer in office. Whether the removal from office is through impeachment and conviction or simply the end of the term.
(01:06:07)
Now, on structural point as well that I just want to quickly make the district court made this, which is if this rule were right, if the conditioned precedent rule were correct, it would pose significant separation of powers problem of its own. It would basically mean that the executive branch would only be able to prosecute someone if Congress had acted. And there are all sorts of reasons why, of course, Congress won’t act. For one, they’ve never believed that it was required and also, in certain instances, they may decide that they don’t have jurisdiction. Many of the members of Congress seem to hold that view with respect to the defendant’s second impeachment. Thank you very much.
Speaker 2 (01:07:01):Yeah, go ahead.
Mr. Sauer (01:07:02):
Thank you, your honor. And in my limited time remaining, I just want to make three points to the court in response to the opposing counsel’s argument there. One is, that the opposing counsel used the phrase, “above the law,” saying that an immunity doctrine for criminal immunity would place the president above the law. I would just direct the court’s attention to what the Supreme Court said at Nixon against Fitzgerald in the context of civil immunity. They describe the allegation that immunity sets the official above the law as, “rhetorically chilling, but wholly unjustified.” The US Constitution, the separation of powers, the executive vesting clause, the impeachment judgment clause, these are the foundational and fundamental law of our country and the president’s immunity is determined on that. So that is more rhetoric than reality, is what the Supreme Court said in Nixon against Fitzgerald.
(01:07:45)
I’d also point out that when it comes to the question of whether or not the indictment alleges solely official acts, the indictment does not allege that President Trump did anything wrong after he left office. So it focuses solely on acts that he took while he was in office and that’s a telling indication that we’re dealing with official acts here.
(01:08:02)
And then finally, I would address Judge Henderson, your question about the floodgates, and I tie that to what my opposing counsel said about a so-called frightening future. The frightening future that he alleges where presidents are very, very seldom if ever prosecuted because they have to be impeached and convicted first, is the one we’ve lived under for the last 235 years. That’s not a frightening future, that’s our republic. What he is forecasting, is a situation where the floodgates will be opened. We are in a situation where we have the prosecution of the chief political opponent who’s winning in every poll, [inaudible 01:08:36] presidential election, upcoming next year and is being prosecuted by the administration that he’s seeking to replace. That is the frightening future that is tailor-made to launch cycles of recrimination that will shake our republic for the future.
Speaker 3 (01:08:48):If you have the impeachment judgment clause, as you indicate, indicate impeachment, then conviction, but then the president either resigns, is removed and then later on, is prosecuted for a different crime. Can that happen or is there immunity there?
Mr. Sauer (01:09:04):I’m not sure I understand the hypothetical. Could you say it again? I apologize.
Speaker 3 (01:09:08):Just indicating that if you’re resting on that there must be impeachment and conviction and it’s for one set of crimes, but then later on, the president either removes is removed from office or resigns and later on, there’s a prosecution for something different. Is there immunity for that later crime?
Mr. Sauer (01:09:27):
Yes. I think that’s the better reason. Obviously, it’s not presented in this case because we have a close match between the conduct, the underlying conduct, or transaction occurrence that’s alleged in the articles of impeachment, of which there was an acquittal. An acquittal, right, which is the strongest case for double jeopardy and between the facts alleged in the indictment. But if there were unrelated prosecution-
Speaker 3 (01:09:45):[inaudible 01:09:45] question is because you just made a statement about, he’s only being prosecuted for crimes while in office and so that’s why I’m asking about leaving office and then thereafter I’m being prosecuted for something different.
Mr. Sauer (01:10:01):
The plain text of the Constitution, the best reading would be he has to be impeached and convicted for the thing that he’s subsequently prosecuted. So if he were impeached, convicted and removed from office and they charged him with another official act that was unrelated to the impeachment, I think that what chief justice Marshall says in Marbury would still govern. I think that’s, obviously, it’s not presented in this case. The court doesn’t have to decide it, but that’d be my answer.
Speaker 1 (01:10:21):So I just want to confirm. Your position is, if President Trump had been convicted after his impeachment trial on incitement of insurrection, if he’d been convicted, then this prosecution would be entirely proper?
Mr. Sauer (01:10:38):I would say, that if he were impeached and convicted for the same and similar conduct, then that would authorize a subsequent prosecution. Obviously, we have many other issues with this prosecution, so I don’t-
Speaker 1 (01:10:47):Is that a yes? Because I think you said in your brief that that impeachment for incitement of insurrection is based on the same or related conduct as that which is in the indictment.
Mr. Sauer (01:10:58):Yes, yes. Yeah, I agree with that.
Speaker 1 (01:10:59):So, if he had been convicted by the Senate, then this prosecution would be entirely proper. Correct?
Mr. Sauer (01:11:07):I would not phrase it that way because there’s lots of other problems with this prosecution that we’ve raised in extensive plays to the district court. He could be prosecuted-
Speaker 1 (01:11:13):Under the impeachment judgment clause, if he had been convicted by the Senate when he was impeached for incitement of insurrection on same or related conduct as what’s in the indictment, then this prosecution would be properly brought?
Mr. Sauer (01:11:30):A prosecution could be properly brought. This prosecution, which has tons of other problems with it. I just want to be very clear about that. I’m not making any confession that this prosecution is [inaudible 01:11:40].
Speaker 1 (01:11:39):All right. Let me try one more time. Under your interpretation of the impeachment judgment clause, if President Trump had been convicted when he was previously impeached on same or related conduct as that which is in this indictment, the government could properly prosecute him for that same or related conduct, yes or no?
Mr. Sauer (01:12:01):Potentially, provided they qualified with all kinds of other legal documents that are violated in this case. So I admit that. [inaudible 01:12:08].
Speaker 1 (01:12:08):I am only asking you, under your interpretation of the impeachment judgment clause, is that proper, is that allowed?
Mr. Sauer (01:12:17):And I stand on my prior answer. I think we agree…
Speaker 1 (01:12:21):I understand there might be other reasons why you would challenge this prosecution. I’m saying, based on your interpretation of the clause, this prosecution would be properly brought?
Mr. Sauer (01:12:31):I would not say, this prosecution. Be very clear about that.
Speaker 1 (01:12:34):But it’s a prosecution based on same or related conduct.
Mr. Sauer (01:12:38):This prosecution, which has many other issues related to it. What I would say is that, the impeachment judgment clause authorizes the prosecution of a president who’s been impeached and convicted by the Senate, which President Trump was not.
Speaker 1 (01:12:51):
All right, let’s make it a hypothetical. Say a president was impeached and convicted on a charge of incitement of insurrection that is under the same allegations as a criminal indictment. He’s convicted, then the government could bring a prosecution for the same or related conduct. Correct?
Mr. Sauer (01:13:08):Don’t disagree with that.
Speaker 1 (01:13:09):Okay.
Mr. Sauer (01:13:09):[inaudible 01:13:10] correctly.
Speaker 1 (01:13:10):And then, that means that the conducts, that same or related, even if it’s official, he could be prosecuted for it. Correct?
Mr. Sauer (01:13:20):[inaudible 01:13:21] impeached or convicted.
Speaker 1 (01:13:23):Correct. Okay, thank you.
Speaker 3 (01:13:24):
But my question goes to after the fact, and the reason I state that, even though you’re challenging that these actions are only occurring while president, the district court’s decision was that there is no presidential immunity from prosecution for official acts. It doesn’t put a timeframe in there. And so that’s why I’m going to, beyond your investigation, your prosecution might not come until later, after the president has left office. So are you telling us that we are limited to a timeframe in answering this question?
Mr. Sauer (01:13:55):
I think the timeframe is set forth by chief justice and [inaudible 01:13:59] says, never examinable by the courts. So unless there is that one gate keeping incident that has to occur, which is impeachment and conviction, the official acts, the court has no jurisdiction to review them under the separation of powers and the executive vesting clause.
Speaker 3 (01:14:14):But that also assumes that an impeachment proceeding occurred if there is not one. Because we discussed earlier that not all officials go through that process.
Mr. Sauer (01:14:24):Absolutely.
Speaker 3 (01:14:24):That’s a judgment call as to whether that process would even be brought.
Mr. Sauer (01:14:28):
I would say we have two arguments that reinforce each other. So if there’s no impeachment ever and no conviction, then the official acts are immune, period. Further, the impeachment judgment clause incorporates a doctrine of double jeopardy that prohibits it, especially in the case of acquittal. So those are reinforcing doctrines that are set forth in the constitution. If there are no further questions, we’d ask the court to reverse.
Speaker 1 (01:14:53):All right.