On Thursday, Supreme Court Justice Sonia Sotomayor questioned former President Donald Trump's attorney during the oral arguments of the case Trump vs. United States.
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NewsTranscript
00:00 And can we go back to the bribery statute?
00:03 I, like you, understand that the only thing that
00:07 is covered by that is the president
00:10 is barred from soliciting or receiving funds in any room
00:14 or building in the United States.
00:15 That is correct.
00:16 It's an extremely--
00:17 Official building.
00:18 It's a very limited mention of the president.
00:20 And it really, I think, under--
00:23 So as I understand this, there's two very limited provisions
00:27 mentioning the president is included.
00:29 That's right.
00:30 There's a whole number of provisions
00:31 that exclude the president, many, many, many more
00:35 that exclude the president, correct?
00:37 It's a kind of small number on both sides of the fence.
00:39 Now, Justice Barrett made the point
00:42 that if we say a president can't be included in a criminal law
00:46 unless explicitly named, then that
00:49 would bar the Senate from impeaching him
00:53 for high crimes or misdemeanor.
00:54 Because that means that he's not subject to the law at all,
00:58 correct?
00:59 So I think--
01:00 That's a tautology you can't escape.
01:03 Justice Sotomayor, what I think that Justice Barrett was
01:06 saying, and we would agree with it,
01:08 is that under my friend's position, after impeachment,
01:11 he could be prosecuted.
01:12 But under his statutory construction approach,
01:15 there'd be nothing to prosecute him for.
01:17 Exactly.
01:17 That's the point, which is if he's not
01:19 covered by the criminal law, he can't be impeached for it,
01:23 for violating it.
01:24 All right.
01:24 Now, could we go further on this clear statement rule?
01:30 The situations-- and you mentioned it earlier--
01:33 in which we have looked to see if the president is covered
01:37 is contextual, correct?
01:38 Correct.
01:39 And what are the factors that generally we'll look at?
01:42 I'm thinking specifically about whether the APA
01:45 covers the president.
01:47 Correct.
01:47 And what we did there was analyze
01:50 what powers were being given in the lawsuit, et cetera.
01:55 We looked at words.
01:56 We looked at structure.
01:57 We looked at separation of powers issues
02:01 relating to our case law that said
02:03 you can't direct the president to do anything.
02:06 And this would have been a subterfuge for that, correct?
02:08 All correct.
02:09 All right.
02:10 So I don't know why two of my colleagues,
02:15 how they would fashion a clear statement rule that would say,
02:19 when the law says any person can't accept the bribe,
02:23 that that permits the president to do it.
02:26 So I agree, Justice Sotomayor, that the way
02:30 that this court has interpreted statutes that do carve out
02:33 the president-- Justice Kavanaugh asked about this--
02:35 was very context-specific.
02:38 The Franklin case basically involved
02:41 a holding that we are highly unlikely to say
02:44 that the president is an agency, something
02:46 that the government said would be a peculiar understanding
02:50 of agency, when the effect of it would
02:52 be that we would review the president's decisions
02:55 under statutes for abuse of discretion, which
02:58 is a very extraordinary thing to do.
03:00 I think even going back to Marbury,
03:02 is perhaps a point on which I agree with my friend.
03:04 Marbury says discretionary acts of the president
03:07 are not the kind of thing that the court reviews.
03:10 Could I go back to your brief, and going back
03:15 to what some of my colleagues have asked you?
03:18 There appears to be some narrowing principles
03:21 to the concept that the president is
03:24 subject to all criminal laws in all situations.
03:27 Correct.
03:28 You agree that if it affects core powers,
03:32 then he would not be subject to any laws that attempted
03:37 to limit those core powers, correct?
03:39 You're defining core powers as those specified by Article II.
03:44 That is essentially correct, yes.
03:46 All right.
03:47 And the only words in the Constitution
03:50 is that have to do with the president in law
03:56 is that he shall take care that the law be faithfully executed,
03:59 correct?
04:00 That's right.
04:01 Hard to imagine that a president who breaks the law
04:05 is faithfully executing the law, correct?
04:07 He has to execute all of the laws.