Kavanaugh Questions Attorney On Parts Of Presidential Authority That 'Congress Cannot Criminalize'

6 months ago

The Supreme Court heard oral arguments in Trump v. United States on Thursday.

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00:00What about, to unpack it a little more, do you agree that there are some aspects of Article

00:072 presidential power that are exclusive and that Congress cannot regulate and therefore

00:12cannot criminalize?

00:13Absolutely.

00:14Okay.

00:15For other official acts that the president may take that are not within that exclusive

00:20power, assume for the sake of argument this question that there's not blanket immunity

00:27for those official acts, but that to preserve the separation of powers, to provide fair

00:33notice, to make sure Congress has thought about this, that Congress has to speak clearly

00:39to criminalize official acts of the president by a specific reference.

00:45That seems to be what the OLC opinions suggest.

00:49I know you have a little bit of a disagreement with that and what this court's cases also

00:53suggest.

00:54Justice Kavanaugh, I'd like to take all of those in turn because I don't think this court's

00:58cases speak that broadly.

01:00I definitely don't think that the Office of Legal Counsel opinions stand for this broad

01:04proposition that unless the president is specifically named, he's not in the statute.

01:10And I don't think that that's necessary in order to afford adequate protection for the

01:15president's valid Article 2 functions.

01:18You said unless, sorry to interrupt, but I want to just get this out and you can incorporate

01:21in the answer.

01:22Unless there's a serious constitutional question.

01:25Correct.

01:26Well, it's a serious constitutional question whether a statute can be applied to the president's

01:32official act.

01:33So wouldn't you always interpret the statute not to apply to the president, even under

01:40your formulation, unless Congress had spoken with some clarity?

01:43I don't think across the board that a serious constitutional question exists on applying

01:48any criminal statute to the president.

01:51The problem is the vague stat, you know, obstruction in 371 conspiracy to defraud the

01:56United States can be used against a lot of presidential activities historically with

02:01a creative prosecutor who wants to go after a president.

02:08Well, let me try to backtrack a little bit.

02:12That's what we're talking about historically is the risk that, and going forward, the risk.

02:17So you can take all of that.

02:18I think that the question about the risk is very serious and obviously it is a question

02:24that this court has to evaluate.

02:27For the executive branch, our view is that there is a balanced protection that better

02:33serves the interest of the constitution that incorporates both accountability and protection

02:39for the president.

02:40And I want to go through the protections that do exist, but perhaps it's worth returning

02:45at the outset to the statutory construction question that you raised.

02:49The office of legal counsel has said the offense of bribery, of course, applies to the president.

02:56It does not name the president.

02:58Justice Corsette, section 201 does not specifically name the president.

03:02I would assume that's personal.

03:04So well, I think that that's what Brewster said.

Kavanaugh Questions Attorney On Parts Of Presidential Authority That 'Congress Cannot Criminalize'

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