Justice Amy Coney Barrett questions Special Counsel Jack Smith's attorney Michael Dreeben in oral arguments for Trump v. United States.
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NewsTranscript
00:00Justice Barrett. Mr. Dreeben I want to pick up with that public authority
00:04defense. So I'm looking at the OLC memo that David Barron wrote that you cited
00:09in your briefs and he describes the public authority defense citing the
00:13model penal code. There are a few different definitions but I'll just
00:17highlight this one. Justifying conduct which is required or authorized by the
00:24law defining the duties or functions of a public officer, the law governing the
00:29armed services or lawful conduct of war or any other provision of law imposing a
00:35public duty. That sounds a lot like dividing a line between official and
00:40private conduct. It's I think it's narrower and I recognize it's a defense
00:44not an immunity. But when we look at when you look at the definition of it are you
00:48acting within the scope of authority conferred by law or discharging a duty
00:53conferred by law. I think it's narrower than Blasingame, narrower than Nixon
00:56versus Fitzgerald. But that's what it sounds like to me. Do you agree or
01:00disagree? You know Justice Barrett I certainly understand the intuition that
01:04when you act outside of your lawful authority you've kind of gone on a
01:07frolicking detour. You're no longer carrying it out. I don't really think
01:11that that quite works for presidential activity. The only way that he could have
01:16implemented the orders is by exercising his commander-in-chief authority over
01:21the armed forces or his authority to supervise the executive branch. Those
01:26seem like core executive acts to me. There is such a possibility as an
01:30unlawful executive act. I'm not sure that I understand your answer. I mean I was
01:36thinking it seemed to me that in your briefs and today when you referred to
01:40the public authority defense you said that's one of the built-in protections
01:43and why immunity is not necessary. Because in some of these instances when
01:47the president takes such actions that you know the courtsman asking you might
01:52this result in criminal prosecution you say well he could raise this public
01:56authority defense. And so I'm saying isn't this public authority defense if
02:00raised doesn't it sound like a defense that says well I had I was authorized by
02:05law to discharge this function. And therefore I acted lawfully. Therefore I acted
02:11lawfully and not criminally liable. Correct. Does that involve a look into
02:17motives kind of this is gets to what Justice Gorsuch was asking you could you
02:20say I was acting within the scope of my authority by granting a pardon removing
02:25a cabinet officer but then the public authority defense might not apply
02:29because you had a bad motive in doing so. No I don't think so Justice Barrett. I think
02:33that it operates based on objective facts disclosed to counsel. Counsel then
02:39provides the advice in this case the Department of Justice and it's an
02:43objectively valid defense. It's a complete defense to prosecution. So what
02:47would be so bad I mean one thing that strikes me as different well one thing
02:51that's obviously different between the public authority defense and immunity is
02:54an interlocutory appeal and having it resolved at the outset. What would be so
02:58bad about having a question like that resolved at the threshold having it be
03:03an immunity. The same kind of question that could be brought up as a defense
03:06later but have it be brought up at the threshold as an immunity and then an
03:10interlocutory appeal would be available and it would be a freedom from standing
03:13trial but not a get-out-of-jail-free card. Yes I understand that and I
03:19think that if the court believed that that was the appropriate way to craft
03:24presidential protections it has the authority to craft procedural rules that
03:30implement its article 2 concerns. That said public authority is we're calling
03:38it a defense but under many statutes it's actually an exception to liability
03:42itself and what you're really talking about is trying the general issue and
03:47generally in criminal cases even cases that involve First Amendment issues like
03:53threat statutes the jury is the determinant of the facts and I have a
03:58little bit of difficulty with the idea of trying the whole public authority
04:03issue separately to the judge and having that go up on interlocutory appeal with
04:09review of facts before you could ever get it forward into a criminal case.
04:13That said if I would prefer a regime in which the court altered some of the
04:22procedural rules surrounding the president than a total absolute blanket
04:28immunity that takes away the possibility of criminal prosecution even if it was a
04:33core violation of the statute in the teeth of Attorney General advice and has
04:38no overriding public. You think it has to be a jury question and I mean I let's
04:42see I wasn't necessarily proposing actually treating it as a defense that
04:47was done at the outset and then subject to interlocutory appeal I was proposing
04:51what about an immunity doctrine that drew from the public authority defense
04:55that the Department of Justice thinks would otherwise apply so just just go
04:59with me on that for a minute. Why would it be so bad for it not to be a jury
05:03question I mean it seems to me that some of these article 2 concerns would be
05:06exacerbated by having it go to a jury rather than a judge. So I think some of
05:11them are judge questions that could be resolved in the face of the indictment.
05:17If the Department of Justice ever returned an indictment that said the
05:21issuance of this pardon or this series of pardons constituted obstruction of
05:26justice I had a little difficulty hypothesizing it but a motion could be
05:31made on the face of the indictment that says article 2 precludes Congress from
05:35regulating these activities the indictment needs to be dismissed and if
05:39the court wished to attach to that kind of a rule interlocutory appeal then that
05:46that would be a lesser safeguard than the the one that my friend is proposing
05:51here. Other kinds of defenses though really do intersect with the general
05:57issue and for those I have a much greater time seeing how the court could
06:02implement that and would there be costs in going to trial yes there is no
06:08perfect system here we are trying to design a system that preserves the
06:12effective functioning of the presidency and the accountability of a former
06:16president under the rule of law and the perfect system that calibrates all of
06:20those values probably has not been devised I think that the system that we
06:25have works pretty well maybe it needs some a few ancillary rules it is
06:30different from the radical proposal of my friend. I agree let me ask you about
06:35state prosecutions because if the president has some kind of immunity
06:40that's implicit in article 2 then that immunity would protect him and from
06:46state prosecution as well a lot of the protections that you're talking about
06:50are internal protections that the federal government has protections in the
06:55Department of Justice which obviously are not applicable at the many many many
06:58state and local jurisdictions across the country what do you have to say to that
07:03so that raises a supremacy clause issue and the court would run a supremacy
07:09clause analysis that would probably start with basic principles like
07:13McCulloch versus Maryland the states do not have the authority to burden federal
07:18functions and would then kind of move through in renegal where the court said
07:24that a state murder prosecution of a federal official guarding a Supreme
07:28Court justice and who fired a shot was not permissible if the court thought
07:33that you needed a more categorical rule for the states I think the supremacy
07:39clause certainly leaves it within the courts prerogative to determine that the
07:44president unlike all other officials deserves more of a robust federal
07:48defense than what I have just described. But it would still be a defense and in the
07:52states it wouldn't be I mean well that's my point like that you know it's
07:56one thing to say well the president they're not going to be these
07:59prosecutions that are politically motivated the things that Justice
08:03Kavanaugh was referring to that might be the danger of this system one thing that
08:07we have to worry about that might not carry the day but you know that's a
08:10concern it's totally different when you take it outside of the Department of
08:15Justice and its structures and then you throw it out elsewhere the idea across
08:19across the states the idea of an immunity I think has a lot more
08:23purchase if you're talking about something that protects the former
08:26president from standing trial and the state and state and local level. So I
08:30don't know that you would have to design a system in which the president would
08:34have to stand trial at the state and local level it's certainly within the
08:38courts authority as a matter of supremacy clause law to find an immunity
08:43but we we have been talking here about some length on the distinction between
08:48official acts and private acts that will have to be determined by some sort of a
08:54process any immunity defense that the court announces can still be met by a
08:59state assertion that we're prosecuting private conduct you're gonna have to
09:03have some process I think having some legal process is not a reason to cast
09:08aside a nuanced system that actually looks at what protections are necessary
09:14as opposed to what would provide the absolute maximum insulation for former
09:19presidents even if we acknowledge that it's highly prophylactic. Totally agree
09:23and I wasn't actually contrasting the absolute immunity rule I was saying that
09:27if there was some sort of official private their consequences towards about
09:31making immunity okay and since you bring up the private acts this is my last
09:35question so I had asked mr. Sauer about on page 46 and 47 of your brief yes you
09:42say even if the court were inclined to recognize some immunity for a former
09:46president's official acts it should remand for trial because the indictment
09:49alleges substantial private conduct yes and you said that the private conduct
09:53would be sufficient yes the special counsel has expressed some concern for
09:57speed and wanting to move forward so you know the normal process what mr. Sauer
10:02asked would be for us to remand if we decided that there were some official
10:07acts immunity and to let that be sorted out below it is another option for the
10:12special counsel to just proceed based on the private conduct and drop the
10:16official conduct well two things on that just part first first of all there's
10:21really an integrated conspiracy here that had different components as alleged
10:26in the indictment working with with private lawyers to achieve the goals of
10:30the fraud and as I said before the the petitioner reaching for his official
10:36powers to try to make the conspiracies more likely to succeed we would like to
10:41present that as an integrated picture to the jury so that it sees the sequence
10:46and the gravity of the conduct and why each step occurred that said if the
10:51court were to say that the fraudulent elector scheme is private reaching out
10:56to state officials as a candidate is private trying to exploit the violence
11:00after January 6th by calling senators and saying please delay the
11:05certification proceeding is private campaign activity we still think
11:09contrary to what my friend said that we could introduce the interactions with
11:13the Justice Department the efforts to pressure the vice president for their
11:18evidentiary value as showing the defendants knowledge and intent and we
11:24would take a jury instruction that would say you may not impose criminal
11:28culpability for the actions that he took however you may consider it insofar as
11:34it bears on knowledge and intent that's the usual rule with protected speech for
11:39example under Wisconsin versus Mitchell my friend analogizes this to the speech
11:43or debate clause but we don't think the speech or debate clause has any
11:46applicability here it's a very explicit constitutional protection that says
11:51senators and representatives shall not be questioned in any other place so it
11:55carries an evidentiary component that's above and beyond whatever official act
12:00immunity he is seeking and the last thing I would say on this is we think
12:04that the concerns about the use of evidence of presidential conduct that
12:08might otherwise be official and subject to executive privilege is already taken
12:12care of by United States versus Nixon that balances the president's interest
12:17in confidentiality against the need of the judicial system for all available
12:21facts to get to the truth and once that has been overcome we submit that
12:26evidence can be used even if culpability can't rest on it