Kagan Raises Bribery Hypothetical When Questioning Jack Smith's Lawyer On Presidential Immunity

5 months ago

Justice Elena Kagan questions Special Counsel Jack Smith's attorney Michael Dreeben in yesterday's oral arguments for Trump v. United States.

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Transcript

00:00 Justice Kagan?

00:01 Mr. Dreeben, I want to go through your framework and make sure I understand it.

00:07 So first, on the small category of things that you say have absolute protection, that

00:12 they are core executive functions, what are those small categories?

00:18 Pardon, power?

00:20 Pardon?

00:21 Veto?

00:22 Veto, foreign recognition, appointments.

00:26 Congress cannot say you can't appoint a federal judge who hasn't received a certain diploma,

00:31 hasn't achieved a certain age.

00:35 There are a few other powers.

00:36 Is commander in chief?

00:38 Commander in chief is on the list, but I want to add to my answer on that, that Congress

00:44 has substantial authority in the national security realm.

00:48 Congress declares war, it raises armies, it has power over the purse.

00:52 That's more of a--

00:53 That's viewed as not really in that core set of functions, which nobody has any power but

00:58 the president over.

00:59 Yes, I think that there may be some aspects, like directing troops on the field, in which

01:04 the president's power is completely unreviewable.

01:07 Okay.

01:08 Now, in the next category, where we've left the core set behind, but we're still in the

01:15 world of official actions, and that's where you say there are various statutory construction

01:22 rules that might come into play.

01:24 Correct.

01:25 But you have characterized those as something different from just saying, oh, look, the

01:29 statute doesn't say the president, therefore it doesn't apply to the president.

01:33 That's right.

01:34 So I wanted to give you an opportunity to say how that would look, how that analysis

01:39 would look in a given case.

01:41 And in the course of responding to that, I'm sort of thinking of something like the OLC

01:47 opinion, which says bribery.

01:49 The president can be tried and convicted of bribery, even in the part of the bribery statutes

01:56 that do not say the president.

02:00 Why is that true?

02:02 That is true because there is no serious constitutional question that the president needs to engage

02:07 in bribery in order to carry out his constitutional functions.

02:10 And the Office of Legal Counsel pointed out that bribery is enumerated in the impeachment

02:15 clause.

02:16 So it falls outside of anything that could be viewed as inherent in the need of Article

02:22 2 to function.

02:23 Do you think the premise of that OLC opinion was that the bribery was simply not official?

02:28 No.

02:29 Or is the premise that the bribery was official and and still the president could be prosecuted

02:35 for it?

02:36 I think that bribery is the kind of hybrid that illustrates the abuse of public office

02:40 for private gain that we think is paradigmatic of the kinds of things that should be not

02:47 held to be immune.

02:49 In a bribery case, the public official cannot extract the bribe without the official power

02:54 to offer as the quid or the pro, I guess the quo, actually.

03:02 So it really is a crime that can only be committed by public officials who misuse their power.

03:08 And it was one of the things that was most mistrusted.

03:11 Many of the acts that are charged in this indictment or that would violate federal criminal

03:15 law similarly involve the misuse of official power for private gain.

03:21 So if you were to say what the line is in this category, like when it is that the statute

03:27 should be understood as precluding presidential prosecution and when it is that the statute

03:32 should be understood as allowing it, what general principles should guide?

03:37 So the general principles, I think, kind of emerge from looking at what the Office of

03:42 Legal Counsel has done.

03:43 So for example, with respect to a federal statute that prohibited appointments to courts

03:50 of people within certain degrees of consanguinity, the Office of Legal Counsel said this infringes

03:56 on a very important appointment power of the president, the power to appoint federal judges.

04:02 It cannot be presumed that Congress intended to do that because it would raise a very serious

04:07 constitutional question.

04:08 The president is out.

04:10 Then there are categories of statutes where the president is in, like for example, the

04:14 grassroots lobbying statute.

04:17 The Office of Legal Counsel wrote an opinion about that and it said for the president or

04:21 other public officials to go out into the world and to promote their programs, that

04:26 can't be what Congress intended to prohibit.

04:29 What it did intend to prohibit is using federal funds to gin up an artificial grassroots campaign

04:35 that gave the appearance of emerging from the people, but it was really top down.

04:40 And the Office of Legal Counsel said the president and officials who carry out the president's

04:45 mandates are subject to that statute.

04:48 So that's a more nuanced one.

04:49 And the third example that I will give you is the statute that would permit prosecution

04:55 for contempt of Congress.

04:57 The Office of Legal Counsel concluded that a good faith assertion of executive privilege

05:02 as a reason for not providing information to Congress would preclude prosecution because

05:08 Congress cannot be deemed to have altered the separation of powers in such a manner.

05:13 I think OLC probably would have gone on to say if Congress tried to do it, it would be

05:18 deemed unconstitutional.

05:19 But again, this was a statute that did not specifically name the president.

05:24 There are only two that do that.

05:27 So the entire corpus of federal criminal law, including bribery offenses, sedition, murder,

05:34 would all be off limits if it were taken to the extent that some of the questions have

05:40 suggested.

05:41 And for the general principle, does it raise a serious constitutional question?

05:46 And if so, to what extent?

05:48 Can it be carved out individually?

05:50 And there may be some instances where the statutes here could be carved out and a particular

05:56 act could be found to be protected.

05:59 Or does the statute across the board in such a wide range of applications, somewhat analogous

06:05 to overbreadth analysis, infringe on the president's power so that we're going to say that the

06:11 president is just out?

06:12 Now, that set of issues, they seem important and may occasionally be difficult.

06:18 They also seem not really before us in the way Justice Jackson suggested earlier.

06:24 What do you suggest?

06:25 I mean, do you think they are before us?

06:26 We should just clear it up.

06:28 Here it is.

06:29 We have a case.

06:30 What else could we do?

06:31 How should we deal with this?

06:33 That there are these lingering issues that go beyond the question of whether there's

06:37 the kind of absolute immunity that the former president is invoking.

06:43 So I think the court has discretion to reach that issue, even though Justice Jackson is

06:48 totally right.

06:49 It was not raised in the district court, and it was not raised in the Court of Appeals.

06:53 And the analysis that I would use to get there is a fusion of a couple of principles.

06:59 One is the court has often resolved threshold questions that are a prerequisite to an intelligent

07:05 resolution of the question presented.

07:07 So in a case like United States v. Grubbs, for example, the court reached out to decide

07:13 whether anticipatory warrants are valid under the Fourth Amendment before turning to the

07:18 question whether the triggering condition for an anticipatory warrant had to be in the

07:22 warrant.

07:23 That's one principle.

07:24 And then a precedent that bears some analogy to this is Vermont Natural Resources Agency

07:32 v. United States X.

07:34 Rel.

07:35 Stevens.

07:36 It was a QTAM case, and the first question was whether a state agency was a person within

07:42 the meaning of the False Claims Act.

07:44 And the second question was whether if the state agency was 11th Amendment immunity kicked

07:50 in.

07:51 And the court wrote an analysis of why it could reach both questions.

07:56 The reaching the person question didn't expand the court's jurisdiction, and it made sense

08:01 as a matter of constitutional avoidance to do that.

08:04 There are some considerations that cut against this, and I want to be clear that for overall

08:09 government equities, we are not wild about parties who raise an immunity case that can

08:16 be presented to a court on an interlocutory appeal and then smuggling in other issues.

08:21 So we would want to guide the court not to have an expansive approach to that issue.

08:27 But the final thing that I would say about this is part of our submission to this court

08:32 is that the Article I branch and the Article II branches are aligned in believing that

08:38 this prosecution is an appropriate way to enforce the law.

08:42 That's by making the law the current executive by deciding to bring it.

08:47 And since a building block of that submission is that Congress actually did apply these

08:52 criminal laws to official conduct, the court may wish to exercise its discretion to resolve

08:57 that issue.

08:58 OK, I have one last set of questions, which has to do with the official unofficial line.

09:04 And you heard Mr. Sauer's responses to both Justice Barrett's questions and my questions

09:10 about what he thinks counts as official here and what he thinks counts as unofficial here.

09:16 And I'm just wondering what you took from his responses and also how you would characterize

09:22 what is official and what is not official in this indictment.

09:27 So I think Petitioner conceded that there are acts that are not official that are alleged

09:34 in the indictment.

09:35 And we agree with him on all of that.

09:36 I think I disagree with him on everything else that he said about what is official and

09:41 what is not.

09:43 Organizing fraudulent slates of electors, creating false documentation that says, "I'm

09:49 an elector.

09:50 I was appointed properly.

09:52 I'm going to send a vote off to Congress that reflects that Petitioner won rather than the

09:57 candidate that actually got the most votes and who was ascertained by the governor and

10:02 whose electors were appointed to cast votes."

10:06 That is not official conduct.

10:08 That is campaign conduct.

10:10 And I think that the D.C. Circuit in the Blassingame case did draw an appropriate distinction.

10:16 A first-term president who's running for re-election can act in the capacity as office seeker or

10:22 office holder.

10:24 And when working with private lawyers and a private public relations advisor to gin

10:32 up fraudulent slates of electors, that is not any part of a president's job.

10:37 So there's, I'm sorry, there's an allegation in the indictment that has to do with the

10:41 removal of a Justice Department official.

10:45 Is that core protected conduct?

10:47 We don't think that that's core protected conduct.

10:49 I don't think that I would characterize that episode quite that way.

10:53 We do agree that the Department of Justice allegations were a use of the president's

10:58 official power.

11:00 In many ways, we think that aggravates the nature of this offense.

11:05 Seeking as a candidate to oust the lawful winner of the election and have one self-certified

11:12 with private actors is a private scheme to achieve a private end.

11:17 And many of the co-conspirators alleged in the indictment are private.

11:21 But for an incumbent president to then use his presidential powers to try to enhance

11:26 the likelihood that it succeeds makes the crime in our view worse.

11:31 And so in the Department of Justice episode, it's cars very late in the election cycle

11:37 after many other schemes had failed.

11:40 And at that point, the petitioner is alleged to have tried to pressure the Department of

11:47 Justice to send false letters to the states claiming that there were serious election

11:52 irregularities and that they should investigate who they certified as a president.

11:56 None of this was true.

11:58 The Department of Justice officials all said this is not true.

12:01 We are not going to do that.

12:03 And at that point, petitioner is alleged to have threatened to remove the Department of

12:07 Justice officials who were standing by their oath and replace them with another person

12:13 who would carry it out.

12:14 We're not seeking to impose criminal liability on the president for exercising or talking

12:20 about exercising the appointment and removal power.

12:23 No, what we're seeking to impose criminal liability for is a conspiracy to use fraud

12:29 to subvert the election.

12:31 One means of which was to try to get the Justice Department to be complicit in this.

12:35 The case would have been no different if petitioner were successful and he had actually exercised

12:41 the appointment and removal power and had gone through and those fraudulent letters

12:45 were sent.

12:46 It would have made the scheme more dangerous, but it would not have changed the crime.

12:49 And how do we think about things like conversations with the vice president?

12:53 In other words, things that if you say it that way, it's clear that they would fall

12:56 under executive privilege.

12:59 But how does that relate to the question that we're asking here?

13:03 So this is one of the most difficult questions for the Department of Justice.

13:07 And I want to explain why that is.

13:10 If we are operating under a Fitzgerald versus Nixon lens and looking at this the way that

13:16 we look at things when there is a private lawsuit filed against the president, we take

13:22 a very broad view of what the outer perimeter of official presidential action is in order

13:28 to be as protective of the president against private lawsuits that, as this court explained

13:34 in Nixon versus Fitzgerald, can be very deleterious to the president's conduct of business.

13:39 So if we were putting this under a Fitzgerald lens, we would then have to answer to the

13:44 question, was he acting in the capacity as office seeker or was he acting in the capacity

13:51 as office holder?

13:53 And if you run through the indictment, you can find support for those two characterizations.

13:59 And the Department of Justice has not yet had to come to grips with how we would analyze

14:04 that set of interactions.

Kagan Raises Bribery Hypothetical When Questioning Jack Smith's Lawyer On Presidential Immunity

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