CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case 23-939, Trump
versus United States.
Mr. Sauer.
ORAL ARGUMENT OF D. JOHN SAUER
ON BEHALF OF THE PETITIONER
MR. SAUER: Mr. Chief Justice, and may it please the Court: Without presidential immunity from
criminal prosecution, there can be no presidency as we know it. For 234 years of American
history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in
Heritage Reporting Corporation
The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S.citizens
abroad by drone strike? Could President Biden someday be charged with unlawfully inducing
immigrants to enter the country illegally for his border policies?
The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. The original meaning of the Executive Vesting Clause, the Framers' understanding and intent, an unbroken historical
tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it.
I welcome the Court's questions.
Mr. Dreeben.
ORAL ARGUMENT OF MICHAEL R. DREEBEN
ON BEHALF OF THE RESPONDENT
MR. DREEBEN: Mr. Chief Justice, and may it please the Court:
absolute criminal immunity for any public official. Petitioner, however, claims that a Heritage Reporting Corporation former president has permanent criminal immunity for his official acts, unless he was first
impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain.
Here, the executive branch is enforcing congressional statutes and seeking accountability for Petitioner's alleged misuse of official power to subvert democracy. That is a compelling public interest.
In response, Petitioner raises concerns about potential abuses. But established legal safeguards provide layers of protections, with the Article III courts providing the ultimate check. The existing system is a carefully balanced framework. It Heritage Reporting Corporation protects the president but not at the high constitutional cost of blanket criminal immunity. That has been the understanding of every president from the framing through Watergate and up to today. This Court should
preserve it.
I welcome the Court's questions.
MR. SAUER: The source of the immunity
is principally rooted in the Executive Vesting
Clause of Article II, Section 1.
JUSTICE THOMAS: And how does that
happen?
MR. SAUER: That -- the source of it,
Justice Thomas, I think is, as you described in
your separate opinion in Zivotofsky, for
example, that the Executive Vesting Clause does
not include only executive powers laid out
explicitly therein but encompasses all the
powers that were originally understood to be
included therein.
And Marbury against Madison itself
provides strong evidence of this kind of
immunity, a broad principle of immunity that
protects the president's official acts from
scrutiny, direct -- sitting in judgment, so to
speak, of the Article III courts, that that
matches the original understanding of the
Executive --
JUSTICE THOMAS: So how --
MR. SAUER: -- Vesting Clause.
JUSTICE THOMAS: -- how exactly would
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we determine what the -- what an official act
is?
MR. SAUER: I'd say -- I'd point the
Court to two cases for that. Obviously,
Fitzgerald against Nixon is the best guidance
that the Court gives where it -- of course, the
Court adopted the outer perimeter test, and this
Court engaged in analysis there that's very
instructive here, where it looked at the level
of specificity at which the acts are described
in -- in -- in that case, a civil case. Here,
it would be the indictment. And --
CHIEF JUSTICE ROBERTS: Well, what if
you have -- let's say the official act is
appointing ambassadors, and the president
appoints a particular individual to a country,
but it's in exchange for a bribe. Somebody
says, I'll give you a million dollars if I'm
made the ambassador to whatever.
How do you analyze that?
MR. SAUER: That, I think, would fall
under this Court's discussion in Brewster, where
the Court held with respect to legislative acts
that bribery is not an official act, which also
matches the common law background.
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So the way that this Court in Brewster
kind of sliced at the joint was to say accepting
the bribe and the agreement to accept the bribe
are not official acts. That's private conduct
CHIEF JUSTICE ROBERTS: Okay. It's
not --
MR. SAUER: -- where a substantive
appointment would not be -- would be essentially
an unrestrictable power of this Court that
Congress couldn't directly regulate.
CHIEF JUSTICE ROBERTS: It's not --
accepting a bribe isn't an official act, but
appointing an ambassador is certainly within the
official responsibilities of the president. So
how could you -- how -- how does your official
acts or the official acts border, boundary come
into play when it's going to be official,
assuming that the president is innocent? But
the whole question is whether he's going to be
found innocent or guilty?
MR. SAUER: Again, I think Brewster
and Johnson do address that or very persuasively
at least in a slightly different context.
Brewster and Johnson say the indictment has to
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be expunged of all the immune official acts, so
there has to be a determination what's official,
what's not official, and --
CHIEF JUSTICE ROBERTS: Well, you
expunge the official. You say, okay, we're
prosecuting you because you accepted a million
dollars. They're supposed to say -- not say
what it's for because the what's for part is
within the president's official duties?
MR. SAUER: There has to be, we would
say, an independent source of evidence for that.
And keep in mind that this indictment charges
what this Court has described as unrestrictable
powers of the president. So the premise, the
logical premise, of this indictment is that
Congress, by passing vague and general criminal
statutes, has purported to directly regulate the
president's exercise of things like the exercise
of the employment and removal power, things like
his ability to speak directly to the American
public, core exercises of his authority under
the Recommendations Clause to recommend to
Congress, members of Congress, the measures he
thinks necessary and expedient.
So you have a indictment in this case
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that goes right to the heartland of the
president's powers, that alleges a whole series
of official acts and tries to tie them together
by saying, well, there's a private aim or a
private purpose in that case. And that's a
situation which, of course, could be alleged in
virtually any indictment.
JUSTICE SOTOMAYOR: Counsel, it can be
alleged, but it has to be proven. Malum in se
is a concept long viewed as appropriate in law,
that there are some things that are so
fundamentally evil that they have to be
protected against.
Now I think -- and -- and your answer
below, I'm going to give you a chance to say if
you stay by it. If the president decides that
his rival is a corrupt person and he orders the
military or orders someone to assassinate him,
is that within his official acts for which he
can get immunity?
MR. SAUER: It would depend on the
hypothetical. We can see that could well be an
official act.
