[00:00:00] Speaker 01:
Case number 22-5069-Hedda.

[00:00:03] Speaker 01:
James Blasengane and Sidney Andy versus Donald J. Trump at balance.

[00:00:08] Speaker 06:
Mr. Benall for the at balance.

[00:00:10] Speaker 06:
Mr. Sallers for the at the lead.

[00:00:13] Speaker 05:
Good morning, counsel.

[00:00:15] Speaker 05:
Mr. Benall, please proceed when you're ready.

[00:00:17] Speaker 04:
Good morning and may it please the court.

[00:00:19] Speaker 04:
Jesse Benall on behalf of Donald J. Trump.

[00:00:23] Speaker 04:
I will endeavor to save two minutes for rebuttal.

[00:00:27] Speaker 04:
The district court acknowledged that when President Trump made his address on the ellipse on January 6th, 2021, he was speaking on matters of public concern.

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It also held that speech is unquestionably a critical function of the presidency.

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It even found that a first-term president is, in a sense, always a candidate for office.

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Nevertheless,

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The district court incorrectly held that the speech and other similar presidential communications were not protected by absolute immunity because the content of the speech had an electoral purpose rather than a governance purpose.

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This purpose driven analysis that was favored by the district court is effectively a rebranding of the motive driven analysis

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that was considered and sadly rejected by the Supreme Court in Nixon versus Fitzgerald.

[00:01:30] Speaker 02:
I'm not sure that's fair.

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The district court just looked at the words on their face.

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Looked at the speech and said, is this political or is this governmental?

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Without getting into what was in the president's mind.

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Why is that?

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It might be right or wrong.

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It just doesn't seem to me motive based.

[00:01:58] Speaker 04:
Your honor, the reason that it is because when you look at purpose and when you look at motive, those are words that are used interchangeably in the Fitzgerald opinion, effectively interchangeably in the Fitzgerald opinion, and goes to what the intent of the president is for a particular communication.

[00:02:16] Speaker 04:
And when you start to do that sort of functional surgery, when you get so far down into deciding, well, what really is it?

[00:02:23] Speaker 04:
that the president is trying to do here.

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At that point, you start to blend the lines between what is something that is clearly within the realm of the presidency under Article 2, and what it's appropriate for Article 3 to look at.

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And that's why the Supreme Court was so clear in the case of the United States versus, I'm sorry, Nixon versus Fitzgerald,

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that you have to have very bright lines, because as soon as you start saying, well, the goal here really wasn't governance per se, but it was something that was political per se, it was to help them get re-election per se.

[00:03:05] Speaker 04:
As the district court even acknowledged in this case, with every first term president being a candidate for reelection, it will become the exception that swallows the rule.

[00:03:14] Speaker 05:
So I'm not sure line drawing cuts decidedly in favor of one side or the other.

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I think everybody has some line drawing issues here to some extent.

[00:03:22] Speaker 05:
Let me just explore that a little bit if I could.

[00:03:24] Speaker 05:
Yeah.

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Suppose you have a circumstance in which a president has a private meeting with supporters and urges them

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And this is in advance of an election, and urges them to go to the polls in unfavorable areas to intimidate voters and prevent them from exercising the franchise.

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And then there's a civil action that's filed by someone who's been intimidated into voting under 1985, which I think encompasses this kind of conduct.

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the president asserts official immunity.

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And by far that would be a horrible situation that we would hope would never happen.

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But in a case like that, and what the Fitzgerald court was very clear on, it's not that there's not a remedy.

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The question here is only on civil liability versus accountability.

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There still is the opportunity for accountability.

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So your answer is that in that situation there be official immunity.

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There would be official immunity, but even even if it's a private it's a totally private conversation and It's a private conversation between a president and supporters and he urges them in private.

[00:04:41] Speaker 05:
Um What I'm worried about is winning reelection.

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All I care about is winning reelection Doesn't have anything to do with any policy agenda.

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It just has to do with I want to be president and

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And I want you to help me make that happen by going to the polls in areas in which voters are likely to vote against me and prevent them from voting.

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A truly horrible situation if that were to happen.

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I want to make that clear.

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But in that case, the question is not necessarily whether it is political or electoral, but whether it is still something of public concern or, as the Clinton Court said, only of private concern.

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And in that case... Well, I think what the

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What the Nixon court said was it's within the outer perimeter of official responsibility.

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And that's the language that we were all revolving our questions around.

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And so you think it's within official responsibility to urge supporters to prevent people from voting.

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I think that's a disgusting goal.

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But I think that

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I think that's well within the realm of what the Fitzgerald dissenters used in their parades of oracles about how bad this could happen, what could happen if this goes wrong, and what the Fitzgerald court said.

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We understand that sometimes, even in the most extreme of circumstances, there are rights without remedies, and we do that with immunity every day.

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What is the official responsibility that's being othered there?

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And in this case, in the hypothetical, it's, of course, in something as bad as that, you don't want to say that there was something clearly on point, the president could point to, but the president taking actions regarding elections.

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And I don't think you want to filter down any more than that, because once you filter down any more than that, then you get into this type of judicial oversight of the executive that was not envisioned by the founders.

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So the executive being part of the of of elections of, you know, the bully pulpit of the presidency, even if it's something that's only privately said to the supporters to advance that.

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And I agree, your honor, that is what is.

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But the only thing that's being advanced

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And that hypothetical is reelection.

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That's it.

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And what's the official responsibility?

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You cannot separate governance from election.

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If the president wants reelection, it's so that the president can continue to govern.

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And so because of that, that's, I think, as far down as you can go to see that if this is within the realm of the presidency, as bad as that particular act might be.

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I want to make it clear, that's something where you would have an extremely strong case for impeachment in the house, conviction in the senate, and then you have the impeachment judgment clause.

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The beauty of this is that the founders gave us this system.

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They said that in certain circumstances, they know that something could go horribly wrong and that a president needs to be taken out of office.

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And if he is, at that point, he can be prosecuted for it.

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And something like that.

[00:07:56] Speaker 05:
But impeachment isn't always the answer, right?

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Because, I mean, even you acknowledging in your briefs that there are certain things that a president does while in office that wouldn't be subject to immunity.

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I think sexual assault was one of them that comes up.

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I think the Clinton case was clear on that.

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And so you could have an impeachment proceeding based on that if it's conduct while in office.

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And if conviction didn't happen after impeachment, you'd still allow for a civil action.

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In other words, it wouldn't matter that there's the impeachment remedy and it turns out that impeachment is unsuccessful.

[00:08:29] Speaker 04:
No, I would say it's more like concentric circles on something like that where, of course, you can have an impeachment based on private conduct, not just official conduct, and you can certainly have a lawsuit based on, as the Clinton court said, purely personal conduct.

[00:08:41] Speaker 04:
where you have something that's sexual assault, something purely of a purient interest, and especially, of course, with the Clinton case, it's also very clear that this happened before the presidency, not during the presidency.

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I think it's particularly important.

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No, I was hypothesizing one.

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I didn't understand your brief when you talked about sexual assault to be limiting it to

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sexual assault before the presidency.

[00:09:03] Speaker 05:
I assume you cover sexual assault, even if it's coterminous with the presidency.

[00:09:07] Speaker 04:
Yeah, it's something like that.

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It's purely a pure interest.

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So sexual assault, if it was a president talking to a stockbroker about his individual stocks,

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for instance, something that was only of his financial interest himself, not worried about the broader economy, but only that the financial interest himself, that would be another example of something that is as Clinton court, but purely personal.

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And so if you have something that's purely personal, that's different.

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Even if it's a speech.

[00:09:38] Speaker 05:
So on the purely personal one that you just highlighted, which is personal financial interest, if the president gives public remarks that say, um,

[00:09:50] Speaker 05:
by my family's product, by my son's product, instead of the competitor product, because the CEO of the competitor's company is a, name your immoral conduct that's going to dissuade somebody from purchasing it.

[00:10:05] Speaker 05:
And the only thing that's going on is personal financial interest.

[00:10:07] Speaker 05:
Even if it's in a speech, you'd think that would not be immune.

[00:10:10] Speaker 04:
That hypothetical is, I think, a much closer case because it could very well be that, you know, buy my product because the other side is bad, could very well be public concern.

[00:10:21] Speaker 04:
But if it was buy my product because I want more money in my account, and it was really limited to that, if it was that narrow, then yes.

[00:10:31] Speaker 05:
And how do you know that?

[00:10:33] Speaker 05:
So don't you have to mind motives to some extent, as you started out saying, to decide when the president says,

[00:10:40] Speaker 05:
buy my son's product.

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And I really want you to buy my son's product.

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And, you know, part of the reason you should buy my son's product is because the person who sells the other product is a philanderer.

[00:10:53] Speaker 04:
Doesn't have anything to do with... A much, much closer case.

[00:10:56] Speaker 04:
and something like that, and the other person being a plander, I think probably takes it to the point where it could very well be something that the public concerned because it had to do with society's moors rather than just private concern.

[00:11:14] Speaker 04:
But that is a much, much closer case, and it is clear that in order to decide if it's something purely personal,

[00:11:23] Speaker 04:
In the words of the Clinton court, you have to look at the act to decide that.

[00:11:28] Speaker 04:
But what you can't do is dive so far down that you run directly afoul of what the Fitzgerald court said.

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And it's, I think, noteworthy that in this case, the district court claims to be looking primarily at the Clinton case.

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But really, if you look at it, it's paralleling.

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the the objective objections of the dissenters in Fitzgerald and and so that really is is the difference there is are we taking in are we looking at.

[00:12:04] Speaker 04:
at a communication or presidential act so so granularly that if you get far enough down into the weeds, you can certainly find an objection about, well, this is really personal.

[00:12:14] Speaker 04:
It's not presidential.

[00:12:15] Speaker 04:
But once you do that, you start this article three oversight of the executive that that is directly opposite of what the Fitzgerald court was looking at.

[00:12:26] Speaker 02:
When when the president gets involved in electoral counting,

[00:12:34] Speaker 02:
What enumerated power of Article two is he acting under?

[00:12:41] Speaker 04:
Your honor, while it's very possible that when the president is campaigning, he might be executing, or just focus on electoral counting.

[00:12:52] Speaker 02:
I'm sorry, on counting of electoral votes.

[00:12:58] Speaker 02:
Because normally, normally, you know, the president

[00:13:03] Speaker 02:
has a take care power, which encompasses all federal statutes.

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He is a lawmaker to the extent he can sign or veto bills.

[00:13:15] Speaker 02:
So if he's talking about things that could be the subject of a federal statute, but that's sort of easy to see the speech about the matter is sort of necessary and proper or closely connected to those powers.

[00:13:32] Speaker 02:
But electoral counting seems different because the Constitution and the statutes are very clear in excluding the president.

[00:13:44] Speaker 02:
So what power is he acting under?

[00:13:48] Speaker 04:
And the words here are important because the Fitzgerald Court doesn't use the word power or duty.

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It uses the word function.

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It uses the word function.

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So it's something that's not necessarily something that comes directly from a statute or constitution, but it does fall in the presence.

[00:14:05] Speaker 02:
I mean, is that a vehicle for creating an unenumerated power?

[00:14:11] Speaker 02:
in the president?

[00:14:13] Speaker 04:
No, it's not something that creates unenumerated powers.

[00:14:16] Speaker 04:
What it does do is... And which power is he acting under?

[00:14:19] Speaker 04:
It's something that part of the historical aspect of the presidency that's been long recognized is the bully pulpit, is the president to speak on things that are not necessarily within his official constitution or article two power.

[00:14:33] Speaker 04:
So for instance, it is very, very normal

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For presidents to comment on decisions of course now it has happened many times this year alone.

[00:14:42] Speaker 04:
It's very normal for a president to comment on any number of things that the president was specifically excluded under.

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from under the Constitution, you know, a veto override.

[00:14:57] Speaker 04:
The president would still speak on even though he has no part in a veto override.

[00:15:01] Speaker 04:
There's any number of things that is normal and customary for a president to speak about using the bullet pulpit, using those matters of public concern.

[00:15:09] Speaker 04:
And in these times, it's especially important that we protect the ability of the president to act and the words

[00:15:19] Speaker 04:
of the Nixon court with the maximum ability to deal fearlessly and impartially with the duties of his office.

[00:15:29] Speaker 04:
And so that goes just beyond, and the Fitzgerald court talks about, you can't draw lines that are so fine that it ignores the history of the presidency and what the president does.

[00:15:43] Speaker 00:
So even if you haven't cited

[00:15:47] Speaker 00:
a Supreme Court decision that quite goes as far as your last proposition.

[00:15:55] Speaker 00:
You are asking this court to adopt that standard.

[00:16:02] Speaker 00:
In other words, you resist any effort to drill down in your words.

[00:16:13] Speaker 00:
Yet what I hear you saying, I thought you were arguing this in your brief as well, that at least it's the bully pulpit, because that's just traditional, a part of a president's function, whether he is commenting on the actions of another branch or not, that the court has no role to play here.

[00:16:45] Speaker 04:
Your honor, if it's something, I would say that if it is something on public concern, that's right.

[00:16:54] Speaker 04:
At that point, the remedy is different than a damages action.

[00:16:59] Speaker 04:
on the civil side of the court.

[00:17:01] Speaker 04:
At that side, then we have to follow the other remedies that are available, something that the Fitzgerald Court was very, very clear about.

[00:17:09] Speaker 04:
And the Fitzgerald Court, I think, goes into some detail about the 75,000

[00:17:15] Speaker 04:
I mean, that time is probably more than now, 75,000 other people in the country that have protections of absolute immunity.

[00:17:24] Speaker 04:
And that doesn't mean that there aren't very worthy plaintiffs that are denied a remedy because of that.

[00:17:30] Speaker 04:
If you look at the remedy... That's really your point.

[00:17:34] Speaker 00:
Historically, separation of powers.

[00:17:39] Speaker 00:
The founders made certain choices.

[00:17:43] Speaker 00:
And to the extent those choices were, what I'll say, rational decisions based on their experience in dealing with the king, that there may be gaps in our system such that, for example, the president may have no role in ensuring the electoral integrity of the process for electing president.

[00:18:11] Speaker 00:
But nevertheless,

[00:18:13] Speaker 00:
That is within the outer limits.

[00:18:16] Speaker 00:
And as I hear you, and I thought this is true in your brief, you really resisted any definition of limits.

[00:18:27] Speaker 00:
And I know the Supreme Court has spoken in terms of, well, when you can't cite an enumerated power or authority, then you can, of course, rely on history.

[00:18:42] Speaker 00:
But the court there seems to be focusing on 200 years of precedent, for example, in subpoenas of president.

[00:18:51] Speaker 00:
So I just wondered how you would have the court write the standard.

[00:19:01] Speaker 04:
Thank you, Judge Rogers.

[00:19:03] Speaker 04:
And it's, of course, important to have standards like that.

[00:19:07] Speaker 04:
And the standard that the court should adopt

[00:19:12] Speaker 04:
is very similar to what was already done with Fitzgerald in that you're limited to only seeing whether something is either within a statutory framework for the presidency, constitutional framework of the presidency, or historical framework of the presidency.

[00:19:31] Speaker 04:
And if it falls within that, that is the end of the inquiry for absolute immunity purposes, especially for the presidency where there's that it's

[00:19:41] Speaker 04:
perhaps the most important absolute immunity of numerous in our system because it's so inherent in the separation of powers.

[00:19:50] Speaker 04:
And so at that point, once you decide it's on issues of public concern, there's still an opportunity for accountability.

[00:19:58] Speaker 04:
It's just not accountability through a civil damages lawsuit.

[00:20:03] Speaker 02:
Suppose I agree with you on speech of matters of public concern.

[00:20:11] Speaker 02:
And I also agree with you that it is too fraught to, as a general matter, to try to distinguish political speech from official speech as to the president.

[00:20:25] Speaker 02:
What makes this a hard case for me, putting all of that aside, is the at least colorable case of incitement.

[00:20:39] Speaker 02:
And what is the functional justification or historical pedigree for extending an absolute immunity in the actual case or a hypothetical case to a president who just insights lawless action, riots in the streets and so.

[00:21:05] Speaker 04:
And Judge Katz, that's exactly the issue that I think the Fitzgerald court was dealing with when they looked at the arguments about what is the point of allowing a president to do something that is directly unlawful in a personal life?

[00:21:21] Speaker 02:
It's very different.

[00:21:22] Speaker 02:
Fitzgerald was about a clearly official act within the president's power that might or might not be unlawful

[00:21:35] Speaker 02:
depending on the president's motive.

[00:21:38] Speaker 02:
It's a retaliation case and the court says that's just too intrusive to try to police that line.

[00:21:45] Speaker 02:
It seems to me different.

[00:21:48] Speaker 02:
Take the hypothetical case.

[00:21:50] Speaker 02:
The president gets out the microphone and says, this election was stolen.

[00:21:57] Speaker 02:
They are not going to do anything.

[00:21:59] Speaker 02:
You go burn Congress down.

[00:22:03] Speaker 04:
Hypothetical, of course, not not with seven speed, but in a case like that, extend immunity, absolute immunity for that only as in regards to civil liability.

[00:22:17] Speaker 04:
And let's let's look at something that's that's very, very horrible.

[00:22:22] Speaker 04:
And that is a prosecutor purposely taken in manufacturing evidence, put an innocent defendant behind bars, something that is absolutely horrible.

[00:22:32] Speaker 04:
And we still say you can't sue that prosecutor.

[00:22:34] Speaker 04:
It doesn't mean that that prosecutor is free from accountability.

[00:22:38] Speaker 04:
It just means that we say that that defendant cannot, the criminal defendant cannot be a civil plaintiff against that prosecutor.

[00:22:50] Speaker 02:
Because we sort of expect that if we allow claims like that,

[00:22:57] Speaker 02:
they'll happen all the time.

[00:23:00] Speaker 02:
They might turn on motives, just the burden of the burden on the system will be too great.

[00:23:05] Speaker 02:
So we just allow that wrong to go uncorrected through civil remedies.

[00:23:12] Speaker 02:
This just seems, I mean, how many cases or will there be with a colorable claim of incitement against the president?

[00:23:23] Speaker 02:
And what's the harm of trying to police, you know, is this just above the Brandenburg line or just below the Brandenburg line?

[00:23:34] Speaker 02:
It seems like that is not going to hamstring the president in his day-to-day job.

[00:23:41] Speaker 04:
I believe it is going to hamstring the president in his day-to-day job.

[00:23:47] Speaker 04:
Here's why.

[00:23:48] Speaker 04:
is because once you start to draw that line and you start to do a type of Brandenburg type First Amendment analysis of incitement,

[00:23:59] Speaker 04:
in the presidency.

[00:24:03] Speaker 04:
At that point, you now have judges that are acting on empires on what crosses that line and what doesn't in such a way that presidents will have to worry about giving speeches and everything, giving impassioned speeches as every president has.

[00:24:17] Speaker 04:
And highly controversial presidents, highly controversial speeches by presidents, which has happened before President Trump and has happened after President Trump.

[00:24:26] Speaker 04:
and have to worry about what judge is this going to land in front of, what court is this going to land in front of in such a way that I might have to go through the full aspects of litigation, which is exactly what immunity is supposed to protect against.

[00:24:43] Speaker 04:
And that line drawing here, if you do, runs directly about, directly, of what the Fitzgerald Court was concerned about, where they knew that things

[00:24:53] Speaker 04:
Uh, what happened that would be controversial and they knew that the founders gave us an option for that.

[00:25:01] Speaker 04:
They knew that there was a way for dealing with that.

[00:25:03] Speaker 04:
It just wasn't through civil damages.

[00:25:07] Speaker 05:
Um, we'll make sure you, I'm fine.

[00:25:10] Speaker 05:
You had a line of questioning.

[00:25:11] Speaker 05:
Okay.

[00:25:11] Speaker 05:
Um, can I follow up a little bit on what I thought was the main argument you were putting forward in your briefs, which is about the bully pulpit and speech making.

[00:25:21] Speaker 05:
But what I hear from you this morning is not necessarily about the bully public speech making, because it seems like your argument applies to purely private interactions.

[00:25:33] Speaker 05:
And so I don't know what work the speech making is doing.

[00:25:36] Speaker 05:
It seems like the line you're drawing now is purely personal versus matter of public concern, regardless of whether it's in a speech or in private.

[00:25:43] Speaker 05:
And am I missing something?

[00:25:44] Speaker 05:
Because suppose you have the personal product, promoting a personal product.

[00:25:51] Speaker 05:
And even in a speech, your point is that if it's just for driving one's personal wealth, that's purely personal.

[00:26:01] Speaker 05:
And the fact that it's in the book, it's the bully pulpit.

[00:26:03] Speaker 05:
The president uses the bully pulpit to say, buy this line of merchandise.

[00:26:10] Speaker 05:
It's going to be great for me and my family.

[00:26:13] Speaker 05:
But I'm sitting on the bully pulpit telling you this is the best stuff you've ever seen.

[00:26:18] Speaker 05:
by this, but you think that because it's purely personal, the bully pulpit doesn't matter.

[00:26:22] Speaker 05:
It really, the dividing line is between purely personal and something that's beyond that so as to bring it within official responsibility.

[00:26:31] Speaker 04:
I think we come back to the lines finer than history would allow there, Judge Srinivasan, where the bully pulpit is incredibly important to this analysis, but the bully pulpit is something going all the way back

[00:26:46] Speaker 04:
as far as what I've been able to look at and find, and I've looked at a great number of speeches at this point, is on these matters of public concern when you're speaking as the president.

[00:27:00] Speaker 04:
And that's the line that I think is particularly important to draw.

[00:27:02] Speaker 04:
I think it is difficult on any speech the president gives to decide that it's outside the bully pulpit of the presidency

[00:27:14] Speaker 05:
Um, and it, you know, certainly the bully pulpit is within the outer parameters of the presidency, but I'm just mindful of, but not no matter what it's about, because it's not, you don't have a bully pulpit Uber all this rule, because even if it's the bully pulpit, if it's a bully pulpit about something that's personal, you think no immunity.

[00:27:35] Speaker 04:
I'd say a bully pulpit on things that are personal only.

[00:27:38] Speaker 04:
Is not historically as clearly historically as part of the presidency.

[00:27:43] Speaker 04:
I think that is would be a very fact intensive inquiry.

[00:27:46] Speaker 04:
I think that's very different in this case.

[00:27:48] Speaker 04:
But I think that is something that is a much closer call.

[00:27:52] Speaker 05:
But I would say that close enough, closer call.

[00:27:55] Speaker 05:
Yes, but close enough that the lines have to be drawn so that even if it's really pulpit and it's purely personal, however you define the category.

[00:28:03] Speaker 05:
So it's really, really personal, not just kind of personal.

[00:28:05] Speaker 05:
Again, I think I understand where you're going with this.

[00:28:07] Speaker 05:
Um, but so long as it's really, really personal, even if it's the bully pulpit, no immunity.

[00:28:13] Speaker 04:
That's the way you look at it.

[00:28:15] Speaker 04:
I think the words used in Clinton are right, purely personal.

[00:28:23] Speaker 04:
If something is purely personal, the Supreme Court in Clinton says that that's not due immunity.

[00:28:31] Speaker 05:
That's very different.

[00:28:34] Speaker 05:
If you have a presidential candidate who then says, an incumbent who's running for re-election, who says, I want to be re-elected,

[00:28:43] Speaker 05:
And the reason I want to be reelected is because it's really good for me personally.

[00:28:48] Speaker 05:
My products are going to go through the roof.

[00:28:50] Speaker 05:
If I get reelected, that's what I'm worried about.

[00:28:54] Speaker 04:
admittedly a much different case and admittedly a much closer call.

[00:29:00] Speaker 04:
And private discussions are certainly a closer call that private discussions are also just such an inherent part of the presidency.

[00:29:09] Speaker 04:
That's why we have executive privilege, of course, is because private communications are also a very important part of the presidency.

[00:29:18] Speaker 04:
And so the question then becomes,

[00:29:21] Speaker 04:
Is this something that is within the outer perimeter and part of the outer perimeter is speaking on matters of public concern?

[00:29:30] Speaker 04:
So if it's something where it's close, it's even close, and this isn't close.

[00:29:36] Speaker 04:
This is speaking about, you know, this is a speech about an election that is clearly political concern.

[00:29:42] Speaker 04:
This is dead center.

[00:29:44] Speaker 04:
But in the exception.

[00:29:47] Speaker 00:
Go ahead, finish your answer.

[00:29:49] Speaker 04:
Thank you.

[00:29:50] Speaker 04:
Thank you, Judge Artie.

[00:29:52] Speaker 04:
But the analysis that you have is admittedly closer because it appears to be purely personal at that point because it's only a pecuniary interest.

[00:30:02] Speaker 04:
And then so you look at something that is, by the words alone, only a pecuniary interest, just like in the Clinton case of purely a sexual interest, then that makes it that very, very close call.

[00:30:17] Speaker 04:
But that's not where we are here.

[00:30:19] Speaker 00:
So let me add on a couple of questions my colleagues asked, namely, had the president said, as I think Judge Katz had a hypothetical, the election was stolen and I want you, my supporters,

[00:30:47] Speaker 00:
to go to the Capitol and burn it down or words to that effect.

[00:30:52] Speaker 00:
I want you to personally attack members of Congress.

[00:30:57] Speaker 00:
I want you to interrupt the proceedings.

[00:31:01] Speaker 00:
And what I'm trying to understand in your argument is where hypothetically the president is undermining by his words

[00:31:16] Speaker 00:
the system that the founders established and arguably crossing the line to not only maybe not specifically articulating burn the Capitol and attack members of Congress, nevertheless,

[00:31:41] Speaker 00:
that was the reasonable import of his remarks as the district court found it, found.

[00:31:53] Speaker 00:
And to the extent neither Nixon nor Clinton involved this type of situation where, to put it bluntly, even though the president may speak about

[00:32:10] Speaker 00:
destroying the constitutional system and doing so by crippling another branch of government.

[00:32:20] Speaker 00:
That's all within the outer limits of the bully pulpit, which at least heretofore, I hadn't understood to stretch so far that it could be that type of remark.

[00:32:40] Speaker 04:
And Judge Roberts, the hypothetical you use, of course, is different from encouraging your supporters to peacefully and patriotically make their voices heard.

[00:32:51] Speaker 04:
But I understand your concern and your hypothetical.

[00:32:54] Speaker 04:
And what I would again point you to is the Fitzgerald opinion, where they say that presidential matters will arouse the most intense feelings.

[00:33:05] Speaker 04:
So this is not something that was

[00:33:08] Speaker 04:
unheard of to them.

[00:33:09] Speaker 04:
And in a hypothetical like you just gave, you're looking at a very, very clear example when impeachment could be used.

[00:33:21] Speaker 04:
Go burn down the Capitol.

[00:33:22] Speaker 04:
Impeachment could be used.

[00:33:24] Speaker 04:
Conviction could be used.

[00:33:26] Speaker 04:
And very possibly, at that point, there could be, through the Impeachment Judgment Clause, further proceedings.

[00:33:32] Speaker 00:
I think what you're trying to explain is you're seeking absolute immunity.

[00:33:39] Speaker 00:
despite the nature of the remarks.

[00:33:46] Speaker 00:
And that impeachment is the only remedy.

[00:33:51] Speaker 00:
Isn't that correct?

[00:33:54] Speaker 04:
It's correct that that's what the Fitzgerald Court said that the remedy is.

[00:33:59] Speaker 04:
And so it's not what I think is appropriate or what's not.

[00:34:04] Speaker 04:
This debate has already happened, and it was decided by the Fitzgerald Court.

[00:34:07] Speaker 00:
What I'm trying to get at is that we may not have 200 years of precedent that the court looked at in advance, for example.

[00:34:18] Speaker 00:
But there's always a first case.

[00:34:23] Speaker 00:
And certainly, the district court and this court is not required to

[00:34:29] Speaker 00:
ignore the obvious, unless there would be absolute immunity.

[00:34:43] Speaker 00:
And I think your argument is basically, it doesn't matter what the president says.

[00:34:49] Speaker 00:
He may arouse feelings, he may arouse feelings even where he knows people have come armed

[00:35:00] Speaker 00:
with military weapons.

[00:35:04] Speaker 00:
And any candidate knows there are fringe people supporting them.

[00:35:13] Speaker 00:
They have to be careful.

[00:35:15] Speaker 00:
But nevertheless, the complaint cites a course of conduct by the president.

[00:35:25] Speaker 00:
Over months, and

[00:35:31] Speaker 00:
Is there no role at that point where, as a district court found, and these are not the district court's words, but the president is seeking to destroy our constitutional system?

[00:35:51] Speaker 04:
And in the facts of this case, the answer is there is not a place in civil litigation

[00:35:58] Speaker 00:
to review those acts of of the president and any acts no matter how limits that's my point under your argument though you couch some of your answers as well we don't need to drill down any further as a practical matter regardless of what the president says you're saying he is entitled to absolute immunity and the only remedy under the constitution is impeachment

[00:36:28] Speaker 00:
And I'm just trying to get you to deal with at least, I don't read the opinions of the Supreme Court to split that, although I understand the references to history, I understand the references to president, but there always has to be a first case, all right?

[00:36:47] Speaker 00:
And maybe it's not this case, and maybe it'll have to wait for the Supreme Court to identify that first case.

[00:36:57] Speaker 00:
But isn't that sort of the factual situation that's before this court?

[00:37:06] Speaker 04:
Your Honor, the issue with the first case is that it will almost certainly open the flood doors to the 20th case and the 50th case.

[00:37:16] Speaker 04:
And so that is why we have to be, that's why the Fitzgerald court was so careful to close those doors.

[00:37:24] Speaker 04:
on issues just like this.

[00:37:26] Speaker 04:
And what the court is wrestling here is certainly understandable.

[00:37:30] Speaker 04:
But it's the same exact thing that the Fitzgerald court wrestled with 40 years ago, and it made a decision on that.

[00:37:36] Speaker 04:
And if the argument is that the Fitzgerald court was just wrong, then that's a question for the Supreme Court, not for this court.

[00:37:46] Speaker 04:
Because these are our questions as clear as

[00:37:51] Speaker 04:
Your honor has been on the difficulties of presidential actions that arouse most intense feelings.

[00:38:01] Speaker 04:
The Supreme Court has been very clear that that's not a position for courts, especially in civil litigation.

[00:38:09] Speaker 02:
I just asked, no, go ahead, please.

[00:38:11] Speaker 02:
You've said civil liability clearly off the table, impeachment clearly on the table.

[00:38:18] Speaker 02:
You have a position on criminal liability.

[00:38:21] Speaker 04:
It's a very different case, but I think that I don't have to necessarily have a position on that because the founders did.

[00:38:29] Speaker 04:
And I think other courts have spoken more at length about it.

[00:38:34] Speaker 02:
The attractiveness of absolute immunity in the civil context might depend on the number of other remedies failed.

[00:38:43] Speaker 04:
That's right, your honor, I would agree with that.

[00:38:47] Speaker 04:
And so what you have is, for instance, we've talked about impeachment a lot today, but the Fitzgerald court talks about the other remedies.

[00:38:56] Speaker 04:
Is criminal a possibility?

[00:38:58] Speaker 04:
Criminal, if you look at other cases that are out there, theoretically could be, especially when you look at the impeachment judgment clause, where if in the hypothetical that the court used earlier, there was something so extreme as,

[00:39:12] Speaker 04:
instructing people to burn down the Capitol and something that is inflaming.

[00:39:19] Speaker 04:
We're looking at a very, very different case than peacefully and patriotically make your voice heard, where at that point, the case for impeachment, for removal is so strong that you have the impeachment judgment clause.

[00:39:33] Speaker 04:
For just that reason, where the founders made very clear that after an impeachment, after a conviction, after a removal from office,

[00:39:41] Speaker 04:
that there can be criminal aspects.

[00:39:44] Speaker 04:
You then also look at some of the other cases that have been decided more recently.

[00:39:51] Speaker 04:
You know, of course, you have United States versus Nixon, et cetera, et cetera, where there could also theoretically be the other remedies that are available.

[00:40:02] Speaker 04:
And the Fitzgerald Court was extremely clear that they were only talking about civil liability.

[00:40:09] Speaker 04:
Well, they didn't go into as much detail about things like criminal liability, and that's not why we're here today.

[00:40:15] Speaker 04:
The Fitzgerald Court was talking about civil liability.

[00:40:19] Speaker 04:
That's why we're here today.

[00:40:21] Speaker 05:
Just two more questions I know, and we'll give you some rebuttal time.

[00:40:27] Speaker 05:
What do I do with the following set of considerations that for when a president is seeking reelection, there's a lot of things that a president might do to seek reelection

[00:40:39] Speaker 05:
that are nothing bound up in his official responsibilities as president because the opponent might seek to do the very same things.

[00:40:45] Speaker 05:
And the opponent, by definition, can't be the president at the same time.

[00:40:49] Speaker 05:
So the opponent says, I want to do the following things to make sure that my side wins.

[00:40:58] Speaker 05:
And all they're trying to do is to get an office.

[00:41:01] Speaker 05:
The president's trying to do the exact same thing.

[00:41:04] Speaker 05:
Why isn't it the case that when

[00:41:06] Speaker 05:
You have actions that could equally be done for the exact same purpose, which is to gain office, that a non-president can do.

[00:41:13] Speaker 05:
It takes it outside the can of what's within the perimeter of the president's official responsibility, which is the word.

[00:41:22] Speaker 04:
Yes, Judge.

[00:41:24] Speaker 04:
Judge Srinivasan.

[00:41:27] Speaker 04:
advantages, of course, that are built into our system that an incumbent president does have.

[00:41:33] Speaker 04:
And I don't know that this is necessarily an advantage so much as it's something that follows the office of the president.

[00:41:40] Speaker 04:
And so, for instance, an early candidate for president is not going to have Secret Service protection, but a president is.

[00:41:50] Speaker 04:
A candidate for president is not necessarily going to have the amazing advantage of having Air Force One.

[00:41:57] Speaker 04:
a president is.

[00:41:59] Speaker 04:
And in this case, there are still very robust protections for all presidential candidates.

[00:42:06] Speaker 04:
The First Amendment dead center has to do with political speech and what a presidential candidate is going to say on the campaign.

[00:42:14] Speaker 05:
I guess it's not what I'm asking about, and I know I'm asking very abstractly so I can make it more concrete, but I'm not trying to say that there's a disequilibrium and then one side is advantaged for purposes of the election.

[00:42:24] Speaker 05:
I'm not worried about that.

[00:42:25] Speaker 05:
What I'm worried about is whether it actually falls within official presidential responsibility.

[00:42:30] Speaker 05:
when what's going on is campaigning for office.

[00:42:32] Speaker 05:
Both sides are campaigning for office.

[00:42:34] Speaker 05:
Both sides do things that try to maximize the chances that they'll win.

[00:42:37] Speaker 05:
It just turns out that when the president does some things that maximize the chances that he'll win, it's immune when the other side does the exact same thing.

[00:42:50] Speaker 05:
The other side, to use the hypo I started it out with, tries to get people to the polls who support them to prevent anybody from voting.

[00:42:59] Speaker 05:
in districts that are going to be disadvantageous for them to have a high vote count.

[00:43:06] Speaker 05:
And all they're trying to do is get in office.

[00:43:09] Speaker 05:
By definition, it has nothing to do with official presidential responsibility, because all they're trying to do is get in office.

[00:43:14] Speaker 05:
It's the exact same thing the president's trying to do.

[00:43:17] Speaker 05:
All he's trying to do is trying to get in office.

[00:43:19] Speaker 05:
Yet total immunity on one hand, you can have agreements with people to go to the polls to stop people from voting, and you can't be sued civilly.

[00:43:30] Speaker 04:
That's right, your honor.

[00:43:32] Speaker 04:
And I understand what the court is concerned about there.

[00:43:35] Speaker 04:
But what I would say is there may be a number of things that are within the functions of the presidency that are not unique to the presidency.

[00:43:45] Speaker 04:
So while it is unique to the presidency that he has,

[00:43:49] Speaker 04:
at least highly unusual for the presidency and probably unique of the bully pulpit of the presidency.

[00:43:56] Speaker 04:
It certainly is not a case that other people can't give impassioned speeches that get a wide audience and that you're going to have different legal protections.

[00:44:05] Speaker 04:
And it is still the case, for instance, that government employees that retaliate against other government employees

[00:44:18] Speaker 04:
are not going to have the same level of immunity.

[00:44:20] Speaker 04:
They'll have a different immunity.

[00:44:22] Speaker 04:
And there's certainly, of course, retribution and employment that happens all across this country every day.

[00:44:29] Speaker 04:
There's no immunity at all.

[00:44:32] Speaker 04:
So, of course, in courtrooms just like this one, certainly in this building, you have people that are operating where a prosecutor can do one thing and be immune from civil liability and a defense attorney can do almost the exact same thing.

[00:44:48] Speaker 04:
and is very much subject to liability.

[00:44:51] Speaker 04:
So this is something that's inherent in our system that because it's so important to protect certain functions of certain offices, that it's going to be that equilibrium at least to some extent.

[00:45:05] Speaker 05:
Last question for me for now.

[00:45:08] Speaker 05:
The insulation that immunity affords would apply even if the president who's a presidential candidate offers payment, right?

[00:45:16] Speaker 05:
of the way you're looking at it.

[00:45:17] Speaker 05:
So if the presidential candidate says, I'll pay you to go to the polls to prevent people from voting.

[00:45:24] Speaker 05:
I'm not talking about speech.

[00:45:26] Speaker 05:
I'm just saying that's an action that just said it's just an action that says I was intimidated from voting.

[00:45:31] Speaker 05:
I went to the polls to vote.

[00:45:32] Speaker 05:
I couldn't vote because this person came to me armed and said, you're not going to vote today.

[00:45:37] Speaker 05:
I went home.

[00:45:38] Speaker 05:
Turns out the president paid that person to make sure that I couldn't vote.

[00:45:42] Speaker 05:
Doesn't have anything to do with speech.

[00:45:43] Speaker 05:
It's just the conduct of preventing me from voting.

[00:45:46] Speaker 05:
and the conduct the president took, your answer is still immunity.

[00:45:51] Speaker 04:
My answer is that immunity civilly.

[00:45:54] Speaker 04:
That is something dead center that there should be very serious consequences for in the other aspects of accountability.

[00:46:03] Speaker 02:
But as far as civil immunity goes... Even in a case where first amendment law would treat something as a verbal act rather than a speech,

[00:46:16] Speaker 02:
Yes, Judge Katz says this is different than... Why are you fighting that?

[00:46:20] Speaker 02:
That's not this case.

[00:46:21] Speaker 02:
Why do you need to win that?

[00:46:23] Speaker 04:
I don't need to win that.

[00:46:25] Speaker 04:
I think that, of course, is a much, much closer case.

[00:46:27] Speaker 04:
Well, I'm trying to understand... That seems like an extraordinary... No, that's an extraordinary... And I will say this.

[00:46:32] Speaker 04:
That becomes something that certainly is very fact-dependent because it's not part of the bully pulpit of the presidency.

[00:46:38] Speaker 04:
It's something on the matter of the public... But we already got past bully pulpit.

[00:46:41] Speaker 05:
Right.

[00:46:41] Speaker 05:
I think earlier you realized we're past the bully pulpit because even private conversations are fine as long as they concern an election.

[00:46:49] Speaker 04:
Certainly, yeah.

[00:46:50] Speaker 04:
Immunity is not limited to the bully pulpit.

[00:46:54] Speaker 04:
Absolutely.

[00:46:55] Speaker 04:
And so what I'm getting at there is that it is certainly much harder to tie the hypothetical that you just gave into a historical aspect of a presidency, such as the bully public.

[00:47:08] Speaker 04:
It's a much, much closer case at that point.

[00:47:11] Speaker 05:
So for instance... But still immunity under your view.

[00:47:14] Speaker 05:
I mean, your argument is that you have immunity because it has to do with an election.

[00:47:18] Speaker 04:
Well, it's a closer call.

[00:47:20] Speaker 04:
I still think immunity probably would apply in that situation.

[00:47:23] Speaker 04:
Yeah, and one thing to look at is congressional immunity, where you might have one member of the House of Congress beat another with a cane, right?

[00:47:32] Speaker 04:
And that wasn't part of speech and debate.

[00:47:34] Speaker 04:
Because it was beating with a cane, there was criminal liability on that.

[00:47:39] Speaker 04:
And there was no protection on the House floor when that happened with Preston Brooks.

[00:47:46] Speaker 04:
beating some term and the lead up to the Civil War.

[00:47:50] Speaker 04:
So something like that, where we look at the other immunity for Article one, you can look at and see that there is a much closer.

[00:47:57] Speaker 05:
Right.

[00:47:58] Speaker 05:
And to be and to be to fall within immunity, which you said it does, that means that that conduct is within the outer perimeter of official responsibility.

[00:48:09] Speaker 05:
That's within official responsibility.

[00:48:11] Speaker 05:
I'm saying that it's that because it's

[00:48:16] Speaker 04:
Let me watch.

[00:48:20] Speaker 04:
It certainly is my answer that it is, but it becomes then the closer call that we talked about, not nearly as clear as we are here as to whether that's connected to something that's historically part of the presidency, unlike giving a presidential speech or communicating as president.

[00:48:38] Speaker 02:
One more question for me, which is,

[00:48:42] Speaker 02:
about an argument I don't think you made, but correct me if I'm wrong.

[00:48:47] Speaker 02:
The principal statute here applies generally to persons.

[00:48:54] Speaker 02:
And we in the Supreme Court have a line of cases which say if you have a generally worded statute that covers persons or agencies right in the FOIA context, the APA context, we presume that those general words don't pick up the president.

[00:49:13] Speaker 02:
Did you make that argument?

[00:49:15] Speaker 02:
And if not, why not?

[00:49:16] Speaker 04:
I'm not sure that that's quite as with.

[00:49:21] Speaker 04:
Let me say this.

[00:49:21] Speaker 04:
That is clearly something that the court should consider in a Nixon type.

[00:49:28] Speaker 04:
analysis, I think that the court certainly can make that consideration in a Nixon versus Fitzgerald.

[00:49:37] Speaker 04:
Did you make the argument?

[00:49:39] Speaker 02:
I don't know if we made it in quite that way.

[00:49:42] Speaker 02:
I didn't see it in the district court opinion.

[00:49:45] Speaker 04:
I believe it was, you know, Judge Katz is trying to go back to the briefs.

[00:49:53] Speaker 04:
I don't want to make a representation that I'm clear on.

[00:49:55] Speaker 02:
Fair enough.

[00:49:55] Speaker 02:
It wasn't before us.

[00:49:56] Speaker 02:
It just struck me that might be a little bit of a narrower and more textually based way of operationalizing some of the themes you're articulating than getting into immunity, which has a little bit of a

[00:50:15] Speaker 02:
made up feel to me.

[00:50:16] Speaker 05:
That's that's right.

[00:50:18] Speaker 05:
And to be clear, as I understand the question, it doesn't have to do with Nixon versus Fitzgerald immunity.

[00:50:24] Speaker 05:
It's that textually.

[00:50:25] Speaker 02:
No, it's a textual question whether that's open to us as an alternative.

[00:50:32] Speaker 04:
I'd say it certainly is open to the court to decide something on that limited ground.

[00:50:38] Speaker 04:
And

[00:50:40] Speaker 04:
I'd have to think about the avoidance canon and whatnot and whether that's an appropriate at this stage.

[00:50:46] Speaker 02:
Immunity is a little bit open-ended.

[00:50:48] Speaker 02:
It might be common law-ish, but it might be Article II-ish.

[00:50:51] Speaker 02:
So if we render an immunity holding, I suppose it depends on how we write it, but we could be saying something about the Constitution, which

[00:51:02] Speaker 02:
statutory theory would not.

[00:51:04] Speaker 04:
That's right and this gets into a little bit of a discussion in Fitzgerald actually between the majority and Chief Justice Berger talking about what Congress can specifically do regarding

[00:51:21] Speaker 04:
making it so president is specifically subject to the suit.

[00:51:25] Speaker 04:
But I agree that that would be one aspect of an avenue that the court could take to resolve this question.

[00:51:34] Speaker 05:
Well, not our court.

[00:51:35] Speaker 05:
I mean, it's not that issues not before our court.

[00:51:38] Speaker 05:
You're just saying a court.

[00:51:41] Speaker 04:
That could certainly be something that resolved.

[00:51:43] Speaker 04:
It's not part of the immunity question.

[00:51:45] Speaker 04:
It really is not part of the immunity question.

[00:51:47] Speaker 04:
It's something that I would say is separate.

[00:51:50] Speaker 04:
And

[00:51:51] Speaker 04:
So that's something that could be looked at.

[00:51:56] Speaker 05:
Make sure my colleagues don't have additional questions for you at this time.

[00:51:59] Speaker 05:
Thank you.

[00:52:00] Speaker 05:
We'll give you some rebuttal time.

[00:52:01] Speaker 05:
We'll hear from Mr. Sellers now.

[00:52:15] Speaker 01:
Good morning.

[00:52:15] Speaker 01:
May it please the court, Joseph Sellers.

[00:52:18] Speaker 01:
I do want to address the immunity issue.

[00:52:20] Speaker 01:
If I do, I want to answer a question Judge Katz has just asked, although I think the issue of, I think it's the clear statement rule, is not an issue here because the nature of the question presented.

[00:52:31] Speaker 01:
But I would just fall to your attention, the Franklin against Massachusetts Supreme Court decision at 505.

[00:52:37] Speaker 02:
That's the one I had in mind.

[00:52:39] Speaker 01:
Okay.

[00:52:40] Speaker 01:
Well, the key there, the language there expressly says that it's

[00:52:44] Speaker 01:
the president's coverage in the statute, which is not named, should not be presumed where it might interfere with the president's constitutional prerogatives.

[00:52:54] Speaker 01:
And I submit that here, the president has not been engaged in anything remotely like constitutional prerogatives.

[00:53:00] Speaker 01:
So while that statute might apply in other circumstances where the president has acted, in our view, outside the outer perimeter of the presidency,

[00:53:09] Speaker 01:
I don't think you can apply that rule here, and I think Franklin and courts interpreting it have so recognized.

[00:53:15] Speaker 01:
So let me turn to the question that we do have before us, which is that President Trump is not entitled to the immunity which he seeks because his conduct interfered with the peaceful transfer of power, which is exclusively entrusted to Congress by the Constitution, in which the framers intentionally excluded the President from.

[00:53:39] Speaker 01:
And as a result, it's inconceivable that that kind of conduct, which infringed the prerogatives of another branch of government and be within the legitimate duties of the presidency, even the outer perimeter of those legitimate duties, it would be extraordinary.

[00:53:57] Speaker 01:
And I'll come back to President Trump's proposed matters of public concern, although there may be less of that to discuss than before.

[00:54:06] Speaker 01:
But it's inconceivable that

[00:54:09] Speaker 01:
the president can avail himself of immunity which derives directly from the same separation of powers underlying our government that his conduct warded by blocking the discharge of duties solely entrusted to Congress and from which the incumbent president was intentionally excluded.

[00:54:29] Speaker 01:
He can't have it both ways.

[00:54:30] Speaker 01:
He can't avail himself of an immunity

[00:54:32] Speaker 01:
provided by the separation of powers and you, but by virtue of conduct, it infringes on the separation of powers.

[00:54:39] Speaker 01:
And that is what he's done here.

[00:54:41] Speaker 01:
Um, I can turn.

[00:54:44] Speaker 05:
Let me just test that a little bit.

[00:54:46] Speaker 05:
So suppose the president exhorts, um, people who he's speaking to, to go to Congress, to stop a vote on legislation that he opposes.

[00:55:02] Speaker 05:
So that's interfering with Congress's conduct of a vote.

[00:55:08] Speaker 05:
But it's something that presidents often encourage people to let Congress know that they oppose legislation that's being considered.

[00:55:16] Speaker 01:
I think the circumstances here are more extreme because this is a situation.

[00:55:20] Speaker 01:
There's no question that the boundaries between the branches of government are not always siloed.

[00:55:27] Speaker 01:
So there are occasions where one may be engaged with the other.

[00:55:31] Speaker 01:
But this is an area that's hermetically sealed from the presidency, in which it's clear that not only was it exclusively entrusted to the president, but as opposed to maybe people appearing to lobby or express opinions on a piece of legislation.

[00:55:48] Speaker 01:
And very importantly, as a federalist paper 68 states,

[00:55:53] Speaker 01:
was intended to keep the president, incumbent president, away from the very process he interfered with.

[00:56:00] Speaker 01:
So I don't think it's the same circumstance.

[00:56:03] Speaker 01:
I think this is one that is not your run-of-the-mill president's saying, you might go to Congress and tell people that you don't like this legislation, which is maybe within the province of the... What if the legislation is an amendment to the Electoral Count Act?

[00:56:19] Speaker 05:
It's an amendment to the law that defines how Congress... I still don't think that it's... I mean, if it's enacted, it may be a different matter, but I think it's... No, but he opposes the legislation or supports it.

[00:56:35] Speaker 01:
Either way, he exhorts his... I don't think it... I think we're talking about what's incorporated into the Constitution and the Electoral Out Act.

[00:56:45] Speaker 01:
is an aid of enforcing the terms of the provisions of Article Two, but it's not something that is part and parcel of that.

[00:56:59] Speaker 01:
So I would not, I don't think we would think that is the same kind of violation of separation of powers.

[00:57:05] Speaker 05:
You think it is?

[00:57:06] Speaker 05:
It is not.

[00:57:08] Speaker 05:
It is not.

[00:57:08] Speaker 05:
So the president, that would be immune?

[00:57:11] Speaker 02:
That would be immune, yes.

[00:57:13] Speaker 02:
There are lots of circumstances in which a president speaks on matters that aren't in any obvious way connected to his take care or bill signing or other enumerated powers.

[00:57:32] Speaker 02:
Your broadest theory would call all of that into question or would at least expose the president to civil suits.

[00:57:40] Speaker 02:
That seems troubling.

[00:57:42] Speaker 02:
So let's just talk about a couple.

[00:57:46] Speaker 02:
The president is hermetically sealed away from deciding cases or controversies within the meaning of Article 3.

[00:57:58] Speaker 02:
There is, hypothetically, a leaked draft Supreme Court opinion, and the president issues

[00:58:05] Speaker 02:
The president issues a public statement strongly supporting or condemning the presumed decision in a pending case.

[00:58:15] Speaker 01:
Again, I don't think it is, the bottom line is I think the president is entitled to immunity.

[00:58:21] Speaker 02:
He is entitled to immunity.

[00:58:23] Speaker 02:
On what theory?

[00:58:25] Speaker 02:
On the theory that he's just talking about the result in the case.

[00:58:29] Speaker 01:
Correct.

[00:58:30] Speaker 01:
And that's the reason I think he's entitled to immunity.

[00:58:33] Speaker 01:
The remarks, I think, that President Trump's standard that he's proposing here, which focuses on the speech, although I will come to the history court's, I think, well-thought-out characterization of the speeches as promoting his incumbency, but putting that to one side as a general matter, I think the remarks the president makes are generally immune from speech.

[00:59:02] Speaker 02:
It's speech.

[00:59:03] Speaker 02:
it's on a matter of public concern and it's in an area where the president has no direct power.

[00:59:11] Speaker 02:
I understand.

[00:59:12] Speaker 01:
I think that what makes this particular situation an offense to the separation of powers is that his remarks were part of an ongoing course of conduct which led to the actual disruption

[00:59:27] Speaker 01:
of the performance.

[00:59:29] Speaker 02:
We'll talk about that.

[00:59:31] Speaker 02:
And just to show a few cards, what makes this a hard case for me, I ask your opponent about this, is the, I'll just say, arguable or colorable insight.

[00:59:43] Speaker 02:
But your broader theory about if the president is talking about a court issue or a state issue or cultural issue in the world,

[00:59:55] Speaker 01:
Oh, I think that's I'm sorry to interrupt you.

[00:59:58] Speaker 01:
No, I think those are ordinary functions of the presidency and would be well within the boundaries of the outer perimeter of the presidency is entitled to a mute.

[01:00:09] Speaker 02:
So the Supreme Court says that Congress lacks constitutional authority to prohibit

[01:00:19] Speaker 02:
possession of weapons within x hundred feet of a school president gets on tv and in fiery rhetoric urges the states to prohibit possession of guns within the school zone that's fine again i don't think it's an offense to the separation of powers it is a form of which

[01:00:41] Speaker 01:
And there's a lot of fiery rhetoric now these days in public discourse.

[01:00:44] Speaker 01:
So that alone, I don't think is.

[01:00:45] Speaker 02:
But I mean, I'm constructing the hypo so that you can't connect the speech to it.

[01:00:52] Speaker 01:
But as I understand it, the key part of the hypothetical is that it direct urge the states to take action.

[01:01:00] Speaker 02:
And it's that action which... And then he goes on to say, you better do this because these gun manufacturers have a lot on their hands and they don't care that school children are getting slaughtered.

[01:01:14] Speaker 02:
It's very fiery.

[01:01:15] Speaker 01:
Yes.

[01:01:16] Speaker 02:
And it's not just they should act.

[01:01:18] Speaker 02:
They should act because there's some bad person doing something.

[01:01:22] Speaker 01:
I understand.

[01:01:23] Speaker 01:
Again, I think there's immunity there.

[01:01:25] Speaker 01:
His action, his remarks are urging

[01:01:30] Speaker 01:
and the states or anyone else takes certain action.

[01:01:33] Speaker 01:
But the key part is that the, there was no interference there as there was here with the actions of a political branch of government.

[01:01:41] Speaker 02:
Okay.

[01:01:42] Speaker 02:
So, so hypothetical case electoral counting and the president gives the speech

[01:01:54] Speaker 02:
urges people to march and is crystal clear he wants a nonviolent protest.

[01:02:01] Speaker 02:
And he quotes Gandhi and Martin Luther King and asks the protesters to sit in front of Congress and be arrested.

[01:02:10] Speaker 01:
I don't think the, again, the focus from our perspective is on whether the consequence is the interference with, in this case, the Electoral College ballot count.

[01:02:24] Speaker 01:
And if there's interference with the core function of another branch of government, whether it is because he's told them to act peacefully and they nonetheless interfere, or he incites them to violence and they interfere, the key is that they interfered as part of his direction in a core function of another branch of government exclusively entrusted to that branch of government.

[01:02:49] Speaker 01:
And here one that was the framers could have been clear that they wanted the president to stay out of the answer just to build the answer to the hypo is this.

[01:02:58] Speaker 05:
I'm sorry if I didn't answer it.

[01:02:59] Speaker 05:
There is immunity or there's not.

[01:03:00] Speaker 01:
There's crystal clear.

[01:03:02] Speaker 02:
He wants to speak a peaceful protest.

[01:03:05] Speaker 01:
There's there's immunity.

[01:03:07] Speaker 01:
At least if I understand it correctly, there was no interference with the ultimate electoral college ballot count in your hypothetical.

[01:03:16] Speaker 01:
Am I correct or have I misunderstood?

[01:03:18] Speaker 02:
Well, I'll give you two.

[01:03:19] Speaker 02:
First one is no interference.

[01:03:21] Speaker 02:
Crystal clear, no violence, peaceful protest.

[01:03:24] Speaker 01:
I don't think, I think there's immunity.

[01:03:26] Speaker 02:
Okay.

[01:03:26] Speaker 02:
Same hypo except just take this as a stipulation.

[01:03:33] Speaker 02:
Unforeseeably to the president.

[01:03:36] Speaker 02:
Right.

[01:03:36] Speaker 02:
Some bad apples in the group.

[01:03:38] Speaker 02:
Right.

[01:03:39] Speaker 02:
Um, don't follow his direction to peacefully protest and, and break in.

[01:03:45] Speaker 01:
So, so you raised the question, which I think is, uh, I'm sorry.

[01:03:48] Speaker 01:
I just need to answer your question is, um, by saying that I think under those circumstances to be direct, there's probably a community, but I want to distinguish it from the circumstances here.

[01:04:01] Speaker 01:
If you'll permit me, because here there are, and I can review them from the record.

[01:04:06] Speaker 01:
events that occurred here that are not just that show this was a continuous course of conduct by the president, which he is ultimately responsible as opposed to the totally unforeseen circumstances, which I understand your hypothesis.

[01:04:21] Speaker 02:
I agree with how you're thinking about the case, which is to say the pressure point is the arguable incitement.

[01:04:32] Speaker 02:
That's a bit different from

[01:04:35] Speaker 02:
the district court theory, which is trying to draw a line between official speech qua president and speech qua candidate.

[01:04:46] Speaker 01:
So let me turn to that.

[01:04:48] Speaker 01:
The district court, I think, offers another and in some ways narrower ground on which to affirm, but it is less susceptible to any clear... I actually think it's much broader.

[01:05:01] Speaker 02:
It's much broader because the line between candidate speech and presidential speech is going to... Sorry, I totally agree with you.

[01:05:10] Speaker 01:
When I said narrower, what I meant was on the well-pleaded allegations of the complaint here, I think the district court's ruling can be affirmed.

[01:05:25] Speaker 01:
It's very hard to draw some lines based on that that would guide future presidents, which is why I think we look to, as the benchmark, the separation of powers as a much more durable way of looking at this and one that the Supreme Court in the Dixon case and the Clinton case both examined.

[01:05:45] Speaker 05:
That's the narrow ground.

[01:05:46] Speaker 05:
When you say there's a narrow ground, that's the one you're talking about.

[01:05:48] Speaker 01:
I'm sorry.

[01:05:48] Speaker 01:
What I mean by narrow is I perhaps should have said well-defined ground rather than narrow.

[01:05:52] Speaker 05:
But that is the one.

[01:05:53] Speaker 01:
I'm sorry.

[01:05:53] Speaker 02:
Which is what?

[01:05:55] Speaker 02:
If it's not a case-by-case judgment of whether the challenge speech is official or electoral, what is it?

[01:06:07] Speaker 01:
Instead, the general standard is whether disrupting the separation of powers infringes the co-equal branch of government in discharge of duties.

[01:06:19] Speaker 01:
explicitly entrusted to it.

[01:06:20] Speaker 01:
And the point without characterizing it as narrow or broad is it offers, I think, a clearer guide to future presidents and courts than one that is entrenched based on some of the jurisprudence admittedly limited from the Nixon and the Clinton case.

[01:06:37] Speaker 05:
So if a president, if President Clinton, while the Supreme Court is considering Clinton versus Jones, exhorts people to go to the Supreme Court and let their voices be heard,

[01:06:49] Speaker 05:
um to urge the court to rule in his favor to rule against i'm sorry to rule in his favor and clinton versus jones which is pending on the day of argument yeah no immunity

[01:07:02] Speaker 05:
because there's separation of powers, it's interfering with the conduct of another branch of responsibility.

[01:07:08] Speaker 01:
If its effect is not just about the purpose, if the effect is to disrupt the functioning of the Supreme Court, if they stop the deliberations, if they do something of that sort, I think there's no immunity.

[01:07:22] Speaker 05:
And whether it has that consequence is based on the allegations in the complaint.

[01:07:27] Speaker 05:
So the complaint alleges that

[01:07:31] Speaker 05:
President Clinton urged everybody to go to the Supreme Court to protest loudly.

[01:07:35] Speaker 05:
That ended up causing the court to take a recess while in the middle of argument.

[01:07:41] Speaker 05:
And therefore, suppose that there's some injury that results from that.

[01:07:46] Speaker 05:
And civil liability, no immunity.

[01:07:48] Speaker 05:
I see my time is expired.

[01:07:50] Speaker 05:
We might keep you longer.

[01:07:51] Speaker 01:
That's fine.

[01:07:52] Speaker 01:
I'm happy to be here.

[01:07:54] Speaker 05:
Yeah, please.

[01:07:55] Speaker 05:
Thanks for noting it, but absolutely.

[01:07:57] Speaker 01:
So I think under the circumstances you presented,

[01:08:00] Speaker 01:
Again, I want to focus on whether the entire course of conduct that started with President Clinton urging the crowd to go to the Supreme Court would have been that the interference with the functioning of the court would have been part of the extricably bound up in his original direction or exhortation.

[01:08:25] Speaker 01:
So if he had said, go to the court and stand outside and chant, we want a certain outcome.

[01:08:34] Speaker 01:
And that was it.

[01:08:36] Speaker 01:
And some group, nonetheless, went and invaded the court.

[01:08:40] Speaker 01:
I think it is a harder call to divest him of immunity because it is, under those circumstances, a part of the continuous course of conduct of which the end game, the interference,

[01:08:54] Speaker 01:
was not part of it.

[01:08:55] Speaker 01:
I can give you some examples in the complaint here or in the record here, which I think show why this particular situation is part of a continuous force of conduct, which would was.

[01:09:07] Speaker 05:
But I thought a lot of the allegations are to the effect that the president knew what was going to happen.

[01:09:14] Speaker 05:
He kind of catalyzed what was going to happen.

[01:09:18] Speaker 05:
Didn't actually say I don't think there's an allegation in the complaint that says go do what ended up happening.

[01:09:25] Speaker 05:
So there's always going to be this question of predictable consequences or foreseeable consequences, even if the words themselves as alleged to the complaint don't call for those consequences.

[01:09:36] Speaker 01:
But the circumstances here, if I can give you a few examples from the record that I think demonstrate that the president Trump here set this up with in order to interfere with the electoral college ballot counting.

[01:09:53] Speaker 01:
So besides the fact that he

[01:09:55] Speaker 01:
call the assembled crowd and direct them to the Capitol, which by the way, it was a violation of the permit, which only allowed them to stay at the ellipse.

[01:10:05] Speaker 01:
In dispatching the crowd to Congress, President Trump urged them to take back our country by demanding that Congress do the right thing and only count the electors who have been lawfully slated.

[01:10:16] Speaker 01:
He began these before

[01:10:23] Speaker 01:
January 6th, of course, he was repeatedly telling his followers about the election was stolen, it stopped the steal, and it's fraudulent.

[01:10:31] Speaker 01:
So he set the stage on January 6th for a series of expectations about the legitimacy of the election.

[01:10:37] Speaker 01:
He then dispatched the crowd to go to the Congress.

[01:10:41] Speaker 01:
And as we also, as alleged in the complaints, he chose the timing in such a way he could have waited until the electoral college balloting had concluded.

[01:10:51] Speaker 01:
But he chose to do this at a time when Congress was actively engaged in the very process that he was exhorting the crowd to stop.

[01:11:02] Speaker 01:
And I think those circumstances make this evident from the record without a need for discovery or anything like that.

[01:11:11] Speaker 01:
That was ultimately part of the overall course of action.

[01:11:15] Speaker 05:
But it seems like a lot of that goes to degrees of likelihood that the injury would come about.

[01:11:21] Speaker 05:
And there's various data points that you've put together both here and in your complaint that say, should have known what was going to happen.

[01:11:28] Speaker 05:
And the same thing could be true when a president says go to the Supreme Court.

[01:11:32] Speaker 05:
And on that hypo, can I just ask the only question, which is at the outset, I think in response to Judge Cassis, if there's a leak of an opinion, and the opinion hasn't been issued yet by definition, so we don't know yet what the outcome of the case is going to be, if a president then urges supporters to

[01:11:51] Speaker 05:
voice their opposition to what appears to be where the Supreme Court's headed.

[01:11:56] Speaker 05:
What's the difference?

[01:11:57] Speaker 05:
And I think you said there would be immunity there.

[01:11:59] Speaker 05:
What's the difference between that and telling them to go there on the day of argument?

[01:12:03] Speaker 05:
It's still that the decision hasn't been rendered yet.

[01:12:05] Speaker 05:
It's still urging people to go and affect what the result's going to be.

[01:12:08] Speaker 05:
And it's still urging them to go and affect the result of a proceeding that's pending in another branch of government.

[01:12:13] Speaker 01:
Right.

[01:12:13] Speaker 01:
And again, I think there's a difference in

[01:12:16] Speaker 01:
uh what i believe here was conveying uh the expectation that they would actually intrude on stop the process for counting the electoral college ballots if if in your hypothetical uh it had been and go into the supreme court and stop them from deliberating or something that sort i think

[01:12:38] Speaker 01:
have a different situation because under those circumstances they would be directly disrupting the functioning of a co-equal branch.

[01:12:47] Speaker 05:
So then what's the standard?

[01:12:48] Speaker 05:
What's the standard you would say that we would write into an opinion that divides the kind of exhortation that infringes the separation of powers in the way that you think it's here and in situations that fall short because although the outcome happens and it sets in

[01:13:03] Speaker 05:
motion a chain of events that results in the outcome is you still have immunity.

[01:13:06] Speaker 01:
I think based on the well pleaded allegations of complaint that there was the president launched took action that disrupted or blocked the performance of a function and I say blocked or disrupted because that term is critical to this as opposed to

[01:13:31] Speaker 01:
complaining or protesting or something, but actually disrupted the discharge of duties by a co-equal branch of government in an area that was exclusively entrusted to that branch of government.

[01:13:44] Speaker 05:
But not that it had that result, because that's going to be the allegation in any case in which that result ensues.

[01:13:49] Speaker 05:
So what's the standard that it has to turn on what the president, in fact, said or did, right?

[01:13:55] Speaker 05:
Yes.

[01:13:55] Speaker 01:
Yes.

[01:13:56] Speaker 05:
Yes.

[01:13:57] Speaker 01:
Yes.

[01:13:57] Speaker 01:
But it's that he, well, there is, I think you have to evaluate it without having recognized what the result was.

[01:14:08] Speaker 01:
Right.

[01:14:09] Speaker 01:
whether the president intended the result or not.

[01:14:12] Speaker 01:
But so the first point is, did it have the effect of disrupting the discharge of duties exclusively entrusted to another branch of government?

[01:14:21] Speaker 01:
But in order to attribute that to the president, which would divest him of immunity, you have to look at, I think, excuse me, the entire course of events leading up to it, including events with respect to, for instance, what happened before January 6th, and look to see whether

[01:14:38] Speaker 01:
the president could reasonably be credited with responsibility for that series of events all attributed to his remarks or his instigation.

[01:14:51] Speaker 01:
And admittedly, it's based on the allegation from White House.

[01:14:54] Speaker 01:
We know, although if immunity is denied, the president has an opportunity at the trial court

[01:15:01] Speaker 05:
with additional discovery to show that in fact I didn't that didn't happen the way that you've alleged and I'm so I'm maybe my own density so for so sorry but it may be my own density so forgive me but the standard would be then predicated on it has to be predicated not on the actual outcome on the effect

[01:15:18] Speaker 05:
It has to be predicated, the standard by which we determine whether immunity exists, has to be predicated on what the president said or did.

[01:15:25] Speaker 05:
And that standard, I heard, block our interference.

[01:15:27] Speaker 05:
So is the standard the president asked for blocking or interfering?

[01:15:32] Speaker 01:
Either overtly, explicitly, or implicitly.

[01:15:37] Speaker 01:
That is, I think you, as you point out, the president, and I think this one was in our allegations, was very artful in the way he did this, did not ever

[01:15:47] Speaker 01:
announced, go to Congress and stop this from happening.

[01:15:51] Speaker 05:
But why doesn't that apply to President, the President Clinton hypo?

[01:15:54] Speaker 05:
The same thing.

[01:15:54] Speaker 05:
It's you could just say it's you stopped just short of it, knew what was going to happen.

[01:15:59] Speaker 05:
I'm just trying to get the exact words you could use.

[01:16:01] Speaker 01:
Yeah, I'm sorry.

[01:16:03] Speaker 01:
If you if you can remind me of the particulars of your president, I have several.

[01:16:06] Speaker 05:
Right.

[01:16:06] Speaker 05:
So Clinton versus Jones is pending before the Supreme Court.

[01:16:10] Speaker 05:
Right.

[01:16:10] Speaker 05:
The president says, I see, go to the Supreme Court.

[01:16:14] Speaker 05:
make sure uh protest at the court and um i need to win this case and doesn't say interfere doesn't say stop the court from doing what it's doing could be seen as just go and peacefully protest could also be seen as do something more and that's the kind of

[01:16:32] Speaker 05:
ground that we have to be cognizant of if we were to fashion a standard along the lines of what you're saying.

[01:16:37] Speaker 01:
And I guess I'm not sure I'm going to be as much help with this as you would like me to be, because I think it turns on the contours of the allegations in the case.

[01:16:46] Speaker 01:
So I think in your hypothetical, it's pretty thin compared to the circumstances we have here.

[01:16:54] Speaker 01:
And so I would say that instead of saying necessarily

[01:16:58] Speaker 01:
immune or necessarily not immune, I would say, again, I think the question is, on the taking the record as a whole, is it plausible to infer that the president was initiating actions which were going to disrupt the performance of or block the performance of a coequal financial government's discharge of its duties?

[01:17:26] Speaker 05:
Possible to infer that

[01:17:28] Speaker 05:
Yes.

[01:17:28] Speaker 01:
I think that's all we can do on the face of a complaint.

[01:17:32] Speaker 05:
And it wouldn't be plausible to infer that in the typo in which the president says go to the Supreme Court?

[01:17:37] Speaker 01:
I think it would be a closer call.

[01:17:40] Speaker 01:
I think it would probably be so thin, given the consequence, which is to waive immunity, that that might fall in favor of granting immunity.

[01:17:52] Speaker 01:
But I just think this has to be judged based on the

[01:17:57] Speaker 01:
of allegations in the complaint and the sufficiency of them as to whether they show an intention to, or not an intention, but a president pursuing a course of conduct which is directed at disrupting the performance of a political branch of government.

[01:18:18] Speaker 02:
What is the relationship between

[01:18:22] Speaker 02:
this standard you've articulated block I'll just call it the blocking standard okay um and the substantive first amendment brandonberg standard so it seemed to me very odd to say that the president would lose his immunity for this kind of inciting activity in circumstances where

[01:18:47] Speaker 02:
private party would have a substantive defense under Brandenburg.

[01:18:51] Speaker 01:
Well, except that we hold presidents to a standard that they adhere to the Constitution and the private party has rights in some ways that the president doesn't have.

[01:19:05] Speaker 02:
So in your view, the president would, the president could be divested of immunity in circumstances where, um,

[01:19:16] Speaker 02:
private party could not be held liable consistent with the First Amendment?

[01:19:20] Speaker 01:
I think under the scenario you gave, that's definitely a possibility.

[01:19:25] Speaker 01:
I don't, I mean, I think here we have a situation which makes sense.

[01:19:29] Speaker 02:
Do you think the president on the merits has a First Amendment Brandenburg defense?

[01:19:35] Speaker 02:
I know the district court rejected it.

[01:19:37] Speaker 01:
Do you think he has it?

[01:19:38] Speaker 01:
I don't think as a member of the government that I think he has

[01:19:43] Speaker 02:
even as an office holder speaking on matters of public concern?

[01:19:52] Speaker 01:
I again don't think that the First Amendment governs that inquiry, but I would add one thing in this setting in this case that if the Brandenburg standard were to apply, I think he crossed it.

[01:20:05] Speaker 02:
So let's let's talk about that.

[01:20:07] Speaker 02:
That's to me.

[01:20:09] Speaker 02:
That's where the rubber meets the road here and I think

[01:20:13] Speaker 02:
Now, it's a tough case.

[01:20:14] Speaker 02:
If you look at, you just print out the speech, which I have done, and read the words on the page, doesn't look like it would satisfy the standard, right?

[01:20:29] Speaker 02:
The worst parts of it are ambiguous terms, you know, fight like hell.

[01:20:36] Speaker 02:
And there are other parts of it that are explicitly say, don't be

[01:20:43] Speaker 02:
Now, if you compare that to, we're going to break your damn necks, which is clay burn hardware, or we're going to take to the effing streets, which is Hess, this looks less inciting.

[01:21:00] Speaker 01:
So, first of all, I think the remarks on the ellipse on the sixth have to put in a broader context.

[01:21:07] Speaker 01:
This wasn't a speech that was delivered

[01:21:10] Speaker 01:
in a vacuum or in a blank slate.

[01:21:13] Speaker 01:
He had been building and building a series of view of expectations and skepticism and anger about the results of the election.

[01:21:24] Speaker 02:
And if you minimize the words on the page and maximize the context, I'll just, you know, the powder keg, just use that for shorthand, then it looks

[01:21:38] Speaker 02:
may be dangerous.

[01:21:40] Speaker 01:
Well, and again, I would say that the fact that after rousing this group, which all responded to an invitation to the president that was laden with expressions about the election was stolen and was fraudulent, and we have to make sure an illegitimate president is inaugurated and things of that sort, they come to the ellipse.

[01:22:04] Speaker 01:
And as I think the term used a powder keg, he created a powder keg by virtue of the lead up to that.

[01:22:11] Speaker 01:
And then he ignited it by, and yes, there may be no single set of words at the ellipse that are tantamount to the kind of examples that you have in the Brandenburg cases, but taken as a whole,

[01:22:29] Speaker 01:
I think it's quite clear that the president was then igniting this situation.

[01:22:36] Speaker 01:
And, you know, talking about again, many of the Congress did the right thing and only count the electors have been lawfully slated and let's walk to the Capitol.

[01:22:48] Speaker 02:
I get it.

[01:22:50] Speaker 02:
The Sixth Circuit has a couple of

[01:22:54] Speaker 02:
Brandenburg cases, including one involving a protester at a Trump rally who was rubbed up, which seemed to stand for the proposition that if the words themselves are not very inciting and the primary danger comes from the powder keg, that's not enough to eliminate First Amendment protection under Brandenburg.

[01:23:20] Speaker 02:
Do you have a view on that?

[01:23:22] Speaker 02:
I mean, I know you have a view on that, but how should we... I can't remember if these were in the briefs, but Bible believers and Nwanguma.

[01:23:30] Speaker 01:
Yeah, I don't remember them being in the brief, but I can accept your summary of them.

[01:23:38] Speaker 01:
So again, I want to back up for just a second, and I realize this may be very important to you, but I don't think the Brandenburg standard governs here.

[01:23:45] Speaker 01:
But that said, if it were to play a role in this,

[01:23:49] Speaker 01:
I think it's in the Sixth Circuit concluded that the words are not enough even if they're simply igniting powder cake.

[01:23:58] Speaker 01:
I'd have to see the circumstances in which they said that.

[01:24:01] Speaker 01:
I think we have an enormous type of powder cake here.

[01:24:05] Speaker 01:
I'm not sure you could say one that's the case for all purposes and I have to look at the Sixth Circuit decisions.

[01:24:12] Speaker 02:
Well, one of them is

[01:24:15] Speaker 02:
There's a Muslim festival and protesters go and right in the middle of it shout very offensive things about Islam and provokes a violent response.

[01:24:29] Speaker 02:
But the things shouted are clearly protected.

[01:24:36] Speaker 02:
And the argument for

[01:24:39] Speaker 02:
No First Amendment protection.

[01:24:42] Speaker 02:
It's like, my God, this was a powder keg.

[01:24:44] Speaker 02:
Of course, this was going to happen.

[01:24:45] Speaker 02:
Any idiot would know that there'd be a violent response.

[01:24:50] Speaker 02:
And then the second case, Nwanguma, it's a Trump rally.

[01:24:54] Speaker 02:
There are protesters.

[01:24:55] Speaker 02:
The crowd's getting worked up.

[01:24:58] Speaker 02:
And he says, get them out of here, but don't hurt them.

[01:25:02] Speaker 02:
So ambiguous words on the page, but fraught situation.

[01:25:07] Speaker 01:
So I'm not sure this is a perfect distinction, but one of the things I would say here is that beside the powder cake situation, I think here President Trump was launching a course of conduct that was as opposed to perhaps calling some people by inflammatory names, for instance, or something of that sort.

[01:25:29] Speaker 01:
And I think that the distinction is important because it puts the president in a position to be part of the course of action that followed rather than simply an instigator.

[01:25:43] Speaker 01:
And not that I think he was an instigator here, but I think that is a distinction.

[01:25:48] Speaker 05:
On Brandenburg, is it the case, I don't know the answer to this, do you get an immediate collateral order appeal in a Brandenburg situation normally?

[01:25:57] Speaker 05:
Not that I know of.

[01:25:59] Speaker 05:
you could view Brandenburg as overlapping with presidential official immunity, but presidential official immunity also can be viewed as a distinct issue.

[01:26:06] Speaker 01:
Yeah.

[01:26:07] Speaker 01:
And I think it's quite clear in this, the way the issue was presented by the appellant and with which we did disagree because of the way it's framed is I think the only issue that is granted immediate appeal is the issue of immunity.

[01:26:22] Speaker 01:
I submit that the Brandenburg issue is,

[01:26:26] Speaker 01:
a separate important issue, but I don't think it feels... It could inform.

[01:26:30] Speaker 02:
It was litigated below as a merits issue.

[01:26:33] Speaker 02:
I'm testing if I think it's a limiting principle on the immunity.

[01:26:37] Speaker 01:
And I'm happy to answer your questions.

[01:26:39] Speaker 05:
Yeah, I just was trying to understand the case.

[01:26:41] Speaker 01:
I don't think it is squarely before the court right now.

[01:26:45] Speaker 02:
It seems to me it's a novel issue because we don't have one way or another a case on

[01:26:52] Speaker 02:
absolute immunity in a borderline or just more than borderline incitement case.

[01:26:58] Speaker 01:
Yeah.

[01:26:58] Speaker 01:
And so again, I agree.

[01:27:01] Speaker 05:
So it could inform the content of immunity.

[01:27:03] Speaker 05:
I think it could, but I just was making sure that I understood where we stood in the case.

[01:27:07] Speaker 01:
And it's one reason why we've been, again, returning to the separation of powers, because we think that's the benchmark with which to be viewing this.

[01:27:15] Speaker 01:
And the nature of the remarks may be part of the

[01:27:19] Speaker 01:
course of action that is there, but it's not, we don't see the first amendment is interplaying with the, how the separation of powers allocates responsibilities between branches of government.

[01:27:30] Speaker 05:
So can I ask you one question that is in this general zone that's been giving me some pause, which is does it matter if the statements that are at issue arise in response to a question from the press and a press conference?

[01:27:48] Speaker 05:
as opposed to a circumstance in which a president just chooses to make an affirmative statement or speech.

[01:27:56] Speaker 05:
And the reason I ask is you could obviously envision situations in which there's an elicitation of a response from a press question and it seems eminently within the crosshairs of

[01:28:06] Speaker 05:
the president's official duties to have press conferences and respond.

[01:28:11] Speaker 05:
So he says the exact same thing, but it's in response to a direct question in a press conference.

[01:28:17] Speaker 05:
I think there is a difference.

[01:28:19] Speaker 01:
And the reason I somewhat responded to Judge Katz's before is, one, where he has initiated

[01:28:26] Speaker 01:
this.

[01:28:27] Speaker 01:
I think it shows a degree of his responsibility for the for the continuing course of conduct.

[01:28:36] Speaker 05:
even if, in fact, in response to a reporter's question, he says... So somewhere you're going, I think, is that then the exact, literally the exact same words, maybe apart from the lead-in, immunity in response to a press question or a press conference, no immunity when it's an affirmative speech.

[01:28:53] Speaker 05:
And I just want to make sure that you're right.

[01:28:54] Speaker 01:
That may be what you're saying, but I think what my intention was to say, the response with the same content, the reporter's question, there's immunity.

[01:29:02] Speaker 05:
So then in the affirmative statement situations that put it in the land of nonimmunity under your rubric, suppose the president starts by saying, I know there's been a lot of questions out there about the following.

[01:29:14] Speaker 05:
He reads the Twitter verse, whatever.

[01:29:17] Speaker 05:
There's a lot of questions out there about the following.

[01:29:18] Speaker 05:
Here's my statement.

[01:29:20] Speaker 05:
Still, no immunity there because it wasn't literally in response to a press question in the middle of a press conference, even though the zeitgeist is.

[01:29:30] Speaker 01:
I think the key question is whether you can infer from this that the president was intending to launch or initiate a course of action, beginning of which is he starts with his statement, which you referred to.

[01:29:50] Speaker 01:
And if that's the case, and there are in this case other circumstances that are consistent with that,

[01:29:58] Speaker 01:
I think he's responsible and I think he loses his immunity.

[01:30:02] Speaker 01:
Even though he may have said something very similar or identical in response to a press question.

[01:30:09] Speaker 05:
But can't he intend to launch that same thing in response to a press question?

[01:30:14] Speaker 01:
He could if that's the way, if a reporter asks him something, he says, I want to use this opportunity to... He doesn't say that, but he says the same thing.

[01:30:24] Speaker 05:
But the inferences kind of use that question as a vehicle for.

[01:30:30] Speaker 01:
So again, you know, we are.

[01:30:32] Speaker 01:
These are going to be somewhat fact.

[01:30:34] Speaker 01:
I know this is not satisfying, but no, no, but that that's what we have to do.

[01:30:37] Speaker 01:
That driven kind of inquiries.

[01:30:39] Speaker 01:
They come back to the point that the inquiry ought to be about whether the president, based on the well-pleaded allegations, the complaint is it's evident that he was

[01:30:50] Speaker 01:
launching or directing a course of action which is going to interfere with the political branch of government.

[01:31:00] Speaker 05:
And is it your view that as a categorical matter, when it's in response to a press question, that standard won't be satisfied?

[01:31:07] Speaker 01:
If it's in response to a press question, that alone insulates it from life.

[01:31:12] Speaker 01:
Is that what you're saying?

[01:31:13] Speaker 05:
Yeah.

[01:31:13] Speaker 05:
Is that is a category?

[01:31:14] Speaker 01:
I heard just now.

[01:31:15] Speaker 01:
I'm sorry if I wasn't clear.

[01:31:17] Speaker 01:
I mean, it ordinarily, I would think it would be immune, but I would say that it is functionally equivalent to what I just said.

[01:31:25] Speaker 01:
The president launched a course of conduct that I think he would have the same same effect.

[01:31:31] Speaker 01:
He would lose his immunity.

[01:31:32] Speaker 01:
Even in the press.

[01:31:34] Speaker 01:
Correct, if it's a functional equivalence to standing there and if he said in response to the reporter, thank you for asking that question.

[01:31:41] Speaker 01:
It gives me the opportunity to announce that I want the crowd to go to Congress and do these other things.

[01:31:46] Speaker 01:
The fact that it responds to a press question, I don't think is... Right.

[01:31:50] Speaker 05:
I mean, I don't think it's ever going to be that stark, but it would be, you get the question and you say, in the course of giving the response,

[01:31:57] Speaker 01:
I understand.

[01:31:58] Speaker 05:
It could be immune, could be not immune.

[01:32:02] Speaker 01:
I think it depends on the circumstances.

[01:32:04] Speaker 01:
And I unfortunately think that that's up to the courts.

[01:32:08] Speaker 00:
So let me ask.

[01:32:10] Speaker 00:
I understand the standard on summary judgment.

[01:32:14] Speaker 00:
But here, I just want to be clear.

[01:32:19] Speaker 00:
You acknowledge, I think, that the statement, the actual words used by the president

[01:32:28] Speaker 00:
are not what the crowd actually did.

[01:32:35] Speaker 00:
In other words, the president didn't say break in, it didn't say assault members of Congress, assault, Capitol police or anything like that.

[01:32:45] Speaker 00:
And what I'm concerned about is to what extent at this stage that a court is in a position

[01:32:58] Speaker 00:
to give the plaintiffs the benefit of all reasonable inferences.

[01:33:05] Speaker 00:
And as I understand your argument, because of the president being the head of the executive branch, we expect certain types of conduct from him.

[01:33:20] Speaker 00:
And that conduct would not include denigrating the separation of powers.

[01:33:27] Speaker 00:
And so even though he was very careful in the words he used and had language in there that said, remember to be peaceful, nevertheless, part of our political system, as you know, better than I,

[01:33:50] Speaker 00:
is there are always, unfortunately, going to be extremists on both sides who go too far.

[01:34:00] Speaker 00:
And the president says, I never told anybody to break in.

[01:34:05] Speaker 00:
I never told anybody to assault the Capitol Police.

[01:34:09] Speaker 00:
I never told anybody to ramage through the Capitol building.

[01:34:22] Speaker 00:
a more negative inference I suppose arises because even after he was informed about the dangers that this crowd had placed members of Congress and had in fact disrupted the proceeding and that people were being seriously injured and there were direct threats toward the vice president

[01:34:52] Speaker 00:
He did nothing to issue a calming statement and tell his followers, for example, go home, stop this kind of lawful protest that's become unlawful with people being injured, et cetera.

[01:35:13] Speaker 00:
So by standing silent, even when he did not know arguably in advance

[01:35:22] Speaker 00:
that some of his followers would take his remarks to be asking them to do what they were doing.

[01:35:33] Speaker 00:
Nevertheless, given the words he used, he is entitled to immunity because commenting that he thought over a course of time,

[01:35:51] Speaker 00:
that the election was stolen from him can be viewed as a critique, a bully pulpit critique of the way the states were checking the votes that were cast and then certifying them to the Congress.

[01:36:18] Speaker 00:
and sort of trying to put the most negative inference on what the president was saying.

[01:36:25] Speaker 00:
One of the areas I'm concerned about is we have a history in this country of protests where they may start out as peaceful protests, but they turn violent either because of

[01:36:50] Speaker 00:
opposing points of view or police actions, et cetera.

[01:36:56] Speaker 00:
So here we're talking about the president of the United States.

[01:37:00] Speaker 00:
And he makes this statement after, as you say, a course of conduct.

[01:37:08] Speaker 00:
And then according to the complaint, even after he's told of the physical,

[01:37:14] Speaker 00:
and human damage that has been done and is being done.

[01:37:18] Speaker 00:
He stands silent.

[01:37:23] Speaker 00:
So I guess my focus is, is that fact critical here?

[01:37:29] Speaker 00:
That that is an allegation in the complaint.

[01:37:35] Speaker 01:
Right.

[01:37:35] Speaker 01:
So Judge Rogers, let me try to

[01:37:38] Speaker 01:
respond to you raised a number of very important points.

[01:37:41] Speaker 01:
First of all, the last point you made, the allegations are in the complaint that in the afternoon after the crowd began to break into the Capitol, the media was covering this.

[01:37:55] Speaker 01:
The allegation is that President Trump saw the reports of that.

[01:37:58] Speaker 01:
and not only did he do anything to calm the crowd, he actually retweeted the remarks that he issued at the ellipse to support them.

[01:38:10] Speaker 01:
There's also, even before that, when at the very end of the remarks at the ellipse, when President Trump called upon the crowd to go to the Capitol,

[01:38:21] Speaker 01:
He started the allegations, this is a joint appendix, page 38.

[01:38:27] Speaker 01:
People were saying, shouting, storm the Capitol and take the Capitol right now.

[01:38:32] Speaker 01:
And the president did nothing to calm that or say, no, that's not what I meant.

[01:38:37] Speaker 01:
As to your point about their being buried within this lengthy set of remarks, a series of statements about go peacefully and patriotically, I think is one phrase that he used.

[01:38:50] Speaker 01:
Again, I want to make the point that this is part of a broader course of conduct, and it has to be looked at that way, not parsed separately with particular senses, which I think would be a mistake in rural courts and endless amounts of line drawing.

[01:39:08] Speaker 01:
Here, it was quite clear

[01:39:10] Speaker 01:
He had a choice that he could, if he really wanted to raise the concerns about what he viewed was a fraudulent election or election security or something of that sort, he could have done that without dispatching a crowd to the Capitol at exactly the point when they were engaged in counting the Electoral College ballots.

[01:39:29] Speaker 01:
So this was sending a crowd to an area, as I said before, in which the Constitution is hermetically sealed

[01:39:37] Speaker 01:
this from the president, and it trusted only to the Congress.

[01:39:42] Speaker 01:
And it is, I think, fair to infer from that that his intentions were to have this crowd attempt to interfere with that.

[01:39:50] Speaker 01:
In fact, he said, you know, let's stop them from counting the electors and have only those who are lawfully slated.

[01:39:58] Speaker 01:
An area that, again, Alexander Hamilton was clear in Federalist Paper 68 was to be excluded from the incumbent president.

[01:40:07] Speaker 01:
So I submit that your points are well taken.

[01:40:09] Speaker 01:
I agree with them.

[01:40:11] Speaker 01:
There is a broader point here, which is about looking at this through as a continuous force of conduct.

[01:40:16] Speaker 05:
Can I ask one more question?

[01:40:18] Speaker 05:
I want to make sure that Judge Reiter's got a response.

[01:40:23] Speaker 05:
One more question.

[01:40:25] Speaker 05:
You kind of framed this as two different ways to affirm in your mind.

[01:40:32] Speaker 05:
One is the

[01:40:34] Speaker 05:
blocking of the function of another branch, separation of powers rationale.

[01:40:38] Speaker 05:
And the other is seeking to vindicate a personal interest in attaining office as opposed to falling within official responsibility.

[01:40:48] Speaker 05:
For your argument, we haven't talked much about that one.

[01:40:51] Speaker 05:
And they kind of merge to some extent because one way to show that it's not part of the official responsibility of the president is if it's exclusively the responsibility of another branch.

[01:41:02] Speaker 05:
But, and I don't want to have an entirely new argument on this, but I'm just, what's your reaction to the proposition that attaining office is vindicating one's personal interest in a way that renders immunity principles inapplicable because it doesn't have to do with something that's within your official responsibility?

[01:41:23] Speaker 01:
Yes, it is clearly, that's our position that seeking to perpetuate your incumbency or attaining office, as you put it,

[01:41:32] Speaker 01:
is necessarily outside the scope of the official duties of the presidency because the presidency has no view as to who holds the presidency.

[01:41:42] Speaker 01:
So it cannot be construed as any kind of exercise enumerated or otherwise of any duties entrusted by the constitution to the president.

[01:41:51] Speaker 01:
So it is a, my only reason to focus on the separation of powers is because as I think the district court observed, it may be harder to provide some kind of

[01:42:01] Speaker 01:
admittedly not perfect but set of benchmarks to give the courts to administer this using the separation of powers as the

[01:42:10] Speaker 01:
uh, ground position as opposed to the question that was presented here.

[01:42:15] Speaker 01:
But I thought the district court did an excellent job of reviewing all the allegations and, uh, assembling them and digesting them and concluding that ultimately the president was engaged in efforts to campaign to perpetuate his encompassing on these fact, these factual allegations.

[01:42:35] Speaker 05:
Yeah, make sure my colleagues don't have additional questions for you.

[01:42:38] Speaker 05:
Thank you, Mr. Self.

[01:42:40] Speaker 05:
Mr. And all will give you three minutes for rebuttal.

[01:42:44] Speaker 05:
Let's see where that goes.

[01:42:45] Speaker 05:
Thank you, Your Honor.

[01:42:50] Speaker 04:
At Trina Boston.

[01:42:52] Speaker 04:
As we started the argument today, one thing that the court brought up and I understand the court's concern here is that you said that there was line drawing issues on both sides.

[01:43:03] Speaker 04:
And I think we've seen that through the questioning today.

[01:43:07] Speaker 04:
One thing that I'd like to point out is that when there are these issues about line drawing, and you look at the stark separation of powers concerns, the tie has to go to the runner to use the baseball analogy.

[01:43:24] Speaker 04:
You need to, and the Fitzgerald Court makes... And I assume you think the runner is the president?

[01:43:28] Speaker 04:
The runner is the president in this case.

[01:43:30] Speaker ?:
Okay.

[01:43:30] Speaker 04:
And that much and more.

[01:43:33] Speaker 04:
The Fitzgerald Court made so clear that even if it's close, that has to go to the president to protect that separation of powers interests.

[01:43:43] Speaker 04:
And the argument that my friend focused on about separation of the alleged offense of separation of powers, what that framework essentially looks at is that by

[01:44:00] Speaker 04:
Saying that there's been an offense to the separation of powers that opens the floodgates, you don't necessarily have to worry about standing.

[01:44:05] Speaker 04:
You then can say immunity no longer applies.

[01:44:10] Speaker 04:
That's particularly problematic analysis, especially since for separation of powers concerns, there is impeachment.

[01:44:17] Speaker 04:
A dispute between Article 1 and Article 2 is specifically provided for in the Constitution.

[01:44:24] Speaker 04:
Judge Katz, one thing that I think is important to look at regarding the court's Brandenburg thoughts is, well, it's certainly not the case that Brandenburg would comprise the outer perimeter, the full outer perimeter.

[01:44:41] Speaker 04:
It is important to see that speech by a president that is clearly within Brandenburg, as this speech was, as the court pointed out, you have to look at the words themselves, not the powder case.

[01:44:52] Speaker 02:
That's my instinct, but give me your best shot on why at least at a motion to dismiss stage on these facts, we shouldn't say that there's at least a litigable issue.

[01:45:11] Speaker 04:
Because of the fact that immunity is meant to protect from litigation, not just from liability, but that is, as the Fitzgerald Court points out quite clearly, is other course of immunity.

[01:45:22] Speaker 02:
I mean, this question is on the assumption that Brandenburg or not matters.

[01:45:28] Speaker 02:
And I understand your broader position is it doesn't matter.

[01:45:34] Speaker 02:
Just assume it does.

[01:45:35] Speaker 04:
You only need the protections of the First Amendment when there is that powder keg.

[01:45:39] Speaker 04:
And a lot of times, for instance,

[01:45:41] Speaker 04:
So the powder keg is always there.

[01:45:44] Speaker 04:
It's certainly in there in the Clyburn case.

[01:45:46] Speaker 04:
It's certainly in there in Brandenburg and certainly in the progeny.

[01:45:52] Speaker 04:
And so that's why it is so extremely important at that point that we then look at the words themselves.

[01:45:59] Speaker 04:
And in this point, because those words really fall within that, it must be that they're within the outer parameters of the presidency.

[01:46:06] Speaker 04:
um, just as a matter of law without needing further factual analysis because that for having to go through and do a further factual analysis at that point would eviscerate the entire purpose of immunity.

[01:46:20] Speaker 04:
Um, I see my time has expired.

[01:46:22] Speaker 05:
I have one question.

[01:46:24] Speaker 05:
Uh, sorry to belabor this, but there's allegations in the complaint that are beyond the January six speech.

[01:46:32] Speaker 05:
Yes.

[01:46:33] Speaker 05:
And some of them don't naturally raise random questions or other kinds of questions.

[01:46:38] Speaker 05:
Some of them can be viewed as more private in nature outside the can of what we've been talking about.

[01:46:45] Speaker 05:
So even if one thought that the January 6th speech is something that implicates presidential immunity, what about the fact that there's still other things in the complaint, like filing lawsuits in the personal capacity, like having private conversations with election officials,

[01:47:02] Speaker 05:
in various states, like planning the rally.

[01:47:07] Speaker 05:
things of that nature that don't really squarely implicate a lot of the things we're talking about here, but that are in the case.

[01:47:14] Speaker 04:
I think there's a reason why the district court effectively looks at this analysis as the communications because those communications are the only thing that could survive the other aspects of the case.

[01:47:24] Speaker 04:
So for instance, the district court, when they talked about the first amendment analysis, I acknowledged that the first amendment would prohibit those other aspects of it.

[01:47:34] Speaker 04:
So that's why I think it's appropriate when we look at immunity here.

[01:47:38] Speaker 04:
Primarily, we look at the speed issues.

[01:47:40] Speaker 04:
But when you look at things like election lawsuits and other activities of a president, that still is within the outer perimeter regardless.

[01:47:52] Speaker 04:
But it's, I think, still very clearly a part of the outer perimeter test.

[01:47:58] Speaker 04:
And then you also come to the very particular problem if you want to, as the complaint suggests,

[01:48:04] Speaker 04:
go towards some sort of negative responsibility of the president.

[01:48:08] Speaker 04:
So, for instance, the suggestion and the complaint that the president had a duty to talk.

[01:48:13] Speaker 05:
Right, and that's not before us because I don't think that the plaintiffs lost on that and didn't appeal on the 1986 part.

[01:48:20] Speaker 05:
I mean, at least it's not part of the collateral.

[01:48:22] Speaker 04:
I agree, just as we're talking about the other things as part of the complaint, I would say that

[01:48:28] Speaker 04:
Um, when, when you look at all that together, is this still something that the president is doing on matters of public concern?

[01:48:34] Speaker 04:
Is it still, you know, beyond just the bully pulpit that the president doing as president and he is and anything else that the district were properly recognized would be prohibited by the first amendment.

[01:48:46] Speaker 04:
Okay.

[01:48:47] Speaker 04:
Thank you, council.

[01:48:48] Speaker 05:
Thank you to both council.

[01:48:49] Speaker 05:
We'll take this case under submission.