American court hearing recordings and interviews - Blassingame v Trump, presidential immunity argument to US Ct of Appeals for DC Circuit, 12/7/22

Episode Date: December 2, 2023

This is the oral argument leading up to the court ruling re Trump presidential immunity handed down on December 1, 2023. For news about the ruling see article below: D.C. Appeals Court Rules Trump Can Be Sued for Inciting Jan. 6 Attack Katherine Pompilio Friday, December 1, 2023, 11:07 AM In Blassingame, the court found that Trump is not protected under absolute immunity from civil claims for damages incurred during the Jan. 6 riot. On Dec. 1, a three judge panel for the D.C. Circuit ruled in Blassingame v. Trump that former President Donald Trump can be sued for civil damages for inciting the Jan. 6 attack on the U.S. Capitol. The court ruled that Trump is not protected by presidential “absolute immunity from civil damages claims predicated on his official acts” as established in Nixon v. Fitzgerald. According to the panel, Trump cannot enjoy this immunity because his actions as alleged by the plaintiffs leading up to and on Jan. 6, 2021—including conspiring with allies to “obtain a second term despite his defeat in the 2020”—were not part of his official presidential duties, and therefore are not protected under absolute immunity. Writing for the court, Chief Judge Sri Srinivasan asserted that, “When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.” You can read the opinion here or below: https://www.lawfaremedia.org/article/d.c.-appeals-court-rules-trump-can-be-sued-for-inciting-jan.-6-attack

Case number 22-569. The name is Blasengue and Sydney and E versus Donald J. Trump at balance. Mr. Vinald for the appellants, Mr. Salards for the Epley. Good morning, counsel. Mr. Vinald, please proceed when you're ready. Good morning and may it please the court. Jesse Binald on behalf of Donald J. Trump. I will endeavor to save two minutes for rebuttal.

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. It also held that speech is unquestionably a critical function of the presidency. It even found that a first term president is, in a sense, always a candidate for office. Nevertheless, 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. This purpose-driven analysis that was favored by the district court is effectively a rebranding of the motive-driven analysis that was considered and soundly rejected

by the Supreme Court in Nixon v. I'm not sure that's fair. And the district court just looked at the words on their face, looked at the speech and said, is this political or is this governmental without getting into what was in the president's mind? Why is that, I mean, it might be right or wrong. It just doesn't seem to me motive based. Your Honor, the reason that it is 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. And when you start to do that sort of functional surgery, when you get so far down in deciding, well, what really is it that the president is trying to do here? 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. And that's why the Supreme Court was so clear in the United States in the case of the United States versus, I'm sorry, Nixon versus Fitzgerald, 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 him get re-election per se. As the district court even acknowledged in this case, with every first-term president being a candidate

for re-election, it will become the exception that swallows the rule. So I'm not sure line drawing cuts decidedly in favor of one side of the other. I think everybody has some line drawing issues here to some extent. And let me just explore that a little bit if I could. Suppose you have a circumstance in which a president has a private meeting with supporters and urges them, 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. And then there's a civil action that's filed by someone who's been intimidated and deter for voting. under 1985, which I think it encompasses this kind of conduct. And the president asserts official immunity.

And by far, that would be a horrible situation that we would hope would never happen. But in a case like that, and what the Fitzgerald Court was very clear on, it's not that there's not a remedy. The question here is only on civil liability versus accountability. There still is the opportunity for accountability. So your answer is that in that situation, there be official immunity.

There wouldn't be official immunity. 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. What I'm worried about is winning re-election. All I care about is winning reelection. It doesn't have anything to do with any policy agenda. It just has to do with, I want to be president. 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. A truly horrible situation if that were to happen. I want to make that clear. 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. And in that case, well, I think what the what the, what the, what the, Nixon court said was it's within the out of parameter of official responsibility.

And that's the language that we're all revolving our questions around. And so you think it's within official responsibility to urge supporters to prevent people from voting? I think that's a disgusting goal. But I think that through, I think that's well within the realm of what the Fitzgerald dissenters used in their parades of horribles about how bad this could happen. What could happen if this goes wrong and what the Fitzgerald court said, we understand that sometimes, even in the most extreme of circumstances, there are rights without remedies. And we do that with immunity every day. What is the official responsibility that's being furthered there?

And what? In this case? In the hypothetical. And, well, oh, I'm sorry. In the hypothetical, it's a court. 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 a president taking actions regarding elections, 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. So the executive being part of the 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. And I agree, Your Honor, that is it. But what is, but the only thing that's being advanced in that hypothetical is re-election. That's it. And what, what's the official responsibility? You cannot separate governance from election.

If the president wants re-election is so that that president can continue to govern. And so because of that, that's, I think, as far down as you can go, to. to see that if this is within the realm of the presidency as bad as that particular act might be. And I want to make it clear, that's something where you would have an extremely strong case for impeachment, the House conviction, the Senate, and then you have the impeachment judgment clause. The beauty of this is that the founders gave us this system. 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.

And if he is, at that point, he can be prosecuted for it. And something like that. Impeachment isn't always the answer, right? Because, I mean, even you acknowledge in your briefs that are certain things that a president does while in office that wouldn't be subject to immunity. You had some example. I think sexual assault was one of them that comes up in the... I think the Clinton case was clear on that.

And so you could have an impeachment proceeding based on that if it's conduct while in office. And if impeachment, a conviction... didn't happen after impeachment, you'd still allow for a civil action. In other words, it wouldn't matter that there's the impeachment remedy and it turns out that impeachment is unsuccessful. No, it's, I would say it's more like concentric circles on something like that, where, of course, you can have impeachment based on private conduct, not just official conduct. You can certainly have a lawsuit based on, as the Clinton court said, purely personal conduct, where you have something that sexual assaults, something purely of a purient interest, and especially, of course, with the Clinton case.

it's also very clear is this conduct that happened before the presidency, not during the presidency. And I think it's particularly important. No, I was hypothesizing one. I didn't understand your brief when you talked about sexual assault to be limiting it to sexual assault before the presidency. I assume you, you cover sexual assault, yes, even if it's coterminous with the president. Yes, and yeah, it's something like that is purely a pure in interest. So the sexual assault, if it was, you know, someone, if it was a president talking to his stockbroker about his individual, stocks, for instance, something that was only of his financial interest himself, not worried about

the broader economy, but only the financial interest himself. That would be another example of something that is, as the Clinton court, but purely personal. And so if you have something that's purely personal, that's different. Even if it's a speech, so on the purely personal one that you just highlighted, which is personal financial interest, if the president gives public remarks that say, 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. And the only thing that's going on is personal financial interest, even if it's in a speech, you think that would not be immune. 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 a public concern. 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, then, yeah. And how do you know that? So you're, don't you have to mind motives to some extent as you, as you started out saying, to decide when, when the president says, buy my son's product. And I really want you to buy my son's product. And part of the reason you should buy my son's product

is because the person who sells the other product is a philanderer. It doesn't have anything to... A much, much closer case. And something like that. And the other person being out of flanderer, 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 mores rather than just private concern. But that is a much, much closer case. And it is clear that in order to decide if it's something purely personal, in the words of the Clinton court, you have to look at the act to decide that. What you can't do is dive so far down that you run directly afoul of what the Fitzgerald court said. And it's, I think, noteworthy that in this case, the district court claims to be looking primarily at the Clinton case.

But really, if you look at it, it's following, it's paralleling the objections of the dissenters in Fitzgerald. And so that really is the difference there, is are we taking and are we looking at a communication or presidential act? so granularly that if you get far enough down into the weeds, you can certainly find an objection about, well, this is really personal, it's not presidential. But once you do that, you start this Article III oversight of the executive that is directly opposite of what the Fitzgerald Tort was looking at. When the president gets involved in electoral counting,

what enumerated power of Article 2 is he acting under? Your Honor, while it's very possible that when the president's campaigning, he might be executing our... Just focus on electoral counting. I'm sorry, on counting of electoral votes. Because normally, you know, the president, has a take care power, which encompasses all federal statutes. He is a lawmaker to the extent he can sign or veto bills. 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. but electoral counting seems different because the Constitution and the statutes are very clear in excluding the president. So what power is he acting under? And the words here are important because the Fitzgerald court doesn't use the word power or duty. He uses the word function. Use the words function. So it's something that's not necessarily something that comes to record.

from a statute or constitution, but it does fall within the presidency. So is, I mean, is that a vehicle for creating an unannumerated power in the president? No, it's not something that creates unenumerated powers, but what it does do is... Which power is he acting on it? 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 2 power. So, for instance, it is very, very normal for presidents to comment on decisions, of course,

now. It has happened many times this year alone. It's very normal for a president to comment on any number of things that the president was specifically excluded under, from under the Constitution, you know, of veto override. The president would still speak on even though he has no part. a veto override. There's any number of things that is normal and customary for a president to speak about using the bullet public, using those matters of public concern. And in these times, it's especially important that we protect the ability of the president to act and the words

of the Nixon court with the maximum ability to deal fearlessly and impartially with the duties of his office. And so that goes, you know, 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. So even you haven't cited a Supreme Court decision

that quite goes as far as your last proposition, you are asking this court, to adopt that standard? In other words, you resist any effort to drill down in your words. Yet what I hear you saying, I thought you were arguing this in your brief as well, that at least is 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.

Your Honor, if it's something, I would say that if it is something on public concern, that's right. At that point, the remedy is different than a damages action on the civil side of the court. At that side, then we have to follow the other remedies that. are available, something that the Fitzgerald Court was very, very clear about. And the Fitzgerald court, I think, goes into some detail about the 75,000 other, I mean, at that time, it's probably more than now, 75,000 other people in the country that have protections of outside immunity. And that doesn't mean that there aren't very worthy plaintiffs that are denied a remedy because of that.

You know, if you look at the remedy. That's really your point. historically separation of powers, the founders made certain choices. 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 systems such that, for example, the president, may have no role in ensuring the electoral integrity of the process for electing president. But nevertheless, that is within the outer limits. And as I hear you, and I thought this is true in your brief, you really resisted any definition of limits.

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. But the court there seems to be focusing on, you know, 200 years of president, for example, in subpoenas of president. So I just wondered how you would have the court write the standard. That's, thank you, Judge Rogers. And it's, of course, important to have standards like that. And the standard that the court should adopt 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. And if it falls within that, that is the end of the inquiry for absolute immunity purposes, especially for the presidency where there is that it's perhaps the most important absolute immunity of numerous in our system because it's so inherent in the separation of powers. And so at that point, once you decide it's on issues of public concern, there still is an opportunity for accountability. It's just not accountability through a civil damages lawsuit. Suppose I agree with you on speech of matters of public concern.

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. What makes this a hard case for me, putting all of that aside is the at least colorable case of incitement. 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 incites lawless action, riots in the streets, and so. 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? No, it's very different. Fitzgerald was about. on a clearly official act within the president's power that might or might not be unlawful

depending on the president's motive right it's a retaliation case and the court says that's too intrusive to to try to police that line it seems to me different you take the act take the hypothetical case the president um president gets out the microphone and says this election was stolen they are not going to do anything you you go burn congress down hypothetical of course not not the seven speak but but i don't extend in a case like that extend immunity absolute immunity for that only as in regards to civil liability and let's let's look at something that's that's that's very, very horrible, and that is a prosecutor purposely taken in manufacturing evidence

to put an innocent defendant behind bars, something that is absolutely horrible, and we still say you can't sue that prosecutor. It doesn't mean that that prosecutor is free from accountability. It just means that we say that that defendant cannot, the criminal defendant, cannot be a civil plaintiff against that prosecutor. So because we we sort of expect that if we allow claims like that, they'll happen all the time.

They might turn on motives. Just the burden of the burden on the system will be too great. So we just allow that wrong to go uncorrected through civil remedies. This just seems, I mean, how many cases are, are, will there be with a. a colorable claim of incitement against the president. There might. And what's the harm of trying to police, you know, is this just above the Brandenburg line

or just below the Brandon Bird line? Seems like that is not gonna hamstring the president in his day-to-day job. I believe it is going to, to hamstring the president in his day-to-day job. Here's why. is because once you start to draw that line and you start to do a type of Brandenberg type, First Amendment analysis of incitement in the presidency,

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 in passion speeches. as every president has. And highly controversial presidents, highly controversial speeches by presidents, which have happened before President Trump, that has happened after President Trump, 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. And that line drawing here, if you do, runs direct. directly afoul, rightly, of what the Fitzgerald Court was concerned about, where they knew that things, uh, what happened that would be controversial and they knew that the founders gave us an option for that. They knew that there was a way for dealing with that. It just wasn't through civil damages. Um, we'll make sure you're, I'm fine. You had a line of questioning. Okay. Um, can I follow up a little bit on what I thought was the main, you were putting forward in your briefs, which is about the bully pulpit and speech-making. But what I hear from you this morning is not necessarily about the bully-pulpit and speech-making because it seems like your argument applies to purely private interactions.

And so I don't know what work the speech-making is doing. 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. And am I missing something? because suppose you have the personal product, promoting a personal product. Even in a speech, your point is that if it's just for driving one's personal wealth, that's purely personal. And the fact that it's in the, it's the bully pulpit.

The president uses the bully pulpit to say, buy this client merchandise. It's going to be great for me and my family. But I'm sitting on the boy. pulpit telling you this is the best stuff you've ever seen by this, but you think that because it's purely personal, the bully pulpit doesn't matter. It really, the dividing line is between purely personal and something that's beyond that so as to bring it with an official responsibility. I think we come back to the lines finer than history would allow there to Etchen of awesome, where the bully pulpit is incredibly important to this analysis, but the bully pulpit is something

going all the way back, 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. And that's the line that I think is particularly important to draw. I don't think the court, I think it is difficult on any speech president gives to decide that it's outside the bully pulpit of the presidency. And, you know, certainly the bully pulpit is within the outer perimeters 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-Allis rule because even if it's the bully pulpit, if it's a bully pulpit about something that's personal,

you think no immunity. I'd say a bully pulpit on things that are personal only. Right. It's not historically as clearly historically as part of the presidency. I think that is, would be a person. a very fact intensive inquiry. I think that's very different than this case. But I think that is something that is a much closer call.

But I would say that because- But closer call, yes, but close enough that the lines have to be drawn so that even if it's bully pulpit and it's purely personal, however you define the category. So it's really, really personal, not just kind of personal. Again, I think I understand where you're going with this. But so long as it's really, really personal, even if it's the bully pulpit, no immunity. That's the way you look at. Here, and I think the words used in Clinton are right purely, purely personal.

If something is purely personal, the Supreme Court in Clinton says that that's not due immunity. That's very different. If you have a presidential candidate who then says, and incumbent, who's running for reelection, who says, I want to be reelected, and the reason I want to be reelected, and the reason I want to be reelected is because it's really good for me personally. It's going to, I mean, my products are going to go through the roof. If I get reelected, that's what I'm worried about. Admittedly, a much different case and admittedly, a much closer call.

And private discussions are certainly a closer call that private discussions are also just such an inherent part of the presidency. It's why we have executive privilege, of course, is because. private communications are also a very important part of the presidency. And so the question then becomes, is this something that is within the outer perimeter and part of the outer perimeter is speaking on matters of public concern? So if it's something where it's close, it's even close, and this isn't close, this is speaking about, you know, this is this is a speech about an election that is clearly political concern. This is dead. that's center. But in the exception, go ahead, finish your. Thank you, thank you, Judge,

Ida. But to the analysis that you have is admittedly closer because it appears to be, you know, purely personal at that point because it's only a pecuniary interest. And 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. But that's not where we are here. So let me ask you follow up on a couple of questions my colleague asked, namely, had the president said, as I think Judge Katzis had a hypothetical, the election was stolen, and I want you my supporters to go to the Capitol and burn it down. Or words to that effect,

I want you to personally attack members of Congress. I want you to interrupt the proceedings. And what I'm trying to understand in your argument is where, hypothetically, the president is undermining by his words, the system that the founders established and arguably crossing the line to not only, maybe not specifically articulating burn the capital and attack members of Congress. Nevertheless, that was the reasonable import of his remarks as the district, Court found it, found, and to the extent neither Nixon nor a Clinton involved this type of situation,

where, to put it bluntly, even though the president may speak about destroying the constitutional system and doing so by crippling another branch of government, that's all within the outer limits of the bully pulpit, which at least here to four, I hadn't understood to stretch so far that it could be that type of remark. And Judge Roberts, the hypothetical you use. of course is different from encouraging your supporters to peacefully and patriotically make their voices heard. But I understand your concern and your hypothetical. And what I would, I would again point you to is the sterile opinion where they say that presidential matters will arouse, quote,

and arouse the most intense feelings. So this is not something that was, that was unheard of to them. And in a hypothetical, like you just gave, you're looking at a much, a very, very clear example when impeachment could be used, you know, go burn down the capital. Impeachment could be used. Conviction could be used. And very possibly at that point, there could be through the impeachment judgment clause. I think you're trying to ask you for it is you're seeking absolute security. despite the nature of the remarks. And that impeachment is the only remedy. Isn't that correct?

It's correct that that's what the Fitzgerald Court said that the remedy is. And so it's not what I think is appropriate or what's not. It's that this debate has already happened and it was decided by the Fitzgerald Court. What I'm trying to get is that we may not have. 200 years precedent, all right, that the court looked at it, Vance, for example. But there's always a first case. And certainly the district court,

and this court is not required to ignore the obvious unless there would be absolute immunity. And I think your argument is basically it doesn't matter what the president says. He may arouse feelings. He may arouse feelings even where he knows people have come armed with military weapons. And any candidate knows there are fringe people supporting them.

They have to be careful. But nevertheless, the... complaint cites a course of conduct by the president over months. And 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? And in the facts of this case, the answer is, there is not a place in a in civil litigation to review those acts of of the president and at any of the 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's entitled to absolute immunity and the only remedy under the Constitution is impeachment. And I'm just trying to get you to deal with at least, I don't read the opinions of the Supreme Court to say, although I understand the references to history. I understand the references to press. But there always has to be a first case, all right? And maybe it's not this case. And maybe it will have to wait for the Supreme Court to identify that.

first case. But isn't that sort of the factual situation that's before this court? 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. And so that is why we have to be, that's why the Fitzgerald Court was so careful to close those doors on issues just like this. And what the Court is wrestling here is certainly understandable, but it's the same exact thing that Fitzgerald Court wrestled with 40 years ago, and it made a decision on that. 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, because these are our questions as clear as Your Honor has been on the difficulties of

presidential actions that aroused those intense feelings, the Supreme Court has been very clear that that's not a position for courts, especially in civil litigation. I just ask, no, go ahead, please. You've said civil liability, clearly off the table, impeachment, clearly on the table. Do you have a position on criminal liability? That's a very different case, but I think that I don't have to necessarily have a position. on that because the founders did. And I think other courts have spoken more at length about it. The attractiveness of absolute immunity in the civil context might depend on the number of other

remedies failed. That's right, Your Honor, I would agree with that. 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. Is criminal a possibility? 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 instructing people to burn down the capital and something that inflaming, 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 for just that reason where the founders made very clear that after an impeachment after a conviction after a removal from office that that there can be criminal aspects you

then also look at some of the other cases that have been decided more recently 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. And the Fitzgerald Court was extremely clear that they were only talking about civil liability. While they didn't go into as much detail about things like criminal liability, and that's not why we're here today, the Fitzgerald Court was talking about civil liability. That's why we're here today. Just two more questions I know, and we'll give you some remodel time.

What do I do with the following set of considerations that for when a president is seeking re-election, there's a lot of things that a president might do to seek re-election that are nothing bound up in his official responsibilities as president because the opponent might seek to do the very same things. And the opponent, by definition, can't be the president. We don't have to be presidents at the same time. So the opponent says, I want to do the following things to make sure that my side wins.

And all they're trying to do is to get in office. The president's not trying to do the exact same thing. Why isn't it the case that when you have actions that could equally be done for the exact same purpose, which is to gain office, that a non-president can do, it takes it outside the can of what's within the perimeter of the president's official responsibility, which is the words that.

Yes, Judge Shrienevasman. And there are certain advantages, of course, that are built into our system that an incumbent president does have. And I don't know that this is necessarily an advantage so much as it's something that follows the office of the president. And so, for instance, an early candidate for president is not going to have secret service protection. But a president is. A candidate for president is not necessarily going to have the amazing advantage of having Air Force one. A president is. And in this case, there are still

very robust protections for all presidential candidates. The First Amendment, dead center has to do with political speech and what a presidential candidate is going to say on the campaign. I guess it's not what I'm asking about. And I, I know I'm actually 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. I'm not worried about that. What I'm worried about is whether it actually falls within official presidential responsibility when what's going on is campaigning for office. Both sides are campaigning for office. Both sides do things that try to maximize the chances that they'll win.

It just turns out that when the president does some things and maximize the chances that he'll win, it's immune. when the other side does the exact same thing. The other side, to use the hypo I started out with, tries to get people to the polls who support them to prevent anybody from voting in districts that are going to be disadvantageous for them to have a high vote count. And all they're trying to do is get in office.

It doesn't have anything. By definition, it has nothing to do with official presidential responsibility because all they're trying to do is get in office. It's the exact same thing the president's trying to do. All he's trying to do is trying to get in office. 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 civil. That's right, Your Honor. And I understand what the court is concerned about there, 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. So while it is, is unique to the presidency that he has, at least highly unusual for the presidency, probably unique of the bully pulpit of the presidency. It certainly is not the case that other people can't give compassion speeches that get a wide audience and that you're going to have different legal protections. And it is still the case, for instance,

that government employees that retaliate against other government employees are not going to have the same level of immunity. They'll have a different immunity. And there's certainly, of course, retribution and employment that happens where all across this country every day, there's no immunity at all. 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 and is very much subject to liability. 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 disequilibrium, at least to some extent. Last question for me for now.

The insulation that immunity affords would apply even if the president, who's a president candidate offers payment, right? So the way you're looking at it. So if the presidential candidate says, I'll pay you to go to the polls to prevent people from voting. I'm not talking about speech. I'm just saying that's an action that just said,

it's just an action that says, I was intimidated from voting. I went to the polls to vote. I couldn't vote because this person came to me armed and said, you're not gonna vote today. I went home. Turns out the president paid that person to make sure that I couldn't vote.

Doesn't have anything to a speech. It's just the conduct of preventing me from voting. And the conduct the president took, your answer is still immunity. My answer is that immunity civilly. That is something dead center that there should be very serious consequences for in the other aspects of accountability.

But as far as civil immunity goes... Even in a case where, you know, First Amendment law would treat something as, a verbal act rather than a speech? Yes, Judge Katzis, this is different than a question. Why are you fighting that? That's not this case. Why do you need to win that? I don't need to win that. I think that, of course, is a much, much closer case.

Well, I'm trying to understand. That seems like an extraordinary. No, that's an extraordinary. And I will say this. That becomes something that certainly is very fact dependent because it's not part of the bully pulpit of the presidency is something on matter of the public. But we already got past bully pulpit. Right. Right. I mean, I think earlier you realize we're past the bully pulpit because even private conversations are fine as long as they concern an election.

Certainly, yeah, immunity is not limited to the bully pulipult, absolutely. And so what I'm getting out 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 pulpit. It's a much, much closer case at that point. So, for instance. But still immunity under your view. I mean, your argument is that you have immunity because it has to do with an election. Well, it's a closer call. I still think community probably would apply in that situation.

But, 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. And that wasn't part of speech and debate. Because it was beating with a cane, there was criminal liability. that and and there was no protection on on the household when that happened with uh with preston brooks uh beating soms um and the lead up to the civil war 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 right and to be and to be to fall within immunity which you said it does that means that that

conduct is when then the outer perimeter of official responsibility that's within official responsibility. I'm saying that it's that because it's, let me watch it back. Just a little. It is. 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. Okay. One more question for me, which is about an argument I don't think you made, correct me if I'm wrong. The principal statute here applies generally to persons. And we in the Supreme Court have a line of cases which say 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.

Did you make that argument? And if not, why not? I'm not sure that that's quite as with, let me say this. That is clearly something that the court should consider in a Nixon type analysis. I think that the court certainly can make that consideration in a Nixon versus Fitzgerald. Did you make the argument? I don't know if we made it in quite that that way. I didn't see it in the district court opinion.

I believe it was, it was, you know, Judge Katz is trying to go back to the briefs. I don't want to make a representation that I'm clear out. It wasn't before us. It just struck me that might be a little bit of a narrower and more textually based way of sort of operationalizing some of the themes you're articulating than getting into immunity, which has a little bit of a made up feel to me. That's right. Well, to be clear, as I understand the question, it doesn't have to do with Nixon versus

Fitzgerald immunity. It's that textually. No, it's a textual. That's right. That's nice. Whether that's open to us is an alternative. I'd say it certainly is open to the court to decide something on that limited ground. And I'd have to think about the avoidance canon and whatnot and whether that's that's an appropriate to do it at this stage.

Immunity is a little bit open-ended. It might be common law-ish, but it might be Article 2-ish. 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 statutory theory would not. 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 making it so a president is specifically subject to the suit. But I agree that would be one aspect of an avenue that the court could take to result. this question. Well, not our court. I mean, it's not that issue's not before our court. You're just saying a court. A court district. That could certainly be something that resolved.

It's not part of the immunity question. It really is not part of the immunity question. It's something that I would say is separate. And so that's, yeah, something that could be looked at. We sure my colleagues don't have additional questions for you at this time. Thank you. Well, we'll give you some more about a time. Well, thank you very here from Mr. Sellers now.

Good morning. May it please the court, Joseph Sellers. I do want to address the immunity issue. Before 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. But I would just fall to your attention. The Franklin against Massachusetts Supreme Court decision at 505. That's one I had in mind.

Okay. Well, the key there, the language there, expressly says that it's the president's coverage in a statute, which it's not named, should not be presumed where it might interfere with the president's constitutional prerogatives. And I submit that here the president's not been engaged in anything remotely like constitutional prerogatives. So while that statute might apply in other circumstances where the president has acted in our view outside the out of permanent of the presidency, I don't think you can apply that rule here. And I think Franklin and courts interpreting it have so recognized.

So let me turn to the question that we do have before us, which is that President Trump is not entitled, excuse me, 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. 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. I'll come back to

President Trump's proposed matters of public concern, although there may be less of that to discuss them before. But it's inconceivable that the president can avail himself of immunity, which derives directly from the same separation of powers underlying our government that his conduct warranted by blocking the discharge of duties solely entrusted to Congress and from which the incumbent president was intentionally excluded. He can't have it both ways. He can't avail himself of an immunity provided by the separation of powers, and by virtue of conduct, it infringes on the separation of powers,

and that is what he's done here. I can turn. So what, let me just test that a little bit. So suppose the president exhorts people who he's speaking to, to go to Congress to stop a vote on legislation that he opposes. So, that's interfering with Congress.

conduct of a vote, but it's something the presidents often encourage people to let Congress know that they oppose legislation that's been considered. I think the circumstances here are more extreme because this is a situation. There's no question that the boundaries between the branches of government are not always, they're not siloed, so there are occasions where one may be engaged with the other. But this is an area that's hermetically sealed from the presidency. 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. And very importantly,

is a federal paper 68 states was intended to keep the president, come and president away from the very process he interfered with. So I don't think it's the same circumstance. I think this is one that is not your run-of-the-mill presidents 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 counter? I'm sorry, but 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 law. the legislation or supports it. Either way, it exhausts his. I don't think it meant, I don't, I think we're talking about what's

in current incorporated into the Constitution. And the electoral out act is an aid of enforcing the terms of the provisions of article two, but it's not something that is, you know, part and parcel of that. So I would not, I don't think we would think that is the same kind of violation separation of powers. You think it is? It is not. It is not.

So the president, that would be immune. That would be immune. Yes. 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. your broadest theory would call all of that into question or would at least expose the president to civil suits. That seems troubling. So let's just talk about a couple. The president is hermetically sealed away from deciding cases or controversies within the meaning of Article 3.

there is hypothetically a leaked draft Supreme Court opinion and the president issues president issues a public statement strongly supporting or condemning the presumed decision in a pending case right again I don't think it is the bottom line is I think the president's entitled to immunity and is entitled to immunity on what theory on the theory that it's just talking about the result in the case. Correct. And that's the reason I think he's entitled to immunity. 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 district courts, 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. It's speech. It's on a matter of public concern.

And it's in an area where the president has no direct power. I understand. I think that what makes this particular situation an offense to separation powers is that his remarks were part of a course of ongoing. course of conduct, which led to the actual disruption of the performance. And we'll talk about that, and just to show a few cards, what makes this a hard case for me, I ask your opponent about this is the, you know, I'll just say arguable or colorable incitement. But your broader theory about, you know, if the president is talking about a court issue or a state issue or culturally, issue in the world.

Oh, I think that's, I'm sorry, I didn't interrupt you. No. I think those are ordinary functions of the presidency and would be well within the boundaries of the out of permit of the presidency is entitled to a museum. So the Supreme Court says that Congress lacks constitutional authority to prohibit 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, there's a lot of fiery rhetoric now these days in public discourse. So that alone, I don't think, is. Sure, but I mean, I'm constructing the hypo so that you can't connect the speech to. But as I understand, The key part of the hypothetical is that he urges the states to take action. And it's that action which... And then he goes on to say, you better do this because these gun manufacturers have blood on their hands

and they don't care that school children are getting slaughtered, right? It's very fiery. Yes. And it's not just they should act. It's they should act because, you know, there's some bad person doing something. I understand. Again, I think there's immunity there. His action, his remarks are urging the states or anyone else to take certain action.

But the key part is that there was no interference there, as there was here, with the actions of a co-equal branch of government. Okay, so hypothetical case, electoral counting, and the president, gives the speech, urges people to march, and is crystal clear he wants a nonviolent protest. And he quotes Gandhi and Martin Luther King and asks the protesters to sit in front of Congress and be arrested. 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 count. a ballot count. And if there's the interference with the core function of another branch of government,

whether it is because they, 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 their branch of government. And here, one that was, that the framers could have been clearer that they wanted to the president to stay out of. So the answer, just to the answer to the hypo? I'm sorry if I didn't answer it. There is immunity or there's not? There's crystal clear.

He wants to speak a peaceful protest. There's immunity, at least if I understand your hypothetical correctly, there was no interference with the ultimate electoral college ballot count in your hypothetical. Am I correct or a bit of a misunderstanding? Well, I'll give you two. First one is no interference. Crystal clear, no violence, peaceful protest.

I don't think, I think there's immunity. Okay, same hypo, except, just take this as a stipulation, unforeseeably to the president. Right. Some bad apples in the group. Right. Don't follow his direction to peacefully protest and break in. So you raised the question, which I think is,

I'm sorry, I just need to answer your question is, 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 if you'll permit me, because here there are, and I can review them from the record, events that occurred here that are not just that show this was a continuous course of conduct by the president for which he is ultimately responsible as opposed to the total unforeseen circumstances, which I understand your hypothetical. I agree with how you're thinking about the case,

which is to say the pressure point is the arguable incitement. That's a bit different from the district court theory, which is trying to draw a line between speech qua, official speech qua president and speech quo candidate. So let me turn to that, which I, uh, the, 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. It's much broader because the line between candidate speech and presidential speech is going to.

Sorry, I totally agree with you. 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. What I think even the district court acknowledges is that, excuse me, it's very hard to draw some lines based on that that would guide future presidents. Right. Which is why I think we look to as the benchmark, the separation of powers is a much more endurable and a bench, a way of looking at this and one that the Supreme Court in the Dixon case

and the Clinton case both examined. a narrow ground and you say there's a narrow ground that's the one I'm sorry what I mean by narrow is I perhaps should have said well-defined ground rather than narrow but that is the one I'm sorry which is what I'm sorry if it's if it's not um if it's not a case-by-case judgment of whether the challenge speech is official or right electoral what is it's instead the the general or general standard is whether it infringed uh, disrupt the separation of powers infringes the co-equal branch of government in the charge of duties exclusively entrusted to it. And the point with that characterizes as narrow or broad is it offers a, I think a clearer

uh, guide future presidents in courts and one that is entrenched it based on the, uh, some of the jurisprudence admittedly limited from the Nixon and the Clinton case. 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 to urge the court to rule in his favor. To rule against him, I'm sorry? To rule in his favor in Clinton versus Jones, which is pending on the day of arguments. No immunity.

Because if there's separation of powers, it's interfering with the conduct of another branch. If it is, if it's, its effect is not just the purpose, if the effect is to, If they disrupt the functioning of the Supreme Court, if they stop the deliberations, if they do something that sort, I think there's no immunity. And whether it has that consequence is based on the allegations in the complaint. So the complaint alleges that President Clinton urged everybody to go to the Supreme Court to protest loudly. That ended up causing the court to take a recess while in the middle of argument. and therefore suppose that there's some injury that results from that and civil liability, no immunity.

I see my time is expired. We might keep you longer. That's fine. I'm happy to be. I just want to. Yeah, please. Thanks for money. Thanks for noting.

Absolutely. Yeah. So I think under the circumstances you presented, 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 strictly bound up in his original direction or exhortation. So if he had said, go to the court

and, you know, stand outside and chant, we want a certain outcome, and that was it. And some group, nonetheless, when an invaded court, I think it is a harder call to divest him of immunity because it is under those circumstances a part of continuous course of conduct of which the endgame, the interference, was not part of it. 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 course of conduct, which would, was. But I thought a lot of the allegations are to the effect that the president knew what was going to happen. He kind of catalyzed what was going to happen.

He didn't actually say, I don't think there's an allegation in the complaint that says, go do what ended up happening. 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. But the circumstances here, if I can give you a few examples from the record that I think demonstrate that President Trump here set this up in order to interfere with the electoral college ballot counting. So beside the fact that he called the assembled proud and direct them to the capital, which, by the way, it was a violation of the permit,

which only allowed them to stay at the ellipse. 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 elected, sorry, lawfully slated. He began these before January 6th, of course, he was repeatedly telling his followers

about the election was stolen and stopped the seal and it's fraudulent. So he set the state. on January 6th for a series of expectations about the legitimacy's election. He then dispatched the crowd to go to the Congress. And as we also is alleged in the complaints, he chose the timing in such a way. He could have waited until the electoral college balloting had concluded. 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. And I think those circumstances make this evident from the record without a need for discovery or anything like that. That was ultimately part of the overall course of action, which... But it seems like a lot of that goes to degrees of likelihood that the injury would come about. 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. And that's the same thing that could be true when a president says go to the Supreme Court. 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 has 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 voice their opposition to what appears to be where the Supreme Court's headed, what's the difference? And I think you said that would be immunity there. What's the difference between that and telling them to go there on the day? of argument. It's still that the decision hasn't been rendered at it. It's still urging people to go and affect what the result's going to be and it's still urging them to go and affect the result of a proceeding that's pending in another branch of government. Right. Again, I think there's a difference in what I believe here was conveying the expectation that they would actually intrude on stop the process for counting the

electoral college ballots. If in your hypothetical it had been and go into the Supreme Court and stop them from deliberating or something that's sort. I think we'd have a different situation because under those circumstances, they would be directly disrupting the functioning of a co-equal branch. So then what's the standard?

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 is a situation here in situations that fall short because although the outcome happens and it sets in motion a chain of events that results in the outcome, you still have immunity. I think based on the well-pleaded allegations of the 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 complaining or protesting or something, but actually disrupted the discharge of duties by a co-equal branch of government in the area that was exclusively entrusted to that branch of government. But not that it had that result, because that's going to be the allegation in any case in which that result ensues. So what's the standard that it has to turn on what the president in fact said or did, right? Yes. Without regard to what results in fact came about.

Yes. but it's that he, there is, there is a, I think you have to evaluate it without having recognized what the result was. That is, whether the president intended the result or not. Right.

But so the first point is, did it have the effect of disrupting the discharge of duties exclusively trusted in other branch of government? 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 the president could reasonably be credited with responsibility for that series of events all attributed to his remarks or his instigation. And admittedly, it's based on the allegation of light as we know, although the, if the,

if immunity is denied, the president has an opportunity at the trial court with additional discovery to show that, in fact, that didn't happen the way that you've alleged, and I'm... So I'm maybe my own density, so forgive me, 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. 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. And that standard, block or interference. So is the standard the president asked for blocking or interfering, either overtly, explicitly or implicitly. That is, I think you, as you

point out, the president, and I think this one was in our locations are, was very artful in the way he did this, did not ever announce go to Congress and stop this from happening. And why doesn't that apply to President Clinton hypo? The same thing. You could just say it's He stopped just short of it, knew what was going to happen. I'm just trying to get the exact words we would use. Yeah, I'm sorry. If you can remind me of the particulars of your president. I have several.

Right. So Clinton versus Jones is pending before the Supreme Court. Right. The president says, I see. Go to the Supreme Court, make sure, protest at the court, and 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 going peacefully protest, could also be seen as do something more.

And that's the kind of ground that we have to be cognizant of if we were to fashion a standard along the lines of what you're saying. 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. So I think in your hypothetical, it's pretty thin compared to the circumstances we have here. And so I would say that instead of saying it's necessarily 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 co-equal financial government's charge of its duties. Possible to infer that the president was asking for it? I think that's all we can do on the face of a complaint. And it wouldn't be plausible to infer that in the ipo in which the president says go to the Supreme Court?

I think it's, I think it would be a closer call. 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, but it is, I just think this has to be judged based on the clause of allegations and the complaint and the sufficiency of them as to whether they show an attention to, or not intention, but the president pursuing a course of conduct which is directed at disrupting the performance of a political branch of government.

What is the relationship between this standard you've articulated block. I'll just call it the blocking standard. Okay. And the substantive First Amendment, Brandenburg 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 a private party would have a substantive defense under Brandon Burke. Well, 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. So in your view, the president could be divested of immunity in circumstances where private party could not be held liable, consistent with the First Amendment? I think under this scenario, Dave, that's definitely a possibility.

I don't, I mean, I think here we have a situation which made that. Do you think the president on the merits has a First Amendment, Brandenburg defense? I know the district court rejected it. Yeah. I think he has it. I don't think as a member of the government that I think he has a first amendment. Even as an office holder speaking on matters of public concern? 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 Brandenberg standard would apply, I think he crossed it. So let's talk about that. So that's, to me, that's where the rubber meets the road here. And I know, it's a tough case. 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. The worst parts of it are ambiguous terms, you know, fight like hell and there are other parts of it that are explicitly say, don't be violent.

Now if you compare that to we're going to break your damn neck. which is Claiborne Hardware, or we're going to take to the effing streets, which is Hess. This looks less inciting. So, first of all, I think this has to, the remarks on the ellipse on the sixth have to put in a broader context. This wasn't a speech that was delivered in a vacuum or in blank slate. He had been building and building a series of view of expectations and skepticism and anger about the results of the election. And if you minimize the words on the page

and maximize the context, I'll just call, you know, the powder keg. Just use that for shorthand. Then it looks maybe dangerous. Well, and I, again, I would say that the fact that after rousing this group, which all responded to an invitation, of 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, things of that sort.

They come to the ellipse, and as I think the term used a powder keg, he created a powder keg by virtually lead up to that, 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, I think it's quite clear that the president was then igniting this situation. And talking about, again, vandy, the Congress did the right thing and only count the electors have been lawfully slated. And let's walk. to the apple. I get it.

The Sixth Circuit has a couple of Brandenburg cases, including one involving the protester at a Trump rally who was roughed 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. You have a view on that? 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 in Nguuma. Yeah, I don't remember them being in the brief, but I can, I accept your summary of them. 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. But that said, if it were to play a role in that. this. I think it's, in the Sixth Circuit, concluded that the words are not enough even if they're simply igniting a powder keg. I'd have to see the circumstances in which they said that. I think we have an enormous type of powder cake here. I'm not sure you could say one that this, the case for all

purposes, and I have to look at the Sixth Circuit decisions. Well, one of them is a Muslim festival and protesters go and right in the middle of it shout very offensive things about Islam and provokes a violent response. But the things shouted are clearly protected. And the argument for no First Amendment protection is like, my God, this was a powder keg. Of course, this was going to happen. Any idiot would know that there be a violent response. And then the second case, Nanguma, it's a Trump rally. There are protesters.

The crowd's getting worked up. And he says, get him out of here, but don't hurt them. So ambiguous words on the page, but fraud situation. Right. So I'm not sure this is a perfect distinction, but one of the things I would say here is that the, beside the powder cave 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.

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. And not that I think he wasn't instigator here, but I think that is a distinction. 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? Not that I know. So you could view Brandenburg as overlapping with presidential official immunity, but presidential official immunity also can be viewed as a distinct issue. Yeah, 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 the immediate appeal is the issue of immunity.

I submit that the Brandenberg issue is a separate important issue, but I don't think it feels. It could inform. The class litigated below is a merits issue. I'm testing if I think it's a limiting principle on the immunity. And I'm happy to answer your questions. I just. Yeah, I just was trying to understand the orchestra of the case.

I don't think it is squarely before the court right now. It seems to me it's a novel issue. because we don't have one way or another a case on absolute immunity in a borderline or just more than borderline incitement case. Yeah, and so, again, I agree. So it could inform the content of immunity. I don't, I think it could, but I just was making sure that I understood where we stood in the case. 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 doing this.

and the nature of the remarks may be part of the course of action that is there, but it's not, we don't see the First Amendment is interplayed with how the separation of powers allocates responsibilities between branches of government. 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 in a press conference, as opposed to a circumstance in which a president just chooses to make an affirmative statement or speech. 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 the president's official duties to have press conferences and respond. Yes. So he says the exact same thing, right? but it's in response to a direct question in a press conference. I think there is a difference. And the reason it somewhat responding to Judge Katz before is one where he has initiated this, I think it shows a degree of his responsibility for the continuing course of conduct, even if, in fact, in response to a reporter's question, he says.

So somewhere you're going, I think, is that literally the exact, literally the exact same words. I understand. Maybe apart from the lead-in. Immunity in response to a press question or press conference, no immunity when it's an affirmative speech. And I just want to make sure that's right. That may be what you're saying, but I want to make sure that's good.

I think what my intention was to say, the response with the same content, the reporter's question, there's immunity. So then in the affirmative statement situation, so put it in the land of non-immunity under your rubric, the suppose the president starts by saying, I know there's been a lot of questions out there about the following. You know, he reads the Twitter verse, whatever. There's a lot of questions out there about the following. Here's my statement.

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. Right. I think, I think, did I interrupt you? No, no, you didn't. 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've referred to. And if that's the case, and there are, in this case, other circumstances that are consistent with that, I think he's responsible and I think he loses his immunity. Even though he may have said something very similar,

identical in response to a press question, at least... But can't he intend to launch that same thing in response to a press question? He could if that's the way if a reporter asks him somebody and says, I want to use this opportunity to... He doesn't say that, but he says the same thing.

I mean, but the inference is kind of use that question as a vehicle for it. So again, you know, we are... These are going to be somewhat fact. I know this is not satisfying, but... No, no, but that's what we have to do. Fact-driven kind of inquiries. I come back to the point that the inquiry

ought to be about whether the president, based on the well-pleaded allegation of the complaint, it's evident that he was launching or directing a, or himself, I mean, a course of action, which is going to interfere with the O'Equal branch of government. And is it your view that then as a categorical matter, when it's in response to a press question, that standard would be satisfied? If it's in response to a press question, that alone insulates it from the matter. Is that what you're saying? Yeah, is that a catac...

I heard just... No, I'm sorry if I wasn't clear. I mean, it ordinarily, I would think it would be immune, but I would say if it is functionally equivalent to what I just said, the president launched a course of conduct, then I think he would have the same effect he would lose his immunity. Even if it's a functional... Correct, if it's a functional equivalence to standing there

and said in response to the reporter, thank you for asking the question. It gives me the opportunity to announce that I want the crowd to go to Congress and do these other things. The fact that it responds to a press question, I don't think is. Right. 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. I understand. It could be immune, it could be not immune.

I think it depends on the circumstances, and I unfortunately think that that's up to the courts. So let me ask. I understand the standard on summary judgment, but here I just want to be clear. You acknowledge, I think, that the statement, the actual words used by the president are not what the crowd actually did. In other words, the president didn't say break in, it didn't say a solid. members of Congress, assault, capital police, or anything like that. And what I'm concerned about is to what extent at this stage, we're in a position, that a court is in a position to give the plaintiffs the benefit of all

reasonable inferences. And as I understand your argument, because of, of the president being the head of the executive branch, we expect certain types of conduct from him. And that conduct would not include denigrating the separation of powers. 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, is there are always, unfortunately, going to be extremists on both sides who go too far. And the president says, I never told anybody to break in. I never told anybody to assault the Capitol police. I never told anybody. anybody to ramage through the Capitol building.

And 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. 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. So by standing, silent even when he did not know arguably in advance that some of his followers would take his remarks to be asking them to do what they were doing. Nevertheless, given the words he used, he is entitled to immunity because commenting that he thought over a course of time 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.

And sort of trying to put the most negative inference on what the president was saying. 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've turned violent either because of opposing points of view or police actions, etc. So here we're talking about the president of the United States. And he makes this statement after, as you say, a course of conduct.

And then according to the complaint, even after he's told of the physical, and human damage that has been done and is being done. He stands silent. So I guess my focus is, is that fact critical here, that that is an allegation in the complaint? Right. So Judge Rogers, let me try to respond. You raised a number of very important points.

First of all, to 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. The allegation is that President Trump saw the reports of that, and not only did do anything to calm the crowd, he actually retweeted the remarks that he issued at the ellipse to support them. 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. He started the allegations. This is a joint appendix page 38. People were saying, shouting, storm the capital and take the capital right now. And the president did nothing to calm that or say, no, that's not what I meant. As to your point about they're 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. 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 sentences, which I think would be a mistake in world of courts and endless amounts of line drawing. Here, it was quite clear. he had a choice that he could, if he really wanted to raise the concerns about what he viewed was a progen election or election security or something 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. So this was sending a crowd to an area, as I said before, in which the Constitution is hermetically sealed this from the president. and entrusted only to the Congress. And it is, I think, in fair to refer from that,

that his intentions were to have this crowd attempt to interfere with that. In fact, he said, you know, let's stop them from the county of the electors and only the laws were lawfully slated. An area that, again, Alexander Hamilton was clear in Federal's Paper 68, was to be excluded from the incumbent president. So I submit that your points are well taken. and I agree with them. There is a broader point here,

which is about looking at this as a continuous force of conduct. I ask one more question. I want to make sure that Judge Riders got a response. Honest, one more question. You kind of framed this as two different ways to affirm in your mind. One is the blocking of the function of another branch, separation of powers rationale, and the other is seeking to vindicate a personal interest in attaining office as opposed to falling with an official responsibility.

For your argument, we haven't talked much about that one. 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. And I don't want to have an entirely new argument on this, but I'm just, what's your reaction to the, a 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. Yes, it is clearly that's our position that seeking to perpetuate your incumbency or attaining office, as you put it, is necessarily outside the scope of the official duties of the presidency because the presidency has no view as to who holds the presidency.

So it cannot be construed as any kind of exercise enumerate or otherwise of any duties entrusted by the Constitution of the president. 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 admittedly not perfect, but set of benchmarks who give the courts to administer this using the separation of powers as the ground position as opposed to the question that was presented here. But I thought the district court did an excellent job of reviewing all the allegations and assembling them and digesting them and concluding that ultimately the president was engaged in efforts to campaign to perpetuate his incumbency. on these factual allegations. Okay, make sure my colleagues don't have additional questions for you. Thank you, Mr. Sellas.

Mr. Vanall will give you three minutes for rebuttal. We'll see where that goes. Thank you, Your Honor. 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. And I think we've seen that through the questioning today.

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 tide has to go to the runner, use baseball analogy. You need to, and the Fitzgerald Court makes... I assume you think the runner is the president. The runner is the president in this case. Okay. And that much and more, 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.

And the argument that my friend focused on about separation of the alleged offense to separation of powers, what that framework essentially looks at is that by 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 you then can say immunity no longer applies that's a particularly problematic analysis especially since for separation of powers concerns there is impeachment a dispute between article one and article two is specifically provided for in the Constitution. Judge Katz is one thing that I think important to look at regarding the court's Brandenberg thoughts is, well, it's certainly not the case that Brandenburg would comprise the outer perimeter, the full outer perimeter. 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 words themselves,

not the powder cake. And that is the... 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. 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 as other course and immunity. This question is on the assumption that Brandenburg or not matters. And I understand your broader position is it doesn't matter. Just assume it does. You only need the protections of the First Amendment when there is that powder cake. And a lot of times for insight. So the powder keg is always there. It's certainly in there in the Clyburn case.

It's certainly in there in Brandenburg. and certainly in the progeny. And so that's why it is so extremely important at that point that we then look at the words themselves. And in this point, because those words clearly fall within that, it must be that they're within the outer perimeters of the presidency just as a matter of law without needing further factual analysis. Because having to go through and do further factual analysis at that point would eviscerate the entire purpose of immunity.

I see my time has expired. I have one question. Sorry to belabor this, but there's allegations in the complaint that are beyond the January 6th speech. Yes. And so, and some of them don't naturally raise matter of questions and or other kinds of questions. Some of them can be viewed as more private in nature outside the kind of what we've been talking about. 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 in various states, like planning the rally, 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? I think there's a reason why the district court effectively looks at this analysis as the communication. because those communications are the only thing that could survive the other aspects of the case. So, for instance, the district court, when it talked about the First Amendment analysis,

acknowledged that the First Amendment would prohibit those other aspects of it. So that's why I think it's appropriate when we look at immunity here. Primarily, we look at the speed issues. But when you look at things like election lawsuits and other activities of a president, that still is within the outer perimeter regardless. It's, I think, still very clearly part of the outer perimeter test. And then you also come to the very particular problem if you want to, as the complaint suggests, go towards some sort of negative responsibility of the president.

So, for instance, the suggestion and the complaint that the president had a duty to talk. Right, and that's not before us because that, I don't think that. there was I think it's lost on that and didn't appeal on the 1986 part. I mean, it's not, at least it's not part of the collateral order. I agree. We're talking about the other things as part of the complaint. I would say that when you look at all that together, is this still something that the president is doing on matters of public concern? Is it still, you know, beyond just the bully fault that the president doing as president and he is and anything else,

the district court properly recognized would be prohibited by the First Amendment other. Okay. Thank you, counsel. Thank you to both counsel. We'll take this case under submission.