Justice Jackson so I think I Now understand better your position um and in your discussions with Justice Kavanaugh became clear that you are saying that for the private acts of a president there's no immunity but for the official acts the president there is immunity is that your position I agree with that all right um so one thing that occurs to me is that this sort of difficult line drawing problem that we're having with all of these hypothetical is this a private act or a Public Act um is being necessitated by that assumption because of course if official acts didn't get absolute immunity then it wouldn't matter we wouldn't have to identify which are private and which are public correct that in fact is the approach of the DC circuit there's no determination that needs to be but I'm just I'm just making so to the extent we're worried about like how do we figure out whether it's private or public we have to we have to understand that we're only doing that because of an underlying assumption that the public acts get immunity so let me explore that assumption um why is it as a matter of theory and I'm hoping you can sort of Zoom way out here that the president um would not be required to follow the law when he is performing his official acts everyone else everyone else there are lots of folks who have very uh high-powered jobs who make a lot of consequential decisions and they do so against the backdrop of potential criminal prosecution if they should uh break the law in that um capacity and we understand and we know as a matter of fact that the president of the United States has the best lawyers in the world when he's making a decision he can consult with pretty much anybody as to whether or not this thing is criminal or not so why would we have a situation in which we would say that the president President should be making official acts without any uh responsibility for following the law I respectfully disagree with that characterization the president absolutely does have responsibility he absolutely is required to follow the law in all of his official acts but the remedy for that is the question could he be subject to personal vulnerability sent to prison for making a bad decision after he leaves office but but other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk so what is it about the president um I mean I've heard you say it's because the president has to be able to act boldly do you know make kind of consequential decisions I mean sure but again there are lots of people who have to make life and death kinds of decisions and yet they still have to follow the law and if they don't they could be sent to prison etc etc so I say two things in response to that both from Fitzgerald that's the very uh uh sort of inference or reasoning that this court rejected in Fitzgerald no but let me just Fitzgerald was a civil situation in which the president actually was in a different position than other people because of the nature of his job the high-profile nature and the fact that he touches so many different things when you're talking about private civil liability you know anybody on the street can sue him we could see that the president was sort of different than the ordinary person when you say should he be immune from civil Li ability from anybody who wants to sue him but when we're talking about criminal liability I don't understand how the president stands in any different position with respect to the need to follow the law as he is doing his job than anyone else he he is required to follow the law and what but he not if there's no criminal prose if there's no threat of criminal prosecution what prevents the president from just doing whatever he wants all the structural checks that are identified in Fitzgerald and a whole series of this courts cases that go back to Martin against M for example impeachment over oversight by Congress uh public oversight there's a long series Fitzgerald directly addresses this in the Civil context and we think that naturally Port I'm not sure that's that that that's much of a back stop and what I'm I guess more worried about you seem to be worried about the president being chilled I think that we would have a really significant opposite problem if the president wasn't chilled if someone with those kinds of powers the most powerful person in the world with the greatest amount of of authority um could go into office knowing that there would be no potential penalty for committing crimes I'm trying to understand what the disincentive is from turning the Oval Office into uh you know the the the the seat of criminal activity in this country uh I don't think there's any allegation of that in this case and what George Washington said is what Benjamin Franklin said is we view the prosecution of a chief executive as something that everybody cried out against is unconstitutional and George Washington said is we're worried about factional Strife which will no I'm let me let me let me put this worry on the table if the potential for criminal liability is taken off the table wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office it's right now the fact that we're having this debate because olc has said that presidents might be prosecuted um presidents from the beginning of time have understood that that's a possibility that might be what has kept this office from turning into the kind of uh crime Center that I'm envisioning but once we say no criminal liability Mr President you can do whatever you want I'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office I respectfully disagree with that because it the the regime you've described is the regime we've operated under for 234 years there has not been an expectation based on 234 years of unbroken political let me ask you another question let me ask you another question about this clear statement um line of questioning first of all I I didn't see you argue that below I don't know I I understand that you have that sort of in your briefs here but did you argue before the DC circuit something about a clear statement with respect to statutes uh yes uh in our separately filed motion for motion to dismiss based on statutory grounds we extensively argued not just this clear statement rule but a whole P right but that's not that's not the question presented in this case the question presented in this case comes out of your motion for immunity so to bring in now an argument that you didn't raise below it seems to me you forfeited it no I believe it's fairly included within the question presented especially especially because the court expanded the question presented from what either of the parties submitted but not to statutory interpretation I mean that that argument goes to statutory invoid avoidance um you know con constitutional inv voidance statutory interpretation you asked for immunity which is a totally different thing I think they're very closely related logically the question is is does immunity exist and to what extent does it and the argument is immunity at least exists to the extent that it raises a great constitutional question that triggers the clear statement rule that's a really toally circular you you use that argument to avoid constitutional questions you are asking us a constitutional question here so it doesn't even make sense to talk about clear statement in rule the way that it's come up in the context of an immunity question but let me just let me ask you this um about it uh I had one more question um yeah so what what is the argument that the president of the United States who you say is bound by the law is not on notice that he has to do his job consistent with the law I mean to the extent the clear statement rule comes in at all it's about the person not being on notice so I I guess I don't understand why Congress in every criminal statute would have to say and the president is included I thought that was the sort of background understanding that if they're enacting a generally applicable criminal statute it applies to the president just like everyone else so so what is the clear statement that would have to be made in this context under Franklin and under public citizen Congress has to speak clearly before it interferes with the president's powers and we have here an indictment that seeks to criminalize objective conduct that falls within the heartland of core executive Authority thank you