SC Lawyer: If there is impeachment-removal condition, then we would have seen some indication in founding documents. There is *no* indication this was ever a plausible reading. All that Hamilton ever said was that a sitting president cannot be prosecuted, and can only be removed by the civil impeachment process, and then prosecuted upon not being sitting president.

Court: If we determine there is no impeachment-removal condition precedent to criminal prosecution, does that answer this question? (going back to the Trump Lawyer catch-22 on conceding some avenue for criminal prosecution exists).

Court is asking about the effects of various rulings and remands, got kind of weedy.

SC Lawyer essentially argues it would create a mess and tons of additional litigation.

Court: Is the motive and intent not part of the criminal charges?

SC Lawyer: Yes, which is why we shouldn't do the Fitzgerald analysis here. That question is addressed in the criminal trial.

Court: Should we consider motive / intent in the analysis of official acts?

SC Lawyer: No, since the underlying act is the same.

SC Lawyer: What kind of world are we living in if we are living in a world where the president can order seal team six to assassinate his political opponent and then *resigns* before impeachment and removal. Completely immune? This should weigh extraordinarily heavily in the court's decision making.

Court: Do you then think it should be a case-by-case analysis?

SC Lawyer: An across the board rule that the president can be subject to criminal prosecution. In a particular case, there could be extraordinary circumstances where immunity may be invoked. But this Court does not need to recognize that *here*. Can reserve that question until a later case.

SC Lawyer: Drone strike liability (per the Obama argument) might implicate the kind of discretion that this Court may find immunity for, since it is an in the moment decision like that and not subject to time for consideration.

Court: How do we prevent opening the floodgates when criminal prosecution is likely to be necessarily political?

SC Lawyer: The criminal process has safeguards and is explicitly not to be political. The floodgate argument is a bit overstated. Nixon and past cases were civil, but it was also about potential criminal conduct. The assumption of criminal prosecution has continued through to the present.

SC Lawyer: Following the law is not a discretionary act. Compliance is not optional even under the take care clause.

Court: Let's turn to Marbury.

SC Lawyer: Certainly doesn't erect an unreviewable power to the presidency. Youngstown (steel seizure case) is a great example. Court comes in and reviews the presidential action.

SC Lawyer: We would say yes, hypothetical jurisdiction may exist, and yes, you can do it and should if needed.

Court: Is that not an advisory opinion?

Court: We have a line of cases that say we can assume hypothetical jurisdiction. If we have discretion to reach the merits, rather than just dismissing under Midland Asphalt. How should we determine whether to exercise the ability to reach the merits anyways?

Court: Why not take the position that it should be dismissed because it can not be subject to interlocutory appeal?

SC Lawyer: We want to get to the merits and get the law right.

Discussing jurisdiction again.

Special Counsel (SC) Lawyer: "The former President enjoys NO immunity from criminal prosecution."

SWITCHING SIDES!