ACB: The Special Counsel makes a point that I think is a pretty compelling one: You admit that if the President were successfully impeached that he could be prosecuted after impeachment, right?
SAUER: Assuming that the prosecution was for the same conduct of which he was convicted. Not impeached, that word conviction is right there in the clause.
ACB: OK. OK. Granted. But you also say that these criminal statutes unless they explicitly mention the President don't apply to him. So how can you say that he would be subject to prosecution after impeachment while at the same time saying that he's exempt from these criminal statues?
SAUER: Well, there are statutes--as they concede--where Congress has purported--
ACB: A few. Two or three.
SAUER: They haven't done a comprehensive review. I think, this looks like all they did was text search for President in 18 U.S. Code. Again, under
Franklin that's a very telling indication that the word "President" is not in the statute. Isn't necessarily a -- a -- a magic word requirement so-to-speak. But more fundamentally than that, more fundamentally than that they concede there are statutes that exist. In addition to that, much impeachment could occur as a result of private conduct. So the Impeachment Judgment Clause does do significant work buy authorizing the subsequent prosecution of a President there, because in what the Framers--if you look at what they're discussing in the thing, er, in the Constitutional Convention, is principally concerns about private conduct. Which of course we concede are not immune.
ACB: OK, so just to pick up Justice Kagan's example of a President who orders a coup, let's imagine that he is impeached and convicted for ordering that coup. And let's just accept for the sake of argument your position that that was official conduct. You're saying that he couldn't be prosecuted for that even after conviction in an impeachment proceeding if there was not a statute that expressly referenced the President and made it criminal for the President.
SAUER: There would have to be a statute that made a clear statement that Congress purported to regulate the President's conduct.
ACB: OK. Thank you.
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