1 00:00:00,000 --> 00:00:09,000 Carol V. Trump tandem cases and the motions 23 1146 and 23 1045. 2 00:00:13,440 --> 00:00:15,440 So we'll hear argument in that motion. 3 00:00:15,440 --> 00:00:33,680 Council. 4 00:00:33,680 --> 00:00:35,680 May it please the court? 5 00:00:35,680 --> 00:00:36,560 My name is Alina. 6 00:00:36,560 --> 00:00:39,760 I represent defendant appellant President Donald J. Trump. 7 00:00:39,760 --> 00:00:49,760 This appeal raises an important question that will affect the delicate balance between the judiciary and the executive branch for many years to come. 8 00:00:49,760 --> 00:00:55,760 It is our position that the underlying action with the trial scheduled for January 15th, 9 00:00:55,760 --> 00:01:02,760 it is imperative that this court stays all district court proceedings until it resolves whether a president may raise his presidential immunity defense. 10 00:01:02,760 --> 00:01:11,760 First, this appeal is raised in the immunity context. The lower court is divested of jurisdiction until the appeal is resolved. 11 00:01:11,760 --> 00:01:12,760 That is well established. 12 00:01:12,760 --> 00:01:16,760 Is that an issue you're asking this court to resolve on appeal? 13 00:01:16,760 --> 00:01:25,760 Are you challenging the district court's finding that it retains jurisdiction because any appeal would be frivolous? 14 00:01:25,760 --> 00:01:35,760 Your Honor, our first argument is that we never waived, that basically this is divested and they don't have the right to decide whether presidential, 15 00:01:35,760 --> 00:01:39,760 and frankly Judge Kaplan didn't decide the issue of presidential immunity. 16 00:01:39,760 --> 00:01:48,760 I understand. I just want to be clear what you're asking for now. You're looking for a stay in this court and we have the four factor test for a stay. 17 00:01:48,760 --> 00:01:55,760 But your first point is that the district court didn't have jurisdiction. If that's right, you don't need to stay from us. 18 00:01:55,760 --> 00:01:56,760 Correct, Your Honor. 19 00:01:56,760 --> 00:02:07,760 So how does the district court's decision that it retained jurisdiction, how does that affect the motion before us? Help me out. 20 00:02:07,760 --> 00:02:15,760 Sure. What Judge Kaplan did, Your Honor, was he's, in my opinion, side skirted the well established rule that certified the appeal as frivolous. 21 00:02:15,760 --> 00:02:27,760 When he did so, that was an error that I would like this court to address. However, in this appeal, we assert three independent and meritorious agreements going then to the four factors that Your Honor just mentioned. 22 00:02:27,760 --> 00:02:38,760 And I do believe either under the divestiture of jurisdiction argument or under the four factor test, no matter what this matter should be stayed pending the appeal. 23 00:02:38,760 --> 00:02:55,760 The four factor test requires you to show, your client to show, that there is a likelihood of success on the merits, which is different from the district court finding that it had jurisdiction because the appeal was frivolous. 24 00:02:55,760 --> 00:02:59,760 So it goes to, you know, what kind of standard we're going to apply here. 25 00:02:59,760 --> 00:03:20,760 Right. And with divestiture, our position is it's automatic. It always has been automatic. If you look at the Howard Overy Fitzgerald or the Graves case, we've never had a decision that said that if, you know, especially with immunity, let alone presidential immunity, which is a heightened level, presidential immunity, you must stay this matter because the entire case then should be stayed. 26 00:03:20,760 --> 00:03:30,760 And President Trump would be incredibly hurt by the fact that he would have to go to trial on a case where he would likely just not even have a trial heard because of presidential immunity. 27 00:03:30,760 --> 00:03:38,760 So that's divestiture matter. If Your Honor would like, I can move on to the safe. The four factors test as well, which I believe gives us good grounds. 28 00:03:38,760 --> 00:03:49,760 Even if we use the traditional factors, even if we said that there wasn't divestiture of jurisdiction, which I argue that there is, I believe that under the state factors that also grants relief to President Trump here. 29 00:03:49,760 --> 00:03:59,760 The likelihood of success on presidential immunity is not waivable. And for the first prong, our argument is that in the Supreme Court president Nixon v Fitzgerald. 30 00:03:59,760 --> 00:04:12,760 I'm sorry. You're saying it's not waivable. And you've also asserted that you had asserted the presidential immunity, absolute immunity defense at different points over the past three and a half years of litigation. 31 00:04:12,760 --> 00:04:21,760 But I was not seeing that in the record. Could you point to the earliest time in which you made the absolute immunity argument and briefed out? 32 00:04:21,760 --> 00:04:33,760 Sure, Your Honor. First, yes, our position is that it's not waivable. And if we were to go by Judge Kaplan's position that we needed to assert it, we did assert it in two different instances. 33 00:04:33,760 --> 00:04:43,760 Well, three instances, two motions. The first, I can give you the exact date if Your Honor would like, but we asserted it in a motion for summary judgment. I just didn't see it in the papers. 34 00:04:43,760 --> 00:04:54,760 Sure. No problem, Your Honor. I can give you the exact date. It was noted that we did it on the motion for summary judgment, which was December 20th. 35 00:04:54,760 --> 00:05:02,760 I have the brief. Is there a place that you, there's a discussion of presidential immunity generally. 36 00:05:02,760 --> 00:05:11,760 Are you asking me where? The absolute immunity. So that would have been in December. December 2022 in our motion for summary judgment. So eight months ago. 37 00:05:11,760 --> 00:05:20,760 Yeah. And so already the litigation had been going on for several years, is that right? The litigation had been going on, but I think that's a good point, Your Honor, that I'd like to address. 38 00:05:20,760 --> 00:05:31,760 Our litigation was very complicated. We had the Department of Justice step in and the Westfall Act, as this Court remembers, which is, by the way, Morse is a subjective test, not an objective test like this case, 39 00:05:31,760 --> 00:05:40,760 took years in three different courts for us to address whether that was an issue here. And unfortunately, we never got to a definitive answer on that. 40 00:05:40,760 --> 00:05:52,760 But that's a perfect example, Your Honor, of why this case was so complicated. Obviously, in hindsight, if you look at it, and I understand what my opposing counsel is going to argue, this case was not plain and simple. 41 00:05:52,760 --> 00:06:07,760 We had two matters. Please go ahead. Was there anything precluding you from also asserting presidential immunity at the same time that you argued Westfall immunity? I mean, parties argue in the alternative all the time. 42 00:06:07,760 --> 00:06:17,760 There is nothing precluding it, but I think it's I don't think it's relevant because I truly believe that in the case law stays that you cannot waive presidential immunity based on separation of powers. 43 00:06:17,760 --> 00:06:37,760 And that's something that is incredibly important. So, you know, one of the things your adversary argues is that if we agreed with that, we'd actually be tying a president's hands who might want to waive the immunity, have his day in court, and presumably vindicate himself. 44 00:06:37,760 --> 00:06:54,760 So why shouldn't we be cautious about a decision that would tie a president's hands? Because no single president in this country, be it President Trump or President Biden or President Obama, no president should have the right to change the constitutional separation of powers that are 45 00:06:54,760 --> 00:07:15,760 vested in the executive branch because it is public policies interest that a president be able to address questions of public concern. What is the best case for that? I mean, you speak broadly about separation of powers principles and I appreciate that. Nixon. Nixon. Nixon B. Fitzgerald is on point, in my opinion. Nixon B. Fitzgerald addresses this exact issue. 46 00:07:15,760 --> 00:07:39,760 It states that you absolutely have to for very many reasons create. It says that the president is without power to waive immunity. No. What it says is that the president, I can quote it, Your Honor, before exercising jurisdiction, it must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the executive branch. 47 00:07:39,760 --> 00:08:04,760 That's why it's my position that I don't think any president should be able to waive that. That's different from the answer you provided to strategy. So Nixon. Nixon doesn't say that the president is without power. There's this issue of a presidential decision or executive decision about when to waive and when not to waive and when to appear in court. 48 00:08:04,760 --> 00:08:13,760 I didn't hear anything in the language that you provided in Nixon that addresses that. 49 00:08:13,760 --> 00:08:20,760 Well, I don't think I'm understanding your question, Your Honor. I apologize. But my position is still that it's not waivable. 50 00:08:20,760 --> 00:08:35,760 I'm not sure that I understand the answer. Okay. Given resting on Nixon. Okay. Doesn't seem to answer the question of whether the executive can waive immunity. He cannot. 51 00:08:35,760 --> 00:08:53,760 In the alternative, I also believe that the president has shown sufficient probability of success on the issue to leave to amend rule 15 is a liberal rule. As we know, that was another instance, Your Honor, going back to your question where we raised it. We not only raised it in the motion for summary judgment, which there is no case by indicating that. 52 00:08:53,760 --> 00:09:07,760 I'm sorry. The motion to amend was when the motion to amend was after the December 2022 date. So we're talking in the recent eight months. That's correct. I should be going out for several years before then. And this was the first mention. Correct. Your 53 00:09:07,760 --> 00:09:32,760 Honor. I'm sorry. The amendment had pertained to conduct. President Trump when he was in office. I would understand your argument. But am I correct that the amendment dealt with post office conduct? Well, no, Your Honor, everything on this case was rooted in the 2019 while he was in office. 54 00:09:32,760 --> 00:09:57,760 And I'm sorry. I'm sorry. I'm sorry. I'm sorry. This is this case and washing amendment. Charge him. It was complaining that he repeated these statements after office and therefore to fame the plaintiff again. I am I right? Yes. 55 00:09:57,760 --> 00:10:19,760 Well, it was a case of imagination. We're another claim the pertained to his conduct in office that maybe you would have an argument that, well, new claim. We're going to assert the immunity with respect to this, even if we didn't assert it before. But where the claim pertains to post office conduct for which he wouldn't have immunity. 56 00:10:19,760 --> 00:10:28,360 you have the basis for raising it now on your amended answer? 57 00:10:28,360 --> 00:10:30,400 Well, actually, Your Honor, I also raised it there. 58 00:10:30,400 --> 00:10:31,480 It's a good point. 59 00:10:31,480 --> 00:10:34,600 At that point, when they brought that, I reiterated. 60 00:10:34,600 --> 00:10:36,640 That was frankly the first time I reiterated 61 00:10:36,640 --> 00:10:40,000 that presidential immunity in the alternative was an issue, 62 00:10:40,000 --> 00:10:41,200 and the judge struck it down. 63 00:10:41,200 --> 00:10:42,320 And then I did it. 64 00:10:42,320 --> 00:10:46,520 Stay with my question about how, if the amendment did not 65 00:10:46,520 --> 00:10:52,200 relate to conduct in office, you can amend your answer 66 00:10:52,200 --> 00:10:54,240 to add an immunity that would only 67 00:10:54,240 --> 00:10:55,920 pertain to conduct in office. 68 00:10:55,920 --> 00:10:57,440 And we had both here, Your Honor. 69 00:10:57,440 --> 00:10:58,880 Let's not forget there was an amended. 70 00:10:58,880 --> 00:11:00,920 Not the amended conduct. 71 00:11:00,920 --> 00:11:04,880 The amended conduct still was rooted in his 2019 conduct. 72 00:11:04,880 --> 00:11:07,240 If she didn't have that, and let's also not forget, 73 00:11:07,240 --> 00:11:10,440 there was a second case which arose and was fully 74 00:11:10,440 --> 00:11:13,880 litigated in five months on the flip side. 75 00:11:13,880 --> 00:11:16,840 This plaintiff has not been prejudiced in any way, 76 00:11:16,840 --> 00:11:17,840 as we've seen. 77 00:11:17,840 --> 00:11:21,640 So that included, actually, post-hoc, post-presidency, 78 00:11:21,640 --> 00:11:23,360 truth posts. 79 00:11:23,360 --> 00:11:25,360 So I appreciate what you're saying, Your Honor, 80 00:11:25,360 --> 00:11:27,600 but if we're not to bring it up in the motion for summary 81 00:11:27,600 --> 00:11:30,000 judgment, and we brought it in the motion for summary 82 00:11:30,000 --> 00:11:31,240 judgment, it was struck. 83 00:11:31,240 --> 00:11:33,640 And then we brought it in when she amended the complaint. 84 00:11:33,640 --> 00:11:36,400 And if you look at Shields, which this court itself 85 00:11:36,400 --> 00:11:40,160 decided, in the Shields case, once you amend that complaint, 86 00:11:40,160 --> 00:11:43,560 which they did, we had a right to put a new answer in 87 00:11:43,560 --> 00:11:44,720 with affirmative defenses. 88 00:11:44,720 --> 00:11:46,880 And we still stated the affirmative defense 89 00:11:46,880 --> 00:11:48,320 of presidential immunity. 90 00:11:48,320 --> 00:11:50,000 And that was also struck. 91 00:11:50,000 --> 00:11:54,600 So I still think, and I go back to my original, 92 00:11:54,600 --> 00:11:56,680 and I'm happy to go through irreparable harm and all 93 00:11:56,680 --> 00:11:59,680 the other factors, but I think I've stated them indirectly, 94 00:11:59,680 --> 00:12:00,880 or to some extent. 95 00:12:00,880 --> 00:12:03,120 Let me ask you a slight housekeeping matter. 96 00:12:03,120 --> 00:12:03,920 Sure, Your Honor. 97 00:12:03,920 --> 00:12:07,200 Just in the alternative to give us 98 00:12:07,200 --> 00:12:10,000 a sense of what the possibility is, 99 00:12:10,000 --> 00:12:15,280 let's say that we deny a request for a stay. 100 00:12:15,280 --> 00:12:24,120 Would you be prepared to expedite, 101 00:12:24,120 --> 00:12:28,000 to brief on an expedited schedule, 102 00:12:28,000 --> 00:12:30,600 the presidential immunity issue, whatever other issues 103 00:12:30,600 --> 00:12:32,280 you want to have a merits panel? 104 00:12:32,280 --> 00:12:33,840 I'm sorry, I couldn't hear you because of the coffee. 105 00:12:33,840 --> 00:12:34,400 I'm sorry. 106 00:12:34,400 --> 00:12:35,400 Expedite. 107 00:12:35,400 --> 00:12:39,960 Expedite the briefing on the presidential immunity 108 00:12:39,960 --> 00:12:45,920 issue and whatever other issues you want to address. 109 00:12:45,920 --> 00:12:48,480 Given that this doesn't go to the Supreme Court, 110 00:12:48,480 --> 00:12:49,880 I mean, absolutely, Your Honor. 111 00:12:49,880 --> 00:12:52,520 I believe very firmly that we are correct in this. 112 00:12:52,520 --> 00:12:53,960 This is a very important issue. 113 00:12:53,960 --> 00:12:55,920 I'd be happy to expedite the brief. 114 00:12:55,920 --> 00:13:00,400 So if we gave you 15 days, or 20 days, 115 00:13:00,400 --> 00:13:03,720 OK, you just responded to that question. 116 00:13:03,720 --> 00:13:07,120 We have trial, sir, in three weeks. 117 00:13:07,120 --> 00:13:09,080 But it's in New York. 118 00:13:09,080 --> 00:13:10,440 OK, OK. 119 00:13:10,440 --> 00:13:12,680 So I mean, given my schedule, I do 120 00:13:12,680 --> 00:13:14,760 have the attorney general's case in New York, 121 00:13:14,760 --> 00:13:16,960 which starts on October 2. 122 00:13:16,960 --> 00:13:20,280 I would be willing to help in whatever way 123 00:13:20,280 --> 00:13:22,760 if the court required me to further brief. 124 00:13:22,760 --> 00:13:25,760 You have no general opposition to an expedited briefing 125 00:13:25,760 --> 00:13:28,200 schedule if we were to deny this. 126 00:13:28,200 --> 00:13:28,880 No, Your Honor. 127 00:13:28,880 --> 00:13:33,360 I very firmly believe that I'm happy to expedite and get 128 00:13:33,360 --> 00:13:34,520 all hands on deck on this. 129 00:13:34,520 --> 00:13:36,120 I would just ask the court's indulgence 130 00:13:36,120 --> 00:13:39,160 that I do have trial on a very large case. 131 00:13:39,160 --> 00:13:42,360 Hearing that and being mindful of it, nevertheless, 132 00:13:42,360 --> 00:13:44,520 it seemed to me that you almost have 133 00:13:44,520 --> 00:13:47,800 the merits of your argument briefed here already 134 00:13:47,800 --> 00:13:50,560 when you argue that you're likely to succeed 135 00:13:50,560 --> 00:13:52,000 on the merits. 136 00:13:52,000 --> 00:13:55,600 And I would think it would be in your strong interest, 137 00:13:55,600 --> 00:13:57,880 actually, whether we grant or don't grant this day, 138 00:13:57,880 --> 00:14:01,960 to get this to the merits panel as soon as possible. 139 00:14:01,960 --> 00:14:03,920 Do you really need more than two weeks 140 00:14:03,920 --> 00:14:08,480 to polish up the arguments you've basically been doing? 141 00:14:08,480 --> 00:14:10,200 Well, I mean, I think that that would imply 142 00:14:10,200 --> 00:14:12,240 that you would deny the fact that the court was 143 00:14:12,240 --> 00:14:13,320 divested of jurisdiction. 144 00:14:13,320 --> 00:14:15,400 And then I have to, you know, I would like to see, 145 00:14:15,400 --> 00:14:18,000 if that is the case, the court's decision. 146 00:14:18,000 --> 00:14:19,760 Obviously, yes, we are pretty much free. 147 00:14:19,760 --> 00:14:21,320 That's where I started to ask you 148 00:14:21,320 --> 00:14:25,120 whether you were asking this panel to conclude 149 00:14:25,120 --> 00:14:27,520 that the district court erred when 150 00:14:27,520 --> 00:14:30,360 it said it retains jurisdiction. 151 00:14:30,360 --> 00:14:33,080 And that didn't seem to be the motion you were making, 152 00:14:33,080 --> 00:14:34,760 but it is the first point in the brief. 153 00:14:34,760 --> 00:14:35,240 It is. 154 00:14:35,240 --> 00:14:35,760 I saw that. 155 00:14:35,760 --> 00:14:36,560 It is. 156 00:14:36,560 --> 00:14:39,120 And what I did, Your Honor, as any attorney, I think, would, 157 00:14:39,120 --> 00:14:41,600 is give you the alternative, that if this court didn't 158 00:14:41,600 --> 00:14:44,160 find that they were divested of jurisdiction, 159 00:14:44,160 --> 00:14:47,320 then I still do believe that we would win under the four. 160 00:14:47,320 --> 00:14:50,400 Well, let me deal with that. 161 00:14:50,400 --> 00:14:53,240 That issue could also go to the merits panel, 162 00:14:53,240 --> 00:14:57,120 whether or not the district court can retain jurisdiction 163 00:14:57,120 --> 00:14:59,560 in these circumstances. 164 00:14:59,560 --> 00:15:05,920 What is the risk to you of not ruling on that for two or three 165 00:15:05,920 --> 00:15:09,480 weeks while it's expeditiously briefed 166 00:15:09,480 --> 00:15:11,360 and goes to the merits panel? 167 00:15:11,360 --> 00:15:16,200 I want to be sure what the harm is to your client 168 00:15:16,200 --> 00:15:19,400 if we don't rule on the district court's jurisdiction 169 00:15:19,400 --> 00:15:20,680 for a few weeks. 170 00:15:20,680 --> 00:15:22,840 I mean, we can start with the basic fact 171 00:15:22,840 --> 00:15:25,720 that he's paying his attorneys to then fully brief something 172 00:15:25,720 --> 00:15:27,280 with a trial pending on something 173 00:15:27,280 --> 00:15:29,960 that shouldn't be briefed and is a waste of resources, 174 00:15:29,960 --> 00:15:31,600 both judicial and personal. 175 00:15:31,600 --> 00:15:32,120 Number one. 176 00:15:32,120 --> 00:15:33,960 Number two, more importantly, Your Honor, 177 00:15:33,960 --> 00:15:37,400 is the presidential immunity is so important. 178 00:15:37,400 --> 00:15:39,000 It's different than absolute immunity. 179 00:15:39,000 --> 00:15:41,080 It is a heightened level of immunity. 180 00:15:41,080 --> 00:15:43,000 And if we don't preserve that by saying 181 00:15:43,000 --> 00:15:46,200 that once presidential immunity is implemented. 182 00:15:46,200 --> 00:15:48,520 I'm sorry to interrupt, but you'd get to argue that 183 00:15:48,520 --> 00:15:50,120 to the merits panel. 184 00:15:50,120 --> 00:15:50,720 Sure. 185 00:15:50,720 --> 00:15:53,400 I'm just trying to figure out, is there 186 00:15:53,400 --> 00:15:57,080 something you anticipate having to do in the district 187 00:15:57,080 --> 00:16:00,960 court or the district court doing in the next few weeks 188 00:16:00,960 --> 00:16:05,840 that makes its retention of jurisdiction problematic for you? 189 00:16:05,840 --> 00:16:06,400 Sure. 190 00:16:06,400 --> 00:16:08,040 I think that, frankly, for my client, 191 00:16:08,040 --> 00:16:10,920 the schedule alone is a very compelling reason. 192 00:16:10,920 --> 00:16:14,360 We have trial on October 2nd, which I am his attorney for. 193 00:16:14,360 --> 00:16:16,240 That trial will go until this case. 194 00:16:16,240 --> 00:16:18,440 Not on this case, till December 22nd 195 00:16:18,440 --> 00:16:19,920 in the state of New York. 196 00:16:19,920 --> 00:16:24,760 I am then scheduled to be on January 15th trial, 197 00:16:24,760 --> 00:16:27,640 pushing this out three more weeks, just purely 198 00:16:27,640 --> 00:16:29,480 from a scheduling perspective, Your Honor, 199 00:16:29,480 --> 00:16:32,400 is incredibly difficult for me to then be on trial 200 00:16:32,400 --> 00:16:34,080 and prep for this trial in two weeks. 201 00:16:34,080 --> 00:16:35,840 But once again, as Judge Raggi pointed out, 202 00:16:35,840 --> 00:16:39,040 with regard to the absolute immunity argument, 203 00:16:39,040 --> 00:16:42,640 you've briefed already before us the divestiture 204 00:16:42,640 --> 00:16:44,160 of jurisdiction argument. 205 00:16:44,160 --> 00:16:44,680 Correct. 206 00:16:44,680 --> 00:16:47,680 That is something that could be buffed up and then sent 207 00:16:47,680 --> 00:16:49,720 onto a merits panel as well, couldn't it? 208 00:16:49,720 --> 00:16:50,440 It could, Your Honor. 209 00:16:50,440 --> 00:16:52,140 I would just ask that if that is the case, 210 00:16:52,140 --> 00:16:54,600 that perhaps we do stay even for a short period of time 211 00:16:54,600 --> 00:16:56,400 so that I have the proper amount of time 212 00:16:56,400 --> 00:16:59,280 to prep for the trial, which I know they say is two or three 213 00:16:59,280 --> 00:17:00,640 days, but frankly, in my opinion, 214 00:17:00,640 --> 00:17:01,880 shouldn't even be happening. 215 00:17:01,880 --> 00:17:03,280 Well, is there any basis for thinking 216 00:17:03,280 --> 00:17:04,960 that things would be particularly 217 00:17:04,960 --> 00:17:08,240 active in the district court over the next two weeks? 218 00:17:08,240 --> 00:17:09,000 On this case? 219 00:17:09,000 --> 00:17:09,720 Are you scheduled right now? 220 00:17:09,720 --> 00:17:10,240 Yes. 221 00:17:10,240 --> 00:17:12,800 No, but I will just be out of pocket, frankly, 222 00:17:12,800 --> 00:17:14,680 and in court for two months. 223 00:17:14,680 --> 00:17:15,840 I mean, it is what it is. 224 00:17:15,840 --> 00:17:19,040 I unfortunately are scheduled sometimes. 225 00:17:19,040 --> 00:17:21,640 So you're thinking practically because you're out of pocket 226 00:17:21,640 --> 00:17:22,240 are stayed. 227 00:17:22,240 --> 00:17:24,520 I mean, I would love to have that. 228 00:17:24,520 --> 00:17:25,240 I would love to have a decision. 229 00:17:25,240 --> 00:17:26,820 But if the court would like it briefed, 230 00:17:26,820 --> 00:17:28,280 I will make it happen. 231 00:17:28,280 --> 00:17:33,280 I just ask that my indulgence and my clients schedule. 232 00:17:33,280 --> 00:17:33,780 Thank you. 233 00:17:33,780 --> 00:17:34,740 Thank you very much. 234 00:17:34,740 --> 00:17:35,240 Thank you. 235 00:17:37,720 --> 00:17:38,220 Council? 236 00:17:43,920 --> 00:17:45,960 May it please the court, my name is Joshua Matz 237 00:17:45,960 --> 00:17:49,840 and I represent the plaintiff appellee, Eugene Carroll. 238 00:17:49,840 --> 00:17:52,920 The defendant's motion rests on a single premise, 239 00:17:52,920 --> 00:17:56,240 that while his appeals unfold, this court should intervene 240 00:17:56,240 --> 00:17:59,200 immediately to preserve his asserted interest in not 241 00:17:59,200 --> 00:18:02,400 having to participate in this lawsuit at all. 242 00:18:02,400 --> 00:18:04,120 But that premise is squarely at odds 243 00:18:04,120 --> 00:18:06,600 with Mr. Trump's repeated choice to participate 244 00:18:06,600 --> 00:18:09,660 in every aspect of this case for nearly four years 245 00:18:09,660 --> 00:18:12,200 and to urge an expedited jury trial on the case 246 00:18:12,200 --> 00:18:13,600 just six months ago. 247 00:18:13,600 --> 00:18:14,800 Let me just interrupt you. 248 00:18:14,800 --> 00:18:17,400 We are not the merits panel. 249 00:18:17,400 --> 00:18:20,720 But so the question, first of all, 250 00:18:20,720 --> 00:18:25,840 is this matter of district court retention of jurisdiction. 251 00:18:25,840 --> 00:18:28,960 And then the four factor tests for granting a stay. 252 00:18:28,960 --> 00:18:33,440 I'd like you to address first the question of jurisdiction. 253 00:18:33,440 --> 00:18:35,640 The district court was obliged to find 254 00:18:35,640 --> 00:18:42,560 that appeal would be frivolous to retain jurisdiction. 255 00:18:42,560 --> 00:18:46,080 And we know that it has exercised that jurisdiction 256 00:18:46,080 --> 00:18:49,480 just in the last week with its decision 257 00:18:49,480 --> 00:18:52,640 that there would be no need to try liability only 258 00:18:52,640 --> 00:18:54,240 damages in this case. 259 00:18:57,440 --> 00:19:01,880 How can you support the fact that appeal is frivolous 260 00:19:01,880 --> 00:19:08,880 when we have questions about the exercise 261 00:19:08,880 --> 00:19:11,200 of presidential immunity in this case? 262 00:19:11,200 --> 00:19:13,320 I would think that whatever we do in this case, 263 00:19:13,320 --> 00:19:16,040 we might have to write a decision and all of that. 264 00:19:16,040 --> 00:19:19,520 That hardly sounds like a frivolous matter. 265 00:19:19,520 --> 00:19:20,200 Yes, Your Honor. 266 00:19:20,200 --> 00:19:22,520 If I may, I just want to step back 267 00:19:22,520 --> 00:19:23,800 to the question of jurisdiction. 268 00:19:23,800 --> 00:19:27,280 Because I think the frivolity point is one aspect of that, 269 00:19:27,280 --> 00:19:28,920 but not necessarily the only one. 270 00:19:28,920 --> 00:19:30,380 So I want to answer your question, 271 00:19:30,380 --> 00:19:32,920 but I also want to address the jurisdictional point more 272 00:19:32,920 --> 00:19:33,800 broadly, if I may. 273 00:19:33,800 --> 00:19:36,160 Under this case, this court's opinion in the World Trade 274 00:19:36,160 --> 00:19:40,760 Center litigation from 2007, the court there 275 00:19:40,760 --> 00:19:44,440 was asked to stay a district court decision 276 00:19:44,440 --> 00:19:47,440 on the theory that the district court lacked jurisdiction 277 00:19:47,440 --> 00:19:51,040 during an appeal from the denial of an immunity defense. 278 00:19:51,040 --> 00:19:52,640 And the approach the court took there, 279 00:19:52,640 --> 00:19:54,360 it initially stayed the decision, 280 00:19:54,360 --> 00:19:56,140 but then it lifted this day. 281 00:19:56,140 --> 00:19:59,860 And in doing so, it said that the motion 282 00:19:59,860 --> 00:20:02,920 to vacate this day, which involved the four factor test, 283 00:20:02,920 --> 00:20:06,000 was, quote, inextricably intertwined 284 00:20:06,000 --> 00:20:08,880 with whether the notice of appeal in the first place 285 00:20:08,880 --> 00:20:11,080 divested the court of jurisdiction. 286 00:20:11,080 --> 00:20:14,120 And then it went on to say that that analysis, in some respect, 287 00:20:14,120 --> 00:20:17,600 overlapped with whether the appellate court should restore 288 00:20:17,600 --> 00:20:19,600 the district court's jurisdiction. 289 00:20:19,600 --> 00:20:22,120 Which is all to say that under the World Trade Center case, 290 00:20:22,120 --> 00:20:24,120 which is, of course, the controlling precedent 291 00:20:24,120 --> 00:20:27,760 in this court, it appears that the four factor test, rather 292 00:20:27,760 --> 00:20:30,120 than a formal jurisdictional inquiry, 293 00:20:30,120 --> 00:20:32,360 has structured the way that this court has thought 294 00:20:32,360 --> 00:20:35,640 about the presence or the restoration of district court 295 00:20:35,640 --> 00:20:38,280 jurisdiction in circumstances like these. 296 00:20:38,280 --> 00:20:40,480 If the court were for the first time 297 00:20:40,480 --> 00:20:43,080 to adopt something like the Seventh Circuit's apostol 298 00:20:43,080 --> 00:20:46,800 standard, which talked about frivolity, 299 00:20:46,800 --> 00:20:49,800 I would highlight that there are two separate reasons 300 00:20:49,800 --> 00:20:51,840 why the maintenance of district court jurisdiction here 301 00:20:51,840 --> 00:20:52,960 is appropriate. 302 00:20:52,960 --> 00:20:55,600 One of them is frivolity, and I promise I will get to it. 303 00:20:55,600 --> 00:20:58,600 But the other, which Judge Easterbrook highlighted 304 00:20:58,600 --> 00:21:01,800 in that case, is that the defendant may waive their right 305 00:21:01,800 --> 00:21:04,960 not to be tried if they wait too long after the denial 306 00:21:04,960 --> 00:21:07,960 of summary judgment, or if they use claims of immunity 307 00:21:07,960 --> 00:21:09,560 in a manipulative fashion. 308 00:21:09,560 --> 00:21:12,280 At that point, they don't lose their right to appeal. 309 00:21:12,280 --> 00:21:14,440 To have their claims decided. 310 00:21:14,440 --> 00:21:16,640 But what they do lose is the right 311 00:21:16,640 --> 00:21:20,560 to have that happen before the trial goes through. 312 00:21:20,560 --> 00:21:23,320 We think that this case is a poster trial 313 00:21:23,320 --> 00:21:25,080 for the application of that principle 314 00:21:25,080 --> 00:21:26,760 for the reasons given in our brief. 315 00:21:26,760 --> 00:21:29,720 And we cited the Yates case from the Sixth Circuit as well. 316 00:21:29,720 --> 00:21:31,880 So I think there's two reasons why the district court 317 00:21:31,880 --> 00:21:33,920 retained jurisdiction independent of its frivolity 318 00:21:33,920 --> 00:21:34,080 point. 319 00:21:34,080 --> 00:21:36,800 But on the frivolity point, I want to make sure I get to it. 320 00:21:36,800 --> 00:21:39,300 Mr. Trump, I want to be thorough here as a housekeeping matter, 321 00:21:39,300 --> 00:21:41,840 he has sought to present three issues to this court on appeal. 322 00:21:41,840 --> 00:21:44,560 There is a frivolity finding as to only one of them. 323 00:21:44,560 --> 00:21:47,400 As to the other two, there isn't a finding of frivolity 324 00:21:47,400 --> 00:21:49,480 because they were never presented to the district 325 00:21:49,480 --> 00:21:50,800 court in the first place. 326 00:21:50,800 --> 00:21:54,040 So there's a Rule 8A issue with this court even taking up 327 00:21:54,040 --> 00:21:56,920 Mr. Trump's day application as to those two points. 328 00:21:56,920 --> 00:21:59,320 As to the sole issue he presented below, 329 00:21:59,320 --> 00:22:01,480 I do think that Judge Kaplan's frivolity finding 330 00:22:01,480 --> 00:22:03,680 was appropriate for a simple reason, which 331 00:22:03,680 --> 00:22:07,360 is that both we and Judge Kaplan identified not a little, 332 00:22:07,360 --> 00:22:09,720 but a kind of overwhelming wall of authority 333 00:22:09,720 --> 00:22:12,040 that foreclosed the position that Mr. Trump sought 334 00:22:12,040 --> 00:22:15,000 to advance concerning the wavability of this defense. 335 00:22:15,000 --> 00:22:18,640 And Mr. Trump offered literally no response. 336 00:22:18,640 --> 00:22:20,360 In his stay motion in the district court, 337 00:22:20,360 --> 00:22:23,760 he didn't even quote or cite the district court's decision. 338 00:22:23,760 --> 00:22:26,260 He offered no reason to think it was faulty. 339 00:22:26,260 --> 00:22:28,320 And I think what Judge Kaplan concluded 340 00:22:28,320 --> 00:22:31,240 is that where there's this overwhelming wall of authority 341 00:22:31,240 --> 00:22:33,000 and essentially nothing on their side, 342 00:22:33,000 --> 00:22:34,800 I mean the most they offer in a reply brief 343 00:22:34,800 --> 00:22:37,120 here is a strange reading of a concurrence from the Nixon 344 00:22:37,120 --> 00:22:39,920 case, where there's nothing on their side 345 00:22:39,920 --> 00:22:41,920 and an overwhelming weight of authority on our side. 346 00:22:41,920 --> 00:22:44,360 And they can't even respond or they choose not even 347 00:22:44,360 --> 00:22:46,360 to respond to judicial analysis. 348 00:22:46,360 --> 00:22:48,480 I think that's where he concluded that a frivolity 349 00:22:48,480 --> 00:22:49,800 finding was appropriate. 350 00:22:49,800 --> 00:22:56,240 Let me state what I understand the defendant 351 00:22:56,240 --> 00:22:59,040 to be urging here, which is that he's 352 00:22:59,040 --> 00:23:04,040 going to raise an argument that presidential immunity is not 353 00:23:04,040 --> 00:23:05,480 waivable. 354 00:23:05,480 --> 00:23:08,440 And to the extent you have pointed out to us 355 00:23:08,440 --> 00:23:14,240 that prosecutorial immunity and judicial immunity are waivable, 356 00:23:14,240 --> 00:23:18,360 they are grounded in common law and presidential immunity 357 00:23:18,360 --> 00:23:22,240 is grounded in the Constitution's principles 358 00:23:22,240 --> 00:23:24,480 of separation of power. 359 00:23:24,480 --> 00:23:28,800 And to the extent that that has not been addressed by this 360 00:23:28,800 --> 00:23:32,720 court, they raise a non-frivolous argument. 361 00:23:32,720 --> 00:23:35,600 However, we may decide the merits of it. 362 00:23:35,600 --> 00:23:42,480 So why is that not a plausible argument for the court 363 00:23:42,480 --> 00:23:44,680 to consider? 364 00:23:44,680 --> 00:23:47,720 Well, again, we think that question arises 365 00:23:47,720 --> 00:23:50,060 within this question of whether the district court retained 366 00:23:50,060 --> 00:23:52,160 jurisdiction. 367 00:23:52,160 --> 00:23:54,640 And the district court concluded it retained jurisdiction 368 00:23:54,640 --> 00:23:56,640 because it thought that position frivolous. 369 00:23:56,640 --> 00:23:58,960 My main point that I want to emphasize 370 00:23:58,960 --> 00:24:02,560 is this court can deny the stay motion and expedite the appeals 371 00:24:02,560 --> 00:24:04,400 and to be clear, we agree with that approach 372 00:24:04,400 --> 00:24:06,440 if it's the approach the court prefers. 373 00:24:06,440 --> 00:24:08,400 This court can deny the stay motion 374 00:24:08,400 --> 00:24:10,680 and conclude that the district court at least temporarily 375 00:24:10,680 --> 00:24:13,400 retains jurisdiction for either of the other reasons 376 00:24:13,400 --> 00:24:15,960 that I just gave without necessarily reaching 377 00:24:15,960 --> 00:24:17,880 a finding as to the correctness or incorrectness 378 00:24:17,880 --> 00:24:20,640 of the frivolity determination, which this panel may actually 379 00:24:20,640 --> 00:24:23,800 prefer to leave for the merits panel to ultimately decide 380 00:24:23,800 --> 00:24:25,000 in adjudicating the issue. 381 00:24:25,000 --> 00:24:28,080 So this court doesn't need to reach the merits, either 382 00:24:28,080 --> 00:24:30,120 the merits themselves or their frivolity finding 383 00:24:30,120 --> 00:24:32,480 as to that issue because there are other ways 384 00:24:32,480 --> 00:24:35,080 that it could appropriately, in my view, 385 00:24:35,080 --> 00:24:37,920 deny the stay and leave that issue for plenary consideration 386 00:24:37,920 --> 00:24:39,520 by a merits panel. 387 00:24:39,520 --> 00:24:42,360 But I do think, I'll sort of stand my ground on the point 388 00:24:42,360 --> 00:24:45,440 that we think the frivolity finding was appropriate 389 00:24:45,440 --> 00:24:47,520 given the crushing weight of authority. 390 00:24:47,520 --> 00:24:49,600 And I agree it's an unanswered question, 391 00:24:49,600 --> 00:24:52,520 but it's unanswered only because no president 392 00:24:52,520 --> 00:24:55,400 has sought to engage in the sort of gamesmanship presented here. 393 00:24:55,400 --> 00:24:57,120 And everyone who has thought to remark on it 394 00:24:57,120 --> 00:24:59,080 has found it to be a very easy question. 395 00:24:59,080 --> 00:25:01,720 And I think that was partially where Judge Kaplan came from. 396 00:25:01,720 --> 00:25:07,160 But we do agree that either under the four factor approach 397 00:25:07,160 --> 00:25:10,560 or the apostol approach, really either of the apostol approaches 398 00:25:10,560 --> 00:25:13,240 because there's two of them consistent with that case, 399 00:25:13,240 --> 00:25:15,600 it would be entirely sensible for this court 400 00:25:15,600 --> 00:25:18,320 to deny the motion to stay under rule eight 401 00:25:18,320 --> 00:25:20,400 and for the other reasons given in our brief 402 00:25:20,400 --> 00:25:23,200 to expedite the merits of the appeal. 403 00:25:23,200 --> 00:25:25,760 And I am unaware of any kind of immediate pending 404 00:25:25,760 --> 00:25:26,920 thing in the district court. 405 00:25:26,920 --> 00:25:29,440 Obviously, there's the trial set for January. 406 00:25:29,440 --> 00:25:31,840 And in light of Mr. Trump's remaining trial schedule 407 00:25:31,840 --> 00:25:35,680 for 2024, we would very much hope that that trial date 408 00:25:35,680 --> 00:25:38,320 doesn't move so that if this court does expedite it, 409 00:25:38,320 --> 00:25:39,920 it expedited in a way that arrives 410 00:25:39,920 --> 00:25:43,120 at a final decision of the court in time for that trial 411 00:25:43,120 --> 00:25:44,160 date to stand. 412 00:25:44,160 --> 00:25:46,400 Since if it gets pushed back between his other trial 413 00:25:46,400 --> 00:25:50,560 dates and the election calendar, the reality 414 00:25:50,560 --> 00:25:52,840 is it may be very difficult to find another trial 415 00:25:52,840 --> 00:25:55,880 date in 2023 or sorry, 2024. 416 00:25:55,880 --> 00:25:58,480 But if this court is inclined to expedite, 417 00:25:58,480 --> 00:26:00,520 we would be perfectly prepared to brief on an expedited 418 00:26:00,520 --> 00:26:01,280 schedule. 419 00:26:01,280 --> 00:26:02,980 And we see very little risk of prejudice 420 00:26:02,980 --> 00:26:04,440 to Mr. Trump in the interim since there's 421 00:26:04,440 --> 00:26:05,980 no pending deadline of any kind that I'm 422 00:26:05,980 --> 00:26:06,980 aware of in this report. 423 00:26:10,240 --> 00:26:12,400 Thank you very much. 424 00:26:12,400 --> 00:26:14,000 We'll reserve the decision. 425 00:26:14,000 --> 00:26:15,000 Thank you, everybody. 426 00:26:15,000 --> 00:26:29,240 Thank you.