I'm joined tonight by one of the attorneys representing Donald Trump in the immunity case before the Supreme Court, Will Scharff, who is at today's Supreme Court oral arguments. I should note, he is also running for Missouri attorney general. We're not going to get into that tonight. It's great to have you. You were sitting in the second seat as these arguments are playing out today. I heard something today that I had never heard from your team before, which was John Sauer saying that, yes, some of the allegations in Jack Smith's indictment are indeed private acts. What led to the change from your team?

Well, I think we've always We conceded, first of all, that there is no presidential immunity for a president's private acts in office. I think we've also conceded that, obviously, President Trump engaged in many private acts during the time period in question. I thought in many respects, the much more damning concession, if you could call what we did a concession at all, was Michael Drieben, essentially admitting the attorney for the special counsel's office, essentially admitting that these facts were so inextricably intertwined in a colloquy with Justice Barrett, that it would be very difficult to separate them out on remand. That's how I interpreted his statements, at least.

To translate that for people watching, that means that basically, if it was an official act, they would not be able to use that potentially at trial. He was arguing they should be able to use it to paint a bigger picture. But Trump has argued total immunity. He has not said, Well, some of these are private acts. I mean, this would mean the case could at least, in part, go forward and go to trial.

We believe that without the official acts charged in the indictment, there is no case. We've been very consistent in our position from the start, starting with the district Court proceeding through the circuit now at the US Supreme Court, that what we're talking about is absolute immunity, yes, but absolute immunity just for a president's official acts in office. I think that's a crucial distinction that's been missed in much of the press coverage around President Trump's statements.

Why is there no case if it's just for part of the acts that are in the indictment?

Well, because the indictment itself relies largely on acts that we believe are clearly official. We're talking about things- What's the breakdown? Well, looking at things like asking the Department of Justice to investigate claims of election fraud, considering replacing the acting attorney general of the United States, which is at the absolute heart of the President's power under Article 2 of the US Constitution, we believe that this is an indictment that charges official acts. Therefore, if the court were to recognize the immunity that we've proposed, we don't see how this case could proceed.

But as John said today, you also believe that this indictment charges private acts? John said that he could be tried for private acts.

There are some private acts in the indictment, or there are acts that could be characterized as private in the indictment. President wouldn't have immunity from those.

The question, though, is- Why can't those be tried? The ones that you say are official, trying to make Jeff Clark, the attorney general, put those aside and remove them, why would Trump not be able to be tried for the private acts.

I think if you read the indictment, what they're trying to point to is a much larger scheme that really involves largely official conduct. Without the official conduct, if the Supreme Court were to recognize presidential immunity the way that we've suggested, I believe the indictment would have to be dismissed.

What are the private acts that you believe are in the indictment?

I'd have to look at the indictment more closely, but I think the things that you're talking about, that were mentioned at the court today, private conversations between the President and his political team, that thing looks more like private conduct than the things we just discussed, like directives given to the Department of Justice and consideration of presidential personnel.

But the other acts that were brought up today were conversations he had with people like John Eastman, and Jenna Ellis, and Rudy Giuliani, three people who did not work on behalf of the federal government. Those are charged in the indictment, so why could Trump not go to trial for that?

But it's worth noting, and it's really important to explain what these alternate slates of electors were. Really throughout American history, probably most notably in 1876, when you're challenging a presidential election after the certification deadline in certain states, you present alternate slates of electors, and that gives political actors the opportunity to get to the bottom of whether fraud occurred, whether outcome determinant of fraud occurred, and it allows them to pick a different slate. In 1876, Rutherford B. Hayes was elected President on the back of three alternate slates of electors. Those sorts of preparatory actions, giving political actors the ability to act on allegations of election fraud, I think there's probably intermixed private and official conduct there. And that ultimately will be a very thorny issue for the district Court on remand to assess.

That's a pretty generous view of the fake slates of electors. I mean, as Amy Coney-Barrett, the justice noted today, even this is fake paperwork that was just created for slates of electors that were not alternate, they just They just were fake.

They were fraudulent. Well, again, in 1876, Rutherford B. Hayes was elected president.

I'm talking about 2020 and what happened there.

There's a long history of this. In 1960- There is not a long history of multiple slates of fake electors, people who are not the legitimate electors representing the will of the voters in Arizona, Wisconsin, Pennsylvania, and Michigan. Well, again, what we're talking about is alternate slates of electors, and you can characterize them as fake or not. But in cases where there are serious allegations of election fraud, this is the system that's been used throughout American history, probably most recently in the 1960 election, when an alternate slate of electors from Hawaii was seated.

Let me ask you this, because if you believe that there are some private acts in here and some official acts in here, why didn't you ask the district court two months ago to suss that out? Why wait and to the Supreme Court with this claim of total immunity?

Our position has been consistent from the district Court through until today. We believe that President Trump has absolute immunity for his official acts in office.

The DC- But Trump doesn't draw that distinction.

He absolutely does. The DC district, unfortunately, issued a ruling that said there is absolutely no immunity in the criminal context. The DC Circuit affirmed that incorrect ruling. The reason why the argument today, I think, took the tender that it did, and probably the reason why we're before the Supreme Court at all is because of the egregiousness of those decisions to not recognize any immunity in the criminal context whatsoever.

The Supreme Court, the justices did seem, the conservative ones at least, skeptical of that. But I have to ask you something else, because when one of the One of our justices asked today if the President ordered a military coup, if that would be considered an official act, your team, John Sauer, argued, It would depend on the circumstances, whether it was an official act. What are the circumstances where ordering a military coup is an official act to the presidency.

Well, when you're talking about official acts, you don't look to intent, you don't look to purpose, you look to their underlying character. If that situation were to unfold using the official powers of the President, you could see there being an aspect of officialness to that. I would say, though, that our constitutional system provides powerful structural checks against exactly those sorts of scenarios which have safeguarded our Republic throughout American history.

So the idea that- Okay, but that's the argument people make, and We never had a moment where a sitting President tried to overturn a legitimate election until now.

Again, I would fight your characterization of what happened in 2020. But all of this parade of hypotheticals that some of the justices today that our opponents have put forward, whether it's the coups, whether it's seal Team 6 assassinating political rivals, it's worth noting that the structural checks in place in our Constitution, not including criminal prosecution of former presidents, have served to safeguard us from exactly those sorts of scenarios throughout American history. It's actually our parade of horribles. This idea of political prosecutions crippling presidents, that's what we're seeing play out in America today.

Well, I would disagree with that characterization. I know that you refer to them as the Biden investigations. Obviously, President Biden's not involved in these, but you just said that they're hypotheticals. They're actually not. Alyssa Farah-Griffin, who is a comms director in the White House, tweeted this and said that there was a moment where she personally witnessed Donald Trump suggesting that whoever that he went to the bunker during the George Floyd protest at the White House should be executed. It's actually not really that full.

But they obviously weren't executed.

But does the person have to be executed for it to be brought to bear?

I think hyperbole has a place in almost any office. But I'd come back to- You think it's just hyperbole?

I mean, you're making a pretty brazen argument that military coups could potentially be official acts, that the person wasn't executed, so it doesn't matter.

Just because a military coup who, or any of these parade of horribles, could constitute an official act, doesn't mean that they're right, doesn't mean that they would be allowed under a constitutional system, and doesn't mean that we're in any way, shape, or form justifying that. What we're talking about here, though, is the scope of immunity that presidents need to be able to rely on to discharge their core Article 2 responsibilities as president. Without immunity, I think you'll end up in a situation where presidents will essentially be blackmailed by their political rivals with the threat of political prosecution the day they leave office. To me, that's a very scary scenario.

Do you disagree with Justice Ketanji Brown Jackson, who said, What you're arguing could allow the seat of the presidency to become where you can act with impunity, that any criminal act can happen because you have nothing to fear, no prosecution.

We believe immunity is inherent in the constitutional design. That's the system we've been operating under for hundreds of years.

Immunity is not actually in the constitution.

We believe that immunity naturally follows from the constitution, the same way that civil immunity, which isn't written in the constitution, naturally follows from our constitutional system. That was recognized by the court, Nixon v. Fitzgerald in 1982.

What is victory here? Is it the Supreme Court embracing your argument on total immunity, or is it just sending it back to the lower court and therefore, delaying the January sixth trial from happening before the 2024 election.

We think it's very important for the future of the presidency for the court to embrace a vigorous doctrine of presidential immunity in the criminal context. To us, that's what victory looks like.

Will you still consider it a victory if they just send it back to the lower court and then it essentially delays the trial?

We believe that what's going on here is much more important than this particular trial or this particular defendant. We believe that what's at stake here is the future of the presidency. Without a vigorous immunity doctrine, I fear for the future of our country.

Will Scharff, great to have you. You were inside the Supreme Court today. Thank you for joining us here. Thanks for having me.