Subject: Re: On July 1 We Lost the Republic
If they ask the president or chief of staff to tell them about the conversation, they can say it's immune. Investigators need some proof that it is not immune to pierce that veil of immunity and actually talk to the people involved.

How are they going to get that evidence? So far, all of the discussion seems to be implying that investigators know the act is not immune. But how do they know that in a way the legally pierces the veil of immunity? How do they know that in a way that can be admitted in court?

The same way they would in any other case. By subpoenaing the parties.

I think you're confusing the question of whether something is admissible with whether it is discoverable. Just because the conversation might be an official act which is immune from prosecution doesn't mean that investigators can't talk to the people involved.

Things that are privileged are exempt from investigation. If the President is speaking with his counsel, they can tell prosecutors to pound sand if they ask for the notes - because that information is privileged from discovery and investigation. But the fact that the conversation might be immune wouldn't allow them to shield the notes. The fact that such notes might be inadmissible as evidence in the criminal trial does not mean that they're privileged from being discovered by the prosecutors.

This is pretty clear from the majority opinion - specifically, their discussion of conversations between Trump and Pence. The Court noted that the VP is a high-ranking official in the Executive Branch, and that engaging in a discussion with the VP is very frequently an official act of the President. But the opinion specifically noted that the VP's role in certifying the election is not an executive function, and involves subject matter that the President has no role in at all - and so the prosecutors could establish that those conversations were not an official act of the President.

I think that a lot of the breathless hypotheticals are committing a category error. As the discussion of the VP makes clear, the level of inquiry for the immunity determination isn't undertaken at the most general level ("Is talking to the VP an official act of the President"), but rather at the specific level ("Is this specific conversation about this specific topic between the VP and President an official act"). So while it is certainly within the President's job description to generally "command the military," the level of review will be whether it is an official act of the President to "command the military to do _______________ specific thing." So the fact that the President's job involves commanding the military won't make it an official act if he commands the military to pick up Tiffany's dry cleaning or murder a political rival. The court is to look at the specific thing that the President is doing, not the general category of "talking to staff" or "commanding the military."