iv. conclusion > based on a factbound analysis, for the reasons explained above, the court should determine that the conduct described in the factual proffer of section i of this motion is not subject to presidential immunity.  as part of this determination, the court should specify four determinations, and do so in a single order:  > (1) that the government has rebutted the presumption of immunity attached to the defendants official communications with the vice president  > (2) that the remaining conduct described in section i (that is, conduct other than the official communications with the vice president) was not official,  and, in the alternative, that the government has rebutted any presumptive immunity for any of the remaining conduct that the court finds to be official. the government requests alternative rulings regarding rebuttal for all conduct the court finds to be unofficial, to buttress the courts record, ensure thorough and efficient appellate review, and minimize the risk of successive rounds of interlocutory appeal. furthermore, based on the determination that all the conduct described in section i is not immune from prosecution, and because section i encompasses all the allegations in the superseding indictment, the court should further specify:  > (3) that the defendant is subject to trial on the superseding indictment; and  > (4) that the government is not prohibited at trial from using evidence of the conduct described in section i,  subject at a later date to non-immunity based objections and this courts admissibility rulings under the federal rules of evidence.
United States