On 1 July 2024, the Supreme Court of the United States handed down its decision in the appeal relating to the extent of Presidential immunity from criminal prosecution.
In a majority decision of 6 – 3 that broadly reflected ideological positions, the Supreme Court allowed the appeal and remitted the matter to the trial court for the determination of what portions of the 45-page indictment against former President Donald J. Trump can survive given the ruling.
It will now be necessary for Judge Tanya S. Chutkan sitting in the Federal District Court in Washington to determine whether the relevant activities following the 2020 election were based upon the exercise of official acts by a President in office or unofficial acts taken in a private role as a candidate for office.
Such determinations will be no easy task and appeals from the same can be reasonably anticipated given the gravity of the subject matter.
Whether Congress seeks to enact legislation sometime in the future in response to this ruling will be fertile ground for debate – both within and outside Congress.
Chief Justice Roberts (with whom Thomas, Alito, Gorsuch and Kavanaugh JJ, “joined in full”) delivered the opinion of the Court.
Thomas J filed a concurring opinion and Barrett J filed an opinion concurring in part.
Sotomayor J filed a dissenting opinion, in which Kagan and Jackson JJ joined.
Jackson J also filed a dissenting opinion.
Jonathan Sumption, the retired UK Supreme Court Judge, said, inter alia, in a paper published in Prospect magazine on 27 August 2024:
“There is nothing about presidential immunity in the Constitution. Its framers knew how to include it, for they conferred some immunities on members of Congress. The omission of a comparable immunity for presidents is not of course conclusive, but what we know about the framers’ intentions suggests that it was deliberate. ….
The United States has never stood in greater need of impartial constitutional arbiters in its highest court, and has never been further from getting them.”
Roberts CJ said, inter alia:
From January 2017 until January 2021, Donald J. Trump served as President of the United States. On August 1, 2023, a federal grand jury indicted him on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. According to the indictment, Trump advanced his goal through five primary means. First, he and his co-conspirators “used knowingly false claims of election fraud to get state legislators and election officials to . . . change electoral votes for [Trump’s] opponent, Joseph R. Biden, Jr., to electoral votes for [Trump].” App. 185, Indictment ¶10(a). Second, Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states” and “caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” Id., at 186, ¶10(b). Third, Trump and his co-conspirators attempted to use the Justice Department “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” Id., at 186–187, ¶10(c). Fourth, Trump and his co-conspirators attempted to persuade “the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id., at 187, ¶10(d). And when that failed, on the morning of January 6, they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.” Ibid. Fifth, when “a large and angry crowd . . . violently attacked the Capitol and halted the proceeding,” Trump and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” Id., at 187– 188, ¶10(e). [pages 1 – 2]
Based on this alleged conduct, the indictment charged Trump with (1) conspiracy to defraud the United States in violation of 18 U. S. C. §371, (2) conspiracy to obstruct an official proceeding in violation of §1512(k), (3) obstruction of and attempt to obstruct an official proceeding in violation of §1512(c)(2), §2, and (4) conspiracy against rights in violation of §241. [pages 2 – 3]
This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse “the issue of a power’s validity with the cause it is invoked to promote,” but must instead focus on the “enduring consequences upon the balanced power structure of our Republic.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634 (1952) (Jackson, J., concurring). The parties before us do not dispute that a former Presi[1]dent can be subject to criminal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. See id., at 28–30, 36–37, 124. They disagree, however, about whether a former President can be prosecuted for his official actions. Trump contends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, Fitzgerald, 457 U. S., at 756, he must be absolutely immune from criminal prosecution for such acts. Brief for Petitioner 10. And Trump argues that the bulk of the indictment’s allegations involve conduct in his official capacity as President. See Tr. of Oral Arg. 30– 32. Although the Government agrees that some official actions are included in the indictment’s allegations, see id., at 125, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized. See Brief for United States 9.
We conclude that under our constitutional structure of separated powers, the nature of Presidential power re[1]quires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be ab[1]solute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient. [Pages 5 – 6]
Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” §1, cl. 1. The President’s duties are of “unrivaled gravity and breadth.” Trump v. Vance, 591 U. S. 786, 800 (2020). They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap[1]pointing public ministers and consuls, the Justices of this Court, and Officers of the United States. See §2. He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. See §§2, 3. Domestically, he must “take Care that the Laws be faithfully executed,” §3, and he bears responsibility for the actions of the many departments and agencies within the Executive Branch. He also plays a role in lawmaking by recommending to Congress the measures he thinks wise and signing or vetoing the bills Congress passes. See Art. I, §7, cl. 2; Art. II, §3.
No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” Youngstown, 343 U. S., at 585. In the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id., at 638 (Jackson, J., concur[1]ring). When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” Id., at 637. The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.” Id., at 637–638. And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution. Mar[1]bury, 1 Cranch, at 166.
If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. Youngstown, 343 U. S., at 655 (Jack[1]son, J., concurring). In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id., at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination. [Pages 6-7]
Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. [Pages 8 -9]
But of course not all of the President’s official acts fall within his “conclusive and preclusive” authority. As Justice Robert Jackson recognized in Youngstown, the President sometimes “acts pursuant to an express or implied authorization of Congress,” or in a “zone of twilight” where “he and Congress may have concurrent authority.” 343 U. S., at 635, 637 (concurring opinion). The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress.
We recognize that only a limited number of our prior decisions guide determination of the President’s immunity in this context. That is because proceedings directly involving a President have been uncommon in our Nation, and “decisions of the Court in this area” have accordingly been “rare” and “episodic.” Dames & Moore v. Regan, 453 U. S. 654, 661 (1981). To resolve the matter, therefore, we look primarily to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents. [Page 9]
Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and Nixon. The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an in[1]dependent Executive. Fitzgerald, 457 U. S., at 745. [Pages 12 – 13]
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579 U. S. 550, 575 (2016), raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U. S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. Vance, 591 U. S., at 800. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor” and “energy” of the Executive. The Federalist No. 70, at 471–472. [Page 13]
We must, however, “recognize[] the countervailing interests at stake.” Vance, 591 U. S., at 799. Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” Huntington v. Attrill, 146 U. S. 657, 668 (1892). There is therefore a compelling “public interest in fair and effective law enforcement.” Vance, 591 U. S., at 808. The President, charged with enforcing federal criminal laws, is not above them. [Pages 13 – 14]
Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. …. At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754.
But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. … “[O]ne case” in more than “two centuries does not afford enough experience” to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution. Mazars, 591 U. S., at 871. [Page 14]
As for a President’s unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. When Paula Jones brought a civil lawsuit against then-President Bill Clinton for acts he allegedly committed prior to his Presidency, we rejected his argument that he enjoyed temporary immunity from the lawsuit while serving as President. 520 U. S., at 684. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Id., at 694, and n. 19. T [Page 15]
Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue. The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular. Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution. [Page 16]
Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct We offer guidance on those issues below. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance. [Pages 16 – 17]
Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action. [Page 17]
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. …. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. [Page 18]
As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. Supra, at 24, 28, 30. [Page 37]
The principal dissent then cites the Impeachment Judgment Clause, arguing that it “clearly contemplates that a former President may be subject to criminal prosecution.” Post, at 6. But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular. See supra, at 32–33. And the assortment of historical sources the principal dissent cites are unhelpful for the same reason. See post, at 6–8. As the Court has previously noted, relevant historical evidence on the question of Presidential immunity is of a “fragmentary character.” Fitzgerald, 457 U. S., at 752, n. 31; see also Clinton, 520 U. S., at 696–697; cf. Youngstown, 343 U. S., at 634 (Jackson, J., concurring) (noting “the poverty of really useful and unambiguous authority applicable to concrete problems of executive power”). “[T]he most compelling arguments,” therefore, “arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine.” Fitzgerald, 457 U. S., at 752, n. 31. [Page 38]
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown, 343 U. S., at 634 (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969).
Our first President had such a perspective. In his Fare[1]well Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.
It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. [Pages 41 – 42]
In the dissenting opinion, Sotomayer J (with whom Kagan and Jackson JJ agreed), said, inter alia:
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent. [Page 1]
The indictment paints a stark portrait of a President desperate to stay in power. In the weeks leading up to January 6, 2021, then[1]President Trump allegedly “spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” App. 181, Indictment ¶2, despite being “notified repeatedly” by his closest advisers “that his claims were untrue,” id., at 188, ¶11. When dozens of courts swiftly rejected these claims, Trump allegedly “pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors” in his favor. Id., at 185–186, ¶10(a). It is alleged that he went so far as to threaten one state election official with criminal prosecution if the official did not “‘find’ 11,780 votes” Trump needed to change the election result in that state. Id., at 202, ¶31(f ). When state officials repeatedly declined to act outside their legal authority and alter their state election pro[1]cesses, Trump and his co-conspirators purportedly devel[1]oped a plan to disrupt and displace the legitimate election certification process by organizing fraudulent slates of electors. See id., at 208–209, ¶¶53–54.
As the date of the certification proceeding neared, Trump allegedly also sought to “use the power and authority of the Justice Department” to bolster his knowingly false claims of election fraud by initiating “sham election crime investigations” and sending official letters “falsely claim[ing] that the Justice Department had identified significant concerns that may have impacted the election outcome” while “falsely present[ing] the fraudulent electors as a valid alternative to the legitimate electors.” Id., at 186–187, ¶10(c). When the Department refused to do as he asked, Trump turned to the Vice President. Initially, he sought to persuade the Vice President “to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id., at 187, ¶10(d). When persuasion failed, he purportedly “attempted to use a crowd of supporters that he had gathered in Washington, D. C., to pressure the Vice President to fraudulently alter the election results.” Id., at 221, ¶86.
Speaking to that crowd on January 6, Trump “falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results.” Id., at 229, ¶104(a). When this crowd then “violently attacked the Capitol and halted the proceeding,” id., at 188, ¶10(e), Trump allegedly delayed in taking any step to rein in the chaos he had un[1]leashed. Instead, in a last desperate ploy to hold onto power, he allegedly “attempted to exploit the violence and chaos at the Capitol” by pressuring lawmakers to delay the certification of the election and ultimately declare him the winner. Id., at 233, ¶119. That is the backdrop against which this case comes to the Court. [Pages 1 – 3]
The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the Pres[1]ident above the law. The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical. Argument by argument, the majority invents immunity through brute force. Under scrutiny, its arguments crumble. To start, the majority’s broad “official acts” immunity is inconsistent with text, history, and established under[1]standings of the President’s role. See Part III, infra. Moreover, it is deeply wrong, even on its own functionalist terms. See Part IV, infra. Next, the majority’s “core” immunity is both unnecessary and misguided. See Part V, infra. Furthermore, the majority’s illogical evidentiary holding is un[1]precedented. See Part VI, infra. Finally, this majority’s project will have disastrous consequences for the Presidency and for our democracy. See Part VII, infra. [Pages 3 – 4]
The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is “at least . . . presumptive,” and quite possibly “absolute.” Ante, at 14. Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity has “no firm grounding in constitutional text, history, or precedent.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 280 (2022). Indeed, those “standard grounds for constitutional decisionmaking,” id., at 279, all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible [Page 4]
… the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash. See ante, at 38–39. It claims that the Court previously has described the “relevant historical evidence on the question of Presidential immunity” as “‘fragmentary’” and not worthy of consideration. [Page 8]
Our country’s history also points to an established under[1]standing, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts. Cf. Chiafalo v. Washing[1]ton, 591 U. S. 578, 592–593 (2020) (“‘Long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions’” (quoting The Pocket Veto Case, 279 U. S. 655, 689 (1929))). Consider Watergate, for example. After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily “rested on the understanding that the former President faced potential criminal liability.” [Page 9]
Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least . . . presumptive[ly],” immune from criminal prosecution for all of their official acts. Ante, at 14 (emphasis omitted). The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the Presi[1]dent must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977). [Pages 10 – 11]
Maybe some future opinion of this Court will decide that presumptive immunity is “sufficient,” ibid., and replace the majority’s ironclad presumption with one that makes the difference between presumptive and absolute immunity meaningful. Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. Quick on the heels of announcing this astonishingly broad official-acts immunity, the majority assures us that a former President can still be prosecuted for “unofficial acts.” Ante, at 15. Of course he can. No one has questioned the ability to prosecute a former President for unofficial (other – wise known as private) acts. Even Trump did not claim immunity for such acts and, as the majority acknowledges, such an immunity would be impossible to square with Clin[1]ton v. Jones, 520 U. S. 681 (1997). See ante, at 15. This unremarkable proposition is no real limit on today’s decision. It does not hide the majority’s embrace of the most far-reaching view of Presidential immunity on offer. [Pages 11 – 12]
In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18. It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is des[1]tined to be vanishingly small.
Ultimately, the majority pays lip service to the idea that “[t]he President, charged with enforcing federal criminal laws, is not above them,” ante, at 13–14, but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power. [Page 12]
So how does the majority get to its rule? With text, history, and established understanding all weighing against it, the majority claims just one arrow in its quiver: the balancing test in Nixon v. Fitzgerald, 457 U. S. 731 (1983). Yet even that test cuts against it. The majority concludes that official-acts immunity “is required to safeguard the independence and effective functioning of the Executive Branch,” ante, at 14, by rejecting that Branch’s own protestations that such immunity is not at all required and would in fact be harmful, see Brief for United States 18–24, 29– 30. In doing so, it decontextualizes Fitzgerald’s language, ignores important qualifications, and reaches a result that the Fitzgerald Court never would have countenanced. [Page 12 – 13]
The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions. [Page 14]
The majority says that the danger “of intrusion on the authority and functions of the Executive Branch” posed by criminally prosecuting a former President for official conduct “is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13 (quoting Fitzgerald, 457 U. S., at 745). It is of course important that the President be able to “‘“deal fearlessly and impartially with” the duties of his office.’” Ante, at 10 (quoting Fitzgerald, 457 U. S., at 752). If every action the President takes exposes him personally to vexatious private litigation, the possibility of hamstringing Presidential decisionmaking is very real. Yet there are many facets of criminal liability, which the majority discounts, that make it less likely to chill Presidential action than the threat of civil litigation. [Pages 14 – 15]
First, in terms of probability, the threat of criminal liability is much smaller. In Fitzgerald, the threat of vexatious civil litigation loomed large. The Court observed that, given the “visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.” Id., at 753.
Second, federal criminal prosecutions require “robust procedural safeguards” not found in civil suits. 2023 WL 8359833, *10. The criminal justice system has layers of protections that “filter out insubstantial legal claims,” whereas civil litigation lacks “analogous checks.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 386 (2004). [Page 15]
In light of these considerable protections, the majority’s fear that “‘bare allegations of malice,’” ante, at 18 (alteration omitted), would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate.
Third, because of longstanding interpretations by the Executive Branch, every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office. The majority insists that the threat of criminal sanctions is “more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Ante, at 13. If that is right, then that distortion has been shaping Presidential decisionmaking since the earliest days of the Re[1]public. [Page 17]
If the President follows the law that he must “take Care” to execute, Art. II, §3, he has not been rendered “‘unduly cautious,’” ante, at 10 (quoting Fitzgerald, 457 U. S., at 752, n. 32). Some amount of caution is necessary, after all. It is a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity. I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.
So what exactly is the majority worried about deterring when it expresses great concern for the “deterrent” effect that “the threat of trial, judgment, and imprisonment” would pose? Ante, at 13. It cannot possibly be the deterrence of acts that are truly criminal. Nor does it make sense for the majority to wring its hands over the possibility that Presidents might stop and think carefully before taking action that borders on criminal. Instead, the majority’s main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution—a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate. See ante, at 40. The Court should not have so little faith in this Nation’s Presidents [Page 18]
At the same time, the public interest in a federal criminal prosecution of a former President is vastly greater than the public interest in a private individual’s civil suit. All nine Justices in Fitzgerald explicitly recognized that distinction. [Page 19]
The public interest in criminal prosecution is particularly strong with regard to officials who are granted some degree of civil immunity because of their duties. It is in those cases where the public can see that officials exercising power under public trust remain on equal footing with their fellow citizens under the criminal law. See, e.g., O’Shea v. Little[1]ton, 414 U. S. 488, 503 (1974) (“[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights”); Dennis v. Sparks, 449 U. S. 24, 31 (1980) (“[J]udicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from §1983 damages actions, but they are subject to criminal prosecutions as are other citizens”); Imbler v. Pachtman, 424 U. S. 409, 428–429 (1976). [Pages 19 – 20]
The public interest in the federal criminal prosecution of a former President alleged to have used the powers of his office to commit crimes may be greater still. “[T]he Presi[1]dent . . . represent[s] all the voters in the Nation,” and his powers are given by the people under our Constitution. Anderson v. Celebrezze, 460 U. S. 780, 795 (1983). When Pres[1]idents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority over[1]looks that paramount interest entirely. [Page 20]
Finally, the question of federal criminal immunity for a former President “involves a countervailing Article II con[1]sideration absent in Fitzgerald”: recognizing such an immunity “would frustrate the Executive Branch’s enforcement of the criminal law.” Brief for United States 19. The President is, of course, entrusted with “‘supervisory and policy responsibilities of utmost discretion and sensitivity.’” Ante at 10 (quoting Fitzgerald, 457 U. S., at 750). One of the most important is “enforcement of federal law,” as “it is the President who is charged constitutionally to ‘take Care that the Laws be faithfully executed.’” Id., at 750 (quoting Art. II, §3). [Pages 20 – 21]
The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive. It does not. Rather, it diminishes that independence, exalting occupants of the office over the office itself. There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity.
In the case before us, the public interest and countervailing Article II interest are particularly stark. The public interest in this criminal prosecution implicates both “[t]he Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution” as well as “the voters’ interest in democratically selecting their President.” 91 F. 4th 1173, 1195 (CADC 2024) (per curiam). It also, of course, implicates Congress’s own interest in regulating conduct through the criminal law. Cf. Fitzgerald, 457 U. S., at 749, n. 27 (noting that the case did not involve “affirmative action by Congress”). Yet the majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.” Ante, at 40. [Page 21]
The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “‘take Care that the Laws be faithfully executed’” among the core functions for which a former President supposedly enjoys absolute immunity. [Page 24]
It concludes that “Trump is . . . absolutely immune from prosecution for” any “conduct involving his discussions with Justice Department officials.” Ante, at 21. That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct. Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered. The majority’s conception of “core” immunity sweeps far more broadly than its logic, borrowed from Youngstown, should allow. The majority tries to assuage any concerns about its made-up core immunity by suggesting that the Government agrees with it. See ante, at 34. That suggestion will sur[1]prise the Government. To say, as the Government did, that a “small core of exclusive official acts” such as “the pardon power, the power to recognize foreign nations, the power to veto legislation, [and] the power to make appointments” cannot be regulated by Congress, see Tr. of Oral Arg. 85– 87, does not suggest that the Government agrees with immunizing any and all conduct conceivably related to the majority’s broad array of supposedly “core” powers. The Government in fact advised this Court to “leav[e] potentially more difficult questions” about the scope of any immunity “that might arise on different facts for decision if they are ever presented.” Brief for United States 45. That would have made sense. [Pages 24 – 25]
When forced to wade into thorny separation-of-powers disputes, this Court’s usual practice is to “confine the opinion only to the very questions necessary to decision of the case.” Dames & Moore v. Regan, 453 U. S. 654, 661 (1981). There is plenty of peril and little value in crafting a core immunity doctrine that Trump did not seek and that rightly has no application to this case. [Page 25]
Not content simply to invent an expansive criminal immunity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts. See ante, at 30–32.
Even though the majority’s immunity analysis purports to leave unofficial acts open to prosecution, its draconian approach to official-acts evidence deprives these prosecutions of any teeth. If the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts. For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.5 [Page 25 – 26]
The majority’s extraordinary rule has no basis in law. Consider the First Amendment context. Although the First Amendment prohibits criminalizing most speech, it “does not prohibit the evidentiary use of speech,” including its use “to prove motive or intent.” Wisconsin v. Mitchell, 508 U. S. 476, 489 (1993). [Page 26]
Today’s decision to grant former Presidents immunity for their official acts is deeply wrong. As troubling as this criminal immunity doctrine is in theory, the majority’s application of the doctrine to the indictment in this case is perhaps even more troubling. In the hands of the majority, this new official-acts immunity operates as a one-way ratchet. [Page 27]
First, the majority declares all of the conduct involving the Justice Department and the Vice President to be official conduct, see ante, at 19–24, yet it refuses to designate any course of conduct alleged in the indictment as private, despite concessions from Trump’s counsel.6 Trump’s counsel conceded, for example, that the allegation that Trump “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” “sounds private.” Tr. of Oral Arg. 29. He likewise conceded that the allegation that Trump “conspired with another private attorney who caused the filing in court of a verification signed by [Trump] that contained false allegations to support a challenge” “sounds private.” Ibid.; see also id., at 36–37 (Trump’s counsel explaining that it is not “disputed” that such conduct is “unofficial”). Again, when asked about allegations that “[t]hree private actors . . . helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and [Trump] and a co-conspirator attorney directed that effort,” Trump’s counsel conceded the alleged conduct was “private.” Only the majority thinks that organizing fraudulent slates of electors might qualify as an official act of the President, see ante, at 24–28, or at least an act so “interrelated” with other allegedly official acts that it might warrant protection, ante, at 28. If the majority’s sweeping conception of “official acts” has any real limits, the majority is unwilling to reveal them in today’s decision. [Pages 27 – 28]
Second, the majority designates certain conduct immune while refusing to recognize anything as prosecutable. It shields large swaths of conduct involving the Justice Department with immunity, see ante, at 19–21; see also Part V, supra, but it does not give an inch in the other direction. [Page 28]
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. [Pages 28 – 29]
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent. [Page 29]
Jackson J said, inter alia:
Justice Sotomayor has thoroughly addressed the Court’s flawed reasoning and conclusion as a matter of his[1]tory, tradition, law, and logic. I agree with every word of her powerful dissent. I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward. [Page 1]
To fully appreciate the profound change the majority has wrought, one must first acknowledge what it means to have immunity from criminal prosecution. Put simply, immunity is “exemption” from the duties and liabilities imposed by law. Black’s Law Dictionary 898 (11th ed. 2019); see Hopkins v. Clemson, 221 U. S. 636, 643 (1911) (explaining that immunity is “exemption from legal process”). In its purest form, the concept of immunity boils down to a maxim— “‘[t]he King can do no wrong’”—a notion that was firmly “rejected at the birth of [our] Republic.” Clinton v. Jones, 520 U. S. 681, 697, n. 24 (1997) (quoting 1 W. Blackstone, Commentaries *246 (Blackstone)); see United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). To say that someone is immune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized per[1]son in the first place. Conferring immunity therefore “create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.” Hopkins, 221 U. S., at 64. [Pages 1 -2]
With that understanding of how our system of accountability for criminal acts ordinarily functions, it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government. 1 [Page 5]
So, how does this new Presidential accountability model work? An initial problem is the lack of clarity regarding what this new model entails. The majority announces only its most basic contours. See ante, at 6 (asserting that “the nature of Presidential power requires that a former Presi[1]dent have some immunity from criminal prosecution for official acts during his tenure in office”). Instead of no immunity (the individual accountability model) or an unqualified grant of absolute immunity for “all official acts,” Brief for Petitioner 44 (emphasis added), the majority purports to adopt something of a hybrid.2 It holds that a former President may or may not be immune from criminal prosecution for conduct undertaken while in office, to be determined on a case-by-case basis. According to the majority, whether a former President is immune depends on how his criminal conduct is classified, as among three possible categories. [Pages 5 – 6]
First, with respect to any criminal conduct relating to a President’s “core constitutional powers”—those subjects “within his ‘conclusive and preclusive’ constitutional authority”—the President is entitled to absolute immunity from criminal prosecution. See ante, at 6, 8. Second, expanding outward from this “core,” regarding all other “acts within the outer perimeter of [the President’s] official responsibility,” the President is entitled to “at least a presumptive immunity from criminal prosecution.” Ante, at 14. [Page 6]
Third, if the criminal conduct at issue comprises “unofficial acts, there is no immunity.” Ante, at 15.3. [Page 7]
Applying the majority’s new Presidential accountability model thus seems to involve bearing down on the indictment’s allegations and making a series of determinations about the nature of the conduct at issue. From the structure of the paradigm, it appears that the first decision point is whether the alleged criminal conduct involves one of the President’s “core” powers. If so (and apparently regardless of the degree to which the conduct implicates that core power), the President is absolutely immune from criminal liability for engaging in that criminal conduct. If not, then one must proceed to consider whether the conduct qualifies as an “official” act or “unofficial” act of that President. If the crime is an official act, the President is presumptively immune from criminal prosecution and punishment. But even then, immunity still hinges on whether there is any legal or factual basis for concluding that the presumption of immunity has been rebutted. Alternatively, if the charged conduct is an unofficial act (a determination that, incidentally, courts must make without considering the President’s motivations, ante, at 18), the President is not immune.4 [Pages 7 – 8]
The majority’s multilayered, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts. For every allegation, courts must run this gauntlet first—no matter how well documented or heinous the criminal act might be. [Page 8]
Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably instigates an unsuccessful coup, id., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will al[1]ways and inevitably be: It depends. [Pages 8 – 9]
Under the individual accountability paradigm, the ac[1]countability analysis is markedly less convoluted, and leads to a more certain outcome. None of the same complications or consequences arise, because, as I have explained, there are no exemptions from the criminal law for any person, but every defendant can assert whatever legal arguments and defenses might be applicable under governing law. Since no one is above the law, everyone can focus on what the law demands and permits, and on what the defendant did or did not do; no one has to worry about characterizing any criminal conduct as official or unofficial in order to assess the applicability of an immunity at the outset.
The majority’s new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society. In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct. Indeed, the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties. [Page 9]
That point bears emphasizing. Immunity can issue for Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior. Regardless of the nature or the impact of the President’s criminal conduct, so long as he is committing crimes “pursuant to the powers invested exclusively in him by the Constitution,” ante, at 7, or as needed “to carry out his constitutional duties without undue caution,” ante, at 14, he is likely to be deemed immune from prosecution.5 [Pages 9 – 10]
Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all. Also, under the new Presidential accountability model, the starting presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President’s official behavior might be. Regardless of all that, courts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts. [Page 10]
The structure and function of the two accountability paradigms are not the only differences—the models also assign different roles to participants in the criminal justice system, and they ultimately generate different relationships between the Presidency and the Rule of Law. Under the individual accountability model, duty-bound prosecutorial officers initially exercise their discretion to decide whether to seek punishment for alleged violations of criminal law (a determination that is made based on numerous factors). And even if prosecutors decide to bring a charge, a jury of the criminal defendant’s peers ultimately determines whether that defendant (including a former President) will actually be held to account for having engaged in unlawful conduct, after the court has resolved any legal challenges and has instructed the jury as to the requirements of the law. [Pages 10 – 11]
By contrast, under the majority’s new Presidential ac[1]countability paradigm, what a prosecutor or jury does may not even matter, since the courts take center stage once charges are brought against a former President, marshaling their resources to conduct a complex and amorphous threshold immunity evaluation. Whether a former Presi[1]dent will be entirely exempted from the dictates of the law (such that the roles of other participants in the criminal justice process become irrelevant) requires a judicial assessment, in the first instance, of his criminal conduct and the circumstances under which he acted.
Finally, and most importantly, recall that under the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances. In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former Presi[1]dent’s conduct was in fact justified, notwithstanding the general criminal prohibition. [Page 11]
Under the majority’s immunity regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any excuse; the law simply does not apply to him. Unlike a defendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “‘official power’” in doing so. Ante, at 19. In the former paradigm, the President remains subject to law; in the latter, he is above it. [Pages 11 -12]
Justice Sotomayor has already warned of the dire consequences that are likely to follow from the majority’s decision in this case … Here, I will highlight just two observations about the results that follow from this paradigm shift. First, by changing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority’s new Presidential accountability model under[1]mines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all. [Page 12]
Consider the structural implications of today’s decision from the standpoint of the separation of powers. Until now, Congress’s laws, passed by the representatives of the People, bound the People and their elected officials just the same. Law, we have explained, “is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.” Lee, 106 U. S., at 220. With its adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself. [Pages 12 – 13]
As to the former, it should go without saying that the Office of the Presidency, the apex of the Executive Branch, is made significantly more powerful when the constraints of the criminal law are lifted with respect to the exercise of a President’s official duties. After today’s ruling, the Presi[1]dent must still “take Care that the Laws be faithfully executed,” Art. II, §3; yet, when acting in his official capacity, he has no obligation to follow those same laws himself. [Page 13]
But whatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. Ante, at 6–9. However, the majority does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause.6 So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess. [Pages 13 – 14]
Nor does the majority explain how to consistently distinguish between official and unofficial acts. Quite the opposite, in fact. While acknowledging that this is a critical line that courts must draw in order for its new accountability model to work properly, the majority simultaneously cautions that making this distinction “can be difficult”—likely a gross understatement given the recognized “breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States.” Ante, at 17. The majority likewise provides no guidance as to when, how, or why the President’s “presumptive” immunity for noncore official acts might be rebutted, saying only that applying the criminal law to a President’s acts must pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ante, at 14 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 754 (1982)). [Page 14]
At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). But that test can be illusory, as is evidenced by the facts alleged in this very case. With respect to the indictment’s allegations concerning petitioner’s attempt to assemble false slates of electors in conjunction with the events of January 6, 2021, for example, the majority admits that the “alleged conduct cannot be neatly categorized,” and that “[t]he analysis therefore . . . may prove to be challenging.” Ante, at 28–29. With that, at least, I could not agree more. [Pages 14 – 15]
This much is clear: Before today, none of these kinds of inquiries was necessary for criminal liability to be fairly assessed with respect to persons accused of having engaged in criminal conduct. And, frankly, none is needed now—except as relates to the President under the new paradigm the majority has crafted.
Effectively, the Court elbows out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future at[1]tempts to hold former Presidents accountable to generally applicable criminal laws. [Page 15]
Under the individual accountability model, because everyone is subject to the law, the potential of criminal liability operates as a constraint on the actions and decisions of everyone, including the President. After today, that reality is no more. Consequently, our Nation has lost a substantial check on Presidents who would use their official powers to commit crimes with impunity while in office.
So, one might ask, what remains of accountability for Presidents under law? With today’s paradigm shift, the majority leaves in place only the chance that this Court might someday determine that the criminal conduct in question was an “unofficial” act, or that the Government will somehow rebut the presumption of immunity that applies to a President’s official acts, such that criminal consequences might attach. But with the parameters of official and unofficial conduct unknown, I think it highly unlikely that a sitting President would feel constrained by these remote possibilities. [Page 17]
All of this leads me to ponder why, exactly, has the majority concluded that an indeterminate “core”-versus-“official”-versus-“unofficial” line-drawing exercise is the better way to address potential criminal acts of a President? … As far as I can tell, the majority is mostly concerned that, without immunity, Presidents might “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13. [Page 18]
Our Constitution’s “separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but . . . to save the people from autocracy.” Myers v. United States, 272 U. S. 52, 293 (1926) (Brandeis, J., dissenting). [Page 19]
The official-versus-unofficial act distinction also seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire. So, the fact that, “unlike anyone else, the President is” vested with “sweeping powers and duties,” ibid., actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes those very powers. [Pages 19 – 20]
The vision John Adams enshrined in the Massachusetts Declaration of Rights—“‘a government of laws and not of men’”—speaks directly to this concept. Mine Workers, 330 U. S., at 307 (Frankfurter, J., concurring in judgment). Adams characterized that document as an homage to the Rule of Law; it reflected both a flat “rejection in positive terms of rule by fiat” and a solemn promise that “[e]very act of government may be challenged by an appeal to law.” Id., at 308. Thanks to the majority, that vision and promise are likely to be fleeting in the future. From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.
To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely. “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Id., at 312. Likewise, “[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead, 277 U. S., at 485 (Brandeis, J., dissenting). I worry that, after today’s ruling, our Nation will reap what this Court has sown. [Page 20]
Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision. For, like our democracy, our Constitution is “the creature of their will, and lives only by their will.” Cohens v. Virginia, 6 Wheat. 264, 389 (1821). [Pages 20 – 21]
For my part, I simply cannot abide the majority’s sense[1]less discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries.
In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once selfregulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious. [Page 21]
The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from be[1]coming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.
In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent. [Pages 21 – 22]
A link to the full decision is here.
Postscript: On Tuesday, 27 August 2024, The New York Times reported:
“Federal prosecutors on Tuesday issued a revised version of an indictment accusing former President Donald J. Trump of plotting to overturn the 2020 election, stripping out some charges in order to help it survive the Supreme Court’s recent ruling granting former presidents broad immunity for official acts in office. …..
Perhaps the most significant change between the 36-page superseding indictment and the original 45-page indictment was that Mr. Smith’s deputies removed all the allegations concerning Mr. Trump’s attempts to strong-arm the Justice Department into supporting his false claims that the election had been rigged against him.
The initial charging document accused Mr. Trump of conspiring with Jeffrey Clark, a loyalist within the Justice Department who had promised to launch investigations into election fraud even though other top-ranking department officials had warned him against it.
In its decision on immunity, however, the Supreme Court ruled that Mr. Trump could not face criminal charges related to any of his interactions with Justice Department officials, finding that a president’s dealings with the department were part of the core official duties of his office.”
