Read the Supreme Court’s Ruling on Immunity (2024)

(Slip Opinion)OCTOBER TERM, 2023SyllabusNOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.1SUPREME COURT OF THE UNITED STATESSyllabusTRUMP v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FORTHE DISTRICT OF COLUMBIA CIRCUITNo. 23-939. Argued April 25, 2024-Decided July 1, 2024A federal grand jury indicted former President Donald J. Trump on fourcounts for conduct that occurred during his Presidency following theNovember 2020 election. The indictment alleged that after losing thatelection, Trump conspired to overturn it by spreading knowingly falseclaims of election fraud to obstruct the collecting, counting, and certi-fying of the election results. Trump moved to dismiss the indictmentbased on Presidential immunity, arguing that a President has absoluteimmunity from criminal prosecution for actions performed within theouter perimeter of his official responsibilities, and that the indict-ment's allegations fell within the core of his official duties. The DistrictCourt denied Trump's motion to dismiss, holding that former Presi-dents do not possess federal criminal immunity for any acts. The D. C.Circuit affirmed. Both the District Court and the D. C. Circuit de-clined to decide whether the indicted conduct involved official acts.Held: Under our constitutional structure of separated powers, the natureof Presidential power entitles a former President to absolute immunityfrom criminal prosecution for actions within his conclusive and preclu-sive constitutional authority. And he is entitled to at least presump-tive immunity from prosecution for all his official acts. There is noimmunity for unofficial acts. Pp. 5–43.(a) This case is the first criminal prosecution in our Nation's historyof a former President for actions taken during his Presidency. Deter-mining whether and under what circ*mstances such a prosecutionmay proceed requires careful assessment of the scope of Presidentialpower under the Constitution. The nature of that power requires thata former President have some immunity from criminal prosecution forofficial acts during his tenure in office. At least with respect to the

2TRUMP v. UNITED STATESSyllabusPresident's exercise of his core constitutional powers, this immunitymust be absolute. As for his remaining official actions, he is entitledto at least presumptive immunity. Pp. 5–15.(1) Article II of the Constitution vests "executive Power" in "aPresident of the United States of America.” §1, cl. 1. The Presidenthas duties of "unrivaled gravity and breadth." Trump v. Vance, 591U. S. 786, 800. His authority to act necessarily “stem[s] either from anact of Congress or from the Constitution itself." Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the Presi-dent's authority is sometimes "conclusive and preclusive." Id., at 638(Jackson, J., concurring). When the President exercises such author-ity, Congress cannot act on, and courts cannot examine, the Presi-dent's actions. It follows that an Act of Congress—either a specific onetargeted at the President or a generally applicable one—may not crim-inalize the President's actions within his exclusive constitutionalpower. Neither may the courts adjudicate a criminal prosecution thatexamines such Presidential actions. The Court thus concludes thatthe President is absolutely immune from criminal prosecution for con-duct within his exclusive sphere of constitutional authority. Pp. 6–9.(2) Not all of the President's official acts fall within his “conclusiveand preclusive” authority. The reasons that justify the President's ab-solute immunity from criminal prosecution for acts within the scope ofhis exclusive constitutional authority do not extend to conduct in areaswhere his authority is shared with Congress. To determine the Presi-dent's immunity in this context, the Court looks primarily to the Fram-ers' design of the Presidency within the separation of powers, prece-dent on Presidential immunity in the civil context, and criminal caseswhere a President resisted prosecutorial demands for documents. P.9.(i) The Framers designed the Presidency to provide for a "vigor-ous" and "energetic" Executive. The Federalist No. 70, pp. 471–472 (J.Cooke ed. 1961) (A. Hamilton). They vested the President with "su-pervisory and policy responsibilities of utmost discretion and sensitiv-ity." Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the "uniquerisks" that arise when the President's energies are diverted by pro-ceedings that might render him “unduly cautious in the discharge ofhis official duties," the Court has recognized Presidential immunitiesand privileges “rooted in the constitutional tradition of the separationof powers and supported by our history." Id., at 749, 751, 752, n. 32.In Fitzgerald, for instance, the Court concluded that a former Presi-dent is entitled to absolute immunity from “damages liability for actswithin the 'outer perimeter' of his official responsibility." Id., at 756.The Court's "dominant concern" was to avoid "diversion of the Presi-dent's attention during the decisionmaking process caused by needless

Cite as:603 U. S.(2024)Syllabus3worry as to the possibility of damages actions stemming from any par-ticular official decision." Clinton v. Jones, 520 U. S. 681, 694, n. 19.By contrast, when prosecutors have sought evidence from the Pres-ident, the Court has consistently rejected Presidential claims of abso-lute immunity. During the treason trial of former Vice President Aa-ron Burr, for instance, Chief Justice Marshall rejected PresidentThomas Jefferson's claim that the President could not be subjected toa subpoena. Marshall simultaneously recognized, however, the exist-ence of a “privilege" to withhold certain “official paper[s].” UnitedStates v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when asubpoena issued to President Richard Nixon, the Court rejected hisclaim of "absolute privilege.” United States v. Nixon, 418 U. S. 683,703. But recognizing "the public interest in candid, objective, and evenblunt or harsh opinions in Presidential decisionmaking,” it held that a"presumptive privilege” protects Presidential communications. Id., at708. Because that privilege “relates to the effective discharge of aPresident's powers,” id., at 711, the Court deemed it “fundamental tothe operation of Government and inextricably rooted in the separationof powers under the Constitution." Id., at 708. Pp. 9-12.(ii) Criminally prosecuting a President for official conduct un-doubtedly poses a far greater threat of intrusion on the authority andfunctions of the Executive Branch than simply seeking evidence in hispossession. The danger is greater than what led the Court to recognizeabsolute Presidential immunity from civil damages liability—that thePresident would be chilled from taking the “bold and unhesitating ac-tion" required of an independent Executive. Fitzgerald, 457 U. S., at745. Although the President might be exposed to fewer criminal pros-ecutions than civil damages suits, the threat of trial, judgment, andimprisonment is a far greater deterrent and plainly more likely to dis-tort Presidential decisionmaking than the potential payment of civildamages. The hesitation to execute the duties of his office fearlesslyand fairly that might result when a President is making decisions un-der "a pall of potential prosecution," McDonnell v. United States, 579U. S. 550, 575, raises “unique risks to the effective functioning of gov-ernment," Fitzgerald, 457 U. S., at 751. But there is also a compelling"public interest in fair and effective law enforcement.” Vance, 591U. S., at 808.Taking into account these competing considerations, the Court con-cludes that the separation of powers principles explicated in theCourt's precedent necessitate at least a presumptive immunity fromcriminal prosecution for a President's acts within the outer perimeterof his official responsibility. Such an immunity is required to safe-guard the independence and effective functioning of the Executive

TRUMP v. UNITED STATESSyllabusBranch, and to enable the President to carry out his constitutional du-ties without undue caution. At a minimum, the President must beimmune from prosecution for an official act unless the Government canshow that applying a criminal prohibition to that act would pose no"dangers of intrusion on the authority and functions of the ExecutiveBranch." Fitzgerald, 457 U. S., at 754. Pp. 12–15.(3) As for a President's unofficial acts, there is no immunity. Alt-hough Presidential immunity is required for official actions to ensurethat the President's decisionmaking is not distorted by the threat offuture litigation stemming from those actions, that concern does notsupport immunity for unofficial conduct. Clinton, 520 U. S., at 694,and n. 19. The separation of powers does not bar a prosecution predi-cated on the President's unofficial acts. P. 15.(b) The first step in deciding whether a former President is entitledto immunity from a particular prosecution is to distinguish his officialfrom unofficial actions. In this case, no court thus far has drawn thatdistinction, in general or with respect to the conduct alleged in partic-ular. It is therefore incumbent upon the Court to be mindful that it is“a court of final review and not first view." Zivotofsky v. Clinton, 566U. S. 189, 201. Critical threshold issues in this case are how to differ-entiate between a President's official and unofficial actions, and howto do so with respect to the indictment's extensive and detailed allega-tions covering a broad range of conduct. The Court offers guidance onthose issues. Pp. 16-32.(1) When the President acts pursuant to "constitutional and stat-utory authority," he takes official action to perform the functions of hisoffice. Fitzgerald, 456 U. S., at 757. Determining whether an actionis covered by immunity thus begins with assessing the President's au-thority to take that action. But the breadth of the President's "discre-tionary responsibilities" under the Constitution and laws of the UnitedStates frequently makes it "difficult to determine which of [his] innu-merable 'functions' encompassed a particular action." Id., at 756. Theimmunity the Court has recognized therefore extends to the "outer pe-rimeter" of the President's official responsibilities, covering actions solong as they are “not manifestly or palpably beyond [his] authority."Blassingame v. Trump, 87 F. 4th 1, 13 (CADC).In dividing official from unofficial conduct, courts may not inquireinto the President's motives. Such a “highly intrusive” inquiry wouldrisk exposing even the most obvious instances of official conduct to ju-dicial examination on the mere allegation of improper purpose. Fitz-gerald, 457 U. S., at 756. Nor may courts deem an action unofficialmerely because it allegedly violates a generally applicable law. Oth-erwise, Presidents would be subject to trial on "every allegation thatan action was unlawful,” depriving immunity of its intended effect.

Cite as: 603 U. S.(2024)Syllabus105Ibid. Pp. 17-19.(2) With the above principles in mind, the Court turns to the con-duct alleged in the indictment. Certain allegations-such as those in-volving Trump's discussions with the Acting Attorney General—arereadily categorized in light of the nature of the President's official re-lationship 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 thegeneral public present more difficult questions. Pp. 19–30.(i) The indictment alleges that as part of their conspiracy tooverturn the legitimate results of the 2020 presidential election,Trump and his co-conspirators attempted to leverage the Justice De-partment's power and authority to convince certain States to replacetheir legitimate electors with Trump's fraudulent slates of electors.According to the indictment, Trump met with the Acting AttorneyGeneral and other senior Justice Department and White House offi-cials to discuss investigating purported election fraud and sending aletter from the Department to those States regarding such fraud. Theindictment further alleges that after the Acting Attorney General re-sisted Trump's requests, Trump repeatedly threatened to replace him.The Government does not dispute that the indictment's allegationsregarding the Justice Department involve Trump's use of officialpower. The allegations in fact plainly implicate Trump's "conclusiveand preclusive” authority. The Executive Branch has “exclusive au-thority and absolute discretion" to decide which crimes to investigateand prosecute, including with respect to allegations of election crime.Nixon, 418 U. S., at 693. And the President's “management of the Ex-ecutive Branch” requires him to have “unrestricted power to removethe most important of his subordinates”—such as the Attorney Gen-eral "in their most important duties." Fitzgerald, 457 U. S., at 750.The indictment's allegations that the requested investigations wereshams or proposed for an improper purpose do not divest the Presidentof exclusive authority over the investigative and prosecutorial func-tions of the Justice Department and its officials. Because the Presi-dent cannot be prosecuted for conduct within his exclusive constitu-tional authority, Trump is absolutely immune from prosecution for thealleged conduct involving his discussions with Justice Department of-ficials. Pp. 19–21.(ii) The indictment next alleges that Trump and his co-conspira-tors "attempted to enlist the Vice President to use his ceremonial roleat the January 6 certification proceeding to fraudulently alter the elec-tion results." App. 187, Indictment ¶10(d). In particular, the indict-ment alleges several conversations in which Trump pressured the VicePresident to reject States' legitimate electoral votes or send them back

6TRUMP v. UNITED STATESSyllabusto state legislatures for review.Whenever the President and Vice President discuss their official re-sponsibilities, they engage in official conduct. Presiding over the Jan-uary 6 certification proceeding at which Members of Congress countthe electoral votes is a constitutional and statutory duty of the VicePresident. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment'sallegations that Trump attempted to pressure the Vice President totake particular acts in connection with his role at the certification pro-ceeding thus involve official conduct, and Trump is at least presump-tively immune from prosecution for such conduct.The question then becomes whether that presumption of immunityis rebutted under the circ*mstances. It is the Government's burden torebut the presumption of immunity. The Court therefore remands tothe District Court to assess in the first instance whether a prosecutioninvolving Trump's alleged attempts to influence the Vice President'soversight of the certification proceeding would pose any dangers of in-trusion on the authority and functions of the Executive Branch. Pp.21-24.(iii) The indictment's remaining allegations involve Trump's in-teractions with persons outside the Executive Branch: state officials,private parties, and the general public. In particular, the indictmentalleges that Trump and his co-conspirators attempted to convince cer-tain state officials that election fraud had tainted the popular votecount in their States, and thus electoral votes for Trump's opponentneeded to be changed to electoral votes for Trump. After Trump failedto convince those officials to alter their state processes, he and his co-conspirators allegedly developed and effectuated a plan to submitfraudulent slates of Presidential electors to obstruct the certificationproceeding. On Trump's view, the alleged conduct qualifies as officialbecause it was undertaken to ensure the integrity and proper admin-istration of the federal election. As the Government sees it, however,Trump can point to no plausible source of authority enabling the Pres-ident to take such actions. Determining whose characterization maybe correct, and with respect to which conduct, requires a fact-specificanalysis of the indictment's extensive and interrelated allegations.The Court accordingly remands to the District Court to determine inthe first instance whether Trump's conduct in this area qualifies asofficial or unofficial. Pp. 24-28.(iv) The indictment also contains various allegations regardingTrump's conduct in connection with the events of January 6 itself. Thealleged conduct largely consists of Trump's communications in theform of Tweets and a public address. The President possesses "ex-traordinary power to speak to his fellow citizens and on their behalf."Trump v. Hawaii, 585 U. S. 667, 701. So most of a President's public

Cite as:603 U. S.(2024)Syllabus7communications are likely to fall comfortably within the outer perim-eter of his official responsibilities. There may, however, be contexts inwhich the President speaks in an unofficial capacity—perhaps as acandidate for office or party leader. To the extent that may be the case,objective analysis of "content, form, and context" will necessarily in-form the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether thecommunications alleged in the indictment involve official conduct maydepend on the content and context of each. This necessarily factboundanalysis is best performed initially by the District Court. The Courttherefore remands to the District Court to determine in the first in-stance whether this alleged conduct is official or unofficial. Pp. 28–30.(3) Presidents cannot be indicted based on conduct for which theyare immune from prosecution. On remand, the District Court mustcarefully analyze the indictment's remaining allegations to determinewhether they too involve conduct for which a President must be im-mune from prosecution. And the parties and the District Court mustensure that sufficient allegations support the indictment's chargeswithout such conduct. Testimony or private records of the Presidentor his advisers probing such conduct may not be admitted as evidenceat trial. Pp. 30-32.(c) Trump asserts a far broader immunity than the limited one theCourt recognizes, contending that the indictment must be dismissedbecause the Impeachment Judgment Clause requires that impeach-ment and Senate conviction precede a President's criminal prosecu-tion. But the text of the Clause does not address whether and on whatconduct a President may be prosecuted if he was never impeached andconvicted. See Art. I, §3, cl. 7. Historical evidence likewise lends littlesupport to Trump's position. The Federalist Papers on which Trumprelies concerned the checks available against a sitting President; theydid not endorse or even consider whether the Impeachment JudgmentClause immunizes a former President from prosecution. Transformingthe political process of impeachment into a necessary step in the en-forcement of criminal law finds little support in the text of the Consti-tution or the structure of the Nation's Government. Pp. 32-34.(d) The Government takes a similarly broad view, contending thatthe President enjoys no immunity from criminal prosecution for anyaction. On its view, as-applied challenges in the course of the trialsuffice to protect Article II interests, and review of a district court'sdecisions on such challenges should be deferred until after trial. Butquestions about whether the President may be held liable for particu-lar actions, consistent with the separation of powers, must be ad-dressed at the outset of a proceeding. Even if the President were ulti-mately not found liable for certain official actions, the possibility of anextended proceeding alone may render him "unduly cautious in the

00TRUMP v. UNITED STATESSyllabusdischarge of his official duties." Fitzgerald, 457 U. S., at 752, n. 32.The Constitution does not tolerate such impediments to "the effectivefunctioning of government." Id., at 751. Pp. 34–37.(e) This case poses a question of lasting significance: When may aformer President be prosecuted for official acts taken during his Pres-idency? In answering that question, unlike the political branches andthe public at large, the Court cannot afford to fixate exclusively, oreven primarily, on present exigencies. Enduring separation of powersprinciples guide our decision in this case. The President enjoys no im-munity for his unofficial acts, and not everything the President does isofficial. The President is not above the law. But under our system ofseparated powers, the President may not be prosecuted for exercisinghis core constitutional powers, and he is entitled to at least presump-tive immunity from prosecution for his official acts. That immunityapplies equally to all occupants of the Oval Office. Pp. 41-43.91 F. 4th 1173, vacated and remanded.ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BAR-RETT, J., joined except as to Part III-C. THOMAS, J., filed a concurringopinion. BARRETT, J., filed an opinion concurring in part. SOTOMAYOR,J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.JACKSON, J., filed a dissenting opinion.

Cite as: 603 U. S.(2024)1Opinion of the CourtNOTICE: This opinion is subject to formal revision before publication in theUnited States Reports. Readers are requested to notify the Reporter ofDecisions, Supreme Court of the United States, Washington, D. Č. 20543,pio@supremecourt.gov, of any typographical or other formal errors.SUPREME COURT OF THE UNITED STATESNo. 23-939DONALD J. TRUMP, PETITIONER v.UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT[July 1, 2024]CHIEF JUSTICE ROBERTS delivered the opinion of theCourt.This case concerns the federal indictment of a formerPresident of the United States for conduct alleged to involveofficial acts during his tenure in office. We consider thescope of a President's immunity from criminal prosecution.IFrom January 2017 until January 2021, Donald J.Trump served as President of the United States. On Au-gust 1, 2023, a federal grand jury indicted him on fourcounts for conduct that occurred during his Presidency fol-lowing the November 2020 election. The indictment allegedthat after losing that election, Trump conspired to overturnit by spreading knowingly false claims of election fraud toobstruct the collecting, counting, and certifying of the elec-tion results.According to the indictment, Trump advanced his goalthrough five primary means. First, he and his co-conspirators"used knowingly false claims of election fraud to get statelegislators and election officials to ... change electoral

2TRUMP v. UNITED STATESOpinion of the Courtvotes for [Trump's] opponent, Joseph R. Biden, Jr., to elec-toral votes for [Trump].” App. 185, Indictment ¶10(a). Sec-ond, Trump and his co-conspirators “organized fraudulentslates of electors in seven targeted states" and "causedthese fraudulent electors to transmit their false certificatesto the Vice President and other government officials to becounted at the certification proceeding on January 6." Id.,at 186, 10(b). Third, Trump and his co-conspirators at-tempted to use the Justice Department “to conduct shamelection crime investigations and to send a letter to the tar-geted states that falsely claimed that the Justice Depart-ment had identified significant concerns that may have im-pacted the election outcome." Id., at 186-187, 10(c).Fourth, Trump and his co-conspirators attempted to per-suade "the Vice President to use his ceremonial role at theJanuary 6 certification proceeding to fraudulently alter theelection results." Id., at 187, ¶10(d). And when that failed,on the morning of January 6, they “repeated knowinglyfalse claims of election fraud to gathered supporters, falselytold them that the Vice President had the authority to andmight alter the election results, and directed them to theCapitol to obstruct the certification proceeding." Ibid.Fifth, when "a large and angry crowd. . . violently attackedthe Capitol and halted the proceeding," Trump and his co-conspirators “exploited the disruption by redoubling effortsto levy false claims of election fraud and convince Membersof Congress to further delay the certification." Id., at 187-188, 10(e).Based on this alleged conduct, the indictment chargedTrump with (1) conspiracy to defraud the United States inviolation of 18 U. S. C. §371, (2) conspiracy to obstruct anofficial proceeding in violation of §1512(k), (3) obstructionof and attempt to obstruct an official proceeding in violation

Cite as: 603 U. S.(2024)3Opinion of the Courtof §1512(c)(2), §2, and (4) conspiracy against rights in vio-lation of §241.1Trump moved to dismiss the indictment based on Presi-dential immunity. In his view, the conduct alleged in theindictment, properly characterized, was that while he wasPresident he (1) “made public statements about the admin-istration of the federal election"; (2) communicated withsenior Justice Department officials “about investigatingelection fraud and about choosing the leadership" of the De-partment; (3) “communicated with state officials about theadministration of the federal election and their exercise ofofficial duties with respect to it”; (4) “communicated withthe Vice President” and with “Members of Congress aboutthe exercise of their official duties regarding the electioncertification"; and (5) “authorized or directed others to or-ganize contingent slates of electors in furtherance of his at-tempts to convince the Vice President to exercise his officialauthority in a manner advocated for by President Trump."Motion To Dismiss Indictment Based on Presidential Im-munity in No. 1:23-cr-00257 (DC), ECF Doc. 74, p. 9.Trump argued that all of the indictment's allegations fellwithin the core of his official duties. Id., at 27. And he con-tended that a President has absolute immunity from crimi-nal prosecution for actions performed within the outer pe-rimeter of his official responsibilities, to ensure that he canundertake the especially sensitive duties of his office withbold and unhesitating action. Id., at 14, 24.The District Court denied the motion to dismiss, holding1 Trump contends that the indictment stretches Section 1512(c)(2) "farbeyond its natural meaning." Brief for Petitioner 39, n. 4. As we ex-plained in Fischer v. United States, Section 1512(c)(2) covers acts thatimpair “the availability or integrity for use in an official proceeding ofrecords, documents, objects, or . . . other things used in the proceeding."603 U. S.(2024) (slip op., at 16). If necessary, the District Courtshould determine in the first instance whether the Section 1512(c)(2)charges may proceed in light of our decision in Fischer.

4TRUMP v. UNITED STATESOpinion of the Courtthat “former Presidents do not possess absolute federalcriminal immunity for any acts committed while in office."2023 WL 8359833, *15 (DC, Dec. 1, 2023). The DistrictCourt recognized that the President is immune from dam-ages liability in civil cases, to protect against the chillingeffect such exposure might have on the carrying out of hisresponsibilities. See Nixon v. Fitzgerald, 457 U. S. 731,749–756 (1982). But it reasoned that “the possibility of vex-atious post-Presidency litigation is much reduced in thecriminal context” in light of “[t]he robust procedural safe-guards attendant to federal criminal prosecutions." 2023WL 8359833, *9–*10. The District Court declined to decidewhether the indicted conduct involved official acts. See id.,at *15.The D. C. Circuit affirmed. 91 F. 4th 1173 (2024) (per cu-riam). Citing Marbury v. Madison, 1 Cranch 137 (1803),the court distinguished between two kinds of official acts:discretionary and ministerial. 91 F. 4th, at 1189-1190. Itobserved that “although discretionary acts are ‘only politi-cally examinable,' the judiciary has the power to hear cases"involving ministerial acts that an officer is directed to per-form by the legislature. Ibid. (quoting Marbury, 1 Cranch,at 166). From this distinction, the D. C. Circuit concludedthat the “separation of powers doctrine, as expounded inMarbury and its progeny, necessarily permits the Judiciaryto oversee the federal criminal prosecution of a former Pres-ident for his official acts because the fact of the prosecutionmeans that the former President has allegedly acted in de-fiance of the Congress's laws." 91 F. 4th, at 1191. In thecourt's view, the fact that Trump's actions “allegedly vio-lated generally applicable criminal laws” meant that thoseactions "were not properly within the scope of his lawfuldiscretion." Id., at 1192. The D. C. Circuit thus concludedthat Trump had “no structural immunity from the chargesin the Indictment." Ibid. Like the District Court, the D. C.

Cite as: 603 U. S.(2024)5Opinion of the CourtCircuit declined to analyze the actions described in the in-dictment to determine whether they involved official acts.See id., at 1205, n. 14.We granted certiorari to consider the following question:"Whether and if so to what extent does a former Presidentenjoy presidential immunity from criminal prosecution forconduct alleged to involve official acts during his tenure inoffice." 601 U. S. (2024).IIThis case is the first criminal prosecution in our Nation'shistory of a former President for actions taken during hisPresidency. We are called upon to consider whether andunder what circ*mstances such a prosecution may pro-ceed. Doing so requires careful assessment of the scope ofPresidential power under the Constitution. We undertakethat responsibility conscious that we must not confuse “theissue of a power's validity with the cause it is invoked topromote," but must instead focus on the “enduring conse-quences upon the balanced power structure of our Repub-lic." 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-dent can be subject to criminal prosecution for unofficialacts committed while in office. See Tr. of Oral Arg. 28.They also agree that some of the conduct described in theindictment includes actions taken by Trump in his unoffi-cial capacity. See id., at 28-30, 36–37, 124.They disagree, however, about whether a former Presi-dent can be prosecuted for his official actions. Trump con-tends that just as a President is absolutely immune fromcivil damages liability for acts within the outer perimeter ofhis official responsibilities, Fitzgerald, 457 U. S., at 756, hemust be absolutely immune from criminal prosecution forsuch acts. Brief for Petitioner 10. And Trump argues thatthe bulk of the indictment's allegations involve conduct in

6TRUMP v. UNITED STATESOpinion of the Courthis official capacity as President. See Tr. of Oral Arg. 30–32. Although the Government agrees that some official ac-tions are included in the indictment's allegations, see id., at125, it maintains that a former President does not enjoy im-munity from criminal prosecution for any actions, regard-less of how they are characterized. See Brief for UnitedStates 9.We conclude that under our constitutional structure ofseparated powers, the nature of Presidential power re-quires that a former President have some immunity fromcriminal prosecution for official acts during his tenure inoffice. At least with respect to the President's exercise ofhis core constitutional powers, this immunity must be ab-solute. As for his remaining official actions, he is also enti-tled to immunity. At the current stage of proceedings inthis case, however, we need not and do not decide whetherthat immunity must be absolute, or instead whether a pre-sumptive immunity is sufficient.AArticle II of the Constitution provides that “[t]he execu-tive Power shall be vested in a President of the UnitedStates 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, commandingthe Armed Forces of the United States; granting reprievesand pardons for offenses against the United States; and ap-pointing public ministers and consuls, the Justices of thisCourt, and Officers of the United States. See §2. He alsohas important foreign relations responsibilities: makingtreaties, appointing ambassadors, recognizing foreign gov-ernments, meeting foreign leaders, overseeing interna-tional diplomacy and intelligence gathering, and managingmatters related to terrorism, trade, and immigration. See§§2, 3. Domestically, he must "take Care that the Laws befaithfully executed,” §3, and he bears responsibility for the

Cite as: 603 U. S.(2024)7Opinion of the Courtactions of the many departments and agencies within theExecutive Branch. He also plays a role in lawmaking byrecommending to Congress the measures he thinks wiseand 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 actnecessarily "stem[s] either from an act of Congress or fromthe Constitution itself." Youngstown, 343 U. S., at 585. Inthe latter case, the President's authority is sometimes “con-clusive and preclusive.” Id., at 638 (Jackson, J., concur-ring). When the President exercises such authority, he mayact even when the measures he takes are “incompatiblewith the expressed or implied will of Congress." Id., at 637.The exclusive constitutional authority of the President “dis-abl[es] the Congress from acting upon the subject.” Id., at637-638. And the courts have "no power to control [thePresident's] discretion" when he acts pursuant to the pow-ers invested exclusively in him by the Constitution. Mar-bury, 1 Cranch, at 166.If the President claims authority to act but in fact exer-cises mere “individual will” and “authority without law,"the courts may say so. Youngstown, 343 U. S., at 655 (Jack-son, J., concurring). In Youngstown, for instance, we heldthat President Truman exceeded his constitutional author-ity when he seized most of the Nation's steel mills. See id.,at 582-589 (majority opinion). But once it is determinedthat the President acted within the scope of his exclusiveauthority, his discretion in exercising such authority cannotbe subject to further judicial examination.The Constitution, for example, vests the "Power to GrantReprieves and Pardons for Offences against the UnitedStates" in the President. Art. II, §2, cl. 1. During and afterthe Civil War, President Lincoln offered a full pardon, withrestoration of property rights, to anyone who had “engagedin the rebellion" but agreed to take an oath of allegiance tothe Union. United States v. Klein, 13 Wall. 128, 139–141

8TRUMP v. UNITED STATESOpinion of the Court(1872). But in 1870, Congress enacted a provision that pro-hibited using the President's pardon as evidence of restora-tion of property rights. Id., at 143–144. Chief JusticeChase held the provision unconstitutional because it “im-pair[ed] the effect of a pardon, and thus infring[ed] the con-stitutional power of the Executive." Id., at 147. "To theexecutive alone is intrusted the power of pardon,” and the"legislature cannot change the effect of such a pardon anymore than the executive can change a law.” Id., at 147–148.The President's authority to pardon, in other words, is “con-clusive and preclusive,” “disabling the Congress from actingupon the subject." Youngstown, 343 U. S., at 637–638(Jackson, J., concurring).Some of the President's other constitutional powers alsofit that description. "The President's power to remove-andthus supervise—those who wield executive power on his be-half," for instance, "follows from the text of Article II." SeilaLaw LLC v. Consumer Financial Protection Bureau, 591U. S. 197, 204 (2020). We have thus held that Congresslacks authority to control the President's “unrestrictedpower of removal" with respect to "executive officers of theUnited States whom he has appointed." Myers v. UnitedStates, 272 U. S. 52, 106, 176 (1926); see Youngstown, 343U. S., at 638, n. 4 (Jackson, J., concurring) (citing the Pres-ident's "exclusive power of removal in executive agencies"as an example of "conclusive and preclusive” constitutionalauthority); cf. Seila Law, 591 U. S., at 215 (noting only "twoexceptions to the President's unrestricted removal power").The power "to control recognition determinations" of foreigncountries is likewise an “exclusive power of the President."Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015). Congressionalcommands contrary to the President's recognition determi-nations are thus invalid. Ibid.Congress cannot act on, and courts cannot examine, thePresident's actions on subjects within his “conclusive andpreclusive" constitutional authority. It follows that an Act

Cite as: 603 U. S.(2024)9Opinion of the Courtof Congress either a specific one targeted at the Presidentor a generally applicable one-may not criminalize thePresident's actions within his exclusive constitutionalpower. Neither may the courts adjudicate a criminal pros-ecution that examines such Presidential actions. We thusconclude that the President is absolutely immune fromcriminal prosecution for conduct within his exclusivesphere of constitutional authority.BBut of course not all of the President's official acts fallwithin his “conclusive and preclusive” authority. As JusticeRobert Jackson recognized in Youngstown, the Presidentsometimes "acts pursuant to an express or implied author-ization of Congress,” or in a "zone of twilight” where “he andCongress may have concurrent authority.” 343 U. S., at635, 637 (concurring opinion). The reasons that justify thePresident's absolute immunity from criminal prosecutionfor acts within the scope of his exclusive authority thereforedo not extend to conduct in areas where his authority isshared with Congress.We recognize that only a limited number of our prior de-cisions guide determination of the President's immunity inthis context. That is because proceedings directly involvinga President have been uncommon in our Nation, and “deci-sions 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 primarilyto the Framers' design of the Presidency within the separa-tion of powers, our precedent on Presidential immunity inthe civil context, and our criminal cases where a Presidentresisted prosecutorial demands for documents.1The President “occupies a unique position in the consti-tutional scheme,” Fitzgerald, 457 U. S., at 749, as "the only

10TRUMP v. UNITED STATESOpinion of the Courtperson who alone composes a branch of government,"Trump v. Mazars USA, LLP, 591 U. S. 848, 868 (2020). TheFramers "sought to encourage energetic, vigorous, decisive,and speedy execution of the laws by placing in the hands ofa single, constitutionally indispensable, individual the ulti-mate authority that, in respect to the other branches, theConstitution divides among many.” Clinton v. Jones, 520U. S. 681, 712 (1997) (Breyer, J., concurring in judgment).They "deemed an energetic executive essential to 'the pro-tection of the community against foreign attacks,' ‘thesteady administration of the laws,' 'the protection of prop-erty,' and 'the security of liberty."" Seila Law, 591 U. S., at223-224 (quoting The Federalist No. 70, p. 471 (J. Cookeed. 1961) (A. Hamilton)). The purpose of a “vigorous” and"energetic" Executive, they thought, was to ensure "goodgovernment," for a “feeble executive implies a feeble execu-tion of the government.” Id., at 471–472.The Framers accordingly vested the President with “su-pervisory and policy responsibilities of utmost discretionand sensitivity." Fitzgerald, 457 U. S., at 750. He mustmake “the most sensitive and far-reaching decisions en-trusted to any official under our constitutional system.” Id.,at 752. There accordingly "exists the greatest public inter-est" in providing the President with “the maximum abilityto deal fearlessly and impartially with' the duties of his of-fice." Ibid. (quoting Ferri v. Ackerman, 444 U. S. 193, 203(1979)). Appreciating the “unique risks to the effectivefunctioning of government" that arise when the President'senergies are diverted by proceedings that might render him"unduly cautious in the discharge of his official duties,” wehave recognized Presidential immunities and privileges"rooted in the constitutional tradition of the separation ofpowers and supported by our history." Fitzgerald, 457U. S., at 749, 751, 752, n. 32.In Nixon v. Fitzgerald, for instance, we recognized thatas "a functionally mandated incident of [his] unique office,"

Cite as: 603 U. S.(2024)11Opinion of the Courta former President “is entitled to absolute immunity fromdamages liability predicated on his official acts." Id., at749. That case involved a terminated Air Force employeewho sued former President Richard Nixon for damages, al-leging that Nixon approved an Air Force reorganizationthat wrongfully led to his firing. In holding that Nixon wasimmune from that suit, "our dominant concern" was toavoid "diversion of the President's attention during the de-cisionmaking process caused by needless worry as to thepossibility of damages actions stemming from any particu-lar official decision." Clinton, 520 U.S., at 694, n. 19."[T]he singular importance of the President's duties” impli-cating "matters likely to ‘arouse the most intense feelings,""coupled with "the sheer prominence of [his] office,” height-ens the prospect of private damages suits that wouldthreaten such diversion. Fitzgerald, 457 U. S., at 751-753(quoting Pierson v. Ray, 386 U. S. 547, 554 (1967)). Wetherefore concluded that the President must be absolutelyimmune from “damages liability for acts within the ‘outerperimeter of his official responsibility.” Fitzgerald, 457U. S., at 756.By contrast, when prosecutors have sought evidence fromthe President, we have consistently rejected Presidentialclaims of absolute immunity. For instance, during the trea-son trial of former Vice President Aaron Burr, Chief JusticeMarshall rejected President Thomas Jefferson's claim thatthe President could not be subjected to a subpoena. Mar-shall reasoned that "the law does not discriminate betweenthe president and a private citizen." United States v. Burr,25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807) (Burr I). Be-cause a President does not “stand exempt from the generalprovisions of the constitution,” including the Sixth Amend-ment's guarantee that those accused shall have compulsoryprocess for obtaining witnesses for their defense, a sub-poena could issue. Id., at 33-34.Marshall acknowledged, however, the existence of a

12TRUMP v. UNITED STATESOpinion of the Court"privilege" to withhold certain “official paper[s]" that “oughtnot on light ground to be forced into public view." UnitedStates v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.1807) (Burr II); see also Burr I, 25 F. Cas., at 37 (statingthat nothing before the court showed that the document inquestion "contain[ed] any matter the disclosure of whichwould endanger the public safety"). And he noted that acourt may not "be required to proceed against the presidentas against an ordinary individual.” Burr II, 25 F. Cas., at192.Similarly, when a subpoena issued to President Nixon toproduce certain tape recordings and documents relating tohis conversations with aides and advisers, this Court re-jected his claim of “absolute privilege,” given the “constitu-tional duty of the Judicial Branch to do justice in criminalprosecutions." United States v. Nixon, 418 U. S. 683, 703,707 (1974). But we simultaneously recognized “the publicinterest in candid, objective, and even blunt or harsh opin-ions in Presidential decisionmaking,” as well as the need toprotect "communications between high Government offi-cials and those who advise and assist them in the perfor-mance of their manifold duties." Id., at 705, 708. Becausethe President's “need for complete candor and objectivityfrom advisers calls for great deference from the courts," weheld that a "presumptive privilege" protects Presidentialcommunications. Id., at 706, 708. That privilege, we ex-plained, “relates to the effective discharge of a President'spowers." Id., at 711. We thus deemed it "fundamental tothe operation of Government and inextricably rooted in theseparation of powers under the Constitution." Id., at 708.2Criminally prosecuting a President for official conductundoubtedly poses a far greater threat of intrusion on theauthority and functions of the Executive Branch thansimply seeking evidence in his possession, as in Burr and

Cite as: 603 U. S.(2024)13Opinion of the CourtNixon. The danger is akin to, indeed greater than, what ledus to recognize absolute Presidential immunity from civildamages liability—that the President would be chilled fromtaking the "bold and unhesitating action” required of an in-dependent Executive. Fitzgerald, 457 U. S., at 745. Alt-hough the President might be exposed to fewer criminalprosecutions than the range of civil damages suits thatmight be brought by various plaintiffs, the threat of trial,judgment, and imprisonment is a far greater deterrent. Po-tential criminal liability, and the peculiar public oppro-brium that attaches to criminal proceedings, are plainlymore likely to distort Presidential decisionmaking than thepotential payment of civil damages.The hesitation to execute the duties of his office fearlesslyand fairly that might result when a President is making de-cisions under "a pall of potential prosecution,” McDonnell v.United States, 579 U. S. 550, 575 (2016), raises "uniquerisks to the effective functioning of government,” Fitzger-ald, 457 U. S., at 751. A President inclined to take onecourse of action based on the public interest may insteadopt for another, apprehensive that criminal penalties maybefall him upon his departure from office. And if a formerPresident's official acts are routinely subjected to scrutinyin criminal prosecutions, “the independence of the Execu-tive Branch" may be significantly undermined. Vance, 591U. S., at 800. The Framers' design of the Presidency did notenvision such counterproductive burdens on the “vigor[]”and "energy" of the Executive. The Federalist No. 70, at471-472.We must, however, “recognize[] the countervailing inter-ests at stake." Vance, 591 U. S., at 799. Federal criminallaws seek to redress “a wrong to the public" as a whole, notjust "a wrong to the individual." Huntington v. Attrill, 146U. S. 657, 668 (1892). There is therefore a compelling "pub-lic interest in fair and effective law enforcement." Vance,591 U. S., at 808. The President, charged with enforcing

14TRUMP v. UNITED STATESOpinion of the Courtfederal criminal laws, is not above them.Chief Justice Marshall's decisions in Burr and our deci-sion in Nixon recognized the distinct interests present incriminal prosecutions. Although Burr acknowledged thatthe President's official papers may be privileged and pub-licly unavailable, it did not grant him an absolute exemp-tion from responding to subpoenas. See Burr II, 25 F. Cas.,at 192; Burr I, 25 F. Cas., at 33-34. Nixon likewise recog-nized a strong protection for the President's confidentialcommunications—a “presumptive privilege”—but it did notentirely exempt him from providing evidence in criminalproceedings. 418 U. S., at 708.Taking into account these competing considerations, weconclude that the separation of powers principles explicatedin our precedent necessitate at least a presumptive immun-ity from criminal prosecution for a President's acts withinthe outer perimeter of his official responsibility. Such animmunity is required to safeguard the independence andeffective functioning of the Executive Branch, and to enablethe President to carry out his constitutional duties withoutundue caution. Indeed, if presumptive protection for thePresident is necessary to enable the “effective discharge" ofhis powers when a prosecutor merely seeks evidence of hisofficial papers and communications, id., at 711, it is cer-tainly necessary when the prosecutor seeks to charge, try,and imprison the President himself for his official actions.At a minimum, the President must therefore be immunefrom prosecution for an official act unless the Governmentcan show that applying a criminal prohibition to that actwould pose no “dangers of intrusion on the authority andfunctions of the Executive Branch.” Fitzgerald, 457 U. S.,at 754.But as we explain below, the current stage of the proceed-ings in this case does not require us to decide whether thisimmunity is presumptive or absolute. See Part III—–B, infra.Because we need not decide that question today, we do not

Cite as: 603 U. S.(2024)15Opinion of the Courtdecide it. "[O]ne case” in more than “two centuries does notafford enough experience” to definitively and comprehen-sively determine the President's scope of immunity fromcriminal prosecution. Mazars, 591 U. S., at 871.CAs for a President's unofficial acts, there is no immunity.The principles we set out in Clinton v. Jones confirm asmuch. When Paula Jones brought a civil lawsuit againstthen-President Bill Clinton for acts he allegedly committedprior to his Presidency, we rejected his argument that heenjoyed temporary immunity from the lawsuit while serv-ing as President. 520 U. S., at 684. Although Presidentialimmunity is required for official actions to ensure that thePresident's decisionmaking is not distorted by the threat offuture litigation stemming from those actions, that concerndoes not support immunity for unofficial conduct. Id., at694, and n. 19. The “justifying purposes"" of the immunitywe recognized in Fitzgerald, and the one we recognize to-day, are not that the President must be immune because heis the President; rather, they are to ensure that the Presi-dent can undertake his constitutionally designated func-tions effectively, free from undue pressures or distortions.520 U. S., at 694, and n. 19 (quoting Fitzgerald, 457 U. S.,at 755). "[I]t [is] the nature of the function performed, notthe identity of the actor who perform[s] it, that inform[s]our immunity analysis." Forrester v. White, 484 U. S. 219,229 (1988). The separation of powers does not bar a prose-cution predicated on the President's unofficial acts.²2 Our decision in Clinton permitted claims alleging unofficial acts toproceed against the sitting President. See 520 U. S., at 684. In the crim-inal context, however, the Justice Department "has long recognized" that"the separation of powers precludes the criminal prosecution of a sittingPresident." Brief for United States 9 (citing A Sitting President's Ame-nability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000);emphasis deleted); see Tr. for Oral Arg. 78.

16TRUMP v. UNITED STATESOpinion of the CourtIIIDetermining whether a former President is entitled toimmunity from a particular prosecution requires applyingthe principles we have laid out to his conduct at issue. Thefirst step is to distinguish his official from unofficial actions.In this case, however, no court has thus far considered howto draw that distinction, in general or with respect to theconduct alleged in particular.Despite the unprecedented nature of this case, and thevery significant constitutional questions that it raises, thelower courts rendered their decisions on a highly expeditedbasis. Because those courts categorically rejected any formof Presidential immunity, they did not analyze the conductalleged in the indictment to decide which of it should be cat-egorized as official and which unofficial. Neither party hasbriefed that issue before us (though they discussed it at oralargument in response to questions). And like the underly-ing immunity question, that categorization raises multipleunprecedented and momentous questions about the powersof the President and the limits of his authority under theConstitution. As we have noted, there is little pertinentprecedent on those subjects to guide our review of thiscase a case that we too are deciding on an expedited basis,less than five months after we granted the Government'srequest to construe Trump's emergency application for astay as a petition for certiorari, grant that petition, and an-swer the consequential immunity question. See 601 U. S.,at Given all these circ*mstances, it is particularly in-cumbent upon us to be mindful of our frequent admonitionthat “[o]urs is a court of final review and not first view."Zivotofsky v. Clinton, 566 U. S. 189, 201 (2012) (internalquotation marks omitted).Critical threshold issues in this case are how to differen-tiate between a President's official and unofficial actions,and how to do so with respect to the indictment's extensiveand detailed allegations covering a broad range of conduct.

Cite as: 603 U. S.(2024)17Opinion of the CourtWe offer guidance on those issues below. Certain allega-tions such as those involving Trump's discussions withthe Acting Attorney General-are readily categorized inlight of the nature of the President's official relationship tothe office held by that individual. Other allegations—suchas those involving Trump's interactions with the Vice Pres-ident, state officials, and certain private parties, and hiscomments to the general public-present more difficultquestions. Although we identify several considerations per-tinent to classifying those allegations and determiningwhether they are subject to immunity, that analysis ulti-mately is best left to the lower courts to perform in the firstinstance.ADistinguishing the President's official actions from hisunofficial ones can be difficult. When the President actspursuant to "constitutional and statutory authority," hetakes official action to perform the functions of his office.Fitzgerald, 457 U. S., at 757. Determining whether an ac-tion is covered by immunity thus begins with assessing thePresident's authority to take that action.But the breadth of the President's “discretionary respon-sibilities" under the Constitution and laws of the UnitedStates "in a broad variety of areas, many of them highlysensitive," frequently makes it "difficult to determine whichof [his] innumerable 'functions' encompassed a particularaction." Id., at 756. And some Presidential conduct-forexample, speaking to and on behalf of the American people,see Trump v. Hawaii, 585 U. S. 667, 701 (2018)―certainlycan qualify as official even when not obviously connected toa particular constitutional or statutory provision. For thosereasons, the immunity we have recognized extends to the“outer perimeter" of the President's official responsibilities,covering actions so long as they are “not manifestly or pal-pably beyond [his] authority." Blassingame v. Trump, 87

18TRUMP v. UNITED STATESOpinion of the CourtF. 4th 1, 13 (CADC 2023) (internal quotation marks omit-ted); see Fitzgerald, 457 U. S., at 755–756 (noting that wehave “refused to draw functional lines finer than historyand reason would support").In dividing official from unofficial conduct, courts maynot inquire into the President's motives. Such an inquirywould risk exposing even the most obvious instances of of-ficial conduct to judicial examination on the mere allegationof improper purpose, thereby intruding on the Article II in-terests that immunity seeks to protect. Indeed, "[i]t wouldseriously cripple the proper and effective administration ofpublic affairs as entrusted to the executive branch of thegovernment" if “[i]n exercising the functions of his office,"the President was "under an apprehension that the motivesthat control his official conduct may, at any time, becomethe subject of inquiry.” Fitzgerald, 457 U. S., at 745 (quot-ing Spalding v. Vilas, 161 U. S. 483, 498 (1896)). We thusrejected such inquiries in Fitzgerald. The plaintiff therecontended that he was dismissed from the Air Force for re-taliatory reasons. See 457 U. S., at 733–741, 756. The AirForce responded that the reorganization that led to Fitzger-ald's dismissal was undertaken to promote efficiency. Ibid.Because under Fitzgerald's theory “an inquiry into thePresident's motives could not be avoided,” we rejected thetheory, observing that “[i]nquiries of this kind could behighly intrusive." Id., at 756. “[B]are allegations of maliceshould not suffice to subject government officials either tothe costs of trial or to the burdens of broad-reaching discov-ery." Harlow v. Fitzgerald, 457 U. S. 800, 817-818 (1982).Nor may courts deem an action unofficial merely becauseit allegedly violates a generally applicable law. For in-stance, when Fitzgerald contended that his dismissal vio-lated various congressional statutes and thus rendered hisdischarge "outside the outer perimeter of [Nixon's] duties,"we rejected that contention. 457 U. S., at 756. Otherwise,Presidents would be subject to trial on "every allegation

Cite as: 603 U. S.(2024)19Opinion of the Courtthat an action was unlawful,” depriving immunity of its in-tended effect. Ibid.BWith these principles in mind, we turn to the conduct al-leged in the indictment.1The indictment broadly alleges that Trump and his co-conspirators sought to "overturn the legitimate results ofthe 2020 presidential election.” App. 183, Indictment ¶7.It charges that they conspired to obstruct the January 6congressional proceeding at which electoral votes arecounted and certified, and the winner of the election is cer-tified as President-elect. Id., at 181–185, ¶¶4, 7, 9. As partof this conspiracy, Trump and his co-conspirators allegedlyattempted to leverage the Justice Department's power andauthority to convince certain States to replace their legiti-mate electors with Trump's fraudulent slates of electors.See id., at 215–220, ¶¶70–85. According to the indictment,Trump met with the Acting Attorney General and othersenior Justice Department and White House officials to dis-cuss investigating purported election fraud and sending aletter from the Department to those States regarding suchfraud. See, e.g., id., at 217, 219–220, ¶¶77, 84. The indict-ment further alleges that after the Acting Attorney Generalresisted Trump's requests, Trump repeatedly threatened toreplace him. See, e.g., id., at 216–217, ¶¶74, 77.The Government does not dispute that the indictment'sallegations regarding the Justice Department involveTrump's "use of official power.” Brief for United States 46;see id., at 10-11; Tr. of Oral Arg. 125. The allegations infact plainly implicate Trump's “conclusive and preclusive”authority. “[I]nvestigation and prosecution of crimes is aquintessentially executive function." Brief for UnitedStates 19 (quoting Morrison v. Olson, 487 U. S. 654, 706

20TRUMP v. UNITED STATESOpinion of the Court(1988) (Scalia, J., dissenting)). And the Executive Branchhas "exclusive authority and absolute discretion" to decidewhich crimes to investigate and prosecute, including withrespect to allegations of election crime. Nixon, 418 U. S., at693; see United States v. Texas, 599 U. S. 670, 678–679(2023) ("Under Article II, the Executive Branch possessesauthority to decide how to prioritize and how aggressivelyto pursue legal actions against defendants who violate thelaw."" (quoting TransUnion LLC v. Ramirez, 594 U. S. 413,429 (2021))). The President may discuss potential investi-gations and prosecutions with his Attorney General andother Justice Department officials to carry out his constitu-tional duty to "take Care that the Laws be faithfully exe-cuted." Art. II, §3. And the Attorney General, as head ofthe Justice Department, acts as the President's “chief lawenforcement officer" who “provides vital assistance to [him]in the performance of [his] constitutional duty to 'preserve,protect, and defend the Constitution.”” Mitchell v. Forsyth,472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).Investigative and prosecutorial decisionmaking is “thespecial province of the Executive Branch," Heckler v.Chaney, 470 U. S. 821, 832 (1985), and the Constitutionvests the entirety of the executive power in the President,Art. II, §1. For that reason, Trump's threatened removal ofthe Acting Attorney General likewise implicates "conclu-sive and preclusive" Presidential authority. As we have ex-plained, the President's power to remove “executive officersof the United States whom he has appointed" may not beregulated by Congress or reviewed by the courts. Myers,272 U. S., at 106, 176; see supra, at 8. The President's"management of the Executive Branch" requires him tohave “unrestricted power to remove the most important ofhis subordinates"—such as the Attorney General—“in theirmost important duties.” Fitzgerald, 457 U. S., at 750 (in-ternal quotation marks and alteration omitted).

Cite as: 603 U. S.(2024)21Opinion of the CourtThe indictment's allegations that the requested investi-gations were "sham[s]" or proposed for an improper purposedo not divest the President of exclusive authority over theinvestigative and prosecutorial functions of the Justice De-partment and its officials. App. 186-187, Indictment10(c). And the President cannot be prosecuted for conductwithin his exclusive constitutional authority. Trump istherefore absolutely immune from prosecution for the al-leged conduct involving his discussions with Justice De-partment officials.2The indictment next alleges that Trump and his co-conspirators "attempted to enlist the Vice President to usehis ceremonial role at the January 6 certification proceed-ing to fraudulently alter the election results." Id., at 187,10(d). In particular, the indictment alleges several con-versations in which Trump pressured the Vice President toreject States' legitimate electoral votes or send them backto state legislatures for review. See, e.g., id., at 222–224,226, 190, 92–93, 97.The Government explained at oral argument that alt-hough it "has not yet had to come to grips with how [it]would analyze” Trump's interactions with the Vice Presi-dent, there is "support" to characterize that conduct as offi-cial. Tr. of Oral Arg. 128. Indeed, our constitutional systemanticipates that the President and Vice President will re-main in close contact regarding their official duties over thecourse of the President's term in office. These two officialsare the only ones “elected by the entire Nation." Seila Law,591 U. S., at 224; see Art. II, §1. The Constitution providesthat "the Vice President shall become President" in the caseof "the removal of the President from office or of his deathor resignation.” Amdt. 25, §1. It also “empowers the VicePresident, together with a majority of the ‘principal officers

2222TRUMP v. UNITED STATESOpinion of the Courtof the executive departments,' to declare the President ‘un-able to discharge the powers and duties of his office.”” Frey-tag v. Commissioner, 501 U. S. 868, 886-887 (1991) (quot-ing Amdt. 25, §4). And Article I of course names the VicePresident as President of the Senate and gives him a tie-breaking vote. §3, cl. 4. It is thus important for the Presi-dent to discuss official matters with the Vice President toensure continuity within the Executive Branch and to ad-vance the President's agenda in Congress and beyond.The Vice President may in practice also serve as one ofthe President's closest advisers. The Office of Legal Coun-sel has explained that within the Executive Branch, theVice President's “sole function [is] advising and assistingthe President." Whether the Office of the Vice President Isan 'Agency' for Purposes of the Freedom of Information Act,18 Op. OLC 10 (1994). Indeed, the "Twelfth Amendmentwas brought about" to avoid the “manifestly intolerable" sit-uation that occurred “[d]uring the John Adams administra-tion," when "we had a President and Vice-President of dif-ferent parties." Ray v. Blair, 343 U. S. 214, 224, n. 11(1952). The President and Vice President together "are thesenior officials of the Executive Branch of government" andtherefore "must formulate, explain, advocate, and defendpolicies" of the President's administration. Payment of Ex-penses Associated With Travel by the President and VicePresident, 6 Op. OLC 214, 215 (1982).As the President's second in command, the Vice Presidenthas historically performed important functions “at the willand as the representative of the President.” Participationof the Vice President in the Affairs of the Executive Branch,1 Supp. Op. OLC 214, 220 (1961). President Woodrow Wil-son's Vice President, for instance, “presided over a few cab-inet meetings while Wilson was in France negotiating” theTreaty of Versailles after World War I. H. Relyea, The Law:The Executive Office of the Vice President: Constitutionaland Legal Considerations, 40 Presidential Studies Q. 327,

Cite as: 603 U. S.(2024)23Opinion of the Court328 (2010). During President Franklin Roosevelt's admin-istration, the Vice President “became a regular participantin cabinet deliberations—a practice that was continued byeach succeeding president.” Ibid. And when PresidentDwight Eisenhower “suffered three major illnesses while inoffice. . . Vice President Richard Nixon consulted with theCabinet and developed a procedure for relaying importantmatters to the President." Presidential Succession and Del-egation in Case of Disability, 5 Op. OLC 91, 102 (1981). Atthe President's discretion, "the Vice President may engagein activities ranging into the highest levels of diplomacyand negotiation and may do so anywhere in the world." 1Supp. Op. OLC, at 220. Domestically, he may act as thePresident's delegate to perform any duties “co-extensivewith the scope of the President's power of delegation." Ibid.Whenever the President and Vice President discuss theirofficial responsibilities, they engage in official conduct. Pre-siding over the January 6 certification proceeding at whichMembers of Congress count the electoral votes is a consti-tutional and statutory duty of the Vice President. Art. II,§1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment's allega-tions that Trump attempted to pressure the Vice Presidentto take particular acts in connection with his role at the cer-tification proceeding thus involve official conduct, andTrump is at least presumptively immune from prosecutionfor such conduct.The question then becomes whether that presumption ofimmunity is rebutted under the circ*mstances. When theVice President presides over the January 6 certificationproceeding, he does so in his capacity as President of theSenate. Ibid. Despite the Vice President's expansive roleof advising and assisting the President within the Execu-tive Branch, the Vice President's Article I responsibility of"presiding over the Senate” is “not an ‘executive branch'function." Memorandum from L. Silberman, Deputy Atty.Gen., to R. Burress, Office of the President, Re: Conflict of

224TRUMP v. UNITED STATESOpinion of the CourtInterest Problems Arising Out of the President's Nomina-tion of Nelson A. Rockefeller To Be Vice President Underthe Twenty-Fifth Amendment to the Constitution 2 (Aug.28, 1974). With respect to the certification proceeding inparticular, Congress has legislated extensively to define theVice President's role in the counting of the electoral votes,see, e.g., 3 U. S. C. §15, and the President plays no directconstitutional or statutory role in that process. So the Gov-ernment may argue that consideration of the President'scommunications with the Vice President concerning thecertification proceeding does not pose "dangers of intrusionon the authority and functions of the Executive Branch."Fitzgerald, 457 U. S., at 754; see supra, at 14.At the same time, however, the President may frequentlyrely on the Vice President in his capacity as President of theSenate to advance the President's agenda in Congress.When the Senate is closely divided, for instance, the VicePresident's tiebreaking vote may be crucial for confirmingthe President's nominees and passing laws that align withthe President's policies. Applying a criminal prohibition tothe President's conversations discussing such matters withthe Vice President-even though they concern his role asPresident of the Senate—may well hinder the President'sability to perform his constitutional functions.It is ultimately the Government's burden to rebut thepresumption of immunity. We therefore remand to the Dis-trict Court to assess in the first instance, with appropriateinput from the parties, whether a prosecution involvingTrump's alleged attempts to influence the Vice President'soversight of the certification proceeding in his capacity asPresident of the Senate would pose any dangers of intrusionon the authority and functions of the Executive Branch.3The indictment's remaining allegations cover a broadrange of conduct. Unlike the allegations describing

Cite as: 603 U. S.(2024)25Opinion of the CourtTrump's communications with the Justice Department andthe Vice President, these remaining allegations involveTrump's interactions with persons outside the ExecutiveBranch: state officials, private parties, and the general pub-lic. Many of the remaining allegations, for instance, coverat great length events arising out of communications thatTrump and his co-conspirators initiated with state legisla-tors and election officials in Arizona, Georgia, Michigan,Pennsylvania, and Wisconsin regarding those States' certi-fication of electors. See App. 192–207, Indictment ¶¶13–52.Specifically, the indictment alleges that Trump and hisco-conspirators attempted to convince those officials thatelection fraud had tainted the popular vote count in theirStates, and thus electoral votes for Trump's opponentneeded to be changed to electoral votes for Trump. See id.,at 185–186, ¶10(a). After Trump failed to convince thoseofficials to alter their state processes, he and his co-conspiratorsallegedly developed a plan “to marshal individuals whowould have served as [Trump's] electors, had he won thepopular vote” in Arizona, Georgia, Michigan, Nevada, NewMexico, Pennsylvania, and Wisconsin, "and cause those in-dividuals to make and send to the Vice President and Con-gress false certifications that they were legitimate electors."Id., at 208, 153. If the plan worked, “the submission ofthese fraudulent slates" would position the Vice Presidentto "open and count the fraudulent votes" at the certificationproceeding and set up “a fake controversy that would derailthe proper certification of Biden as president-elect.” Id., at208-209, 153, 54(b). According to the indictment, Trumpused his campaign staff to effectuate the plan. See, e.g., id.,at 210, 212–213, ¶¶55, 63. On the same day that the legit-imate electors met in their respective jurisdictions to casttheir votes, the indictment alleges that Trump's “fraudu-lent electors convened sham proceedings in the seven tar-

26TRUMP v. UNITED STATESOpinion of the Courtgeted states to cast fraudulent electoral ballots" in his fa-vor. Id., at 214, 166. Those ballots "were mailed to thePresident of the Senate, the Archivist of the United States,and others." Ibid., 167.At oral argument, Trump appeared to concede that atleast some of these acts-those involving “private actors"who "helped implement a plan to submit fraudulent slatesof presidential electors to obstruct the certification proceed-ing" at the direction of Trump and a co-conspirator—entail"private" conduct. Tr. of Oral Arg. 29–30. He later as-serted, however, that asking "the chairwoman of the Repub-lican National Committee . . . to gather electors” qualifiesas official conduct because “the organization of alternateslates of electors is based on, for example, the historical ex-ample of President Grant as something that was done pur-suant to and ancillary and preparatory to the exercise of" acore Presidential power. Id., at 37; see also id., at 25 (dis-cussing the "historical precedent ... of President Grantsending federal troops to Louisiana and Mississippi in 1876to make sure that the Republican electors got certified inthose two cases, which delivered the election to RutherfordB. Hayes"). He also argued that it is “[a]bsolutely an officialact for the president to communicate with state officials onthe integrity of a federal election." Id., at 38. The Gov-ernment disagreed, contending that this alleged conductdoes not qualify as "official conduct” but as “campaign con-duct." Id., at 124-125....On Trump's view, the alleged conduct qualifies as officialbecause it was undertaken to ensure the integrity andproper administration of the federal election. Of course, thePresident's duty to "take Care that the Laws be faithfullyexecuted" plainly encompasses enforcement of federal elec-tion laws passed by Congress. Art. II, §3. And the Presi-dent's broad power to speak on matters of public concerndoes not exclude his public communications regarding thefairness and integrity of federal elections simply because he

Cite as: 603 U. S.(2024)27Opinion of the Courtis running for re-election. Cf. Hawaii, 585 U. S., at 701.Similarly, the President may speak on and discuss suchmatters with state officials- -even when no specific federalresponsibility requires his communication—to encouragethem to act in a manner that promotes the President's viewof the public good.As the Government sees it, however, these allegations en-compass nothing more than Trump's "private scheme withprivate actors." Brief for United States 44. In its view,Trump can point to no plausible source of authority ena-bling the President to not only organize alternate slates ofelectors but also cause those electors-unapproved by anystate official—to transmit votes to the President of the Sen-ate for counting at the certification proceeding, thus inter-fering with the votes of States' properly appointed electors.Indeed, the Constitution commits to the States the powerto “appoint" Presidential electors “in such Manner as theLegislature thereof may direct.” Art. II, §1, cl. 2; see Bur-roughs v. United States, 290 U. S. 534, 544 (1934). “ArticleII, §1's appointments power," we have said, "gives theStates far-reaching authority over presidential electors, ab-sent some other constitutional constraint." Chiafalo v.Washington, 591 U. S. 578, 588–589 (2020). By contrast,the Federal Government's role in appointing electors is lim-ited. Congress may prescribe when the state-appointedelectors shall meet, and it counts and certifies their votes.Art. II, §1, cls. 3, 4. The President, meanwhile, plays nodirect role in the process, nor does he have authority to con-trol the state officials who do. And the Framers, wary of“cabal, intrigue and corruption,” specifically excluded fromservice as electors "all those who from situation might besuspected of too great devotion to the president in office."The Federalist No. 68, at 459 (A. Hamilton); see Art. II, §1,cl. 2.Determining whose characterization may be correct, andwith respect to which conduct, requires a close analysis of

28TRUMP v. UNITED STATESOpinion of the Courtthe indictment's extensive and interrelated allegations.See App. 192–215, Indictment ¶¶13-69. Unlike Trump'salleged interactions with the Justice Department, this al-leged conduct cannot be neatly categorized as falling withina particular Presidential function. The necessary analysisis instead fact specific, requiring assessment of numerousalleged interactions with a wide variety of state officialsand private persons. And the parties' brief comments atoral argument indicate that they starkly disagree on thecharacterization of these allegations. The concerns wenoted at the outset—the expedition of this case, the lack offactual analysis by the lower courts, and the absence of per-tinent briefing by the parties—thus become more promi-nent. We accordingly remand to the District Court to de-termine in the first instance-with the benefit of briefingwe lack—whether Trump's conduct in this area qualifies asofficial or unofficial.Finally, the indictment contains various allegations re-garding Trump's conduct in connection with the events ofJanuary 6 itself. It alleges that leading up to the January6 certification proceeding, Trump issued a series of Tweets(to his nearly 89 million followers) encouraging his support-ers to travel to Washington, D. C., on that day. See, e.g.,App. 221, 225–227, Indictment ¶¶87–88, 96, 100. Trumpand his co-conspirators addressed the gathered public thatmorning, asserting that certain States wanted to recertifytheir electoral votes and that the Vice President had thepower to send those States' ballots back for recertification.Id., at 228-230, ¶¶103-104. Trump then allegedly "di-rected the crowd in front of him to go to the Capitol" to pres-sure the Vice President to do so at the certification proceed-ing. Id., at 228–230, ¶104. When it became public that theVice President would not use his role at the certificationproceeding to determine which electoral votes should be

Cite as: 603 U. S.(2024)2929Opinion of the Courtcounted, the crowd gathered at the Capitol “broke throughbarriers cordoning off the Capitol grounds" and eventually"broke into the building.” Id., at 230–231, ¶¶107, 109.The alleged conduct largely consists of Trump's commu-nications in the form of Tweets and a public address. ThePresident possesses “extraordinary power to speak to hisfellow citizens and on their behalf." Hawaii, 585 U. S., at701; cf. Lindke v. Freed, 601 U. S. 187, 191 (2024). As thesole person charged by the Constitution with executing thelaws of the United States, the President oversees and thuswill frequently speak publicly about- -a vast array of activ-ities that touch on nearly every aspect of American life. In-deed, a long-recognized aspect of Presidential power is us-ing the office's “bully pulpit” to persuade Americans,including by speaking forcefully or critically, in ways thatthe President believes would advance the public interest.He is even expected to comment on those matters of publicconcern that may not directly implicate the activities of theFederal Government—for instance, to comfort the Nationin the wake of an emergency or tragedy. For these reasons,most of a President's public communications are likely tofall comfortably within the outer perimeter of his official re-sponsibilities.There may, however, be contexts in which the President,notwithstanding the prominence of his position, speaks inan unofficial capacity—perhaps as a candidate for office orparty leader. To the extent that may be the case, objectiveanalysis of "content, form, and context" will necessarily in-form the inquiry. Snyder v. Phelps, 562 U. S. 443, 453(2011) (internal quotation marks omitted). But “there is notalways a clear line between [the President's] personal andofficial affairs." Mazars, 591 U. S., at 868. The analysistherefore must be fact specific and may prove to be chal-lenging.The indictment reflects these challenges. It includes only

30TRUMP v. UNITED STATESOpinion of the Courtselect Tweets and brief snippets of the speech Trump deliv-ered on the morning of January 6, omitting its full text orcontext. See App. 228–230, Indictment ¶104. Whether theTweets, that speech, and Trump's other communications onJanuary 6 involve official conduct may depend on the con-tent and context of each. Knowing, for instance, what elsewas said contemporaneous to the excerpted communica-tions, or who was involved in transmitting the electroniccommunications and in organizing the rally, could be rele-vant to the classification of each communication. This nec-essarily factbound analysis is best performed initially bythe District Court. We therefore remand to the DistrictCourt to determine in the first instance whether this al-leged conduct is official or unofficial.CThe essence of immunity “is its possessor's entitlementnot to have to answer for his conduct" in court. Mitchell,472 U. S., at 525. Presidents therefore cannot be indictedbased on conduct for which they are immune from prosecu-tion. As we have explained, the indictment here alleges atleast some such conduct. See Part III-B-1, supra. On re-mand, the District Court must carefully analyze the indict-ment's remaining allegations to determine whether they tooinvolve conduct for which a President must be immune fromprosecution. And the parties and the District Court mustensure that sufficient allegations support the indictment'scharges without such conduct.The Government does not dispute that if Trump is enti-tled to immunity for certain official acts, he may not “beheld criminally liable" based on those acts. Brief for UnitedStates 46. But it nevertheless contends that a jury could"consider" evidence concerning the President's official acts“for limited and specified purposes,” and that such evidencewould "be admissible to prove, for example, [Trump's]knowledge or notice of the falsity of his election-fraud

Cite as: 603 U. S.(2024)31Opinion of the Courtclaims." Id., at 46, 48. That proposal threatens to eviscer-ate the immunity we have recognized. It would permit aprosecutor to do indirectly what he cannot do directly-in-vite the jury to examine acts for which a President is im-mune from prosecution to nonetheless prove his liability onany charge. But “[t]he Constitution deals with substance,not shadows." Cummings v. Missouri, 4 Wall. 277, 325(1867). And the Government's position is untenable in lightof the separation of powers principles we have outlined.If official conduct for which the President is immune maybe scrutinized to help secure his conviction, even on chargesthat purport to be based only on his unofficial conduct, the"intended effect” of immunity would be defeated. Fitzger-ald, 457 U. S., at 756. The President's immune conductwould be subject to examination by a jury on the basis ofgenerally applicable criminal laws. Use of evidence aboutsuch conduct, even when an indictment alleges only unoffi-cial conduct, would thereby heighten the prospect that thePresident's official decisionmaking will be distorted. SeeClinton, 520 U. S., at 694, n. 19.The Government asserts that these weighty concerns canbe managed by the District Court through the use of “evi-dentiary rulings” and “jury instructions." Brief for UnitedStates 46. But such tools are unlikely to protect adequatelythe President's constitutional prerogatives. Presidentialacts frequently deal with “matters likely to ‘arouse the mostintense feelings.' Fitzgerald, 457 U. S., at 752 (quotingPierson, 386 U. S., at 554). Allowing prosecutors to ask orsuggest that the jury probe official acts for which the Pres-ident is immune would thus raise a unique risk that thejurors' deliberations will be prejudiced by their views of thePresident's policies and performance while in office. Theprosaic tools on which the Government would have courtsrely are an inadequate safeguard against the peculiar con-stitutional concerns implicated in the prosecution of a for-mer President. Cf. Nixon, 418 U. S., at 706. Although such

32TRUMP v. UNITED STATESOpinion of the Courttools may suffice to protect the constitutional rights of indi-vidual criminal defendants, the interests that underliePresidential immunity seek to protect not the Presidenthimself, but the institution of the Presidency.³IVATrump asserts a far broader immunity than the limitedone we have recognized. He contends that the indictmentmust be dismissed because the Impeachment JudgmentClause requires that impeachment and Senate convictionprecede a President's criminal prosecution. Brief for Peti-tioner 16.The text of the Clause provides little support for such anabsolute immunity. It states that an impeachment judg-ment "shall not extend further than to removal from Office,and disqualification to hold and enjoy any Office of honor,Trust or Profit under the United States." Art. I, §3, cl. 7. Itthen specifies that "the Party convicted shall neverthelessbe liable and subject to Indictment, Trial, Judgment andPunishment, according to Law." Ibid. (emphasis added).³ JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, forinstance, excluding “any mention" of the official act associated with thebribe "would hamstring the prosecution." Post, at 6 (opinion concurringin part); cf. post, at 25-27 (opinion of SOTOMAYOR, J.). But of course theprosecutor may point to the public record to show the fact that the Pres-ident performed the official act. And the prosecutor may admit evidenceof what the President allegedly demanded, received, accepted, or agreedto receive or accept in return for being influenced in the performance ofthe act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do,however, is admit testimony or private records of the President or hisadvisers probing the official act itself. Allowing that sort of evidencewould invite the jury to inspect the President's motivations for his officialactions and to second-guess their propriety. As we have explained, suchinspection would be “highly intrusive” and would "seriously cripple"" thePresident's exercise of his official duties. Fitzgerald, 457 U. S., at 745,756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at18. And such second-guessing would "threaten the independence or ef-fectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020).

Cite as: 603 U. S.(2024)33Opinion of the CourtThe Clause both limits the consequences of an impeach-ment judgment and clarifies that notwithstanding suchjudgment, subsequent prosecution may proceed. By its ownterms, the Clause does not address whether and on whatconduct a President may be prosecuted if he was never im-peached and convicted.Historical evidence likewise lends little support toTrump's position. For example, Justice Story reasoned thatwithout the Clause's clarification that “Indictment, Trial,Judgment and Punishment” may nevertheless follow Sen-ate conviction, “it might be matter of extreme doubt,whether. . . a second trial for the same offence could be had,either after an acquittal, or a conviction in the court of im-peachments." 2 J. Story, Commentaries on the Constitu-tion of the United States §780, p. 251 (1833). James Wilson,who served on the Committee that drafted the Clause andlater as a Justice of this Court, similarly concluded that ac-quittal of impeachment charges posed no bar to subsequentprosecution. See 2 Documentary History of the Ratificationof the Constitution 492 (M. Jensen ed. 1979). And contraryto Trump's contention, Alexander Hamilton did not disa-gree. The Federalist Papers on which Trump relies, seeBrief for Petitioner 17-18, concerned the checks availableagainst a sitting President. Hamilton noted that unlike"the King of Great-Britain,” the President "would be liableto be impeached” and “removed from office," and "would af-terwards be liable to prosecution and punishment.” TheFederalist No. 69, at 463; see also id., No. 77, at 520 (ex-plaining that the President is "at all times liable to im-peachment, trial, dismission from office ... and to the for-feiture of life and estate by subsequent prosecution”).Hamilton did not endorse or even consider whether the Im-peachment Judgment Clause immunizes a former Presi-dent from prosecution.The implication of Trump's theory is that a President whoevades impeachment for one reason or another during his

34TRUMP v. UNITED STATESOpinion of the Courtterm in office can never be held accountable for his criminalacts in the ordinary course of law. So if a President man-ages to conceal certain crimes throughout his Presidency,or if Congress is unable to muster the political will to im-peach the President for his crimes, then they must foreverremain impervious to prosecution.Impeachment is a political process by which Congress canremove a President who has committed “Treason, Bribery,or other high Crimes and Misdemeanors." Art. II, §4.Transforming that political process into a necessary step inthe enforcement of criminal law finds little support in thetext of the Constitution or the structure of our Government.BThe Government for its part takes a similarly broad view,contending that the President enjoys no immunity fromcriminal prosecution for any action. It maintains this viewdespite agreeing with much of our analysis.For instance, the Government does not dispute that Con-gress may not criminalize Presidential conduct within thePresident's "conclusive and preclusive” constitutional au-thority. See Tr. of Oral Arg. 133 (“[C]ore powers . . . can'tbe regulated at all, like the pardon power and veto."); seealso id., at 84-85. And it too accords protection to Presiden-tial conduct if subjecting that conduct to generally applica-ble laws would “raise serious constitutional questions re-garding the President's authority" or cause a “possibleconflict with the President's constitutional prerogatives."Application of 28 U. S. C. §458 to Presidential Appoint-ments of Federal Judges, 19 Op. OLC 350, 351–352 (1995);see Brief for United States 26-29; Tr. of Oral Arg. 78. In-deed, the Executive Branch has long held that view. TheOffice of Legal Counsel has recognized, for instance, that afederal statute generally prohibiting appointments to “anyoffice or duty in any court”” of persons within certain de-grees of consanguinity to the judges of such courts would, if

Cite as: 603 U. S.(2024)35Opinion of the Courtapplied to the President, infringe his power to appoint fed-eral judges, thereby raising a serious constitutional ques-tion. 19 Op. OLC, at 350 (quoting 28 U. S. C. §458); see id.,at 350-352. So it viewed such a statute as not applying tothe President. Likewise, it has narrowly construed a crim-inal prohibition on grassroots lobbying to avoid the consti-tutional issues that would otherwise arise, reasoning thatthe statute should not “be construed to prohibit the Presi-dent or executive branch agencies from engaging in a gen-eral open dialogue with the public on the Administration'sprograms and policies." Constraints Imposed by 18 U. S. C.§1913 on Lobbying Efforts, 13 Op. OLC 300, 304 (1989); seeid., at 304-306.The Government thus broadly agrees that the President'sofficial acts are entitled to some degree of constitutionalprotection. And with respect to the allegations in the in-dictment before us, the Government agrees that at leastsome of the alleged conduct involves official acts. See Tr. ofOral Arg. 125; cf. id., at 128.Yet the Government contends that the President shouldnot be considered immune from prosecution for those offi-cial acts. See Brief for United States 9. On the Govern-ment's view, as-applied challenges in the course of the trialsuffice to protect Article II interests, and review of a districtcourt's decisions on such challenges should be deferred un-til after trial. See Tr. of Oral Arg. 69, 79–80, 154–158. Ifthe President is instead immune from prosecution, a dis-trict court's denial of immunity would be appealable beforetrial. See Mitchell, 472 U. S., at 524-530 (explaining thatquestions of immunity are reviewable before trial becausethe essence of immunity is the entitlement not to be subjectto suit).The Government asserts that the "[r]obust safeguards"available in typical criminal proceedings alleviate the needfor pretrial review. Brief for United States 20 (boldface and

36TRUMP v. UNITED STATESOpinion of the Courtemphasis omitted). First, it points to the Justice Depart-ment's "“longstanding commitment to the impartial enforce-ment of the law," id., at 21, as well as the criminal justicesystem's further protections: grand juries, a defendant'sprocedural rights during trial, and the requirement that theGovernment prove its case beyond a reasonable doubt, id.,at 22. Next, it contends that “existing principles of statu-tory construction and as-applied constitutional challenges”adequately address the separation of powers concerns in-volved in applying generally applicable criminal laws to aPresident. Id., at 29. Finally, the Government cites certaindefenses that would be available to the President in a par-ticular prosecution, such as the public-authority defense orthe advice of the Attorney General. Id., at 29–30; see Nar-done v. United States, 302 U. S. 379, 384 (1937); Tr. of OralArg. 107-108.These safeguards, though important, do not alleviate theneed for pretrial review. They fail to address the fact thatunder our system of separated powers, criminal prohibi-tions cannot apply to certain Presidential conduct to beginwith. As we have explained, when the President acts pur-suant to his exclusive constitutional powers, Congress can-not as a structural matter-regulate such actions, andcourts cannot review them. See Part II-A, supra. And heis at least presumptively immune from prosecution for hisother official actions. See Part II-B, supra.Questions about whether the President may be held lia-ble for particular actions, consistent with the separation ofpowers, must be addressed at the outset of a proceeding.Even if the President were ultimately not found liable forcertain official actions, the possibility of an extended pro-ceeding alone may render him “unduly cautious in the dis-charge of his official duties.” Fitzgerald, 457 U. S., at 752,n. 32. Vulnerability “to the burden of a trial and to theinevitable danger of its outcome, would dampen the ardorof all but the most resolute."" Id., at 752-753, n. 32 (quoting

Cite as: 603 U. S.(2024)Opinion of the CourtGregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949) (Hand,L., C. J.)). The Constitution does not tolerate such impedi-ments to "the effective functioning of government.” Fitzger-ald, 457 U. S., at 751.As for the Government's assurances that prosecutors andgrand juries will not permit political or baseless prosecu-tions from advancing in the first place, those assurances areavailable to every criminal defendant and fail to account forthe President's “unique position in the constitutionalscheme." Id., at 749. We do not ordinarily decline to decidesignificant constitutional questions based on the Govern-ment's promises of good faith. See United States v. Stevens,559 U. S. 460, 480 (2010) ("We would not uphold an uncon-stitutional statute merely because the Government prom-ised to use it responsibly.”). Nor do we do so today.CAs for the dissents, they strike a tone of chilling doomthat is wholly disproportionate to what the Court actuallydoes today conclude that immunity extends to official dis-cussions between the President and his Attorney General,and then remand to the lower courts to determine “in thefirst instance" whether and to what extent Trump's remain-ing alleged conduct is entitled to immunity. Supra, at 24,28, 30.The principal dissent's starting premise that unlikeSpeech and Debate Clause immunity, no constitutional textsupports Presidential immunity, see post, at 4–6 (opinion ofSOTOMAYOR, J.)—is one that the Court rejected decades agoas “unpersuasive." Fitzgerald, 457 U. S., at 750, n. 31; seealso Nixon, 418 U. S., at 705–706, n. 16 (rejecting unani-mously a similar argument in the analogous executive priv-ilege context). “[A] specific textual basis has not been con-sidered a prerequisite to the recognition of immunity."Fitzgerald, 457 U. S., at 750, n. 31. Nor is that premise cor-rect. True, there is no “Presidential immunity clause" in3737

38TRUMP v. UNITED STATESOpinion of the Courtthe Constitution. But there is no "separation of powersclause" either. Seila Law, 591 U. S., at 227. Yet that doc-trine is undoubtedly carved into the Constitution's text byits three articles separating powers and vesting the Execu-tive power solely in the President. See ibid. And theCourt's prior decisions, such as Nixon and Fitzgerald, havelong recognized that doctrine as mandating certain Presi-dential privileges and immunities, even though the Consti-tution contains no explicit “provision for immunity.” Post,at 4; see Part II-B-1, supra. Neither the dissents nor theGovernment disavow any of those prior decisions. See Tr.of Oral Arg. 76–77.The principal dissent then cites the Impeachment Judg-ment Clause, arguing that it “clearly contemplates that aformer President may be subject to criminal prosecution."Post, at 6. But that Clause does not indicate whether a for-mer President may, consistent with the separation of pow-ers, be prosecuted for his official conduct in particular. Seesupra, at 32-33. And the assortment of historical sourcesthe principal dissent cites are unhelpful for the same rea-son. See post, at 6–8. As the Court has previously noted,relevant historical evidence on the question of Presidentialimmunity is of a "fragmentary character.” Fitzgerald, 457U. 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 au-thority applicable to concrete problems of executivepower"). “[T]he most compelling arguments,” therefore,"arise from the Constitution's separation of powers and theJudiciary's historic understanding of that doctrine.” Fitz-gerald, 457 U. S., at 752, n. 31.The Court's prior admonition is evident in the principaldissent's citations. Some of its cherry-picked sources do noteven discuss the President in particular. See, e.g., post, at7-8 (citing 2 Debates on the Constitution 177 (J. Elliot ed.1836); 2 J. Story, Commentaries on the Constitution of the

Cite as: 603 U. S.(2024)39Opinion of the CourtUnited States §780, pp. 250–251 (1833)). And none of themindicate whether he may be prosecuted for his official con-duct. See, e.g., post, at 6, 7, n. 2 (citing The Federalist No.69; 4 Debates on the Constitution, at 109). The principaldissent's most compelling piece of evidence consists of ex-cerpted statements of Charles Pinckney from an 1800 Sen-ate debate. See post, at 7. But those statements reflect onlythe now-discredited argument that any immunity not ex-pressly mentioned in the Constitution must not exist. See3 Records of the Federal Convention of 1787, pp. 384–385(M. Farrand ed. 1911). And Pinckney is not exactly a relia-ble authority on the separation of powers: He went on tostate on the same day that “it was wrong to give the nomi-nation of Judges to the President”—an opinion expressly re-jected by the Framers. Id., at 385. Given the Framers' de-sire for an energetic and vigorous President, the principaldissent's view that the Constitution they designed allowsall his actions to be subject to prosecution—even the exer-cise of powers it grants exclusively to him—defies credulity.Unable to muster any meaningful textual or historicalsupport, the principal dissent suggests that there is an “es-tablished understanding” that “former Presidents are an-swerable to the criminal law for their official acts." Post, at9. Conspicuously absent is mention of the fact that sincethe founding, no President has ever faced criminalcharges—let alone for his conduct in office. And accordinglyno court has ever been faced with the question of a Presi-dent's immunity from prosecution. All that our Nation'spractice establishes on the subject is silence.Coming up short on reasoning, the dissents repeatedlylevel variations of the accusation that the Court has ren-dered the President "above the law." See, e.g., post, at 1, 3,11, 12, 21, 30 (opinion of SOTOMAYOR, J.); post, at 9, 10, 11,12, 13, 19 (opinion of JACKSON, J.). As before, that "rhetor-ically chilling" contention is “wholly unjustified." Fitzger-

1040TRUMP v. UNITED STATESOpinion of the Courtald, 457 U. S., at 758, n. 41. Like everyone else, the Presi-dent is subject to prosecution in his unofficial capacity. Butunlike anyone else, the President is a branch of govern-ment, and the Constitution vests in him sweeping powersand duties. Accounting for that reality—and ensuring thatthe President may exercise those powers forcefully, as theFramers anticipated he would-does not place him abovethe law; it preserves the basic structure of the Constitutionfrom which that law derives.The dissents' positions in the end boil down to ignoringthe Constitution's separation of powers and the Court'sprecedent and instead fear mongering on the basis of ex-treme hypotheticals about a future where the President"feels empowered to violate federal criminal law." Post, at18 (opinion of SOTOMAYOR, J.); see post, at 26, 29–30; post,at 8-9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dis-sents overlook the more likely prospect of an ExecutiveBranch that cannibalizes itself, with each successive Presi-dent free to prosecute his predecessors, yet unable to boldlyand fearlessly carry out his duties for fear that he may benext. For instance, Section 371—which has been chargedin this case is a broadly worded criminal statute that cancover "any conspiracy for the purpose of impairing, ob-structing or defeating the lawful function of any depart-ment of Government." United States v. Johnson, 383 U. S.169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479(1910)). Virtually every President is criticized for insuffi-ciently enforcing some aspect of federal law (such as drug,gun, immigration, or environmental laws). An enterprisingprosecutor in a new administration may assert that a pre-vious President violated that broad statute. Without im-munity, such types of prosecutions of ex-Presidents couldquickly become routine. The enfeebling of the Presidencyand our Government that would result from such a cycle offactional strife is exactly what the Framers intended to292

Cite as: 603 U. S.(2024)41Opinion of the Courtavoid. Ignoring those risks, the dissents are instead con-tent to leave the preservation of our system of separatedpowers up to the good faith of prosecutors.Finally, the principal dissent finds it “troubling" that theCourt does not “designate any course of conduct alleged inthe indictment as private." Post, at 27. Despite the unprec-edented nature of this case, the significant constitutionalquestions that it raises, its expedited treatment in the lowercourts and in this Court, the lack of factual analysis in thelower courts, and the lack of briefing on how to categorizethe conduct alleged, the principal dissent would go aheadand declare all of it unofficial. The other dissent, mean-while, analyzes the case under comprehensive models andparadigms of its own concoction and accuses the Court ofproviding “no meaningful guidance about how to apply [the]new paradigm or how to categorize a President's conduct."Post, at 13 (opinion of JACKSON, J.). It would have us ex-haustively define every application of Presidential immun-ity. See post, at 13–14. Our dissenting colleagues exude animpressive infallibility. While their confidence may be in-spiring, the Court adheres to time-tested practices in-stead deciding what is required to dispose of this case andremanding after “revers[ing] on a threshold question,” Zi-votofsky, 566 U. S., at 201, to obtain “guidance from the lit-igants [and] the court below,” Vidal v. Elster, 602 U. S. 286,328 (2024) (SOTOMAYOR, J., concurring in judgment).VThis case poses a question of lasting significance: Whenmay a former President be prosecuted for official acts takenduring his Presidency? Our Nation has never before neededan answer. But in addressing that question today, unlikethe political branches and the public at large, we cannot af-ford to fixate exclusively, or even primarily, on present exi-gencies. In a case like this one, focusing on “transient re-sults" may have profound consequences for the separation

42TRUMP v. UNITED STATESOpinion of the Courtof powers and for the future of our Republic. Youngstown,343 U. S., at 634 (Jackson, J., concurring). Our perspectivemust be more farsighted, for “[t]he peculiar circ*mstancesof the moment may render a measure more or less wise, butcannot render it more or less constitutional." Chief JusticeJohn Marshall, A Friend of the Constitution No. V, Alexan-dria Gazette, July 5, 1819, in John Marshall's Defense ofMcCulloch v. Maryland 190-191 (G. Gunther ed. 1969).Our first President had such a perspective. In his Fare-well Address, George Washington reminded the Nationthat "a Government of as much vigour as is consistent withthe perfect security of Liberty is indispensable.” 35 Writ-ings of George Washington 226 (J. Fitzpatrick ed. 1940). Agovernment "too feeble to withstand the enterprises of fac-tion," he warned, could lead to the "frightful despotism" of“alternate domination of one faction over another, sharp-ened by the spirit of revenge.” Id., at 226–227. And theway to avoid that cycle, he explained, was to ensure thatgovernment powers remained "properly distributed and ad-justed." Id., at 226.It is these enduring principles that guide our decision inthis case. The President enjoys no immunity for his unoffi-cial acts, and not everything the President does is official.The President is not above the law. But Congress may notcriminalize the President's conduct in carrying out the re-sponsibilities of the Executive Branch under the Constitu-tion. And the system of separated powers designed by theFramers has always demanded an energetic, independentExecutive. The President therefore may not be prosecutedfor exercising his core constitutional powers, and he is enti-tled, at a minimum, to a presumptive immunity from pros-ecution for all his official acts. That immunity appliesequally to all occupants of the Oval Office, regardless of pol-itics, policy, or party.The judgment of the Court of Appeals for the D. C. Circuitis vacated, and the case is remanded for further proceedings

Cite as: 603 U. S.(2024)43Opinion of the Courtconsistent with this opinion.It is so ordered.

Cite as: 603 U. S.(2024)1THOMAS, J., concurringSUPREME COURT OF THE UNITED STATESNo. 23-939DONALD J. TRUMP, PETITIONER v.UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT[July 1, 2024]JUSTICE THOMAS, concurring.Few things would threaten our constitutional order morethan criminally prosecuting a former President for his offi-cial acts. Fortunately, the Constitution does not permit usto chart such a dangerous course. As the Court forcefullyexplains, the Framers “deemed an energetic executive es-sential to . . . the security of liberty,” and our “system of sep-arated powers" accordingly insulates the President fromprosecution for his official acts. Ante, at 10, 42 (internalquotation marks omitted). To conclude otherwise wouldhamstring the vigorous Executive that our Constitution en-visions. "While the separation of powers may prevent usfrom righting every wrong, it does so in order to ensure thatwe do not lose liberty.” Morrison v. Olson, 487 U. S. 654,710–711 (1988) (Scalia, J., dissenting).I write separately to highlight another way in which thisprosecution may violate our constitutional structure. Inthis case, the Attorney General purported to appoint a pri-vate citizen as Special Counsel to prosecute a former Presi-dent on behalf of the United States. But, I am not sure thatany office for the Special Counsel has been “established byLaw," as the Constitution requires. Art. II, §2, cl. 2. By re-quiring that Congress create federal offices “by Law," theConstitution imposes an important check against the Pres-ident he cannot create offices at his pleasure. If there is

2TRUMP v. UNITED STATESTHOMAS, J., concurringno law establishing the office that the Special Counsel oc-cupies, then he cannot proceed with this prosecution. A pri-vate citizen cannot criminally prosecute anyone, let alone aformer President.No former President has faced criminal prosecution forhis acts while in office in the more than 200 years since thefounding of our country. And, that is so despite numerouspast Presidents taking actions that many would argue con-stitute crimes. If this unprecedented prosecution is to pro-ceed, it must be conducted by someone duly authorized todo so by the American people. The lower courts should thusanswer these essential questions concerning the SpecialCounsel's appointment before proceeding.IThe Constitution sets forth how an office may be createdand how it may be filled. The Appointments Clause pro-vides:“[The President] shall nominate, and by and with theAdvice and Consent of the Senate, shall appoint Am-bassadors, other public Ministers and Consuls, Judgesof the supreme Court, and all other Officers of theUnited States, whose Appointments are not herein oth-erwise provided for, and which shall be established byLaw: but the Congress may by Law vest the Appoint-ment of such inferior Officers, as they think proper, inthe President alone, in the Courts of Law, or in theHeads of Department.” Art. II, §2, cl. 2.The constitutional process for filling an office is plainfrom this text. The default manner for appointing “Officersof the United States” is nomination by the President andconfirmation by the Senate. Ibid. “But the Clause providesa limited exception for the appointment of inferior officers:Congress may ‘by Law' authorize” one of three specified ac-

Cite as: 603 U. S.(2024)3THOMAS, J., concurringtors "to appoint inferior officers without the advice and con-sent of the Senate." NLRB v. SW General, Inc., 580 U. S.288, 312 (2017) (THOMAS, J., concurring). As relevant here,a "Hea[d] of Department”—such as the Attorney General-is one such actor that Congress may authorize "by Law" toappoint inferior officers without senatorial confirmation.Art. II, §2, cl. 2.Before the President or a Department Head can appointany officer, however, the Constitution requires that the un-derlying office be “established by Law."¹ The Constitutionitself creates some offices, most obviously that of the Presi-dent and Vice President. See §1. Although the Constitutioncontemplates that there will be "other Officers of the UnitedStates, whose Appointments are not herein otherwise pro-vided for," it clearly requires that those offices “shall be es-tablished by Law." §2, cl. 2. And, “established by law” re-fers to an office that Congress creates “by statute." Luciav. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring);see also United States v. Maurice, 26 F. Cas. 1211, 1213(No. 15,747) (CC Va. 1823) (Marshall, C. J.).The limitation on the President's power to create officesgrew out of the Founders' experience with the English mon-archy. The King could wield significant power by both cre-ating and filling offices as he saw fit. He was “emphaticallyand truly styled the fountain of honor. He not only ap-point[ed] to all offices, but [could] create offices." The Fed-eralist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W.Blackstone, Commentaries on the Laws of England 271 (T.1 Although a Government official may also be a "nonofficer employe[e],"I set aside that category because it is difficult to see how an official exer-cising the Department of Justice's duties to enforce the criminal law byleading a prosecution could be anything but an officer. Lucia v. SEC,585 U. S. 237, 253, n. 1 (2018) (THOMAS, J., concurring); see SW General,580 U. S., at 314 (opinion of THOMAS, J.). If the Special Counsel were anonofficer employee, the constitutional problems with this prosecutionwould only be more serious. For now, I assume without deciding that theSpecial Counsel is an officer.

4TRUMP v. UNITED STATESTHOMAS, J., concurringCooley ed. 1871) (“[A]s the king may create new titles, somay he create new offices"). That ability to create officesraised many “concerns about the King's ability to amass toomuch power"; the King could both create a multitude of of-fices and then fill them with his supporters. J. Mascott,Who Are "Officers of the United States"? 70 Stan. L. Rev.443, 492 (2018) (Mascott); see also G. Wood, The Creationof the American Republic 1776–1787, p. 143 (1969) (describ-ing "the power of appointment to offices" as "the most insid-ious and powerful weapon of eighteenth-century despot-ism"); T. Paine, Common Sense (1776), reprinted in TheGreat Works of Thomas Paine 11 (1877) (explaining that"the crown . . . derives its whole consequence merely frombeing the giver of places and pensions”). In fact, one of thegrievances raised by the American colonists in declaringtheir independence was that the King “ha[d] erected a mul-titude of New Offices, and sent hither swarms of Officers toharass our people and eat out their substance." Declarationof Independence ¶12. The Founders thus drafted the Con-stitution with "evidently a great inferiority in the power ofthe President, in this particular, to that of the British king.”The Federalist No. 69, at 421.The Founders broke from the monarchial model by givingthe President the power to fill offices (with the Senate's ap-proval), but not the power to create offices. They did so by"imposing the constitutional requirement that new officerpositions be established by Law' rather than through aKing-like custom of the head magistrate unilaterally creat-ing new offices." Mascott 492-493 (footnote omitted); seealso 1 Annals of Cong. 581-582 (1789) (“The powers relativeto offices are partly Legislative and partly Executive. TheLegislature creates the office, defines the powers, limits itsduration, and annexes a compensation"); see also ibid. (de-scribing the power to “designat[e] the man to fill the office"as "of an Executive nature”). The Constitution thus “giv[es]

Cite as: 603 U. S.(2024)5THOMAS, J., concurringCongress broad authority to establish and organize the Ex-ecutive Branch." Seila Law LLC v. Consumer FinancialProtection Bureau, 591 U. S. 197, 266 (2020) (KAGAN, J.,concurring in judgment in part and dissenting in part). Bykeeping the ability to create offices out of the President'shands, the Founders ensured that no President could uni-laterally create an army of officer positions to then fill withhis supporters. Instead, our Constitution leaves it in thehands of the people's elected representatives to determinewhether new executive offices should exist.Longstanding practice from the founding to today com-ports with this original understanding that Congress mustcreate offices by law. The First Congress, for instance, rou-tinely and explicitly created offices by statute. See, e.g.,§35, 1 Stat. 92–93 (creating the offices of Attorney Generaland U. S. Attorney for each district); see also §§1–2, id., at50 (creating offices of Secretary of War and his Chief Clerk);ch. 12, §1, id., at 65 (creating offices within the Departmentof Treasury for Secretary of the Treasury, a Comptroller,Auditor, Treasurer, Register, and Assistant to the Secre-tary). Still today, Congress creates the offices that the Ex-ecutive Branch may fill. For example, Congress has createdseveral offices within the Department of Justice, includingthe offices of the Attorney General, Deputy Attorney Gen-eral, Associate Attorney General, Solicitor General, and As-sistant Attorneys General. See 28 U. S. C. §§503–506. Forsome agencies, Congress has also granted the agency headthe power to "appoint such officers and employees . . . as arenecessary to execute the functions vested in him.” 7U. S. C. §610(a) (Department of Agriculture); see also, e.g.,20 U. S. C. §3461 (Department of Education); 42 U. S. C.§913 (Department of Health and Human Services).In the past, Congress has at times expressly created of-fices similar to the position now occupied by the SpecialCounsel. Congress created an office for a “special counsel❞

6TRUMP v. UNITED STATESTHOMAS, J., concurringto investigate the Teapot Dome Scandal and pursue prose-cutions. See ch. 16, 43 Stat. 6. And, a statute provided for“the appointment of an independent counsel” that we ad-dressed in Morrison v. Olson. See 28 U. S. C. §592. Thatstatute lapsed, and Congress has not since reauthorized theappointment of an independent counsel. See $599.2We cannot ignore the importance that the Constitutionplaces on who creates a federal office. To guard against tyr-anny, the Founders required that a federal office be “estab-lished by Law." As James Madison cautioned, “[i]f there isany point in which the separation of the Legislative and Ex-ecutive powers ought to be maintained with greater cau-tion, it is that which relates to officers and offices." 1 An-nals of Cong. 581. If Congress has not reached a consensusthat a particular office should exist, the Executive lacks thepower to create and fill an office of his own accord.IIIt is difficult to see how the Special Counsel has an office“established by Law," as required by the Constitution.When the Attorney General appointed the Special Counsel,he did not identify any statute that clearly creates such anoffice. See Dept. of Justice Order No. 5559-2022 (Nov. 18,2022). Nor did he rely on a statute granting him the au-thority to appoint officers as he deems fit, as the heads ofsome other agencies have.³ See supra, at 5. Instead, theAttorney General relied upon several statutes of a generalnature. See Order No. 5559–2022 (citing 28 U. S. C. §§509,510, 515, 533).2 To be sure, a few Presidents have appointed “special prosecutors"without pointing to any express statutory authorization. See generallyT. Eastland, Ethics, Politics and the Independent Counsel 8-9 (1989) (de-scribing past uses of special prosecutors). But, this Court had no occa-sion to review the constitutionality of those prosecutors' authority.3 In fact, Congress gave the Attorney General the power to appoint “ad-ditional officers . . . as he deems necessary"—but, only for the Bureau ofPrisons. 18 U. S. C. §4041.

Cite as: 603 U. S.(2024)7THOMAS, J., concurringNone of the statutes cited by the Attorney General ap-pears to create an office for the Special Counsel, and espe-cially not with the clarity typical of past statutes used forthat purpose. See, e.g., 43 Stat. 6 (“[T]he President is fur-ther authorized and directed to appoint . . . special counselwho shall have charge and control of the prosecution of suchlitigation"). Sections 509 and 510 are generic provisionsconcerning the functions of the Attorney General and hisability to delegate authority to “any other officer, employee,or agency." Section 515 contemplates an “attorney speciallyappointed by the Attorney General under law," thereby sug-gesting that such an attorney's office must have alreadybeen created by some other law. (Emphasis added.) As for$533, it provides that “[t]he Attorney General may appointofficials ... to detect and prosecute crimes against theUnited States." (Emphasis added.) It is unclear whetheran "official" is equivalent to an “officer” as used by the Con-stitution. See Lucia, 585 U. S., at 254–255 (opinion ofTHOMAS, J.) (considering the meaning of “officer"). Regard-less, this provision would be a curious place for Congress tohide the creation of an office for a Special Counsel. It isplaced in a chapter concerning the Federal Bureau of Inves-tigation (§§531-540d), not the separate chapters concern-ing U. S. Attorneys (§§541-550) or the now-lapsed Inde-pendent Counsel (§§591–599).4To be sure,the Court gave passing reference to the citedstatutes as supporting the appointment of the Special Pros-ecutor in United States v. Nixon, 418 U. S. 683, 694 (1974),but it provided no analysis of those provisions' text. Per-haps there is an answer for why these statutes create anoffice for the Special Counsel. But, before this consequen-4 Regulations remain on the books that contemplate an "outside" Spe-cial Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create afederal office without underlying statutory authority to do so.

8TRUMP v. UNITED STATESTHOMAS, J., concurringtial prosecution proceeds, we should at least provide a ful-some explanation of why that is so.Even if the Special Counsel has a valid office, questionsremain as to whether the Attorney General filled that officein compliance with the Appointments Clause. For example,it must be determined whether the Special Counsel is aprincipal or inferior officer. If the former, his appointmentis invalid because the Special Counsel was not nominatedby the President and confirmed by the Senate, as principalofficers must be. Art. II, §2, cl. 2. Even if he is an inferiorofficer, the Attorney General could appoint him withoutPresidential nomination and senatorial confirmation only if“Congress. . . by law vest[ed] the Appointment” in the At-torney General as a "Hea[d] of Department." Ibid. So, theSpecial Counsel's appointment is invalid unless a statutecreated the Special Counsel's office and gave the AttorneyGeneral the power to fill it "by Law."Whether the Special Counsel's office was “established byLaw" is not a trifling technicality. If Congress has notreached a consensus that a particular office should exist,the Executive lacks the power to unilaterally create andthen fill that office. Given that the Special Counsel pur-ports to wield the Executive Branch's power to prosecute,the consequences are weighty. Our Constitution's separa-tion of powers, including its separation of the powers to cre-ate and fill offices, is "the absolutely central guarantee of ajust Government” and the liberty that it secures for us all.Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There isno prosecution that can justify imperiling it.***In this case, there has been much discussion about ensur-ing that a President “is not above the law." But, as theCourt explains, the President's immunity from prosecutionfor his official acts is the law. The Constitution provides for

Cite as: 603 U. S.(2024)9THOMAS, J., concurring"an energetic executive," because such an Executive is "es-sential to . . . the security of liberty." Ante, at 10 (internalquotation marks omitted). Respecting the protections thatthe Constitution provides for the Office of the Presidencysecures liberty. In that same vein, the Constitution alsosecures liberty by separating the powers to create and filloffices. And, there are serious questions whether the Attor-ney General has violated that structure by creating an of-fice of the Special Counsel that has not been established bylaw. Those questions must be answered before this prose-cution can proceed. We must respect the Constitution's sep-aration of powers in all its forms, else we risk rendering itsprotection of liberty a parchment guarantee.

Cite as: 603 U. S.(2024)1BARRETT, J., concurring in partSUPREME COURT OF THE UNITED STATESNo. 23-939DONALD J. TRUMP, PETITIONER v.UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT[July 1, 2024]JUSTICE BARRETT, concurring in part.For reasons I explain below, I do not join Part III-C of theCourt's opinion. The remainder of the opinion is consistentwith my view that the Constitution prohibits Congress fromcriminalizing a President's exercise of core Article II powersand closely related conduct. That said, I would have framedthe underlying legal issues differently. The Court describesthe President's constitutional protection from certain pros-ecutions as an “immunity.” As I see it, that term is short-hand for two propositions: The President can challenge theconstitutionality of a criminal statute as applied to officialacts alleged in the indictment, and he can obtain interlocu-tory review of the trial court's ruling.There appears to be substantial agreement on the firstpoint. Like the Court, the dissenting Justices and the Spe-cial Counsel all accept that some prosecutions of a Presi-dent's official conduct may be unconstitutional. See post, at16 (opinion of SOTOMAYOR, J.); Brief for United States 24-30. As for interlocutory review, our precedent recognizesthat resolving certain legal issues before trial is necessaryto safeguard important constitutional interests-here, Ex-ecutive Branch independence on matters that Article II as-signs to the President's discretion.Properly conceived, the President's constitutional protec-tion from prosecution is narrow. The Court leaves open the

2TRUMP v. UNITED STATESBARRETT, J., concurring in partpossibility that the Constitution forbids prosecuting thePresident for any official conduct, instructing the lowercourts to address that question in the first instance. Seeante, at 14. I would have answered it now. Though I agreethat a President cannot be held criminally liable for conductwithin his "conclusive and preclusive” authority and closelyrelated acts, ante, at 8-9, the Constitution does not vestevery exercise of executive power in the President's sole dis-cretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.579, 637 (1952) (Jackson, J., concurring).¹ Congress hasconcurrent authority over many Government functions,and it may sometimes use that authority to regulate thePresident's official conduct, including by criminal statute.Article II poses no barrier to prosecution in such cases.I would thus assess the validity of criminal charges pred-icated on most official acts—i.e., those falling outside of thePresident's core executive power-in two steps. The firstquestion is whether the relevant criminal statute reachesthe President's official conduct. Not every broadly wordedstatute does. For example, §956 covers conspiracy to mur-der in a foreign country and does not expressly exclude thePresident's decision to, say, order a hostage rescue missionabroad. 18 U. S. C. §956(a). The underlying murder stat-ute, however, covers only "unlawful” killings. §1111. TheOffice of Legal Counsel has interpreted that phrase to re-flect a public-authority exception for official acts involvingthe military and law enforcement. Memorandum from D.Barron, Acting Assistant Atty. Gen., to E. Holder, Atty.1 Consistent with our separation of powers precedent, I agree with theCourt that the supervision and removal of appointed, high ranking Jus-tice Department officials falls within the President's core executivepower. See Seila Law LLC v. Consumer Financial Protection Bureau,591 U. S. 197, 213–215 (2020); ante, at 19-21. I do not understand theCourt to hold that all exercises of the Take Care power fall within thecore executive power. Cf. post, at 24 (SOTOMAYOR, J., dissenting). I agreewith the dissent that the Constitution does not justify such an expansiveview. Ibid.

Cite as: 603 U. S.(2024)3BARRETT, J., concurring in partGen., Re: Applicability of Federal Criminal Laws and theConstitution to Contemplated Lethal Operations AgainstShaykh Anwar al-Aulaqi 12-19 (July 16, 2010); see alsoBrief for United States 29-30; post, at 16, and n. 3(SOTOMAYOR, J., dissenting). I express no view about themerits of that interpretation, but it shows that the thresh-old question of statutory interpretation is a nontrivial step.If the statute covers the alleged official conduct, the pros-ecution may proceed only if applying it in the circ*mstancesposes no "dange[r] of intrusion on the authority and func-tions of the Executive Branch."" Ante, at 14 (quoting Nixonv. Fitzgerald, 457 U. S. 731, 754 (1982)). On remand, thelower courts will have to apply that standard to various al-legations involving the President's official conduct. 2 Someof those allegations raise unsettled questions about thescope of Article II power, see ante, at 21-28, but others donot. For example, the indictment alleges that the President"asked the Arizona House Speaker to call the legislatureinto session to hold a hearing” about election fraud claims.App. 193. The President has no authority over state legis-latures or their leadership, so it is hard to see how prose-2 This analysis is unnecessary for allegations involving the President'sprivate conduct because the Constitution offers no protection from pros-ecution of acts taken in a private capacity. Ante, at 15. Sorting privatefrom official conduct sometimes will be difficult-but not always. Takethe President's alleged attempt to organize alternative slates of electors.See, e.g., App. 208. In my view, that conduct is private and therefore notentitled to protection. See post, at 27-28 (SOTOMAYOR, J., dissenting).The Constitution vests power to appoint Presidential electors in theStates. Art. II, §1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578,588-589 (2020). And while Congress has a limited role in that process,see Art. II, §1, cls. 3-4, the President has none. In short, a President hasno legal authority—and thus no official capacity—to influence how theStates appoint their electors. I see no plausible argument for barringprosecution of that alleged conduct.

4TRUMP v. UNITED STATESBARRETT, J., concurring in partcuting him for crimes committed when dealing with the Ar-izona House Speaker would unconstitutionally intrude onexecutive power.3This two-step analysis-considering first whether thestatute applies and then whether its application to the par-ticular facts is constitutional-is similar to the approachthat the Special Counsel presses in this Court. Brief forUnited States 24-30. It is also our usual approach to con-sidering the validity of statutes in situations raising a con-stitutional question. See, e.g., Seila Law LLC v. ConsumerFinancial Protection Bureau, 591 U. S. 197, 213, 229(2020). An important difference in this context is that thePresident is entitled to an interlocutory appeal of the trialcourt's ruling. See ante, at 36. A criminal defendant in fed-eral court normally must wait until after trial to seek re-view of the trial court's refusal to dismiss charges. SeeUnited States v. MacDonald, 435 U. S. 850, 853–854 (1978);see also 18 U. S. C. §3731. But where trial itself threatenscertain constitutional interests, we have treated the trialcourt's resolution of the issue as a "final decision" for pur-poses of appellate jurisdiction. MacDonald, 435 U. S., at854-856; see 28 U. S. C. §1291; see also §1257.3 The Court has sometimes applied an avoidance canon when inter-preting a statute that would interfere with the President's prerogatives.See, e.g., Franklin v. Massachusetts, 505 U. S. 788, 800-801 (1992); Pub-lic Citizen v. Dept. of Justice, 491 U. S. 440, 465-467 (1989); see also Salev. Haitian Centers Council, Inc., 509 U. S. 155, 188 (1993). The Office ofLegal Counsel has advocated for a clear-statement rule if applying a stat-ute would "raise serious constitutional questions relating to the Presi-dent's constitutional authority." See Application of 28 U. S. C. §458 toPresidential Appointments of Federal Judges, 19 Op. OLC 350, 350-357(1995). In my view, neither canon applies in this circ*mstance. Courtsshould instead determine the statute's ordinary meaning and, if it coversthe alleged official acts, assess whether prosecution would intrude on thePresident's constitutional authority. See Public Citizen, 491 U. S., at481-482 (Kennedy, J., concurring in judgment) (declining to apply theavoidance canon and concluding that the Federal Advisory CommitteeAct is unconstitutional as applied).

Cite as: 603 U. S.(2024)5BARRETT, J., concurring in partThe present circ*mstances fall squarely within our prec-edent authorizing interlocutory review. When a Presidentmoves to dismiss an indictment on Article II grounds, he"makes no challenge whatsoever to the merits of the chargeagainst him." Abney v. United States, 431 U. S. 651, 659(1977) (allowing interlocutory appeal of rejection of doublejeopardy defense). He instead contests whether the Consti-tution allows Congress to criminalize the alleged conduct, aquestion that is “collateral to, and separable from” his guiltor innocence. Ibid. Moreover, the President's ExecutiveBranch authority "would be significantly undermined if ap-pellate review" of the constitutional challenge “were post-poned until after conviction and sentence.” Id., at 660; seealso Helstoski v. Meanor, 442 U. S. 500, 507 (1979) (allow-ing interlocutory appeal of refusal to dismiss an indictmenton Speech or Debate Clause grounds). The prospect of atrial court erroneously allowing the prosecution to proceedposes a unique danger to the “independence of the Execu-tive Branch." Trump v. Vance, 591 U. S. 786, 800 (2020).As the Court explains, the possibility that the Presidentwill be made to defend his official conduct before a jury afterhe leaves office could distort his decisions while in office.Ante, at 13-14, 36. These Article II concerns do not insulatethe President from prosecution. But they do justify inter-locutory review of the trial court's final decision on the Pres-ident's as-applied constitutional challenge. See Helstoski,442 U. S., at 507-508; Abney, 431 U. S., at 659-661; see alsoReply Brief for United States in No. 23–624, p. 5 (agreeingthat the President "has a right to an interlocutory appealfrom the district court's rejection of his immunity defense").I understand most of the Court's opinion to be consistentwith these views. I do not join Part III-C, however, whichholds that the Constitution limits the introduction of pro-tected conduct as evidence in a criminal prosecution of aPresident, beyond the limits afforded by executive privilege.See ante, at 30-32. I disagree with that holding; on this

6TRUMP v. UNITED STATESBARRETT, J., concurring in partscore, I agree with the dissent. See post, at 25-27(SOTOMAYOR, J., dissenting). The Constitution does not re-quire blinding juries to the circ*mstances surrounding con-duct for which Presidents can be held liable. Consider abribery prosecution—a charge not at issue here but one thatprovides a useful example. The federal bribery statute for-bids any public official to seek or accept a thing of value “foror because of any official act.” 18 U. S. C. §201(c). The Con-stitution, of course, does not authorize a President to seekor accept bribes, so the Government may prosecute him ifhe does so. See Art. II, §4 (listing “Bribery" as an impeach-able offense); see also Memorandum from L. Silberman,Deputy Atty. Gen., to R. Burress, Office of the President,Re: Conflict of Interest Problems Arising Out of the Presi-dent's Nomination of Nelson A. Rockefeller To Be Vice Pres-ident Under the Twenty-Fifth Amendment to the Constitu-tion 5 (Aug. 28, 1974) (suggesting that the federal briberystatute applies to the President). Yet excluding from trialany mention of the official act connected to the bribe wouldhamstring the prosecution. To make sense of charges alleg-ing a quid pro quo, the jury must be allowed to hear aboutboth the quid and the quo, even if the quo, standing alone,could not be a basis for the President's criminal liability.I appreciate the Court's concern that allowing into evi-dence official acts for which the President cannot be heldcriminally liable may prejudice the jury. Ante, at 31. Butthe rules of evidence are equipped to handle that concernon a case-by-case basis. Most importantly, a trial court canexclude evidence of the President's protected conduct “if itsprobative value is substantially outweighed by a danger ofunfair prejudice” or “confusing the issues." Fed. RuleEvid. 403; see also Rule 105 (requiring the court to "restrictthe evidence to its proper scope and instruct the jury ac-cordingly"). The balance is more likely to favor admittingevidence of an official act in a bribery prosecution, for in-stance, than one in which the protected conduct has little

Cite as: 603 U. S.(2024)7BARRETT, J., concurring in partconnection to the charged offense. And if the evidencecomes in, the trial court can instruct the jury to consider itonly for lawful purposes. See Richardson v. Marsh, 481U. S. 200, 206–207 (1987). I see no need to depart from thatfamiliar and time-tested procedure here.***The Constitution does not insulate Presidents from crim-inal liability for official acts. But any statute regulating theexercise of executive power is subject to a constitutionalchallenge. See, e.g., Collins v. Yellen, 594 U. S. 220, 235-236 (2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194(2012); Free Enterprise Fund v. Public Company AccountingOversight Bd., 561 U. S. 477, 487-488 (2010). A criminalstatute is no exception. Thus, a President facing prosecu-tion may challenge the constitutionality of a criminal stat-ute as applied to official acts alleged in the indictment. Ifthat challenge fails, however, he must stand trial.

Cite as: 603 U. S.(2024)1SOTOMAYOR, J., dissentingSUPREME COURT OF THE UNITED STATESNo. 23-939DONALD J. TRUMP, PETITIONER v.UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT[July 1, 2024]JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN andJUSTICE JACKSON join, dissenting.Today's decision to grant former Presidents criminal im-munity reshapes the institution of the Presidency. It makesa mockery of the principle, foundational to our Constitutionand system of Government, that no man is above the law.Relying on little more than its own misguided wisdom aboutthe need for "bold and unhesitating action” by the Presi-dent, ante, at 3, 13, the Court gives former President Trumpall the immunity he asked for and more. Because our Con-stitution does not shield a former President from answeringfor criminal and treasonous acts, I dissent.IThe indictment paints a stark portrait of a President des-perate to stay in power.In the weeks leading up to January 6, 2021, then-President Trump allegedly “spread lies that there had beenoutcome-determinative fraud in the election and that hehad actually won,” App. 181, Indictment ¶2, despite being“notified repeatedly" by his closest advisers "that his claimswere untrue," id., at 188, ¶11.When dozens of courts swiftly rejected these claims,Trump allegedly “pushed officials in certain states to ignorethe popular vote; disenfranchise millions of voters; dismiss

2TRUMP v. UNITED STATESSOTOMAYOR, J., dissentinglegitimate electors; and ultimately, cause the ascertain-ment of and voting by illegitimate electors” in his favor. Id.,at 185-186, 10(a). It is alleged that he went so far as tothreaten one state election official with criminal prosecu-tion if the official did not “find 11,780 votes” Trump neededto change the election result in that state. Id., at 202,131(f). When state officials repeatedly declined to act out-side their legal authority and alter their state election pro-cesses, Trump and his co-conspirators purportedly devel-oped a plan to disrupt and displace the legitimate electioncertification process by organizing fraudulent slates of elec-tors. See id., at 208-209, ¶¶53–54.As the date of the certification proceeding neared, Trumpallegedly also sought to "use the power and authority of theJustice Department” to bolster his knowingly false claimsof election fraud by initiating “sham election crime investi-gations" and sending official letters “falsely claim[ing] thatthe Justice Department had identified significant concernsthat may have impacted the election outcome” while"falsely present[ing] the fraudulent electors as a valid alter-native to the legitimate electors." Id., at 186–187, ¶10(c).When the Department refused to do as he asked, Trumpturned to the Vice President. Initially, he sought to per-suade the Vice President “to use his ceremonial role at theJanuary 6 certification proceeding to fraudulently alter theelection results." Id., at 187, ¶ 10(d). When persuasionfailed, he purportedly “attempted to use a crowd of support-ers that he had gathered in Washington, D. C., to pressurethe Vice President to fraudulently alter the election re-sults." Id., at 221, 186.Speaking to that crowd on January 6, Trump “falselyclaimed that, based on fraud, the Vice President could alterthe outcome of the election results." Id., at 229, ¶ 104(a).When this crowd then “violently attacked the Capitol andhalted the proceeding,” id., at 188, ¶10(e), Trump allegedly

Cite as: 603 U. S.(2024)3SOTOMAYOR, J., dissentingdelayed in taking any step to rein in the chaos he had un-leashed. Instead, in a last desperate ploy to hold ontopower, he allegedly "attempted to exploit the violence andchaos at the Capitol" by pressuring lawmakers to delay thecertification of the election and ultimately declare him thewinner. Id., at 233, ¶119. That is the backdrop againstwhich this case comes to the Court.IIThe Court now confronts a question it has never had toanswer in the Nation's history: Whether a former Presidentenjoys immunity from federal criminal prosecution. Themajority thinks he should, and so it invents an atextual,ahistorical, and unjustifiable immunity that puts the Pres-ident above the law.The majority makes three moves that, in effect, com-pletely insulate Presidents from criminal liability. First,the majority creates absolute immunity for the President'sexercise of "core constitutional powers." Ante, at 6. Thisholding is unnecessary on the facts of the indictment, andthe majority's attempt to apply it to the facts expands theconcept of core powers beyond any recognizable bounds. Inany event, it is quickly eclipsed by the second move, whichis 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 officialpower for any purpose, even the most corrupt, is immunefrom prosecution. That is just as bad as it sounds, and it isbaseless. Finally, the majority declares that evidence con-cerning acts for which the President is immune can play norole in any criminal prosecution against him. See ante, at30-32. That holding, which will prevent the Governmentfrom using a President's official acts to prove knowledge orintent in prosecuting private offenses, is nonsensical.Argument by argument, the majority invents immunity

4TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingthrough brute force. Under scrutiny, its arguments crum-ble. To start, the majority's broad “official acts” immunityis inconsistent with text, history, and established under-standings of the President's role. See Part III, infra. More-over, it is deeply wrong, even on its own functionalist terms.See Part IV, infra. Next, the majority's “core” immunity isboth unnecessary and misguided. See Part V, infra. Fur-thermore, the majority's illogical evidentiary holding is un-precedented. See Part VI, infra. Finally, this majority'sproject will have disastrous consequences for the Presi-dency and for our democracy. See Part VII, infra.IIIThe main takeaway of today's decision is that all of aPresident's official acts, defined without regard to motive orintent, are entitled to immunity that is “at least ... pre-sumptive,” and quite possibly “absolute." Ante, at 14.Whenever the President wields the enormous power of hisoffice, the majority says, the criminal law (at least pre-sumptively) cannot touch him. This official-acts immunityhas “no firm grounding in constitutional text, history, orprecedent." Dobbs v. Jackson Women's Health Organiza-tion, 597 U. S. 215, 280 (2022). Indeed, those "standardgrounds for constitutional decisionmaking,” id., at 279, allpoint in the opposite direction. No matter how you look atit, the majority's official-acts immunity is utterly indefensi-ble.AThe majority calls for a "careful assessment of the scopeof Presidential power under the Constitution." Ante, at 5.For the majority, that "careful assessment” does not involvethe Constitution's text. I would start there.The Constitution's text contains no provision for immun-ity from criminal prosecution for former Presidents. Ofcourse, "the silence of the Constitution on this score is not

Cite as: 603 U. S.(2024)5SOTOMAYOR, J., dissentingdispositive." United States v. Nixon, 418 U. S. 683, 706,n. 16 (1974). Insofar as the majority rails against the no-tion that a “specific textual basis”” is required, ante, at 37(quoting Nixon v. Fitzgerald, 457 U. S. 731, 750, n. 31(1982)), it is attacking an argument that has not been madehere. The omission in the text of the Constitution is worthnoting, however, for at least three reasons.First, the Framers clearly knew how to provide for im-munity from prosecution. They did provide a narrow im-munity for legislators in the Speech or Debate Clause. SeeArt. I, §6, cl. 1 ("Senators and Representatives . . . shall inall Cases, except Treason, Felony and Breach of the Peace,be privileged from Arrest during their Attendance at theSession of their respective Houses, and in going to and re-turning from the same; and for any Speech or Debate in ei-ther House, they shall not be questioned in any otherPlace"). They did not extend the same or similar immunityto Presidents.Second, "some state constitutions at the time of the Fram-ing specifically provided ‘express criminal immunities' tositting governors." Brief for Scholars of Constitutional Lawas Amici Curiae 4 (quoting S. Prakash, Prosecuting andPunishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)).The Framers chose not to include similar language in theConstitution to immunize the President. If the Framers"had wanted to create some constitutional privilege toshield the President ... from criminal indictment," theycould have done so. Memorandum from R. Rotunda to K.Starr re: Indictability of the President 18 (May 13, 1998).They did not.Third, insofar as the Constitution does speak to this ques-tion, it actually contemplates some form of criminal liabilityfor former Presidents. The majority correctly rejectsTrump's argument that a former President cannot be pros-ecuted unless he has been impeached by the House and con-victed by the Senate for the same conduct. See ante, at 32-

6TRUMP v. UNITED STATESSOTOMAYOR, J., dissenting34; Part IV-C, infra. The majority ignores, however, thatthe Impeachment Judgment Clause cuts against its own po-sition. That Clause presumes the availability of criminalprocess as a backstop by establishing that an official im-peached and convicted by the Senate “shall nevertheless beliable and subject to Indictment, Trial, Judgment and Pun-ishment, according to Law." Art. I, §3, cl. 7 (emphasisadded). That Clause clearly contemplates that a formerPresident may be subject to criminal prosecution for thesame conduct that resulted (or could have resulted) in animpeachment judgment—including conduct such as “Brib-ery," Art. II, §4, which implicates official acts almost by def-inition.¹BAware of its lack of textual support, the majority pointsout that this Court has “recognized Presidential immunitiesand privileges rooted in the constitutional tradition of theseparation of powers and supported by our history."" Ante,at 10 (quoting Fitzgerald, 457 U. S., at 749). That is true,as far as it goes. Nothing in our history, however, supportsthe majority's entirely novel immunity from criminal pros-ecution for official acts.The historical evidence that exists on Presidential im-munity from criminal prosecution cuts decisively against it.For instance, Alexander Hamilton wrote that former Presi-dents would be "liable to prosecution and punishment in theordinary course of law.” The Federalist No. 69, p. 452 (J.Harv. Lib. ed. 2009). For Hamilton, that was an importantdistinction between “the king of Great Britain,” who was"sacred and inviolable," and the “President of the UnitedStates," who "would be amenable to personal punishment¹ Article II, §4, provides: "The President, Vice President and all CivilOfficers of the United States, shall be removed from Office on Impeach-ment for and Conviction of, Treason, Bribery, or other high Crimes andMisdemeanors."

Cite as: 603 U. S.(2024)7SOTOMAYOR, J., dissentingand disgrace." Id., at 458. In contrast to the king, the Pres-ident should be subject to “personal responsibility" for hisactions, “stand[ing] upon no better ground than a governorof New York, and upon worse ground than the governors ofMaryland and Delaware," whose State Constitutions gavethem some immunity. Id., at 452.At the Constitutional Convention, James Madison, whowas aware that some state constitutions provided gover-nors immunity, proposed that the Convention “conside[r]what privileges ought to be allowed to the Executive.” 2Records of the Federal Convention of 1787, p. 503 (M. Far-rand ed. 1911). There is no record of any such discussion.Ibid. Delegate Charles Pinckney later explained that “[t]heConvention which formed the Constitution well knew" that"no subject had been more abused than privilege,” and so it"determined to . . . limi[t] privilege to what was necessary,and no more." 3 id., at 385. “No privilege . . . was intendedfor [the] Executive." Ibid.²Other commentators around the time of the Founding ob-served that federal officials had no immunity from prosecu-tion, drawing no exception for the President. James Wilsonrecognized that federal officers who use their official powersto commit crimes “may be tried by their country; and if theircriminality is established, the law will punish. A grand jurymay present, a petty jury may convict, and the judges willpronounce the punishment." 2 Debates on the Constitution177 (J. Elliot ed. 1836). A few decades later, Justice Storyevinced the same understanding. He explained that, when2 To note, as the majority does, see ante, at 39, that this Court has rec-ognized civil immunities arguably inconsistent with this view is not tosay that Pinckney was wrong about what the Framers had “intended."Indeed, Pinckney's contemporaries shared the same view during the rat-ification debates. See, e.g., 4 Debates on the Constitution 109 (J. Ellioted. 1836) (J. Iredell) ("If the President does a single act by which thepeople are prejudiced, he is punishable himself. If he commits anycrime, he is punishable by the laws of his country").

8TRUMP v. UNITED STATESSOTOMAYOR, J., dissentinga federal official commits a crime in office, “it is indispensa-ble, that provision should be made, that the common tribu-nals of justice should be at liberty to entertain jurisdictionof the offence, for the purpose of inflicting, the common pun-ishment applicable to unofficial offenders.” 2 Commen-taries on the Constitution of the United States $780,pp. 250-251 (1833). Without a criminal trial, he explained,"the grossest official offenders might escape without anysubstantial punishment, even for crimes, which would sub-ject their fellow citizens to capital punishment.” Id., at 251.This historical evidence reinforces that, from the very be-ginning, the presumption in this Nation has always beenthat no man is free to flout the criminal law. The majorityfails to recognize or grapple with the lack of historical evi-dence for its new immunity. With nothing on its side of theledger, the most the majority can do is claim that the his-torical evidence is a wash. See ante, at 38-39. It claimsthat the Court previously has described the “relevant his-torical evidence on the question of Presidential immunity”as "fragmentary"" and not worthy of consideration. Ante,at 38 (quoting Fitzgerald, 457 U. S., at 752, n. 31). Yet theCourt has described only the evidence regarding “the Pres-ident's immunity from damages liability” as “fragmentary.”Fitzgerald, 457 U. S., at 751–752, n. 31 (emphasis added).Moreover, far from dismissing that evidence as irrelevant,the Fitzgerald Court was careful to note that “[t]he best his-torical evidence clearly support[ed]” the immunity fromdamages liability that it recognized, and it relied in part onthat historical evidence to overcome the lack of any textualbasis for its immunity. Id., at 152, n. 31. The majority ig-nores this reliance. It seems history matters to this Courtonly when it is convenient. See, e.g., New York State Rifle& Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022); Dobbs, 597U. S. 215.

Cite as: 603 U. S.(2024)9SOTOMAYOR, J., dissentingCOur country's history also points to an established under-standing, shared by both Presidents and the Justice De-partment, that former Presidents are answerable to thecriminal law for their official acts. Cf. Chiafalo v. Washing-ton, 591 U. S. 578, 592–593 (2020) ("Long settled and es-tablished practice' may have 'great weight in a proper in-terpretation of constitutional provisions"" (quoting ThePocket Veto Case, 279 U. S. 655, 689 (1929))). Consider Wa-tergate, for example. After the Watergate tapes revealedPresident Nixon's misuse of official power to obstruct theFederal Bureau of Investigation's investigation of the Wa-tergate burglary, President Ford pardoned Nixon. BothFord's pardon and Nixon's acceptance of the pardon neces-sarily "rested on the understanding that the former Presi-dent faced potential criminal liability." Brief for UnitedStates 15; see also Public Papers of the Presidents, GeraldR. Ford, Vol. 1, Sept. 8, 1974, p. 103 (1975) (granting formerPresident Nixon a “full, free, and absolute pardon . . . for alloffenses against the United States which he ... has com-mitted or may have committed or taken part in during” hisPresidency); R. Nixon, Statement by Former PresidentRichard Nixon to P. Buchen, Counsel to President Ford,p. 1 (Sept. 8, 1974) (accepting “full and absolute pardon forany charges which might be brought against me for actionstaken during the time I was President of the UnitedStates").Subsequent special counsel and independent counsel in-vestigations have also operated on the assumption that theGovernment can criminally prosecute former Presidents fortheir official acts, where they violate the criminal law. See,e.g., 1 L. Walsh, Final Report of the Independent Counselfor Iran/Contra Matters: Investigations and Prosecutions445 (1993) (“[B]ecause a President, and certainly a pastPresident, is subject to prosecution . . . the conduct of Pres-

1010TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingident Reagan in the Iran/contra matter was reviewed by In-dependent Counsel against the applicable statutes. It wasconcluded that [his] conduct fell well short of criminalitywhich could be successfully prosecuted").Indeed, Trump's own lawyers during his second impeach-ment trial assured Senators that declining to impeachTrump for his conduct related to January 6 would not leavehim “in any way above the law.” 2 Proceedings of the U. S.Senate in the Impeachment Trial of Donald John Trump, S.Doc. 117-2, p. 144 (2021). They insisted that a former Pres-ident "is like any other citizen and can be tried in a court oflaw." Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump'simpeachment counsel stating that "no former officeholderis immune" from the judicial process “for investigation,prosecution, and punishment"); id., at 322-323 (Trump'simpeachment counsel stating: “If my colleagues on this sideof the Chamber actually think that President Trump com-mitted a criminal offense . . . [a]fter he is out of office, yougo and arrest him"). Now that Trump is facing criminalcharges for those acts, though, the tune has changed. Beingtreated "like any other citizen” no longer seems so appeal-ing.In sum, the majority today endorses an expansive visionof Presidential immunity that was never recognized by theFounders, any sitting President, the Executive Branch, oreven President Trump's lawyers, until now. Settled under-standings of the Constitution are of little use to the majorityin this case, and so it ignores them.IVASetting aside this evidence, the majority announces thatformer Presidents are “absolute[ly],” or “at least pre-sumptive[ly],” immune from criminal prosecution for all oftheir official acts. Ante, at 14 (emphasis omitted). The ma-jority purports to keep us in suspense as to whether this

Cite as: 603 U. S.(2024)11SOTOMAYOR, J., dissentingimmunity is absolute or presumptive, but it quickly givesup the game. It explains that, “[a]t a minimum, the Presi-dent must... be immune from prosecution for an officialact unless the Government can show that applying a crim-inal prohibition to that act would pose no ‘dangers of intru-sion on the authority and functions of the ExecutiveBranch." Ibid. (emphasis added). No dangers, none at all.It is hard to imagine a criminal prosecution for a President'sofficial acts that would pose no dangers of intrusion on Pres-idential authority in the majority's eyes. Nor should thatbe the standard. Surely some intrusions on the Executivemay be “justified by an overriding need to promote objec-tives within the constitutional authority of Congress."Nixon v. Administrator of General Services, 433 U. S. 425,443 (1977). Other intrusions may be justified by the "pri-mary constitutional duty of the Judicial Branch to do justicein criminal prosecutions." United States v. Nixon, 418 U. S.683, 707 (1974). According to the majority, however, anyincursion on Executive power is too much. When presump-tive immunity is this conclusive, the majority's indecisionas to "whether [official-acts] immunity must be absolute” orwhether, instead, “presumptive immunity is sufficient,"ante, at 6, hardly matters.Maybe some future opinion of this Court will decide thatpresumptive immunity is “sufficient,” ibid., and replace themajority's ironclad presumption with one that makes thedifference between presumptive and absolute immunitymeaningful. Today's Court, however, has replaced a pre-sumption of equality before the law with a presumptionthat the President is above the law for all of his official acts.Quick on the heels of announcing this astonishinglybroad official-acts immunity, the majority assures us that aformer President can still be prosecuted for “unofficial acts."Ante, at 15. Of course he can. No one has questioned theability to prosecute a former President for unofficial (other-

12TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingwise known as private) acts. Even Trump did not claim im-munity for such acts and, as the majority acknowledges,such an immunity would be impossible to square with Clin-ton v. Jones, 520 U. S. 681 (1997). See ante, at 15. Thisunremarkable proposition is no real limit on today's deci-sion. It does not hide the majority's embrace of the mostfar-reaching view of Presidential immunity on offer.In fact, the majority's dividing line between "official" and"unofficial" conduct narrows the conduct considered "unof-ficial” almost to a nullity. It says that whenever the Presi-dent acts in a way that is “not manifestly or palpably be-yond [his] authority,”” he is taking official action. Ante, at17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC2023)). It then goes a step further: “In dividing official fromunofficial conduct, courts may not inquire into the Presi-dent's motives." Ante, at 18. It is one thing to say that mo-tive is irrelevant to questions regarding the scope of civilliability, but it is quite another to make it irrelevant toquestions regarding criminal liability. Under that rule, anyuse of official power for any purpose, even the most corruptpurpose indicated by objective evidence of the most corruptmotives and intent, remains official and immune. Underthe majority's test, if it can be called a test, the category ofPresidential action that can be deemed “unofficial" is des-tined to be vanishingly small.Ultimately, the majority pays lip service to the idea that"[t]he President, charged with enforcing federal criminallaws, is not above them,” ante, at 13–14, but it then pro-ceeds to place former Presidents beyond the reach of thefederal criminal laws for any abuse of official power.BSo how does the majority get to its rule? With text, his-tory, and established understanding all weighing against it,the majority claims just one arrow in its quiver: the balanc-ing test in Nixon v. Fitzgerald, 457 U. S. 731 (1983). Yet

Cite as: 603 U. S.(2024)13SOTOMAYOR, J., dissentingeven that test cuts against it. The majority concludes thatofficial-acts immunity "is required to safeguard the inde-pendence and effective functioning of the ExecutiveBranch,” ante, at 14, by rejecting that Branch's own protes-tations that such immunity is not at all required and wouldin 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 thatthe Fitzgerald Court never would have countenanced.In Fitzgerald, plaintiff A. Ernest Fitzgerald sued then-former President Nixon for money damages. He claimedthat, while in office, Nixon had been involved in unlawfullyfiring him from his government job. See 457 U. S., at 733–741. The question for the Court was whether a former Pres-ident had immunity from such a civil suit. The Court ex-plained that it was "settled law that the separation-of-powers doctrine does not bar every exercise of jurisdictionover the President of the United States." Id., at 753–754.To determine whether a particular type of suit against aPresident (or former President) could be heard, a court"must balance the constitutional weight of the interest to beserved against the dangers of intrusion on the authorityand functions of the Executive Branch." Id., at 754. TheCourt explained that, “[w]hen judicial action is needed toserve broad public interests—as when the Court acts, notin derogation of the separation of powers, but to maintaintheir proper balance, or to vindicate the public interest inan ongoing criminal prosecution—the exercise of jurisdic-tion has been held warranted." Ibid. (citations omitted).On the facts before it, the Court concluded that a "merelyprivate suit for damages based on a President's official acts"did not serve those interests. Ibid. The Court reasonedthat the "visibility of [the President's] office and the effectof his actions on countless people" made him an easy targetfor civil suits that “frequently could distract [him] from his

14TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingpublic duties." Id., at 753. The public interest in such pri-vate civil suits, the Court concluded, was comparativelyweak. See id., at 754, n. 37 (“[T]here is a lesser public in-terest in actions for civil damages than, for example, incriminal prosecutions"). Therefore, the Court held that aformer President was immune from such suits. Ibid.In the context of a federal criminal prosecution of a for-mer President, however, the danger to the functioning ofthe Executive Branch is much reduced. Further, as everymember of the Fitzgerald Court acknowledged, see Part IV-B-2, infra, the public interest in a criminal prosecution isfar weightier. Applying the Fitzgerald balancing hereshould yield the opposite result. Instead, the majorityelides any difference between civil and criminal immunity,granting Trump the same immunity from criminal prosecu-tion that Nixon enjoyed from an unlawful termination suit.That is plainly wrong.1The majority relies almost entirely on its view of the dan-ger of intrusion on the Executive Branch, to the exclusionof the other side of the balancing test. Its analysis rests ona questionable conception of the President as incapable ofnavigating the difficult decisions his job requires whilestaying within the bounds of the law. It also ignores thefact that he receives robust legal advice on the lawfulnessof his actions.The majority says that the danger “of intrusion on theauthority and functions of the Executive Branch" posed bycriminally prosecuting a former President for official con-duct "is akin to, indeed greater than, what led us to recog-nize absolute Presidential immunity from civil damages li-ability—that the President would be chilled from taking the‘bold and unhesitating action' required of an independentExecutive." Ante, at 13 (quoting Fitzgerald, 457 U. S., at745). It is of course important that the President be able to

Cite as: 603 U. S.(2024)1566666SOTOMAYOR, J., dissenting““deal fearlessly and impartially with” the duties of his of-fice." Ante, at 10 (quoting Fitzgerald, 457 U. S., at 752). Ifevery action the President takes exposes him personally tovexatious private litigation, the possibility of hamstringingPresidential decisionmaking is very real. Yet there aremany facets of criminal liability, which the majority dis-counts, that make it less likely to chill Presidential actionthan the threat of civil litigation.First, in terms of probability, the threat of criminal lia-bility is much smaller. In Fitzgerald, the threat of vexa-tious civil litigation loomed large. The Court observed that,given the "visibility of his office and the effect of his actionson countless people, the President would be an easily iden-tifiable target for suits for civil damages." Id., at 753. Alt-hough "the effect of [the President's] actions on countlesspeople' could result in untold numbers of private plaintiffssuing for damages based on any number of Presidentialacts" in the civil context, the risk in the criminal context is"only that a former President may face one federal prosecu-tion, in one jurisdiction, for each criminal offense allegedlycommitted while in office." 2023 WL 8359833, *9 (DC, Dec.1, 2023) (quoting Fitzgerald, 457 U. S., at 753). The major-ity's bare assertion that the burden of exposure to federalcriminal prosecution is more limiting to a President thanthe burden of exposure to civil suits does not make it true,and it is not persuasive.Second, federal criminal prosecutions require "robustprocedural safeguards" not found in civil suits. 2023 WL8359833, *10. The criminal justice system has layers of pro-tections that "filter out insubstantial legal claims," whereascivil litigation lacks “analogous checks." Cheney v. UnitedStates Dist. Court for D. C., 542 U. S. 367, 386 (2004). Tostart, Justice Department policy requires scrupulous andimpartial prosecution, founded on both the facts and thelaw. See generally Dept. of Justice, Justice Manual §9–27.000 (Principles of Federal Prosecution) (June 2023). The

16TRUMP v. UNITED STATESSOTOMAYOR, J., dissentinggrand jury provides an additional check on felony prosecu-tions, acting as a "buffer or referee between the Govern-ment and the people," to ensure that the charges are well-founded. United States v. Williams, 504 U. S. 36, 47 (1992);see also Harlow v. Fitzgerald, 457 U. S. 800, 826, n. 6 (1982)(Burger, C. J., dissenting) (“[A] criminal prosecution cannotbe commenced absent careful consideration by a grand juryat the request of a prosecutor; the same check is not presentwith respect to the commencement of civil suits in whichadvocates are subject to no realistic accountability”).If the prosecution makes it past the grand jury, then theformer President still has all the protections our systemprovides to criminal defendants. If the former Presidenthas an argument that a particular statute is unconstitu-tional as applied to him, then he can move to dismiss thecharges on that ground. Indeed, a former President is likelyto have legal arguments that would be unavailable to theaverage criminal defendant. For example, he may be ableto rely on a public-authority exception from particular crim-inal laws, or an advice-of-the-Attorney-General defense,see Tr. of Oral Arg. 107-108.43 See Nardone v. United States, 302 U. S. 379, 384 (1937) (explainingthat public officers may be “impliedly excluded from [statutory] languageembracing all persons” if reading the statute to include such officers"would work obvious absurdity as, for example, the application of a speedlaw to a policeman pursuing a criminal or the driver of a fire engine re-sponding to an alarm"); see also Memorandum from D. Barron, ActingAssistant Atty. Gen., Office of Legal Counsel, to E. Holder, Atty. Gen.,Re: Applicability of Federal Criminal Laws and the Constitution to Con-templated Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July16, 2010) (interpreting criminal statute prohibiting unlawful killings "toincorporate the public authority justification, which can render lethal ac-tion carried out by a government official lawful in some circ*mstances").4 Trump did not raise those defenses in this case, and the immunitythat the majority has created likely will obviate the need to raise themin future cases. Yet those defenses would have protected former Presi-dents from unwarranted criminal prosecutions much more preciselythan the blanket immunity the majority creates today.

Cite as: 603 U. S.(2024)17SOTOMAYOR, J., dissentingIf the case nonetheless makes it to trial, the Governmentwill bear the burden of proving every element of the allegedcrime beyond a reasonable doubt to a unanimous jury of theformer President's fellow citizens. See United States v.Gaudin, 515 U. S. 506, 510 (1995). If the Government man-ages to overcome even that significant hurdle, then the for-mer President can appeal his conviction, and the appellatereview of his claims will be “particularly meticulous.””Trump v. Vance, 591 U. S. 786, 809 (2020) (quoting Nixon,418 U. S., at 702). He can ultimately seek this Court's re-view, and if past practice (including in this case) is any in-dication, he will receive it.In light of these considerable protections, the majority'sfear that "bare allegations of malice,”” ante, at 18 (altera-tion omitted), would expose former Presidents to trial andconviction is unfounded. Bare allegations of malice wouldnot make it out of the starting gate. Although a private civilaction may be brought based on little more than “intensefeelings,"" ante, at 11 (quoting Fitzgerald, 457 U. S., at 752),a federal criminal prosecution is made of firmer stuff. Cer-tainly there has been, on occasion, great feelings of animos-ity between incoming and outgoing Presidents over thecourse of our country's history. Yet it took allegations asgrave as those at the center of this case to have the firstfederal criminal prosecution of a former President. Thatrestraint is telling.Third, because of longstanding interpretations by the Ex-ecutive Branch, every sitting President has so far believedhimself under the threat of criminal liability after his termin office and nevertheless boldly fulfilled the duties of hisoffice. The majority insists that the threat of criminal sanc-tions is “more likely to distort Presidential decisionmakingthan the potential payment of civil damages.” Ante, at 13.If that is right, then that distortion has been shaping Pres-idential decisionmaking since the earliest days of the Re-public. Although it makes sense to avoid "diversion of the

18TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingPresident's attention during the decisionmaking process"with "needless worry," Clinton, 520 U. S., at 694, n. 19, onewonders why requiring some small amount of his attention(or his legal advisers' attention) to go towards complyingwith federal criminal law is such a great burden. If thePresident follows the law that he must "take Care" to exe-cute, Art. II, §3, he has not been rendered “unduly cau-tious,"" ante, at 10 (quoting Fitzgerald, 457 U. S., at 752,n. 32). Some amount of caution is necessary, after all. It isa far greater danger if the President feels empowered to vi-olate federal criminal law, buoyed by the knowledge of fu-ture immunity. I am deeply troubled by the idea, inherentin the majority's opinion, that our Nation loses somethingvaluable when the President is forced to operate within theconfines of federal criminal law.So what exactly is the majority worried about deterringwhen it expresses great concern for the "deterrent” effectthat "the threat of trial, judgment, and imprisonment"would pose? Ante, at 13. It cannot possibly be the deter-rence of acts that are truly criminal. Nor does it make sensefor the majority to wring its hands over the possibility thatPresidents might stop and think carefully before taking ac-tion that borders on criminal. Instead, the majority's mainconcern could be that Presidents will be deterred from tak-ing necessary and lawful action by the fear that their suc-cessors might pin them with a baseless criminal prosecu-tion—a prosecution that would almost certainly be doomedto 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 Na-tion's Presidents. As this Court has said before in the con-text of criminal proceedings, “[t]he chance that now andthen there may be found some timid soul who will takecounsel of his fears and give way to their repressive poweris too remote and shadowy to shape the course of justice.""Nixon, 418 U. S., at 712, n. 20 (quoting Clark v. UnitedStates, 289 U. S. 1, 16 (1933)). The concern that countless

Cite as: 603 U. S.(2024)1999SOTOMAYOR, J., dissenting(and baseless) civil suits would hamper the Executive mayhave been justified in Fitzgerald, but a well-founded federalcriminal prosecution poses no comparable danger to thefunctioning of the Executive Branch.2At the same time, the public interest in a federal criminalprosecution of a former President is vastly greater than thepublic interest in a private individual's civil suit. All nineJustices in Fitzgerald explicitly recognized that distinction.The five-Justice majority noted that there was a greaterpublic interest “in criminal prosecutions" than in "actionsfor civil damages." 457 U. S., at 754, n. 37. Chief JusticeBurger's concurrence accordingly emphasized that the ma-jority's immunity was “limited to civil damages claims,” ra-ther than "criminal prosecution." Id., at 759-760. The fourdissenting Justices agreed that a “contention that the Pres-ident is immune from criminal prosecution in the courts," ifever made, would not "be credible." Id., at 780 (White, J.,dissenting). At the very least, the Fitzgerald Court did notexpect that its balancing test would lead to the same out-come in the criminal context.The public's interest in prosecution is transparent: a fed-eral prosecutor herself acts on behalf of the United States.Even the majority acknowledges that the "[f]ederal crimi-nal laws seek to redress ‘a wrong to the public' as a whole,not just ‘a wrong to the individual,”” ante, at 13 (quotingHuntington v. Attrill, 146 U. S. 657, 668 (1892)), such thatthere is “a compelling ‘public interest in fair and effectivelaw enforcement,”” ante, at 13 (quoting Vance, 591 U. S., at808). Indeed, “our historic commitment to the rule of law"is "nowhere more profoundly manifest than in our view that. . . ‘guilt shall not escape or innocence suffer."" Nixon, 418U. S., at 708–709 (quoting Berger v. United States, 295 U. S.78, 88 (1935)).The public interest in criminal prosecution is particularly

20TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingstrong with regard to officials who are granted some degreeof civil immunity because of their duties. It is in those caseswhere the public can see that officials exercising power un-der public trust remain on equal footing with their fellowcitizens under the criminal law. See, e.g., O'Shea v. Little-ton, 414 U. S. 488, 503 (1974) (“[W]e have never held thatthe performance of the duties of judicial, legislative, or ex-ecutive officers, requires or contemplates the immunizationof otherwise criminal deprivations of constitutionalrights"); Dennis v. Sparks, 449 U. S. 24, 31 (1980) (“[J]udi-cial immunity was not designed to insulate the judiciaryfrom all aspects of public accountability. Judges are im-mune from §1983 damages actions, but they are subject tocriminal prosecutions as are other citizens"); Imbler v.Pachtman, 424 U. S. 409, 428-429 (1976) ("We emphasizethat the [civil] immunity of prosecutors . . . does not leavethe public powerless to deter misconduct or to punish thatwhich occurs. This Court has never suggested that the pol-icy considerations which compel civil immunity for certaingovernmental officials also place them beyond the reach ofthe criminal law. Even judges, cloaked with absolute civilimmunity for centuries, could be punished criminally”).The public interest in the federal criminal prosecution ofa former President alleged to have used the powers of hisoffice to commit crimes may be greater still.“[T]he Presi-dent . . . represent[s] all the voters in the Nation," and hispowers are given by the people under our Constitution. An-derson v. Celebrezze, 460 U. S. 780, 795 (1983). When Pres-idents use the powers of their office for personal gain or aspart of a criminal scheme, every person in the country hasan interest in that criminal prosecution. The majority over-looks that paramount interest entirely.Finally, the question of federal criminal immunity for aformer President “involves a countervailing Article II con-sideration absent in Fitzgerald": recognizing such an im-

Cite as: 603 U. S.(2024)21SOTOMAYOR, J., dissentingmunity "would frustrate the Executive Branch's enforce-ment of the criminal law." Brief for United States 19. ThePresident is, of course, entrusted with "supervisory andpolicy responsibilities of utmost discretion and sensitivity.""Ante at 10 (quoting Fitzgerald, 457 U. S., at 750). One ofthe most important is “enforcement of federal law,” as “it isthe President who is charged constitutionally to ‘take Carethat the Laws be faithfully executed."" Id., at 750 (quotingArt. II, §3). The majority seems to think that allowing for-mer Presidents to escape accountability for breaking thelaw while disabling the current Executive from prosecutingsuch violations somehow respects the independence of theExecutive. It does not. Rather, it diminishes that inde-pendence, exalting occupants of the office over the office it-self. There is a twisted irony in saying, as the majoritydoes, that the person charged with “tak[ing] Care that theLaws be faithfully executed" can break them with impunity.In the case before us, the public interest and countervail-ing Article II interest are particularly stark. The public in-terest in this criminal prosecution implicates both “[t]heExecutive Branch's interest in upholding Presidential elec-tions and vesting power in a new President under the Con-stitution" as well as "the voters' interest in democraticallyselecting their President." 91 F. 4th 1173, 1195 (CADC2024) (per curiam). It also, of course, implicates Congress'sown interest in regulating conduct through the criminallaw. Cf. Fitzgerald, 457 U. S., at 749, n. 27 (noting that thecase did not involve “affirmative action by Congress"). Yetthe majority believes that a President's anxiety over prose-cution overrides the public's interest in accountability andnegates the interests of the other branches in carrying outtheir constitutionally assigned functions. It is, in fact, themajority's position that “boil[s] down to ignoring the Con-stitution's separation of powers." Ante, at 40.

22TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingCFinally, in an attempt to put some distance between itsofficial-acts immunity and Trump's requested immunity,the majority insists that “Trump asserts a far broader im-munity than the limited one [the majority has] recognized."Ante, at 32. If anything, the opposite is true. The only partof Trump's immunity argument that the majority rejects isthe idea that “the Impeachment Judgment Clause requiresthat impeachment and Senate conviction precede a Presi-dent's criminal prosecution.” Ibid. That argument is obvi-ously wrong. See ante, at 32–34. Rejecting it, however,does not make the majority's immunity narrower thanTrump's. Inherent in Trump's Impeachment JudgmentClause argument is the idea that a former President whowas impeached in the House and convicted in the Senatefor crimes involving his official acts could then be prose-cuted in court for those acts. See Brief for Petitioner 22("The Founders thus adopted a carefully balanced approachthat permits the criminal prosecution of a former Presidentfor his official acts, but only if that President is first im-peached by the House and convicted by the Senate"). Byextinguishing that path to overcoming immunity, howevernonsensical it might be, the majority arrives at an official-acts immunity even more expansive than the one Trumpargued for. On the majority's view (but not Trump's), a for-mer President whose abuse of power was so egregious andso offensive even to members of his own party that he wasimpeached in the House and convicted in the Senate stillwould be entitled to “at least presumptive” criminal im-munity for those acts.VSeparate from its official-acts immunity, the majority rec-ognizes absolute immunity for “conduct within [the Presi-dent's] exclusive sphere of constitutional authority." Ante,at 9. Feel free to skip over those pages of the majority's

Cite as: 603 U. S.(2024)23SOTOMAYOR, J., dissentingopinion. With broad official-acts immunity covering thefield, this ostensibly narrower immunity serves little pur-pose. In any event, this case simply does not turn on con-duct within the President's “exclusive sphere of constitu-tional authority,” and the majority's attempt to apply a coreimmunity of its own making expands the concept of "coreconstitutional powers," ante, at 6, beyond any recognizablebounds.The idea of a narrow core immunity might have some in-tuitive appeal, in a case that actually presented the issue.If the President's power is “conclusive and preclusive” on agiven subject, then Congress should not be able to "ac[t]upon the subject." Youngstown Sheet & Tube Co. v. Sawyer,343 U. S. 579, 638 (1952) (Jackson, J., concurring). In hisYoungstown concurrence, Justice Robert Jackson positedthat the President's "power of removal in executive agen-cies" seemed to fall within this narrow category. Ibid., n. 4.Other decisions of this Court indicate that the pardonpower also falls in this category, see United States v. Klein,13 Wall. 128, 147 (1872) (“To the executive alone is in-trusted the power of pardon; and it is granted withoutlimit"), as does the power to recognize foreign countries, seeZivotofsky v. Kerry, 576 U. S. 1, 32 (2015) (holding that thePresident has "exclusive power. . . to control recognition de-terminations").In this case, however, the question whether a formerPresident enjoys a narrow immunity for the “exercise of hiscore constitutional powers,” ante, at 6, has never been atissue, and for good reason: Trump was not criminally in-dicted for taking actions that the Constitution places in theunassailable core of Executive power. He was not charged,for example, with illegally wielding the Presidency's pardonpower or veto power or appointment power or even removalpower. Instead, Trump was charged with a conspiracy tocommit fraud to subvert the Presidential election. It is truethat the detailed indictment in this case alleges that Trump

2424TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingthreatened to remove an Acting Attorney General whowould not carry out his scheme. See, e.g., App. 216–217,Indictment ¶¶74, 77. Yet it is equally clear that the Gov-ernment does not seek to “impose criminal liability on the[P]resident for exercising or talking about exercising theappointment and removal power." Tr. of Oral Arg. 127. Ifthat were the majority's concern, it could simply have saidthat the Government cannot charge a President's threat-ened use of the removal power as an overt act in the con-spiracy. It says much more.The core immunity that the majority creates will insulatea considerably larger sphere of conduct than the narrowcore of "conclusive and preclusive" powers that the Courtpreviously has recognized. The first indication comes whenthe majority includes the President's broad duty to "takeCare that the Laws be faithfully executed”” among the corefunctions for which a former President supposedly enjoysabsolute immunity. Ante, at 20 (quoting Art. II, §3). Thatexpansive view of core power will effectively insulate allsorts of noncore conduct from criminal prosecution. Werethere any question, consider how the majority applies itsnewly minted core immunity to the allegations in this case.It concludes that “Trump is ... absolutely immune fromprosecution for” any “conduct involving his discussions withJustice Department officials.” Ante, at 21. That conceptionof core immunity expands the “conclusive and preclusive"category beyond recognition, foreclosing the possibility ofprosecution for broad swaths of conduct. Under that viewof core powers, even fabricating evidence and insisting theDepartment use it in a criminal case could be covered. Themajority's conception of “core” immunity sweeps far morebroadly than its logic, borrowed from Youngstown, shouldallow.The majority tries to assuage any concerns about itsmade-up core immunity by suggesting that the Government

Cite as: 603 U. S.(2024)25SOTOMAYOR, J., dissentingagrees with it. See ante, at 34. That suggestion will sur-prise the Government. To say, as the Government did, thata "small core of exclusive official acts” such as “the pardonpower, the power to recognize foreign nations, the power toveto 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 im-munizing any and all conduct conceivably related to the ma-jority's broad array of supposedly "core" powers. The Gov-ernment in fact advised this Court to “leav[e] potentiallymore difficult questions" about the scope of any immunity"that might arise on different facts for decision if they areever presented." Brief for United States 45. That wouldhave made sense. The indictment here does not pose anythreat of impermissibly criminalizing acts within the Pres-ident's "conclusive and preclusive” authority. Perhaps forthis reason, even Trump discouraged consideration of "anarrower scope of immunity,” claiming that such an im-munity "would be nearly impossible to fashion, and wouldcertainly involve impractical line-drawing problems inevery application." Brief for Petitioner 43–44.When forced to wade into thorny separation-of-powersdisputes, this Court's usual practice is to "confine the opin-ion only to the very questions necessary to decision of thecase." Dames & Moore v. Regan, 453 U. S. 654, 661 (1981).There is plenty of peril and little value in crafting a coreimmunity doctrine that Trump did not seek and that rightlyhas no application to this case.VINot content simply to invent an expansive criminal im-munity for former Presidents, the majority goes a dramaticand unprecedented step further. It says that acts for whichthe President is immune must be redacted from the narra-tive of even wholly private crimes committed while in office.They must play no role in proceedings regarding private

26TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingcriminal acts. See ante, at 30-32.Even though the majority's immunity analysis purportsto leave unofficial acts open to prosecution, its draconianapproach to official-acts evidence deprives these prosecu-tions of any teeth. If the former President cannot be heldcriminally liable for his official acts, those acts should stillbe admissible to prove knowledge or intent in criminal pros-ecutions of unofficial acts. For instance, the majority strug-gles with classifying whether a President's speech is in hiscapacity as President (official act) or as a candidate (unoffi-cial act). Imagine a President states in an official speechthat he intends to stop a political rival from passing legis-lation that he opposes, no matter what it takes to do so (of-ficial act). He then hires a private hitman to murder thatpolitical rival (unofficial act). Under the majority's rule, themurder indictment could include no allegation of the Presi-dent's public admission of premeditated intent to supportthe mens rea of murder. That is a strange result, to say theleast.5The majority's extraordinary rule has no basis in law.Consider the First Amendment context. Although the FirstAmendment prohibits criminalizing most speech, it "doesnot prohibit the evidentiary use of speech," including its use"to prove motive or intent.” Wisconsin v. Mitchell, 508 U. S.476, 489 (1993). Evidentiary rulings and limiting instruc-tions can ensure that evidence concerning official acts is"considered only for the proper purpose for which it was ad-mitted." Huddleston v. United States, 485 U. S. 681, 691-692 (1988). The majority has no coherent explanation as to5 The majority suggests, in a footnote, that a “prosecutor may point tothe public record to show the fact that the President performed the offi-cial act," so long as the prosecutor does not “invite the jury to inspect"the act in any way. Ante, at 32, n. 3. Whatever that suggestion is sup-posed to accomplish, it does not salvage the majority's nonsensical evi-dentiary rule.

Cite as: 603 U. S.(2024)27222SOTOMAYOR, J., dissentingwhy these protections that are sufficient in every other con-text would be insufficient here. It simply asserts that itwould be "untenable” and would deprive immunity of its“intended effect.’ Ante, at 31 (quoting Fitzgerald, 457U. S., at 756). The majority hazards an explanation thatthe use of official-acts evidence will “raise a unique risk thatthe jurors' deliberations will be prejudiced by their views ofthe President's policies and performance while in office."Ante, at 31. That “unique risk,” however, is not a productof introducing official-acts evidence. It is simply the riskinvolved in any suit against a former President, includingthe private-acts prosecutions the majority says it would al-low.VIIToday's decision to grant former Presidents immunity fortheir official acts is deeply wrong. As troubling as this crim-inal immunity doctrine is in theory, the majority's applica-tion of the doctrine to the indictment in this case is perhapseven more troubling. In the hands of the majority, this newofficial-acts immunity operates as a one-way ratchet.First, the majority declares all of the conduct involvingthe Justice Department and the Vice President to be officialconduct, see ante, at 19–24, yet it refuses to designate anycourse of conduct alleged in the indictment as private, de-spite concessions from Trump's counsel.6 Trump's counselconceded, for example, that the allegation that Trump6The majority protests that it is “adher[ing] to time-tested practices"by "deciding what is required to dispose of this case and remanding" tolower courts to sort out the details. Ante, at 41. Yet it implicitly acknowl-edges that it reaches far beyond what any lower court considered or anyparty briefed by designating certain conduct official in the first instance.See ibid. (noting "the lack of factual analysis in the lower courts, and thelack of briefing on how to categorize the conduct alleged"). In reachingout to shield some conduct as official while refusing to recognize any con-duct as unofficial, the majority engages in judicial activism, not judicialrestraint.

28TRUMP v. UNITED STATESSOTOMAYOR, J., dissenting“turned to a private attorney who was willing to spreadknowingly false claims of election fraud to spearhead hischallenges to the election results” “sounds private.” Tr. ofOral Arg. 29. He likewise conceded that the allegation thatTrump “conspired with another private attorney whocaused 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'scounsel explaining that it is not "disputed" that such con-duct is “unofficial”). Again, when asked about allegationsthat “[t]hree private actors. . . helped implement a plan tosubmit fraudulent slates of presidential electors to obstructthe certification proceeding, and [Trump] and a co-conspira-tor attorney directed that effort,” Trump's counsel concededthe alleged conduct was "private." Id., at 29-30. Only themajority thinks that organizing fraudulent slates of elec-tors might qualify as an official act of the President, seeante, at 24-28, or at least an act so "interrelated" with otherallegedly 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 themin today's decision.Second, the majority designates certain conduct immunewhile refusing to recognize anything as prosecutable. Itshields large swaths of conduct involving the Justice De-partment with immunity, see ante, at 19-21; see also PartV, supra, but it does not give an inch in the other direction.The majority admits that the Vice President's responsibility"presiding over the Senate”” is “not an “executive branch"function," and it further admits that the President “playsno direct constitutional or statutory role" in the counting ofelectoral votes. Ante, at 23-24. Yet the majority refuses toconclude that Trump lacks immunity for his alleged at-tempts to "enlist the Vice President to use his ceremonialrole at the January 6 certification proceeding to fraudu-lently alter the election results." App. 187, Indictment

Cite as: 603 U. S.(2024)2929SOTOMAYOR, J., dissenting¶10(d). Instead, it worries that a prosecution for this con-duct might make it harder for the President to use the VicePresident "to advance [his] agenda in Congress." Ante, at24. Such a prosecution, according to the majority, “maywell hinder the President's ability to perform his constitu-tional functions." Ibid. Whether a prosecution for this con-duct warrants immunity should have been an easy ques-tion, but the majority turns it into a debatable one.Remarkably, the majority goes further and declines to denyimmunity even for the allegations that Trump organizedfraudulent elector slates, pressured States to subvert thelegitimate election results, and exploited violence at theCapitol to influence the certification proceedings. It is notconceivable that a prosecution for these alleged efforts tooverturn a Presidential election, whether labeled official orunofficial under the majority's test, would pose any "dan-gers of intrusion on the authority and functions of the Ex-ecutive Branch,'” ante, at 14, and the majority could havesaid as much. Instead, it perseverates on a threshold ques-tion that should be immaterial.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 thePresident, upsetting the status quo that has existed sincethe Founding. This new official-acts immunity now "liesabout like a loaded weapon" for any President that wishesto place his own interests, his own political survival, or hisown financial gain, above the interests of the Nation. Kore-matsu v. United States, 323 U. S. 214, 246 (1944) (Jackson,J., dissenting). The President of the United States is themost powerful person in the country, and possibly theworld. When he uses his official powers in any way, underthe majority's reasoning, he now will be insulated fromcriminal prosecution. Orders the Navy's Seal Team 6 to as-sassinate a political rival? Immune. Organizes a military

30TRUMP v. UNITED STATESSOTOMAYOR, J., dissentingcoup to hold onto power? Immune. Takes a bribe in ex-change for a pardon? Immune. Immune, immune, immune.Let the President violate the law, let him exploit the trap-pings of his office for personal gain, let him use his officialpower for evil ends. Because if he knew that he may oneday face liability for breaking the law, he might not be asbold and fearless as we would like him to be. That is themajority's message today.Even if these nightmare scenarios never play out, and Ipray they never do, the damage has been done. The rela-tionship between the President and the people he serveshas shifted irrevocably. In every use of official power, thePresident is now a king above the law.***The majority's single-minded fixation on the President'sneed for boldness and dispatch ignores the countervailingneed for accountability and restraint. The Framers werenot so single-minded. In the Federalist Papers, after “en-deavor[ing] to show" that the Executive designed by theConstitution “combines . . . all the requisites to energy," Al-exander Hamilton asked a separate, equally importantquestion: "Does it also combine the requisites to safety, in arepublican sense, a due dependence on the people, a due re-sponsibility?” The Federalist No. 77, p. 507 (J. Harvard Li-brary ed. 2009). The answer then was yes, based in partupon the President's vulnerability to "prosecution in thecommon course of law." Ibid. The answer after today is no.Never in the history of our Republic has a President hadreason to believe that he would be immune from criminalprosecution if he used the trappings of his office to violatethe criminal law. Moving forward, however, all formerPresidents will be cloaked in such immunity. If the occu-pant of that office misuses official power for personal gain,the criminal law that the rest of us must abide will not pro-vide a backstop.With fear for our democracy, I dissent.

Cite as: 603 U. S.(2024)1JACKSON, J., dissentingSUPREME COURT OF THE UNITED STATESNo. 23-939DONALD J. TRUMP, PETITIONER v.UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT[July 1, 2024]JUSTICE JACKSON, dissenting.JUSTICE SOTOMAYOR has thoroughly addressed theCourt's flawed reasoning and conclusion as a matter of his-tory, tradition, law, and logic. I agree with every word ofher powerful dissent. I write separately to explain, as suc-cinctly as I can, the theoretical nuts and bolts of what, ex-actly, the majority has done today to alter the paradigm ofaccountability for Presidents of the United States. I alsoaddress what that paradigm shift means for our Nationmoving forward.ITo fully appreciate the profound change the majority haswrought, one must first acknowledge what it means to haveimmunity from criminal prosecution. Put simply, immun-ity is "exemption” from the duties and liabilities imposed bylaw. Black's Law Dictionary 898 (11th ed. 2019); see Hop-kins v. Clemson, 221 U. S. 636, 643 (1911) (explaining thatimmunity is "exemption from legal process"). In its purestform, 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

2TRUMP v. UNITED STATESJACKSON, J., dissentingthat someone is immune from criminal prosecution is to saythat, like a King, he “is not under the coercive power of thelaw," which "will not suppose him capable of committing afolly, much less a crime.” 4 Blackstone *33. Thus, beingimmune is not like having a defense under the law. Rather,it means that the law does not apply to the immunized per-son in the first place. Conferring immunity therefore “cre-ate[s] a privileged class free from liability for wrongs in-flicted or injuries threatened." Hopkins, 221 U. S., at 643.It is indisputable that immunity from liability for wrong-doing is the exception rather than the rule in the Americancriminal justice system. That is entirely unsurprising, forthe very idea of immunity stands in tension with founda-tional principles of our system of Government. It is a coretenet of our democracy that the People are the sovereign,and the Rule of Law is our first and final security. "[F] romtheir own experience and their deep reading in history, theFounders knew that Law alone saves a society from beingrent by internecine strife or ruled by mere brute power how-ever disguised." United States v. Mine Workers, 330 U. S.258, 308 (1947) (Frankfurter, J., concurring in judgment).A corollary to that principle sets the terms for this case:"No man in this country is so high that he is above the law.No officer of the law may set that law at defiance with im-punity. All the officers of the government, from the highestto the lowest, are creatures of the law, and are bound toobey it." United States v. Lee, 106 U. S. 196, 220 (1882). Wehave long lived with the collective understanding that"[d]ecency, security and liberty alike demand that govern-ment officials shall be subjected to the same rules of con-duct that are commands to the citizen," for "[i]n a govern-ment of laws, existence of the government will be imperilledif it fails to observe the law scrupulously." Olmstead v.United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dis-senting).

Cite as: 603 U. S.(2024)3JACKSON, J., dissentingIIAThese foundational presuppositions are reflected in a pro-cedural paradigm of rules and accountability that operatesin the realm of criminal law-what I would call an individ-ual accountability model.The basic contours of that model are familiar, becausethey manifest in every criminal case. Criminal law startswith an act of the legislature, which holds the power "to de-fine a crime, and ordain its punishment.” United States v.Wiltberger, 5 Wheat. 76, 95 (1820); accord, Ohio v. Johnson,467 U. S. 493, 499 (1984). Criminal statutes are laws ofgeneral applicability that express “the assent of the people'srepresentatives” that certain conduct is off limits in our so-ciety. Wooden v. United States, 595 U. S. 360, 391 (2022)(GORSUCH, J., concurring in judgment).When the Federal Government believes that someone hasrun afoul of a criminal statute and decides to exercise itsprosecutorial discretion to pursue punishment for that vio-lation, it persuades a grand jury that there is probablecause to indict. U. S. Const., Amdt. 5. Then, the Govern-ment marshals evidence to prove beyond a reasonabledoubt that the defendant engaged in the prohibited conductand possessed the requisite state of mind. See UnitedStates v. Bailey, 444 U. S. 394, 402 (1980) (observing that,to hold a person criminally liable, “the concurrence of ...‘an evil-meaning mind [and] an evil-doing hand"" must beproved (quoting Morissette v. United States, 342 U. S. 246,251 (1952))).For his part, the defendant “stands accused but is pre-sumed innocent until conviction upon trial or guilty plea."Betterman v. Montana, 578 U. S. 437, 441 (2016). Notably,criminal defendants have various constitutionally pro-tected rights during the criminal-liability process, includ-ing the rights to a speedy and public trial, the right to havea jury decide guilt or innocence, the right to the assistance

4TRUMP v. UNITED STATESJACKSON, J., dissentingof counsel, and the right to confront the witnesses againsthim. Amdt. 6. The defendant also has at his disposal manymeans to defend himself against the criminal charge. Hecan, of course, seek to hold the Government to its burden ofproof at trial. And even before trial, in a motion to dismissthe indictment, he might make any number of legal argu-ments; he can assert, for example, that the Government'scharging document does not give adequate notice of thecharge against him or that the law he has been accused ofviolating is unconstitutionally vague. See Hamling v.United States, 418 U. S. 87, 117 (1974); United States v. Da-vis, 588 U. S. 445, 451 (2019). He might further claim thatthe law is unconstitutional as applied to his particular con-duct. See United States v. O'Brien, 391 U. S. 367, 376(1968). And he might maintain that his conduct, even ifproved, does not violate the law at issue. See, e.g., Fischerv. United States, 603 U. S.(2024) (slip op., at 2).The defendant may also raise, and attempt to prove, af-firmative defenses that "excuse conduct that would other-wise be punishable." Dixon v. United States, 548 U. S. 1, 6(2006). Generally speaking, affirmative defenses are deter-minations (often adopted by legislation) that certain con-duct otherwise punishable by law is justified. This mightbe the case, for example, when the Legislature determinesthat, under specified circ*mstances, the societal harm par-ticular conduct causes "is outweighed by the need to avoidan even greater harm." 1 P. Robinson, Criminal Law De-fenses §24(a) (1984) (Robinson).Importantly, a defense is not an immunity, even thougha defense can likewise result in a person charged with acrime avoiding liability for his criminal conduct. Consistentwith our foundational norms, the individual accountabilitymodel adheres to the presumption that the law applies toall and that everyone must follow it; yet, the model makesallowances for recognized defenses. One such defense is the

Cite as: 603 U. S.(2024)5JACKSON, J., dissentingspecial privilege that Government officials sometimes in-voke when carrying out their official duties.1All of this is to say that our Government has long func-tioned under an accountability paradigm in which no one isabove the law; an accused person is innocent until provenguilty; and criminal defendants may raise defenses, both le-gal and factual, tailored to their particular circ*mstances,whether they be Government officials or ordinary citizens.For over two centuries, our Nation has survived with theseprinciples intact.BWith that understanding of how our system of accounta-bility for criminal acts ordinarily functions, it becomesmuch easier to see that the majority's ruling in this casebreaks new and dangerous ground. Departing from the tra-ditional model of individual accountability, the majorityhas concocted something entirely different: a Presidentialaccountability model that creates immunity—an exemptionfrom criminal law―—applicable only to the most powerful of-ficial in our Government.1So, how does this new Presidential accountability modelwork? An initial problem is the lack of clarity regardingwhat this new model entails. The majority announces onlyits most basic contours. See ante, at 6 (asserting that "the1 See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) ("Deedswhich otherwise would be criminal, such as taking or destroying prop-erty, taking hold of a person by force and against his will, placing him inconfinement, or even taking his life, are not crimes if done with properpublic authority"); see also 2 Robinson §141(a) (describing the public-au-thority defense, under which a defendant may escape liability if he "hasbeen specifically authorized to engage in the conduct constituting the of-fense in order to protect or further a public interest"); Brief for UnitedStates 29-30, n. 11; ante, at 16, n. 3 (SOTOMAYOR, J., dissenting) (citingNardone v. United States, 302 U. S. 379, 384 (1937)).

6TRUMP v. UNITED STATESJACKSON, J., dissentingnature of Presidential power requires that a former Presi-dent have some immunity from criminal prosecution for of-ficial acts during his tenure in office"). Instead of no im-munity (the individual accountability model) or anunqualified grant of absolute immunity for "all officialacts," Brief for Petitioner 44 (emphasis added), the majoritypurports to adopt something of a hybrid.2 It holds that aformer President may or may not be immune from criminalprosecution for conduct undertaken while in office, to be de-termined on a case-by-case basis. According to the major-ity, whether a former President is immune depends on howhis criminal conduct is classified, as among three possiblecategories.First, with respect to any criminal conduct relating to aPresident's "core constitutional powers"-those subjects"within his 'conclusive and preclusive' constitutional au-thority" the President is entitled to absolute immunityfrom criminal prosecution. See ante, at 6, 8. Second, ex-panding outward from this “core," regarding all other “actswithin the outer perimeter of [the President's] official re-sponsibility," the President is entitled to “at least a pre-sumptive immunity from criminal prosecution." Ante, at 14.2 Its feigned judicial humility notwithstanding, see ante, at 41, the ma-jority's holding goes further-much further than necessary to resolvethis case. Petitioner's argument in both the lower courts and this onewas that a former President is categorically immune from federal crimi-nal prosecution for "all" acts within the outer perimeter of his officialduties. See Opening Brief for Defendant-Appellant in No. 23-3228(CADC, Dec. 23, 2023), p. 23; 91 F. 4th 1173, 1188–1189, 1195, 1208(CADC 2024) (per curiam); Brief for Petitioner 41-47 (arguing for abso-lute immunity for "all actions within the ‘outer perimeter”” of a Presi-dent's responsibilities, and imploring the Court not to adopt a "function-based' approach"). Thus, it would have been enough for the Court simplyto reject petitioner's categorical claim and leave it at that. But the ma-jority sua sponte rephrased the question presented, and it now takes fulladvantage of this opportunity to devise from whole cloth an entirely newlegal framework for judicial evaluation of potential criminal immunityfor former Presidents.

Cite as: 603 U. S.(2024)7JACKSON, J., dissentingThird, if the criminal conduct at issue comprises “unofficialacts, there is no immunity.” Ante, at 15.3Applying the majority's new Presidential accountabilitymodel thus seems to involve bearing down on the indict-ment's allegations and making a series of determinationsabout the nature of the conduct at issue. From the struc-ture of the paradigm, it appears that the first decision pointis whether the alleged criminal conduct involves one of thePresident's "core" powers. If so (and apparently regardlessof the degree to which the conduct implicates that corepower), the President is absolutely immune from criminalliability for engaging in that criminal conduct. If not, thenone must proceed to consider whether the conduct qualifiesas an "official" act or “unofficial" act of that President. Ifthe crime is an official act, the President is presumptivelyimmune from criminal prosecution and punishment. Buteven then, immunity still hinges on whether there is anylegal or factual basis for concluding that the presumption ofimmunity has been rebutted. Alternatively, if the chargedconduct is an unofficial act (a determination that, inci-3 It is important to note that the majority reframes the immunity ques-tion presented here as a separation of powers concern that is compelledby Article II-as if what is being asked is whether Congress can crimi-nalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1-2 (BARRETT, J., concurring in part). But that is not anywhere close towhat is happening in this case. No one maintains that Congress haspassed a law that specifically criminalizes the President's use of anypower that the Constitution vests exclusively in the Executive, much lessthat the Judiciary is being conscripted to adjudicate the propriety of sucha statute. To the contrary, the indictment here invokes criminal statutesof general applicability that everyone is supposed to follow, both on andoff the job. So, the real question is: Can the President, too, be held ac-countable for committing crimes while he is undertaking his official du-ties? The nature of his authority under Article II (whether conclusiveand preclusive, or shared with Congress, or otherwise) is entirely besidethe point.

80TRUMP v. UNITED STATESJACKSON, J., dissentingdentally, courts must make without considering the Presi-dent's motivations, ante, at 18), the President is not im-mune.4The majority's multilayered, multifaceted thresholdparsing of the character of a President's criminal conductdiffers from the individual accountability model in severalcrucial respects. For one thing, it makes it next to impossi-ble to know ex ante when and under what circ*mstances aPresident will be subject to accountability for his criminalacts. For every allegation, courts must run this gauntletfirst- -no matter how well documented or heinous the crim-inal act might be.Thus, even a hypothetical President who admits to hav-ing ordered the assassinations of his political rivals or crit-ics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably in-stigates an unsuccessful coup, id., at 41-43, has a fair shotat getting immunity under the majority's new Presidentialaccountability model. That is because whether a Presi-dent's conduct will subject him to criminal liability turns onthe court's evaluation of a variety of factors related to thecharacter of that particular act-specifically, those charac-teristics that imbue an act with the status of "official" or"unofficial" conduct (minus motive). In the end, then, underthe majority's new paradigm, whether the President will beexempt from legal liability for murder, assault, theft, fraud,4 JUSTICE BARRETT's version of the Presidential accountability para-digm works slightly differently; she would have us ask, first, "whetherthe relevant criminal statute reaches the President's official conduct."Ante, at 2. But, again, what is at issue here are statutes of general ap-plicability they only “reach” the President's conduct to the extent thathe chooses to engage in the prohibited behavior. See n. 3, supra. JUSTICEBARRETT's framing, thus, sidesteps the fact that, when immunity is beingconsidered, what is actually at issue is whether the President is exemptfrom punishment if he opts to exercise his official duties using meansthat violate criminal law.

Cite as: 603 U. S.(2024)9JACKSON, J., dissentingor any other reprehensible and outlawed criminal act willturn on whether he committed that act in his official capac-ity, such that the answer to the immunity question will al-ways and inevitably be: It depends.Under the individual accountability paradigm, the ac-countability analysis is markedly less convoluted, and leadsto a more certain outcome. None of the same complicationsor consequences arise, because, as I have explained, thereare no exemptions from the criminal law for any person, butevery defendant can assert whatever legal arguments anddefenses might be applicable under governing law. Sinceno one is above the law, everyone can focus on what the lawdemands and permits, and on what the defendant did or didnot do; no one has to worry about characterizing any crimi-nal conduct as official or unofficial in order to assess theapplicability of an immunity at the outset.The majority's new Presidential accountability model isalso distinct insofar as it accepts as a basic starting premisethat generally applicable criminal laws do not apply to eve-ryone in our society. In the majority's view, while all othercitizens of the United States must do their jobs and livetheir lives within the confines of criminal prohibitions, thePresident cannot be made to do so; he must sometimes beexempt from the law's dictates depending on the characterof his conduct. Indeed, the majority holds that the Presi-dent, unlike anyone else in our country, is comparativelyfree to engage in criminal acts in furtherance of his officialduties.That point bears emphasizing. Immunity can issue forPresidents under the majority's model even for unquestion-ably and intentionally egregious criminal behavior. Re-gardless of the nature or the impact of the President's crim-inal conduct, so long as he is committing crimes "pursuantto the powers invested exclusively in him by the Constitu-tion," ante, at 7, or as needed "to carry out his constitutionalduties without undue caution,” ante, at 14, he is likely to be

1010TRUMP v. UNITED STATESJACKSON, J., dissentingdeemed immune from prosecution.5Ultimately, the majority's model simply sets the criminallaw to one side when it comes to crimes allegedly committedby the President. Before accountability can be sought orrendered, the Judiciary serves as a newfound special gate-keeper, charged not merely with interpreting the law butwith policing whether it applies to the President at all.Also, under the new Presidential accountability model, thestarting presumption is that the criminal law does not ap-ply 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 for-mer President is not held accountable for any criminal con-duct he engages in while he is on duty, unless his conductconsists primarily (and perhaps solely) of unofficial acts.3The structure and function of the two accountability par-adigms are not the only differences—the models also assigndifferent roles to participants in the criminal justice sys-tem, and they ultimately generate different relationshipsbetween the Presidency and the Rule of Law.Under the individual accountability model, duty-boundprosecutorial officers initially exercise their discretion todecide whether to seek punishment for alleged violations of5 To fully appreciate the oddity of making the criminal immunity de-termination turn on the character of the President's responsibilities, con-sider what the majority says is one of the President's "conclusive andpreclusive" prerogatives: "[t]he President's power to remove .. thosewho wield executive power on his behalf."" Ante, at 8 (quoting Seila LawLLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204(2020)). While the President may have the authority to decide to removethe Attorney General, for example, the question here is whether thePresident has the option to remove the Attorney General by, say, poison-ing him to death. Put another way, the issue here is not whether thePresident has exclusive removal power, but whether a generally applica-ble criminal law prohibiting murder can restrict how the President exer-cises that authority.

Cite as: 603 U. S.(2024)11JACKSON, J., dissentingcriminal law (a determination that is made based on nu-merous factors). And even if prosecutors decide to bring acharge, a jury of the criminal defendant's peers ultimatelydetermines whether that defendant (including a formerPresident) will actually be held to account for having en-gaged in unlawful conduct, after the court has resolved anylegal challenges and has instructed the jury as to the re-quirements of the law.By contrast, under the majority's new Presidential ac-countability paradigm, what a prosecutor or jury does maynot even matter, since the courts take center stage oncecharges are brought against a former President, marshal-ing their resources to conduct a complex and amorphousthreshold immunity evaluation. Whether a former Presi-dent will be entirely exempted from the dictates of the law(such that the roles of other participants in the criminal jus-tice process become irrelevant) requires a judicial assess-ment, in the first instance, of his criminal conduct and thecirc*mstances under which he acted.Finally, and most importantly, recall that under the indi-vidual accountability model, an indicted former Presidentcan raise an affirmative defense just like any other criminaldefendant. This means that the President remains answer-able to the law, insofar as he must show that he was justi-fied in committing a criminal act while in office under thegiven circ*mstances. In other words, while the Presidentmight indeed be privileged to commit a crime in the courseof his official duties, any such privilege exists only when thePeople (acting either through their elected representativesor as members of a jury) determine that the former Presi-dent's conduct was in fact justified, notwithstanding thegeneral criminal prohibition.Under the majority's immunity regime, by contrast, thePresident can commit crimes in the course of his job evenunder circ*mstances in which no one thinks he has any ex-

12TRUMP v. UNITED STATESJACKSON, J., dissentingcuse; the law simply does not apply to him. Unlike a de-fendant who invokes an affirmative defense and relies on alegal determination that there was a good reason for hisotherwise unlawful conduct, a former President invokingimmunity relies on the premise that he can do whatever hewants, however he wants, so long as he uses his "officialpower"" in doing so. Ante, at 19. In the former paradigm,the President remains subject to law; in the latter, he isabove it.IIIJUSTICE SOTOMAYOR has already warned of the dire con-sequences that are likely to follow from the majority's deci-sion in this case. Ante, at 29–30 (dissenting opinion). I havethus far endeavored merely to explain what today's rulingamounts to on a theoretical level: the Court's abandonmentof the individual accountability model as applied to Presi-dents, and its introduction of a new Presidential accounta-bility model that authorizes the Judiciary to exempt Presi-dents from punishment under law, depending on the officialor unofficial character of the criminal conduct at issue.Here, I will highlight just two observations about the re-sults that follow from this paradigm shift. First, by chang-ing the accountability paradigm in this fashion, the Courthas unilaterally altered the balance of power between thethree coordinate branches of our Government as it relatesto the Rule of Law, aggrandizing power in the Judiciary andthe Executive, to the detriment of Congress. Second, themajority's new Presidential accountability model under-mines the constraints of the law as a deterrent for futurePresidents who might otherwise abuse their power, to thedetriment of us all.AConsider the structural implications of today's decisionfrom the standpoint of the separation of powers. Until now,

Cite as: 603 U. S.(2024)13JACKSON, J., dissentingCongress's laws, passed by the representatives of the Peo-ple, bound the People and their elected officials just thesame. Law, we have explained, "is the only supreme powerin our system of government, and every man who by accept-ing office participates in its functions is only the morestrongly bound to submit to that supremacy, and to observethe limitations which it imposes upon the exercise of theauthority which it gives." Lee, 106 U. S., at 220. With itsadoption of a paradigm that sometimes exempts the Presi-dent from the dictates of the law (when the Court says so),this Court has effectively snatched from the Legislature theauthority to bind the President (or not) to Congress's man-dates, and it has also thereby substantially augmented thepower of both the Office of the Presidency and itself.As to the former, it should go without saying that the Of-fice of the Presidency, the apex of the Executive Branch, ismade significantly more powerful when the constraints ofthe criminal law are lifted with respect to the exercise of aPresident's official duties. After today's ruling, the Presi-dent must still “take Care that the Laws be faithfully exe-cuted," Art. II, §3; yet, when acting in his official capacity,he has no obligation to follow those same laws himself.But whatever additional power the majority's new Presi-dential accountability model gives to the Presidency, itgives doubly to the Court itself, for the majority provides nomeaningful guidance about how to apply this new paradigmor how to categorize a President's conduct. For instance, itsopinion lists some examples of the “core” constitutionalpowers with respect to which the President is now entitledto absolute immunity—a list that apparently includes theremoval power, the power to recognize foreign nations, andthe pardon power. Ante, at 6–9. However, the majoritydoes not and likely cannot—supply any useful or admin-istrable definition of the scope of that “core." For what it'sworth, the Constitution's text is no help either; Article II

14TRUMP v. UNITED STATESJACKSON, J., dissentingdoes not contain a Core Powers Clause. 6 So the actualmetes and bounds of the "core" Presidential powers are re-ally anyone's guess.Nor does the majority explain how to consistently distin-guish between official and unofficial acts. Quite the oppo-site, in fact. While acknowledging that this is a critical linethat courts must draw in order for its new accountabilitymodel to work properly, the majority simultaneously cau-tions that making this distinction “can be difficult”—likelya gross understatement given the recognized “breadth ofthe President's ‘discretionary responsibilities' under theConstitution 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 fornoncore official acts might be rebutted, saying only that ap-plying the criminal law to a President's acts must pose "no‘dangers of intrusion on the authority and functions of theExecutive Branch."" Ante, at 14 (quoting Nixon v. Fitzger-ald, 457 U. S. 731, 754 (1982)).At most, to distinguish official from unofficial conduct,the majority advises asking whether the former President'sconduct was "manifestly or palpably beyond [his] author-ity."" Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th1, 13 (CADC 2023)). But that test can be illusory, as is ev-idenced by the facts alleged in this very case. With respectto the indictment's allegations concerning petitioner's at-tempt to assemble false slates of electors in conjunction6 Some of the powers the majority designates as "core" powers are, atbest, implied from indefinite constitutional language. See, e.g., SeilaLaw, 591 U. S., at 268–269 (KAGAN, J., concurring in judgment with re-spect to severability and dissenting in part) (“Nowhere does the text sayanything about the President's power to remove subordinate officials atwill"); Zivotofsky v. Kerry, 576 U. S. 1, 11 (2015) (“[T]he Constitution doesnot use the term 'recognition,' either in Article II or elsewhere"); id., at63 (ROBERTS, C. J., dissenting) (calling the "asserted textual bases" foran exclusive Presidential recognition power "tenuous").

Cite as: 603 U. S.(2024)15JACKSON, J., dissentingwith the events of January 6, 2021, for example, the major-ity admits that the “alleged conduct cannot be neatly cate-gorized,” and that “[t]he analysis therefore . . . may prove tobe challenging." Ante, at 28-29. With that, at least, I couldnot agree more.This much is clear: Before today, none of these kinds ofinquiries was necessary for criminal liability to be fairly as-sessed with respect to persons accused of having engaged incriminal conduct. And, frankly, none is needed now-ex-cept as relates to the President under the new paradigm themajority has crafted.Perhaps even more troubling, while Congress (the branchof our Government most accountable to the People) is theentity our Constitution tasks with deciding, as a generalmatter, what conduct is on or off limits, the Court has nowarrogated that power unto itself when that question per-tains to the President. In essence, the Court has now im-posed its own preclearance requirement on the applicationof Congress's laws to a former President alleged to havecommitted crimes while in office. Who will be responsiblefor drawing the crucial “line between [the President's] per-sonal and official affairs""? Ante, at 29. To ask the questionis to know the answer. A majority of this Court, applyingan indeterminate test, will pick and choose which laws ap-ply to which Presidents, by labeling his various allegedlycriminal acts as “core,” “official,” or “manifestly or palpably"beyond the President's authority.Ironically, then, while purportedly seeking to transcendpolitics, see ante, at 41-42, the Court today displaces theindependent judgments of the political branches about thecirc*mstances under which the criminal law should apply.Effectively, the Court elbows out of the way both Congressand prosecutorial authorities within the Executive Branch,making itself the indispensable player in all future at-tempts to hold former Presidents accountable to generallyapplicable criminal laws. “The Framers, however, did not

16TRUMP v. UNITED STATESJACKSON, J., dissentingmake the judiciary the overseer of our government.”Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 594(1952) (Frankfurter, J., concurring). To be sure, this Courtmay sometimes “have to intervene in determining whereauthority lies as between the democratic forces in ourscheme of government.” Id., at 597. But it has long beenunderstood that "we should be wary and humble” when do-ing so. Ibid.The majority displays no such caution or humility now.Instead, the Court today transfers from the politicalbranches to itself the power to decide when the Presidentcan be held accountable. What is left in its wake is a greatlyweakened Congress, which must stand idly by as the Pres-ident disregards its criminal prohibitions and uses the pow-ers of his office to push the envelope, while choosing to fol-low (or not) existing laws, as he sees fit. We also now havea greatly empowered Court, which can opt to allow Con-gress's policy judgments criminalizing conduct to stand (ornot) with respect to a former President, as a matter of itsown prerogative.BIf the structural consequences of today's paradigm shiftmark a step in the wrong direction, then the practical con-sequences are a five-alarm fire that threatens to consumedemocratic self-governance and the normal operations ofour Government. The majority shoos away this possibility.Ante, at 37 (accusing the dissents of “strik[ing] a tone ofchilling doom that is wholly disproportionate to what theCourt actually does today"). But JUSTICE SOTOMAYORmakes this point plain, see ante, at 29-30, and I will notbelabor it.Here, I will merely observe that, from a theoretical per-spective, philosophers have long considered deterrence tobe a key justification for adopting and maintaining systems

Cite as: 603 U. S.(2024)17JACKSON, J., dissentingthat ensure accountability for criminal conduct. For thatsame reason, some commentators also maintain that de-creasing the certainty of accountability for wrongful acts atleast arguably reduces incentives to follow the law.8Under the individual accountability model, because eve-ryone is subject to the law, the potential of criminal liabilityoperates as a constraint on the actions and decisions of eve-ryone, including the President. After today, that reality isno more. Consequently, our Nation has lost a substantialcheck on Presidents who would use their official powers tocommit crimes with impunity while in office.So, one might ask, what remains of accountability forPresidents under law? With today's paradigm shift, themajority leaves in place only the chance that this Courtmight someday determine that the criminal conduct inquestion was an “unofficial" act, or that the Governmentwill somehow rebut the presumption of immunity that ap-plies to a President's official acts, such that criminal conse-quences might attach. But with the parameters of officialand unofficial conduct unknown, I think it highly unlikelythat a sitting President would feel constrained by these re-mote possibilities.7See, e.g., Plato, Laws 274 (B. Jowett transl. 2000) ("Not that he ispunished because he did wrong, for that which is done can never be un-done, but in order that in future times, he, and those who see him cor-rected, may utterly hate injustice, or at any rate abate much of their evil-doing"); see also J. Bentham, The Rationale of Punishment 20 (1830)("General prevention ought to be the chief end of punishment, as it is itsreal justification"); A. von Hirsch, Doing Justice: The Choice of Punish-ments 44 (1976) ("The threat and imposition of punishment is called forin order to secure compliance—not full compliance, but more compliancethan there might be were there no legal penalties at all").8 See, e.g., M. Ryan, Taking Another Look at Second-Look Sentencing,81 Brooklyn L. Rev. 149, 156, and n. 37 (2015) (“[U]ndermining thecertainty of punishment ... could undermine the deterrence value ofpunishment").

18TRUMP v. UNITED STATESJACKSON, J., dissentingAll of this leads me to ponder why, exactly, has the ma-jority concluded that an indeterminate “core”-versus-"offi-cial"-versus-“unofficial" line-drawing exercise is the betterway to address potential criminal acts of a President?Could it be that the majority believes the obviously gravedangers of shifting from the individual accountabilitymodel to the Presidential accountability model might nev-ertheless be offset by the great benefits of doing so? Cf. J.Bentham, A Fragment on Government and an Introductionto the Principles of Morals and Legislation 3 (W. Harrisoned. 1948) (arguing that acts can be justified by the maximthat “it is the greatest happiness of the greatest numberthat is the measure of right and wrong" (emphasis deleted)).Some of the majority's analysis suggests as much. As faras I can tell, the majority is mostly concerned that, withoutimmunity, Presidents might “be chilled from taking the‘bold and unhesitating action' required of an independentExecutive." Ante, at 13. The Court's opinion candidly la-ments that application of the law to Presidents might notbe evenhanded, and that, as a result, Presidents might beless "vigorous' and ‘energetic”” as executive officers. Ante,at 10; accord, ante, at 39. But that concern ignores (or re-jects) the foundational principles upon which the tradi-tional individual accountability paradigm is based. Worsestill, promoting more vigor from Presidents in exercisingtheir official duties—and, presumably, less deliberation-invites breathtaking risks in terms of harm to the Americanpeople that, in my view, far outweigh the benefits.This is not to say that the majority is wrong when it per-ceives that it can be cumbersome for a President to have tofollow the law while carrying out his duty to enforce it. Itis certainly true that “[a] scheme of government like oursno doubt at times feels the lack of power to act with com-plete, all-embracing, swiftly moving authority." Youngs-town, 343 U. S., at 613 (Frankfurter, J., concurring). But

Cite as: 603 U. S.(2024)1999JACKSON, J., dissentingany American who has studied history knows that "our gov-ernment was designed to have such restrictions." Ibid. (em-phasis added). Our Constitution's "separation of powerswas adopted by the Convention of 1787, not to promote ef-ficiency but to preclude the exercise of arbitrary power. Thepurpose was, not to avoid friction, but . . . to save the peoplefrom autocracy." Myers v. United States, 272 U. S. 52, 293(1926) (Brandeis, J., dissenting).Having now cast the shadow of doubt over when-ifever a former President will be subject to criminal liabilityfor any criminal conduct he engages in while on duty, themajority incentivizes all future Presidents to cross the lineof criminality while in office, knowing that unless they act"manifestly or palpably beyond [their] authority,” ante, at17, they will be presumed above prosecution and punish-ment alike.But the majority also tells us not to worry, because "[l]ikeeveryone else, the President is subject to prosecution in hisunofficial capacity." Ante, at 40 (emphasis added). This at-tempted reassurance is cold comfort, even setting aside thefact that the Court has neglected to lay out a standard thatreliably distinguishes between a President's official and un-official conduct. Why? Because there is still manifest ineq-uity: Presidents alone are now free to commit crimes whenthey are on the job, while all other Americans must followthe law in all aspects of their lives, whether personal or pro-fessional. The official-versus-unofficial act distinction alsoseems both arbitrary and irrational, for it suggests that theunofficial criminal acts of a President are the only ones wor-thy of prosecution. Quite to the contrary, it is when thePresident commits crimes using his unparalleled officialpowers that the risks of abuse and autocracy will be mostdire. So, the fact that, “unlike anyone else, the Presidentis" vested with “sweeping powers and duties,” ibid., actuallyunderscores, rather than undermines, the grim stakes ofsetting the criminal law to the side when the President

20TRUMP v. UNITED STATESJACKSON, J., dissentingflexes those very powers.The vision John Adams enshrined in the MassachusettsDeclaration of Rights—“a government of laws and not ofmen" speaks directly to this concept. Mine Workers, 330U. S., at 307 (Frankfurter, J., concurring in judgment). Ad-ams characterized that document as an homage to the Ruleof Law; it reflected both a flat “rejection in positive terms ofrule by fiat" and a solemn promise that “[e] very act of gov-ernment may be challenged by an appeal to law." Id., at308. Thanks to the majority, that vision and promise arelikely to be fleeting in the future. From this day forward,Presidents of tomorrow will be free to exercise the Com-mander-in-Chief powers, the foreign-affairs powers, and allthe vast law enforcement powers enshrined in Article IIhowever they please—including in ways that Congress hasdeemed criminal and that have potentially grave conse-quences for the rights and liberties of Americans.IVTo the extent that the majority's new accountability par-adigm allows Presidents to evade punishment for theircriminal acts while in office, the seeds of absolute power forPresidents have been planted. And, without a doubt, abso-lute power corrupts absolutely. "If one man can be allowedto determine for himself what is law, every man can. Thatmeans first chaos, then tyranny.” Id., at 312. Likewise, “[i]fthe Government becomes a lawbreaker, it breeds contemptfor 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 Nationwill reap what this Court has sown.Stated simply: The Court has now declared for the firsttime in history that the most powerful official in the UnitedStates can (under circ*mstances yet to be fully determined)become a law unto himself. As we enter this uncharted ter-ritory, the People, in their wisdom, will need to remain ever

Cite as: 603 U. S.(2024)21JACKSON, J., dissentingattentive, consistently fulfilling their established role in ourconstitutional democracy, and thus collectively serving asthe ultimate safeguard against any chaos spawned by thisCourt's decision. For, like our democracy, our Constitutionis "the creature of their will, and lives only by their will.”Cohens v. Virginia, 6 Wheat. 264, 389 (1821).For my part, I simply cannot abide the majority's sense-less discarding of a model of accountability for criminal actsthat treats every citizen of this country as being equallysubject to the law—as the Rule of Law requires. That coreprinciple has long prevented our Nation from devolving intodespotism. Yet the Court now opts to let down the guard-rails of the law for one extremely powerful category of citi-zen: any future President who has the will to flout Con-gress's established boundaries.In short, America has traditionally relied on the law tokeep its Presidents in line. Starting today, however, Amer-icans must rely on the courts to determine when (if at all)the criminal laws that their representatives have enactedto promote individual and collective security will operate asspeedbumps to Presidential action or reaction. Once self-regulating, the Rule of Law now becomes the rule of judges,with courts pronouncing which crimes committed by a Pres-ident have to be let go and which can be redressed as im-permissible. So, ultimately, this Court itself will decidewhether the law will be any barrier to whatever course ofcriminality emanates from the Oval Office in the future.The potential for great harm to American institutions andAmericans themselves is obvious.***The majority of my colleagues seems to have put theirtrust in our Court's ability to prevent Presidents from be-coming Kings through case-by-case application of the inde-terminate standards of their new Presidential accountabil-ity paradigm. I fear that they are wrong. But, for all our

22TRUMP v. UNITED STATESJACKSON, J., dissentingsakes, I hope that they are right.In the meantime, because the risks (and power) the Courthas now assumed are intolerable, unwarranted, and plainlyantithetical to bedrock constitutional norms, I dissent.