NOTICE: This opinion is subject to
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–939

															_________________

															DONALD J. TRUMP, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[July 1, 2024]

															Chief Justice Roberts delivered the opinion of
the Court.

															This case concerns the federal indictment of a
former President of the United States for conduct alleged to
involve official acts during his tenure in office. We consider the
scope of a President’s immunity from criminal prosecution.

															I

															From January 2017 until January 2021, Donald
J. Trump served as President of the United States. On August 1,
2023, a federal grand jury indicted him on four counts for conduct
that occurred during his Presidency following the November 2020
election. The indictment alleged that after losing that election,
Trump conspired to overturn it by spreading knowingly false claims
of election fraud to obstruct the collecting, counting, and
certifying of the election results.

															According to the indictment, Trump advanced his
goal through five primary means. First, he and his co-conspirators
“used knowingly false claims of election fraud to get state
legislators and election officials to . . . change
electoral votes for [Trump’s] opponent, Joseph R. Biden, Jr., to
electoral votes for [Trump].” App. 185, Indictment ¶10(a). Second,
Trump and his co-conspirators “organized fraudulent slates of
electors in seven targeted states” and “caused these fraudulent
electors to transmit their false certificates to the Vice President
and other government officials to be counted at the certification
proceeding on January 6.” Id ., at 186, ¶10(b). Third, Trump
and his co-conspirators attempted to use the Justice Department “to
conduct sham election crime investigations and to send a letter to
the targeted states that falsely claimed that the Justice
Department had identified significant concerns that may have
impacted the election outcome.” Id ., at 186–187, ¶10(c).
Fourth, Trump and his co-conspirators attempted to persuade “the
Vice President to use his ceremonial role at the January 6
certification proceeding to fraudulently alter the election
results.” Id ., at 187, ¶10(d). And when that failed, on the
morning of January 6, they “repeated knowingly false claims of
election fraud to gathered supporters, falsely told them that the
Vice President had the authority to and might alter the election
results, and directed them to the Capitol to obstruct the
certification proceeding.” Ibid. Fifth, when “a large and
angry crowd . . . violently attacked the Capitol and
halted the proceeding,” Trump and his co-conspirators “exploited
the disruption by redoubling efforts to levy false claims of
election fraud and convince Members of Congress to further delay
the certification.” Id ., at 187–188, ¶10(e).

															Based on this alleged conduct, the indictment
charged Trump with (1) conspiracy to defraud the United States in
violation of 18 U. S. C. §371, (2) conspiracy to obstruct
an official proceeding in violation of §1512(k), (3) obstruction of
and attempt to obstruct an official proceeding in violation of
§1512(c)(2), §2, and (4) conspiracy against rights in violation of
§241.[ 1 ]

															Trump moved to dismiss the indictment based on
Presidential immunity. In his view, the conduct alleged in the
indictment, properly characterized, was that while he was President
he (1) “made public statements about the administration of the
federal election”; (2) communicated with senior Justice Department
officials “about investigating election fraud and about choosing
the leadership” of the Department; (3) “communicated with state
officials about the administration of the federal election and
their exercise of official duties with respect to it”; (4)
“communicated with the Vice President” and with “Members of
Congress about the exercise of their official duties regarding the
election certification”; and (5) “authorized or directed others to
organize contingent slates of electors in furtherance of his
attempts to convince the Vice President to exercise his official
authority in a manner advocated for by President Trump.” Motion To
Dismiss Indictment Based on Presidential Immunity in No.
1:23–cr–00257 (DC), ECF Doc. 74, p. 9. Trump argued that all
of the indictment’s allegations fell within the core of his
official duties. Id. , at 27. And he contended that a
President has absolute immunity from criminal prosecution for
actions performed within the outer perimeter of his official
responsibilities, to ensure that he can undertake the especially
sensitive duties of his office with bold and unhesitating action. Id. , at 14, 24.

															The District Court denied the motion to dismiss,
holding that “former Presidents do not possess absolute federal
criminal immunity for any acts committed while in office.” 2023 WL
8359833, *15 (DC, Dec. 1, 2023). The District Court recognized that
the President is immune from damages liability in civil cases, to
protect against the chilling effect such exposure might have on the
carrying out of his responsibilities. See Nixon v. Fitzgerald , 457 U.S.
731 , 749–756 (1982). But it reasoned that “the possibility of
vexatious post-Presidency litigation is much reduced in the
criminal context” in light of “[t]he robust procedural safeguards
attendant to federal criminal prosecutions.” 2023 WL 8359833,
*9–*10. The District Court declined to decide whether the indicted
conduct involved official acts. See id. , at *15.

															The D. C. Circuit affirmed. 91 F. 4th
1173 (2024) ( per curiam ). 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. It observed that “although
discretionary acts are ‘only politically examinable,’ the judiciary
has the power to hear cases” involving ministerial acts that an
officer is directed to perform by the legislature. Ibid. (quoting Marbury , 1 Cranch, at 166). From this distinction,
the D. C. Circuit concluded that the “separation of powers
doctrine, as expounded in Marbury and its progeny,
necessarily permits the Judiciary to oversee the federal criminal
prosecution of a former President for his official acts because the
fact of the prosecution means that the former President has
allegedly acted in defiance of the Congress’s laws.” 91 F. 4th, at
1191. In the court’s view, the fact that Trump’s actions “allegedly
violated generally applicable criminal laws” meant that those
actions “were not properly within the scope of his lawful
discretion.” Id. , at 1192. The D. C. Circuit thus
concluded that Trump had “no structural immunity from the charges
in the Indictment.” Ibid. Like the District Court, the
D. C. Circuit declined to analyze the actions described in the
indictment 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 President
enjoy presidential immunity from criminal prosecution for conduct
alleged to involve official acts during his tenure in office.” 601
U. S. ___ (2024).

															II

															This case is the first criminal prosecution in
our Nation’s history of a former President for actions taken during
his Presidency. We are called upon to consider whether and under
what circumstances such a prosecution may proceed.  Doing so
requires careful assessment of the scope of Presidential power
under the Constitution. We undertake that responsibility conscious
that we must not confuse “the issue of a power’s validity with the
cause it is invoked to promote,” but must instead focus on the
“enduring consequences upon the balanced power structure of our
Republic.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.
579 , 634 (1952) (Jackson, J., concurring).

															The parties before us do not dispute that a
former President can be subject to criminal prosecution for
unofficial acts committed while in office. See Tr. of Oral Arg. 28.
They also agree that some of the conduct described in the
indictment includes actions taken by Trump in his unofficial
capacity. See id ., at 28–30, 36–37, 124.

															They disagree, however, about whether a former
President can be prosecuted for his official actions. Trump
contends that just as a President is absolutely immune from civil
damages liability for acts within the outer perimeter of his
official responsibilities, Fitzgerald , 457 U. S., at
756, he must be absolutely immune from criminal prosecution for
such acts. Brief for Petitioner 10. And Trump argues that the bulk
of the indictment’s allegations involve conduct in his official
capacity as President. See Tr. of Oral Arg. 30–32. Although the
Government agrees that some official actions are included in the
indictment’s allegations, see id. , at 125, it maintains that
a former President does not enjoy immunity from criminal
prosecution for any actions, regardless of how they are
characterized. See Brief for United States 9.

															We conclude that under our constitutional
structure of separated powers, the nature of Presidential power
requires that a former President have some immunity from criminal
prosecution for official acts during his tenure in office. At least
with respect to the President’s exercise of his core constitutional
powers, this immunity must be absolute. As for his remaining
official actions, he is also entitled to immunity. At the current
stage of proceedings in this case, however, we need not and do not
decide whether that immunity must be absolute, or instead whether a
presumptive immunity is sufficient.

															A

															Article II of the Constitution provides that
“[t]he executive Power shall be vested in a President of the United
States of America.” §1, cl. 1. The President’s duties are of
“unrivaled gravity and breadth.” Trump v. Vance , 591
U.S. 786, 800 (2020). They include, for instance, commanding the
Armed Forces of the United States; granting reprieves and pardons
for offenses against the United States; and appointing public
ministers and consuls, the Justices of this Court, and Officers of
the United States. See §2. He also has important foreign relations
responsibilities: making treaties, appointing ambassadors,
recognizing foreign governments, meeting foreign leaders,
overseeing international diplomacy and intelligence gathering, and
managing matters related to terrorism, trade, and immigration. See
§§2, 3. Domestically, he must “take Care that the Laws be
faithfully executed,” §3, and he bears responsibility for the
actions of the many departments and agencies within the Executive
Branch. He also plays a role in lawmaking by recommending to
Congress the measures he thinks wise and signing or vetoing the
bills Congress passes. See Art. I, §7, cl. 2; Art. II,
§3.

															No matter the context, the President’s authority
to act necessarily “stem[s] either from an act of Congress or from
the Constitution itself.” Youngstown , 343 U. S., at
585. In the latter case, the President’s authority is sometimes
“conclusive and preclusive.” Id. , at 638 (Jackson, J.,
concurring). When the President exercises such authority, he may
act even when the measures he takes are “incompatible with the
expressed or implied will of Congress.” Id ., at 637. The
exclusive constitutional authority of the President “disabl[es] the
Congress from acting upon the subject.” Id. , at 637–638. And
the courts have “no power to control [the President’s] discretion”
when he acts pursuant to the powers invested exclusively in him by
the Constitution. Marbury , 1 Cranch, at 166.

															If the President claims authority to act but in
fact exercises mere “individual will” and “authority without law,”
the courts may say so. Youngstown , 343 U. S., at 655
(Jackson, J., concurring). In Youngstown , for instance, we
held that President Truman exceeded his constitutional authority
when he seized most of the Nation’s steel mills. See id. , at
582–589 (majority opinion). But once it is determined that the
President acted within the scope of his exclusive authority, his
discretion in exercising such authority cannot be subject to
further judicial examination.

															The Constitution, for example, vests the “Power
to Grant Reprieves and Pardons for Offences against the United
States” in the President. Art. II, §2, cl. 1. During and
after the Civil War, President Lincoln offered a full pardon, with
restoration of property rights, to anyone who had “engaged in the
rebellion” but agreed to take an oath of allegiance to the Union. United States v. Klein , 13 Wall. 128, 139–141 (1872).
But in 1870, Congress enacted a provision that prohibited using the
President’s pardon as evidence of restoration of property rights. Id. , at 143–144. Chief Justice Chase held the provision
unconstitutional because it “impair[ed] the effect of a pardon, and
thus infring[ed] the constitutional power of the Executive.” Id. , at 147. “To the executive alone is intrusted the power
of pardon,” and the “legislature cannot change the effect of such a
pardon any more than the executive can change a law.” Id. ,
at 147–148. The President’s authority to pardon, in other words, is
“conclusive and preclusive,” “disabling the Congress from acting
upon the subject.” Youngstown , 343 U. S., at 637–638
(Jackson, J., concurring).

															Some of the President’s other constitutional
powers also fit that description. “The President’s power to
remove—and thus supervise—those who wield executive power on his
behalf,” for instance, “follows from the text of Article II.” Seila Law LLC v. Consumer Financial Protection
Bureau , 591 U.S. 197, 204 (2020). We have thus held that
Congress lacks authority to control the President’s “unrestricted
power of removal” with respect to “executive officers of the United
States whom he has appointed.” Myers v. United
States , 272 U.S.
52 , 106, 176 (1926); see Youngstown , 343 U. S., at
638, n. 4 (Jackson, J., concurring) (citing the President’s
“exclusive power of removal in executive agencies” as an example of
“conclusive and preclusive” constitutional authority); cf. Seila
Law , 591 U. S., at 215 (noting only “two exceptions to the
President’s unrestricted removal power”). The power “to control
recognition determinations” of foreign countries is likewise an
“exclusive power of the President.” Zivotofsky v. Kerry , 576 U.S.
1 , 32 (2015). Congressional commands contrary to the
President’s recognition determinations are thus invalid. Ibid. Congress cannot act on, and courts cannot
examine, the President’s actions on subjects within his “conclusive
and preclusive” constitutional authority. It follows that an Act of
Congress—either a specific one targeted at the President or a
generally applicable one—may not criminalize the President’s
actions within his exclusive constitutional power. Neither may the
courts adjudicate a criminal prosecution that examines such
Presidential actions. We thus conclude that the President is
absolutely immune from criminal prosecution for conduct within his
exclusive sphere of constitutional authority.

															B

															But of course not all of the President’s
official acts fall within his “conclusive and preclusive”
authority. As Justice Robert Jackson recognized in Youngstown , the President sometimes “acts pursuant to an
express or implied authorization of Congress,” or in a “zone of
twilight” where “he and Congress may have concurrent authority.”
343 U. S., at 635, 637 (concurring opinion). The reasons that
justify the President’s absolute immunity from criminal prosecution
for acts within the scope of his exclusive authority therefore do
not extend to conduct in areas where his authority is shared with
Congress.

															We recognize that only a limited number of our
prior decisions guide determination of the President’s immunity in
this context. That is because proceedings directly involving a
President have been uncommon in our Nation, and “decisions of the
Court in this area” have accordingly been “rare” and “episodic.” Dames & Moore v. Regan , 453
U.S. 654 , 661 (1981). To resolve the matter, therefore, we look
primarily to the Framers’ design of the Presidency within the
separation of powers, our precedent on Presidential immunity in the
civil context, and our criminal cases where a President resisted
prosecutorial demands for documents.

															1

															The President “occupies a unique position in
the constitutional scheme,” Fitzgerald , 457 U. S., at
749, as “the only person who alone composes a branch of
government,” Trump v. Mazars USA, LLP , 591
U.S. 848, 868 (2020). The Framers “sought to encourage energetic,
vigorous, decisive, and speedy execution of the laws by placing in
the hands of a single, constitutionally indispensable, individual
the ultimate authority that, in respect to the other branches, the
Constitution divides among many.” Clinton v. Jones , 520 U.S.
681 , 712 (1997) (Breyer, J., concurring in judgment). They
“deemed an energetic executive essential to ‘the protection of the
community against foreign attacks,’ ‘the steady administration of
the laws,’ ‘the protection of property,’ and ‘the security of
liberty.’ ” Seila Law , 591 U. S., at 223–224
(quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A.
Hamilton)). The purpose of a “vigorous” and “energetic” Executive,
they thought, was to ensure “good government,” for a “feeble
executive implies a feeble execution of the government.” Id ., at 471–472.

															The Framers accordingly vested the President
with “supervisory and policy responsibilities of utmost discretion
and sensitivity.” Fitzgerald , 457 U. S., at 750. He
must make “the most sensitive and far-reaching decisions entrusted
to any official under our constitutional system.” Id. , at
752. There accordingly “exists the greatest public interest” in
providing the President with “ ‘the maximum ability to deal
fearlessly and impartially with’ the duties of his office.” Ibid. (quoting Ferri v. Ackerman , 444 U.S.
193 , 203 (1979)). Appreciating the “unique risks to the
effective functioning of government” that arise when the
President’s energies are diverted by proceedings that might render
him “unduly cautious in the discharge of his official duties,” we
have recognized Presidential immunities and privileges “rooted in
the constitutional tradition of the separation of powers and
supported by our history.” Fitzgerald , 457 U. S., at
749, 751, 752, n. 32.

															In Nixon v. Fitzgerald , for
instance, we recognized that as “a functionally mandated incident
of [his] unique office,” a former President “is entitled to
absolute immunity from damages liability predicated on his official
acts.” Id ., at 749. That case involved a terminated Air
Force employee who sued former President Richard Nixon for damages,
alleging that Nixon approved an Air Force reorganization that
wrongfully led to his firing. In holding that Nixon was immune from
that suit, “our dominant concern” was to avoid “diversion of the
President’s attention during the decisionmaking process caused by
needless worry as to the possibility of damages actions stemming
from any particular official decision.” Clinton , 520
U. S., at 694, n. 19. “[T]he singular importance of the
President’s duties” implicating “matters likely to ‘arouse the most
intense feelings,’ ” coupled with “the sheer prominence of
[his] office,” heightens the prospect of private damages suits that
would threaten such diversion. Fitzgerald , 457 U. S.,
at 751–753 (quoting Pierson v. Ray , 386 U.S.
547 , 554 (1967)). We therefore concluded that the President
must be absolutely immune from “damages liability for acts within
the ‘outer perimeter’ of his official responsibility.” Fitzgerald , 457 U. S., at 756.

															By contrast, when prosecutors have sought
evidence from the President, we have consistently rejected
Presidential claims of absolute immunity. For instance, during the
treason trial of former Vice President Aaron Burr, Chief Justice
Marshall rejected President Thomas Jefferson’s claim that the
President could not be subjected to a subpoena. Marshall reasoned
that “the law does not discriminate between the president and a
private citizen.” United States v. Burr , 25 F. Cas.
30, 34 (No. 14,692d) (CC Va. 1807) ( Burr I ). Because a
President does not “stand exempt from the general provisions of the
constitution,” including the Sixth Amendment’s guarantee that those
accused shall have compulsory process for obtaining witnesses for
their defense, a subpoena could issue. Id. , at 33–34.

															Marshall acknowledged, however, the existence of
a “privilege” to withhold certain “official paper[s]” that “ought
not on light ground to be forced into public view.” United
States v. Burr , 25 F. Cas. 187, 192 (No. 14,694) (CC Va.
1807) ( Burr II ); see also Burr I , 25 F. Cas., at
37 (stating that nothing before the court showed that the document
in question “contain[ed] any matter the disclosure of which would
endanger the public safety”). And he noted that a court may not “be
required to proceed against the president as against an ordinary
individual.” Burr II , 25 F. Cas., at 192.

															Similarly, when a subpoena issued to President
Nixon to produce certain tape recordings and documents relating to
his conversations with aides and advisers, this Court rejected his
claim of “absolute privilege,” given the “constitutional duty of
the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon , 418 U.S.
683 , 703, 707 (1974). But we simultaneously recognized “the
public interest in candid, objective, and even blunt or harsh
opinions in Presidential decisionmaking,” as well as the need to
protect “communications between high Government officials and those
who advise and assist them in the performance of their manifold
duties.” Id ., at 705, 708. Because the President’s “need for
complete candor and objectivity from advisers calls for great
deference from the courts,” we held that a “presumptive privilege”
protects Presidential communications. Id ., at 706, 708. That
privilege, we explained, “relates to the effective discharge of a
President’s powers.” Id. , at 711. We thus deemed it
“fundamental to the operation of Government and inextricably rooted
in the separation of powers under the Constitution.” Id ., at
708.

															2

															Criminally prosecuting a President for
official conduct undoubtedly poses a far greater threat of
intrusion on the authority and functions of the Executive Branch
than simply seeking evidence in his possession, as in Burr and Nixon . The danger is akin to, indeed greater than, what
led us to recognize absolute Presidential immunity from civil
damages liability—that the President would be chilled from taking
the “bold and unhesitating action” required of an independent
Executive. Fitzgerald , 457 U. S., at 745. Although the
President might be exposed to fewer criminal prosecutions than the
range of civil damages suits that might be brought by various
plaintiffs, the threat of trial, judgment, and imprisonment is a
far greater deterrent. Potential criminal liability, and the
peculiar public opprobrium that attaches to criminal proceedings,
are plainly more likely to distort Presidential decisionmaking than
the potential payment of civil damages.

															The hesitation to execute the duties of his
office fearlessly and fairly that might result when a President is
making decisions under “a pall of potential prosecution,” McDonnell v. United States , 579 U.S. 550, 575 (2016),
raises “unique risks to the effective functioning of government,” Fitzgerald , 457 U. S., at 751. A President inclined to
take one course of action based on the public interest may instead
opt for another, apprehensive that criminal penalties may befall
him upon his departure from office. And if a former President’s
official acts are routinely subjected to scrutiny in criminal
prosecutions, “the independence of the Executive Branch” may be
significantly undermined. Vance , 591 U. S., at 800. The
Framers’ design of the Presidency did not envision such
counterproductive burdens on the “vigor[ ]” and “energy” of
the Executive. The Federalist No. 70, at 471–472.

															We must, however, “recognize[ ] the
countervailing interests at stake.” Vance , 591 U. S.,
at 799. Federal criminal laws seek to redress “a wrong to the
public” as a whole, not just “a wrong to the individual.” Huntington v. Attrill , 146 U.S.
657 , 668 (1892). There is therefore a compelling “public
interest in fair and effective law enforcement.” Vance , 591
U. S., at 808. The President, charged with enforcing federal
criminal laws, is not above them.

															Chief Justice Marshall’s decisions in Burr and our decision in Nixon recognized the
distinct interests present in criminal prosecutions. Although Burr acknowledged that the President’s official papers may
be privileged and publicly unavailable, it did not grant him an
absolute exemption from responding to subpoenas. See Burr
II , 25 F. Cas., at 192; Burr I , 25 F. Cas., at
33–34. Nixon likewise recognized a strong protection for the
President’s confidential communications—a “presumptive
privilege”—but it did not entirely exempt him from providing
evidence in criminal proceedings. 418 U. S., at 708.

															Taking into account these competing
considerations, we conclude that the separation of powers
principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a
President’s acts within the outer perimeter of his official
responsibility. Such an immunity is required to safeguard the
independence and effective functioning of the Executive Branch, and
to enable the President to carry out his constitutional duties
without undue caution. Indeed, if presumptive protection for the
President is necessary to enable the “effective discharge” of his
powers when a prosecutor merely seeks evidence of his official
papers and communications, id. , at 711, it is certainly
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 immune from prosecution for an official
act unless the Government can show that applying a criminal
prohibition to that act would pose no “dangers of intrusion on the
authority and functions of the Executive Branch.” Fitzgerald , 457 U. S., at 754.

															But as we explain below, the current stage of
the proceedings in this case does not require us to decide whether
this immunity is presumptive or absolute. See Part III–B, infra . Because we need not decide that question today, we do
not decide it. “[O]ne case” in more than “two centuries does not
afford enough experience” to definitively and comprehensively
determine the President’s scope of immunity from criminal
prosecution. Mazars , 591 U. S., at 871.

															C

															As for a President’s unofficial acts, there is
no immunity. The principles we set out in Clinton v. Jones confirm as much. When Paula Jones brought a civil
lawsuit against then-President Bill Clinton for acts he allegedly
committed prior to his Presidency, we rejected his argument that he
enjoyed temporary immunity from the lawsuit while serving as
President. 520 U. S., at 684. Although Presidential immunity
is required for official actions to ensure that the
President’s decisionmaking is not distorted by the threat of future
litigation stemming from those actions, that concern does not
support immunity for unofficial conduct. Id. , at 694,
and n. 19. The “ ‘justifying purposes’ ” of the
immunity we recognized in Fitzgerald , and the one we
recognize today, are not that the President must be immune because
he is the President; rather, they are to ensure that the President
can undertake his constitutionally designated functions
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, not the 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
prosecution predicated on the President’s unofficial acts.[ 2 ]

															III

															Determining whether a former President is
entitled to immunity from a particular prosecution requires
applying the principles we have laid out to his conduct at issue.
The first step is to distinguish his official from unofficial
actions. In this case, however, no court has thus far considered
how to draw that distinction, in general or with respect to the
conduct alleged in particular.

															Despite the unprecedented nature of this case,
and the very significant constitutional questions that it raises,
the lower courts rendered their decisions on a highly expedited
basis. Because those courts categorically rejected any form
of Presidential immunity, they did not analyze the conduct alleged
in the indictment to decide which of it should be categorized as
official and which unofficial. Neither party has briefed that issue
before us (though they discussed it at oral argument in response to
questions). And like the underlying immunity question, that
categorization raises multiple unprecedented and momentous
questions about the powers of the President and the limits of his
authority under the Constitution. As we have noted, there is little
pertinent precedent on those subjects to guide our review of this
case—a case that we too are deciding on an expedited basis, less
than five months after we granted the Government’s request to
construe Trump’s emergency application for a stay as a petition for
certiorari, grant that petition, and answer the consequential
immunity question. See 601 U. S., at ___. Given all these
circumstances, it is particularly incumbent upon us to be mindful
of our frequent admonition that “[o]urs is a court of final review
and not first view.” Zivotofsky v. Clinton , 566 U.S.
189 , 201 (2012) (internal quotation marks omitted).

															Critical threshold issues in this case are how
to differentiate between a President’s official and unofficial
actions, and how to do so with respect to the indictment’s
extensive and detailed allegations covering a broad range of
conduct. We offer guidance on those issues below. Certain
allegations—such as those involving Trump’s discussions with the
Acting Attorney General—are readily categorized in light of the
nature of the President’s official relationship to the office held
by that individual. Other allegations—such as those involving
Trump’s interactions with the Vice President, state officials, and
certain private parties, and his comments to the general
public—present more difficult questions. Although we identify
several considerations pertinent to classifying those allegations
and determining whether they are subject to immunity, that analysis
ultimately is best left to the lower courts to perform in the first
instance.

															A

															Distinguishing the President’s official
actions from his unofficial ones can be difficult. When the
President acts pursuant to “constitutional and statutory
authority,” he takes official action to perform the functions of
his office. Fitzgerald , 457 U. S., at 757. Determining
whether an action is covered by immunity thus begins with assessing
the President’s authority to take that action.

															But the breadth of the President’s
“discretionary responsibilities” under the Constitution and laws of
the United States “in a broad variety of areas, many of them highly
sensitive,” frequently makes it “difficult to determine which of
[his] innumerable ‘functions’ encompassed a particular action.” Id ., at 756. And some Presidential conduct—for example,
speaking to and on behalf of the American people, see Trump v. Hawaii , 585 U.S. 667, 701 (2018)—certainly can qualify as
official even when not obviously connected to a particular
constitutional or statutory provision. For those reasons, 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 palpably beyond [his] authority.” Blassingame v. Trump , 87 F. 4th 1, 13 (CADC
2023) (internal quotation marks omitted); see Fitzgerald ,
457 U. S., at 755–756 (noting that we have “refused to draw
functional lines finer than history and reason would support”).

															In dividing official from unofficial conduct,
courts may not inquire into the President’s motives. Such an
inquiry would risk exposing even the most obvious instances of
official conduct to judicial examination on the mere allegation of
improper purpose, thereby intruding on the Article II interests
that immunity seeks to protect. Indeed, “[i]t would seriously
cripple the proper and effective administration of public affairs
as entrusted to the executive branch of the government” if “[i]n
exercising the functions of his office,” the President was “under
an apprehension that the motives that control his official conduct
may, at any time, become the subject of inquiry.” Fitzgerald , 457 U. S., at 745 (quoting Spalding v. Vilas , 161 U.S.
483 , 498 (1896)). We thus rejected such inquiries in Fitzgerald . The plaintiff there contended that he was
dismissed from the Air Force for retaliatory reasons. See 457
U. S., at 733–741, 756. The Air Force responded that the
reorganization that led to Fitzgerald’s dismissal was undertaken to
promote efficiency. Ibid. Because under Fitzgerald’s theory
“an inquiry into the President’s motives could not be avoided,” we
rejected the theory, observing that “[i]nquiries of this kind could
be highly intrusive.” Id. , at 756. “[B]are allegations of
malice should not suffice to subject government officials either to
the costs of trial or to the burdens of broad-reaching discovery.” Harlow v. Fitzgerald , 457 U.S.
800 , 817–818 (1982).

															Nor may courts deem an action unofficial merely
because it allegedly violates a generally applicable law. For
instance, when Fitzgerald contended that his dismissal violated
various congressional statutes and thus rendered his discharge
“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 that an action was
unlawful,” depriving immunity of its intended effect. Ibid. B

															With these principles in mind, we turn to the
conduct alleged in the indictment.

															1

															The indictment broadly alleges that Trump and
his co-conspirators sought to “overturn the legitimate results of
the 2020 presidential election.” App. 183, Indictment ¶7. It
charges that they conspired to obstruct the January 6 congressional
proceeding at which electoral votes are counted and certified, and
the winner of the election is certified as President-elect. Id ., at 181–185, ¶¶4, 7, 9. As part of this conspiracy,
Trump and his co-conspirators allegedly attempted to leverage the
Justice Department’s power and authority to convince certain States
to replace their legitimate 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 other
senior Justice Department and White House officials to discuss
investigating purported election fraud and sending a letter from
the Department to those States regarding such fraud. See, e.g. , id. , at 217, 219–220, ¶¶77, 84. The indictment
further alleges that after the Acting Attorney General resisted
Trump’s requests, Trump repeatedly threatened to replace him. See, e.g. , id ., at 216–217, ¶¶74, 77.

															The Government does not dispute that the
indictment’s allegations regarding the Justice Department involve
Trump’s “use of official power.” Brief for United States 46; see id. , at 10–11; Tr. of Oral Arg. 125. The allegations in fact
plainly implicate Trump’s “conclusive and preclusive” authority.
“[I]nvestigation and prosecution of crimes is a quintessentially
executive function.” Brief for United States 19 (quoting Morrison v. Olson , 487 U.S.
654 , 706 (1988) (Scalia, J., dissenting)). And the Executive
Branch has “exclusive authority and absolute discretion” to decide
which crimes to investigate and prosecute, including with respect
to allegations of election crime. Nixon , 418 U. S., at
693; see United States v. Texas , 599 U.S. 670,
678–679 (2023) (“Under Article II, the Executive Branch possesses
authority to decide ‘how to prioritize and how aggressively to
pursue legal actions against defendants who violate the
law.’ ” (quoting TransUnion LLC v. Ramirez , 594
U.S. 413, 429 (2021))). The President may discuss potential
investigations and prosecutions with his Attorney General and other
Justice Department officials to carry out his constitutional duty
to “take Care that the Laws be faithfully executed.” Art. II,
§3. And the Attorney General, as head of the Justice Department,
acts as the President’s “chief law enforcement 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 “the special province of the Executive Branch,” Heckler v. Chaney , 470 U.S.
821 , 832 (1985), and the Constitution vests the entirety of the
executive power in the President, Art. II, §1. For that reason,
Trump’s threatened removal of the Acting Attorney General likewise
implicates “conclusive and preclusive” Presidential authority. As
we have explained, the President’s power to remove “executive
officers of the United States whom he has appointed” may not be
regulated 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 to have
“unrestricted power to remove the most important of his
subordinates”—such as the Attorney General—“in their most important
duties.” Fitzgerald , 457 U. S., at 750 (internal
quotation marks and alteration omitted).

															The indictment’s allegations that the requested
investigations were “sham[s]” or proposed for an improper purpose
do not divest the President of exclusive authority over the
investigative and prosecutorial functions of the Justice Department
and its officials. App. 186–187, Indictment ¶10(c). And the
President cannot be prosecuted for conduct within his exclusive
constitutional authority. Trump is therefore absolutely immune from
prosecution for the alleged conduct involving his discussions with
Justice Department officials.

															2

															The indictment next alleges that Trump and his
co-conspirators “attempted to enlist the Vice President to use his
ceremonial role at the January 6 certification proceeding to
fraudulently alter the election results.” Id ., at 187,
¶10(d). In particular, the indictment alleges several conversations
in which Trump pressured the Vice President to reject States’
legitimate electoral votes or send them back to state legislatures
for review. See, e.g. , id ., at 222–224, 226, ¶¶90,
92–93, 97.

															The Government explained at oral argument that
although it “has not yet had to come to grips with how [it] would
analyze” Trump’s interactions with the Vice President, there is
“support” to characterize that conduct as official. Tr. of Oral
Arg. 128. Indeed, our constitutional system anticipates that the
President and Vice President will remain in close contact regarding
their official duties over the course of the President’s term in
office. These two officials are the only ones “elected by the
entire Nation.” Seila Law , 591 U. S., at 224; see Art.
II, §1. The Constitution provides that “the Vice President shall
become President” in the case of “the removal of the President from
office or of his death or resignation.” Amdt. 25, §1. It also
“empowers the Vice President, together with a majority of the
‘principal officers of the executive departments,’ to declare the
President ‘unable to discharge the powers and duties of his
office.’ ” Freytag v. Commissioner , 501 U.S.
868 , 886–887 (1991) (quoting Amdt. 25, §4). And Article I of
course names the Vice President as President of the Senate and
gives him a tiebreaking vote. §3, cl. 4. It is thus important
for the President to discuss official matters with the Vice
President to ensure continuity within the Executive Branch and to
advance the President’s agenda in Congress and beyond.

															The Vice President may in practice also serve as
one of the President’s closest advisers. The Office of Legal
Counsel has explained that within the Executive Branch, the Vice
President’s “sole function [is] advising and assisting the
President.” Whether the Office of the Vice President Is an ‘Agency’
for Purposes of the Freedom of Information Act, 18 Op. OLC 10
(1994). Indeed, the “ Twelfth Amendment was brought about” to avoid
the “manifestly intolerable” situation that occurred “[d]uring the
John Adams administration,” when “we had a President and
Vice-President of different parties.” Ray v. Blair , 343 U.S.
214 , 224, n. 11 (1952). The President and Vice President
together “are the senior officials of the Executive Branch of
government” and therefore “must formulate, explain, advocate, and
defend policies” of the President’s administration. Payment of
Expenses Associated With Travel by the President and Vice
President, 6 Op. OLC 214, 215 (1982).

															As the President’s second in command, the Vice
President has historically performed important functions “at the
will and as the representative of the President.” Participation of
the Vice President in the Affairs of the Executive Branch, 1 Supp.
Op. OLC 214, 220 (1961). President Woodrow Wilson’s Vice President,
for instance, “presided over a few cabinet meetings while Wilson
was in France negotiating” the Treaty of Versailles after World War
I. H. Relyea, The Law: The Executive Office of the Vice President:
Constitutional and Legal Considerations, 40 Presidential Studies Q.
327, 328 (2010). During President Franklin Roosevelt’s
administration, the Vice President “became a regular participant in
cabinet deliberations—a practice that was continued by each
succeeding president.” Ibid. And when President Dwight
Eisenhower “suffered three major illnesses while in office
. . . Vice President Richard Nixon consulted with the
Cabinet and developed a procedure for relaying important matters to
the President.” Presidential Succession and Delegation in Case of
Disability, 5 Op. OLC 91, 102 (1981). At the President’s
discretion, “the Vice President may engage in activities ranging
into the highest levels of diplomacy and negotiation and may do so
anywhere in the world.” 1 Supp. Op. OLC, at 220. Domestically, he
may act as the President’s delegate to perform any duties
“co-extensive with the scope of the President’s power of
delegation.” Ibid. Whenever the President and Vice President
discuss their official responsibilities, they engage in official
conduct. Presiding over the January 6 certification proceeding at
which Members of Congress count the electoral votes is a
constitutional and statutory duty of the Vice President.
Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15.
The indictment’s allegations that Trump attempted to pressure the
Vice President to take particular acts in connection with his role
at the certification proceeding thus involve official conduct, and
Trump is at least presumptively immune from prosecution for such
conduct.

															The question then becomes whether that
presumption of immunity is rebutted under the circumstances. When
the Vice President presides over the January 6 certification
proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of
advising and assisting the President within the Executive 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 Interest Problems Arising Out of the
President’s Nomination of Nelson A. Rockefeller To Be Vice
President Under the Twenty-Fifth Amendment to the Constitution 2
(Aug. 28, 1974). With respect to the certification proceeding in
particular, Congress has legislated extensively to define the Vice
President’s role in the counting of the electoral votes, see, e.g. , 3 U. S. C. §15, and the President plays no
direct constitutional or statutory role in that process. So the
Government may argue that consideration of the President’s
communications with the Vice President concerning the certification
proceeding does not pose “dangers of intrusion on 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
frequently rely on the Vice President in his capacity as President
of the Senate to advance the President’s agenda in Congress. When
the Senate is closely divided, for instance, the Vice President’s
tiebreaking vote may be crucial for confirming the President’s
nominees and passing laws that align with the President’s policies.
Applying a criminal prohibition to the President’s conversations
discussing such matters with the Vice President—even though they
concern his role as President of the Senate—may well hinder the
President’s ability to perform his constitutional functions.

															It is ultimately the Government’s burden to
rebut the presumption of immunity. We therefore remand to the
District Court to assess in the first instance, with appropriate
input from the parties, whether a prosecution involving Trump’s
alleged attempts to influence the Vice President’s oversight of the
certification proceeding in his capacity as President of the Senate
would pose any dangers of intrusion on the authority and functions
of the Executive Branch.

															3

															The indictment’s remaining allegations cover a
broad range of conduct. Unlike the allegations describing Trump’s
communications with the Justice Department and the Vice President,
these remaining allegations involve Trump’s interactions with
persons outside the Executive Branch: state officials, private
parties, and the general public. Many of the remaining allegations,
for instance, cover at great length events arising out of
communications that Trump and his co-conspirators initiated with
state legislators and election officials in Arizona, Georgia,
Michigan, Pennsylvania, and Wisconsin regarding those States’
certification of electors. See App. 192–207, Indictment
¶¶13–52.

															Specifically, the indictment alleges that Trump
and his co-conspirators attempted to convince those officials that
election fraud had tainted the popular vote count in their States,
and thus electoral votes for Trump’s opponent needed to be changed
to electoral votes for Trump. See id ., at 185–186, ¶10(a).
After Trump failed to convince those officials to alter their state
processes, he and his co-conspirators allegedly developed a plan
“to marshal individuals who would have served as [Trump’s]
electors, had he won the popular vote” in Arizona, Georgia,
Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, “and
cause those individuals to make and send to the Vice President and
Congress false certifications that they were legitimate electors.” Id ., at 208, ¶53. If the plan worked, “the submission of
these fraudulent slates” would position the Vice President to “open
and count the fraudulent votes” at the certification proceeding and
set up “a fake controversy that would derail the proper
certification of Biden as president-elect.” Id ., at 208–209,
¶¶53, 54(b). According to the indictment, Trump used his campaign
staff to effectuate the plan. See, e.g. , id ., at 210,
212–213, ¶¶55, 63. On the same day that the legitimate electors met
in their respective jurisdictions to cast their votes, the
indictment alleges that Trump’s “fraudulent electors convened sham
proceedings in the seven targeted states to cast fraudulent
electoral ballots” in his favor. Id ., at 214, ¶66. Those
ballots “were mailed to the President of the Senate, the Archivist
of the United States, and others.” Ibid ., ¶67.

															At oral argument, Trump appeared to concede that
at least some of these acts—those involving “private actors” who
“helped implement a plan to submit fraudulent slates of
presidential electors to obstruct the certification proceeding” at
the direction of Trump and a co-conspirator—entail “private”
conduct. Tr. of Oral Arg. 29–30. He later asserted, however, that
asking “the chairwoman of the Republican National Committee
. . . to gather electors” qualifies as official conduct
because “the organization of alternate slates of electors is based
on, for example, the historical example of President Grant as
something that was done pursuant to and ancillary and preparatory
to the exercise of ” a core Presidential power. Id. , at
37; see also id. , at 25 (discussing the “historical
precedent . . . of President Grant sending federal troops
to Louisiana and Mississippi in 1876 to make sure that the
Republican electors got certified in those two cases, which
delivered the election to Rutherford B. Hayes”). He also argued
that it is “[a]bsolutely an official act for the president to
communicate with state officials on . . . the integrity
of a federal election.” Id. , at 38. The Government
disagreed, contending that this alleged conduct does not qualify as
“official conduct” but as “campaign conduct.” Id. , at
124–125.

															On Trump’s view, the alleged conduct qualifies
as official because it was undertaken to ensure the integrity and
proper administration of the federal election. Of course, the
President’s duty to “take Care that the Laws be faithfully
executed” plainly encompasses enforcement of federal election laws
passed by Congress. Art. II, §3. And the President’s broad
power to speak on matters of public concern does not exclude his
public communications regarding the fairness and integrity of
federal elections simply because he is running for re-election. Cf. Hawaii , 585 U. S., at 701. Similarly, the President may
speak on and discuss such matters with state officials—even when no
specific federal responsibility requires his communication—to
encourage them to act in a manner that promotes the President’s
view of the public good.

															As the Government sees it, however, these
allegations encompass nothing more than Trump’s “private scheme
with private actors.” Brief for United States 44. In its view,
Trump can point to no plausible source of authority enabling the
President to not only organize alternate slates of electors but
also cause those electors—unapproved by any state official—to
transmit votes to the President of the Senate for counting at the
certification proceeding, thus interfering with the votes of
States’ properly appointed electors. Indeed, the Constitution
commits to the States the power to “appoint” Presidential electors
“in such Manner as the Legislature thereof may direct.”
Art. II, §1, cl. 2; see Burroughs v. United
States , 290 U.S.
534 , 544 (1934). “Article II, §1’s appointments power,” we have
said, “gives the States far-reaching authority over presidential
electors, absent 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 limited. Congress may prescribe when the state-appointed
electors shall meet, and it counts and certifies their votes. Art.
II, §1, cls. 3, 4. The President, meanwhile, plays no direct role
in the process, nor does he have authority to control the state
officials who do. And the Framers, wary of “cabal, intrigue and
corruption,” specifically excluded from service as electors “all
those who from situation might be suspected 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, and with respect to which conduct, requires a close
analysis of the indictment’s extensive and interrelated
allegations. See App. 192–215, Indictment ¶¶13–69. Unlike Trump’s
alleged interactions with the Justice Department, this alleged
conduct cannot be neatly categorized as falling within a particular
Presidential function. The necessary analysis is instead fact
specific, requiring assessment of numerous alleged interactions
with a wide variety of state officials and private persons. And the
parties’ brief comments at oral argument indicate that they starkly
disagree on the characterization of these allegations. The concerns
we noted at the outset—the expedition of this case, the lack of
factual analysis by the lower courts, and the absence of pertinent
briefing by the parties—thus become more prominent. We accordingly
remand to the District Court to determine in the first
instance—with the benefit of briefing we lack—whether Trump’s
conduct in this area qualifies as official or unofficial.

															4

															Finally, the indictment contains various
allegations regarding Trump’s conduct in connection with the events
of January 6 itself. It alleges that leading up to the January 6
certification proceeding, Trump issued a series of Tweets (to his
nearly 89 million followers) encouraging his supporters to travel
to Washington, D. C., on that day. See, e.g. , App. 221,
225–227, Indictment ¶¶87–88, 96, 100. Trump and his co-conspirators
addressed the gathered public that morning, asserting that certain
States wanted to recertify their electoral votes and that the Vice
President had the power to send those States’ ballots back for
recertification. Id. , at 228–230, ¶¶103–104. Trump then
allegedly “directed the crowd in front of him to go to the Capitol”
to pressure the Vice President to do so at the certification
proceeding. Id. , at 228–230, ¶104. When it became public
that the Vice President would not use his role at the certification
proceeding to determine which electoral votes should be counted,
the crowd gathered at the Capitol “broke through barriers 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
communications in the form of Tweets and a public address. The
President possesses “extraordinary power to speak to his fellow
citizens and on their behalf.” Hawaii , 585 U. S., at
701; cf. Lindke v. Freed , 601 U.S. 187, 191 (2024).
As the sole person charged by the Constitution with executing the
laws of the United States, the President oversees—and thus will
frequently speak publicly about—a vast array of activities that
touch on nearly every aspect of American life. Indeed, a
long-recognized aspect of Presidential power is using the office’s
“bully pulpit” to persuade Americans, including by speaking
forcefully or critically, in ways that the President believes would
advance the public interest. He is even expected to comment on
those matters of public concern that may not directly implicate the
activities of the Federal Government—for instance, to comfort the
Nation in the wake of an emergency or tragedy. For these reasons,
most of a President’s public communications are likely to fall
comfortably within the outer perimeter of his official
responsibilities.

															There may, however, be contexts in which the
President, notwithstanding the prominence of his position, speaks
in an unofficial capacity—perhaps as a candidate for office or
party leader. To the extent that may be the case, objective
analysis of “content, form, and context” will necessarily inform
the inquiry. Snyder v. Phelps , 562 U.S.
443 , 453 (2011) (internal quotation marks omitted). But “there
is not always a clear line between [the President’s] personal and
official affairs.” Mazars , 591 U. S., at 868. The
analysis therefore must be fact specific and may prove to be
challenging.

															The indictment reflects these challenges. It
includes only select Tweets and brief snippets of the speech Trump
delivered on the morning of January 6, omitting its full text or
context. See App. 228–230, Indictment ¶104. Whether the Tweets,
that speech, and Trump’s other communications on January 6 involve
official conduct may depend on the content and context of each.
Knowing, for instance, what else was said contemporaneous to the
excerpted communications, or who was involved in transmitting the
electronic communications and in organizing the rally, could be
relevant to the classification of each communication. This
necessarily factbound analysis is best performed initially by the
District Court. We therefore remand to the District Court to
determine in the first instance whether this alleged conduct is
official or unofficial.

															C

															The essence of immunity “is its possessor’s
entitlement not to have to answer for his conduct” in court. Mitchell , 472 U. S., at 525. Presidents therefore
cannot be indicted based on conduct for which they are immune from
prosecution. As we have explained, the indictment here alleges at
least some such conduct. See Part III–B–1, supra . On remand,
the District Court must carefully analyze the indictment’s
remaining allegations to determine whether they too involve conduct
for which a President must be immune from prosecution. And the
parties and the District Court must ensure that sufficient
allegations support the indictment’s charges without such
conduct.

															The Government does not dispute that if Trump is
entitled to immunity for certain official acts, he may not “be held
criminally liable” based on those acts. Brief for United States 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 evidence would “be admissible to prove,
for example, [Trump’s] knowledge or notice of the falsity of his
election-fraud claims.” Id. , at 46, 48. That proposal
threatens to eviscerate the immunity we have recognized. It would
permit a prosecutor to do indirectly what he cannot do
directly—invite the jury to examine acts for which a President is
immune from prosecution to nonetheless prove his liability on any
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 light of the separation
of powers principles we have outlined.

															If official conduct for which the President is
immune may be scrutinized to help secure his conviction, even on
charges that purport to be based only on his unofficial conduct,
the “intended effect” of immunity would be defeated. Fitzgerald , 457 U. S., at 756. The President’s immune
conduct would be subject to examination by a jury on the basis of
generally applicable criminal laws. Use of evidence about such
conduct, even when an indictment alleges only unofficial conduct,
would thereby heighten the prospect that the President’s official
decisionmaking will be distorted. See Clinton , 520
U. S., at 694, n. 19.

															The Government asserts that these weighty
concerns can be managed by the District Court through the use of
“evidentiary rulings” and “jury instructions.” Brief for United
States 46. But such tools are unlikely to protect adequately the
President’s constitutional prerogatives. Presidential acts
frequently deal with “matters likely to ‘arouse the most intense
feelings.’  ” Fitzgerald , 457 U. S., at 752
(quoting Pierson , 386 U. S., at 554). Allowing
prosecutors to ask or suggest that the jury probe official acts for
which the President is immune would thus raise a unique risk that
the jurors’ deliberations will be prejudiced by their views of the
President’s policies and performance while in office. The prosaic
tools on which the Government would have courts rely are an
inadequate safeguard against the peculiar constitutional concerns
implicated in the prosecution of a former President. Cf. Nixon , 418 U. S., at 706. Although such tools may
suffice to protect the constitutional rights of individual criminal
defendants, the interests that underlie Presidential immunity seek
to protect not the President himself, but the institution of the
Presidency.[ 3 ]

															IV

															A

															Trump asserts a far broader immunity than the
limited one we have recognized. He contends that the indictment
must be dismissed because the Impeachment Judgment Clause requires
that impeachment and Senate conviction precede a President’s
criminal prosecution. Brief for Petitioner 16.

															The text of the Clause provides little support
for such an absolute immunity. It states that an impeachment
judgment “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. It then
specifies that “the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.” Ibid . (emphasis added). The Clause both
limits the consequences of an impeachment judgment and clarifies
that notwithstanding such judgment, subsequent prosecution may
proceed. By its own terms, the Clause does not address whether and
on what conduct a President may be prosecuted if he was never
impeached and convicted.

															Historical evidence likewise lends little
support to Trump’s position. For example, Justice Story reasoned
that without the Clause’s clarification that “Indictment, Trial,
Judgment and Punishment” may nevertheless follow Senate 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 impeachments.” 2 J.
Story, Commentaries on the Constitution of the United States §780,
p. 251 (1833). James Wilson, who served on the Committee that
drafted the Clause and later as a Justice of this Court, similarly
concluded that acquittal of impeachment charges posed no bar to
subsequent prosecution. See 2 Documentary History of the
Ratification of the Constitution 492 (M. Jensen ed. 1979). And
contrary to Trump’s contention, Alexander Hamilton did not
disagree. The Federalist Papers on which Trump relies, see Brief
for Petitioner 17–18, concerned the checks available against a sitting President. Hamilton noted that unlike “the King of
Great-Britain,” the President “would be liable to be impeached” and
“removed from office,” and “would afterwards be liable to
prosecution and punishment.” The Federalist No. 69, at 463; see
also id ., No. 77, at 520 (explaining that the President is
“at all times liable to impeachment, trial, dismission from office
. . . and to the forfeiture of life and estate by
subsequent prosecution”). Hamilton did not endorse or even consider
whether the Impeachment Judgment Clause immunizes a former President from prosecution.

															The implication of Trump’s theory is that a
President who evades impeachment for one reason or another during
his term in office can never be held accountable for his criminal
acts in the ordinary course of law. So if a President manages to
conceal certain crimes throughout his Presidency, or if Congress is
unable to muster the political will to impeach the President for
his crimes, then they must forever remain impervious to
prosecution.

															Impeachment is a political process by which
Congress can remove a President who has committed “Treason,
Bribery, or other high Crimes and Misdemeanors.” Art. II, §4.
Transforming that political process into a necessary step in the
enforcement of criminal law finds little support in the text of the
Constitution or the structure of our Government.

															B

															The Government for its part takes a similarly
broad view, contending that the President enjoys no immunity from
criminal prosecution for any action. It maintains this view despite
agreeing with much of our analysis.

															For instance, the Government does not dispute
that Congress may not criminalize Presidential conduct within the
President’s “conclusive and preclusive” constitutional authority.
See Tr. of Oral Arg. 133 (“[C]ore powers . . . can’t be
regulated at all, like the pardon power and veto.”); see also id. , at 84–85. And it too accords protection to Presidential
conduct if subjecting that conduct to generally applicable laws
would “raise serious constitutional questions regarding the
President’s authority” or cause a “possible conflict with the
President’s constitutional prerogatives.” Application of 28
U. S. C. §458 to Presidential Appointments of Federal
Judges, 19 Op. OLC 350, 351–352 (1995); see Brief for United States
26–29; Tr. of Oral Arg. 78. Indeed, the Executive Branch has long
held that view. The Office of Legal Counsel has recognized, for
instance, that a federal statute generally prohibiting appointments
to “ ‘any office or duty in any court’ ” of persons
within certain degrees of consanguinity to the judges of such
courts would, if applied to the President, infringe his power to
appoint federal judges, thereby raising a serious constitutional
question. 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 to the President. Likewise, it has narrowly construed a
criminal prohibition on grassroots lobbying to avoid the
constitutional issues that would otherwise arise, reasoning that
the statute should not “be construed to prohibit the President or
executive branch agencies from engaging in a general open dialogue
with the public on the Administration’s programs and policies.”
Constraints Imposed by 18 U. S. C. §1913 on Lobbying
Efforts, 13 Op. OLC 300, 304 (1989); see id ., at
304–306.

															The Government thus broadly agrees that the
President’s official acts are entitled to some degree of
constitutional protection. And with respect to the allegations in
the indictment before us, the Government agrees that at least some
of the alleged conduct involves official acts. See Tr. of Oral Arg.
125; cf. id. , at 128.

															Yet the Government contends that the President
should not be considered immune from prosecution for those official
acts. See Brief for United States 9. On the Government’s view,
as-applied challenges in the course of the trial suffice to protect
Article II interests, and review of a district court’s decisions on
such challenges should be deferred until after trial. See Tr. of
Oral Arg. 69, 79–80, 154–158. If the President is instead immune
from prosecution, a district court’s denial of immunity would be
appealable before trial. See Mitchell , 472 U. S., at
524–530 (explaining that questions of immunity are reviewable
before trial because the essence of immunity is the entitlement not
to be subject to suit).

															The Government asserts that the “[r]obust
safeguards” available in typical criminal proceedings alleviate the
need for pretrial review. Brief for United States 20 (boldface and
emphasis omitted). First, it points to the Justice Department’s
“longstanding commitment to the impartial enforcement of the law,” id. , at 21, as well as the criminal justice system’s further
protections: grand juries, a defendant’s procedural rights during
trial, and the requirement that the Government prove its case
beyond a reasonable doubt, id. , at 22. Next, it contends
that “existing principles of statutory construction and as-applied
constitutional challenges” adequately address the separation of
powers concerns involved in applying generally applicable criminal
laws to a President. Id. , at 29. Finally, the Government
cites certain defenses that would be available to the President in
a particular prosecution, such as the public-authority defense or
the advice of the Attorney General. Id. , at 29–30; see Nardone v. United States , 302
U.S. 379 , 384 (1937); Tr. of Oral Arg. 107–108.

															These safeguards, though important, do not
alleviate the need for pretrial review. They fail to address the
fact that under our system of separated powers, criminal
prohibitions cannot apply to certain Presidential conduct to begin
with. As we have explained, when the President acts pursuant to his
exclusive constitutional powers, Congress cannot—as a structural
matter—regulate such actions, and courts cannot review them. See
Part II–A, supra . And he is at least presumptively immune
from prosecution for his other official actions. See Part II–B, supra .

															Questions about whether the President may be
held liable for particular actions, consistent with the separation
of powers, must be addressed at the outset of a proceeding. Even if
the President were ultimately not found liable for certain official
actions, the possibility of an extended proceeding alone may render
him “unduly cautious in the discharge of his official duties.” Fitzgerald , 457 U. S., at 752, n. 32.
Vulnerability “ ‘to the burden of a trial and to the
inevitable danger of its outcome, would dampen the ardor of all but
the most resolute.’ ” Id. , at 752–753, n. 32
(quoting Gregoire v. Biddle , 177 F.2d 579, 581 (CA2
1949) (Hand, L., C. J.)). The Constitution does not tolerate
such impediments to “the effective functioning of government.” Fitzgerald , 457 U. S., at 751.

															As for the Government’s assurances that
prosecutors and grand juries will not permit political or baseless
prosecutions from advancing in the first place, those assurances
are available to every criminal defendant and fail to account for
the President’s “unique position in the constitutional scheme.” Id. , at 749. We do not ordinarily decline to decide
significant constitutional questions based on the Government’s
promises of good faith. See United States v. Stevens , 559 U.S.
460 , 480 (2010) (“We would not uphold an unconstitutional
statute merely because the Government promised to use it
responsibly.”). Nor do we do so today.

															C

															As for the dissents, they strike a tone of
chilling doom that is wholly disproportionate to what the Court
actually does today—conclude that immunity extends to official
discussions between the President and his Attorney General, and
then remand to the lower courts to determine “in the first
instance” whether and to what extent Trump’s remaining alleged
conduct is entitled to immunity. Supra , at 24, 28, 30.

															The principal dissent’s starting premise—that
unlike Speech and Debate Clause immunity, no constitutional text
supports Presidential immunity, see post , at 4–6 (opinion of
Sotomayor, J.)—is one that the Court rejected decades ago as
“unpersuasive.” Fitzgerald , 457 U. S., at 750,
n. 31; see also Nixon , 418 U. S., at 705–706,
n. 16 (rejecting unanimously a similar argument in the
analogous executive privilege context). “[A] specific textual basis
has not been considered a prerequisite to the recognition of
immunity.” Fitzgerald , 457 U. S., at 750, n. 31.
Nor is that premise correct. True, there is no “Presidential
immunity clause” in the Constitution. But there is no
“ ‘separation of powers clause’ ” either. Seila
Law , 591 U. S., at 227. Yet that doctrine is undoubtedly
carved into the Constitution’s text by its three articles
separating powers and vesting the Executive power solely in the
President. See ibid. And the Court’s prior decisions, such
as Nixon and Fitzgerald , have long recognized that
doctrine as mandating certain Presidential privileges and
immunities, even though the Constitution contains no explicit
“provision for immunity.” Post , at 4; see Part II–B–1, supra . Neither the dissents nor the Government disavow any
of those prior decisions. See Tr. of Oral Arg. 76–77.

															The principal dissent then cites the Impeachment
Judgment Clause, arguing that it “clearly contemplates that a
former President may be subject to criminal prosecution.” Post , at 6. But that Clause does not indicate whether a
former President may, consistent with the separation of powers, be
prosecuted for his official conduct in particular. See supra , at 32–33. And the assortment of historical sources
the principal dissent cites are unhelpful for the same reason. See post , at 6–8. As the Court has previously noted, relevant
historical evidence on the question of Presidential immunity is of
a “fragmentary character.” Fitzgerald , 457 U. S., at
752, n. 31; see also Clinton , 520 U. S., at
696–697; cf. Youngstown , 343 U. S., at 634 (Jackson,
J., concurring) (noting “the poverty of really useful and
unambiguous authority applicable to concrete problems of executive
power”). “[T]he most compelling arguments,” therefore, “arise from
the Constitution’s separation of powers and the Judiciary’s
historic understanding of that doctrine.” Fitzgerald , 457
U. S., at 752, n. 31 . The Court’s prior admonition is evident in the
principal dissent’s citations. Some of its cherry-picked sources do
not even discuss the President in particular. See, e.g. , post , at 7–8 (citing 2 Debates on the Constitution 177 (J.
Elliot ed. 1836); 2 J. Story, Commentaries on the Constitution of
the United States §780, pp. 250–251 (1833)). And none of them
indicate whether he may be prosecuted for his official conduct.
See, e.g. , post , at 6, 7, n. 2 (citing The
Federalist No. 69; 4 Debates on the Constitution, at 109). The
principal dissent’s most compelling piece of evidence consists of
excerpted statements of Charles Pinckney from an 1800 Senate
debate. See post , at 7. But those statements reflect only
the now-discredited argument that any immunity not expressly
mentioned in the Constitution must not exist. See 3 Records of the
Federal Convention of 1787, pp. 384–385 (M. Farrand ed. 1911).
And Pinckney is not exactly a reliable authority on the separation
of powers: He went on to state on the same day that “it was wrong
to give the nomination of Judges to the President”—an opinion
expressly rejected by the Framers. Id. , at 385. Given the
Framers’ desire for an energetic and vigorous President, the
principal dissent’s view that the Constitution they designed allows
all his actions to be subject to prosecution—even the exercise of
powers it grants exclusively to him—defies credulity.

															Unable to muster any meaningful textual or
historical support, the principal dissent suggests that there is an
“established understanding” that “former Presidents are answerable
to the criminal law for their official acts.” Post , at 9.
Conspicuously absent is mention of the fact that since the
founding, no President has ever faced criminal charges—let alone
for his conduct in office. And accordingly no court has ever been
faced with the question of a President’s immunity from prosecution.
All that our Nation’s practice establishes on the subject is
silence.

															Coming up short on reasoning, the dissents
repeatedly level variations of the accusation that the Court has
rendered 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 “rhetorically chilling” contention is “wholly
unjustified.” Fitzgerald , 457 U. S., at 758,
n. 41. Like everyone else, the President is subject to
prosecution in his unofficial capacity. But unlike anyone else, the
President is a branch of government, and the Constitution vests in
him sweeping powers and duties. Accounting for that reality—and
ensuring that the President may exercise those powers forcefully,
as the Framers anticipated he would—does not place him above the
law; it preserves the basic structure of the Constitution from
which that law derives.

															The dissents’ positions in the end boil down to
ignoring the Constitution’s separation of powers and the Court’s
precedent and instead fear mongering on the basis of extreme
hypotheticals about a future where the President “feels empowered
to violate federal criminal law.” Post , at 18 (opinion of
Sotomayor, J.); see post , at 26, 29–30; post , at 8–9,
10, 12, 16, 20–21 (opinion of Jackson, J.). The dissents overlook
the more likely prospect of an Executive Branch that cannibalizes
itself, with each successive President free to prosecute his
predecessors, yet unable to boldly and fearlessly carry out his
duties for fear that he may be next. For instance, Section
371—which has been charged in this case—is a broadly worded
criminal statute that can cover “ ‘any conspiracy for the
purpose of impairing, obstructing or defeating the lawful function
of any department 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
insufficiently enforcing some aspect of federal law (such as drug,
gun, immigration, or environmental laws). An enterprising
prosecutor in a new administration may assert that a previous
President violated that broad statute. Without immunity, such types
of prosecutions of ex-Presidents could quickly become routine. The
enfeebling of the Presidency and our Government that would result
from such a cycle of factional strife is exactly what the Framers
intended to avoid. Ignoring those risks, the dissents are instead
content to leave the preservation of our system of separated powers
up to the good faith of prosecutors.

															Finally, the principal dissent finds it
“troubling” that the Court does not “designate any course of
conduct alleged in the indictment as private.” Post , at 27.
Despite the unprecedented nature of this case, the significant
constitutional questions that it raises, its expedited treatment in
the lower courts and in this Court, the lack of factual analysis in
the lower courts, and the lack of briefing on how to categorize the
conduct alleged, the principal dissent would go ahead and declare
all of it unofficial. The other dissent, meanwhile, analyzes the
case under comprehensive models and paradigms of its own concoction
and accuses the Court of providing “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 exhaustively define every application of Presidential
immunity. See post , at 13–14. Our dissenting colleagues
exude an impressive infallibility. While their confidence may be
inspiring, the Court adheres to time-tested practices
instead—deciding what is required to dispose of this case and
remanding after “revers[ing] on a threshold question,” Zivotofsky , 566 U. S., at 201, to obtain “guidance from
the litigants [and] the court below,” Vidal v. Elster , 602 U.S. 286, 328 (2024) (Sotomayor, J., concurring
in judgment).

															V

															This case poses a question of lasting
significance: When may a former President be prosecuted for
official acts taken during his Presidency? Our Nation has never
before needed an answer. But in addressing that question today,
unlike the political branches and the public at large, we cannot
afford to fixate exclusively, or even primarily, on present
exigencies. In a case like this one, focusing on “transient
results” may have profound consequences for the separation of
powers and for the future of our Republic. Youngstown , 343
U. S., at 634 (Jackson, J., concurring). Our perspective must
be more farsighted, for “[t]he peculiar circumstances of the moment
may render a measure more or less wise, but cannot render it more
or less constitutional.” Chief Justice John Marshall, A Friend of
the Constitution No. V, Alexandria Gazette, July 5, 1819, in John
Marshall’s Defense of McCulloch v. Maryland 190–191 (G.
Gunther ed. 1969).

															Our first President had such a perspective. In
his Farewell Address, George Washington reminded the Nation that “a
Government of as much vigour as is consistent with the perfect
security of Liberty is indispensable.” 35 Writings of George
Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble
to withstand the enterprises of faction,” he warned, could lead to
the “frightful despotism” of “alternate domination of one faction
over another, sharpened by the spirit of revenge.” Id. , at
226–227. And the way to avoid that cycle, he explained, was to
ensure that government powers remained “properly distributed and
adjusted.” Id. , at 226.

															It is these enduring principles that guide our
decision in this case. The President enjoys no immunity for his
unofficial acts, and not everything the President does is official.
The President is not above the law. But Congress may not
criminalize the President’s conduct in carrying out the
responsibilities of the Executive Branch under the Constitution.
And the system of separated powers designed by the Framers has
always demanded an energetic, independent Executive. The President
therefore may not be prosecuted for exercising his core
constitutional powers, and he is entitled, at a minimum, to a
presumptive immunity from prosecution for all his official acts.
That immunity applies equally to all occupants of the Oval Office,
regardless of politics, policy, or party.

															The judgment of the Court of Appeals for the
D. C. Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Notes 1 Trump contends that the
indictment stretches Section 1512(c)(2) “far beyond its natural
meaning.” Brief for Petitioner 39, n. 4. As we explained in Fischer v. United States , Section 1512(c)(2) covers
acts that impair “the availability or integrity for use in an
official proceeding of records, documents, objects, or
. . . other things used in the proceeding.” 603
U. S. ___, ___ (2024) (slip op., at 16). If necessary, the
District Court should determine in the first instance whether the
Section 1512(c)(2) charges may proceed in light of our decision in Fischer . 2 Our decision in Clinton permitted claims alleging unofficial acts to proceed
against the sitting President. See 520 U. S., at 684. In the
criminal context, however, the Justice Department “has long
recognized” that “the separation of powers precludes the criminal
prosecution of a sitting President.” Brief for United States 9
(citing A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 Op. OLC 222 (2000); emphasis deleted); see
Tr. for Oral Arg. 78. 3 Justice Barrett
disagrees, arguing that in a bribery prosecution, for instance,
excluding “any mention” of the official act associated with the
bribe “would hamstring the prosecution.” Post , at 6 (opinion
concurring in part); cf. post , at 25–27 (opinion of
Sotomayor, J.). But of course the prosecutor may point to the
public record to show the fact that the President performed the
official act. And the prosecutor may admit evidence of what the
President allegedly demanded, received, accepted, or agreed to
receive or accept in return for being influenced in the performance
of the 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 his advisers probing the official act
itself. Allowing that sort of evidence would invite the jury to
inspect the President’s motivations for his official actions and to
second-guess their propriety. As we have explained, such inspection
would be “highly intrusive” and would “ ‘seriously
cripple’ ” the President’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, at 18. And such
second-guessing would “threaten the independence or effectiveness
of the Executive.” Trump v. Vance , 591 U.S. 786, 805
(2020). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–939

															_________________

															DONALD J. TRUMP, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[July 1, 2024]

															Justice Thomas, concurring.

															Few things would threaten our constitutional
order more than criminally prosecuting a former President for his
official acts. Fortunately, the Constitution does not permit us to
chart such a dangerous course. As the Court forcefully explains,
the Framers “deemed an energetic executive essential to
. . . the security of liberty,” and our “system of
separated powers” accordingly insulates the President from
prosecution for his official acts. Ante , at 10, 42 (internal
quotation marks omitted). To conclude otherwise would hamstring the
vigorous Executive that our Constitution envisions. “While the
separation of powers may prevent us from righting every wrong, it
does so in order to ensure that we 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 this prosecution may violate our constitutional structure. In
this case, the Attorney General purported to appoint a private
citizen as Special Counsel to prosecute a former President on
behalf of the United States. But, I am not sure that any office for
the Special Counsel has been “established by Law,” as the
Constitution requires. Art. II, §2, cl. 2. By requiring
that Congress create federal offices “by Law,” the Constitution
imposes an important check against the President—he cannot create
offices at his pleasure. If there is no law establishing the office
that the Special Counsel occupies, then he cannot proceed with this
prosecution. A private citizen cannot criminally prosecute anyone,
let alone a former President.

															No former President has faced criminal
prosecution for his acts while in office in the more than 200 years
since the founding of our country. And, that is so despite numerous
past Presidents taking actions that many would argue constitute
crimes. If this unprecedented prosecution is to proceed, it must be
conducted by someone duly authorized to do so by the American
people. The lower courts should thus answer these essential
questions concerning the Special Counsel’s appointment before
proceeding.

															I

															The Constitution sets forth how an office may
be created and how it may be filled. The Appointments Clause
provides:

															“[The President] shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall
be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of
Department.” Art. II, §2, cl. 2.

															The constitutional process for filling an office
is plain from this text. The default manner for appointing
“Officers of the United States” is nomination by the President and
confirmation by the Senate. Ibid . “But the Clause provides a
limited exception for the appointment of inferior officers:
Congress may ‘by Law’ authorize” one of three specified actors “to
appoint inferior officers without the advice and consent 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” to appoint inferior officers
without senatorial confirmation. Art. II, §2, cl. 2.

															Before the President or a Department Head can
appoint any officer, however, the Constitution requires that the
underlying office be “established by Law.”[ 1 ] The Constitution itself creates some offices, most
obviously that of the President and Vice President. See §1.
Although the Constitution contemplates that there will be “other
Officers of the United States, whose Appointments are not herein
otherwise provided for,” it clearly requires that those offices
“shall be established by Law.” §2, cl. 2. And, “established by
law” refers to an office that Congress creates “by statute.” Lucia v. 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 offices grew out of the Founders’ experience with the
English monarchy. The King could wield significant power by both
creating and filling offices as he saw fit. He was “emphatically
and truly styled the fountain of honor. He not only appoint[ed] to
all offices, but [could] create offices.” The Federalist No. 69,
p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone,
Commentaries on the Laws of England 271 (T. Cooley ed. 1871) (“[A]s
the king may create new titles, so may he create new offices”).
That ability to create offices raised many “concerns about the
King’s ability to amass too much power”; the King could both create
a multitude of offices 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
Creation of the American Republic 1776–1787, p. 143 (1969)
(describing “the power of appointment to offices” as “the most
insidious and powerful weapon of eighteenth-century despotism”); T.
Paine, Common Sense (1776), reprinted in The Great Works of Thomas
Paine 11 (1877) (explaining that “the crown . . . derives
its whole consequence merely from being the giver of places and
pensions”). In fact, one of the grievances raised by the American
colonists in declaring their independence was that the King “ha[d]
erected a multitude of New Offices, and sent hither swarms of
Officers to harass our people and eat out their substance.”
Declaration of Independence ¶12. The Founders thus drafted the
Constitution with “evidently a great inferiority in the power of
the President, in this particular, to that of the British king.”
The Federalist No. 69, at 421.

															The Founders broke from the monarchial model by
giving the President the power to fill offices (with the
Senate’s approval), but not the power to create offices.
They did so by “imposing the constitutional requirement that new
officer positions be ‘established by Law’ rather than through a
King-like custom of the head magistrate unilaterally creating new
offices.” Mascott 492–493 (footnote omitted); see also 1 Annals of
Cong. 581–582 (1789) (“The powers relative to offices are partly
Legislative and partly Executive. The Legislature creates the
office, defines the powers, limits its duration, and annexes a
compensation”); see also ibid . (describing the power to
“designat[e] the man to fill the office” as “of an Executive
nature”). The Constitution thus “giv[es] Congress broad authority
to establish and organize the Executive Branch.” Seila Law
LLC v. Consumer Financial Protection Bureau , 591 U.S.
197, 266 (2020) (Kagan, J., concurring in judgment in part and
dissenting in part). By keeping the ability to create offices out
of the President’s hands, the Founders ensured that no President
could unilaterally create an army of officer positions to then fill
with his supporters. Instead, our Constitution leaves it in the
hands of the people’s elected representatives to determine whether
new executive offices should exist.

															Longstanding practice from the founding to today
comports with this original understanding that Congress must create
offices by law. The First Congress, for instance, routinely and
explicitly created offices by statute. See, e . g .,
§35, 1Stat. 92–93 (creating the offices of Attorney General and
U. S. Attorney for each district); see also §§1–2, id .,
at 50 (creating offices of Secretary of War and his Chief Clerk);
ch. 12, §1, id ., at 65 (creating offices within the
Department of Treasury for Secretary of the Treasury, a
Comptroller, Auditor, Treasurer, Register, and Assistant to the
Secretary). Still today, Congress creates the offices that the
Executive Branch may fill. For example, Congress has created
several offices within the Department of Justice, including the
offices of the Attorney General, Deputy Attorney General, Associate
Attorney General, Solicitor General, and Assistant Attorneys
General. See 28 U. S. C. §§503–506. For some agencies,
Congress has also granted the agency head the power to “appoint
such officers and employees . . . as are necessary to
execute the functions vested in him.” 7 U. 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 offices similar to the position now occupied by the Special
Counsel. Congress created an office for a “special counsel” to
investigate the Teapot Dome Scandal and pursue prosecutions. See
ch. 16, 43Stat. 6. And, a statute provided for “the appointment of
an independent counsel” that we addressed in Morrison v. Olson . See 28 U. S. C. §592. That statute lapsed,
and Congress has not since reauthorized the appointment of an
independent counsel. See §599.[ 2 ]

															We cannot ignore the importance that the
Constitution places on who creates a federal office. To
guard against tyranny, the Founders required that a federal office
be “established by Law.” As James Madison cautioned, “[i]f there is
any point in which the separation of the Legislative and Executive
powers ought to be maintained with greater caution, it is that
which relates to officers and offices.” 1 Annals of Cong. 581. If
Congress has not reached a consensus that a particular office
should exist, the Executive lacks the power to create and fill an
office of his own accord.

															II

															It 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
an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18,
2022). Nor did he rely on a statute granting him the authority to
appoint officers as he deems fit, as the heads of some other
agencies have.[ 3 ] See supra , at 5. Instead, the Attorney General relied upon
several statutes of a general nature. See Order No. 5559–2022
(citing 28 U. S. C. §§509, 510, 515, 533).

															None of the statutes cited by the Attorney
General appears to create an office for the Special Counsel, and
especially not with the clarity typical of past statutes used for
that purpose. See, e . g ., 43Stat. 6 (“[T]he President
is further authorized and directed to appoint . . .
special counsel who shall have charge and control of the
prosecution of such litigation”). Sections 509 and 510 are generic
provisions concerning the functions of the Attorney General and his
ability to delegate authority to “any other officer, employee, or
agency.” Section 515 contemplates an “attorney specially appointed
by the Attorney General under law ,” thereby suggesting that
such an attorney’s office must have already been created by some
other law. (Emphasis added.) As for §533, it provides that “[t]he
Attorney General may appoint officials . . . to
detect and prosecute crimes against the United States.” (Emphasis
added.) It is unclear whether an “official” is equivalent to an
“officer” as used by the Constitution. See Lucia , 585
U. S., at 254–255 (opinion of Thomas, J.) (considering the
meaning of “officer”). Regardless, this provision would be a
curious place for Congress to hide the creation of an office for a
Special Counsel. It is placed in a chapter concerning the Federal
Bureau of Investigation (§§531–540d), not the separate chapters
concerning U. S. Attorneys (§§541–550) or the now-lapsed
Independent Counsel (§§591–599).[ 4 ]

															To be sure, the Court gave passing reference to
the cited statutes as supporting the appointment of the Special
Prosecutor in United States v. Nixon , 418 U.S.
683 , 694 (1974), but it provided no analysis of those
provisions’ text. Perhaps there is an answer for why these statutes
create an office for the Special Counsel. But, before this
consequential prosecution proceeds, we should at least provide a
fulsome explanation of why that is so.

															Even if the Special Counsel has a valid office,
questions remain as to whether the Attorney General filled that
office in compliance with the Appointments Clause. For example, it
must be determined whether the Special Counsel is a principal or
inferior officer. If the former, his appointment is invalid because
the Special Counsel was not nominated by the President and
confirmed by the Senate, as principal officers must be. Art. II,
§2, cl. 2. Even if he is an inferior officer, the Attorney General
could appoint him without Presidential nomination and senatorial
confirmation only if “Congress . . . by law vest[ed] the
Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid . So, the Special Counsel’s appointment is invalid
unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.”

															Whether the Special Counsel’s office was
“established by Law” is not a trifling technicality. If Congress
has not reached a consensus that a particular office should exist,
the Executive lacks the power to unilaterally create and then fill
that office. Given that the Special Counsel purports to wield the
Executive Branch’s power to prosecute, the consequences are
weighty. Our Constitution’s separation of powers, including its
separation of the powers to create and fill offices, is “the
absolutely central guarantee of a just Government” and the liberty
that it secures for us all. Morrison , 487 U. S., at 697
(Scalia, J., dissenting). There is no prosecution that can justify
imperiling it.

															*  *  *

															In this case, there has been much discussion
about ensuring that a President “is not above the law.” But, as the
Court explains, the President’s immunity from prosecution for his
official acts is the law. The Constitution provides for “an
energetic executive,” because such an Executive is “essential to
. . . the security of liberty.” Ante , at 10
(internal quotation marks omitted). Respecting the protections that
the Constitution provides for the Office of the Presidency secures
liberty. In that same vein, the Constitution also secures liberty
by separating the powers to create and fill offices. And, there are
serious questions whether the Attorney General has violated that
structure by creating an office of the Special Counsel that has not
been established by law. Those questions must be answered before
this prosecution can proceed. We must respect the Constitution’s
separation of powers in all its forms, else we risk rendering its
protection of liberty a parchment guarantee. Notes 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 exercising
the Department of Justice’s duties to enforce the criminal law by
leading 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 a
nonofficer employee, the constitutional problems with this
prosecution would only be more serious. For now, I assume without
deciding that the Special Counsel is an officer. 2 To be sure, a few
Presidents have appointed “special prosecutors” without pointing to
any express statutory authorization. See generally T. Eastland,
Ethics, Politics and the Independent Counsel 8–9 (1989) (describing
past uses of special prosecutors). But, this Court had no occasion
to review the constitutionality of those prosecutors’
authority. 3 In fact, Congress gave
the Attorney General the power to appoint “additional officers
. . . as he deems necessary”—but, only for the Bureau of
Prisons. 18 U. S. C. §4041. 4 Regulations remain on the
books that contemplate an “outside” Special Counsel, 28 CFR §600.1
(2023), but I doubt a regulation can create a federal office
without underlying statutory authority to do so. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–939

															_________________

															DONALD J. TRUMP, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states
court of appeals 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 the Court’s opinion. The remainder of the opinion is
consistent with my view that the Constitution prohibits Congress
from criminalizing a President’s exercise of core Article II powers
and closely related conduct. That said, I would have framed the
underlying legal issues differently. The Court describes the
President’s constitutional protection from certain prosecutions as
an “immunity.” As I see it, that term is shorthand for two
propositions: The President can challenge the constitutionality of
a criminal statute as applied to official acts alleged in the
indictment, and he can obtain interlocutory review of the trial
court’s ruling.

															There appears to be substantial agreement on the
first point. Like the Court, the dissenting Justices and the
Special Counsel all accept that some prosecutions of a President’s
official conduct may be unconstitutional. See post , at 16
(opinion of Sotomayor, J.); Brief for United States 24–30. As for
interlocutory review, our precedent recognizes that resolving
certain legal issues before trial is necessary to safeguard
important constitutional interests—here, Executive Branch
independence on matters that Article II assigns to the President’s
discretion.

															Properly conceived, the President’s
constitutional protection from prosecution is narrow. The Court
leaves open the possibility that the Constitution forbids
prosecuting the President for any official conduct,
instructing the lower courts to address that question in the first
instance. See ante , at 14. I would have answered it now.
Though I agree that a President cannot be held criminally liable
for conduct within his “conclusive and preclusive” authority and
closely related acts, ante , at 8–9, the Constitution does
not vest every exercise of executive power in the President’s sole
discretion, Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.
579 , 637 (1952) (Jackson, J., concurring).[ 1 ] Congress has concurrent authority over many
Government functions, and it may sometimes use that authority to
regulate the President’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 predicated on most official acts— i.e. , those falling
outside of the President’s core executive power—in two steps. The
first question is whether the relevant criminal statute reaches the
President’s official conduct. Not every broadly worded statute
does. For example, §956 covers conspiracy to murder in a foreign
country and does not expressly exclude the President’s decision to,
say, order a hostage rescue mission abroad. 18 U. S. C.
§956(a). The underlying murder statute, however, covers only
“unlawful” killings. §1111. The Office of Legal Counsel has
interpreted that phrase to reflect a public-authority exception for
official acts involving the military and law enforcement.
Memorandum from D. Barron, Acting Assistant Atty. Gen., to E.
Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and
the Constitution to Contemplated Lethal Operations Against Shaykh
Anwar al-Aulaqi 12–19 (July 16, 2010); see also Brief for United
States 29–30; post , at 16, and n. 3 (Sotomayor, J.,
dissenting). I express no view about the merits of that
interpretation, but it shows that the threshold question of
statutory interpretation is a nontrivial step.

															If the statute covers the alleged official
conduct, the prosecution may proceed only if applying it in the
circumstances poses no “ ‘dange[r] of intrusion on the
authority and functions of the Executive Branch.’ ” Ante , at 14 (quoting Nixon v. Fitzgerald , 457 U.S.
731 , 754 (1982)). On remand, the lower courts will have to
apply that standard to various allegations involving the
President’s official conduct.[ 2 ] Some of those allegations raise unsettled questions
about the scope of Article II power, see ante , at 21–28, but
others do not. For example, the indictment alleges that the
President “asked the Arizona House Speaker to call the legislature
into session to hold a hearing” about election fraud claims. App.
193. The President has no authority over state legislatures or
their leadership, so it is hard to see how prose-

															cuting him for crimes committed when dealing
with the Arizona House Speaker would unconstitutionally intrude on
executive power.

															This two-step analysis—considering first whether
the statute applies and then whether its application to the
particular facts is constitutional—is similar to the approach that
the Special Counsel presses in this Court. Brief for United States
24–30. It is also our usual approach to considering the validity of
statutes in situations raising a constitutional question. See, e . g ., Seila Law LLC v. Consumer Financial
Protection Bureau , 591 U.S. 197, 213, 229 (2020).[ 3 ] An important difference in this context is
that the President is entitled to an interlocutory appeal of the
trial court’s ruling. See ante , at 36. A criminal defendant
in federal court normally must wait until after trial to seek
review of the trial court’s refusal to dismiss charges. See United States v. MacDonald , 435
U.S. 850 , 853–854 (1978); see also 18 U. S. C. §3731.
But where trial itself threatens certain constitutional interests,
we have treated the trial court’s resolution of the issue as a
“final decision” for purposes of appellate jurisdiction. MacDonald , 435 U. S., at 854–856; see 28
U. S. C. §1291; see also §1257.

															The present circumstances fall squarely within
our precedent authorizing interlocutory review. When a President
moves to dismiss an indictment on Article II grounds, he “makes no
challenge whatsoever to the merits of the charge against him.” Abney v. United States , 431 U.S.
651 , 659 (1977) (allowing interlocutory appeal of rejection of
double jeopardy defense). He instead contests whether the
Constitution allows Congress to criminalize the alleged conduct, a
question that is “collateral to, and separable from” his guilt or
innocence. Ibid . Moreover, the President’s Executive Branch
authority “would be significantly undermined if appellate review”
of the constitutional challenge “were postponed until after
conviction and sentence.” Id ., at 660; see also Helstoski v. Meanor , 442 U.S.
500 , 507 (1979) (allowing interlocutory appeal of refusal to
dismiss an indictment on Speech or Debate Clause grounds). The
prospect of a trial court erroneously allowing the prosecution to
proceed poses a unique danger to the “independence of the Executive
Branch.” Trump v. Vance , 591 U.S. 786, 800 (2020). As
the Court explains, the possibility that the President will be made
to defend his official conduct before a jury after he leaves office
could distort his decisions while in office. Ante , at 13–14,
36. These Article II concerns do not insulate the President from
prosecution. But they do justify interlocutory review of the trial
court’s final decision on the President’s as-applied constitutional
challenge. See Helstoski , 442 U. S., at 507–508; Abney , 431 U. S., at 659–661; see also Reply Brief for
United States in No. 23–624, p. 5 (agreeing that the President
“has a right to an interlocutory appeal from the district court’s
rejection of his immunity defense”).

															I understand most of the Court’s opinion to be
consistent with these views. I do not join Part III–C, however,
which holds that the Constitution limits the introduction of
protected conduct as evidence in a criminal prosecution of a
President, beyond the limits afforded by executive privilege. See ante , at 30–32. I disagree with that holding; on this score,
I agree with the dissent. See post , at 25–27 (Sotomayor, J.,
dissenting). The Constitution does not require blinding juries to
the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge
not at issue here but one that provides a useful example. The
federal bribery statute forbids any public official to seek or
accept a thing of value “for or because of any official act.” 18
U. S. C. §201(c). The Constitution, of course, does not
authorize a President to seek or accept bribes, so the Government
may prosecute him if he does so. See Art. II, §4 (listing
“Bribery” as an impeachable 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
President’s Nomination of Nelson A. Rockefeller To Be Vice
President Under the Twenty-Fifth Amendment to the Constitution 5
(Aug. 28, 1974) (suggesting that the federal bribery statute
applies to the President). Yet excluding from trial any mention of
the official act connected to the bribe would hamstring the
prosecution. To make sense of charges alleging a quid pro
quo , the jury must be allowed to hear about both 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 evidence official acts for which the President cannot be held
criminally liable may prejudice the jury. Ante , at 31. But
the rules of evidence are equipped to handle that concern on a
case-by-case basis. Most importantly, a trial court can exclude
evidence of the President’s protected conduct “if its probative
value is substantially outweighed by a danger of . . .
unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403;
see also Rule 105 (requiring the court to “restrict the evidence to
its proper scope and instruct the jury accordingly”). The balance
is more likely to favor admitting evidence of an official act in a
bribery prosecution, for instance, than one in which the protected
conduct has little connection to the charged offense. And if the
evidence comes in, the trial court can instruct the jury to
consider it only for lawful purposes. See Richardson v. Marsh , 481 U.S.
200 , 206–207 (1987). I see no need to depart from that familiar
and time-tested procedure here.

															*  *  *

															The Constitution does not insulate Presidents
from criminal liability for official acts. But any statute
regulating the exercise of executive power is subject to a
constitutional challenge. 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 Accounting Oversight Bd. , 561 U.S.
477 , 487–488 (2010). A criminal statute is no exception. Thus,
a President facing prosecution may challenge the constitutionality
of a criminal statute as applied to official acts alleged in the
indictment. If that challenge fails, however, he must stand
trial. Notes 1 Consistent with our
separation of powers precedent, I agree with the Court that the
supervision and removal of appointed, high ranking Justice
Department officials falls within the President’s core executive
power. See Seila Law LLC v. Consumer Financial Protection
Bureau , 591 U.S. 197, 213–215 (2020); ante , at 19–21. I
do not understand the Court to hold that all exercises of the Take
Care power fall within the core executive power. Cf. post ,
at 24 (Sotomayor, J., dissenting). I agree with the dissent that
the Constitution does not justify such an expansive view. Ibid. 2 This analysis is
unnecessary for allegations involving the President’s private
conduct because the Constitution offers no protection from
prosecution of acts taken in a private capacity. Ante , at
15. Sorting private from official conduct sometimes will be
difficult—but not always. Take the President’s alleged attempt to
organize alternative slates of electors. See, e . g .,
App. 208. In my view, that conduct is private and therefore not
entitled to protection. See post , at 27–28 (Sotomayor, J.,
dissenting). The Constitution vests power to appoint Presidential
electors in the States. 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 has no
legal authority—and thus no official capacity—to influence how the
States appoint their electors. I see no plausible argument for
barring prosecution of that alleged conduct. 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); Public Citizen v. Dept. of
Justice , 491 U.S.
440 , 465–467 (1989); see also Sale v. Haitian Centers
Council, Inc. , 509 U.S.
155 , 188 (1993). The Office of Legal Counsel has advocated for
a clear-statement rule if applying a statute would “raise serious
constitutional questions relating to the President’s constitutional
authority.” See Application of 28 U. S. C. §458 to
Presidential Appointments of Federal Judges, 19 Op. OLC 350,
350–357 (1995). In my view, neither canon applies in this
circumstance. Courts should instead determine the statute’s
ordinary meaning and, if it covers the alleged official acts,
assess whether prosecution would intrude on the President’s
constitutional authority. See Public Citizen , 491
U. S., at 481–482 (Kennedy, J., concurring in judgment)
(declining to apply the avoidance canon and concluding that the
Federal Advisory Committee Act is unconstitutional as
applied). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–939

															_________________

															DONALD J. TRUMP, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[July 1, 2024]

															Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join, dissenting.

															Today’s decision to grant former Presidents
criminal immunity reshapes the institution of the Presidency. It
makes a mockery of the principle, foundational to our Constitution
and system of Government, that no man is above the law. Relying on
little more than its own misguided wisdom about the need for “bold
and unhesitating action” by the President, ante, at 3, 13,
the Court gives former President Trump all the immunity he asked
for and more. Because our Constitution does not shield a former
President from answering for criminal and treasonous acts, I
dissent.

															I

															The indictment paints a stark portrait of a
President desperate to stay in power.

															In the weeks leading up to January 6, 2021,
then- President Trump allegedly “spread lies that there had been
outcome-determinative fraud in the election and that he had
actually won,” App. 181, Indictment ¶2, despite being “notified
repeatedly” by his closest advisers “that his claims were untrue,” id ., at 188, ¶11.

															When dozens of courts swiftly rejected these
claims, Trump allegedly “pushed officials in certain states to
ignore the popular vote; disenfranchise millions of voters; dismiss
legitimate electors; and ultimately, cause the ascertainment of and
voting by illegitimate electors” in his favor. Id ., at
185–186, ¶10(a). It is alleged that he went so far as to threaten
one state election official with criminal prosecution if the
official did not “ ‘find’ 11,780 votes” Trump needed to change
the election result in that state. Id ., at 202,
¶31(f ). When state officials repeatedly declined to act
outside their legal authority and alter their state election
processes, Trump and his co-conspirators purportedly developed a
plan to disrupt and displace the legitimate election certification
process by organizing fraudulent slates of electors. See id ., at 208–209, ¶¶53–54.

															As the date of the certification proceeding
neared, Trump allegedly also sought to “use the power and authority
of the Justice Department” to bolster his knowingly false claims of
election fraud by initiating “sham election crime investigations”
and sending official letters “falsely claim[ing] that the Justice
Department had identified significant concerns that may have
impacted the election outcome” while “falsely present[ing] the
fraudulent electors as a valid alternative to the legitimate
electors.” Id ., at 186–187, ¶10(c). When the Department
refused to do as he asked, Trump turned to the Vice President.
Initially, he sought to persuade the Vice President “to use his
ceremonial role at the January 6 certification proceeding to
fraudulently alter the election results.” Id ., at 187,
¶10(d). When persuasion failed, he purportedly “attempted to use a
crowd of supporters that he had gathered in Washington, D. C.,
to pressure the Vice President to fraudulently alter the election
results.” Id ., at 221, ¶86.

															Speaking to that crowd on January 6, Trump
“falsely claimed that, based on fraud, the Vice President could
alter the outcome of the election results.” Id ., at 229,
¶104(a). When this crowd then “violently attacked the Capitol and
halted the proceeding,” id ., at 188, ¶10(e), Trump allegedly
delayed in taking any step to rein in the chaos he had unleashed.
Instead, in a last desperate ploy to hold onto power, he allegedly
“attempted to exploit the violence and chaos at the Capitol” by
pressuring lawmakers to delay the certification of the election and
ultimately declare him the winner. Id ., at 233, ¶119. That
is the backdrop against which this case comes to the Court.

															II

															The Court now confronts a question it has
never had to answer in the Nation’s history: Whether a former
President enjoys immunity from federal criminal prosecution. The
majority thinks he should, and so it invents an atextual,
ahistorical, and unjustifiable immunity that puts the President
above the law.

															The majority makes three moves that, in effect,
completely insulate Presidents from criminal liability. First, the
majority creates absolute immunity for the President’s exercise of
“core constitutional powers.” Ante, at 6. This holding is
unnecessary on the facts of the indictment, and the majority’s
attempt to apply it to the facts expands the concept of core powers
beyond any recognizable bounds. In any event, it is quickly
eclipsed by the second move, which is to create expansive immunity
for all “official act[s].” Ante, at 14. Whether described as
presumptive or absolute, under the majority’s rule, a President’s
use of any official power for any purpose, even the most corrupt,
is immune from prosecution. That is just as bad as it sounds, and
it is baseless. Finally, the majority declares that evidence
concerning acts for which the President is immune can play no role
in any criminal prosecution against him. See ante, at 30–32.
That holding, which will prevent the Government from using a
President’s official acts to prove knowledge or intent in
prosecuting private offenses, is nonsensical.

															Argument by argument, the majority invents
immunity through brute force. Under scrutiny, its arguments
crumble. To start, the majority’s broad “official acts” immunity is
inconsistent with text, history, and established understandings of
the President’s role. See Part III, infra . Moreover, it is
deeply wrong, even on its own functionalist terms. See Part IV, infra . Next, the majority’s “core” immunity is both
unnecessary and misguided. See Part V, infra . Furthermore,
the majority’s illogical evidentiary holding is unprecedented. See
Part VI, infra . Finally, this majority’s project will have
disastrous consequences for the Presidency and for our democracy.
See Part VII, infra .

															III

															The main takeaway of today’s decision is that
all of a President’s official acts, defined without regard to
motive or intent, are entitled to immunity that is “at least
. . . presumptive ,” and quite possibly “absolute.” Ante, at 14. Whenever the President wields the enormous
power of his office, the majority says, the criminal law (at least
presumptively) cannot touch him. This official-acts immunity has
“no firm grounding in constitutional text, history, or precedent.” Dobbs v. Jackson Women’s Health Organization , 597
U.S. 215, 280 (2022). Indeed, those “standard grounds for
constitutional decisionmaking,” id ., at 279, all point in
the opposite direction. No matter how you look at it, the
majority’s official-acts immunity is utterly indefensible.

															A

															The majority calls for a “careful assessment
of the scope of Presidential power under the Constitution.” Ante, at 5. For the majority, that “careful assessment” does
not involve the Constitution’s text. I would start there.

															The Constitution’s text contains no provision
for immunity from criminal prosecution for former Presidents. Of
course, “the silence of the Constitution on this score is not
dispositive.” United States v. Nixon , 418 U.S.
683 , 706, n. 16 (1974). Insofar as the majority rails
against the notion 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 made here. The omission in the text of the
Constitution is worth noting, however, for at least three
reasons.

															First, the Framers clearly knew how to provide
for immunity from prosecution. They did provide a narrow immunity
for legislators in the Speech or Debate Clause. See Art. I, §6, cl.
1 (“Senators and Representatives . . . shall in all
Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from the
same; and for any Speech or Debate in either House, they shall not
be questioned in any other Place”). They did not extend the same or
similar immunity to Presidents.

															Second, “some state constitutions at the time of
the Framing specifically provided ‘express criminal immunities’ to
sitting governors.” Brief for Scholars of Constitutional Law as Amici Curiae 4 (quoting S. Prakash, Prosecuting and
Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). The
Framers chose not to include similar language in the Constitution
to immunize the President. If the Framers “had wanted to create
some constitutional privilege to shield the President
. . . from criminal indictment,” they could 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 question, it actually contemplates some form of criminal
liability for former Presidents. The majority correctly rejects
Trump’s argument that a former President cannot be prosecuted
unless he has been impeached by the House and convicted by the
Senate for the same conduct. See ante, at 32–34; Part IV–C, infra . The majority ignores, however, that the Impeachment
Judgment Clause cuts against its own position. That Clause presumes
the availability of criminal process as a backstop by establishing
that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.” Art. I, §3, cl. 7
(emphasis added). That Clause clearly contemplates that a former
President may be subject to criminal prosecution for the same
conduct that resulted (or could have resulted) in an impeachment
judgment—including conduct such as “Bribery,” Art. II, §4,
which implicates official acts almost by definition.[ 1 ]

															B

															Aware of its lack of textual support, the
majority points out that this Court has “recognized Presidential
immunities and privileges ‘rooted in the constitutional tradition
of the separation 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, supports the majority’s entirely novel immunity from
criminal prosecution for official acts.

															The historical evidence that exists on
Presidential immunity from criminal prosecution cuts decisively
against it. For instance, Alexander Hamilton wrote that former
Presidents would be “liable to prosecution and punishment in the
ordinary course of law.” The Federalist No. 69, p. 452 (J. Harv.
Lib. ed. 2009). For Hamilton, that was an important distinction
between “the king of Great Britain,” who was “sacred and
inviolable,” and the “President of the United States,” who “would
be amenable to personal punishment and disgrace.” Id ., at
458. In contrast to the king, the President should be subject to
“personal responsibility” for his actions, “stand[ing] upon no
better ground than a governor of New York, and upon worse ground
than the governors of Maryland and Delaware,” whose State
Constitutions gave them some immunity. Id ., at 452.

															At the Constitutional Convention, James Madison,
who was aware that some state constitutions provided governors
immunity, proposed that the Convention “conside[r ] what
privileges ought to be allowed to the Executive.” 2 Records of the
Federal Convention of 1787, p. 503 (M. Farrand ed. 1911). There is
no record of any such discussion. Ibid. Delegate Charles
Pinckney later explained that “[t]he Convention 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 intended for [the]
Executive.” Ibid. [ 2 ]

															Other commentators around the time of the
Founding observed that federal officials had no immunity from
prosecution, drawing no exception for the President. James Wilson
recognized that federal officers who use their official powers to
commit crimes “may be tried by their country; and if their
criminality is established, the law will punish. A grand jury may
present, a petty jury may convict, and the judges will pronounce
the punishment.” 2 Debates on the Constitution 177 (J. Elliot ed.
1836). A few decades later, Justice Story evinced the same
understanding. He explained that, when a federal official commits a
crime in office, “it is indispensable, that provision should be
made, that the common tribunals of justice should be at liberty to
entertain jurisdiction of the offence, for the purpose of
inflicting, the common punishment applicable to unofficial
offenders.” 2 Commentaries 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 any
substantial punishment, even for crimes, which would subject their
fellow citizens to capital punishment.” Id ., at 251.

															This historical evidence reinforces that, from
the very beginning, the presumption in this Nation has always been
that no man is free to flout the criminal law. The majority fails
to recognize or grapple with the lack of historical evidence for
its new immunity. With nothing on its side of the ledger, the most
the majority can do is claim that the historical evidence is a
wash. See ante, at 38–39. It claims that the Court
previously has described the “relevant historical evidence on the
question of Presidential immunity” as “ ‘fragmentary’ ”
and not worthy of consideration. Ante, at 38 (quoting Fitzgerald , 457 U. S., at 752, n. 31). Yet the Court
has described only the evidence regarding “the President’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 historical evidence
clearly support[ed]” the immunity from damages liability that it
recognized, and it relied in part on that historical evidence to
overcome the lack of any textual basis for its immunity. Id ., at 152, n. 31. The majority ignores this reliance. It
seems history matters to this Court only when it is convenient.
See, e . g ., New York State Rifle & Pistol
Assn., Inc. v. Bruen , 597 U.S. 1 (2022); Dobbs ,
597 U.S. 215.

															C

															Our country’s history also points to an
established understanding, shared by both Presidents and the
Justice Department, that former Presidents are answerable to the
criminal law for their official acts. Cf. Chiafalo v. Washington , 591 U.S. 578, 592–593 (2020) (“ ‘Long
settled and established practice’ may have ‘great weight in a
proper interpretation of constitutional provisions’ ” (quoting The Pocket Veto Case , 279 U.S.
655 , 689 (1929))). Consider Watergate, for example. After the
Watergate tapes revealed President Nixon’s misuse of official power
to obstruct the Federal Bureau of Investigation’s investigation of
the Watergate burglary, President Ford pardoned Nixon. Both Ford’s
pardon and Nixon’s acceptance of the pardon necessarily “rested on
the understanding that the former President faced potential
criminal liability.” Brief for United States 15; see also Public
Papers of the Presidents, Gerald R. Ford, Vol. 1, Sept. 8, 1974, p.
103 (1975) (granting former President Nixon a “full, free, and
absolute pardon . . . for all offenses against the United
States which he . . . has committed or may have committed
or taken part in during” his Presidency); R. Nixon, Statement by
Former President Richard Nixon to P. Buchen, Counsel to President
Ford, p. 1 (Sept. 8, 1974) (accepting “full and absolute pardon for
any charges which might be brought against me for actions taken
during the time I was President of the United States”).

															Subsequent special counsel and independent
counsel investigations have also operated on the assumption that
the Government can criminally prosecute former Presidents for their
official acts, where they violate the criminal law. See, e . g ., 1 L. Walsh, Final Report of the Independent
Counsel for Iran/Contra Matters: Investigations and Prosecutions
445 (1993) (“[B]ecause a President, and certainly a past President,
is subject to prosecution . . . the conduct of President
Reagan in the Iran/contra matter was reviewed by Independent
Counsel against the applicable statutes. It was concluded that
[his] conduct fell well short of criminality which could be
successfully prosecuted”).

															Indeed, Trump’s own lawyers during his second
impeachment trial assured Senators that declining to impeach Trump
for his conduct related to January 6 would not leave him “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 President “is like any other
citizen and can be tried in a court of law.” Ibid. ; see also
1 id ., S. Doc. 117–3, at 339 (Trump’s impeachment counsel
stating that “no former officeholder is immune” from the judicial
process “for investigation, prosecution, and punishment”); id ., at 322–323 (Trump’s impeachment counsel stating: “If my
colleagues on this side of the Chamber actually think that
President Trump committed a criminal offense . . .
[a]fter he is out of office, you go and arrest him”). Now that
Trump is facing criminal charges for those acts, though, the tune
has changed. Being treated “like any other citizen” no longer seems
so appealing.

															In sum, the majority today endorses an expansive
vision of Presidential immunity that was never recognized by the
Founders, any sitting President, the Executive Branch, or even
President Trump’s lawyers, until now. Settled understandings of the
Constitution are of little use to the majority in this case, and so
it ignores them.

															IV

															A

															Setting aside this evidence, the majority
announces that former Presidents are “absolute[ly],” or “at least
. . . presumptive[ly],” immune from criminal prosecution
for all of their official acts. Ante, at 14 (emphasis
omitted). The majority purports to keep us in suspense as to
whether this immunity is absolute or presumptive, but it quickly
gives up the game. It explains that, “[a]t a minimum, the President
must . . . be immune from prosecution for an official act
unless the Government can show that applying a criminal prohibition
to that act would pose no ‘dangers of intrusion on the
authority and functions of the Executive Branch.’ ” Ibid. (emphasis added). No dangers, none at all. It is hard
to imagine a criminal prosecution for a President’s official acts
that would pose no dangers of intrusion on Presidential authority
in the majority’s eyes. Nor should that be the standard. Surely
some intrusions on the Executive may be “justified by an overriding
need to promote objectives within the constitutional authority of
Congress.” Nixon v. Administrator of General
Services , 433 U.S.
425 , 443 (1977). Other intrusions may be justified by the
“primary constitutional duty of the Judicial Branch to do justice
in criminal prosecutions.” United States v. Nixon , 418 U.S.
683 , 707 (1974). According to the majority, however, any
incursion on Executive power is too much. When presumptive immunity
is this conclusive, the majority’s indecision as to “whether
[official-acts] immunity must be absolute” or whether, instead,
“presumptive immunity is sufficient,” ante, at 6, hardly
matters.

															Maybe some future opinion of this Court will
decide that presumptive immunity is “sufficient,” ibid. , and
replace the majority’s ironclad presumption with one that makes the
difference between presumptive and absolute immunity meaningful.
Today’s Court, however, has replaced a presumption of equality
before the law with a presumption that the President is above the
law for all of his official acts.

															Quick on the heels of announcing this
astonishingly broad official-acts immunity, the majority assures us
that a former President can still be prosecuted for “unofficial
acts.” Ante, at 15. Of course he can. No one has questioned
the ability to prosecute a former President for unofficial
(otherwise known as private) acts. Even Trump did not claim
immunity for such acts and, as the majority acknowledges, such an
immunity would be impossible to square with Clinton v. Jones , 520 U.S.
681 (1997). See ante , at 15. This unremarkable
proposition is no real limit on today’s decision. It does not hide
the majority’s embrace of the most far-reaching view of
Presidential immunity on offer.

															In fact, the majority’s dividing line between
“official” and “unofficial” conduct narrows the conduct considered
“unofficial” almost to a nullity. It says that whenever the
President acts in a way that is “ ‘not manifestly or palpably
beyond [his] authority,’ ” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump , 87
F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In
dividing official from unofficial conduct, courts may not inquire
into the President’s motives.” Ante, at 18. It is one thing
to say that motive is irrelevant to questions regarding the scope
of civil liability, but it is quite another to make it irrelevant
to questions regarding criminal liability. Under that rule, any use
of official power for any purpose, even the most corrupt purpose
indicated by objective evidence of the most corrupt motives and
intent, remains official and immune. Under the majority’s test, if
it can be called a test, the category of Presidential action that
can be deemed “unofficial” is destined to be vanishingly small.

															Ultimately, the majority pays lip service to the
idea that “[t]he President, charged with enforcing federal criminal
laws, is not above them,” ante, at 13–14, but it then
proceeds to place former Presidents beyond the reach of the federal
criminal laws for any abuse of official power.

															B

															So how does the majority get to its rule? With
text, history, and established understanding all weighing against
it, the majority claims just one arrow in its quiver: the balancing
test in Nixon v. Fitzgerald , 457
U.S. 731 (1983). Yet even that test cuts against it. The
majority concludes that official-acts immunity “is required to
safeguard the independence and effective functioning of the
Executive Branch,” ante, at 14, by rejecting that Branch’s
own protestations that such immunity is not at all required and
would in fact be harmful, see Brief for United States 18–24, 29–30.
In doing so, it decontextualizes Fitzgerald ’s language,
ignores important qualifications, and reaches a result that the Fitzgerald Court never would have countenanced.

															In Fitzgerald , plaintiff A. Ernest
Fitzgerald sued then-former President Nixon for money damages. He
claimed that, while in office, Nixon had been involved in
unlawfully firing him from his government job. See 457 U. S.,
at 733–741. The question for the Court was whether a former
President had immunity from such a civil suit. The Court explained
that it was “settled law that the separation-of- powers doctrine
does not bar every exercise of jurisdiction over the President of
the United States.” Id ., at 753–754. To determine whether a
particular type of suit against a President (or former President)
could be heard, a court “must balance the constitutional weight of
the interest to be served against the dangers of intrusion on the
authority and functions of the Executive Branch.” Id ., at
754. The Court explained that, “[w]hen judicial action is needed to
serve broad public interests—as when the Court acts, not in
derogation of the separation of powers, but to maintain their
proper balance, or to vindicate the public interest in an ongoing
criminal prosecution—the exercise of jurisdiction has been held
warranted.” Ibid. (citations omitted).

															On the facts before it, the Court concluded that
a “merely private suit for damages based on a President’s official
acts” did not serve those interests. Ibid. The Court
reasoned that the “visibility of [the President’s] office and the
effect of his actions on countless people” made him an easy target
for civil suits that “frequently could distract [him] from his
public duties.” Id ., at 753. The public interest in such
private civil suits, the Court concluded, was comparatively weak.
See id ., at 754, n. 37 (“[T]here is a lesser public interest
in actions for civil damages than, for example, in criminal
prosecutions”). Therefore, the Court held that a former President
was immune from such suits. Ibid. In the context of a federal criminal prosecution
of a former President, however, the danger to the functioning of
the Executive Branch is much reduced. Further, as every member of
the Fitzgerald Court acknowledged, see Part IV–B–2, infra , the public interest in a criminal prosecution is far
weightier. Applying the Fitzgerald balancing here should
yield the opposite result. Instead, the majority elides any
difference between civil and criminal immunity, granting Trump the
same immunity from criminal prosecution that Nixon enjoyed from an
unlawful termination suit. That is plainly wrong.

															1

															The majority relies almost entirely on its
view of the danger of intrusion on the Executive Branch, to the
exclusion of the other side of the balancing test. Its analysis
rests on a questionable conception of the President as incapable of
navigating the difficult decisions his job requires while staying
within the bounds of the law. It also ignores the fact that he
receives robust legal advice on the lawfulness of his actions.

															The majority says that the danger “of intrusion
on the authority and functions of the Executive Branch” posed by
criminally prosecuting a former President for official conduct “is
akin to, indeed greater than, what led us to recognize absolute
Presidential immunity from civil damages liability—that the
President would be chilled from taking the ‘bold and unhesitating
action’ required of an independent Executive.” Ante, at 13
(quoting Fitzgerald , 457 U. S., at 745). It is of
course important that the President be able to “ ‘ “deal
fearlessly and impartially with” the duties of his office.’ ” Ante, at 10 (quoting Fitzgerald , 457 U. S., at
752). If every action the President takes exposes him personally to
vexatious private litigation, the possibility of hamstringing
Presidential decisionmaking is very real. Yet there are many facets
of criminal liability, which the majority discounts, that make it
less likely to chill Presidential action than the threat of civil
litigation.

															First, in terms of probability, the threat of
criminal liability is much smaller. In Fitzgerald , the
threat of vexatious civil litigation loomed large. The Court
observed that, given the “visibility of his office and the effect
of his actions on countless people, the President would be an
easily identifiable target for suits for civil damages.” Id ., at 753. Although “ ‘the effect of [the
President’s] actions on countless people’ could result in untold
numbers of private plaintiffs suing for damages based on any number
of Presidential acts” in the civil context, the risk in the
criminal context is “only that a former President may face one
federal prosecution, in one jurisdiction, for each criminal offense
allegedly committed while in office.” 2023 WL 8359833, *9 (DC, Dec.
1, 2023) (quoting Fitzgerald , 457 U. S., at 753). The
majority’s bare assertion that the burden of exposure to federal
criminal prosecution is more limiting to a President than the
burden of exposure to civil suits does not make it true, and it is
not persuasive.

															Second, federal criminal prosecutions require
“robust procedural safeguards” not found in civil suits. 2023 WL
8359833, *10. The criminal justice system has layers of protections
that “filter out insubstantial legal claims,” whereas civil
litigation lacks “analogous checks.” Cheney v. United
States Dist. Court for D. C. , 542 U.S.
367 , 386 (2004). To start, Justice Department policy requires
scrupulous and impartial prosecution, founded on both the facts and
the law. See generally Dept. of Justice, Justice Manual §9–27.000
(Principles of Federal Prosecution) (June 2023). The grand jury
provides an additional check on felony prosecutions, acting as a
“buffer or referee between the Government 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 cannot be commenced absent careful
consideration by a grand jury at the request of a prosecutor; the
same check is not present with respect to the commencement of civil
suits in which advocates are subject to no realistic
accountability”).

															If the prosecution makes it past the grand jury,
then the former President still has all the protections our system
provides to criminal defendants. If the former President has an
argument that a particular statute is unconstitutional as applied
to him, then he can move to dismiss the charges on that ground.
Indeed, a former President is likely to have legal arguments that
would be unavailable to the average criminal defendant. For
example, he may be able to rely on a public-authority exception
from particular criminal laws,[ 3 ] or an advice-of-the-Attorney-General defense, see Tr.
of Oral Arg. 107–108.[ 4 ]

															If the case nonetheless makes it to trial, the
Government will bear the burden of proving every element of the
alleged crime beyond a reasonable doubt to a unanimous jury of the
former President’s fellow citizens. See United States v. Gaudin , 515 U.S.
506 , 510 (1995). If the Government manages to overcome even
that significant hurdle, then the former President can appeal his
conviction, and the appellate review 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 review,
and if past practice (including in this case) is any indication, he
will receive it.

															In light of these considerable protections, the
majority’s fear that “ ‘bare allegations of malice,’ ” ante, at 18 (alteration omitted), would expose former
Presidents to trial and conviction is unfounded. Bare allegations
of malice would not make it out of the starting gate. Although a
private civil action may be brought based on little more than
“ ‘intense feelings,’ ” ante, at 11 (quoting Fitzgerald , 457 U. S., at 752), a federal criminal
prosecution is made of firmer stuff. Certainly there has been, on
occasion, great feelings of animosity between incoming and outgoing
Presidents over the course of our country’s history. Yet it took
allegations as grave as those at the center of this case to have
the first federal criminal prosecution of a former President. That
restraint is telling.

															Third, because of longstanding interpretations
by the Executive Branch, every sitting President has so far
believed himself under the threat of criminal liability after his
term in office and nevertheless boldly fulfilled the duties of his
office. The majority insists that the threat of criminal sanctions
is “more likely to distort Presidential decisionmaking than the
potential payment of civil damages.” Ante, at 13. If that is
right, then that distortion has been shaping Presidential
decisionmaking since the earliest days of the Republic. Although it
makes sense to avoid “diversion of the President’s attention during
the decisionmaking process” with “needless worry,” Clinton ,
520 U. S., at 694, n. 19, one wonders why requiring some
small amount of his attention (or his legal advisers’ attention) to
go towards complying with federal criminal law is such a great
burden. If the President follows the law that he must “take Care”
to execute, Art. II, §3, he has not been rendered
“ ‘unduly cautious,’ ” ante, at 10 (quoting Fitzgerald , 457 U. S., at 752, n. 32). Some amount of
caution is necessary, after all. It is a far greater danger if the
President feels empowered to violate federal criminal law, buoyed
by the knowledge of future immunity. I am deeply troubled by the
idea, inherent in the majority’s opinion, that our Nation loses
something valuable when the President is forced to operate within
the confines of federal criminal law.

															So what exactly is the majority worried about
deterring when it expresses great concern for the “deterrent”
effect that “the threat of trial, judgment, and imprisonment” would
pose? Ante, at 13. It cannot possibly be the deterrence of
acts that are truly criminal. Nor does it make sense for the
majority to wring its hands over the possibility that Presidents
might stop and think carefully before taking action that borders on
criminal. Instead, the majority’s main concern could be that
Presidents will be deterred from taking necessary and lawful action
by the fear that their successors might pin them with a baseless
criminal prosecution—a prosecution that would almost certainly be
doomed to fail, if it even made it out of the starting gate. See ante, at 40. The Court should not have so little faith in
this Nation’s Presidents. As this Court has said before in the
context of criminal proceedings, “ ‘[t]he chance that now and
then there may be found some timid soul who will take counsel of
his fears and give way to their repressive power is too remote and
shadowy to shape the course of justice.’ ” Nixon , 418
U. S., at 712, n. 20 (quoting Clark v. United
States , 289 U.S.
1 , 16 (1933)). The concern that countless (and baseless) civil
suits would hamper the Executive may have been justified in Fitzgerald , but a well-founded federal criminal prosecution
poses no comparable danger to the functioning of the Executive
Branch.

															2

															At the same time, the public interest in a
federal criminal prosecution of a former President is vastly
greater than the public interest in a private individual’s civil
suit. All nine Justices in Fitzgerald explicitly recognized
that distinction. The five-Justice majority noted that there was a
greater public interest “in criminal prosecutions” than in “actions
for civil damages.” 457 U. S., at 754, n. 37. Chief Justice
Burger’s concurrence accordingly emphasized that the majority’s
immunity was “limited to civil damages claims,” rather than
“ criminal prosecution.” Id ., at 759–760. The four
dissenting Justices agreed that a “contention that the President is
immune from criminal prosecution in the courts,” if ever made,
would not “be credible.” Id ., at 780 (White, J.,
dissenting). At the very least, the Fitzgerald Court did not
expect that its balancing test would lead to the same outcome in
the criminal context.

															The public’s interest in prosecution is
transparent: a federal prosecutor herself acts on behalf of the
United States. Even the majority acknowledges that the “[f]ederal
criminal laws seek to redress ‘a wrong to the public’ as a whole,
not just ‘a wrong to the individual,’ ” ante, at 13
(quoting Huntington v. Attrill , 146 U.S.
657 , 668 (1892)), such that there is “a compelling ‘public
interest in fair and effective law enforcement,’ ” ante, at 13 (quoting Vance , 591 U. S., at 808).
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 ,
418 U. S., at 708–709 (quoting Berger v. United
States , 295 U.S.
78 , 88 (1935)).

															The public interest in criminal prosecution is
particularly strong with regard to officials who are granted some
degree of civil immunity because of their duties. It is in those
cases where the public can see that officials exercising power
under public trust remain on equal footing with their fellow
citizens under the criminal law. See, e . g ., O’Shea v. Littleton , 414 U.S.
488 , 503 (1974) (“[W]e have never held that the performance of
the duties of judicial, legislative, or executive officers,
requires or contemplates the immunization of otherwise criminal
deprivations of constitutional rights”); Dennis v. Sparks , 449 U.S.
24 , 31 (1980) (“[J]udicial immunity was not designed to
insulate the judiciary from all aspects of public accountability.
Judges are immune from §1983 damages actions, but they are subject
to criminal prosecutions as are other citizens”); Imbler v. Pachtman , 424 U.S.
409 , 428–429 (1976) (“We emphasize that the [civil] immunity of
prosecutors . . . does not leave the public powerless to
deter misconduct or to punish that which occurs. This Court has
never suggested that the policy considerations which compel civil
immunity for certain governmental officials also place them beyond
the reach of the criminal law. Even judges, cloaked with absolute
civil immunity for centuries, could be punished criminally”).

															The public interest in the federal criminal
prosecution of a former President alleged to have used the powers
of his office to commit crimes may be greater still. “[T]he
President . . . represent[s] all the voters in the
Nation,” and his powers are given by the people under our
Constitution. Anderson v. Celebrezze , 460 U.S.
780 , 795 (1983). When Presidents use the powers of their office
for personal gain or as part of a criminal scheme, every person in
the country has an interest in that criminal prosecution. The
majority overlooks that paramount interest entirely.

															Finally, the question of federal criminal
immunity for a former President “involves a countervailing Article
II consideration absent in Fitzgerald ”: recognizing such an
immunity “would frustrate the Executive Branch’s enforcement of the
criminal law.” Brief for United States 19. The President is, of
course, entrusted with “ ‘supervisory and policy
responsibilities of utmost discretion and sensitivity.’ ” Ante at 10 (quoting Fitzgerald , 457 U. S., at
750). One of the most important is “enforcement of federal law,” as
“it is the President who is charged constitutionally to ‘take Care
that the Laws be faithfully executed.’ ” Id. , at 750
(quoting Art. II, §3). The majority seems to think that
allowing former Presidents to escape accountability for breaking
the law while disabling the current Executive from prosecuting such
violations somehow respects the independence of the Executive. It
does not. Rather, it diminishes that independence, exalting
occupants of the office over the office itself. There is a twisted
irony in saying, as the majority does, that the person charged with
“tak[ing] Care that the Laws be faithfully executed” can break them
with impunity.

															In the case before us, the public interest and
countervailing Article II interest are particularly stark. The
public interest in this criminal prosecution implicates both “[t]he
Executive Branch’s interest in upholding Presidential elections and
vesting power in a new President under the Constitution” as well as
“the voters’ interest in democratically selecting their President.”
91 F. 4th 1173, 1195 (CADC 2024) ( per curiam ). It also,
of course, implicates Congress’s own interest in regulating conduct
through the criminal law. Cf. Fitzgerald , 457 U. S., at
749, n. 27 (noting that the case did not involve “affirmative
action by Congress”). Yet the majority believes that a President’s
anxiety over prosecution overrides the public’s interest in
accountability and negates the interests of the other branches in
carrying out their constitutionally assigned functions. It is, in
fact, the majority’s position that “boil[s] down to ignoring the
Constitution’s separation of powers.” Ante, at 40.

															C

															Finally, in an attempt to put some distance
between its official-acts immunity and Trump’s requested immunity,
the majority insists that “Trump asserts a far broader immunity
than the limited one [the majority has] recognized.” Ante ,
at 32. If anything, the opposite is true. The only part of Trump’s
immunity argument that the majority rejects is the idea that “the
Impeachment Judgment Clause requires that impeachment and Senate
conviction precede a President’s criminal prosecution.” Ibid. That argument is obviously wrong. See ante , at
32–34. Rejecting it, however, does not make the majority’s immunity
narrower than Trump’s. Inherent in Trump’s Impeachment Judgment
Clause argument is the idea that a former President who was
impeached in the House and convicted in the Senate for crimes
involving his official acts could then be prosecuted in court for
those acts. See Brief for Petitioner 22 (“The Founders thus adopted
a carefully balanced approach that permits the criminal prosecution
of a former President for his official acts, but only if that
President is first impeached by the House and convicted by the
Senate”). By extinguishing that path to overcoming immunity,
however nonsensical it might be, the majority arrives at an
official-acts immunity even more expansive than the one Trump
argued for. On the majority’s view (but not Trump’s), a former
President whose abuse of power was so egregious and so offensive
even to members of his own party that he was impeached in the House
and convicted in the Senate still would be entitled to “at least
presumptive” criminal immunity for those acts.

															V

															Separate from its official-acts immunity, the
majority recognizes absolute immunity for “conduct within [the
President’s] exclusive sphere of constitutional authority.” Ante, at 9. Feel free to skip over those pages of the
majority’s opinion. With broad official-acts immunity covering the
field, this ostensibly narrower immunity serves little purpose. In
any event, this case simply does not turn on conduct within the
President’s “exclusive sphere of constitutional authority,” and the
majority’s attempt to apply a core immunity of its own making
expands the concept of “core constitutional powers,” ante, at 6, beyond any recognizable bounds.

															The idea of a narrow core immunity might have
some intuitive appeal, in a case that actually presented the issue.
If the President’s power is “conclusive and preclusive” on a given
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 his Youngstown concurrence, Justice Robert Jackson posited that
the President’s “power of removal in executive agencies” seemed to
fall within this narrow category. Ibid ., n. 4. Other
decisions of this Court indicate that the pardon power also falls
in this category, see United States v. Klein , 13
Wall. 128, 147 (1872) (“To the executive alone is intrusted the
power of pardon; and it is granted without limit”), as does the
power to recognize foreign countries, see Zivotofsky v. Kerry , 576 U.S.
1 , 32 (2015) (holding that the President has “exclusive power
. . . to control recognition determinations”).

															In this case, however, the question whether a
former President enjoys a narrow immunity for the “exercise of his
core constitutional powers,” ante, at 6, has never been at
issue, and for good reason: Trump was not criminally indicted for
taking actions that the Constitution places in the unassailable
core of Executive power. He was not charged, for example, with
illegally wielding the Presidency’s pardon power or veto power or
appointment power or even removal power. Instead, Trump was charged
with a conspiracy to commit fraud to subvert the Presidential
election. It is true that the detailed indictment in this case
alleges that Trump threatened to remove an Acting Attorney General
who would not carry out his scheme. See, e . g ., App.
216–217, Indictment ¶¶74, 77. Yet it is equally clear that the
Government does not seek to “impose criminal liability on the
[P]resident for exercising or talking about exercising the
appointment and removal power.” Tr. of Oral Arg. 127. If that were
the majority’s concern, it could simply have said that the
Government cannot charge a President’s threatened use of the
removal power as an overt act in the conspiracy. It says much
more.

															The core immunity that the majority creates will
insulate a considerably larger sphere of conduct than the narrow
core of “conclusive and preclusive” powers that the Court
previously has recognized. The first indication comes when the
majority includes the President’s broad duty to “ ‘take Care
that the Laws be faithfully executed’ ” among the core
functions for which a former President supposedly enjoys absolute
immunity. Ante, at 20 (quoting Art. II, §3). That
expansive view of core power will effectively insulate all sorts of
noncore conduct from criminal prosecution. Were there any question,
consider how the majority applies its newly minted core immunity to
the allegations in this case. It concludes that “Trump is
. . . absolutely immune from prosecution for” any
“conduct involving his discussions with Justice Department
officials.” Ante, at 21. That conception of core immunity
expands the “conclusive and preclusive” category beyond
recognition, foreclosing the possibility of prosecution for broad
swaths of conduct. Under that view of core powers, even fabricating
evidence and insisting the Department use it in a criminal case
could be covered. The majority’s conception of “core” immunity
sweeps far more broadly than its logic, borrowed from Youngstown , should allow.

															The majority tries to assuage any concerns about
its made-up core immunity by suggesting that the Government agrees
with it. See ante, at 34. That suggestion will surprise the
Government. To say, as the Government did, that a “small core of
exclusive official acts” such as “the pardon power, the power to
recognize foreign nations, the power to veto legislation, [and] the
power to make appointments” cannot be regulated by Congress, see
Tr. of Oral Arg. 85–87, does not suggest that the Government agrees
with immunizing any and all conduct conceivably related to the
majority’s broad array of supposedly “core” powers. The Government
in fact advised this Court to “leav[e] potentially more difficult
questions” about the scope of any immunity “that might arise on
different facts for decision if they are ever presented.” Brief for
United States 45. That would have made sense. The indictment here
does not pose any threat of impermissibly criminalizing acts within
the President’s “conclusive and preclusive” authority. Perhaps for
this reason, even Trump discouraged consideration of “a narrower
scope of immunity,” claiming that such an immunity “would be nearly
impossible to fashion, and would certainly involve impractical
line-drawing problems in every application.” Brief for Petitioner
43–44.

															When forced to wade into thorny
separation-of-powers disputes, this Court’s usual practice is to
“confine the opinion only to the very questions necessary to
decision of the case.” Dames & Moore v. Regan , 453 U.S.
654 , 661 (1981). There is plenty of peril and little value in
crafting a core immunity doctrine that Trump did not seek and that
rightly has no application to this case.

															VI

															Not content simply to invent an expansive
criminal immunity for former Presidents, the majority goes a
dramatic and unprecedented step further. It says that acts for
which the President is immune must be redacted from the narrative
of even wholly private crimes committed while in office. They must
play no role in proceedings regarding private criminal acts. See ante, at 30–32.

															Even though the majority’s immunity analysis
purports to leave unofficial acts open to prosecution, its
draconian approach to official-acts evidence deprives these
prosecutions of any teeth. If the former President cannot be held
criminally liable for his official acts, those acts should still be
admissible to prove knowledge or intent in criminal prosecutions of
unofficial acts. For instance, the majority struggles with
classifying whether a President’s speech is in his capacity as
President (official act) or as a candidate (unofficial act).
Imagine a President states in an official speech that he intends to
stop a political rival from passing legislation that he opposes, no
matter what it takes to do so (official act). He then hires a
private hitman to murder that political rival (unofficial act).
Under the majority’s rule, the murder indictment could include no
allegation of the President’s public admission of premeditated
intent to support the mens rea of murder. That is a strange
result, to say the least.[ 5 ]

															The majority’s extraordinary rule has no basis
in law. Consider the First Amendment context. Although the First
Amendment prohibits criminalizing most speech, it “does not
prohibit the evidentiary use of speech,” including its use “to
prove motive or intent.” Wisconsin v. Mitchell , 508 U.S.
476 , 489 (1993). Evidentiary rulings and limiting instructions
can ensure that evidence concerning official acts is “considered
only for the proper purpose for which it was admitted.” Huddleston v. United States , 485
U.S. 681 , 691–692 (1988). The majority has no coherent
explanation as to why these protections that are sufficient in
every other context would be insufficient here. It simply asserts
that it would be “untenable” and would deprive immunity of its
“ ‘intended effect.’ ” Ante, at 31 (quoting Fitzgerald , 457 U. S., at 756). The majority hazards an
explanation that the use of official-acts evidence will “raise a
unique risk that the jurors’ deliberations will be prejudiced by
their views of the President’s policies and performance while in
office.” Ante, at 31. That “unique risk,” however, is not a
product of introducing official-acts evidence. It is simply the
risk involved in any suit against a former President, including the
private-acts prosecutions the majority says it would allow.

															VII

															Today’s decision to grant former Presidents
immunity for their official acts is deeply wrong. As troubling as
this criminal immunity doctrine is in theory, the majority’s
application of the doctrine to the indictment in this case is
perhaps even more troubling. In the hands of the majority, this new
official-acts immunity operates as a one-way ratchet.

															First, the majority declares all of the conduct
involving the Justice Department and the Vice President to be
official conduct, see ante, at 19–24, yet it refuses to
designate any course of conduct alleged in the indictment as
private, despite concessions from Trump’s counsel.[ 6 ] Trump’s counsel conceded, for example,
that the allegation that Trump “turned to a private attorney who
was willing to spread knowingly false claims of election fraud to
spearhead his challenges to the election results” “sounds private.”
Tr. of Oral Arg. 29. He likewise conceded that the allegation that
Trump “conspired with another private attorney who caused the
filing in court of a verification signed by [Trump] that contained
false allegations to support a challenge” “sounds private.” Ibid. ; see also id ., at 36–37 (Trump’s counsel
explaining that it is not “disputed” that such conduct is
“unofficial”). Again, when asked about allegations that “[t]hree
private actors . . . helped implement a plan to submit
fraudulent slates of presidential electors to obstruct the
certification proceeding, and [Trump] and a co-conspirator attorney
directed that effort,” Trump’s counsel conceded the alleged conduct
was “private.” Id. , at 29–30. Only the majority thinks that
organizing fraudulent slates of electors might qualify as an
official act of the President, see ante, at 24–28, or at
least an act so “interrelated” with other allegedly official acts
that it might warrant protection, ante, at 28. If the
majority’s sweeping conception of “official acts” has any real
limits, the majority is unwilling to reveal them in today’s
decision.

															Second, the majority designates certain conduct
immune while refusing to recognize anything as prosecutable. It
shields large swaths of conduct involving the Justice Department
with immunity, see ante, at 19–21; see also Part V, supra , but it does not give an inch in the other direction.
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 “plays no direct constitutional or statutory role” in the
counting of electoral votes. Ante, at 23–24. Yet the
majority refuses to conclude that Trump lacks immunity for his
alleged attempts to “enlist the Vice President to use his
ceremonial role at the January 6 certification proceeding to
fraudulently alter the election results.” App. 187, Indictment
¶10(d). Instead, it worries that a prosecution for this conduct
might make it harder for the President to use the Vice President
“to advance [his] agenda in Congress.” Ante, at 24. Such a
prosecution, according to the majority, “may well hinder the
President’s ability to perform his constitutional functions.” Ibid. Whether a prosecution for this conduct warrants
immunity should have been an easy question, but the majority turns
it into a debatable one. Remarkably, the majority goes further and
declines to deny immunity even for the allegations that Trump
organized fraudulent elector slates, pressured States to subvert
the legitimate election results, and exploited violence at the
Capitol to influence the certification proceedings. It is not
conceivable that a prosecution for these alleged efforts to
overturn a Presidential election, whether labeled official or
unofficial under the majority’s test, would pose any
“ ‘dangers of intrusion on the authority and functions of the
Executive Branch,’ ” ante, at 14, and the majority
could have said as much. Instead, it perseverates on a threshold
question 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 the
President, upsetting the status quo that has existed since the
Founding. This new official-acts immunity now “lies about like a
loaded weapon” for any President that wishes to place his own
interests, his own political survival, or his own financial gain,
above the interests of the Nation. Korematsu v. United
States , 323 U.S.
214 , 246 (1944) (Jackson, J., dissenting). The President of the
United States is the most powerful person in the country, and
possibly the world. When he uses his official powers in any way,
under the majority’s reasoning, he now will be insulated from
criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate
a political rival? Immune. Organizes a military coup to hold onto
power? Immune. Takes a bribe in exchange for a pardon? Immune.
Immune, immune, immune.

															Let the President violate the law, let him
exploit the trappings of his office for personal gain, let him use
his official power for evil ends. Because if he knew that he may
one day face liability for breaking the law, he might not be as
bold and fearless as we would like him to be. That is the
majority’s message today.

															Even if these nightmare scenarios never play
out, and I pray they never do, the damage has been done. The
relationship between the President and the people he serves has
shifted irrevocably. In every use of official power, the President
is now a king above the law.

															*  *  *

															The majority’s single-minded fixation on the
President’s need for boldness and dispatch ignores the
countervailing need for accountability and restraint. The Framers
were not so single-minded. In the Federalist Papers, after
“endeavor[ing] to show” that the Executive designed by the
Constitution “combines . . . all the requisites to
energy,” Alexander Hamilton asked a separate, equally important
question: “Does it also combine the requisites to safety, in a
republican sense, a due dependence on the people, a due
responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library
ed. 2009). The answer then was yes, based in part upon the
President’s vulnerability to “prosecution in the common course of
law.” Ibid. The answer after today is no.

															Never in the history of our Republic has a
President had reason to believe that he would be immune from
criminal prosecution if he used the trappings of his office to
violate the criminal law. Moving forward, however, all former
Presidents will be cloaked in such immunity. If the occupant of
that office misuses official power for personal gain, the criminal
law that the rest of us must abide will not provide a backstop.

															With fear for our democracy, I dissent. Notes 1 Article II, §4,
provides: “The President, Vice President and all Civil Officers of
the United States, shall be removed from Office on Impeachment for
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.” 2 To note, as the majority
does, see ante , at 39, that this Court has recognized civil
immunities arguably inconsistent with this view is not to say that
Pinckney was wrong about what the Framers had “intended.” Indeed,
Pinckney’s contemporaries shared the same view during the
ratification debates. See, e.g. , 4 Debates on the
Constitution 109 (J. Elliot ed. 1836) (J. Iredell) (“If the
President does a single act by which the people are prejudiced, he
is punishable himself. . . . If he commits any crime, he
is punishable by the laws of his country”). 3 See Nardone v. United States , 302 U.S.
379 , 384 (1937) (explaining that public officers may be
“impliedly excluded from [statutory] language embracing all
persons” if reading the statute to include such officers “would
work obvious absurdity as, for example, the application of a speed
law to a policeman pursuing a criminal or the driver of a fire
engine responding to an alarm”); see also Memorandum from D.
Barron, Acting Assistant Atty. Gen., Office of Legal Counsel, to E.
Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and
the Constitution to Contemplated Lethal Operations Against Shaykh
Anwar al-Aulaqi 12 (July 16, 2010) (interpreting criminal statute
prohibiting unlawful killings “to incorporate the public authority
justification, which can render lethal action carried out by a
government official lawful in some circumstances”). 4 Trump did not raise those
defenses in this case, and the immunity that the majority has
created likely will obviate the need to raise them in future cases.
Yet those defenses would have protected former Presidents from
unwarranted criminal prosecutions much more precisely than the
blanket immunity the majority creates today. 5 The majority suggests, in a
footnote, that a “prosecutor may point to the public record to show
the fact that the President performed the official 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
supposed to accomplish, it does not salvage the majority’s
nonsensical evidentiary rule. 6 The majority protests
that it is “adher[ing] to time-tested practices” by “deciding what
is required to dispose of this case and remanding” to lower courts
to sort out the details. Ante, at 41. Yet it implicitly
acknowledges that it reaches far beyond what any lower court
considered or any party briefed by designating certain conduct
official in the first instance. See ibid. (noting “the lack
of factual analysis in the lower courts, and the lack of briefing
on how to categorize the conduct alleged”). In reaching out to
shield some conduct as official while refusing to recognize any
conduct as unofficial, the majority engages in judicial activism,
not judicial restraint. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–939

															_________________

															DONALD J. TRUMP, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[July 1, 2024]

															Justice Jackson, dissenting.

															Justice Sotomayor has thoroughly addressed the
Court’s flawed reasoning and conclusion as a matter of history,
tradition, law, and logic. I agree with every word of her powerful
dissent. I write separately to explain, as succinctly as I can, the
theoretical nuts and bolts of what, exactly, the majority has done
today to alter the paradigm of accountability for Presidents of the
United States. I also address what that paradigm shift means for
our Nation moving forward.

															I

															To fully appreciate the profound change the
majority has wrought, one must first acknowledge what it means to
have immunity from criminal prosecution. Put simply, immunity is
“exemption” from the duties and liabilities imposed by law. Black’s
Law Dictionary 898 (11th ed. 2019); see Hopkins v. Clemson , 221 U.S.
636 , 643 (1911) (explaining that immunity is “exemption from
legal process”). In its purest form, the concept of immunity boils
down to a maxim—“ ‘[t]he King can do no wrong’ ”—a notion
that was firmly “rejected at the birth of [our] Republic.” Clinton v. Jones , 520 U.S.
681 , 697, n. 24 (1997) (quoting 1 W. Blackstone,
Commentaries *246 (Blackstone)); see United States v. Burr , 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). To say
that someone is immune from criminal prosecution is to say that,
like a King, he “is not under the coercive power of the law,” which
“will not suppose him capable of committing a folly, much less a
crime.” 4 Blackstone *33. Thus, being immune is not like having a
defense under the law. Rather, it means that the law does
not apply to the immunized person in the first place. Conferring
immunity therefore “create[s] a privileged class free from
liability for wrongs inflicted or injuries threatened.” Hopkins , 221 U. S., at 643.

															It is indisputable that immunity from liability
for wrongdoing is the exception rather than the rule in the
American criminal justice system. That is entirely unsurprising,
for the very idea of immunity stands in tension with foundational
principles of our system of Government. It is a core tenet of our
democracy that the People are the sovereign, and the Rule of Law is
our first and final security. “[F]rom their own experience and
their deep reading in history, the Founders knew that Law alone
saves a society from being rent by internecine strife or ruled by
mere brute power however 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
impunity. All the officers of the government, from the highest to
the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee , 106 U.S.
196 , 220 (1882). We have long lived with the collective
understanding that “[d]ecency, security and liberty alike demand
that government officials shall be subjected to the same rules of
conduct that are commands to the citizen,” for “[i]n a government
of laws, existence of the government will be imperilled if it fails
to observe the law scrupulously.” Olmstead v. United
States , 277 U.S.
438 , 485 (1928) (Brandeis, J., dissenting).

															II

															A

															These foundational presuppositions are
reflected in a procedural paradigm of rules and accountability that
operates in the realm of criminal law—what I would call an
individual accountability model.

															The basic contours of that model are familiar,
because they manifest in every criminal case. Criminal law starts
with an act of the legislature, which holds the power “to define 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 of general
applicability that express “the assent of the people’s
representatives” that certain conduct is off limits in our society. Wooden v. United States , 595 U.S. 360, 391 (2022)
(Gorsuch, J., concurring in judgment).

															When the Federal Government believes that
someone has run afoul of a criminal statute and decides to exercise
its prosecutorial discretion to pursue punishment for that
violation, it persuades a grand jury that there is probable cause
to indict. U. S. Const., Amdt. 5. Then, the Government
marshals evidence to prove beyond a reasonable doubt that the
defendant engaged in the prohibited conduct and possessed the
requisite state of mind. See United States 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 be proved (quoting Morissette v. United States , 342
U.S. 246 , 251 (1952))).

															For his part, the defendant “stands accused but
is presumed innocent until conviction upon trial or guilty plea.” Betterman v. Montana , 578 U.S. 437, 441 (2016).
Notably, criminal defendants have various constitutionally
protected rights during the criminal-liability process, including
the rights to a speedy and public trial, the right to have a jury
decide guilt or innocence, the right to the assistance of counsel,
and the right to confront the witnesses against him. Amdt. 6. The
defendant also has at his disposal many means to defend himself
against the criminal charge. He can, of course, seek to hold the
Government to its burden of proof at trial. And even before trial,
in a motion to dismiss the indictment, he might make any number of
legal arguments; he can assert, for example, that the Government’s
charging document does not give adequate notice of the charge
against him or that the law he has been accused of violating is
unconstitutionally vague. See Hamling v. United
States , 418 U.S.
87 , 117 (1974); United States v. Davis , 588 U.S.
445, 451 (2019). He might further claim that the law is
unconstitutional as applied to his particular conduct. See United States v. O’Brien , 391
U.S. 367 , 376 (1968). And he might maintain that his conduct,
even if proved, does not violate the law at issue. See, e . g ., Fischer v. United States , 603
U. S. ___, ___ (2024) (slip op., at 2).

															The defendant may also raise, and attempt to
prove, affirmative defenses that “excuse conduct that would
otherwise be punishable.” Dixon v. United States , 548 U.S.
1 , 6 (2006). Generally speaking, affirmative defenses are
determinations (often adopted by legislation) that certain conduct
otherwise punishable by law is justified. This might be the case,
for example, when the Legislature determines that, under specified
circumstances, the societal harm particular conduct causes “is
outweighed by the need to avoid an even greater harm.” 1 P.
Robinson, Criminal Law Defenses §24(a) (1984) (Robinson).

															Importantly, a defense is not an
immunity, even though a defense can likewise result in a person
charged with a crime avoiding liability for his criminal conduct.
Consistent with our foundational norms, the individual
accountability model adheres to the presumption that the law
applies to all and that everyone must follow it; yet, the model
makes allowances for recognized defenses. One such defense is the
special privilege that Government officials sometimes invoke when
carrying out their official duties.[ 1 ]

															All of this is to say that our Government has
long functioned under an accountability paradigm in which no one is
above the law; an accused person is innocent until proven guilty;
and criminal defendants may raise defenses, both legal and factual,
tailored to their particular circumstances, whether they be
Government officials or ordinary citizens. For over two centuries,
our Nation has survived with these principles intact.

															B

															With that understanding of how our system of
accountability for criminal acts ordinarily functions, it becomes
much easier to see that the majority’s ruling in this case breaks
new and dangerous ground. Departing from the traditional model of
individual accountability, the majority has concocted something
entirely different: a Presidential accountability model that
creates immunity—an exemption from criminal law—applicable only to
the most powerful official in our Government.

															1

															So, how does this new Presidential
accountability model work? An initial problem is the lack of
clarity regarding what this new model entails. The majority
announces only its most basic contours. See ante, at 6
(asserting that “the nature of Presidential power requires that a
former President have some immunity from criminal prosecution for
official acts during his tenure in office”). Instead of no immunity
(the individual accountability model) or an unqualified grant of
absolute immunity for “ all official acts,” Brief for
Petitioner 44 (emphasis added), the majority purports to adopt
something of a hybrid.[ 2 ] It
holds that a former President may or may not be immune from
criminal prosecution for conduct undertaken while in office, to be
determined on a case-by-case basis. According to the majority,
whether a former President is immune depends on how his criminal
conduct is classified, as among three possible categories.

															First, with respect to any criminal conduct
relating to a President’s “core constitutional powers”—those
subjects “within his ‘conclusive and preclusive’ constitutional
authority”—the President is entitled to absolute immunity from
criminal prosecution. See ante , at 6, 8. Second, expanding
outward from this “core,” regarding all other “acts within the
outer perimeter of [the President’s] official responsibility,” the
President is entitled to “at least a presumptive immunity
from criminal prosecution.” Ante , at 14. Third, if the
criminal conduct at issue comprises “unofficial acts, there is no
immunity.” Ante , at 15.[ 3 ]

															Applying the majority’s new Presidential
accountability model thus seems to involve bearing down on the
indictment’s allegations and making a series of determinations
about the nature of the conduct at issue. From the structure of the
paradigm, it appears that the first decision point is whether the
alleged criminal conduct involves one of the President’s “core”
powers. If so (and apparently regardless of the degree to which the
conduct implicates that core power), the President is absolutely
immune from criminal liability for engaging in that criminal
conduct. If not, then one must proceed to consider whether the
conduct qualifies as an “official” act or “unofficial” act of that
President. If the crime is an official act, the President is
presumptively immune from criminal prosecution and punishment. But
even then, immunity still hinges on whether there is any legal or
factual basis for concluding that the presumption of immunity has
been rebutted. Alternatively, if the charged conduct is an
unofficial act (a determination that, incidentally, courts must
make without considering the President’s motivations, ante, at 18), the President is not immune.[ 4 ]

															2

															The majority’s multilayered, multifaceted
threshold parsing of the character of a President’s criminal
conduct differs from the individual accountability model in several
crucial respects. For one thing, it makes it next to impossible to
know ex ante when and under what circumstances a President
will be subject to accountability for his criminal acts. For every
allegation, courts must run this gauntlet first—no matter how well
documented or heinous the criminal act might be.

															Thus, even a hypothetical President who admits
to having ordered the assassinations of his political rivals or
critics, see, e.g., Tr. of Oral Arg. 9, or one who
indisputably instigates an unsuccessful coup, id ., at 41–43,
has a fair shot at getting immunity under the majority’s new
Presidential accountability model. That is because whether a
President’s conduct will subject him to criminal liability turns on
the court’s evaluation of a variety of factors related to the
character of that particular act—specifically, those
characteristics that imbue an act with the status of “official” or
“unofficial” conduct (minus motive). In the end, then, under the
majority’s new paradigm, whether the President will be exempt from
legal liability for murder, assault, theft, fraud, or any other
reprehensible and outlawed criminal act will turn on whether he
committed that act in his official capacity, such that the answer
to the immunity question will always and inevitably be: It
depends.

															Under the individual accountability paradigm,
the accountability analysis is markedly less convoluted, and leads
to a more certain outcome. None of the same complications or
consequences arise, because, as I have explained, there are no
exemptions from the criminal law for any person, but every
defendant can assert whatever legal arguments and defenses might be
applicable under governing law. Since no one is above the law,
everyone can focus on what the law demands and permits, and on what
the defendant did or did not do; no one has to worry about
characterizing any criminal conduct as official or unofficial in
order to assess the applicability of an immunity at the outset.

															The majority’s new Presidential accountability
model is also distinct insofar as it accepts as a basic starting
premise that generally applicable criminal laws do not apply
to everyone in our society. In the majority’s view, while all other
citizens of the United States must do their jobs and live their
lives within the confines of criminal prohibitions, the President
cannot be made to do so; he must sometimes be exempt from the law’s
dictates depending on the character of his conduct. Indeed, the
majority holds that the President, unlike anyone else in our
country, is comparatively free to engage in criminal acts in
furtherance of his official duties.

															That point bears emphasizing. Immunity can issue
for Presidents under the majority’s model even for unquestionably
and intentionally egregious criminal behavior. Regardless of the
nature or the impact of the President’s criminal conduct, so long
as he is committing crimes “pursuant to the powers invested
exclusively in him by the Constitution,” ante, at 7, or as
needed “to carry out his constitutional duties without undue
caution,” ante, at 14, he is likely to be deemed immune from
prosecution.[ 5 ]

															Ultimately, the majority’s model simply sets the
criminal law to one side when it comes to crimes allegedly
committed by the President. Before accountability can be sought or
rendered, the Judiciary serves as a newfound special gatekeeper,
charged not merely with interpreting the law but with policing
whether it applies to the President at all . Also, under the
new Presidential accountability model, the starting presumption is
that the criminal law does not apply to Presidents, no
matter how obviously illegal, harmful, or unacceptable a
President’s official behavior might be. Regardless of all that,
courts must now ensure that a former President is not held
accountable for any criminal conduct he engages in while he is on
duty, unless his conduct consists primarily (and perhaps solely) of
unofficial acts.

															3

															The structure and function of the two
accountability paradigms are not the only differences—the models
also assign different roles to participants in the criminal justice
system, and they ultimately generate different relationships
between the Presidency and the Rule of Law.

															Under the individual accountability model,
duty-bound prosecutorial officers initially exercise their
discretion to decide whether to seek punishment for alleged
violations of criminal law (a determination that is made based on
numerous factors). And even if prosecutors decide to bring a
charge, a jury of the criminal defendant’s peers ultimately
determines whether that defendant (including a former President)
will actually be held to account for having engaged in unlawful
conduct, after the court has resolved any legal challenges and has
instructed the jury as to the requirements of the law.

															By contrast, under the majority’s new
Presidential accountability paradigm, what a prosecutor or jury
does may not even matter, since the courts take center stage once
charges are brought against a former President, marshaling their
resources to conduct a complex and amorphous threshold immunity
evaluation. Whether a former President will be entirely exempted
from the dictates of the law (such that the roles of other
participants in the criminal justice process become irrelevant)
requires a judicial assessment, in the first instance, of his
criminal conduct and the circumstances under which he acted.

															Finally, and most importantly, recall that under
the individual accountability model, an indicted former President
can raise an affirmative defense just like any other criminal
defendant. This means that the President remains answerable to the
law, insofar as he must show that he was justified in committing a
criminal act while in office under the given circumstances. In
other words, while the President might indeed be privileged to
commit a crime in the course of his official duties, any such
privilege exists only when the People (acting either through their
elected representatives or as members of a jury) determine that the
former President’s conduct was in fact justified, notwithstanding
the general criminal prohibition.

															Under the majority’s immunity regime, by
contrast, the President can commit crimes in the course of his job
even under circumstances in which no one thinks he has any
excuse ; the law simply does not apply to him. Unlike a
defendant who invokes an affirmative defense and relies on a legal
determination that there was a good reason for his otherwise
unlawful conduct, a former President invoking immunity relies on
the premise that he can do whatever he wants, however he wants, so
long as he uses his “ ‘official power’ ” in doing so. Ante, at 19. In the former paradigm, the President remains
subject to law; in the latter, he is above it.

															III

															Justice Sotomayor has already warned of the
dire consequences that are likely to follow from the majority’s
decision in this case. Ante, at 29–30 (dissenting opinion).
I have thus far endeavored merely to explain what today’s ruling
amounts to on a theoretical level: the Court’s abandonment of the
individual accountability model as applied to Presidents, and its
introduction of a new Presidential accountability model that
authorizes the Judiciary to exempt Presidents from punishment under
law, depending on the official or unofficial character of the
criminal conduct at issue.

															Here, I will highlight just two observations
about the results that follow from this paradigm shift. First, by
changing the accountability paradigm in this fashion, the Court has
unilaterally altered the balance of power between the three
coordinate branches of our Government as it relates to the Rule of
Law, aggrandizing power in the Judiciary and the Executive, to the
detriment of Congress. Second, the majority’s new Presidential
accountability model undermines the constraints of the law as a
deterrent for future Presidents who might otherwise abuse their
power, to the detriment of us all.

															A

															Consider the structural implications of
today’s decision from the standpoint of the separation of powers.
Until now, Congress’s laws, passed by the representatives of the
People, bound the People and their elected officials just the same.
Law, we have explained, “is the only supreme power in our system of
government, and every man who by accepting office participates in
its functions is only the more strongly bound to submit to that
supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives.” Lee , 106
U. S., at 220. With its adoption of a paradigm that sometimes
exempts the President from the dictates of the law (when the Court
says so), this Court has effectively snatched from the Legislature
the authority to bind the President (or not) to Congress’s
mandates, and it has also thereby substantially augmented the power
of both the Office of the Presidency and itself.

															As to the former, it should go without saying
that the Office of the Presidency, the apex of the Executive
Branch, is made significantly more powerful when the constraints of
the criminal law are lifted with respect to the exercise of a
President’s official duties. After today’s ruling, the President
must still “take Care that the Laws be faithfully executed,”
Art. II, §3; yet, when acting in his official capacity, he has
no obligation to follow those same laws himself.

															But whatever additional power the majority’s new
Presidential accountability model gives to the Presidency, it gives
doubly to the Court itself, for the majority provides no meaningful
guidance about how to apply this new paradigm or how to categorize
a President’s conduct. For instance, its opinion lists some
examples of the “core” constitutional powers with respect to which
the President is now entitled to absolute immunity—a list that
apparently includes the removal power, the power to recognize
foreign nations, and the pardon power. Ante, at 6–9.
However, the majority does not—and likely cannot—supply any useful
or administrable definition of the scope of that “core.” For what
it’s worth, the Constitution’s text is no help either; Article II
does not contain a Core Powers Clause.[ 6 ] So the actual metes and bounds of the “core”
Presidential powers are really anyone’s guess.

															Nor does the majority explain how to
consistently distinguish between official and unofficial acts.
Quite the opposite, in fact. While acknowledging that this is a
critical line that courts must draw in order for its new
accountability model to work properly, the majority simultaneously
cautions that making this distinction “can be difficult”—likely a
gross understatement given the recognized “breadth of the
President’s ‘discretionary responsibilities’ under the Constitution
and laws of the United States.” Ante, at 17. The majority
likewise provides no guidance as to when, how, or why the
President’s “presumptive” immunity for noncore official acts might
be rebutted, saying only that applying the criminal law to a
President’s acts must pose “no ‘dangers of intrusion on the
authority and functions of the Executive Branch.’ ” Ante, at 14 (quoting Nixon v. Fitzgerald , 457 U.S.
731 , 754 (1982)).

															At most, to distinguish official from unofficial
conduct, the majority advises asking whether the former President’s
conduct was “ ‘manifestly or palpably beyond [his]
authority.’ ” Ante, at 17 (quoting Blassingame v. Trump , 87 F. 4th 1, 13 (CADC 2023)). But that test
can be illusory, as is evidenced by the facts alleged in this very
case. With respect to the indictment’s allegations concerning
petitioner’s attempt to assemble false slates of electors in
conjunction with the events of January 6, 2021, for example, the
majority admits that the “alleged conduct cannot be neatly
categorized,” and that “[t]he analysis therefore . . .
may prove to be challenging.” Ante, at 28–29. With that, at
least, I could not agree more.

															This much is clear: Before today, none of these
kinds of inquiries was necessary for criminal liability to be
fairly assessed with respect to persons accused of having engaged
in criminal conduct. And, frankly, none is needed now—except as
relates to the President under the new paradigm the majority has
crafted.

															Perhaps even more troubling, while Congress (the
branch of our Government most accountable to the People) is the
entity our Constitution tasks with deciding, as a general matter,
what conduct is on or off limits, the Court has now arrogated that
power unto itself when that question pertains to the President. In
essence, the Court has now imposed its own preclearance requirement
on the application of Congress’s laws to a former President alleged
to have committed crimes while in office. Who will be responsible
for drawing the crucial “ ‘line between [the President’s]
personal and official affairs’ ”? Ante, at 29. To ask
the question is to know the answer. A majority of this Court,
applying an indeterminate test, will pick and choose which laws
apply to which Presidents, by labeling his various allegedly
criminal acts as “core,” “official,” or “manifestly or palpably”
beyond the President’s authority.

															Ironically, then, while purportedly seeking to
transcend politics, see ante, at 41–42, the Court today
displaces the independent judgments of the political branches about
the circumstances under which the criminal law should apply.
Effectively, the Court elbows out of the way both Congress and
prosecutorial authorities within the Executive Branch, making
itself the indispensable player in all future attempts to hold
former Presidents accountable to generally applicable criminal
laws. “The Framers, however, did not make 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
Court may sometimes “have to intervene in determining where
authority lies as between the democratic forces in our scheme of
government.” Id ., at 597. But it has long been understood
that “we should be wary and humble” when doing so. Ibid .

															The majority displays no such caution or
humility now. Instead, the Court today transfers from the political
branches to itself the power to decide when the President can be
held accountable. What is left in its wake is a greatly weakened
Congress, which must stand idly by as the President disregards its
criminal prohibitions and uses the powers of his office to push the
envelope, while choosing to follow (or not) existing laws, as he
sees fit. We also now have a greatly empowered Court, which can opt
to allow Congress’s policy judgments criminalizing conduct to stand
(or not) with respect to a former President, as a matter of its own
prerogative.

															B

															If the structural consequences of today’s
paradigm shift mark a step in the wrong direction, then the
practical consequences are a five-alarm fire that threatens to
consume democratic self-governance and the normal operations of our
Government. The majority shoos away this possibility. Ante, at 37 (accusing the dissents of “strik[ing] a tone of chilling doom
that is wholly disproportionate to what the Court actually does
today”). But Justice Sotomayor makes this point plain, see ante, at 29–30, and I will not belabor it.

															Here, I will merely observe that, from a
theoretical perspective, philosophers have long considered
deterrence to be a key justification for adopting and maintaining
systems that ensure accountability for criminal conduct.[ 7 ] For that same reason, some
commentators also maintain that decreasing the certainty of
accountability for wrongful acts at least arguably reduces
incentives to follow the law.[ 8 ]

															Under the individual accountability model,
because everyone is subject to the law, the potential of criminal
liability operates as a constraint on the actions and decisions of
everyone, including the President. After today, that reality is no
more. Consequently, our Nation has lost a substantial check on
Presidents who would use their official powers to commit crimes
with impunity while in office.

															So, one might ask, what remains of
accountability for Presidents under law? With today’s paradigm
shift, the majority leaves in place only the chance that this Court
might someday determine that the criminal conduct in question was
an “unofficial” act, or that the Government will somehow rebut the
presumption of immunity that applies to a President’s official
acts, such that criminal consequences might attach. But with the
parameters of official and unofficial conduct unknown, I think it
highly unlikely that a sitting President would feel constrained by
these remote possibilities.

															All of this leads me to ponder why, exactly, has
the majority concluded that an indeterminate
“core”-versus-“official”-versus-“unofficial” line-drawing exercise
is the better way to address potential criminal acts of a
President? Could it be that the majority believes the obviously
grave dangers of shifting from the individual accountability model
to the Presidential accountability model might nevertheless be
offset by the great benefits of doing so? Cf. J. Bentham, A
Fragment on Government and an Introduction to the Principles of
Morals and Legislation 3 (W. Harrison ed. 1948) (arguing that acts
can be justified by the maxim that “it is the greatest happiness of
the greatest number that is the measure of right and wrong”
(emphasis deleted)).

															Some of the majority’s analysis suggests as
much. As far as I can tell, the majority is mostly concerned that,
without immunity, Presidents might “be chilled from taking the
‘bold and unhesitating action’ required of an independent
Executive.” Ante, at 13. The Court’s opinion candidly
laments that application of the law to Presidents might not be
evenhanded, and that, as a result, Presidents might be less
“ ‘vigorous’ and ‘energetic’ ” as executive officers. Ante, at 10; accord, ante, at 39. But that concern
ignores (or rejects) the foundational principles upon which the
traditional individual accountability paradigm is based. Worse
still, promoting more vigor from Presidents in exercising their
official duties—and, presumably, less deliberation—invites
breathtaking risks in terms of harm to the American people that, in
my view, far outweigh the benefits.

															This is not to say that the majority is wrong
when it perceives that it can be cumbersome for a President to have
to follow the law while carrying out his duty to enforce it. It is
certainly true that “[a] scheme of government like ours no doubt at
times feels the lack of power to act with complete, all-embracing,
swiftly moving authority.” Youngstown , 343 U. S., at
613 (Frankfurter, J., concurring). But any American who has studied
history knows that “our government was designed to have such
restrictions.” Ibid. (emphasis added). Our Constitution’s
“separation of powers was adopted by the Convention of 1787, not to
promote efficiency but to preclude the exercise of arbitrary power.
The purpose was, not to avoid friction, but . . . to save
the people from autocracy.” Myers v. United States , 272 U.S.
52 , 293 (1926) (Brandeis, J., dissenting).

															Having now cast the shadow of doubt over when—if
ever—a former President will be subject to criminal liability for
any criminal conduct he engages in while on duty, the majority
incentivizes all future Presidents to cross the line of criminality
while in office, knowing that unless they act “manifestly or
palpably beyond [their] authority,” ante, at 17, they will
be presumed above prosecution and punishment alike.

															But the majority also tells us not to worry,
because “[l]ike everyone else, the President is subject to
prosecution in his unofficial capacity.” Ante, at 40
(emphasis added). This attempted reassurance is cold comfort, even
setting aside the fact that the Court has neglected to lay out a
standard that reliably distinguishes between a President’s official
and unofficial conduct. Why? Because there is still manifest
inequity: Presidents alone are now free to commit crimes when they
are on the job, while all other Americans must follow the law in
all aspects of their lives, whether personal or professional. The
official-versus-unofficial act distinction also seems both
arbitrary and irrational, for it suggests that the unofficial
criminal acts of a President are the only ones worthy of
prosecution. Quite to the contrary, it is when the President
commits crimes using his unparalleled official powers that the
risks of abuse and autocracy will be most dire. So, the fact that,
“unlike anyone else, the President is” vested with “sweeping powers
and duties,” ibid. , actually underscores, rather than
undermines, the grim stakes of setting the criminal law to the side
when the President flexes those very powers.

															The vision John Adams enshrined in the
Massachusetts Declaration of Rights—“ ‘a government of laws
and not of men’ ”—speaks directly to this concept. Mine
Workers , 330 U. S., at 307 (Frankfurter, J., concurring in
judgment). Adams characterized that document as an homage to the
Rule of Law; it reflected both a flat “rejection in positive terms
of rule by fiat” and a solemn promise that “[e]very act of
government may be challenged by an appeal to law.” Id ., at
308. Thanks to the majority, that vision and promise are likely to
be fleeting in the future. From this day forward, Presidents of
tomorrow will be free to exercise the Commander-in-Chief powers,
the foreign-affairs powers, and all the vast law enforcement powers
enshrined in Article II however they please—including in ways that
Congress has deemed criminal and that have potentially grave
consequences for the rights and liberties of Americans.

															IV

															To the extent that the majority’s new
accountability paradigm allows Presidents to evade punishment for
their criminal acts while in office, the seeds of absolute power
for Presidents have been planted. And, without a doubt, absolute
power corrupts absolutely. “If one man can be allowed to determine
for himself what is law, every man can. That means first chaos,
then tyranny.” Id ., at 312. Likewise, “[i]f the Government
becomes a lawbreaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy.” Olmstead , 277 U. S., at 485 (Brandeis, J., dissenting).
I worry that, after today’s ruling, our Nation will reap what this
Court has sown.

															Stated simply: The Court has now declared for
the first time in history that the most powerful official in the
United States can (under circumstances yet to be fully determined)
become a law unto himself. As we enter this uncharted territory,
the People, in their wisdom, will need to remain ever attentive,
consistently fulfilling their established role in our
constitutional democracy, and thus collectively serving as the
ultimate safeguard against any chaos spawned by this Court’s
decision. For, like our democracy, our Constitution is “the
creature of their will, and lives only by their will.” Cohens v. Virginia , 6 Wheat. 264, 389 (1821).

															For my part, I simply cannot abide the
majority’s senseless discarding of a model of accountability for
criminal acts that treats every citizen of this country as being
equally subject to the law—as the Rule of Law requires. That core
principle has long prevented our Nation from devolving into
despotism. Yet the Court now opts to let down the guardrails of the
law for one extremely powerful category of citizen: any future
President who has the will to flout Congress’s established
boundaries.

															In short, America has traditionally relied on
the law to keep its Presidents in line. Starting today, however,
Americans must rely on the courts to determine when (if at all) the
criminal laws that their representatives have enacted to promote
individual and collective security will operate as speedbumps to
Presidential action or reaction. Once self-regulating, the Rule of
Law now becomes the rule of judges, with courts pronouncing which
crimes committed by a President have to be let go and which can be
redressed as impermissible. So, ultimately, this Court itself will
decide whether the law will be any barrier to whatever course of
criminality emanates from the Oval Office in the future. The
potential for great harm to American institutions and Americans
themselves is obvious.

															*  *  *

															The majority of my colleagues seems to have put
their trust in our Court’s ability to prevent Presidents from
becoming Kings through case-by-case application of the
indeterminate standards of their new Presidential accountability
paradigm. I fear that they are wrong. But, for all our sakes, I
hope that they are right.

															In the meantime, because the risks (and power)
the Court has now assumed are intolerable, unwarranted, and plainly
antithetical to bedrock constitutional norms, I dissent. Notes 1 See R. Perkins & R.
Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds which otherwise
would be criminal, such as taking or destroying property, taking
hold of a person by force and against his will, placing him in
confinement, or even taking his life, are not crimes if done with
proper public authority”); see also 2 Robinson §141(a) (describing
the public-authority defense, under which a defendant may escape
liability if he “has been specifically authorized to engage in the
conduct constituting the offense in order to protect or further a
public interest”); Brief for United States 29–30, n. 11; ante, at 16, n. 3 (Sotomayor, J., dissenting) (citing Nardone v. United States , 302
U.S. 379 , 384 (1937)). 2 Its feigned judicial
humility notwithstanding, see ante, at 41, the majority’s
holding goes further— much further—than necessary to resolve
this case. Petitioner’s argument in both the lower courts and this
one was that a former President is categorically immune from
federal criminal prosecution for “all” acts within the outer
perimeter of his official duties. 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
absolute immunity for “all actions within the ‘outer
perimeter’ ” of a President’s responsibilities, and imploring
the Court not to adopt a “ ‘function-based’ approach”). Thus,
it would have been enough for the Court simply to reject
petitioner’s categorical claim and leave it at that. But the
majority sua sponte rephrased the question presented,
and it now takes full advantage of this opportunity to devise from
whole cloth an entirely new legal framework for judicial evaluation
of potential criminal immunity for former Presidents. 3 It is important to note
that the majority reframes the immunity question presented here as
a separation of powers concern that is compelled by Article II—as
if what is being asked is whether Congress can criminalize
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 to what is happening in this case. No
one maintains that Congress has passed a law that specifically
criminalizes the President’s use of any power that the Constitution
vests exclusively in the Executive, much less that the Judiciary is
being conscripted to adjudicate the propriety of such a statute. To
the contrary, the indictment here invokes criminal statutes of
general applicability that everyone is supposed to follow, both on
and off the job. So, the real question is: Can the President, too,
be held accountable for committing crimes while he is undertaking
his official duties? The nature of his authority under Article II
(whether conclusive and preclusive, or shared with Congress, or
otherwise) is entirely beside the point. 4 Justice Barrett’s version
of the Presidential accountability paradigm works slightly
differently; she would have us ask, first, “whether the relevant
criminal statute reaches the President’s official conduct.” Ante, at 2. But, again, what is at issue here are statutes
of general applicability—they only “reach” the President’s conduct
to the extent that he chooses to engage in the prohibited behavior.
See n. 3, supra . Justice Barrett’s framing, thus,
sidesteps the fact that, when immunity is being considered, what is
actually at issue is whether the President is exempt from
punishment if he opts to exercise his official duties using means
that violate criminal law. 5 To fully appreciate the
oddity of making the criminal immunity determination turn on the
character of the President’s responsibilities, consider what the
majority says is one of the President’s “conclusive and preclusive”
prerogatives: “ ‘[t]he President’s power to remove
. . . those who wield executive power on his
behalf.’ ” Ante, at 8 (quoting Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197, 204
(2020)). While the President may have the authority to decide to
remove the Attorney General, for example, the question here is
whether the President has the option to remove the Attorney General
by, say, poisoning him to death. Put another way, the issue here is
not whether the President has exclusive removal power, but whether
a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority. 6 Some of the powers the
majority designates as “core” powers are, at best, implied from
indefinite constitutional language. See, e . g ., Seila Law , 591 U. S., at 268–269 (Kagan, J., concurring
in judgment with respect to severability and dissenting in part)
(“Nowhere does the text say anything about the President’s power to
remove subordinate officials at will”); Zivotofsky v. Kerry , 576 U.S.
1 , 11 (2015) (“[T]he Constitution does not use the term
‘recognition,’ either in Article II or elsewhere”); id ., at
63 (Roberts, C. J., dissenting) (calling the “asserted textual
bases” for an exclusive Presidential recognition power
“tenuous”). 7 See, e . g .,
Plato, Laws 274 (B. Jowett transl. 2000) (“Not that he is punished
because he did wrong, for that which is done can never be undone,
but in order that in future times, he, and those who see him
corrected, 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 its real justification”); A. von Hirsch,
Doing Justice: The Choice of Punishments 44 (1976) (“The threat and
imposition of punishment is called for in order to secure
compliance—not full compliance, but more compliance than 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 the
. . . certainty of punishment . . . could
undermine the deterrence value of punishment”).