Trump v. United States

(Slip Opinion)              OCTOBER TERM, 2023                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                     TRUMP v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
          THE DISTRICT OF COLUMBIA CIRCUIT

        No. 23–939.      Argued April 25, 2024—Decided July 1, 2024


A federal grand jury indicted former President Donald J. Trump 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 certi-
  fying of the election results. Trump moved to dismiss the indictment
  based on Presidential immunity, arguing that a President has absolute
  immunity from criminal prosecution for actions performed within the
  outer perimeter of his official responsibilities, and that the indict-
  ment’s allegations fell within the core of his official duties. The District
  Court denied Trump’s motion to dismiss, holding that former Presi-
  dents do not possess federal criminal immunity for any acts. The D. C.
  Circuit affirmed. Both the District Court and the D. C. Circuit de-
  clined to decide whether the indicted conduct involved official acts.
Held: Under our constitutional structure of separated powers, the nature
 of Presidential power entitles a former President to absolute immunity
 from criminal prosecution for actions within his conclusive and preclu-
 sive constitutional authority. And he is entitled to at least presump-
 tive immunity from prosecution for all his official acts. There is no
 immunity for unofficial acts. Pp. 5–43.
    (a) This case is the first criminal prosecution in our Nation’s history
 of a former President for actions taken during his Presidency. Deter-
 mining whether and under what circumstances such a prosecution
 may proceed requires careful assessment of the scope of Presidential
 power under the Constitution. The nature of that 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
2                       TRUMP v. UNITED STATES

                                    Syllabus

    President’s exercise of his core constitutional powers, this immunity
    must be absolute. As for his remaining official actions, he is entitled
    to at least presumptive immunity. Pp. 5–15.
         (1) Article II of the Constitution vests “executive Power” in “a
    President of the United States of America.” §1, cl. 1. The President
    has duties of “unrivaled gravity and breadth.” Trump v. Vance, 

. His authority to act necessarily “stem[s] either from an
    act of Congress or from the Constitution itself.” Youngstown Sheet &
    Tube Co. v. Sawyer, 

. In the latter case, the Presi-
    dent’s authority is sometimes “conclusive and preclusive.” 

    (Jackson, J., concurring). When the President exercises such author-
    ity, Congress cannot act on, and courts cannot examine, the Presi-
    dent’s actions. It follows that an Act of Congress—either a specific one
    targeted at the President or a generally applicable one—may not crim-
    inalize the President’s actions within his exclusive constitutional
    power. Neither may the courts adjudicate a criminal prosecution that
    examines such Presidential actions. The Court thus concludes that
    the President is absolutely immune from criminal prosecution for con-
    duct within his exclusive sphere of constitutional authority. Pp. 6–9.
         (2) Not all of the President’s official acts fall within his “conclusive
    and preclusive” authority. The reasons that justify the President’s ab-
    solute immunity from criminal prosecution for acts within the scope of
    his exclusive constitutional authority do not extend to conduct in areas
    where his authority is shared with Congress. To determine the Presi-
    dent’s immunity in this context, the Court looks primarily to the Fram-
    ers’ design of the Presidency within the separation of powers, prece-
    dent on Presidential immunity in the civil context, and criminal cases
    where a President resisted prosecutorial demands for documents. P.
    9.
            (i) The Framers designed the Presidency to provide for a “vigor-
    ous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J.
    Cooke ed. 1961) (A. Hamilton). They vested the President with “su-
    pervisory and policy responsibilities of utmost discretion and sensitiv-
    ity.” Nixon v. Fitzgerald, 

. Appreciating the “unique
    risks” that arise when the President’s energies are diverted by pro-
    ceedings that might render him “unduly cautious in the discharge of
    his official duties,” the Court has recognized Presidential immunities
    and privileges “rooted in the constitutional tradition of the separation
    of powers and supported by our history.” 

.
    In Fitzgerald, for instance, the Court concluded that a former Presi-
    dent is entitled to absolute immunity from “damages liability for acts
    within the ‘outer perimeter’ of his official responsibility.” 

.
    The Court’s “dominant concern” was to avoid “diversion of the Presi-
    dent’s attention during the decisionmaking process caused by needless
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worry as to the possibility of damages actions stemming from any par-
ticular official decision.” Clinton v. Jones, 

.
   By contrast, when prosecutors have sought evidence from the Pres-
ident, the Court has consistently rejected Presidential claims of abso-
lute immunity. During the treason trial of former Vice President Aa-
ron Burr, for instance, Chief Justice Marshall rejected President
Thomas Jefferson’s claim that the President could not be subjected to
a subpoena. Marshall simultaneously recognized, however, the exist-
ence of a “privilege” to withhold certain “official paper[s].” United
States v. Burr, 

 (No. 14,694) (CC Va.). And when a
subpoena issued to President Richard Nixon, the Court rejected his
claim of “absolute privilege.” United States v. Nixon, 

. But recognizing “the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking,” it held that a
“presumptive privilege” protects Presidential communications. 

. Because that privilege “relates to the effective discharge of a
President’s powers,” 

, the Court deemed it “fundamental to
the operation of Government and inextricably rooted in the separation
of powers under the Constitution.” 

. Pp. 9–12.
       (ii) Criminally prosecuting a President for official conduct un-
doubtedly poses a far greater threat of intrusion on the authority and
functions of the Executive Branch than simply seeking evidence in his
possession. The danger is greater than what led the Court to recognize
absolute Presidential immunity from civil damages liability—that the
President would be chilled from taking the “bold and unhesitating ac-
tion” required of an independent Executive. Fitzgerald, 

. Although the President might be exposed to fewer criminal pros-
ecutions than civil damages suits, the threat of trial, judgment, and
imprisonment is a far greater deterrent and plainly more likely to dis-
tort 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 un-
der “a pall of potential prosecution,” McDonnell v. United States, 

, raises “unique risks to the effective functioning of gov-
ernment,” Fitzgerald, 

. But there is also a compelling
“public interest in fair and effective law enforcement.” Vance, 

.
   Taking into account these competing considerations, the Court con-
cludes that the separation of powers principles explicated in the
Court’s 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 safe-
guard the independence and effective functioning of the Executive
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                                   Syllabus

    Branch, and to enable the President to carry out his constitutional du-
    ties without undue caution. At 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.” Fitzgerald, 

. Pp. 12–15.
         (3) As for a President’s unofficial acts, there is no immunity. Alt-
    hough Presidential immunity is required for official actions to 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. Clinton, 

,
    and n. 19. The separation of powers does not bar a prosecution predi-
    cated on the President’s unofficial acts. P. 15.
       (b) The first step in deciding whether a former President is entitled
    to immunity from a particular prosecution is to distinguish his official
    from unofficial actions. In this case, no court thus far has drawn that
    distinction, in general or with respect to the conduct alleged in partic-
    ular. It is therefore incumbent upon the Court to be mindful that it is
    “a court of final review and not first view.” Zivotofsky v. Clinton, 

. Critical threshold issues in this case are how to differ-
    entiate between a President’s official and unofficial actions, and how
    to do so with respect to the indictment’s extensive and detailed allega-
    tions covering a broad range of conduct. The Court offers guidance on
    those issues. Pp. 16–32.
         (1) When the President acts pursuant to “constitutional and stat-
    utory authority,” he takes official action to perform the functions of his
    office. Fitzgerald, 456 U. S., at 757. Determining whether an action
    is covered by immunity thus begins with assessing the President’s au-
    thority to take that action. But the breadth of the President’s “discre-
    tionary responsibilities” under the Constitution and laws of the United
    States frequently makes it “difficult to determine which of [his] innu-
    merable ‘functions’ encompassed a particular action.” Id., at 756. The
    immunity the Court has recognized therefore extends to the “outer pe-
    rimeter” of the President’s official responsibilities, covering actions so
    long as they are “not manifestly or palpably beyond [his] authority.”
    Blassingame v. Trump, 

 (CADC).
       In dividing official from unofficial conduct, courts may not inquire
    into the President’s motives. Such a “highly intrusive” inquiry would
    risk exposing even the most obvious instances of official conduct to ju-
    dicial examination on the mere allegation of improper purpose. Fitz-
    gerald, 

. Nor may courts deem an action unofficial
    merely because it allegedly violates a generally applicable law. Oth-
    erwise, Presidents would be subject to trial on “every allegation that
    an action was unlawful,” depriving immunity of its intended effect.
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Ibid. Pp. 17–19.
     (2) With the above principles in mind, the Court turns to the con-
duct alleged in the indictment. Certain allegations—such as those in-
volving Trump’s discussions with the Acting Attorney General—are
readily categorized in light of the nature of the President’s official re-
lationship to the office held by that individual. Other allegations—
such as those involving Trump’s interactions with the Vice President,
state officials, and certain private parties, and his comments to the
general public—present more difficult questions. Pp. 19–30.
        (i) The indictment alleges that as part of their conspiracy to
overturn the legitimate results of the 2020 presidential election,
Trump and his co-conspirators attempted to leverage the Justice De-
partment’s power and authority to convince certain States to replace
their legitimate electors with Trump’s fraudulent slates of electors.
According to the indictment, Trump met with the Acting Attorney
General and other senior Justice Department and White House offi-
cials to discuss investigating purported election fraud and sending a
letter from the Department to those States regarding such fraud. The
indictment further alleges that after the Acting Attorney General re-
sisted Trump’s requests, Trump repeatedly threatened to replace him.
   The Government does not dispute that the indictment’s allegations
regarding the Justice Department involve Trump’s use of official
power. The allegations in fact plainly implicate Trump’s “conclusive
and preclusive” authority. The Executive Branch has “exclusive au-
thority and absolute discretion” to decide which crimes to investigate
and prosecute, including with respect to allegations of election crime.
Nixon, 

. And the President’s “management of the Ex-
ecutive Branch” requires him to have “unrestricted power to remove
the most important of his subordinates”—such as the Attorney Gen-
eral—“in their most important duties.” Fitzgerald, 

.
The indictment’s allegations that the requested investigations were
shams or proposed for an improper purpose do not divest the President
of exclusive authority over the investigative and prosecutorial func-
tions of the Justice Department and its officials. Because the Presi-
dent cannot be prosecuted for conduct within his exclusive constitu-
tional authority, Trump is absolutely immune from prosecution for the
alleged conduct involving his discussions with Justice Department of-
ficials. Pp. 19–21.
        (ii) The indictment next alleges that Trump and his co-conspira-
tors “attempted to enlist the Vice President to use his ceremonial role
at the January 6 certification proceeding to fraudulently alter the elec-
tion results.” App. 187, Indictment ¶10(d). In particular, the indict-
ment alleges several conversations in which Trump pressured the Vice
President to reject States’ legitimate electoral votes or send them back
6                       TRUMP v. UNITED STATES

                                   Syllabus

    to state legislatures for review.
       Whenever the President and Vice President discuss their official re-
    sponsibilities, they engage in official conduct. Presiding over the Jan-
    uary 6 certification proceeding at which Members of Congress count
    the electoral votes is a constitutional and statutory duty of the Vice
    President. Art. II, §1, cl. 3; Amdt. 12; 

. The indictment’s
    allegations that Trump attempted to pressure the Vice President to
    take particular acts in connection with his role at the certification pro-
    ceeding thus involve official conduct, and Trump is at least presump-
    tively immune from prosecution for such conduct.
       The question then becomes whether that presumption of immunity
    is rebutted under the circumstances. It is the Government’s burden to
    rebut the presumption of immunity. The Court therefore remands to
    the District Court to assess in the first instance whether a prosecution
    involving Trump’s alleged attempts to influence the Vice President’s
    oversight of the certification proceeding would pose any dangers of in-
    trusion on the authority and functions of the Executive Branch. Pp.
    21–24.
            (iii) The indictment’s remaining allegations involve Trump’s in-
    teractions with persons outside the Executive Branch: state officials,
    private parties, and the general public. In particular, the indictment
    alleges that Trump and his co-conspirators attempted to convince cer-
    tain state 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. After Trump failed
    to convince those officials to alter their state processes, he and his co-
    conspirators allegedly developed and effectuated a plan to submit
    fraudulent slates of Presidential electors to obstruct the certification
    proceeding. On Trump’s view, the alleged conduct qualifies as official
    because it was undertaken to ensure the integrity and proper admin-
    istration of the federal election. As the Government sees it, however,
    Trump can point to no plausible source of authority enabling the Pres-
    ident to take such actions. Determining whose characterization may
    be correct, and with respect to which conduct, requires a fact-specific
    analysis of the indictment’s extensive and interrelated allegations.
    The Court accordingly remands to the District Court to determine in
    the first instance whether Trump’s conduct in this area qualifies as
    official or unofficial. Pp. 24–28.
            (iv) The indictment also contains various allegations regarding
    Trump’s conduct in connection with the events of January 6 itself. The
    alleged conduct largely consists of Trump’s communications in the
    form of Tweets and a public address. The President possesses “ex-
    traordinary power to speak to his fellow citizens and on their behalf.”
    Trump v. Hawaii, 

. So most of a President’s public
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communications are likely to fall comfortably within the outer perim-
eter of his official responsibilities. There may, however, be contexts in
which the President 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 in-
form the inquiry. Snyder v. Phelps, 

. Whether the
communications alleged in the indictment involve official conduct may
depend on the content and context of each. This necessarily factbound
analysis is best performed initially by the District Court. The Court
therefore remands to the District Court to determine in the first in-
stance whether this alleged conduct is official or unofficial. Pp. 28–30.
      (3) Presidents cannot be indicted based on conduct for which they
are immune from prosecution. 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 im-
mune from prosecution. And the parties and the District Court must
ensure that sufficient allegations support the indictment’s charges
without such conduct. Testimony or private records of the President
or his advisers probing such conduct may not be admitted as evidence
at trial. Pp. 30–32.
   (c) Trump asserts a far broader immunity than the limited one the
Court recognizes, contending that the indictment must be dismissed
because the Impeachment Judgment Clause requires that impeach-
ment and Senate conviction precede a President’s criminal prosecu-
tion. But the text of the Clause does not address whether and on what
conduct a President may be prosecuted if he was never impeached and
convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump
relies concerned the checks available against a sitting President; they
did not endorse or even consider whether the Impeachment Judgment
Clause immunizes a former President from prosecution. Transforming
the political process of impeachment into a necessary step in the en-
forcement of criminal law finds little support in the text of the Consti-
tution or the structure of the Nation’s Government. Pp. 32–34.
   (d) The Government takes a similarly broad view, contending that
the President enjoys no immunity from criminal prosecution for any
action. On its 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. But
questions about whether the President may be held liable for particu-
lar actions, consistent with the separation of powers, must be ad-
dressed at the outset of a proceeding. Even if the President were ulti-
mately not found liable for certain official actions, the possibility of an
extended proceeding alone may render him “unduly cautious in the
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                                  Syllabus

    discharge of his official duties.” Fitzgerald, 

.
    The Constitution does not tolerate such impediments to “the effective
    functioning of government.” 

. Pp. 34–37.
       (e) This case poses a question of lasting significance: When may a
    former President be prosecuted for official acts taken during his Pres-
    idency? In answering that question, unlike the political branches and
    the public at large, the Court cannot afford to fixate exclusively, or
    even primarily, on present exigencies. Enduring separation of powers
    principles guide our decision in this case. The President enjoys no im-
    munity for his unofficial acts, and not everything the President does is
    official. The President is not above the law. But under our system of
    separated powers, the President may not be prosecuted for exercising
    his core constitutional powers, and he is entitled to at least presump-
    tive immunity from prosecution for his official acts. That immunity
    applies equally to all occupants of the Oval Office. Pp. 41–43.

, vacated and remanded.

   ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BAR-
RETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring
opinion. BARRETT, J., filed an opinion concurring in part. SOTOMAYOR,
J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.
JACKSON, J., filed a dissenting opinion.
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                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     United States Reports. Readers are requested to notify the Reporter of
     Decisions, Supreme Court of the United States, Washington, D. C. 20543,
     pio@supremecourt.gov, of any typographical or other formal errors.


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 Au-
gust 1, 2023, a federal grand jury indicted him on four
counts for conduct that occurred during his Presidency fol-
lowing 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 elec-
tion 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
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                      Opinion of the Court

votes for [Trump’s] opponent, Joseph R. Biden, Jr., to elec-
toral votes for [Trump].” App. 185, Indictment ¶10(a). Sec-
ond, Trump and his co-conspirators “organized 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 at-
tempted to use the Justice Department “to conduct sham
election crime investigations and to send a letter to the tar-
geted states that falsely claimed that the Justice Depart-
ment had identified significant concerns that may have im-
pacted the election outcome.” Id., at 186–187, ¶10(c).
Fourth, Trump and his co-conspirators attempted to per-
suade “the Vice President to use his ceremonial role at 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 

, (2) conspiracy to obstruct an
official proceeding in violation of §1512(k), (3) obstruction
of and attempt to obstruct an official proceeding in violation
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                           Opinion of the Court

of §1512(c)(2), §2, and (4) conspiracy against rights in vio-
lation of §241.1
   Trump moved to dismiss the indictment based on Presi-
dential 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 admin-
istration of the federal election”; (2) communicated with
senior Justice Department officials “about investigating
election fraud and about choosing the leadership” of the De-
partment; (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 or-
ganize contingent slates of electors in furtherance of his at-
tempts 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 Im-
munity 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 con-
tended that a President has absolute immunity from crimi-
nal prosecution for actions performed within the outer pe-
rimeter of his official responsibilities, to ensure that he 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

——————
  1 Trump contends that the indictment stretches Section 1512(c)(2) “far

beyond its natural meaning.” Brief for Petitioner 39, n. 4. As we ex-
plained 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.”

, ___ (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.
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                      Opinion of the Court

that “former Presidents do not possess absolute federal
criminal immunity for any acts committed while in office.”

, *15 (DC, Dec. 1, 2023). The District
Court recognized that the President is immune from dam-
ages 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, 

,
749–756 (1982). But it reasoned that “the possibility of vex-
atious post-Presidency litigation is much reduced in the
criminal context” in light of “[t]he robust procedural safe-
guards attendant to federal criminal prosecutions.” 

, *9–*10. The District Court declined to decide
whether the indicted conduct involved official acts. See id.,
at *15.
   The D. C. Circuit affirmed. 

 (2024) (per cu-
riam). Citing Marbury v. Madison, 

 (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 politi-
cally examinable,’ the judiciary has the power to hear cases”
involving ministerial acts that an officer is directed to per-
form by the legislature. 

 (quoting Marbury, 

). 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 Pres-
ident for his official acts because the fact of the prosecution
means that the former President has allegedly acted in de-
fiance of the Congress’s laws.” 91 F. 4th, at 1191. In the
court’s view, the fact that Trump’s actions “allegedly vio-
lated 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.
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                      Opinion of the Court

Circuit declined to analyze the actions described in the in-
dictment to determine whether they involved official acts.
See id., at 1205, n. 14.
  We granted certiorari to consider the following question:
“Whether and if so to what extent does a former President
enjoy presidential immunity from criminal prosecution for
conduct alleged to involve official acts during his tenure in
office.” 

 (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 pro-
ceed. 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 conse-
quences upon the balanced power structure of our Repub-
lic.” Youngstown Sheet & Tube Co. v. Sawyer, 

 (1952) (Jackson, J., concurring).
   The parties before us do not dispute that a former Presi-
dent can be subject to criminal prosecution for unofficial
acts committed while in office. See Tr. of Oral Arg. 28.
They also agree that some of the conduct described in the
indictment includes actions taken by Trump in his unoffi-
cial capacity. See 

 at 28–30, 36–37, 124.
   They disagree, however, about whether a former Presi-
dent can be prosecuted for his official actions. Trump con-
tends that just as a President is absolutely immune from
civil damages liability for acts within the outer perimeter of
his official responsibilities, Fitzgerald, 

, 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
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                      Opinion of the Court

his official capacity as President. See Tr. of Oral Arg. 30–
32. Although the Government agrees that some official ac-
tions are included in the indictment’s allegations, see id., at
125, it maintains that a former President does not enjoy im-
munity from criminal prosecution for any actions, regard-
less of how they are characterized. See Brief for United
States 9.
   We conclude that under our constitutional structure of
separated powers, the nature of Presidential power re-
quires that a former President have some immunity from
criminal prosecution for official acts during his tenure in
office. At least with respect to the President’s exercise of
his core constitutional powers, this immunity must be ab-
solute. As for his remaining official actions, he is also enti-
tled 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 pre-
sumptive immunity is sufficient.
                               A
   Article II of the Constitution provides that “[t]he execu-
tive 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, 

 (2020). They include, for instance, commanding
the Armed Forces of the United States; granting reprieves
and pardons for offenses against the United States; and ap-
pointing public ministers and consuls, the Justices of this
Court, and Officers of the United States. See §2. He also
has important foreign relations responsibilities: making
treaties, appointing ambassadors, recognizing foreign gov-
ernments, meeting foreign leaders, overseeing interna-
tional 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
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                      Opinion of the Court

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, 

. In
the latter case, the President’s authority is sometimes “con-
clusive and preclusive.” 

 (Jackson, J., concur-
ring). When the President exercises such authority, he may
act even when the measures he takes are “incompatible
with the expressed or implied will of Congress.” 

.
The exclusive constitutional authority of the President “dis-
abl[es] the Congress from acting upon the subject.” 

 at
637–638. And the courts have “no power to control [the
President’s] discretion” when he acts pursuant to the pow-
ers invested exclusively in him by the Constitution. Mar-
bury, 

.
   If the President claims authority to act but in fact exer-
cises mere “individual will” and “authority without law,”
the courts may say so. Youngstown, 

 (Jack-
son, J., concurring). In Youngstown, for instance, we held
that President Truman exceeded his constitutional author-
ity when he seized most of the Nation’s steel mills. See 

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, 

, 139–141
8                  TRUMP v. UNITED STATES

                       Opinion of the Court

(1872). But in 1870, Congress enacted a provision that pro-
hibited using the President’s pardon as evidence of restora-
tion of property rights. 

 at 143–144. Chief Justice
Chase held the provision unconstitutional because it “im-
pair[ed] the effect of a pardon, and thus infring[ed] the con-
stitutional power of the Executive.” 

. “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.” 

 at 147–148.
The President’s authority to pardon, in other words, is “con-
clusive 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 be-
half,” for instance, “follows from the text of Article II.” Seila
Law LLC v. Consumer Financial Protection Bureau, 

 (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, 

 (1926); see Youngstown, 

 (Jackson, J., concurring) (citing the Pres-
ident’s “exclusive power of removal in executive agencies”
as an example of “conclusive and preclusive” constitutional
authority); cf. Seila Law, 

 (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, 

 (2015). Congressional
commands contrary to the President’s recognition determi-
nations are thus invalid. 

   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
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                      Opinion of the Court

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 pros-
ecution 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 author-
ization of Congress,” or in a “zone of twilight” where “he and
Congress may have concurrent authority.” 

 (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 de-
cisions 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 “deci-
sions of the Court in this area” have accordingly been “rare”
and “episodic.” Dames & Moore v. Regan, 

(1981). To resolve the matter, therefore, we look primarily
to the Framers’ design of the Presidency within the separa-
tion 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 consti-
tutional scheme,” Fitzgerald, 

, as “the only
10                TRUMP v. UNITED STATES

                      Opinion of the Court

person who alone composes a branch of government,”
Trump v. Mazars USA, LLP, 

, 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 ulti-
mate authority that, in respect to the other branches, the
Constitution divides among many.” Clinton v. Jones, 

 (1997) (Breyer, J., concurring in judgment).
They “deemed an energetic executive essential to ‘the pro-
tection of the community against foreign attacks,’ ‘the
steady administration of the laws,’ ‘the protection of prop-
erty,’ 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 execu-
tion of the government.” 

 at 471–472.
   The Framers accordingly vested the President with “su-
pervisory and policy responsibilities of utmost discretion
and sensitivity.” Fitzgerald, 

. He must
make “the most sensitive and far-reaching decisions en-
trusted to any official under our constitutional system.” 

. There accordingly “exists the greatest public inter-
est” in providing the President with “ ‘the maximum ability
to deal fearlessly and impartially with’ the duties of his of-
fice.” 

 (quoting Ferri v. Ackerman, 

(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, 

.
   In Nixon v. Fitzgerald, for instance, we recognized that
as “a functionally mandated incident of [his] unique office,”
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                      Opinion of the Court

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, al-
leging 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 de-
cisionmaking process caused by needless worry as to the
possibility of damages actions stemming from any particu-
lar official decision.” Clinton, 

.
“[T]he singular importance of the President’s duties” impli-
cating “matters likely to ‘arouse the most intense feelings,’ ”
coupled with “the sheer prominence of [his] office,” height-
ens the prospect of private damages suits that would
threaten such diversion. Fitzgerald, 457 U. S., at 751–753
(quoting Pierson v. Ray, 

 (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, 

.
   By contrast, when prosecutors have sought evidence from
the President, we have consistently rejected Presidential
claims of absolute immunity. For instance, during the trea-
son 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. Mar-
shall reasoned that “the law does not discriminate between
the president and a private citizen.” United States v. Burr,

 (No. 14,692d) (CC Va. 1807) (Burr I). Be-
cause a President does not “stand exempt from the general
provisions of the constitution,” including the Sixth Amend-
ment’s guarantee that those accused shall have compulsory
process for obtaining witnesses for their defense, a sub-
poena could issue. 

 at 33–34.
   Marshall acknowledged, however, the existence of a
12                TRUMP v. UNITED STATES

                      Opinion of the Court

“privilege” to withhold certain “official paper[s]” that “ought
not on light ground to be forced into public view.” United
States v. Burr, 

 (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 re-
jected his claim of “absolute privilege,” given the “constitu-
tional duty of the Judicial Branch to do justice in criminal
prosecutions.” United States v. Nixon, 

 (1974). But we simultaneously recognized “the public
interest in candid, objective, and even blunt or harsh opin-
ions in Presidential decisionmaking,” as well as the need to
protect “communications between high Government offi-
cials and those who advise and assist them in the perfor-
mance of their manifold duties.” 

. 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. 

. That privilege, we ex-
plained, “relates to the effective discharge of a President’s
powers.” 

. We thus deemed it “fundamental to
the operation of Government and inextricably rooted in the
separation of powers under the Constitution.” 

.
                            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
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                      Opinion of the Court

Nixon. The danger is akin to, indeed greater than, what led
us to recognize absolute Presidential immunity from civil
damages liability—that the President would be chilled from
taking the “bold and unhesitating action” required of an in-
dependent Executive. Fitzgerald, 

. Alt-
hough 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. Po-
tential criminal liability, and the peculiar public oppro-
brium 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 de-
cisions under “a pall of potential prosecution,” McDonnell v.
United States, 

 (2016), raises “unique
risks to the effective functioning of government,” Fitzger-
ald, 

. 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 Execu-
tive Branch” may be significantly undermined. Vance, 

. 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 inter-
ests at stake.” Vance, 

. Federal criminal
laws seek to redress “a wrong to the public” as a whole, not
just “a wrong to the individual.” Huntington v. Attrill, 

 (1892). There is therefore a compelling “pub-
lic interest in fair and effective law enforcement.” Vance,

. The President, charged with enforcing
14               TRUMP v. UNITED STATES

                     Opinion of the Court

federal criminal laws, is not above them.
   Chief Justice Marshall’s decisions in Burr and our deci-
sion in Nixon recognized the distinct interests present in
criminal prosecutions. Although Burr acknowledged that
the President’s official papers may be privileged and pub-
licly unavailable, it did not grant him an absolute exemp-
tion from responding to subpoenas. See Burr II, 25 F. Cas.,
at 192; Burr I, 25 F. Cas., at 33–34. Nixon likewise recog-
nized a strong protection for the President’s confidential
communications—a “presumptive privilege”—but it did not
entirely exempt him from providing evidence in criminal
proceedings. 

.
   Taking into account these competing considerations, we
conclude that the separation of powers principles explicated
in our precedent necessitate at least a presumptive immun-
ity 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, 

, it is cer-
tainly necessary when the prosecutor seeks to charge, try,
and imprison the President himself for his official actions.
At a minimum, the President must therefore be 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, 

.
   But as we explain below, the current stage of the proceed-
ings 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
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                          Opinion of the Court

decide it. “[O]ne case” in more than “two centuries does not
afford enough experience” to definitively and comprehen-
sively 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 serv-
ing as President. 

. 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. 

, and n. 19. The “ ‘justifying purposes’ ” of the immunity
we recognized in Fitzgerald, and the one we recognize to-
day, are not that the President must be immune because he
is the President; rather, they are to ensure that the Presi-
dent can undertake his constitutionally designated func-
tions effectively, free from undue pressures or distortions.

, and n. 19 (quoting Fitzgerald, 

). “[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, 

 (1988). The separation of powers does not bar a prose-
cution predicated on the President’s unofficial acts.2

——————
  2 Our decision in Clinton permitted claims alleging unofficial acts to

proceed against the sitting President. See 

. In the crim-
inal 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 Ame-
nability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000);
emphasis deleted); see Tr. for Oral Arg. 78.
16                 TRUMP v. UNITED STATES

                       Opinion of the Court

                                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 cat-
egorized 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 underly-
ing 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 an-
swer the consequential immunity question. See 601 U. S.,
at ___. Given all these circumstances, it is particularly in-
cumbent 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, 

 (2012) (internal
quotation marks omitted).
   Critical threshold issues in this case are how to differen-
tiate between a President’s official and unofficial actions,
and how to do so with respect to the indictment’s extensive
and detailed allegations covering a broad range of conduct.
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                      Opinion of the Court

We offer guidance on those issues below. Certain allega-
tions—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 Pres-
ident, state officials, and certain private parties, and his
comments to the general public—present more difficult
questions. Although we identify several considerations per-
tinent to classifying those allegations and determining
whether they are subject to immunity, that analysis ulti-
mately 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, 

. Determining whether an ac-
tion is covered by immunity thus begins with assessing the
President’s authority to take that action.
   But the breadth of the President’s “discretionary respon-
sibilities” 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.” 

. And some Presidential conduct—for
example, speaking to and on behalf of the American people,
see Trump v. Hawaii, 

 (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 pal-
pably beyond [his] authority.” Blassingame v. Trump, 87
18                TRUMP v. UNITED STATES

                      Opinion of the Court

F. 4th 1, 13 (CADC 2023) (internal quotation marks omit-
ted); 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 of-
ficial conduct to judicial examination on the mere allegation
of improper purpose, thereby intruding on the Article II in-
terests 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, 

 (quot-
ing Spalding v. Vilas, 

 (1896)). We thus
rejected such inquiries in Fitzgerald. The plaintiff there
contended that he was dismissed from the Air Force for re-
taliatory reasons. See 457 U. S., at 733–741, 756. The Air
Force responded that the reorganization that led to Fitzger-
ald’s dismissal was undertaken to promote efficiency. 

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 discov-
ery.” Harlow v. Fitzgerald, 

, 817–818 (1982).
   Nor may courts deem an action unofficial merely because
it allegedly violates a generally applicable law. For in-
stance, when Fitzgerald contended that his dismissal vio-
lated 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
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                      Opinion of the Court

that an action was unlawful,” depriving immunity of its in-
tended effect. Ibid.
                            B
  With these principles in mind, we turn to the conduct al-
leged 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 cer-
tified 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 legiti-
mate electors with Trump’s fraudulent slates of electors.
See id., at 215–220, ¶¶70–85. According to the indictment,
Trump met with the Acting Attorney General and other
senior Justice Department and White House officials to dis-
cuss 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 indict-
ment 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, 

, 706
20                TRUMP v. UNITED STATES

                      Opinion of the Court

(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, 

; see United States v. Texas, 

, 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, 

 (2021))). The President may discuss potential investi-
gations and prosecutions with his Attorney General and
other Justice Department officials to carry out his constitu-
tional duty to “take Care that the Laws be faithfully exe-
cuted.” Art. II, §3. And the Attorney General, as head 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,

 (1985) (quoting Art. II, §1, cl. 8).
   Investigative and prosecutorial decisionmaking is “the
special province of the Executive Branch,” Heckler v.
Chaney, 

 (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 “conclu-
sive and preclusive” Presidential authority. As we have ex-
plained, 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,

; 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 (in-
ternal quotation marks and alteration omitted).
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                      Opinion of the Court

  The indictment’s allegations that the requested investi-
gations 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 De-
partment 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 al-
leged conduct involving his discussions with Justice De-
partment 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 proceed-
ing to fraudulently alter the election results.” Id., at 187,
¶10(d). In particular, the indictment alleges several con-
versations in which Trump pressured the Vice President 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 alt-
hough it “has not yet had to come to grips with how [it]
would analyze” Trump’s interactions with the Vice Presi-
dent, there is “support” to characterize that conduct as offi-
cial. Tr. of Oral Arg. 128. Indeed, our constitutional system
anticipates that the President and Vice President will re-
main 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,

; 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
22                TRUMP v. UNITED STATES

                      Opinion of the Court

of the executive departments,’ to declare the President ‘un-
able to discharge the powers and duties of his office.’ ” Frey-
tag v. Commissioner, 

, 886–887 (1991) (quot-
ing Amdt. 25, §4). And Article I of course names the Vice
President as President of the Senate and gives him a tie-
breaking vote. §3, cl. 4. It is thus important for the Presi-
dent to discuss official matters with the Vice President to
ensure continuity within the Executive Branch and to ad-
vance the President’s agenda in Congress and beyond.
   The Vice President may in practice also serve as one of
the President’s closest advisers. The Office of Legal Coun-
sel 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” sit-
uation that occurred “[d]uring the John Adams administra-
tion,” when “we had a President and Vice-President of dif-
ferent parties.” Ray v. Blair, 

(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 Ex-
penses 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 Wil-
son’s Vice President, for instance, “presided over a few cab-
inet 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,
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                      Opinion of the Court

328 (2010). During President Franklin Roosevelt’s admin-
istration, 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 Del-
egation 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. Pre-
siding over the January 6 certification proceeding at which
Members of Congress count the electoral votes is a consti-
tutional and statutory duty of the Vice President. Art. II,
§1, cl. 3; Amdt. 12; 

. The indictment’s allega-
tions that Trump attempted to pressure the Vice President
to take particular acts in connection with his role at the cer-
tification 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 Execu-
tive Branch, the Vice President’s Article I responsibility of
“presiding over the Senate” is “not an ‘executive branch’
function.” Memorandum from L. Silberman, Deputy Atty.
Gen., to R. Burress, Office of the President, Re: Conflict of
24                TRUMP v. UNITED STATES

                      Opinion of the Court

Interest Problems Arising Out of the President’s Nomina-
tion 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., 

, and the President plays no direct
constitutional or statutory role in that process. So the Gov-
ernment 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 Dis-
trict 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
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                        Opinion of the Court

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 pub-
lic. 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 legisla-
tors and election officials in Arizona, Georgia, Michigan,
Pennsylvania, and Wisconsin regarding those States’ certi-
fication of electors. See App. 192–207, Indictment ¶¶13–
52.
   Specifically, the indictment alleges that Trump and 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 in-
dividuals to make and send to the Vice President and Con-
gress 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 legit-
imate electors met in their respective jurisdictions to cast
their votes, the indictment alleges that Trump’s “fraudu-
lent electors convened sham proceedings in the seven tar-
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                      Opinion of the Court

geted states to cast fraudulent electoral ballots” in his fa-
vor. 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 proceed-
ing” at the direction of Trump and a co-conspirator—entail
“private” conduct. Tr. of Oral Arg. 29–30. He later as-
serted, however, that asking “the chairwoman of the Repub-
lican National Committee . . . to gather electors” qualifies
as official conduct because “the organization of alternate
slates of electors is based on, for example, the historical ex-
ample of President Grant as something that was done pur-
suant to and ancillary and preparatory to the exercise of ” a
core Presidential power. Id., at 37; see also id., at 25 (dis-
cussing 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 Gov-
ernment disagreed, contending that this alleged conduct
does not qualify as “official conduct” but as “campaign con-
duct.” 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 elec-
tion laws passed by Congress. Art. II, §3. And the Presi-
dent’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
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                      Opinion of the Court

is running for re-election. Cf. Hawaii, 

.
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 en-
compass 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 ena-
bling 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 Sen-
ate for counting at the certification proceeding, thus inter-
fering with the votes of States’ properly appointed electors.
Indeed, the Constitution commits to the States the power
to “appoint” Presidential electors “in such Manner as the
Legislature thereof may direct.” Art. II, §1, cl. 2; see Bur-
roughs v. United States, 

 (1934). “Article
II, §1’s appointments power,” we have said, “gives the
States far-reaching authority over presidential electors, ab-
sent some other constitutional constraint.” Chiafalo v.
Washington, 

, 588–589 (2020). By contrast,
the Federal Government’s role in appointing electors is lim-
ited. 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 con-
trol 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
28                TRUMP v. UNITED STATES

                      Opinion of the Court

the indictment’s extensive and interrelated allegations.
See App. 192–215, Indictment ¶¶13–69. Unlike Trump’s
alleged interactions with the Justice Department, this al-
leged 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 per-
tinent briefing by the parties—thus become more promi-
nent. We accordingly remand to the District Court to de-
termine in the first instance—with the benefit of briefing
we lack—whether Trump’s conduct in this area qualifies as
official or unofficial.
                               4
   Finally, the indictment contains various allegations re-
garding 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 support-
ers 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 “di-
rected the crowd in front of him to go to the Capitol” to pres-
sure the Vice President to do so at the certification proceed-
ing. Id., at 228–230, ¶104. When it became public that the
Vice President would not use his role at the certification
proceeding to determine which electoral votes should be
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                      Opinion of the Court

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 commu-
nications 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, 

; cf. Lindke v. Freed, 

 (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 activ-
ities that touch on nearly every aspect of American life. In-
deed, a long-recognized aspect of Presidential power is us-
ing the office’s “bully pulpit” to persuade Americans,
including by speaking forcefully or critically, in ways 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 re-
sponsibilities.
   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 in-
form the inquiry. Snyder v. Phelps, 

(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 chal-
lenging.
   The indictment reflects these challenges. It includes only
30               TRUMP v. UNITED STATES

                     Opinion of the Court

select Tweets and brief snippets of the speech Trump deliv-
ered 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 con-
tent and context of each. Knowing, for instance, what else
was said contemporaneous to the excerpted communica-
tions, or who was involved in transmitting the electronic
communications and in organizing the rally, could be rele-
vant to the classification of each communication. This nec-
essarily 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 al-
leged 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,

. Presidents therefore cannot be indicted
based on conduct for which they are immune from prosecu-
tion. As we have explained, the indictment here alleges at
least some such conduct. See Part III–B–1, supra. On re-
mand, the District Court must carefully analyze the indict-
ment’s remaining allegations to determine whether they 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 enti-
tled 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
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                      Opinion of the Court

claims.” Id., at 46, 48. That proposal threatens to eviscer-
ate the immunity we have recognized. It would permit a
prosecutor to do indirectly what he cannot do directly—in-
vite the jury to examine acts for which a President is im-
mune from prosecution to nonetheless prove his liability on
any charge. But “[t]he Constitution deals with substance,
not shadows.” Cummings v. Missouri, 

(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. Fitzger-
ald, 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 unoffi-
cial conduct, would thereby heighten the prospect that the
President’s official decisionmaking will be distorted. See
Clinton, 

.
   The Government asserts that these weighty concerns can
be managed by the District Court through the use of “evi-
dentiary 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, 

). Allowing prosecutors to ask or
suggest that the jury probe official acts for which the Pres-
ident 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 con-
stitutional concerns implicated in the prosecution of a for-
mer President. Cf. Nixon, 

. Although such
32                    TRUMP v. UNITED STATES

                           Opinion of the Court

tools may suffice to protect the constitutional rights of indi-
vidual 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 Peti-
tioner 16.
   The text of the Clause provides little support for such an
absolute immunity. It states that an impeachment judg-
ment “shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States.” Art. I, §3, cl. 7. 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).
——————
   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 Pres-
ident 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 

(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, 

 (1896)); see supra, at
18. And such second-guessing would “threaten the independence or ef-
fectiveness of the Executive.” Trump v. Vance, 

 (2020).
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                      Opinion of the Court

The Clause both limits the consequences of an impeach-
ment 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 im-
peached 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 Sen-
ate conviction, “it might be matter of extreme doubt,
whether . . . a second trial for the same offence could be had,
either after an acquittal, or a conviction in the court of im-
peachments.” 2 J. Story, Commentaries on the Constitu-
tion of the United States §780, p. 251 (1833). James Wilson,
who served on the Committee that drafted the Clause and
later as a Justice of this Court, similarly concluded that ac-
quittal 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 disa-
gree. 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 af-
terwards be liable to prosecution and punishment.” The
Federalist No. 69, at 463; see also id., No. 77, at 520 (ex-
plaining that the President is “at all times liable to im-
peachment, trial, dismission from office . . . and to the for-
feiture of life and estate by subsequent prosecution”).
Hamilton did not endorse or even consider whether the Im-
peachment Judgment Clause immunizes a former Presi-
dent from prosecution.
   The implication of Trump’s theory is that a President who
evades impeachment for one reason or another during his
34                TRUMP v. UNITED STATES

                      Opinion of the Court

term in office can never be held accountable for his criminal
acts in the ordinary course of law. So if a President man-
ages to conceal certain crimes throughout his Presidency,
or if Congress is unable to muster the political will to im-
peach the President for his crimes, then they must 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 Con-
gress may not criminalize Presidential conduct within the
President’s “conclusive and preclusive” constitutional au-
thority. 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 Presiden-
tial conduct if subjecting that conduct to generally applica-
ble laws would “raise serious constitutional questions re-
garding the President’s authority” or cause a “possible
conflict with the President’s constitutional prerogatives.”
Application of 

 to Presidential Appoint-
ments of Federal Judges, 19 Op. OLC 350, 351–352 (1995);
see Brief for United States 26–29; Tr. of Oral Arg. 78. In-
deed, the Executive Branch has long held that view. 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 de-
grees of consanguinity to the judges of such courts would, if
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                       Opinion of the Court

applied to the President, infringe his power to appoint fed-
eral judges, thereby raising a serious constitutional ques-
tion. 19 Op. OLC, at 350 (quoting 

); see id.,
at 350–352. So it viewed such a statute as not applying to
the President. Likewise, it has narrowly construed a crim-
inal prohibition on grassroots lobbying to avoid the consti-
tutional issues that would otherwise arise, reasoning that
the statute should not “be construed to prohibit the Presi-
dent or executive branch agencies from engaging in a gen-
eral open dialogue with the public on the Administration’s
programs and policies.” Constraints Imposed by 

 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 in-
dictment 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 offi-
cial acts. See Brief for United States 9. On the Govern-
ment’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 un-
til after trial. See Tr. of Oral Arg. 69, 79–80, 154–158. If
the President is instead immune from prosecution, a dis-
trict 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
36                TRUMP v. UNITED STATES

                      Opinion of the Court

emphasis omitted). First, it points to the Justice Depart-
ment’s “longstanding commitment to the impartial enforce-
ment of the law,” id., at 21, as well as the criminal 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 statu-
tory construction and as-applied constitutional challenges”
adequately address the separation of powers concerns in-
volved 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 par-
ticular prosecution, such as the public-authority defense or
the advice of the Attorney General. Id., at 29–30; see Nar-
done v. United States, 

 (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 prohibi-
tions cannot apply to certain Presidential conduct to begin
with. As we have explained, when the President acts pur-
suant to his exclusive constitutional powers, Congress can-
not—as a structural matter—regulate such actions, 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 lia-
ble 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 pro-
ceeding alone may render him “unduly cautious in the dis-
charge of his official duties.” Fitzgerald, 457 U. S., at 752,
n. 32. Vulnerability “ ‘to the burden of a trial and to the
inevitable danger of its outcome, would dampen the ardor
of all but the most resolute.’ ” Id., at 752–753, n. 32 (quoting
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                      Opinion of the Court

Gregoire v. Biddle, 

 (CA2 1949) (Hand,
L., C. J.)). The Constitution does not tolerate such impedi-
ments to “the effective functioning of government.” Fitzger-
ald, 457 U. S., at 751.
   As for the Government’s assurances that prosecutors and
grand juries will not permit political or baseless prosecu-
tions 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 Govern-
ment’s promises of good faith. See United States v. Stevens,

 (2010) (“We would not uphold an uncon-
stitutional statute merely because the Government prom-
ised to use it responsibly.”). Nor do we do so today.
                               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 dis-
cussions 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 remain-
ing 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 unani-
mously a similar argument in the analogous executive priv-
ilege context). “[A] specific textual basis has not been con-
sidered a prerequisite to the recognition of immunity.”
Fitzgerald, 457 U. S., at 750, n. 31. Nor is that premise cor-
rect. True, there is no “Presidential immunity clause” in
38                TRUMP v. UNITED STATES

                      Opinion of the Court

the Constitution. But there is no “ ‘separation of powers
clause’ ” either. Seila Law, 

. Yet that doc-
trine is undoubtedly carved into the Constitution’s text by
its three articles separating powers and vesting the Execu-
tive power solely in the President. See 

 And the
Court’s prior decisions, such as Nixon and Fitzgerald, have
long recognized that doctrine as mandating certain Presi-
dential privileges and immunities, even though the Consti-
tution contains no explicit “provision for immunity.” Post,
at 4; see Part II–B–1, supra. Neither the dissents nor the
Government disavow any of those prior decisions. See Tr.
of Oral Arg. 76–77.
   The principal dissent then cites the Impeachment Judg-
ment Clause, arguing that it “clearly contemplates that a
former President may be subject to criminal prosecution.”
Post, at 6. But that Clause does not indicate whether a for-
mer President may, consistent with the separation of pow-
ers, be prosecuted for his official conduct in particular. See
supra, at 32–33. And the assortment of historical sources
the principal dissent cites are unhelpful for the same rea-
son. See post, at 6–8. As the Court has previously noted,
relevant historical evidence on the question of 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, 

 (Jackson, J., concurring)
(noting “the poverty of really useful and unambiguous au-
thority 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.” Fitz-
gerald, 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
                  Cite as: 

 (2024)            39

                      Opinion of the Court

United States §780, pp. 250–251 (1833)). And none of them
indicate whether he may be prosecuted for his official con-
duct. See, e.g., post, at 6, 7, n. 2 (citing The Federalist No.
69; 4 Debates on the Constitution, at 109). The principal
dissent’s most compelling piece of evidence consists of ex-
cerpted statements of Charles Pinckney from an 1800 Sen-
ate debate. See post, at 7. But those statements reflect only
the now-discredited argument that any immunity not ex-
pressly 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 relia-
ble authority on the separation of powers: He went on to
state on the same day that “it was wrong to give the nomi-
nation of Judges to the President”—an opinion expressly re-
jected by the Framers. Id., at 385. Given the Framers’ de-
sire for an energetic and vigorous President, the principal
dissent’s view that the Constitution they designed allows
all his actions to be subject to prosecution—even the exer-
cise of powers it grants exclusively to him—defies credulity.
   Unable to muster any meaningful textual or historical
support, the principal dissent suggests that there is an “es-
tablished understanding” that “former Presidents are an-
swerable to the criminal law for their official acts.” Post, 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 Presi-
dent’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 ren-
dered the President “above the law.” See, e.g., post, at 1, 3,
11, 12, 21, 30 (opinion of SOTOMAYOR, J.); post, at 9, 10, 11,
12, 13, 19 (opinion of JACKSON, J.). As before, that “rhetor-
ically chilling” contention is “wholly unjustified.” Fitzger-
40                TRUMP v. UNITED STATES

                      Opinion of the Court

ald, 457 U. S., at 758, n. 41. Like everyone else, the Presi-
dent is subject to prosecution in his unofficial capacity. But
unlike anyone else, the President is a branch of govern-
ment, 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 ex-
treme 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 dis-
sents overlook the more likely prospect of an Executive
Branch that cannibalizes itself, with each successive Presi-
dent 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, ob-
structing or defeating the lawful function of any depart-
ment of Government.’ ” United States v. Johnson, 

 (1966) (quoting Haas v. Henkel, 

(1910)). Virtually every President is criticized for insuffi-
ciently 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 pre-
vious President violated that broad statute. Without im-
munity, 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
                  Cite as: 

 (2024)            41

                      Opinion of the Court

avoid. Ignoring those risks, the dissents are instead con-
tent 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 unprec-
edented 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, mean-
while, 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 ex-
haustively define every application of Presidential immun-
ity. See post, at 13–14. Our dissenting colleagues exude an
impressive infallibility. While their confidence may be in-
spiring, the Court adheres to time-tested practices in-
stead—deciding what is required to dispose of this case and
remanding after “revers[ing] on a threshold question,” Zi-
votofsky, 

, to obtain “guidance from the lit-
igants [and] the court below,” Vidal v. Elster, 

 (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 af-
ford to fixate exclusively, or even primarily, on present exi-
gencies. In a case like this one, focusing on “transient re-
sults” may have profound consequences for the separation
42                TRUMP v. UNITED STATES

                      Opinion of the Court

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, Alexan-
dria Gazette, July 5, 1819, in John Marshall’s Defense of
McCulloch v. Maryland 190–191 (G. Gunther ed. 1969).
   Our first President had such a perspective. In his Fare-
well Address, George Washington reminded the Nation
that “a Government of as much vigour as is consistent with
the perfect security of Liberty is indispensable.” 35 Writ-
ings of George 

 (J. Fitzpatrick ed. 1940). A
government “too feeble to withstand the enterprises of fac-
tion,” he warned, could lead to the “frightful despotism” of
“alternate domination of one faction over another, sharp-
ened by the spirit of revenge.” 

 at 226–227. And the
way to avoid that cycle, he explained, was to ensure that
government powers remained “properly distributed and ad-
justed.” Id., at 226.
   It is these enduring principles that guide our decision in
this case. The President enjoys no immunity for his unoffi-
cial acts, and not everything the President does is official.
The President is not above the law. But Congress may not
criminalize the President’s conduct in carrying out the re-
sponsibilities of the Executive Branch under the Constitu-
tion. And the system of separated powers designed by 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 enti-
tled, at a minimum, to a presumptive immunity from pros-
ecution for all his official acts. That immunity applies
equally to all occupants of the Oval Office, regardless of pol-
itics, policy, or party.
   The judgment of the Court of Appeals for the D. C. Circuit
is vacated, and the case is remanded for further proceedings
                 Cite as: 

 (2024)                 43

                     Opinion of the Court

consistent with this opinion.
                                                  It is so ordered.
                   Cite as: 

 (2024)               1

                      THOMAS, J., concurring

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 offi-
cial 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 es-
sential to . . . the security of liberty,” and our “system of sep-
arated 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 en-
visions. “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, 

,
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 pri-
vate citizen as Special Counsel to prosecute a former Presi-
dent 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 re-
quiring that Congress create federal offices “by Law,” the
Constitution imposes an important check against the Pres-
ident—he cannot create offices at his pleasure. If there is
2                TRUMP v. UNITED STATES

                    THOMAS, J., concurring

no law establishing the office that the Special Counsel oc-
cupies, then he cannot proceed with this prosecution. A pri-
vate citizen cannot criminally prosecute anyone, let alone 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 con-
stitute crimes. If this unprecedented prosecution is to pro-
ceed, 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 pro-
vides:
    “[The President] shall nominate, and by and with the
    Advice and Consent of the Senate, shall appoint Am-
    bassadors, other public Ministers and Consuls, Judges
    of the supreme Court, and all other Officers of the
    United States, whose Appointments are not herein oth-
    erwise provided for, and which shall be established by
    Law: but the Congress may by Law vest the Appoint-
    ment 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 ac-
                      Cite as: 

 (2024)                        3

                          THOMAS, J., concurring

tors “to appoint inferior officers without the advice and con-
sent of the Senate.” NLRB v. SW General, Inc., 

 (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 un-
derlying office be “established by Law.”1 The Constitution
itself creates some offices, most obviously that of the Presi-
dent 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 pro-
vided for,” it clearly requires that those offices “shall be es-
tablished by Law.” §2, cl. 2. And, “established by law” re-
fers to an office that Congress creates “by statute.” Lucia
v. SEC, 

 (2018) (THOMAS, J., concurring);
see also United States v. Maurice, 

(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 mon-
archy. The King could wield significant power by both cre-
ating and filling offices as he saw fit. He was “emphatically
and truly styled the fountain of honor. He not only ap-
point[ed] to all offices, but [could] create offices.” The Fed-
eralist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W.
Blackstone, Commentaries on the Laws of England 271 (T.
——————
   1 Although a Government official may also be a “nonofficer employe[e],”

I set aside that category because it is difficult to see how an official exer-
cising the Department of Justice’s duties to enforce the criminal law by
leading a prosecution could be anything but an officer. Lucia v. SEC,

 (2018) (THOMAS, J., concurring); see SW General,

 (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.
4                 TRUMP v. UNITED STATES

                     THOMAS, J., concurring

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 of-
fices and then fill them with his supporters. J. Mascott,
Who Are “Officers of the United States”? 

, 492 (2018) (Mascott); see also G. Wood, The Creation
of the American Republic 1776–1787, p. 143 (1969) (describ-
ing “the power of appointment to offices” as “the most insid-
ious and powerful weapon of eighteenth-century despot-
ism”); T. Paine, Common Sense (1776), reprinted in 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 mul-
titude 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 Con-
stitution 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 ap-
proval), 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 creat-
ing 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. (de-
scribing the power to “designat[e] the man to fill the office”
as “of an Executive nature”). The Constitution thus “giv[es]
                  Cite as: 

 (2024)             5

                     THOMAS, J., concurring

Congress broad authority to establish and organize the Ex-
ecutive Branch.” Seila Law LLC v. Consumer Financial
Protection Bureau, 

 (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 uni-
laterally 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 com-
ports with this original understanding that Congress must
create offices by law. The First Congress, for instance, rou-
tinely and explicitly created offices by statute. See, e.g.,
§35, 1 Stat. 92–93 (creating the offices of Attorney 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 Secre-
tary). Still today, Congress creates the offices that the Ex-
ecutive Branch may fill. For example, Congress has created
several offices within the Department of Justice, including
the offices of the Attorney General, Deputy Attorney Gen-
eral, Associate Attorney General, Solicitor General, and As-
sistant Attorneys General. See 28 U. S. C. §§503–506. 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.” 

(a) (Department of Agriculture); see also, e.g.,

 (Department of Education); 

 (Department of Health and Human Services).
   In the past, Congress has at times expressly created of-
fices similar to the position now occupied by the Special
Counsel. Congress created an office for a “special counsel”
6                    TRUMP v. UNITED STATES

                         THOMAS, J., concurring

to investigate the Teapot Dome Scandal and pursue prose-
cutions. See ch. 16, 

. And, a statute provided for
“the appointment of an independent counsel” that we ad-
dressed in Morrison v. Olson. See 

. 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 tyr-
anny, the Founders required that a federal office be “estab-
lished by Law.” As James Madison cautioned, “[i]f there is
any point in which the separation of the Legislative and Ex-
ecutive powers ought to be maintained with greater cau-
tion, it is that which relates to officers and offices.” 1 An-
nals of Cong. 581. If Congress has not reached a 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 au-
thority 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 

,
510, 515, 533).
——————
  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) (de-
scribing past uses of special prosecutors). But, this Court had no occa-
sion to review the constitutionality of those prosecutors’ authority.
  3 In fact, Congress gave the Attorney General the power to appoint “ad-

ditional officers . . . as he deems necessary”—but, only for the Bureau of
Prisons. 

.
                     Cite as: 

 (2024)                    7

                        THOMAS, J., concurring

   None of the statutes cited by the Attorney General ap-
pears to create an office for the Special Counsel, and espe-
cially not with the clarity typical of past statutes used for
that purpose. See, e.g., 

 (“[T]he President is fur-
ther 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 sug-
gesting 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 Con-
stitution. See Lucia, 585 U. S., at 254–255 (opinion of
THOMAS, J.) (considering the meaning of “officer”). Regard-
less, 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 Inves-
tigation (§§531–540d), not the separate chapters concern-
ing U. S. Attorneys (§§541–550) or the now-lapsed Inde-
pendent Counsel (§§591–599).4
   To be sure, the Court gave passing reference to the cited
statutes as supporting the appointment of the Special Pros-
ecutor in United States v. Nixon, 

 (1974),
but it provided no analysis of those provisions’ text. Per-
haps there is an answer for why these statutes create an
office for the Special Counsel. But, before this consequen-


——————
  4 Regulations remain on the books that contemplate an “outside” Spe-

cial Counsel, 

 (2023), but I doubt a regulation can create a
federal office without underlying statutory authority to do so.
8                 TRUMP v. UNITED STATES

                     THOMAS, J., concurring

tial prosecution proceeds, we should at least provide a ful-
some explanation of why that is so.
   Even if the Special Counsel has a valid office, 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 At-
torney 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 pur-
ports to wield the Executive Branch’s power to prosecute,
the consequences are weighty. Our Constitution’s separa-
tion of powers, including its separation of the powers to cre-
ate and fill offices, is “the absolutely central guarantee of a
just Government” and the liberty that it secures for us all.
Morrison, 

 (Scalia, J., dissenting). There is
no prosecution that can justify imperiling it.
                            *    *    *
  In this case, there has been much discussion about ensur-
ing that a President “is not above the law.” But, as the
Court explains, the President’s immunity from prosecution
for his official acts is the law. The Constitution provides for
                  Cite as: 

 (2024)              9

                     THOMAS, J., concurring

“an energetic executive,” because such an Executive is “es-
sential 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 Attor-
ney General has violated that structure by creating an of-
fice of the Special Counsel that has not been established by
law. Those questions must be answered before this prose-
cution can proceed. We must respect the Constitution’s sep-
aration of powers in all its forms, else we risk rendering its
protection of liberty a parchment guarantee.
                  Cite as: 

 (2024)             1

                 BARRETT, J., concurring in part

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 pros-
ecutions as an “immunity.” As I see it, that term is short-
hand 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 interlocu-
tory 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 Spe-
cial Counsel all accept that some prosecutions of a Presi-
dent’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, Ex-
ecutive Branch independence on matters that Article II as-
signs to the President’s discretion.
   Properly conceived, the President’s constitutional protec-
tion from prosecution is narrow. The Court leaves open the
2                    TRUMP v. UNITED STATES

                     BARRETT, J., concurring in part

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 dis-
cretion, Youngstown Sheet & Tube Co. v. Sawyer, 

 (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 pred-
icated 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 mur-
der in a foreign country and does not expressly exclude the
President’s decision to, say, order a hostage rescue mission
abroad. 

(a). The underlying murder stat-
ute, however, covers only “unlawful” killings. §1111. The
Office of Legal Counsel has interpreted that phrase to re-
flect 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.
——————
   1 Consistent with our separation of powers precedent, I agree with the

Court that the supervision and removal of appointed, high ranking Jus-
tice Department officials falls within the President’s core executive
power. See Seila Law LLC v. Consumer Financial Protection Bureau,

, 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. 

                      Cite as: 

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                     BARRETT, J., concurring in part

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 thresh-
old question of statutory interpretation is a nontrivial step.
   If the statute covers the alleged official conduct, the pros-
ecution may proceed only if applying it in the circumstances
poses no “ ‘dange[r] of intrusion on the authority and func-
tions of the Executive Branch.’ ” Ante, at 14 (quoting Nixon
v. Fitzgerald, 

 (1982)). On remand, the
lower courts will have to apply that standard to various al-
legations 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 legis-
latures or their leadership, so it is hard to see how prose-



——————
  2 This analysis is unnecessary for allegations involving the President’s

private conduct because the Constitution offers no protection from pros-
ecution 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, 

,
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.
4                     TRUMP v. UNITED STATES

                     BARRETT, J., concurring in part

cuting him for crimes committed when dealing with the Ar-
izona 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 par-
ticular 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 con-
sidering the validity of statutes in situations raising a con-
stitutional question. See, e.g., Seila Law LLC v. Consumer
Financial Protection Bureau, 

(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 fed-
eral court normally must wait until after trial to seek re-
view of the trial court’s refusal to dismiss charges. See
United States v. MacDonald, 

, 853–854 (1978);
see also 

. But where trial itself threatens
certain constitutional interests, we have treated the trial
court’s resolution of the issue as a “final decision” for pur-
poses of appellate jurisdiction. MacDonald, 435 U. S., at
854–856; see 

; see also §1257.
——————
   3 The Court has sometimes applied an avoidance canon when inter-

preting a statute that would interfere with the President’s prerogatives.
See, e.g., Franklin v. Massachusetts, 

, 800–801 (1992); Pub-
lic Citizen v. Dept. of Justice, 

, 465–467 (1989); see also Sale
v. Haitian Centers Council, Inc., 

 (1993). The Office of
Legal Counsel has advocated for a clear-statement rule if applying a stat-
ute would “raise serious constitutional questions relating to the Presi-
dent’s constitutional authority.” See Application of 

 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).
                  Cite as: 

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                  BARRETT, J., concurring in part

   The present circumstances fall squarely within our prec-
edent 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, 

(1977) (allowing interlocutory appeal of rejection of double
jeopardy defense). He instead contests whether the Consti-
tution allows Congress to criminalize the alleged conduct, a
question that is “collateral to, and separable from” his guilt
or innocence. 

 Moreover, the President’s Executive
Branch authority “would be significantly undermined if ap-
pellate review” of the constitutional challenge “were post-
poned until after conviction and sentence.” 

; see
also Helstoski v. Meanor, 

 (1979) (allow-
ing 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 Execu-
tive Branch.” Trump v. Vance, 

 (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 inter-
locutory review of the trial court’s final decision on the Pres-
ident’s as-applied constitutional challenge. See Helstoski,
442 U. S., at 507–508; Abney, 431 U. S., at 659–661; see 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 pro-
tected 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
6                 TRUMP v. UNITED STATES

                  BARRETT, J., concurring in part

score, I agree with the dissent. See post, at 25–27
(SOTOMAYOR, J., dissenting). The Constitution does not re-
quire blinding juries to the circumstances surrounding con-
duct 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 for-
bids any public official to seek or accept a thing of value “for
or because of any official act.” 

(c). The Con-
stitution, 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 impeach-
able offense); see also Memorandum from L. Silberman,
Deputy Atty. Gen., to R. Burress, Office of the President,
Re: Conflict of Interest Problems Arising Out of the Presi-
dent’s Nomination of Nelson A. Rockefeller To Be Vice Pres-
ident Under the Twenty-Fifth Amendment to the Constitu-
tion 5 (Aug. 28, 1974) (suggesting that the federal 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 alleg-
ing 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 evi-
dence 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 ac-
cordingly”). The balance is more likely to favor admitting
evidence of an official act in a bribery prosecution, for in-
stance, than one in which the protected conduct has little
                  Cite as: 

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                  BARRETT, J., concurring in part

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, 

, 206–207 (1987). I see no need to depart from that
familiar and time-tested procedure here.

                            *     *    *
   The Constitution does not insulate Presidents from crim-
inal 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, 

, 235–
236 (2021); Zivotofsky v. Clinton, 

, 192–194
(2012); Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 

, 487–488 (2010). A criminal
statute is no exception. Thus, a President facing prosecu-
tion may challenge the constitutionality of a criminal stat-
ute as applied to official acts alleged in the indictment. If
that challenge fails, however, he must stand trial.
                  Cite as: 

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                   SOTOMAYOR, J., dissenting

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 im-
munity 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 Presi-
dent, ante, at 3, 13, the Court gives former President Trump
all the immunity he asked for and more. Because our Con-
stitution 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 des-
perate 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
2                 TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

legitimate electors; and ultimately, cause the ascertain-
ment of and voting by illegitimate electors” in his favor. Id.,
at 185–186, ¶10(a). It is alleged that he went so far as to
threaten one state election official with criminal prosecu-
tion 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 out-
side their legal authority and alter their state election pro-
cesses, Trump and his co-conspirators purportedly devel-
oped a plan to disrupt and displace the legitimate election
certification process by organizing fraudulent slates of elec-
tors. 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 investi-
gations” 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 alter-
native 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 per-
suade 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 support-
ers that he had gathered in Washington, D. C., to pressure
the Vice President to fraudulently alter the election re-
sults.” 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
                 Cite as: 

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                   SOTOMAYOR, J., dissenting

delayed in taking any step to rein in the chaos he had un-
leashed. Instead, in a last desperate ploy to hold onto
power, he allegedly “attempted to exploit the violence and
chaos at the Capitol” by pressuring lawmakers to delay the
certification of the election and ultimately declare him the
winner. Id., at 233, ¶119. That is the backdrop against
which this case comes to the Court.
                              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 Pres-
ident above the law.
  The majority makes three moves that, in effect, com-
pletely insulate Presidents from criminal liability. First,
the majority creates absolute immunity for the President’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 con-
cerning 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
4                 TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

through brute force. Under scrutiny, its arguments crum-
ble. To start, the majority’s broad “official acts” immunity
is inconsistent with text, history, and established under-
standings of the President’s role. See Part III, infra. More-
over, it is deeply wrong, even on its own functionalist terms.
See Part IV, infra. Next, the majority’s “core” immunity is
both unnecessary and misguided. See Part V, infra. Fur-
thermore, the majority’s illogical evidentiary holding is un-
precedented. See Part VI, infra. Finally, this majority’s
project will have disastrous consequences for the Presi-
dency 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 . . . pre-
sumptive,” 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 pre-
sumptively) cannot touch him. This official-acts immunity
has “no firm grounding in constitutional text, history, or
precedent.” Dobbs v. Jackson Women’s Health Organiza-
tion, 

 (2022). Indeed, those “standard
grounds for constitutional decisionmaking,” 

, all
point in the opposite direction. No matter how you look at
it, the majority’s official-acts immunity is utterly indefensi-
ble.
                              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 immun-
ity from criminal prosecution for former Presidents. Of
course, “the silence of the Constitution on this score is not
                   Cite as: 

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                    SOTOMAYOR, J., dissenting

dispositive.” United States v. Nixon, 

 (1974). Insofar as the majority rails against the no-
tion that a “ ‘specific textual basis’ ” is required, ante, at 37
(quoting Nixon v. Fitzgerald, 

(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 im-
munity from prosecution. They did provide a narrow im-
munity 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 re-
turning from the same; and for any Speech or Debate in ei-
ther 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 Fram-
ing 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, 

, 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 ques-
tion, it actually contemplates some form of criminal liability
for former Presidents. The majority correctly rejects
Trump’s argument that a former President cannot be pros-
ecuted unless he has been impeached by the House and con-
victed by the Senate for the same conduct. See ante, at 32–
6                    TRUMP v. UNITED STATES

                       SOTOMAYOR, J., dissenting

34; Part IV–C, infra. The majority ignores, however, that
the Impeachment Judgment Clause cuts against its own po-
sition. That Clause presumes the availability of criminal
process as a backstop by establishing that an official im-
peached and convicted by the Senate “shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Pun-
ishment, 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 “Brib-
ery,” Art. II, §4, which implicates official acts almost by def-
inition.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 pros-
ecution for official acts.
  The historical evidence that exists on Presidential im-
munity from criminal prosecution cuts decisively against it.
For instance, Alexander Hamilton wrote that former Presi-
dents would be “liable to prosecution and punishment in 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
——————
  1 Article II, §4, provides: “The President, Vice President and all Civil

Officers of the United States, shall be removed from Office on Impeach-
ment for and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.”
                      Cite as: 

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                        SOTOMAYOR, J., dissenting

and disgrace.” Id., at 458. In contrast to the king, the Pres-
ident 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 gover-
nors 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. Far-
rand 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 ob-
served that federal officials had no immunity from prosecu-
tion, 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

——————
   2 To note, as the majority does, see ante, at 39, that this Court has rec-

ognized civil immunities arguably inconsistent with this view is not to
say that Pinckney was wrong about what the Framers had “intended.”
Indeed, Pinckney’s contemporaries shared the same view during the rat-
ification debates. See, e.g., 4 Debates on the Constitution 109 (J. 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”).
8                 TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

a federal official commits a crime in office, “it is indispensa-
ble, that provision should be made, that the common tribu-
nals of justice should be at liberty to entertain jurisdiction
of the offence, for the purpose of inflicting, the common pun-
ishment applicable to unofficial offenders.” 2 Commen-
taries on the Constitution of the United States §780,
pp. 250–251 (1833). Without a criminal trial, he explained,
“the grossest official offenders might escape without any
substantial punishment, even for crimes, which would sub-
ject their fellow citizens to capital punishment.” Id., at 251.
   This historical evidence reinforces that, from the very be-
ginning, the presumption in this Nation has always been
that no man is free to flout the criminal law. The majority
fails to recognize or grapple with the lack of historical evi-
dence for its new immunity. With nothing on its side of the
ledger, the most the majority can do is claim that the his-
torical evidence is a wash. See ante, at 38–39. It claims
that the Court previously has described the “relevant his-
torical evidence on the question of Presidential immunity”
as “ ‘fragmentary’ ” and not worthy of consideration. Ante,
at 38 (quoting Fitzgerald, 457 U. S., at 752, n. 31). Yet the
Court has described only the evidence regarding “the Pres-
ident’s immunity from damages liability” as “fragmentary.”
Fitzgerald, 457 U. S., at 751–752, n. 31 (emphasis added).
Moreover, far from dismissing that evidence as irrelevant,
the Fitzgerald Court was careful to note that “[t]he best his-
torical evidence clearly support[ed]” the immunity 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 ig-
nores 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, 

 (2022); Dobbs, 

.
                  Cite as: 

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                    SOTOMAYOR, J., dissenting

                               C
   Our country’s history also points to an established under-
standing, shared by both Presidents and the Justice De-
partment, that former Presidents are answerable to the
criminal law for their official acts. Cf. Chiafalo v. Washing-
ton, 

, 592–593 (2020) (“ ‘Long settled and es-
tablished practice’ may have ‘great weight in a proper in-
terpretation of constitutional provisions’ ” (quoting The
Pocket Veto Case, 

 (1929))). Consider Wa-
tergate, 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 Wa-
tergate burglary, President Ford pardoned Nixon. Both
Ford’s pardon and Nixon’s acceptance of the pardon neces-
sarily “rested on the understanding that the former Presi-
dent faced potential criminal liability.” Brief for 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 com-
mitted 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 in-
vestigations 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 Pres-
10                TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

ident Reagan in the Iran/contra matter was reviewed by In-
dependent 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 impeach-
ment 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 Pres-
ident “is like any other citizen and can be tried in a court of
law.” Ibid.; see also 1 

 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”); 

 at 322–323 (Trump’s
impeachment counsel stating: “If my colleagues on this side
of the Chamber actually think that President Trump com-
mitted 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 appeal-
ing.
   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 under-
standings 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 . . . pre-
sumptive[ly],” immune from criminal prosecution for all of
their official acts. Ante, at 14 (emphasis omitted). The ma-
jority purports to keep us in suspense as to whether this
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                    SOTOMAYOR, J., dissenting

immunity is absolute or presumptive, but it quickly gives
up the game. It explains that, “[a]t a minimum, the Presi-
dent must . . . be immune from prosecution for an official
act unless the Government can show that applying a crim-
inal prohibition to that act would pose no ‘dangers of intru-
sion on the authority and functions of the 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 Pres-
idential 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 objec-
tives within the constitutional authority of Congress.”
Nixon v. Administrator of General Services, 

 (1977). Other intrusions may be justified by the “pri-
mary constitutional duty of the Judicial Branch to do justice
in criminal prosecutions.” United States v. Nixon, 

 (1974). According to the majority, however, any
incursion on Executive power is too much. When presump-
tive 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 pre-
sumption of equality before the law with a presumption
that the President is above the law for all of his official acts.
   Quick on the heels of announcing this astonishingly
broad official-acts immunity, the majority assures us that a
former President can still be prosecuted for “unofficial acts.”
Ante, at 15. Of course he can. No one has questioned the
ability to prosecute a former President for unofficial (other-
12                TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

wise known as private) acts. Even Trump did not claim im-
munity for such acts and, as the majority acknowledges,
such an immunity would be impossible to square with Clin-
ton v. Jones, 

 (1997). See ante, at 15. This
unremarkable proposition is no real limit on today’s deci-
sion. 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 “unof-
ficial” almost to a nullity. It says that whenever the Presi-
dent acts in a way that is “ ‘not manifestly or palpably be-
yond [his] authority,’ ” he is taking official action. Ante, at
17 (quoting Blassingame v. Trump, 

 (CADC
2023)). It then goes a step further: “In dividing official from
unofficial conduct, courts may not inquire into the Presi-
dent’s motives.” Ante, at 18. It is one thing to say that mo-
tive is irrelevant to questions regarding the scope of civil
liability, but it is quite another to make it irrelevant to
questions regarding criminal liability. Under that rule, any
use of official power for any purpose, even the most corrupt
purpose indicated by objective evidence of the most corrupt
motives and intent, remains official and immune. Under
the majority’s test, if it can be called a test, the category of
Presidential action that can be deemed “unofficial” is des-
tined to be vanishingly small.
   Ultimately, the majority pays lip service to the idea that
“[t]he President, charged with enforcing federal criminal
laws, is not above them,” ante, at 13–14, but it then pro-
ceeds 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, his-
tory, and established understanding all weighing against it,
the majority claims just one arrow in its quiver: the balanc-
ing test in Nixon v. Fitzgerald, 

 (1983). Yet
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                    SOTOMAYOR, J., dissenting

even that test cuts against it. The majority concludes that
official-acts immunity “is required to safeguard the inde-
pendence and effective functioning of the Executive
Branch,” ante, at 14, by rejecting that Branch’s own protes-
tations 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 Pres-
ident had immunity from such a civil suit. The Court ex-
plained that it was “settled law that the separation-of-
powers doctrine does not bar every exercise of 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 jurisdic-
tion 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
14                TRUMP v. UNITED STATES

                   SOTOMAYOR, J., dissenting

public duties.” Id., at 753. The public interest in such pri-
vate civil suits, the Court concluded, was comparatively
weak. See id., at 754, n. 37 (“[T]here is a lesser public in-
terest 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 for-
mer 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 prosecu-
tion that Nixon enjoyed from an unlawful termination suit.
That is plainly wrong.
                              1
   The majority relies almost entirely on its view of the dan-
ger 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 con-
duct “is akin to, indeed greater than, what led us to recog-
nize absolute Presidential immunity from civil damages li-
ability—that the President would be chilled from taking the
‘bold and unhesitating action’ required of an independent
Executive.” Ante, at 13 (quoting Fitzgerald, 457 U. S., at
745). It is of course important that the President be able to
                   Cite as: 

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                    SOTOMAYOR, J., dissenting

“ ‘ “deal fearlessly and impartially with” the duties of his of-
fice.’ ” 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 dis-
counts, that make it less likely to chill Presidential action
than the threat of civil litigation.
    First, in terms of probability, the threat of criminal lia-
bility is much smaller. In Fitzgerald, the threat of vexa-
tious civil litigation loomed large. The Court observed that,
given the “visibility of his office and the effect of his actions
on countless people, the President would be an easily iden-
tifiable target for suits for civil damages.” Id., at 753. Alt-
hough “ ‘the effect of [the President’s] actions on 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 prosecu-
tion, in one jurisdiction, for each criminal offense allegedly
committed while in office.” 

, *9 (DC, Dec.
1, 2023) (quoting Fitzgerald, 457 U. S., at 753). The major-
ity’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. 

, *10. The criminal justice system has layers of pro-
tections that “filter out insubstantial legal claims,” whereas
civil litigation lacks “analogous checks.” Cheney v. United
States Dist. Court for D. C., 

 (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
16                    TRUMP v. UNITED STATES

                       SOTOMAYOR, J., dissenting

grand jury provides an additional check on felony prosecu-
tions, acting as a “buffer or referee between the Govern-
ment and the people,” to ensure that the charges are well-
founded. United States v. Williams, 

 (1992);
see also Harlow v. Fitzgerald, 

 (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 unconstitu-
tional 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 crim-
inal laws,3 or an advice-of-the-Attorney-General defense,
see Tr. of Oral Arg. 107–108.4
——————
   3 See Nardone v. United States, 

 (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 re-
sponding 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 Con-
templated 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 ac-
tion 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 Presi-
dents from unwarranted criminal prosecutions much more precisely
than the blanket immunity the majority creates today.
                   Cite as: 

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                    SOTOMAYOR, J., dissenting

   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, 

 (1995). If the Government man-
ages to overcome even that significant hurdle, then the for-
mer President can appeal his conviction, and the appellate
review of his claims will be “ ‘particularly meticulous.’ ”
Trump v. Vance, 

 (2020) (quoting Nixon,

). He can ultimately seek this Court’s re-
view, and if past practice (including in this case) is any in-
dication, he will receive it.
   In light of these considerable protections, the majority’s
fear that “ ‘bare allegations of malice,’ ” ante, at 18 (altera-
tion 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. Cer-
tainly there has been, on occasion, great feelings of animos-
ity 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 Ex-
ecutive 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 sanc-
tions 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 Pres-
idential decisionmaking since the earliest days of the Re-
public. Although it makes sense to avoid “diversion of the
18                TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

President’s attention during the decisionmaking process”
with “needless worry,” Clinton, 

, 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 exe-
cute, Art. II, §3, he has not been rendered “ ‘unduly cau-
tious,’ ” ante, at 10 (quoting Fitzgerald, 457 U. S., at 752,
n. 32). Some amount of caution is necessary, after all. It is
a far greater danger if the President feels empowered to vi-
olate federal criminal law, buoyed by the knowledge of fu-
ture immunity. I am deeply troubled by the idea, 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 deter-
rence 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 ac-
tion that borders on criminal. Instead, the majority’s main
concern could be that Presidents will be deterred from tak-
ing necessary and lawful action by the fear that their suc-
cessors might pin them with a baseless criminal prosecu-
tion—a prosecution that would almost certainly be 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 Na-
tion’s Presidents. As this Court has said before in the con-
text 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, 

, n. 20 (quoting Clark v. United
States, 

 (1933)). The concern that countless
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                    SOTOMAYOR, J., dissenting

(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 ma-
jority’s immunity was “limited to civil damages claims,” ra-
ther than “criminal prosecution.” Id., at 759–760. The four
dissenting Justices agreed that a “contention that the Pres-
ident 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 out-
come in the criminal context.
    The public’s interest in prosecution is transparent: a fed-
eral prosecutor herself acts on behalf of the United States.
Even the majority acknowledges that the “[f]ederal crimi-
nal laws seek to redress ‘a wrong to the public’ as a whole,
not just ‘a wrong to the individual,’ ” ante, at 13 (quoting
Huntington v. Attrill, 

 (1892)), such that
there is “a compelling ‘public interest in fair and effective
law enforcement,’ ” ante, at 13 (quoting Vance, 

). 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, 

 (1935)).
    The public interest in criminal prosecution is particularly
20                TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

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 un-
der public trust remain on equal footing with their fellow
citizens under the criminal law. See, e.g., O’Shea v. Little-
ton, 

 (1974) (“[W]e have never held that
the performance of the duties of judicial, legislative, or ex-
ecutive officers, requires or contemplates the immunization
of otherwise criminal deprivations of constitutional
rights”); Dennis v. Sparks, 

 (1980) (“[J]udi-
cial immunity was not designed to insulate the judiciary
from all aspects of public accountability. Judges are im-
mune from §1983 damages actions, but they are subject to
criminal prosecutions as are other citizens”); Imbler v.
Pachtman, 

, 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 pol-
icy 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 Presi-
dent . . . represent[s] all the voters in the Nation,” and his
powers are given by the people under our Constitution. An-
derson v. Celebrezze, 

 (1983). When Pres-
idents use the powers of their office for personal gain or as
part of a criminal scheme, every person in the country has
an interest in that criminal prosecution. The majority over-
looks that paramount interest entirely.
   Finally, the question of federal criminal immunity for a
former President “involves a countervailing Article II con-
sideration absent in Fitzgerald”: recognizing such an im-
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                    SOTOMAYOR, J., dissenting

munity “would frustrate the Executive Branch’s enforce-
ment 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 for-
mer 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 inde-
pendence, exalting occupants of the office over the office it-
self. 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 countervail-
ing Article II interest are particularly stark. The public in-
terest in this criminal prosecution implicates both “[t]he
Executive Branch’s interest in upholding Presidential elec-
tions and vesting power in a new President under the Con-
stitution” as well as “the voters’ interest in democratically
selecting their President.” 

, 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 prose-
cution 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 Con-
stitution’s separation of powers.” Ante, at 40.
22                TRUMP v. UNITED STATES

                   SOTOMAYOR, J., dissenting

                               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 im-
munity 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 Presi-
dent’s criminal prosecution.” Ibid. That argument is obvi-
ously wrong. See ante, at 32–34. Rejecting it, however,
does not make the majority’s immunity narrower 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 prose-
cuted 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 im-
peached 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 for-
mer 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 im-
munity for those acts.
                              V
  Separate from its official-acts immunity, the majority rec-
ognizes absolute immunity for “conduct within [the Presi-
dent’s] exclusive sphere of constitutional authority.” Ante,
at 9. Feel free to skip over those pages of the majority’s
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                    SOTOMAYOR, J., dissenting

opinion. With broad official-acts immunity covering the
field, this ostensibly narrower immunity serves little pur-
pose. In any event, this case simply does not turn on con-
duct within the President’s “exclusive sphere of constitu-
tional authority,” and the majority’s attempt to apply a 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 in-
tuitive 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,

 (1952) (Jackson, J., concurring). In his
Youngstown concurrence, Justice Robert Jackson posited
that the President’s “power of removal in executive agen-
cies” seemed to fall within this narrow category. Ibid., n. 4.
Other decisions of this Court indicate that the pardon
power also falls in this category, see United States v. Klein,

 (1872) (“To the executive alone is in-
trusted the power of pardon; and it is granted without
limit”), as does the power to recognize foreign countries, see
Zivotofsky v. Kerry, 

 (2015) (holding that the
President has “exclusive power . . . to control recognition de-
terminations”).
   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 in-
dicted 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
24               TRUMP v. UNITED STATES

                   SOTOMAYOR, J., dissenting

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 Gov-
ernment 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 threat-
ened use of the removal power as an overt act in the con-
spiracy. It says much more.
   The core immunity that the majority creates will 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
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                   SOTOMAYOR, J., dissenting

agrees with it. See ante, at 34. That suggestion will sur-
prise the Government. To say, as the Government did, that
a “small core of exclusive official acts” such as “the pardon
power, the power to recognize foreign nations, the power to
veto legislation, [and] the power to make appointments”
cannot be regulated by Congress, see Tr. of Oral Arg. 85–
87, does not suggest that the Government agrees with im-
munizing any and all conduct conceivably related to the ma-
jority’s broad array of supposedly “core” powers. The Gov-
ernment in fact advised this Court to “leav[e] 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 Pres-
ident’s “conclusive and preclusive” authority. Perhaps for
this reason, even Trump discouraged consideration of “a
narrower scope of immunity,” claiming that such an im-
munity “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 opin-
ion only to the very questions necessary to decision of the
case.” Dames & Moore v. Regan, 

 (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 im-
munity 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 narra-
tive of even wholly private crimes committed while in office.
They must play no role in proceedings regarding private
26                   TRUMP v. UNITED STATES

                       SOTOMAYOR, J., dissenting

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 prosecu-
tions 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 pros-
ecutions of unofficial acts. For instance, the majority strug-
gles with classifying whether a President’s speech is in his
capacity as President (official act) or as a candidate (unoffi-
cial act). Imagine a President states in an official speech
that he intends to stop a political rival from passing legis-
lation that he opposes, no matter what it takes to do so (of-
ficial act). He then hires a private hitman to murder that
political rival (unofficial act). Under the majority’s rule, the
murder indictment could include no allegation of the Presi-
dent’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, 

 (1993). Evidentiary rulings and limiting instruc-
tions can ensure that evidence concerning official acts is
“considered only for the proper purpose for which it was ad-
mitted.” Huddleston v. United States, 

, 691–
692 (1988). The majority has no coherent explanation as to

——————
  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 offi-
cial act,” so long as the prosecutor does not “invite the jury to inspect”
the act in any way. Ante, at 32, n. 3. Whatever that suggestion is sup-
posed to accomplish, it does not salvage the majority’s nonsensical evi-
dentiary rule.
                      Cite as: 

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                        SOTOMAYOR, J., dissenting

why these protections that are sufficient in every other con-
text 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 al-
low.
                               VII
   Today’s decision to grant former Presidents immunity for
their official acts is deeply wrong. As troubling as this crim-
inal immunity doctrine is in theory, the majority’s applica-
tion of the doctrine to the indictment in this case is 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, de-
spite concessions from Trump’s counsel.6 Trump’s counsel
conceded, for example, that the allegation that Trump
——————
  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 acknowl-
edges 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 con-
duct as unofficial, the majority engages in judicial activism, not judicial
restraint.
28                TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

“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 con-
duct 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-conspira-
tor 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 elec-
tors 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 De-
partment 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 at-
tempts to “enlist the Vice President to use his ceremonial
role at the January 6 certification proceeding to fraudu-
lently alter the election results.” App. 187, Indictment
                  Cite as: 

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                   SOTOMAYOR, J., dissenting

¶10(d). Instead, it worries that a prosecution for this con-
duct 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 constitu-
tional functions.” Ibid. Whether a prosecution for this con-
duct warrants immunity should have been an easy ques-
tion, but the majority turns it into a debatable one.
Remarkably, the majority goes further and declines to 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 “ ‘dan-
gers of intrusion on the authority and functions of the Ex-
ecutive Branch,’ ” ante, at 14, and the majority could have
said as much. Instead, it perseverates on a threshold ques-
tion that should be immaterial.
   Looking beyond the fate of this particular prosecution,
the long-term consequences of today’s decision are stark.
The Court effectively creates a law-free zone around 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. Kore-
matsu v. United States, 

 (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 as-
sassinate a political rival? Immune. Organizes a military
30                TRUMP v. UNITED STATES

                    SOTOMAYOR, J., dissenting

coup to hold onto power? Immune. Takes a bribe in ex-
change for a pardon? Immune. Immune, immune, immune.
   Let the President violate the law, let him exploit the trap-
pings of his office for personal gain, let him use his 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 rela-
tionship 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 “en-
deavor[ing] to show” that the Executive designed by the
Constitution “combines . . . all the requisites to energy,” Al-
exander 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 re-
sponsibility?” The Federalist No. 77, p. 507 (J. Harvard Li-
brary ed. 2009). The answer then was yes, based in part
upon the President’s vulnerability to “prosecution in the
common course of law.” 

 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 occu-
pant of that office misuses official power for personal gain,
the criminal law that the rest of us must abide will not pro-
vide a backstop.
  With fear for our democracy, I dissent.
                 Cite as: 

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                    JACKSON, J., dissenting

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 his-
tory, tradition, law, and logic. I agree with every word of
her powerful dissent. I write separately to explain, as suc-
cinctly as I can, the theoretical nuts and bolts of what, ex-
actly, the majority has done today to alter the paradigm 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, immun-
ity is “exemption” from the duties and liabilities imposed by
law. Black’s Law Dictionary 898 (11th ed. 2019); see Hop-
kins v. Clemson, 

 (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,

 (1997) (quoting 1 W. Blackstone,
Commentaries *246 (Blackstone)); see United States v.
Burr, 

 (No. 14,692d) (CC Va. 1807). To say
2                 TRUMP v. UNITED STATES

                     JACKSON, J., dissenting

that someone is immune from criminal prosecution is to say
that, like a King, he “is not under the coercive power of the
law,” which “will not suppose him capable of committing a
folly, much less a crime.” 4 Blackstone *33. Thus, being
immune is not like having a defense under the law. Rather,
it means that the law does not apply to the immunized per-
son in the first place. Conferring immunity therefore “cre-
ate[s] a privileged class free from liability for wrongs in-
flicted or injuries threatened.” Hopkins, 

.
   It is indisputable that immunity from liability for wrong-
doing 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 founda-
tional 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 how-
ever disguised.” United States v. Mine Workers, 

 (1947) (Frankfurter, J., concurring in judgment).
   A corollary to that principle sets the terms for this case:
“No man in this country is so high that he is above the law.
No officer of the law may set that law at defiance with im-
punity. All the officers of the government, from the highest
to the lowest, are creatures of the law, and are bound to
obey it.” United States v. Lee, 

 (1882). We
have long lived with the collective understanding that
“[d]ecency, security and liberty alike demand that govern-
ment officials shall be subjected to the same rules of con-
duct that are commands to the citizen,” for “[i]n a govern-
ment of laws, existence of the government will be imperilled
if it fails to observe the law scrupulously.” Olmstead v.
United States, 

 (1928) (Brandeis, J., dis-
senting).
                  Cite as: 

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                     JACKSON, J., dissenting

                              II
                              A
   These foundational presuppositions are reflected in a pro-
cedural paradigm of rules and accountability that operates
in the realm of criminal law—what I would call an individ-
ual 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 de-
fine a crime, and ordain its punishment.” United States v.
Wiltberger, 

 (1820); accord, Ohio v. Johnson,

 (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 so-
ciety. Wooden v. United States, 

 (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 vio-
lation, it persuades a grand jury that there is probable
cause to indict. U. S. Const., Amdt. 5. Then, the Govern-
ment 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, 

 (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, 

 (1952))).
   For his part, the defendant “stands accused but is pre-
sumed innocent until conviction upon trial or guilty plea.”
Betterman v. Montana, 

 (2016). Notably,
criminal defendants have various constitutionally pro-
tected rights during the criminal-liability process, includ-
ing the rights to a speedy and public trial, the right to have
a jury decide guilt or innocence, the right to the assistance
4                TRUMP v. UNITED STATES

                    JACKSON, J., dissenting

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 argu-
ments; 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, 

 (1974); United States v. Da-
vis, 

 (2019). He might further claim that
the law is unconstitutional as applied to his particular con-
duct. See United States v. O’Brien, 

(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, 

, ___ (2024) (slip op., at 2).
   The defendant may also raise, and attempt to prove, af-
firmative defenses that “excuse conduct that would other-
wise be punishable.” Dixon v. United States, 

(2006). Generally speaking, affirmative defenses are deter-
minations (often adopted by legislation) that certain con-
duct otherwise punishable by law is justified. This might
be the case, for example, when the Legislature determines
that, under specified circumstances, the societal harm par-
ticular conduct causes “is outweighed by the need to avoid
an even greater harm.” 1 P. Robinson, Criminal Law De-
fenses §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
                      Cite as: 

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                         JACKSON, J., dissenting

special privilege that Government officials sometimes in-
voke when carrying out their official duties.1
   All of this is to say that our Government has long func-
tioned 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 le-
gal 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 accounta-
bility 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 tra-
ditional 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 of-
ficial 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

——————
  1 See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds

which otherwise would be criminal, such as taking or destroying prop-
erty, 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-au-
thority defense, under which a defendant may escape liability if he “has
been specifically authorized to engage in the conduct constituting the of-
fense 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, 

 (1937)).
6                     TRUMP v. UNITED STATES

                         JACKSON, J., dissenting

nature of Presidential power requires that a former Presi-
dent have some immunity from criminal prosecution for of-
ficial acts during his tenure in office”). Instead of no im-
munity (the individual accountability model) or 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 de-
termined on a case-by-case basis. According to the major-
ity, 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 au-
thority”—the President is entitled to absolute immunity
from criminal prosecution. See ante, at 6, 8. Second, ex-
panding outward from this “core,” regarding all other “acts
within the outer perimeter of [the President’s] official re-
sponsibility,” the President is entitled to “at least a pre-
sumptive immunity from criminal prosecution.” Ante, at 14.
——————
  2 Its feigned judicial humility notwithstanding, see ante, at 41, the ma-

jority’s holding goes further—much further—than necessary to resolve
this case. Petitioner’s argument in both the lower courts and this one
was that a former President is categorically immune from federal crimi-
nal 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; 

, 1188–1189, 1195, 1208
(CADC 2024) (per curiam); Brief for Petitioner 41–47 (arguing for abso-
lute immunity for “all actions within the ‘outer perimeter’ ” of a Presi-
dent’s responsibilities, and imploring the Court not to adopt a “ ‘function-
based’ approach”). Thus, it would have been enough for the Court simply
to reject petitioner’s categorical claim and leave it at that. But the ma-
jority 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.
                      Cite as: 

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                         JACKSON, J., dissenting

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 indict-
ment’s allegations and making a series of determinations
about the nature of the conduct at issue. From the struc-
ture 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, inci-


——————
   3 It is important to note that the majority reframes the immunity ques-

tion presented here as a separation of powers concern that is compelled
by Article II—as if what is being asked is whether Congress can crimi-
nalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1–
2 (BARRETT, J., concurring in part). But that is not anywhere close 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 ac-
countable for committing crimes while he is undertaking his official du-
ties? The nature of his authority under Article II (whether conclusive
and preclusive, or shared with Congress, or otherwise) is entirely beside
the point.
8                    TRUMP v. UNITED STATES

                        JACKSON, J., dissenting

dentally, courts must make without considering the Presi-
dent’s motivations, ante, at 18), the President is not im-
mune.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 impossi-
ble 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 crim-
inal act might be.
   Thus, even a hypothetical President who admits to hav-
ing ordered the assassinations of his political rivals or crit-
ics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably in-
stigates an unsuccessful coup, id., at 41–43, has a fair shot
at getting immunity under the majority’s new Presidential
accountability model. That is because whether a Presi-
dent’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 charac-
teristics 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,
——————
  4 JUSTICE BARRETT’s version of the Presidential accountability para-

digm 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 ap-
plicability—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.
                  Cite as: 

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                     JACKSON, J., dissenting

or any other reprehensible and outlawed criminal act will
turn on whether he committed that act in his official capac-
ity, such that the answer to the immunity question will al-
ways and inevitably be: It depends.
   Under the individual accountability paradigm, the ac-
countability analysis is markedly less convoluted, and 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 crimi-
nal 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 eve-
ryone 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 Presi-
dent, 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 unquestion-
ably and intentionally egregious criminal behavior. Re-
gardless of the nature or the impact of the President’s crim-
inal conduct, so long as he is committing crimes “pursuant
to the powers invested exclusively in him by the Constitu-
tion,” ante, at 7, or as needed “to carry out his constitutional
duties without undue caution,” ante, at 14, he is likely to be
10                    TRUMP v. UNITED STATES

                         JACKSON, J., dissenting

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 gate-
keeper, 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 ap-
ply to Presidents, no matter how obviously illegal, harmful,
or unacceptable a President’s official behavior might be.
Regardless of all that, courts must now ensure that a for-
mer President is not held accountable for any criminal con-
duct he engages in while he is on duty, unless his conduct
consists primarily (and perhaps solely) of unofficial acts.
                               3
  The structure and function of the two accountability par-
adigms are not the only differences—the models also assign
different roles to participants in the criminal justice sys-
tem, 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
——————
   5 To fully appreciate the oddity of making the criminal immunity de-

termination turn on the character of the President’s responsibilities, con-
sider what the majority says is one of the President’s “conclusive 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, 

(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, poison-
ing him to death. Put another way, the issue here is not whether the
President has exclusive removal power, but whether a generally applica-
ble criminal law prohibiting murder can restrict how the President exer-
cises that authority.
                  Cite as: 

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                     JACKSON, J., dissenting

criminal law (a determination that is made based on nu-
merous 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 en-
gaged in unlawful conduct, after the court has resolved any
legal challenges and has instructed the jury as to the re-
quirements of the law.
   By contrast, under the majority’s new Presidential ac-
countability paradigm, what a prosecutor or jury does may
not even matter, since the courts take center stage once
charges are brought against a former President, marshal-
ing their resources to conduct a complex and amorphous
threshold immunity evaluation. Whether a former Presi-
dent will be entirely exempted from the dictates of the law
(such that the roles of other participants in the criminal jus-
tice process become irrelevant) requires a judicial assess-
ment, in the first instance, of his criminal conduct and the
circumstances under which he acted.
   Finally, and most importantly, recall that under the indi-
vidual accountability model, an indicted former President
can raise an affirmative defense just like any other criminal
defendant. This means that the President remains answer-
able to the law, insofar as he must show that he was justi-
fied in committing a criminal act while in office under the
given circumstances. In other words, while the President
might indeed be privileged to commit a crime in the course
of his official duties, any such privilege exists only when the
People (acting either through their elected representatives
or as members of a jury) determine that the former Presi-
dent’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 ex-
12                TRUMP v. UNITED STATES

                     JACKSON, J., dissenting

cuse; the law simply does not apply to him. Unlike a de-
fendant 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 con-
sequences that are likely to follow from the majority’s deci-
sion 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 Presi-
dents, and its introduction of a new Presidential accounta-
bility model that authorizes the Judiciary to exempt Presi-
dents from punishment under law, depending on the official
or unofficial character of the criminal conduct at issue.
  Here, I will highlight just two observations about the re-
sults that follow from this paradigm shift. First, by chang-
ing the accountability paradigm in this fashion, the Court
has unilaterally altered the balance of power between the
three coordinate branches of our Government as it relates
to the Rule of Law, aggrandizing power in the Judiciary and
the Executive, to the detriment of Congress. Second, the
majority’s new Presidential accountability model under-
mines 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,
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                     JACKSON, J., dissenting

Congress’s laws, passed by the representatives of the Peo-
ple, 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 accept-
ing 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, 

. With its
adoption of a paradigm that sometimes exempts the Presi-
dent from the dictates of the law (when the Court says so),
this Court has effectively snatched from the Legislature the
authority to bind the President (or not) to Congress’s man-
dates, 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 Of-
fice of the Presidency, the apex of the Executive Branch, is
made significantly more powerful when the constraints of
the criminal law are lifted with respect to the exercise of a
President’s official duties. After today’s ruling, the Presi-
dent must still “take Care that the Laws be faithfully exe-
cuted,” Art. II, §3; yet, when acting in his official capacity,
he has no obligation to follow those same laws himself.
   But whatever additional power the majority’s new Presi-
dential accountability model gives to the Presidency, 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 admin-
istrable definition of the scope of that “core.” For what it’s
worth, the Constitution’s text is no help either; Article II
14                    TRUMP v. UNITED STATES

                          JACKSON, J., dissenting

does not contain a Core Powers Clause.6 So the actual
metes and bounds of the “core” Presidential powers are re-
ally anyone’s guess.
   Nor does the majority explain how to consistently distin-
guish between official and unofficial acts. Quite the oppo-
site, in fact. While acknowledging that this is a critical line
that courts must draw in order for its new accountability
model to work properly, the majority simultaneously cau-
tions 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 ap-
plying 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. Fitzger-
ald, 

 (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] author-
ity.’ ” Ante, at 17 (quoting Blassingame v. Trump, 

 (CADC 2023)). But that test can be illusory, as is ev-
idenced by the facts alleged in this very case. With respect
to the indictment’s allegations concerning petitioner’s at-
tempt to assemble false slates of electors in conjunction

——————
  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 re-
spect 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, 

 (2015) (“[T]he Constitution does
not use the term ‘recognition,’ either in Article II or elsewhere”); 

 (ROBERTS, C. J., dissenting) (calling the “asserted textual bases” for
an exclusive Presidential recognition power “tenuous”).
                  Cite as: 

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                     JACKSON, J., dissenting

with the events of January 6, 2021, for example, the major-
ity admits that the “alleged conduct cannot be neatly cate-
gorized,” and that “[t]he analysis therefore . . . may prove 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 as-
sessed with respect to persons accused of having engaged in
criminal conduct. And, frankly, none is needed now—ex-
cept 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 per-
tains to the President. In essence, the Court has now im-
posed 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] per-
sonal 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 ap-
ply 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 at-
tempts to hold former Presidents accountable to generally
applicable criminal laws. “The Framers, however, did not
16                TRUMP v. UNITED STATES

                     JACKSON, J., dissenting

make the judiciary the overseer of our government.”
Youngstown Sheet & Tube Co. v. Sawyer, 

(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.” 

. But it has long been
understood that “we should be wary and humble” when do-
ing so. 

  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 Pres-
ident disregards its criminal prohibitions and uses the pow-
ers of his office to push the envelope, while choosing to fol-
low (or not) existing laws, as he sees fit. We also now have
a greatly empowered Court, which can opt to allow Con-
gress’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 con-
sequences 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 per-
spective, philosophers have long considered deterrence to
be a key justification for adopting and maintaining systems
                      Cite as: 

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                         JACKSON, J., dissenting

that ensure accountability for criminal conduct.7 For that
same reason, some commentators also maintain that de-
creasing the certainty of accountability for wrongful acts at
least arguably reduces incentives to follow the law.8
  Under the individual accountability model, because eve-
ryone is subject to the law, the potential of criminal liability
operates as a constraint on the actions and decisions of eve-
ryone, 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 ap-
plies to a President’s official acts, such that criminal conse-
quences 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 re-
mote possibilities.


——————
  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 un-
done, but in order that in future times, he, and those who see him cor-
rected, may utterly hate injustice, or at any rate abate much of their evil-
doing”); see also J. Bentham, The Rationale of Punishment 20 (1830)
(“General prevention ought to be the chief end of punishment, as it is its
real justification”); A. von Hirsch, Doing Justice: The Choice of Punish-
ments 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”).
18                TRUMP v. UNITED STATES

                     JACKSON, J., dissenting

   All of this leads me to ponder why, exactly, has the ma-
jority concluded that an indeterminate “core”-versus-“offi-
cial”-versus-“unofficial” line-drawing exercise is the 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 nev-
ertheless 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 la-
ments 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 re-
jects) the foundational principles upon which the tradi-
tional 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 per-
ceives 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 com-
plete, all-embracing, swiftly moving authority.” Youngs-
town, 

 (Frankfurter, J., concurring). But
                  Cite as: 

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                     JACKSON, J., dissenting

any American who has studied history knows that “our gov-
ernment was designed to have such restrictions.” Ibid. (em-
phasis added). Our Constitution’s “separation of powers
was adopted by the Convention of 1787, not to promote ef-
ficiency 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, 

(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 punish-
ment 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 at-
tempted 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 un-
official conduct. Why? Because there is still manifest ineq-
uity: 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 pro-
fessional. 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 wor-
thy 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
20                TRUMP v. UNITED STATES

                     JACKSON, J., dissenting

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, 

 (Frankfurter, J., concurring in judgment). Ad-
ams 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 gov-
ernment may be challenged by an appeal to law.” 

. 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 Com-
mander-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 conse-
quences for the rights and liberties of Americans.
                               IV
   To the extent that the majority’s new accountability par-
adigm 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, abso-
lute 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.” 

. 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, 

 (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 ter-
ritory, the People, in their wisdom, will need to remain ever
                  Cite as: 

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                     JACKSON, J., dissenting

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, 

 (1821).
   For my part, I simply cannot abide the majority’s sense-
less discarding of a model of accountability for criminal acts
that treats every citizen of this country as being equally
subject to the law—as the Rule of Law requires. That core
principle has long prevented our Nation from devolving into
despotism. Yet the Court now opts to let down the guard-
rails of the law for one extremely powerful category of citi-
zen: any future President who has the will to flout Con-
gress’s established boundaries.
   In short, America has traditionally relied on the law to
keep its Presidents in line. Starting today, however, Amer-
icans must rely on the courts to determine when (if at all)
the criminal laws that their representatives have 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 Pres-
ident have to be let go and which can be redressed as im-
permissible. 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 be-
coming Kings through case-by-case application of the inde-
terminate standards of their new Presidential accountabil-
ity paradigm. I fear that they are wrong. But, for all our
22               TRUMP v. UNITED STATES

                   JACKSON, J., dissenting

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.