Trump v. United States

P R E L I M I N A R Y P R I N T
Volume 603 U. S. Part 1
Pages 593–706
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
July 1, 2024
REBECCA A. WOMELDORF
reporter of decisions
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pio@supremecourt.gov, of any typographical or other formal errors.

OCTOBER
TERM, 2023
593
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 certify-
ing 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 offcial responsibilities, and that the indictment's
allegations fell within the core of his offcial duties. The District Court
denied Trump's motion to dismiss, holding that former Presidents do
not possess federal criminal immunity for any acts. The D. C. Circuit
affrmed. Both the District Court and the D. C. Circuit declined to de-
cide whether the indicted conduct involved offcial 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 presumptive
immunity from prosecution for all his offcial acts. There is no immu-
nity for unoffcial acts. Pp. 605–642.
(a) This case is the frst 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 for-
mer President have some immunity from criminal prosecution for offcial
acts during his tenure in offce. At least with respect to the President's
exercise of his core constitutional powers, this immunity must be abso-
lute. As for his remaining offcial actions, he is entitled to at least pre-
sumptive immunity. Pp. 605–616.
(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, 591
U. S. 786, 800. His authority to act necessarily “stem[s] either from an
act of Congress or from the Constitution itself.” Youngstown Sheet &
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UMP v. UNITED STATES
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Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the Presi-
dent'
s authority is sometimes “conclusive and preclusive.” Id., at 638
(Jackson, J., concurring). When the President exercises such authority,
Congress cannot act on, and courts cannot examine, the President's ac-
tions. It follows that an Act of Congress—either a specifc one targeted
at the President or a generally applicable one—may not criminalize the
President's actions within his exclusive constitutional power. Neither
may the courts adjudicate a criminal prosecution that examines such
Presidential actions. The Court thus concludes that the President is
absolutely immune from criminal prosecution for conduct within his ex-
clusive sphere of constitutional authority. Pp. 607–609.
(2) Not all of the President's offcial 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, precedent
on Presidential immunity in the civil context, and criminal cases where a
President resisted prosecutorial demands for documents. Pp. 609–610.
(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 “super-
visory and policy responsibilities of utmost discretion and sensitivity.”
Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the “unique
risks” that arise when the President's energies are diverted by proceed-
ings that might render him “unduly cautious in the discharge of his
offcial duties,” the Court has recognized Presidential immunities and
privileges “rooted in the constitutional tradition of the separation of
powers and supported by our history.” Id., at 749, 751, 752, n. 32. In
Fitzgerald, for instance, the Court concluded that a former President is
entitled to absolute immunity from “damages liability for acts within
the `outer perimeter' of his offcial responsibility.” Id., at 756. The
Court's “dominant concern” was to avoid “diversion of the President's
attention during the decisionmaking process caused by needless worry
as to the possibility of damages actions stemming from any particular
offcial decision.” Clinton v. Jones, 520 U. S. 681, 694, n. 19.
By contrast, when prosecutors have sought evidence from the Presi-
dent, the Court has consistently rejected Presidential claims of absolute
immunity. During the treason trial of former Vice President Aaron
Burr, for instance, Chief Justice Marshall rejected President Thomas
Jefferson's claim that the President could not be subjected to a sub-
poena. Marshall simultaneously recognized, however, the existence of

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a “privilege” to withhold certain “offcial paper[s].” United States v.
Bur
r, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when a subpoena
issued to President Richard Nixon, the Court rejected his claim of “ab-
solute privilege.” United States v. Nixon, 418 U. S. 683, 703. But rec-
ognizing “the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decisionmaking,” it held that a “presump-
tive privilege” protects Presidential communications. Id., at 708. Be-
cause that privilege “relates to the effective discharge of a President's
powers,” id., at 711, the Court deemed it “fundamental to the operation
of Government and inextricably rooted in the separation of powers
under the Constitution,” id., at 708. Pp. 610–613.
(ii) Criminally prosecuting a President for offcial 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, 457 U. S., at
745. Although the President might be exposed to fewer criminal prose-
cutions than civil damages suits, the threat of trial, judgment, and im-
prisonment is a far greater deterrent and plainly more likely to distort
Presidential decisionmaking than the potential payment of civil dam-
ages. The hesitation to execute the duties of his offce fearlessly and
fairly that might result when a President is making decisions under “a
pall of potential prosecution,” McDonnell v. United States, 579 U. S. 550,
575, raises “unique risks to the effective functioning of government,”
Fitzgerald, 457 U. S., at 751. But there is also a compelling “public
interest in fair and effective law enforcement.” Vance, 591 U. S., at 808.
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 off-
cial responsibility. Such an immunity is required to safeguard the inde-
pendence and effective functioning of the Executive Branch, and to en-
able the President to carry out his constitutional duties without undue
caution. At a minimum, the President must be immune from prosecu-
tion for an offcial act unless the Government can show that applying a
criminal prohibition to that act would pose no “dangers of intrusion on
the authority and functions of the Executive Branch.” Fitzgerald, 457
U. S., at 754. Pp. 613–615.
(3) As for a President's unoffcial acts, there is no immunity. Al-
though Presidential immunity is required for offcial actions to ensure
that the President's decisionmaking is not distorted by the threat of

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future litigation stemming from those actions, that concern does not
suppor
t immunity for unoffcial conduct. Clinton, 520 U. S., at 694,
and n. 19. The separation of powers does not bar a prosecution predi-
cated on the President's unoffcial acts. Pp. 615–616.
(b) The frst step in deciding whether a former President is entitled
to immunity from a particular prosecution is to distinguish his offcial
from unoffcial actions. In this case, no court thus far has drawn that
distinction, in general or with respect to the conduct alleged in particu-
lar. It is therefore incumbent upon the Court to be mindful that it is
“a court of fnal review and not frst view.” Zivotofsky v. Clinton, 566
U. S. 189, 201. Critical threshold issues in this case are how to differen-
tiate between a President's offcial and unoffcial actions, and how to do
so with respect to the indictment's extensive and detailed allegations
covering a broad range of conduct. The Court offers guidance on those
issues. Pp. 616–632.
(1) When the President acts pursuant to “constitutional and statu-
tory authority,” he takes offcial action to perform the functions of his
offce. Fitzgerald, 456 U. S., at 757. Determining whether an action is
covered by immunity thus begins with assessing the President's author-
ity to take that action. But the breadth of the President's “discretion-
ary responsibilities” under the Constitution and laws of the United
States frequently makes it “diffcult 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 offcial responsibilities, covering actions so
long as they are “not manifestly or palpably beyond [his] authority.”
Blassingame v. Trump, 87 F. 4th 1, 13 (CADC).
In dividing offcial from unoffcial conduct, courts may not inquire into
the President's motives. Such a “highly intrusive” inquiry would risk
exposing even the most obvious instances of offcial conduct to judicial
examination on the mere allegation of improper purpose. Fitzgerald,
457 U. S., at 756. Nor may courts deem an action unoffcial merely be-
cause it allegedly violates a generally applicable law. Otherwise, Presi-
dents would be subject to trial on “every allegation that an action was un-
lawful,” depriving immunity of its intended effect. Ibid. Pp. 617–619.
(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 offcial rela-
tionship to the offce held by that individual. Other allegations—such
as those involving Trump's interactions with the Vice President, state
offcials, and certain private parties, and his comments to the general
public—present more diffcult questions. Pp. 619–630.

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(i) The indictment alleges that as part of their conspiracy to over-
tur
n the legitimate results of the 2020 Presidential election, Trump and
his co-conspirators 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. According to
the indictment, Trump met with the Acting Attorney General and other
senior Justice Department and White House offcials to discuss investi-
gating purported election fraud and sending a letter from the Depart-
ment to those States regarding such fraud. The indictment further al-
leges that after the Acting Attorney General resisted 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 offcial power.
The allegations in fact plainly implicate Trump's “conclusive and preclu-
sive” authority. The Executive Branch has “exclusive authority and
absolute discretion” to decide which crimes to investigate and prosecute,
including with respect to allegations of election crime. Nixon, 418
U. S., at 693. And 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. The
indictment's allegations that the requested investigations were shams
or proposed for an improper purpose do not divest the President of ex-
clusive authority over the investigative and prosecutorial functions of
the Justice Department and its offcials. Because the President can-
not be prosecuted for conduct within his exclusive constitutional author-
ity, Trump is absolutely immune from prosecution for the alleged con-
duct involving his discussions with Justice Department offcials.
Pp. 619–621.
( i i) The i ndic tment next a l leges that Tr ump and h is co-
conspirators “attempted to enlist the Vice President to use his ceremo-
nial role at the January 6 certifcation proceeding to fraudulently alter
the election results.” App. 187, Indictment ¶10(d). In particular, the
indictment alleges several conversations in which Trump pressured the
Vice President to reject States' legitimate electoral votes or send them
back to state legislatures for review.
Whenever the President and Vice President discuss their offcial re-
sponsibilities, they engage in offcial conduct. Presiding over the Janu-
ary 6 certifcation proceeding at which Members of Congress count the
electoral votes is a constitutional and statutory duty of the Vice Presi-
dent. Art. II, § 1, cl. 3; Amdt. 12; 3 U. S. C. § 15. The indictment's alle-
gations that Trump attempted to pressure the Vice President to take
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UMP v. UNITED STATES
Syllabus
thus involve offcial conduct, and Trump is at least presumptively im-
mune
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 frst instance whether a prosecution
involving Trump's alleged attempts to infuence the Vice President's
oversight of the certifcation proceeding would pose any dangers of
intrusion on the authority and functions of the Executive Branch.
Pp. 621–625.
(iii) The indictment's remaining allegations involve Trump's in-
teractions with persons outside the Executive Branch: state offcials,
private parties, and the general public. In particular, the indictment
alleges that Trump and his co-conspirators attempted to convince cer-
tain state offcials 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 offcials to alter their state processes, he and his co-conspirators al-
legedly developed and effectuated a plan to submit fraudulent slates of
Presidential electors to obstruct the certifcation proceeding. On
Trump's view, the alleged conduct qualifes as offcial because it was
undertaken to ensure the integrity and proper administration of the
federal election. As the Government sees it, however, Trump can point
to no plausible source of authority enabling the President to take such ac-
tions. Determining whose characterization may be correct, and with re-
spect to which conduct, requires a fact-specifc analysis of the indictment's
extensive and interrelated allegations. The Court accordingly remands
to the District Court to determine in the frst instance whether Trump's
conduct in this area qualifes as offcial or unoffcial. Pp. 625–628.
(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 “extraordi-
nary power to speak to his fellow citizens and on their behalf.” Trump
v. Hawaii, 585 U. S. 667, 701. So most of a President's public communi-
cations are likely to fall comfortably within the outer perimeter of his
offcial responsibilities. There may, however, be contexts in which the
President speaks in an unoffcial capacity—perhaps as a candidate for
offce or party leader. To the extent that may be the case, objective
analysis of “content, form, and context” will necessarily inform the in-
quiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the communica-
tions alleged in the indictment involve offcial conduct may depend on
the content and context of each. This necessarily factbound analysis is

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best performed initially by the District Court. The Court therefore
remands
to the District Court to determine in the frst instance whether
this alleged conduct is offcial or unoffcial. Pp. 628–630.
(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 immune
from prosecution. And the parties and the District Court must ensure
that suffcient allegations support the indictment's charges without such
conduct. Testimony or private records of the President or his advisers
probi ng such conduc t may not be admitted as ev idence at tr ia l.
Pp. 630–632.
(c) Trump asserts a far broader immunity than the limited one the
Court recognizes, contending that the indictment must be dismissed be-
cause the Impeachment Judgment Clause requires that impeachment
and Senate conviction precede a President's criminal prosecution. 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 con-
cerned 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 po-
litical process of impeachment into a necessary step in the enforcement
of criminal law fnds little support in the text of the Constitution or the
structure of the Nation's Government. Pp. 632–634.
(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 suffce 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 particular actions,
consistent with the separation of powers, must be addressed at the out-
set of a proceeding. Even if the President were ultimately not found
liable for certain offcial actions, the possibility of an extended proceed-
ing alone may render him “unduly cautious in the discharge of his offcial
duties.” Fitzgerald, 457 U. S., at 752, n. 32. The Constitution does not
tolerate such impediments to “the effective functioning of government.”
Id., at 751. Pp. 634–637.
(e) This case poses a question of lasting signifcance: When may a
former President be prosecuted for offcial acts taken during his Presi-
dency? In answering that question, unlike the political branches and
the public at large, the Court cannot afford to fxate exclusively, or even

600 TR
UMP v. UNITED STATES
Syllabus
primarily, on present exigencies. Enduring separation of powers prin-
ciples
guide our decision in this case. The President enjoys no immu-
nity for his unoffcial acts, and not everything the President does is
offcial. 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 presumptive
immunity from prosecution for his offcial acts. That immunity applies
equally to all occupants of the Oval Offce. Pp. 641–642.
91 F. 4th 1173, vacated and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, and Kavanaugh, JJ., joined in full, and in which Bar-
rett, J., joined except as to Part III–C. Thomas, J., fled a concurring
opinion, post, p. 643. Barrett, J., fled an opinion concurring in part,
post, p. 650. Sotomayor, J., fled a dissenting opinion, in which Kagan
and Jackson, JJ., joined, post, p. 657. Jackson, J., fled a dissenting opin-
ion, post, p. 686.
D. John Sauer argued the cause for petitioner. With him
on the briefs were William O. Scharf, Michael E. Talent,
Kenneth C. Capps, John F. Lauro, and Gregory M. Singer.
Michael R. Dreeben argued the cause for the United
States. With him on the brief were Jack L. Smith, J.
P. Cooney, and James I. Pearce.*
*Briefs of amici curiae urging reversal were fled for the State of Ala-
bama et al. by Steve Marshall, Attorney General of Alabama, Edmund G.
LaCour, Jr., Solicitor General, Robert M. Overing, Deputy Solicitor Gen-
eral, and Dylan Mauldin, Assistant Solicitor General, and by the Attor-
neys General for their respective States as follows: Ashley Moody of Flor-
ida, Raúl R. Labrador of Idaho, Theodore E. Rokita of Indiana, Brenna
Bird of Iowa, Kris Kobach of Kansas, Liz Murrill of Louisiana, Lynn
Fitch of Mississippi, Andrew Bailey of Missouri, Austin Knudsen of Mon-
tana, Michael T. Hilgers of Nebraska, Drew Wrigley of North Dakota,
Gentner Drummond of Oklahoma, Alan Wilson of South Carolina, Marty
J. Jackley of South Dakota, Ken Paxton of Texas, Sean D. Reyes of Utah,
and Patrick Morrisey of West Virginia; for the American Center for Law
and Justice by Jay Alan Sekulow, Jordan A. Sekulow, Stuart J. Roth,
Andrew J. Ekonomou, Jane Serene Raskin, Walter M. Weber, and Benja-
min P. Sisney; for the Christian Family Coalition (CFC) Florida, Inc., by
Dennis Grossman; for the Coolidge Reagan Foundation et al. by Dan
Backer; for the Kansas Republican Party by Craig L. Uhrich; for the
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601
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
This case concerns the federal indictment of a former Pres-
ident of the United States for conduct alleged to involve off-
United States Justice Foundation et al. by Chad D. Morgan and James V.
Lacy; for Sen. Steve Daines et al. by Jonathan P. Lienhard, Andrew B.
Pardue, Andrew D. Watkins, and Jessica Furst Johnson; and for Sen.
Roger Marshall et al. by Judd E. Stone II, Ari Cuenin, Gene P. Hamilton,
and Daniel Epstein.
Briefs of amici curiae urging vacatur were fled for Former Attorney
General Edwin Meese III et al. by Gene C. Schaerr, Michael Boos, and
Daniel H. Jorjani; and for Three Former Senior Military Offcers et al. by
H. Christopher Bartolomucci, Pamela Jo Bondi, Jessica Hart Steinmann,
and Michael D. Berry.
Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by David D. Cole, Brett Max Kaufman, Cecil-
lia D. Wang, Scott Michelman, and Arthur B. Spitzer; for the Citizens
Equal Rights Foundation by Lawrence A. Kogan; for Citizens for Respon-
sibility and Ethics in Washington by Jonathan Maier, Nikhel Sus, Donald
K. Sherman, and Noah Bookbinder; for Former Government Offcials
et al. by Seth P. Waxman, Todd C. Zubler, Colleen M. Campbell, Nathan-
iel W. Reisinger, Fred Wertheimer, and Matthew A. Seligman; for the
Leadership Now Project by P. Benjamin Duke; for Public Citizen by Scott
L. Nelson and Allison M. Zieve; for Retired Four-Star Admirals et al. by
Kathleen R. Hartnett, Adam Gershenson, Mikhaila Fogel, and Maureen
Alger; for Scholars of Constitutional Law by Elizabeth B. Wydra and Bri-
anne J. Gorod; for Scholars of the Founding Era by Lawrence S. Robbins,
Katherine L. Pringle, and Thomas P. Wol f; for Jeremy Bates, pro se; for
John Danforth et al. by Richard D. Bernstein, pro se; for G. Antaeus B.
Edelsohn by Joan Deborah B. Edelsohn; for Martin S. Lederman, pro se;
and for Stephen R. McAllister et al. by Erik S. Jaffe.
Briefs of amici curiae were fled for the State of Ohio et al. by Dave
Yost, Attorney General of Ohio, and Michael J. Hendershot, Chief Deputy
Solicitor General, Treg R. Taylor, Attorney General of Alaska, and Bridget
Hill, Attorney General of Wyoming; for America's Future et al. by Wil-
liam J. Olson, Jeremiah L. Morgan, Robert J. Olson, John I. Harris III,
Phillip L. Jauregui, and Patrick M. McSweeney; for Common Cause by
Gregory L. Diskant, Jonah Knobler, and Kathay Feng; for Condemned
USA by George T. Pallas; for Former U. S. Attorney General John D.
Ashcroft et al. by Mark F. (Thor) Hearne II and Stephen S. Davis; for
Former White House Chief of Staff Mark R. Meadows by George J. Terwil-

602 TR
UMP v. UNITED STATES
Opinion of the Court
cial acts during his tenure in offce. We consider the scope
of
a President's immunity from criminal prosecution.
I
From January 2017 until January 2021, Donald J. Trump
served as President of the United States. On August 1,
2023, a federal grand jury indicted him on four counts for
conduct that occurred during his Presidency following the
November 2020 election. The indictment alleged that after
losing that election, Trump conspired to overturn it by
spreading knowingly false claims of election fraud to ob-
struct the collecting, counting, and certifying of the election
results.
According to the indictment, Trump advanced his goal
through five pr i mary means. First, he and h is co-
conspirators “used knowingly false claims of election fraud to
get state legislators and election offcials to . . . change elec-
toral votes for [Trump's] opponent, Joseph R. Biden, Jr., to
electoral votes for [Trump].” App. 185, Indictment ¶10(a).
Second, Trump and his co-conspirators “organized fraudulent
slates of electors in seven targeted states” and “caused these
fraudulent electors to transmit their false certifcates to the
Vice President and other government offcials to be counted
at the certifcation proceeding on January 6.” Id., at 186,
¶10(b). Third, Trump and his co-conspirators attempted to
use the Justice Department “to conduct sham election crime
investigations and to send a letter to the targeted states that
falsely claimed that the Justice Department had identifed
signifcant concerns that may have impacted the election out-
liger III, John S. Moran, and Michael L. Francisco; for the Guardian
Defense Fund, Inc., by George R. Wentz, Jr., Allen J. Shoff, and Mauricio
Cardona; for the Puerto Rico House of Representatives by Emil
Rodríguez Escudero and Jorge Martínez Luciano; for David Boyle, pro se;
for Claire Finkelstein et al. by Richard W. Painter, pro se; for Gavin M.
Wax et al. by Edward Andrew Paltzik and Serge Krimnus; and for Mat-
thew D. Wilson, pro se.
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Opinion of the Court
come.” Id., at 186–187, ¶10(c). Fourth, Trump and his co-
conspirators
attempted to persuade “the Vice President to
use his ceremonial role at the January 6 certifcation pro-
ceeding to fraudulently alter the election results.” Id., at
187, ¶10(d). And when that failed, on the morning of Janu-
ary 6, they “repeated knowingly false claims of election fraud
to gathered supporters, falsely told them that the Vice Presi-
dent had the authority to and might alter the election re-
sults, and directed them to the Capitol to obstruct the certi-
fcation proceeding.” Ibid. Fifth, when “a large and angry
crowd . . . violently attacked the Capitol and halted the pro-
ceeding,” Trump and his co-conspirators “exploited the dis-
ruption by redoubling efforts to levy false claims of election
fraud and convince Members of Congress to further delay
the certifcation.” Id., at 187–188, ¶10(e).
Based on this alleged conduct, the indictment charged
Trump with (1) conspiracy to defraud the United States in
violation of 18 U. S. C. § 371, (2) conspiracy to obstruct an
offcial proceeding in violation of § 1512(k), (3) obstruction of
and attempt to obstruct an offcial proceeding in violation of
§ 1512(c)(2), § 2, and (4) conspiracy against rights in violation
of § 241.
1
Trump moved to dismiss the indictment based on 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 adminis-
tration of the federal election”; (2) communicated with senior
Justice Department offcials “about investigating election
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 offcial proceeding of
records, documents, objects, or . . . other things used in the proceeding.”
603 U. S. 480, 498 (2024). If necessary, the District Court should deter-
mine in the frst instance whether the Section 1512(c)(2) charges may pro-
ceed in light of our decision in Fischer.
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UMP v. UNITED STATES
Opinion of the Court
fraud and about choosing the leadership” of the Department;
(3)
“communicated with state offcials about the administra-
tion of the federal election and their exercise of offcial duties
with respect to it”; (4) “communicated with the Vice Presi-
dent” and with “Members of Congress about the exercise of
their offcial duties regarding the election certifcation”; and
(5) “authorized or directed others to organize contingent
slates of electors in furtherance of his attempts to convince
the Vice President to exercise his offcial authority in a man-
ner advocated for by President Trump.” Motion To Dismiss
Indictment Based on Presidential Immunity in No. 1:23–cr–
00257 (DC), ECF Doc. 74, p. 9. Trump argued that all of
the indictment's allegations fell within the core of his offcial
duties. Id., at 27. And he contended that a President has
absolute immunity from criminal prosecution for actions per-
formed within the outer perimeter of his offcial responsibil-
ities, to ensure that he can undertake the especially sensitive
duties of his offce with bold and unhesitating action. Id., at
14, 24.
The District Court denied the motion to dismiss, holding
that “former Presidents do not possess absolute federal crim-
inal immunity for any acts committed while in offce.” 704
F. Supp. 3d 196, 220 (DC 2023). The District Court recog-
nized that the President is immune from damages liability in
civil cases, to protect against the chilling effect such expo-
sure might have on the carrying out of his responsibilities.
See Nixon v. Fitzgerald, 457 U. S. 731, 749–756 (1982). But
it reasoned that “the possibility of vexatious post-Presidency
litigation is much reduced in the criminal context” in light
of “[t]he robust procedural safeguards attendant to federal
criminal prosecutions.” 704 F. Supp. 3d, at 213–214. The
District Court declined to decide whether the indicted con-
duct involved offcial acts. See id., at 220.
The D. C. Circuit affrmed. 91 F. 4th 1173 (2024) (per cu-
riam). Citing Marbury v. Madison, 1 Cranch 137 (1803),
the court distinguished between two kinds of offcial acts:
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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 offcer is directed to per-
form by the legislature. Ibid. (quoting Marbury, 1 Cranch,
at 166). From this distinction, the D. C. Circuit concluded
that the “separation of powers doctrine, as expounded in
Marbury and its progeny, necessarily permits the Judiciary
to oversee the federal criminal prosecution of a former Presi-
dent for his offcial acts because the fact of the prosecution
means that the former President has allegedly acted in def-
ance of the Congress's laws.” 91 F. 4th, at 1191. In the
court's view, the fact that Trump's actions “allegedly violated
generally applicable criminal laws” meant that those actions
“were not properly within the scope of his lawful discretion.”
Id., at 1192. The D. C. Circuit thus concluded that Trump
had “no structural immunity from the charges in the Indict-
ment.” Ibid. Like the District Court, the D. C. Circuit de-
clined to analyze the actions described in the indictment to
determine whether they involved offcial 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 offcial acts during his tenure in
offce.” 601 U. S. ––– (2024).
II
This case is the frst criminal prosecution in our Nation's
history of a former President for actions taken during his
Presidency. We are called upon to consider whether and
under what circumstances such a prosecution may proceed.
Doing so requires careful assessment of the scope of Presi-
dential 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,”
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but must instead focus on the “enduring consequences upon
the
balanced power structure of our Republic.” Youngs-
town Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634 (1952)
(Jackson, J., concurring).
The parties before us do not dispute that a former Presi-
dent can be subject to criminal prosecution for unoffcial acts
committed while in offce. See Tr. of Oral Arg. 28. They
also agree that some of the conduct described in the indict-
ment includes actions taken by Trump in his unoffcial capac-
ity. See id., at 28–30, 36–37, 125.
They disagree, however, about whether a former President
can be prosecuted for his offcial actions. Trump contends
that just as a President is absolutely immune from civil dam-
ages liability for acts within the outer perimeter of his off-
cial responsibilities, Fitzgerald, 457 U. S., at 756, he must be
absolutely immune from criminal prosecution for such acts.
Brief for Petitioner 10. And Trump argues that the bulk
of the indictment's allegations involve conduct in his offcial
capacity as President. See Tr. of Oral Arg. 30–32. Al-
though the Government agrees that some offcial actions are
included in the indictment's allegations, see id., at 125, it
maintains that a former President does not enjoy immunity
from criminal prosecution for any actions, regardless of how
they are characterized. See Brief for United States 9.
We conclude that under our constitutional structure of sep-
arated powers, the nature of Presidential power requires
that a former President have some immunity from criminal
prosecution for offcial acts during his tenure in offce. At
least with respect to the President's exercise of his core con-
stitutional powers, this immunity must be absolute. As for
his remaining offcial actions, he is also entitled to immunity.
At the current stage of proceedings in this case, however, we
need not and do not decide whether that immunity must be
absolute, or instead whether a presumptive immunity is
suffcient.
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A
Ar
ticle 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, 591
U. S. 786, 800 (2020). They include, for instance, command-
ing the Armed Forces of the United States; granting re-
prieves and pardons for offenses against the United States;
and appointing public ministers and consuls, the Justices of
this Court, and Offcers 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 international
diplomacy and intelligence gathering, and managing matters
related to terrorism, trade, and immigration. See §§ 2, 3.
Domestically, he must “take Care that the Laws be faithfully
executed,” § 3, and he bears responsibility for the actions of
the many departments and agencies within the Executive
Branch. He also plays a role in lawmaking by recommend-
ing to Congress the measures he thinks wise and signing
or vetoing the bills Congress passes. See Art. I, § 7, cl. 2;
Art. II, § 3.
No matter the context, the President's authority to act
necessarily “stem[s] either from an act of Congress or from
the Constitution itself.” Youngstown, 343 U. S., at 585. In
the latter case, the President's authority is sometimes “con-
clusive and preclusive.” Id., at 638 (Jackson, J., concurring).
When the President exercises such authority, he may act
even when the measures he takes are “incompatible with the
expressed or implied will of Congress.” Id., at 637. The ex-
clusive constitutional authority of the President “disabl[es] the
Congress from acting upon the subject.” Id., at 637–638.
And the courts have “no power to control [the President's] dis-
cretion” when he acts pursuant to the powers invested exclu-
sively in him by the Constitution. Marbury, 1 Cranch, at 166.
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If the President claims authority to act but in fact exer-
cises
mere “individual will” and “authority without law,” the
courts may say so. Youngstown, 343 U. S., at 655 (Jack-
son, J., concurring). In Youngstown, for instance, we held
that President Truman exceeded his constitutional authority
when he seized most of the Nation's steel mills. See id., at
582–589 (majority opinion). But once it is determined that
the President acted within the scope of his exclusive author-
ity, his discretion in exercising such authority cannot be sub-
ject 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, and later President
Johnson, offered a full pardon, with restoration of property
rights, to anyone who had “engaged in the rebellion” but
agreed to take an oath of allegiance to the Union. United
States v. Klein, 13 Wall. 128, 139–141 (1872). But in 1870,
Congress enacted a provision that prohibited using the Pres-
ident's pardon as evidence of restoration of property rights.
Id., at 143–144. Chief Justice Chase held the provision un-
constitutional because it “impair[ed] the effect of a pardon,
and thus infring[ed] the constitutional power of the Execu-
tive.” Id., at 147. “To the executive alone is intrusted the
power of pardon,” and the “legislature cannot change the
effect of such a pardon any more than the executive can
change a law.” Id., at 147–148. The President's authority
to pardon, in other words, is “conclusive and preclusive,”
“disabling the Congress from acting upon the subject.”
Youngstown, 343 U. S., at 637–638 (Jackson, J., concurring).
Some of the President's other constitutional powers also
ft that description. “The President's power to remove—
and thus supervise—those who wield executive power on his
behalf,” for instance, “follows from the text of Article II.”
Seila Law LLC v. Consumer Financial Protection Bureau,
591 U. S. 197, 204 (2020). We have thus held that Congress
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lacks authority to control the President's “unrestricted
power
of removal” with respect to “executive offcers of the
United States whom he has appointed.” Myers v. United
States, 272 U. S. 52, 106, 176 (1926); see Youngstown, 343
U. S., at 638, n. 4 (Jackson, J., concurring) (citing the Presi-
dent's “exclusive power of removal in executive agencies” as
an example of “conclusive and preclusive” constitutional au-
thority); cf. Seila Law, 591 U. S., at 215 (noting only “two
exceptions to the President's unrestricted removal power”).
The power “to control recognition determinations” of foreign
countries is likewise an “exclusive power of the President.”
Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015). Congressional
commands contrary to the President's recognition determi-
nations are thus invalid. Ibid.
Congress cannot act on, and courts cannot examine, the
President's actions on subjects within his “conclusive and
preclusive” constitutional authority. It follows that an Act
of Congress—either a specifc one targeted at the President
or a generally applicable one—may not criminalize the Presi-
dent's actions within his exclusive constitutional power.
Neither may the courts adjudicate a criminal prosecution
that examines such Presidential actions. We thus conclude
that the President is absolutely immune from criminal prose-
cution for conduct within his exclusive sphere of constitu-
tional authority.
B
But of course not all of the President's offcial 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 authoriza-
tion of Congress,” or in a “zone of twilight” where “he and
Congress may have concurrent authority.” 343 U. S., at 635,
637 (concurring opinion). The reasons that justify the Presi-
dent's absolute immunity from criminal prosecution for acts
within the scope of his exclusive authority therefore do not
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extend to conduct in areas where his authority is shared
w
ith Congress.
We recognize that only a limited number of our prior deci-
sions guide determination of the President's immunity in this
context. That is because proceedings directly involving a
President have been uncommon in our Nation, and “decisions
of the Court in this area” have accordingly been “rare” and
“episodic.” Dames & Moore v. Regan, 453 U. S. 654, 661
(1981). To resolve the matter, therefore, we look primarily
to the Framers' design of the Presidency within the 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 constitu-
tional scheme,” Fitzgerald, 457 U. S., at 749, as “the only
person who alone composes a branch of government,” Trump
v. Mazars USA, LLP, 591 U. S. 848, 868 (2020). The Fram-
ers “sought to encourage energetic, vigorous, decisive, and
speedy execution of the laws by placing in the hands of a
single, constitutionally indispensable, individual the ultimate
authority that, in respect to the other branches, the Consti-
tution divides among many.” Clinton v. Jones, 520 U. S.
681, 712 (1997) (Breyer, J., concurring in judgment). They
“deemed an energetic executive essential to `the protection
of the community against foreign attacks,' `the steady admin-
istration of the laws,' `the protection of property,' and `the
security of liberty.' ” Seila Law, 591 U. S., at 223–224 (quot-
ing The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Ham-
ilton)). The purpose of a “vigorous” and “energetic” Execu-
tive, they thought, was to ensure “good government,” for a
“feeble executive implies a feeble execution of the govern-
ment.” Id., at 471–472.
The Framers accordingly vested the President with “su-
pervisory and policy responsibilities of utmost discretion and
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sensitivity.” Fitzgerald, 457 U. S., at 750. He must make
“
the most sensitive and far-reaching decisions entrusted to
any offcial under our constitutional system.” Id., at 752.
There accordingly “exists the greatest public interest” in
providing the President with “ `the maximum ability to deal
fearlessly and impartially with' the duties of his offce.”
Ibid. (quoting Ferri v. Ackerman, 444 U. S. 193, 203 (1979)).
Appreciating the “unique risks to the effective functioning
of government” that arise when the President's energies are
diverted by proceedings that might render him “unduly cau-
tious in the discharge of his offcial duties,” we have recognized
Presidential immunities and privileges “rooted in the constitu-
tional tradition of the separation of powers and supported by
our history.” Fitzgerald, 457 U. S., at 749, 751, 752, n. 32.
In Nixon v. Fitzgerald, for instance, we recognized that
as “a functionally mandated incident of [his] unique offce,”
a former President “is entitled to absolute immunity from
damages liability predicated on his offcial acts.” Id., at 749.
That case involved a terminated Air Force employee who
sued former President Richard Nixon for damages, alleg-
ing that Nixon approved an Air Force reorganization that
wrongfully led to his fring. In holding that Nixon was im-
mune from that suit, “our dominant concern” was to avoid
“diversion of the President's attention during the decision-
making process caused by needless worry as to the possibil-
ity of damages actions stemming from any particular offcial
decision.” Clinton, 520 U. S., at 694, n. 19. “[T]he singular
importance of the President's duties” implicating “matters
likely to `arouse the most intense feelings,' ” coupled with
“the sheer prominence of [his] offce,” heightens the prospect
of private damages suits that would threaten such diversion.
Fitzgerald, 457 U. S., at 751–753 (quoting Pierson v. Ray,
386 U. S. 547, 554 (1967)). We therefore concluded that the
President must be absolutely immune from “damages liabil-
ity for acts within the `outer perimeter' of his offcial respon-
sibility.” Fitzgerald, 457 U. S., at 756.
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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,
25 F. Cas. 30, 34 (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 subpoena
could issue. Id., at 33–34.
Marshall acknowledged, however, the existence of a “privi-
lege” to withhold certain “offcial paper[s]” that “ought not
on light ground to be forced into public view.” United
States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807)
(Burr II); see also Burr I, 25 F. Cas., at 37 (stating that
nothing before the court showed that the document in ques-
tion “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, 418 U. S. 683, 703,
707 (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 offcials
and those who advise and assist them in the performance of
their manifold duties.” Id., at 705, 708. Because the Presi-

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dent's “need for complete candor and objectivity from advis-
ers
calls for great deference from the courts,” we held that
a “presumptive privilege” protects Presidential communica-
tions. Id., at 706, 708. That privilege, we explained, “re-
lates to the effective discharge of a President's powers.”
Id., at 711. We thus deemed it “fundamental to the opera-
tion of Government and inextricably rooted in the separation
of powers under the Constitution.” Id., at 708.
2
Criminally prosecuting a President for offcial conduct un-
doubtedly poses a far greater threat of intrusion on the au-
thority and functions of the Executive Branch than simply
seeking evidence in his possession, as in Burr and Nixon.
The danger is akin to, indeed greater than, what led us to
recognize absolute Presidential immunity from civil damages
liability—that the President would be chilled from taking the
“bold and unhesitating action” required of an independent
Executive. Fitzgerald, 457 U. S., at 745. Although the
President might be exposed to fewer criminal prosecutions
than the range of civil damages suits that might be brought
by various plaintiffs, the threat of trial, judgment, and im-
prisonment is a far greater deterrent. Potential criminal li-
ability, and the peculiar public opprobrium that attaches to
criminal proceedings, are plainly more likely to distort Presi-
dential decisionmaking than the potential payment of civil
damages.
The hesitation to execute the duties of his offce fearlessly
and fairly that might result when a President is making deci-
sions under “a pall of potential prosecution,” McDonnell v.
United States, 579 U. S. 550, 575 (2016), raises “unique risks
to the effective functioning of government,” Fitzgerald, 457
U. S., at 751. A President inclined to take one course of ac-
tion based on the public interest may instead opt for another,
apprehensive that criminal penalties may befall him upon his
departure from offce. And if a former President's offcial
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acts are routinely subjected to scrutiny in criminal prosecu-
ti
ons, “the independence of the Executive Branch” may be
signifcantly undermined. Vance, 591 U. S., at 800. The
Framers' design of the Presidency did not envision such
counterproductive burdens on the “vigor[ ]” and “energy” of
the Executive. The Federalist No. 70, at 471–472.
We must, however, “recognize[ ] the countervailing inter-
ests at stake.” Vance, 591 U. S., at 799. Federal criminal
laws seek to redress “a wrong to the public” as a whole, not
just “a wrong to the individual.” Huntington v. Attrill, 146
U. S. 657, 668 (1892). There is therefore a compelling “pub-
lic interest in fair and effective law enforcement.” Vance,
591 U. S., at 808. The President, charged with enforcing
federal criminal laws, is not above them.
Chief Justice Marshall's decisions in Burr and our decision
in Nixon recognized the distinct interests present in crimi-
nal prosecutions. Although Burr acknowledged that the
President's offcial papers may be privileged and publicly un-
available, it did not grant him an absolute exemption from
responding to subpoenas. See Burr II, 25 F. Cas., at 192;
Burr I, 25 F. Cas., at 33–34. Nixon likewise recognized a
strong protection for the President's confdential communica-
tions—a “presumptive privilege”—but it did not entirely ex-
empt him from providing evidence in criminal proceedings.
418 U. S., at 708.
Taking into account these competing considerations, we
conclude that the separation of powers principles explicated
in our precedent necessitate at least a presumptive immu-
nity from criminal prosecution for a President's acts within
the outer perimeter of his offcial responsibility. Such an
immunity is required to safeguard the independence and ef-
fective 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
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offcial papers and communications, id., at 711, it is certainly
necessary
when the prosecutor seeks to charge, try, and im-
prison the President himself for his offcial actions. At a
minimum, the President must therefore be immune from
prosecution for an offcial act unless the Government can
show that applying a criminal prohibition to that act would
pose no “dangers of intrusion on the authority and functions
of the Executive Branch.” Fitzgerald, 457 U. S., at 754.
But as we explain below, the current stage of the pro-
ceedings in this case does not require us to decide whether
this immunity is presumptive or absolute. See Part III–B,
infra. Because we need not decide that question today, we
do not decide it. “[O]ne case” in more than “two centuries
does not afford enough experience” to defnitively and com-
prehensively determine the President's scope of immunity
from criminal prosecution. Mazars, 591 U. S., at 871.
C
As for a President's unoffcial acts, there is no immunity.
The principles we set out in Clinton v. Jones confrm as
much. When Paula Jones brought a civil lawsuit against
then-President Bill Clinton for acts he allegedly committed
prior to his Presidency, we rejected his argument that he
enjoyed temporary immunity from the lawsuit while serving
as President. 520 U. S., at 684. Although Presidential im-
munity is required for offcial 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 unoffcial conduct. Id., at
694, and n. 19. The “ `justifying purposes' ” of the immunity
we recognized in Fitzgerald, and the one we recognize today,
are not that the President must be immune because he is the
President; rather, they are to ensure that the President can
undertake his constitutionally designated functions effec-
tively, free from undue pressures or distortions. 520 U. S.,
at 694, and n. 19 (quoting Fitzgerald, 457 U. S., at 755). “[I]t
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[is] the nature of the function performed, not the identity
of
the actor who perform[s] it, that inform[s] our immunity
analysis.” Forrester v. White, 484 U. S. 219, 229 (1988).
The separation of powers does not bar a prosecution predi-
cated on the President's unoffcial acts.
2
III
Determining whether a former President is entitled to im-
munity from a particular prosecution requires applying the
principles we have laid out to his conduct at issue. The frst
step is to distinguish his offcial from unoffcial actions. In
this case, however, no court has thus far considered how to
draw that distinction, in general or with respect to the con-
duct alleged in particular.
Despite the unprecedented nature of this case, and the
very signifcant 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 cate-
gorized as offcial and which unoffcial. 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,
2
Our decision in Clinton permitted claims alleging unoffcial acts to pro-
ceed against the sitting President. See 520 U. S., at 684. In the criminal
context, however, the Justice Department “has long recognized” that “the
separation of powers precludes the criminal prosecution of a sitting Presi-
dent.” Brief for United States 9 (citing A Sitting President's Amenability
to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000); emphasis
deleted); see Tr. of Oral Arg. 78.
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less than fve months after we granted the Government's re-
quest
to construe Trump's emergency application for a stay
as a petition for certiorari, grant that petition, and answer
the consequential immunity question. See 601 U. S., at –––.
Given all these circumstances, it is particularly incumbent
upon us to be mindful of our frequent admonition that “[o]urs
is a court of fnal review and not frst view.” Zivotofsky v.
Clinton, 566 U. S. 189, 201 (2012) (internal quotation marks
omitted).
Critical threshold issues in this case are how to differenti-
ate between a President's offcial and unoffcial actions, and
how to do so with respect to the indictment's extensive and
detailed allegations covering a broad range of conduct. We
offer guidance on those issues below. Certain allegations—
such as those involving Trump's discussions with the Acting
Attorney General—are readily categorized in light of the na-
ture of the President's offcial relationship to the offce held
by that individual. Other allegations—such as those involv-
ing Trump's interactions with the Vice President, state off-
cials, and certain private parties, and his comments to the
general public—present more diffcult questions. Although
we identify several considerations pertinent to classifying
those allegations and determining whether they are subject
to immunity, that analysis ultimately is best left to the lower
courts to perform in the frst instance.
A
Distinguishing the President's offcial actions from his un-
offcial ones can be diffcult. When the President acts pur-
suant to “constitutional and statutory authority,” he takes
offcial action to perform the functions of his offce. Fitzger-
ald, 457 U. S., at 757. Determining whether an action is
covered by immunity thus begins with assessing the Presi-
dent's authority to take that action.
But the breadth of the President's “discretionary responsi-
bilities” under the Constitution and laws of the United States
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UMP v. UNITED STATES
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“in a broad variety of areas, many of them highly sensitive,”
frequently
makes it “diffcult to determine which of [his]
innumerable `functions' encompassed a particular action.”
Id., at 756. And some Presidential conduct—for example,
speaking to and on behalf of the American people, see Trump
v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as
offcial even when not obviously connected to a particular
constitutional or statutory provision. For those reasons, the
immunity we have recognized extends to the “outer perime-
ter” of the President's offcial responsibilities, covering ac-
tions so long as they are “not manifestly or palpably beyond
[his] authority.” Blassingame v. Trump, 87 F. 4th 1, 13
(CADC 2023) (internal quotation marks omitted); see Fitz-
gerald, 457 U. S., at 755–756 (noting that we have “refused
to draw func ti ona l l i nes fi ner than h istory and reason
would support”).
In dividing offcial from unoffcial conduct, courts may not
inquire into the President's motives. Such an inquiry would
risk exposing even the most obvious instances of offcial con-
duct to judicial examination on the mere allegation of im-
proper purpose, thereby intruding on the Article II interests
that immunity seeks to protect. Indeed, “[i]t would seri-
ously cripple the proper and effective administration of pub-
lic affairs as entrusted to the executive branch of the govern-
ment” if “[i]n exercising the functions of his offce,” the
President was “under an apprehension that the motives that
control his offcial conduct may, at any time, become the
subject of inquiry.” Fitzgerald, 457 U. S., at 745 (quoting
Spalding v. Vilas, 161 U. S. 483, 498 (1896)). We thus re-
jected such inquiries in Fitzgerald. The plaintiff there con-
tended that he was dismissed from the Air Force for retalia-
tory reasons. See 457 U. S., at 733–741, 756. The Air Force
responded that the reorganization that led to Fitzgerald's
dismissal was undertaken to promote effciency. Ibid. Be-
cause under Fitzgerald's theory “an inquiry into the Presi-
dent's motives could not be avoided,” we rejected the theory,

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observing that “[i]nquiries of this kind could be highly intru-
sive
.” Id., at 756. “[B]are allegations of malice should not
suffce to subject government offcials either to the costs of
trial or to the burdens of broad-reaching discovery.” Har-
low v. Fitzgerald, 457 U. S. 800, 817–818 (1982).
Nor may courts deem an action unoffcial merely because it
allegedly violates a generally applicable law. For instance,
when Fitzgerald contended that his dismissal violated vari-
ous congressional statutes and thus rendered his discharge
“outside the outer perimeter of [Nixon's] duties,” we re-
jected that contention. 457 U. S., at 756. Otherwise, Presi-
dents would be subject to trial on “every allegation that an
action was unlawful,” depriving immunity of its intended ef-
fect. 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 con-
gressional proceeding at which electoral votes are counted
and certifed, and the winner of the election is certifed as
President-elect. Id., at 181–185, ¶¶4, 7, 9. As part of
this conspiracy, Trump and his co-conspirators allegedly at-
tempted to leverage the Justice Department's power and au-
thority to convince certain States to replace their legitimate
electors with Trump's fraudulent slates of electors. See id.,
at 215–220, ¶¶70–85. According to the indictment, Trump
met with the Acting Attorney General and other senior Jus-
tice Department and White House offcials to discuss investi-
gating purported election fraud and sending a letter from
the Department to those States regarding such fraud. See,
e. g., id., at 217, 219–220, ¶¶77, 84. The indictment further
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UMP v. UNITED STATES
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alleges that after the Acting Attorney General resisted
Tr
ump'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 al-
legations regarding the Justice Department involve Trump's
“use of offcial 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 quintessen-
tially executive function.” Brief for United States 19 (quot-
ing Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J.,
dissenting)). And the Executive Branch has “exclusive au-
thority and absolute discretion” to decide which crimes to
investigate and prosecute, including with respect to allega-
tions of election crime. Nixon, 418 U. S., at 693; see United
States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article
II, the Executive Branch possesses authority to decide `how
to prioritize and how aggressively to pursue legal actions
against defendants who violate the law.' ” (quoting Trans-
Union LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The
President may discuss potential investigations and prosecu-
tions with his Attorney General and other Justice Depart-
ment offcials to carry out his constitutional duty to “take
Care that the Laws be faithfully executed.” Art. II, § 3.
And the Attorney General, as head of the Justice Depart-
ment, acts as the President's “chief law enforcement offcer”
who “provides vital assistance to [him] in the performance
of [his] constitutional duty to `preserve, protect, and defend
the Constitution.' ” Mitchell v. Forsyth, 472 U. S. 511, 520
(1985) (quoting Art. II, § 1, cl. 8).
Investigative and prosecutorial decisionmaking is “the
special province of the Executive Branch,” Heckler v. Cha-
ney, 470 U. S. 821, 832 (1985), and the Constitution vests the
entirety of the executive power in the President, Art. II, § 1.
For that reason, Trump's threatened removal of the Acting
Attorney General likewise implicates “conclusive and pre-
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clusive” Presidential authority. As we have explained, the
President'
s power to remove “executive offcers of the
United States whom he has appointed” may not be regulated
by Congress or reviewed by the courts. Myers, 272 U. S.,
at 106, 176; see supra, at 608–609. The President's “man-
agement of the Executive Branch” requires him to have “un-
restricted power to remove the most important of his subor-
dinates”—such as the Attorney General—“in their most
important duties.” Fitzgerald, 457 U. S., at 750 (internal
quotation marks and alteration omitted).
The indictment's allegations that the requested investiga-
tions 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 offcials. App. 186–187, Indictment ¶10(c).
And the President cannot be prosecuted for conduct within
his exclusive constitutional authority. Trump is therefore
absolutely immune from prosecution for the alleged conduct
involving his discussions with Justice Department offcials.
2
The i ndic tment next a l leges that Tr ump and h is co-
conspirators “attempted to enlist the Vice President to use
his ceremonial role at the January 6 certifcation proceeding
to fraudulently alter the election results.” Id., at 187,
¶10(d). In particular, the indictment alleges several conver-
sations in which Trump pressured the Vice President to re-
ject States' legitimate electoral votes or send them back to
state legislatures for review. See, e. g., id., at 222–224, 226,
¶¶90, 92–93, 97.
The Government explained at oral argument that although
it “has not yet had to come to grips with how [it] would
analyze” Trump's interactions with the Vice President, there
is “support” to characterize that conduct as offcial. Tr. of
Oral Arg. 128. Indeed, our constitutional system anticipates
that the President and Vice President will remain in close
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UMP v. UNITED STATES
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contact regarding their offcial duties over the course of the
President'
s term in offce. These two offcials are the only
ones “elected by the entire Nation.” Seila Law, 591 U. S.,
at 224; see Art. II, § 1. The Constitution provides that “the
Vice President shall become President” in the case of “the
removal of the President from offce or of his death or resig-
nation.” Amdt. 25, § 1. It also “empowers the Vice Presi-
dent, together with a majority of the `principal offcers of the
executive departments,' to declare the President `unable to
discharge the powers and duties of his offce.' ” Freytag v.
Commissioner, 501 U. S. 868, 886–887 (1991) (quoting Amdt.
25, § 4). And Article I of course names the Vice President
as President of the Senate and gives him a tiebreaking vote.
§ 3, cl. 4. It is thus important for the President to discuss
offcial matters with the Vice President to ensure continuity
within the Executive Branch and to advance the President's
agenda in Congress and beyond.
The Vice President may in practice also serve as one of
the President's closest advisers. The Offce of Legal Coun-
sel has explained that within the Executive Branch, the Vice
President's “sole function [is] advising and assisting the Pres-
ident.” Whether the Offce 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 differ-
ent parties.” Ray v. Blair, 343 U. S. 214, 224, n. 11 (1952).
The President and Vice President together “are the senior
offcials of the Executive Branch of government” and there-
fore “must formulate, explain, advocate, and defend policies”
of the President's administration. Payment of Expenses As-
sociated 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
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Opinion of the Court
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 cabi-
net meetings while Wilson was in France negotiating ” the
Treaty of Versailles after World War I. H. Relyea, The
Law: The Executive Offce of the Vice President: Constitu-
tional and Legal Considerations, 40 Presidential Studies Q.
327, 328 (2010). During President Franklin Roosevelt's ad-
ministration, the Vice President “became a regular partici-
pant in cabinet deliberations—a practice that was continued
by each succeeding president.” Ibid. And when President
Dwight Eisenhower “suffered three major illnesses while in
offce . . . 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 Presi-
dent'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
offcial responsibilities, they engage in offcial conduct. Pre-
siding over the January 6 certifcation proceeding at which
Members of Congress count the electoral votes is a constitu-
tional and statutory duty of the Vice President. Art. II, § 1,
cl. 3; Amdt. 12; 3 U. S. C. § 15. The indictment's allegations
that Trump attempted to pressure the Vice President to
take particular acts in connection with his role at the certifca-
tion proceeding thus involve offcial 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
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UMP v. UNITED STATES
Opinion of the Court
Vice President presides over the January 6 certifcation pro-
ceedi
ng, he does so in his capacity as President of the Senate.
Ibid. Despite the Vice President's expansive role of advis-
ing and assisting the President within the Executive Branch,
the Vice President's Article I responsibility of “presiding
over the Senate” is “not an `executive branch' function.”
Memorandum from L. Silberman, Deputy Atty. Gen., to R.
Burress, Offce of the President, Re: Confict of Interest
Problems Arising Out of the President's Nomination of Nel-
son A. Rockefeller To Be Vice President Under the Twenty-
Fifth Amendment to the Constitution 2 (Aug. 28, 1974).
With respect to the certifcation proceeding in particular,
Congress has legislated extensively to defne the Vice Presi-
dent's role in the counting of the electoral votes, see, e. g., 3
U. S. C. § 15, and the President plays no direct constitutional
or statutory role in that process. So the Government may
argue that consideration of the President's communications
with the Vice President concerning the certifcation proceed-
ing does not pose “dangers of intrusion on the authority and
functions of the Executive Branch.” Fitzgerald, 457 U. S.,
at 754; see supra, at 615.
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 confrming
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 pre-
sumption of immunity. We therefore remand to the District
Court to assess in the frst instance, with appropriate input
from the parties, whether a prosecution involving Trump's

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Opinion of the Court
alleged attempts to infuence the Vice President's oversight
of
the certifcation proceeding in his capacity as President of
the Senate would pose any dangers of intrusion on the au-
thority and functions of the Executive Branch.
3
The indictment's remaining allegati ons cover a broad
range of conduct. Unlike the allegations describing Trump's
communications with the Justice Department and the Vice
President, these remaining allegations involve Trump's in-
teractions with persons outside the Executive Branch: state
officials, private parties, and the general public. Many of
the remaining allegations, for instance, cover at great length
events arising out of communications that Trump and his co-
conspirators initiated with state legislators and election offi-
cials in Arizona, Georgia, Michigan, Pennsylvania, and Wis-
consin regarding those States' certification of electors. See
App. 192–207, Indictment ¶¶13–52.
Specifcally, the indictment alleges that Trump and his co-
conspirators attempted to convince those offcials that elec-
tion 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 offcials to
alter their state processes, he and his co-conspirators alleg-
edly developed a plan “to marshal individuals who would
have served as [Trump's] electors, had he won the popular
vote” in Arizona, Georgia, Michigan, Nevada, New Mexico,
Pennsylvania, and Wisconsin, “and cause those individuals
to make and send to the Vice President and Congress false
certifcations 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 certifcation proceed-
ing and set up “a fake controversy that would derail the
proper certifcation of Biden as president-elect.” Id., at
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UMP v. UNITED STATES
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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 legiti-
mate electors met in their respective jurisdictions to cast
their votes, the indictment alleges that Trump's “fraudulent
electors convened sham proceedings in the seven targeted
states to cast fraudulent electoral ballots” in his favor. Id.,
at 214, ¶66. Those ballots “were mailed to the President of
the Senate, the Archivist of the United States, and others.”
Ibid., ¶67.
At oral argument, Trump appeared to concede that at least
some of these acts—those involving “private actors” who
“helped implement a plan to submit fraudulent slates of pres-
idential electors to obstruct the certifcation proceeding ” at
the direction of Trump and a co-conspirator—entail “pri-
vate” conduct. Tr. of Oral Arg. 29–30. He later asserted,
however, that asking “the chairwoman of the Republican Na-
tional Committee . . . to gather electors” qualifes as offcial
conduct because “the organization of alternate slates of elec-
tors is based on, for example, the historical example of Presi-
dent Grant as something that was done pursuant to and
ancillary and preparatory to the exercise of ” a core Presiden-
tial power. Id., at 37; see also id., at 25 (discussing the “his-
torical precedent . . . of President Grant sending federal
troops to Louisiana and Mississippi in 1876 to make sure that
the Republican electors got certifed in those two cases,
which delivered the election to Rutherford B. Hayes”). He
also argued that it is “[a]bsolutely an offcial act for the presi-
dent to communicate with state offcials on . . . the integrity
of a federal election.” Id., at 38. The Government dis-
agreed, contending that this alleged conduct does not qualify
as “offcial conduct” but as “campaign conduct.” Id., at
124–125.
On Trump's view, the alleged conduct qualifes as offcial
because it was undertaken to ensure the integrity and
proper administration of the federal election. Of course, the
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Opinion of the Court
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
is running for re-election. Cf. Hawaii, 585 U. S., at 701.
Similarly, the President may speak on and discuss such mat-
ters with state offcials—even when no specifc federal re-
sponsibility 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 enabling
the President to not only organize alternate slates of electors
but also cause those electors—unapproved by any state off-
cial—to transmit votes to the President of the Senate for
counting at the certifcation proceeding, thus interfering
with the votes of States' properly appointed electors. In-
deed, the Constitution commits to the States the power to
“appoint” Presidential electors “in such Manner as the Legis-
lature thereof may direct.” Art. II, § 1, cl. 2; see Burroughs
v. United States, 290 U. S. 534, 544 (1934). “Article II, § 1's
appointments power,” we have said, “gives the States far-
reaching authority over presidential electors, absent some
other constitutional constraint.” Chiafalo v. Washington,
591 U. S. 578, 588–589 (2020). By contrast, the Federal Gov-
ernment's role in appointing electors is limited. Congress
may prescribe when the state-appointed electors shall meet,
and it counts and certifes their votes. Art. II, § 1, cls. 3, 4.
The President, meanwhile, plays no direct role in the proc-
ess, nor does he have authority to control the state offcials
who do. And the Framers, wary of “cabal, intrigue and cor-
ruption,” specifcally excluded from service as electors “all
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UMP v. UNITED STATES
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those who from situation might be suspected of too great
de
votion to the president in offce.” The Federalist No. 68,
at 459 (A. Hamilton); see Art. II, § 1, cl. 2.
Determining whose characterization may be correct, and
with respect to which conduct, requires a close analysis of
the indictment's extensive and interrelated allegations. See
App. 192–215, Indictment ¶¶13–69. Unlike Trump's alleged
interactions with the Justice Department, this alleged con-
duct cannot be neatly categorized as falling within a particu-
lar Presidential function. The necessary analysis is instead
fact specifc, requiring assessment of numerous alleged inter-
actions with a wide variety of state offcials and private per-
sons. And the parties' brief comments at oral argument in-
dicate that they starkly disagree on the characterization of
these allegations. The concerns we noted at the outset—
the expedition of this case, the lack of factual analysis by
the lower courts, and the absence of pertinent briefng by
the parties—thus become more prominent. We accordingly
remand to the District Court to determine in the frst in-
stance—with the beneft of briefng we lack—whether
Trump's conduct in this area qualifes as offcial or unoffcial.
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
certifcation proceeding, Trump issued a series of Tweets (to
his nearly 89 million followers) encouraging his supporters
to travel to Washington, D. C., on that day. See, e. g., App.
221, 225–227, Indictment ¶¶87–88, 96, 100. Trump and his
co-conspirators addressed the gathered public that morning,
asserting that certain States wanted to recertify their elec-
toral votes and that the Vice President had the power to
send those States' ballots back for recertifcation. Id., at
228–230, ¶¶103–104. Trump then allegedly “directed the
crowd in front of him to go to the Capitol” to pressure the
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Opinion of the Court
Vice President to do so at the certifcation proceeding. Id.,
at
228–230, ¶104. When it became public that the Vice Pres-
ident would not use his role at the certifcation proceeding
to determine which electoral votes should be counted, the
crowd gathered at the Capitol “broke through barriers cor-
doning off the Capitol grounds” and eventually “broke into
the building.” Id., at 230–231, ¶¶107, 109.
The alleged conduct largely consists of Trump's communi-
cations in the form of Tweets and a public address. The
President possesses “extraordinary power to speak to his fel-
low citizens and on their behalf.” Hawaii, 585 U. S., at 701;
cf. Lindke v. Freed, 601 U. S. 187, 191 (2024). As the sole
person charged by the Constitution with executing the laws
of the United States, the President oversees—and thus will
frequently speak publicly about—a vast array of activities
that touch on nearly every aspect of American life. Indeed,
a long-recognized aspect of Presidential power is using the
offce'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 ex-
pected to comment on those matters of public concern that
may not directly implicate the activities of the Federal Gov-
ernment—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 comfort-
ably within the outer perimeter of his offcial responsibilities.
There may, however, be contexts in which the President,
notwithstanding the prominence of his position, speaks in an
unoffcial capacity—perhaps as a candidate for offce or party
leader. To the extent that may be the case, objective analy-
sis of “content, form, and context” will necessarily inform the
inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal
quotation marks omitted). But “there is not always a clear
line between [the President's] personal and offcial affairs.”
Mazars, 591 U. S., at 868. The analysis therefore must be
fact specifc and may prove to be challenging.
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The indictment refects these challenges. It includes only
selec
t 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 offcial conduct may depend on the content
and context of each. Knowing, for instance, what else was
said contemporaneous to the excerpted communications, or
who was involved in transmitting the electronic communica-
tions and in organizing the rally, could be relevant to the
classifcation of each communication. This necessarily fact-
bound analysis is best performed initially by the District
Court. We therefore remand to the District Court to deter-
mine in the frst instance whether this alleged conduct is
offcial or unoffcial.
C
The essence of immunity “is its possessor's entitlement not
to have to answer for his conduct” in court. Mitchell, 472
U. S., at 525. Presidents therefore cannot be indicted based
on conduct for which they are immune from prosecution. As
we have explained, the indictment here alleges at least some
such conduct. See Part III–B–1, supra. On remand, the
District Court must carefully analyze the indictment's re-
maining allegations to determine whether they too involve
conduct for which a President must be immune from prosecu-
tion. And the parties and the District Court must ensure
that suffcient allegations support the indictment's charges
without such conduct.
The Government does not dispute that if Trump is entitled
to immunity for certain offcial 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 offcial acts
“for limited and specifed purposes,” and that such evidence
would “be admissible to prove, for example, [Trump's] knowl-
edge or notice of the falsity of his election-fraud claims.”
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Id., at 46, 48. That proposal threatens to eviscerate the im-
munity
we have recognized. It would permit a prosecutor
to do indirectly what he cannot do directly—invite the jury
to examine acts for which a President is immune from prose-
cution to nonetheless prove his liability on any charge. But
“ [t]he Constitution deals with substance, not shadows. ”
Cummings v. Missouri, 4 Wall. 277, 325 (1867). And the
Government's position is untenable in light of the separation
of powers principles we have outlined.
If offcial 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 unoffcial conduct, the
“intended effect” of immunity would be defeated. Fitz-
gerald, 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 unoffcial
conduct, would thereby heighten the prospect that the Presi-
dent's offcial decisionmaking will be distorted. See Clin-
ton, 520 U. S., at 694, n. 19.
The Government asserts that these weighty concerns can
be managed by the District Court through the use of “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, 386 U. S., at 554). Allowing prosecutors to ask or
suggest that the jury probe offcial acts for which the Presi-
dent is immune would thus raise a unique risk that the ju-
rors' deliberations will be prejudiced by their views of the
President's policies and performance while in offce. The
prosaic tools on which the Government would have courts
rely are an inadequate safeguard against the peculiar consti-
tutional concerns implicated in the prosecution of a former
President. Cf. Nixon, 418 U. S., at 706. Although such
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UMP v. UNITED STATES
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tools may suffce to protect the constitutional rights of indi-
v
idual criminal defendants, the interests that underlie Presi-
dential 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 Offce,
and disqualifcation to hold and enjoy any Offce of honor,
Trust or Proft under the United States.” Art. I, § 3, cl. 7.
It then specifes that “the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and
3
Justice Barrett disagrees, arguing that in a bribery prosecution, for
instance, excluding “any mention” of the offcial act associated with the
bribe “would hamstring the prosecution.” Post, at 656 (opinion concur-
ring in part); cf. post, at 681–682 (Sotomayor, J., dissenting). But of
course the prosecutor may point to the public record to show the fact that
the President performed the offcial 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 infuenced in the perform-
ance of the act. See 18 U. S. C. § 201(b)(2). What the prosecutor may not
do, however, is admit testimony or private records of the President or his
advisers probing the offcial act itself. Allowing that sort of evidence
would invite the jury to inspect the President's motivations for his offcial
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 offcial duties. Fitzgerald, 457 U. S., at 745,
756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at
618–619. And such second-guessing would “threaten the independence or
effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020).
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Punishment, according to Law.” Ibid. (emphasis added).
The
Clause both limits the consequences of an impeachment
judgment and clarifes that notwithstanding such judgment,
subsequent prosecution may proceed. By its own terms, the
Clause does not address whether and on what conduct a
President may be prosecuted if he was never impeached
and convicted.
Histor ica l ev idence l ikew ise lends l ittle suppor t to
Trump's position. For example, Justice Story reasoned that
without the Clause's clarifcation that “Indictment, Trial,
Judgment and Punishment” may nevertheless follow Senate
conviction, “it might be matter of extreme doubt, whether
. . . a second trial for the same offence could be had, either
after an acquittal, or a conviction in the court of impeach-
ments.” 2 J. Story, Commentaries on the Constitution of
the United States § 780, p. 251 (1833). James Wilson, who
served on the Committee that drafted the Clause and later
as a Justice of this Court, similarly concluded that acquittal
of impeachment charges posed no bar to subsequent prosecu-
tion. See 2 Documentary History of the Ratifcation of the
Constitution 492 (M. Jensen ed. 1976). And contrary to
Trump's contention, Alexander Hamilton did not disagree.
The Federalist Papers on which Trump relies, see Brief for
Petitioner 17–18, concerned the checks available against a
sitting President. Hamilton noted that unlike “the King of
Great-Britain,” the President “would be liable to be im-
peached” and “removed from offce,” and “would afterwards
be liable to prosecution and punishment.” The Federalist
No. 69, at 463; see also id., No. 77, at 520 (explaining that
the President is “at all times liable to impeachment, trial,
dismission from offce . . . and to the forfeiture of life and
estate by subsequent prosecution”). Hamilton did not en-
dorse or even consider whether the Impeachment Judgment
Clause immunizes a former President from prosecution.
The implication of Trump's theory is that a President who
evades impeachment for one reason or another during his
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UMP v. UNITED STATES
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term in offce can never be held accountable for his criminal
ac
ts 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 impeach
the President for his crimes, then they must forever remain
impervious to prosecution.
Impeachment is a political process by which Congress can
remove a President who has committed “Treason, Bribery,
or other high Crimes and Misdemeanors.” Art. II, § 4.
Transforming that political process into a necessary step in
the enforcement of criminal law fnds 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 author-
ity. See Tr. of Oral Arg. 133 (“[C]ore powers . . . can't be
regulated at all, like the pardon power and veto.”); see also
id., at 84–85. And it too accords protection to Presidential
conduct if subjecting that conduct to generally applicable
laws would “raise serious constitutional questions regarding
the President's authority” or cause a “possible confict with
the President's constitutional prerogatives.” Application of
28 U. S. C. § 458 to Presidential Appointments of Federal
Judges, 19 Op. OLC 350, 351–352 (1995); see Brief for United
States 26–29; Tr. of Oral Arg. 78. Indeed, the Executive
Branch has long held that view. The Offce of Legal Counsel
has recognized, for instance, that a federal statute generally
prohibiting appointments to “ `any offce or duty in any
court' ” of persons within certain degrees of consanguinity to
the judges of such courts would, if applied to the President,
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infringe his power to appoint federal judges, thereby raising
a
serious constitutional question. 19 Op. OLC, at 350 (quot-
ing 28 U. S. C. § 458); see 19 Op. OLC, at 350–352. So it
viewed such a statute as not applying to the President.
Likewise, it has narrowly construed a criminal prohibition
on grassroots lobbying to avoid the constitutional issues that
would otherwise arise, reasoning that the statute should not
“be construed to prohibit the President or executive branch
agencies from engaging in a general open dialogue with the
public on the Administration's programs and policies.” Con-
straints Imposed by 18 U. S. C. § 1913 on Lobbying Efforts,
13 Op. OLC 300, 304 (1989); see id., at 304–306.
The Government thus broadly agrees that the President's
offcial acts are entitled to some degree of constitutional pro-
tection. And with respect to the allegations in the indict-
ment before us, the Government agrees that at least some of
the alleged conduct involves offcial 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 offcial
acts. See Brief for United States 9. On the Government's
view, as-applied challenges in the course of the trial suffce
to protect Article II interests, and review of a district court's
decisions on such challenges should be deferred until after
trial. See Tr. of Oral Arg. 69, 79–80, 154–158. If the Presi-
dent is instead immune from prosecution, a district court's
denial of immunity would be appealable before trial. See
Mitchell, 472 U. S., at 524–530 (explaining that questions of
immunity are reviewable before trial because the essence of
immunity is the entitlement not to be subject to suit).
The Government asserts that the “[r]obust safeguards”
available in typical criminal proceedings alleviate the need
for pretrial review. Brief for United States 20 (boldface and
emphasis omitted). First, it points to the Justice Depart-
ment's “longstanding commitment to the impartial enforce-
ment of the law,” id., at 21, as well as the criminal justice
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system's further protections: grand juries, a defendant's pro-
cedura
l rights during trial, and the requirement that the
Government prove its case beyond a reasonable doubt, id., at
22. Next, it contends that “existing principles of statutory
construction and as-applied constitutional challenges” ade-
quately address the separation of powers concerns involved
in applying generally applicable criminal laws to a President.
Id., at 29. Finally, the Government cites certain defenses
that would be available to the President in a particular
prosecution, such as the public-authority defense or the ad-
vice of the Attorney General. Id., at 29–30; see Nardone
v. United States, 302 U. S. 379, 384 (1937); Tr. of Oral Arg.
107–108.
These safeguards, though important, do not alleviate the
need for pretrial review. They fail to address the fact that
under our system of separated powers, criminal prohibitions
cannot apply to certain Presidential conduct to begin with.
As we have explained, when the President acts pursuant to
his exclusive constitutional powers, Congress cannot—as a
structural matter—regulate such actions, and courts cannot
review them. See Part II–A, supra. And he is at least
presumptively immune from prosecution for his other offcial
actions. See Part II–B, supra.
Questions about whether the President may be held liable
for particular actions, consistent with the separation of pow-
ers, must be addressed at the outset of a proceeding. Even
if the President were ultimately not found liable for certain
offcial actions, the possibility of an extended proceeding
alone may render him “unduly cautious in the discharge of
his offcial duties.” Fitzgerald, 457 U. S., at 752, n. 32. Vul-
nerability “ `to the burden of a trial and to the inevitable
danger of its outcome, would dampen the ardor of all but the
most resolute.' ” Id., at 752–753, n. 32 (quoting Gregoire v.
Biddle, 177 F. 2d 579, 581 (CA2 1949) (L. Hand, C. J.)). The
Constitution does not tolerate such impediments to “the ef-
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fective functioning of government.” Fitzgerald, 457 U. S.,
at
751.
As for the Government's assurances that prosecutors and
grand juries will not permit political or baseless prosecutions
from advancing in the frst place, those assurances are avail-
able 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 sig-
nifcant constitutional questions based on the Government's
promises of good faith. See United States v. Stevens, 559
U. S. 460, 480 (2010) (“We would not uphold an unconstitu-
tional statute merely because the Government promised to
use it responsibly.”). Nor do we do so today.
C
As for the dissents, they strike a tone of chilling doom that
is wholly disproportionate to what the Court actually does
today—conclude that immunity extends to offcial discussions
between the President and his Attorney General, and then re-
mand to the lower courts to determine “in the frst instance”
whether and to what extent Trump's remaining alleged con-
duct is entitled to immunity. Supra, at 624–625, 628, 630.
The pr incipa l dissent's star ting premise—that unlike
Speech and Debate Clause immunity, no constitutional text
supports Presidential immunity, see post, at 660–662 (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 privi-
lege context). “[A] specifc 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
the Constitution. But there is no “ `separation of powers
clause' ” either. Seila Law, 591 U. S., at 227. Yet that doc-
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UMP v. UNITED STATES
Opinion of the Court
trine is undoubtedly carved into the Constitution's text by its
three
articles separating powers and vesting the Executive
power solely in the President. See ibid. And the Court's
prior decisions, such as Nixon and Fitzgerald, have long rec-
ognized that doctrine as mandating certain Presidential priv-
ileges and immunities, even though the Constitution contains
no explicit “provision for immunity.” Post, at 660; 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 661. But that Clause does not indicate whether a
former President may, consistent with the separation of pow-
ers, be prosecuted for his offcial conduct in particular. See
supra, at 632–633. And the assortment of historical sources
the principal dissent cites are unhelpful for the same reason.
See post, at 662–664. As the Court has previously noted,
relevant historical evidence on the question of Presidential
immunity is of a “fragmentary character.” Fitzgerald, 457
U. S., at 752, n. 31; see also Clinton, 520 U. S., at 696–697; cf.
Youngstown, 343 U. S., at 634 (Jackson, J., concurring) (not-
ing “the poverty of really useful and unambiguous authority
applicable to concrete problems of executive power”).
“[T]he most compelling arguments,” therefore, “arise from
the Constitution's separation of powers and the Judiciary's
historic understanding of that doctrine.” Fitzgerald, 457
U. S., at 752, n. 31.
The Court's prior admonition is evident in the principal
dissent's citations. Some of its cherry-picked sources do not
even discuss the President in particular. See, e. g., post,
at 633 (citing 2 Debates on the Constitution 177 (J. Elliot
ed. 1836); 2 J. Story, Commentaries on the Constitution of
the United States § 780, at 250–251). And none of them in-
dicate whether he may be prosecuted for his offcial con-

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duct. See, e. g., post, at 662, 663, n. 2 (citing The Federalist
N
o. 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 Senate
debate. See post, at 663. But those statements refect 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 reliable
authority on the separation of powers: He went on to state
on the same day that “it was wrong to give the nomination
of Judges to the President”—an opinion expressly rejected
by the Framers. Id., at 385. Given the Framers' desire for
an energetic and vigorous President, the principal dissent's
view that the Constitution they designed allows all his ac-
tions to be subject to prosecution—even the exercise of
powers it grants exclusively to him—defes credulity.
Unable to muster any meaningful textual or historical sup-
port, the principal dissent suggests that there is an “estab-
lished understanding ” that “former Presidents are answer-
able to the criminal law for their offcial acts.” Post, at 664.
Conspicuously absent is mention of the fact that since the
founding, no President has ever faced criminal charges—
let alone for his conduct in offce. And accordingly no court
has ever been faced with the question of a President's immu-
nity from prosecution. All that our Nation's practice estab-
lishes on the subject is silence.
Coming up short on reasoning, the dissents repeatedly
level variations of the accusation that the Court has rendered
the President “above the law.” See, e. g., post, at 657, 659, 667,
668, 676, 685 (opinion of Sotomayor, J.); post, at 694, 695, 696,
697, 698, 703 (opinion of Jackson, J.). As before, that “rhetor-
ically chilling ” contention is “wholly unjustifed.” Fitzger-
ald, 457 U. S., at 758, n. 41. Like everyone else, the President
is subject to prosecution in his unoffcial capacity. But unlike
anyone else, the President is a branch of government, and the
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UMP v. UNITED STATES
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Constitution vests in him sweeping powers and duties. Ac-
counti
ng for that reality—and ensuring that the President
may exercise those powers forcefully, as the Framers antici-
pated he would—does not place him above the law; it pre-
serves 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 prec-
edent and instead fear mongering on the basis of extreme
hypotheticals about a future where the President “feels em-
powered to violate federal criminal law.” Post, at 673 (opin-
ion of Sotomayor, J.); see post, at 681, 685; post, at 693, 694,
n. 5, 696, 700, 704–706 (opinion of Jackson, J.). The dissents
overlook the more likely prospect of an Executive Branch
that cannibalizes itself, with each successive President free
to prosecute his predecessors, yet unable to boldly and fear-
lessly carry out his duties for fear that he may be next. For
instance, Section 371—which has been charged in this case—
is a broadly worded criminal statute that can cover “ `any
conspiracy for the purpose of impairing, obstructing or de-
feating the lawful function of any department of Govern-
ment.' ” United States v. Johnson, 383 U. S. 169, 172 (1966)
(quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtu-
ally every President is criticized for insuffciently enforcing
some aspect of federal law (such as drug, gun, immigration,
or environmental laws). An enterprising prosecutor in a
new administration may assert that a previous President vi-
olated that broad statute. Without immunity, such types of
prosecutions of ex-Presidents could quickly become routine.
The enfeebling of the Presidency and our Government that
would result from such a cycle of factional strife is exactly
what the Framers intended to avoid. Ignoring those risks,
the dissents are instead content to leave the preservation of
our system of separated powers up to the good faith of
prosecutors.
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Finally, the principal dissent fnds it “troubling ” that the
Cour
t does not “designate any course of conduct alleged in
the indictment as private.” Post, at 682. Despite the un-
precedented nature of this case, the signifcant 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 briefng on how to categorize
the conduct alleged, the principal dissent would go ahead and
declare all of it unoffcial. The other dissent, meanwhile,
analyzes the case under comprehensive models and para-
digms of its own concoction and accuses the Court of provid-
ing “no meaningful guidance about how to apply [the] new
paradigm or how to categorize a President's conduct.” Post,
at 698 (opinion of Jackson, J.). It would have us exhaus-
tively defne every application of Presidential immunity.
See post, at 698–699. Our dissenting colleagues exude an
impressive infallibility. While their confdence may be in-
spiring, the Court adheres to time-tested practices instead—
deciding what is required to dispose of this case and remand-
ing after “revers[ing] on a threshold question,” Zivotofsky,
566 U. S., at 201, to obtain “guidance from the litigants [and]
the court below,” Vidal v. Elster, 602 U. S. 286, 328 (2024)
(Sotomayor, J., concurring in judgment).
V
This case poses a question of lasting signifcance: When
may a former President be prosecuted for offcial acts taken
dur i ng h is Presidency? Our Nati on has never before
needed an answer. But in addressing that question today,
unlike the political branches and the public at large, we can-
not afford to fxate exclusively, or even primarily, on present
exigencies. In a case like this one, focusing on “transient
results” may have profound consequences for the separation
of powers and for the future of our Republic. Youngstown,
343 U. S., at 634 (Jackson, J., concurring). Our perspective
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UMP v. UNITED STATES
Opinion of the Court
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 Mc-
Culloch v. Maryland 190–191 (G. Gunther ed. 1969).
Our frst 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 Writings
of George Washington 226 (J. Fitzpatrick ed. 1940). A gov-
ernment “too feeble to withstand the enterprises of faction,”
he warned, could lead to the “frightful despotism” of “alter-
nate domination of one faction over another, sharpened by
the spirit of revenge.” Id., at 226–227. And the way to
avoid that cycle, he explained, was to ensure that govern-
ment powers remained “properly distributed and adjusted.”
Id., at 226.
It is these enduring principles that guide our decision in
this case. The President enjoys no immunity for his unoff-
cial acts, and not everything the President does is offcial.
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 prose-
cution for all his offcial acts. That immunity applies equally
to all occupants of the Oval Offce, regardless of politics, pol-
icy, or party.
The judgment of the Court of Appeals for the D. C. Circuit
is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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Thomas, J., concurring
Justice Thomas, concurring.
F
ew things would threaten our constitutional order more
than criminally prosecuting a former President for his offcial
acts. Fortunately, the Constitution does not permit us to
chart such a dangerous course. As the Court forcefully ex-
plains, the Framers “deemed an energetic executive essen-
tial to . . . the security of liberty,” and our “system of sepa-
rated powers” accordingly insulates the President from
prosecution for his offcial acts. Ante, at 610, 642 (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, 487 U. S. 654,
710–711 (1988) (Scalia, J., dissenting).
I write separately to highlight another way in which this
prosecution may violate our constitutional structure. In
this case, the Attorney General purported to appoint a 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 offce for the Special Counsel has been “established by
Law,” as the Constitution requires. Art. II, § 2, cl. 2. By
requiring that Congress create federal offces “by Law,” the
Constitution imposes an important check against the Presi-
dent—he cannot create offces at his pleasure. If there is no
law establishing the offce that the Special Counsel occupies,
then he cannot proceed with this prosecution. A private cit-
izen cannot criminally prosecute anyone, let alone a former
President.
No former President has faced criminal prosecution for his
acts while in offce 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 consti-
tute 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
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UMP v. UNITED STATES
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answer these essential questions concerning the Special
Counsel'
s appointment before proceeding.
I
The Constitution sets forth how an offce may be created
and how it may be fi l led. The Appoi ntments Clause
provides:
“[The President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambas-
sadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Offcers of the United
States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such
inferior Offcers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Depart-
ments.” Art. II, § 2, cl. 2.
The constitutional process for flling an offce is plain from
this text. The default manner for appointing “Offcers of
the United States” is nomination by the President and con-
frmation by the Senate. Ibid. “But the Clause provides
a limited exception for the appointment of inferior offcers:
Congress may `by Law' authorize” one of three specifed
actors “to appoint inferior offcers without the advice and
consent of the Senate.” NLRB v. SW General, Inc., 580
U. S. 288, 312 (2017) (Thomas, J., concurring). As relevant
here, a “Hea[d] of Departmen[t]”—such as the Attorney
General—is one such actor that Congress may authorize “by
Law” to appoint inferior offcers without senatorial confr-
mation. Art. II, § 2, cl. 2.
Before the President or a Department Head can appoint
any offcer, however, the Constitution requires that the un-
derlying offce be “established by Law.”
1
The Constitution
1
Although a Government offcial may also be a “nonoffcer employe[e],”
I set aside that category because it is diffcult to see how an offcial exercis-
ing the Department of Justice's duties to enforce the criminal law by lead-
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Thomas, J., concurring
itself creates some offces, most obviously that of the Presi-
dent
and Vice President. See § 1. Although the Constitu-
tion contemplates that there will be “other Offcers of the
United States, whose Appointments are not herein otherwise
provided for,” it clearly requires that those offces “shall be
established by Law.” § 2, cl. 2. And, “established by law”
refers to an offce that Congress creates “by statute.”
Lucia v. SEC, 585 U. S. 237, 254 (2018) (Thomas, J., concur-
ring); see also United States v. Maurice, 26 F. Cas. 1211, 1213
(No. 15,747) (CC Va. 1823) (Marshall, C. J.).
The limitation on the President's power to create offces
grew out of the Founders' experience with the English mon-
archy. The King could wield signifcant power by both cre-
ating and flling offces as he saw ft. He was “emphatically
and truly styled the fountain of honor. He not only ap-
point[ed] to all offces, but [could] create offces.” The Fed-
eralist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W.
Blackstone, Commentaries on the Laws of England 271 (T.
Cooley ed. 1871) (“[A]s the king may create new titles, so
may he create new offces”). That ability to create offces
raised many “concerns about the King 's ability to amass too
much power”; the King could both create a multitude of of-
fces and then fll them with his supporters. J. Mascott, Who
Are “Offcers of the United States”? 70 Stan. L. Rev. 443,
492 (2018) (Mascott); see also G. Wood, The Creation of the
American Republic 1776–1787, p. 143 (1969) (describing “the
power of appointment to offces” as “the most insidious and
powerfu l weapon of eighteenth-century despotism”); T.
Paine, Common Sense (1776), reprinted in The Great Works
of Thomas Paine 11 (1877) (explaining that “the crown . . .
ing a prosecution could be anything but an offcer. Lucia v. SEC, 585
U. S. 237, 253, n. 1 (2018) (Thomas, J., concurring); see SW General, 580
U. S., at 314 (opinion of Thomas, J.). If the Special Counsel were a nonof-
fcer employee, the constitutional problems with this prosecution would
only be more serious. For now, I assume without deciding that the Spe-
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UMP v. UNITED STATES
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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 independ-
ence was that the King “ha[d] erected a multitude of New
Offces, and sent hither swarms of Offcers to harass our peo-
ple, and eat out their substance.” Declaration of Independ-
ence ¶12. The Founders thus drafted the Constitution with
“evidently a great inferiority in the power of the President,
in this particular, to that of the British king.” The Federal-
ist No. 69, at 421.
The Founders broke from the monarchial model by giving
the President the power to fll offces (with the Senate's ap-
proval), but not the power to create offces. They did so
by “imposing the constitutional requirement that new offcer
positions be `established by Law' rather than through a
King-like custom of the head magistrate unilaterally creating
new offces.” Mascott 492–493 (footnote omitted); see also 1
Annals of Cong. 581–582 (1789) (“The powers relative to of-
fces are partly Legislative and partly Executive. The Leg-
islature creates the offce, defnes the powers, limits its dura-
tion, and annexes a compensation”); see also ibid. (describing
the power to “designat[e] the man to fll the offce” as “of
an Executive nature”). The Constitution thus “giv[es] Con-
gress broad authority to establish and organize the Exe-
cutive Branch.” Seila Law LLC v. Consumer Financial
Protection Bureau, 591 U. S. 197, 266 (2020) (Kagan, J.,
concurring in judgment in part and dissenting in part). By
keeping the ability to create offces out of the President's
hands, the Founders ensured that no President could unilat-
erally create an army of offcer positions to then fll with his
supporters. Instead, our Constitution leaves it in the hands
of the people's elected representatives to determine whether
new executive offces should exist.
Longstanding practice from the founding to today com-
ports with this original understanding that Congress must
create offces by law. The First Congress, for instance, rou-

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Thomas, J., concurring
tinely and explicitly created offces by statute. See, e. g.,
§
35, 1 Stat. 92–93 (creating the offces of Attorney General
and U. S. Attorney for each district); see also §§ 1–2, id., at
50 (creating offces of Secretary of War and his Chief Clerk);
ch. 12, § 1, id., at 65 (creating offces 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 offces that the Ex-
ecutive Branch may fll. For example, Congress has created
several offces within the Department of Justice, including
the offces 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 offcers and employees . . . as
are necessary to execute the functions vested in him.” 7
U. S. C. § 610(a) (Department of Agriculture); see also, e. g.,
20 U. S. C. § 3461 (Department of Education); 42 U. S. C. § 913
(Department of Health and Human Services).
In the past, Congress has at times expressly created of-
fces similar to the position now occupied by the Special
Counsel. Congress created an offce for a “special counsel”
to investigate the Teapot Dome Scandal and pursue prosecu-
tions. See ch. 16, 43 Stat. 6. And, a statute provided for
“the appointment of an independent counsel” that we ad-
dressed in Morrison v. Olson. See 28 U. S. C. § 592. 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 offce. To guard against tyr-
anny, the Founders required that a federal offce be “estab-
2
To be sure, a few Presidents have appointed “special prosecutors” with-
out pointing to any express statutory authorization. See generally T.
Eastland, Ethics, Politics and the Independent Counsel 8–9 (1989) (describ-
ing past uses of special prosecutors). But, this Court had no occasion to
review the constitutionality of those prosecutors' authority.
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lished by Law.” As James Madison cautioned, “[i]f there
is
any point in which the separation of the Legislative and
Executive powers ought to be maintained with greater cau-
tion, it is that which relates to offcers and offces.” 1 An-
nals of Cong. 581. If Congress has not reached a consensus
that a particular offce should exist, the Executive lacks the
power to create and fll an offce of his own accord.
II
It is diffcult to see how the Special Counsel has an offce
“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
offce. See Dept. of Justice Order No. 5559–2022 (Nov. 18,
2022). Nor did he rely on a statute granting him the author-
ity to appoint offcers as he deems ft, as the heads of some
other agencies have.
3
See supra, at 647. Instead, the At-
torney General relied upon several statutes of a general na-
ture. See Order No. 5559–2022 (citing 28 U. S. C. §§ 509, 510,
515, 533).
None of the statutes cited by the Attorney General ap-
pears to create an offce for the Special Counsel, and espe-
cially not with the clarity typical of past statutes used for
that purpose. See, e. g., 43 Stat. 647 (“[T]he President is
further authorized and directed to appoint . . . special counsel
who shall have charge and control of the prosecution of such
litigation”). Sections 509 and 510 are generic provisions
concerning the functions of the Attorney General and his
ability to delegate authority to “any other offcer, employee,
or agency.” Section 515 contemplates an “attorney specially
appointed by the Attorney General under law,” thereby sug-
gesting that such an attorney's offce must have already been
created by some other law. (Emphasis added.) As for
3
In fact, Congress gave the Attorney General the power to appoint “ad-
ditional offcers . . . as he deems necessary”—but, only for the Bureau of
Prisons. 18 U. S. C. § 4041.
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§ 533, it provides that “[t]he Attorney General may appoint
o
ffcials . . . to detect and prosecute crimes against the
United States.” (Emphasis added.) It is unclear whether
an “offcial” is equivalent to an “offcer” as used by the Con-
stitution. See Lucia, 585 U. S., at 254–255 (opinion of
Thomas, J.) (considering the meaning of “offcer”). Regard-
less, this provision would be a curious place for Congress to
hide the creation of an offce for a Special Counsel. It is
placed in a chapter concerning the Federal Bureau of Investi-
gation (§§ 531–540d), not the separate chapters concerning
U. S. Attorneys (§§ 541–550) or the now-lapsed Independent
Counsel (§§ 591–599).
4
To be sure, the Court gave passing reference to the cited
statutes as supporting the appointment of the Special Prose-
cutor in United States v. Nixon, 418 U. S. 683, 694 (1974), but
it provided no analysis of those provisions' text. Perhaps
there is an answer for why these statutes create an offce for
the Special Counsel. But, before this consequential prose-
cution proceeds, we should at least provide a fulsome expla-
nation of why that is so.
Even if the Special Counsel has a valid offce, questions
remain as to whether the Attorney General flled that offce
in compliance with the Appointments Clause. For example,
it must be determined whether the Special Counsel is a prin-
cipal or inferior offcer. If the former, his appointment is
invalid because the Special Counsel was not nominated by
the President and confrmed by the Senate, as principal off-
cers must be. Art. II, § 2, cl. 2. Even if he is an inferior
offcer, the Attorney General could appoint him without
Presidential nomination and senatorial confrmation only if
“Congress . . . by law vest[ed] the Appointment” in the At-
torney General as a “Hea[d] of Departmen[t].” Ibid. So, the
Special Counsel's appointment is invalid unless a statute cre-
4
Regulations remain on the books that contemplate an “outside” Special
Counsel, 28 CFR § 600.1 (2023), but I doubt a regulation can create a fed-
eral offce without underlying statutory authority to do so.
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ated the Special Counsel's offce and gave the Attorney Gen-
era
l the power to fll it “by Law.”
Whether the Special Counsel's offce was “established by
Law” is not a trifing technicality. If Congress has not
reached a consensus that a particular offce should exist, the
Executive lacks the power to unilaterally create and then fll
that offce. Given that the Special Counsel purports to
wield the Executive Branch's power to prosecute, the conse-
quences are weighty. Our Constitution's separation of pow-
ers, including its separation of the powers to create and fll
offces, is “the absolutely central guarantee of a just Govern-
ment” and the liberty that it secures for us all. Morrison,
487 U. S., at 697 (Scalia, J., dissenting). There is no prosecu-
tion 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 offcial acts is the law. The Constitution provides
for “an energetic executive,” because such an Executive is
“essential to . . . the security of liberty.” Ante, at 610 (inter-
nal quotation marks omitted). Respecting the protections
that the Constitution provides for the Offce of the Presi-
dency secures liberty. In that same vein, the Constitution
also secures liberty by separating the powers to create and
fll offces. And, there are serious questions whether the
Attorney General has violated that structure by creating an
offce 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.
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 con-

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Barrett, J., concurring in part
sistent with my view that the Constitution prohibits Con-
gress
from criminalizing a President's exercise of core Arti-
cle II powers and closely related conduct. That said, I
would have framed the underlying legal issues differently.
The Court describes the President's constitutional protection
from certain prosecutions as an “immunity.” As I see it,
that term is shorthand for two propositions: The President
can challenge the constitutionality of a criminal statute as
applied to offcial acts alleged in the indictment, and he can
obtain interlocutory review of the trial court's ruling.
There appears to be substantial agreement on the frst
point. Like the Court, the dissenting Justices and the Spe-
cial Counsel all accept that some prosecutions of a Presi-
dent's offcial conduct may be unconstitutional. See post, at
671–672 (opinion of Sotomayor, J.); Brief for United States
24–30. As for interlocutory review, our precedent recog-
nizes that resolving certain legal issues before trial is neces-
sary to safeguard important constitutional interests—here,
Executive Branch independence on matters that Article II
assigns to the President's discretion.
Properly conceived, the President's constitutional protec-
tion from prosecution is narrow. The Court leaves open the
possibility that the Constitution forbids prosecuting the
President for any offcial conduct, instructing the lower
courts to address that question in the frst instance. See
ante, at 614. 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 609, the Constitution does not
vest every exercise of executive power in the President's sole
discretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579, 637 (1952) (Jackson, J., concurring).
1
Congress has con-
1
Consistent with our separation of powers precedent, I agree with the
Court that the supervision and removal of appointed, high ranking Justice
Department offcials falls within the President's core executive power.
See Seila Law LLC v. Consumer Financial Protection Bureau, 591
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current authority over many Government functions, and it
may
sometimes use that authority to regulate the President's
offcial conduct, including by criminal statute. Article II
poses no barrier to prosecution in such cases.
I would thus assess the validity of criminal charges predi-
cated on most offcial acts—i. e., those falling outside of the
President's core executive power—in two steps. The frst
question is whether the relevant criminal statute reaches the
President's offcial conduct. Not every broadly worded stat-
ute does. For example, § 956 covers conspiracy to murder
in a foreign country and does not expressly exclude the Pres-
ident's decision to, say, order a hostage rescue mission
abroad. 18 U. S. C. § 956(a). The underlying murder stat-
ute, however, covers only “unlawful” killings. § 1111. The
Offce of Legal Counsel has interpreted that phrase to refect
a public-authority exception for offcial acts involving the
military and law enforcement. Memorandum from D. Bar-
ron, Acting Assistant Atty. Gen., to E. Holder, Atty. Gen.,
Re: Applicability of Federal Criminal Laws and the Consti-
tution to Contemplated Lethal Operations Against Shaykh
Anwar al-Aulaqi 12–19 (July 16, 2010); see also Brief for
United States 29–30; post, at 671–672, and n. 3 (Sotomayor,
J., dissenting). I express no view about the merits of that
interpretation, but it shows that the threshold question of
statutory interpretation is a nontrivial step.
If the statute covers the alleged offcial conduct, the prose-
cution 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 615 (quoting
Nixon v. Fitzgerald, 457 U. S. 731, 754 (1982)). On remand,
the lower courts will have to apply that standard to various
U. S. 197, 213–215 (2020); ante, at 619–621. 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 679 (Sotomayor, J., dissenting). I agree
with the dissent that the Constitution does not justify such an expansive
view. Ibid.
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allegations involving the President's offcial conduct.
2
Some
of
those allegations raise unsettled questions about the scope
of Article II power, see ante, at 621–628, but others do not.
For example, the indictment alleges that the President
“asked the Arizona House Speaker to call the legislature into
session to hold a hearing ” about election fraud claims. App.
193. The President has no authority over state legislatures
or their leadership, so it is hard to see how prosecuting him
for crimes committed when dealing with the Arizona House
Speaker wou ld unconstituti ona lly intr ude on executive
power.
This two-step analysis—considering frst whether the stat-
ute applies and then whether its application to the particular
facts is constitutional—is similar to the approach that the
Special Counsel presses in this Court. Brief for United
States 24–30. It is also our usual approach to considering
the validity of statutes in situations raising a constitutional
question. See, e. g., Seila Law LLC v. Consumer Financial
Protection Bureau, 591 U. S. 197, 213, 229 (2020).
3
An im-
2
This analysis is unnecessary for allegations involving the President's
private conduct because the Constitution offers no protection from prose-
cution of acts taken in a private capacity. Ante, at 615. Sorting private
from offcial conduct sometimes will be diffcult—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 682–683 (Sotomayor, J., dissenting).
The Constitution vests power to appoint Presidential electors in the
States. Art. II, § 1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578,
588–589 (2020). And while Congress has a limited role in that process,
see Art. II, § 1, cls. 3–4, the President has none. In short, a President
has no legal authority—and thus no offcial capacity—to infuence how the
States appoint their electors. I see no plausible argument for barring
prosecution of that alleged conduct.
3
The Court has sometimes applied an avoidance canon when interpret-
ing a statute that would interfere with the President's prerogatives. See,
e. g., Franklin v. Massachusetts, 505 U. S. 788, 800–801 (1992); Public Citi-
zen v. Dept. of Justice, 491 U. S. 440, 465–467 (1989); see also Sale v. Hai-
tian Centers Council, Inc., 509 U. S. 155, 188 (1993). The Offce of Legal
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portant difference in this context is that the President is
entitled
to an interlocutory appeal of the trial court's ruling.
See ante, at 636. A criminal defendant in federal court nor-
mally must wait until after trial to seek review of the trial
court's refusal to dismiss charges. See United States v.
MacDonald, 435 U. S. 850, 853–854 (1978); see also 18 U. S. C.
§ 3731. But where trial itself threatens certain constitu-
tional interests, we have treated the trial court's resolution
of the issue as a “fnal decision” for purposes of appellate
jurisdiction. MacDonald, 435 U. S., at 854–856; see 28
U. S. C. § 1291; see also § 1257.
The present circumstances fall squarely within our prece-
dent authorizing interlocutory review. When a President
moves to dismiss an indictment on Article II grounds, he
“makes no challenge whatsoever to the merits of the charge
against him.” Abney v. United States, 431 U. S. 651, 659
(1977) (allowing interlocutory appeal of rejection of double
jeopardy defense). He instead contests whether the Consti-
tution allows Congress to criminalize the alleged conduct, a
question that is “collateral to, and separable from” his guilt
or innocence. Ibid. Moreover, the President's Executive
Branch authority “would be signifcantly undermined if ap-
pellate review” of the constitutional challenge “were post-
poned until after conviction and sentence.” Id., at 660; see
also Helstoski v. Meanor, 442 U. S. 500, 507 (1979) (allowing
interlocutory appeal of refusal to dismiss an indictment on
Counsel has advocated for a clear-statement rule if applying a statute
would “raise serious constitutional questions relating to the President's
constitutional authority.” See Application of 28 U. S. C. § 458 to Presiden-
tial Appointments of Federal Judges, 19 Op. OLC 350, 350–357 (1995). In
my view, neither canon applies in this circumstance. Courts should in-
stead determine the statute's ordinary meaning and, if it covers the al-
leged offcial acts, assess whether prosecution would intrude on the Presi-
dent'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 uncon-
stitutional as applied).
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Speech or Debate Clause grounds). The prospect of a trial
cour
t erroneously allowing the prosecution to proceed poses
a unique danger to the “independence of the Executive
Branch.” Trump v. Vance, 591 U. S. 786, 800 (2020). As
the Court explains, the possibility that the President will be
made to defend his offcial conduct before a jury after he
leaves offce could distort his decisions while in offce. Ante,
at 613–614, 636. These Article II concerns do not insulate
the President from prosecution. But they do justify inter-
locutory review of the trial court's fnal decision on the Presi-
dent'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 630–632. I disagree with that holding; on this
score, I agree with the dissent. See post, at 681–682 (Soto-
mayor, J., dissenting). The Constitution does not require
blinding juries to the circumstances surrounding conduct for
which Presidents can be held liable. Consider a bribery
prosecution—a charge not at issue here but one that pro-
vides a useful example. The federal bribery statute forbids
any public offcial to seek or accept a thing of value “for or
because of any offcial act.” 18 U. S. C. § 201(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 impeacha-
ble offense); see also Memorandum from L. Silberman, Dep-
uty Atty. Gen., to R. Burress, Offce of the President, Re:
Confict of Interest Problems Arising Out of the President's
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Under the Twenty-Fifth Amendment to the Constitution 5
(A
ug. 28, 1974) (suggesting that the federal bribery statute
applies to the President). Yet excluding from trial any men-
tion of the offcial act connected to the bribe would ham-
string the prosecution. To make sense of charges alleging
a quid pro quo, the jury must be allowed to hear about both
the quid and the quo, even if the quo, standing alone, could
not be a basis for the President's criminal liability.
I appreciate the Court's concern that allowing into evi-
dence offcial acts for which the President cannot be held
criminally liable may prejudice the jury. Ante, at 631. 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 accord-
ingly”). The balance is more likely to favor admitting evi-
dence of an offcial act in a bribery prosecution, for instance,
than one in which the protected conduct has little connection
to the charged offense. And if the evidence comes in, the
trial court can instruct the jury to consider it only for lawful
purposes. See Richardson v. Marsh, 481 U. S. 200, 206–207
(1987). I see no need to depart from that familiar and time-
tested procedure here.
***
The Constitution does not insulate Presidents from crimi-
nal liability for offcial acts. But any statute regulating the
exercise of executive power is subject to a constitutional
challenge. See, e. g., Collins v. Yellen, 594 U. S. 220, 235–236
(2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194 (2012);
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 487–488 (2010). A criminal statute
is no exception. Thus, a President facing prosecution may

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657
Sotomayor, J., dissenting
challenge the constitutionality of a criminal statute as ap-
pl
ied to offcial acts alleged in the indictment. If that chal-
lenge fails, however, he must stand trial.
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 President,
ante, at 604, 613, 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 “notifed re-
peatedly” by his closest advisers “that his claims were un-
true,” id., at 188, ¶11.
When dozens of courts swiftly rejected these claims,
Trump allegedly “pushed offcials in certain states to ignore
the popular vote; disenfranchise millions of voters; dismiss
legitimate electors; and ultimately, cause the ascertainment
of and voting by illegitimate electors” in his favor. Id., at
185–186, ¶10(a). It is alleged that he went so far as to
threaten one state election offcial with criminal prosecution
if the offcial did not “ `fnd' 11,780 votes” Trump needed to
change the election result in that state. Id., at 202, ¶31(f ).
When state offcials repeatedly declined to act outside their
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UMP v. UNITED STATES
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legal authority and alter their state election processes,
Tr
ump and his co-conspirators purportedly developed a plan
to disrupt and displace the legitimate election certifcation
process by organizing fraudulent slates of electors. See id.,
at 208–209, ¶¶53–54.
As the date of the certifcation 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 investiga-
tions” and sending offcial letters “falsely claim[ing] that the
Justice Department had identifed signifcant concerns that
may have impacted the election outcome” while “falsely pre-
sent[ing] the fraudulent electors as a valid alternative to the
legitimate electors.” Id., at 186–187, ¶10(c). When the De-
partment refused to do as he asked, Trump turned to the
Vice President. Initially, he sought to persuade the Vice
President “to use his ceremonial role at the January 6 cer-
tifcation proceeding to fraudulently alter the election re-
sults.” Id., at 187, ¶10(d). When persuasion failed, he pur-
portedly “attempted to use a crowd of supporters that he
had gathered in Washington, D. C., to pressure the Vice
President to fraudulently alter the election results.” Id., at
221, ¶86.
Speaking to that crowd on January 6, Trump “falsely
claimed that, based on fraud, the Vice President could alter
the outcome of the election results.” Id., at 229, ¶104(a).
When this crowd then “violently attacked the Capitol and
halted the proceeding,” id., at 188, ¶10(e), Trump allegedly
delayed in taking any step to rein in the chaos he had un-
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
certifcation 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.
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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, ahis-
torical, and unjustifable immunity that puts the President
above the law.
The majority makes three moves that, in effect, completely
insulate Presidents from criminal liability. First, the major-
ity creates absolute immunity for the President's exercise of
“core constitutional powers.” Ante, at 606. This holding is
unnecessary on the facts of the indictment, and the majori-
ty'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 “offcial act[s].” Ante, at 615.
Whether described as presumptive or absolute, under the
majority's rule, a President's use of any offcial power for any
purpose, even the most corrupt, is immune from prosecution.
That is just as bad as it sounds, and it is baseless. Finally,
the majority declares that evidence concerning acts for
which the President is immune can play no role in any crimi-
nal prosecution against him. See ante, at 630–632. That
holding, which will prevent the Government from using a
President's offcial acts to prove knowledge or intent in pros-
ecuting private offenses, is nonsensical.
Argument by argument, the majority invents immunity
through brute force. Under scrutiny, its arguments crum-
ble. To start, the majority's broad “offcial acts” immu-
nity is inconsistent with text, history, and established un-
derstandings of the President's role. See Part III, infra.
Moreover, it is deeply wrong, even on its own functionalist
terms. See Part IV, infra. Next, the majority's “core” im-
munity is both unnecessary and misguided. See Part V,
in fra. Furthermore, the majority's illogical evidentiary
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holding is unprecedented. See Part VI, infra. Finally, this
major
ity's project will have disastrous consequences for the
Presidency and for our democracy. See Part VII, infra.
III
The main takeaway of today's decision is that all of a Pres-
ident's offcial acts, defned without regard to motive or
intent, are entitled to immunity that is “at least . . . presump-
tive,” ante, at 614, and quite possibly “absolute”, ante, at 615.
Whenever the President wields the enormous power of his
offce, the majority says, the criminal law (at least presump-
tively) cannot touch him. This offcial-acts immunity has
“no frm grounding in constitutional text, history, or prece-
dent.” Dobbs v. Jackson Women's Health Organization,
597 U. S. 215, 280 (2022). Indeed, those “standard grounds
for constitutional decisionmaking,” id., at 279, all point in
the opposite direction. No matter how you look at it, the
majority's offcial-acts immunity is utterly indefensible.
A
The majority calls for a “careful assessment of the scope
of Presidential power under the Constitution.” Ante, at 605.
For the majority, that “careful assessment” does not involve
the Constitution's text. I would start there.
The Constitution's text contains no provision for immunity
from criminal prosecution for former Presidents. Of course,
“the silence of the Constitution on this score is not disposi-
tive.” United States v. Nixon, 418 U. S. 683, 706, n. 16
(1974). Insofar as the majority rails against the notion that
a “ `specifc textual basis' ” is required, ante, at 637 (quoting
Nixon v. Fitzgerald, 457 U. S. 731, 750, n. 31 (1982)), it is
attacking an argument that has not been made here. The
omission in the text of the Constitution is worth noting, how-
ever, for at least three reasons.
First, the Framers clearly knew how to provide for immu-
nity from prosecution. They did provide a narrow immunity
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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 privi-
leged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from
the same; and for any Speech or Debate in either House, they
shall not be questioned in any other Place”). They did not
extend the same or similar immunity to Presidents.
Second, “some state constitutions at the time of the Fram-
ing specifcally provided `express criminal immunities' to sit-
ting governors.” Brief for Scholars of Constitutional Law
as Amici Curiae 4 (quoting S. Prakash, Prosecuting and
Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)).
The Framers chose not to include similar language in the
Constitution to immunize the President. If the Framers
“had wanted to create some constitutional privilege to shield
the President . . . from criminal indictment,” they could have
done so. Memorandum from R. Rotunda to K. Starr re: In-
dictability 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 for mer Presidents. The major ity correctly re jects
Trump's argument that a former President cannot be prose-
cuted unless he has been impeached by the House and con-
victed by the Senate for the same conduct. See ante, at
632–634; Part IV–C, infra. The majority ignores, however,
that the Impeachment Judgment Clause cuts against its own
position. That Clause presumes the availability of criminal
process as a backstop by establishing that an offcial 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-

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ery,” Art. II, § 4, which implicates offcial acts almost by
def
nition.
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 611 (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 prose-
cution for offcial acts.
The historical evidence that exists on Presidential immu-
nity 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
and disgrace.” Id., at 458. In contrast to the king, the
President should be subject to “personal responsibility” for
his actions, “stand[ing] upon no better ground than a gover-
nor of New York, and upon worse ground than the governors
of Maryland and Delaware,” whose State Constitutions gave
them some immunity. Id., at 452.
At the Constitutional Convention, James Madison, who
was aware that some state constitutions provided governors
immunity, proposed that the Convention “conside[r] what
privileges ought to be allowed to the Executive.” 2 Records
of the Federal Convention of 1787, p. 503 (M. Farrand ed.
1911). There is no record of any such discussion. Ibid.
1
Article II, § 4, provides: “The President, Vice President and all Civil
Offcers of the United States, shall be removed from Offce on Impeach-
ment for and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.”
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Delegate Charles Pinckney later explained that “[t]he Con-
venti
on which formed the Constitution well knew” that “no
subject had been more abused than privilege,” and so it “de-
termined 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 offcials had no immunity from prosecu-
tion, drawing no exception for the President. James Wilson
recognized that federal offcers who use their offcial 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
477 (J. Elliot ed. 1836). A few decades later, Justice Story
evinced the same understanding. He explained that, when
a federal offcial commits a crime in offce, “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 inficting the common pun-
ishment applicable to unoffcial offenders.” 2 Commentaries
on the Constitution of the United States § 780, pp. 250–251
(1833). Without a criminal trial, he explained, “the grossest
offcial offenders might escape without any substantial pun-
ishment, even for crimes, which would subject 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
2
To note, as the majority does, see ante, at 639, that this Court has
recognized civil immunities arguably inconsistent with this view is not to
say that Pinckney was wrong about what the Framers had “intended.”
Indeed, Pinckney's contemporaries shared the same view during the rati-
fcation 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”).
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no man is free to fout the criminal law. The majority fails
to
recognize or grapple with the lack of historical evidence
for its new immunity. With nothing on its side of the ledger,
the most the majority can do is claim that the historical evi-
dence is a wash. See ante, at 638–639. It claims that the
Court previously has described the “relevant historical evi-
dence on the question of Presidential immunity” as “ `frag-
mentary' ” and not worthy of consideration. Ante, at 638
(quoting Fitzgerald, 457 U. S., at 752, n. 31). Yet the Court
has described only the evidence regarding “the President's
immunity from damages liability” as “fragmentary.” Fitz-
gerald, 457 U. S., at 751–752, n. 31 (emphasis added). More-
over, far from dismissing that evidence as irrelevant, the
Fitzgerald Court was careful to note that “[t]he best histori-
cal evidence clearly support[ed]” the immunity from dam-
ages 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 752, n. 31. The majority ignores
this reliance. It seems history matters to this Court only
when it is convenient. See, e. g., New York State Rife &
Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022); Dobbs, 597
U. S. 215.
C
Our country's history also points to an established under-
standing, shared by both Presidents and the Justice Depart-
ment, that former Presidents are answerable to the criminal
law for their offcial acts. Cf. Chiafalo v. Washington, 591
U. S. 578, 592–593 (2020) (“ `Long settled and established
practice' may have `great weight in a proper interpretation
of constitutional provisions' ” (quoting The Pocket Veto Case,
279 U. S. 655, 689 (1929))). Consider Watergate, for exam-
ple. After the Watergate tapes revealed President Nixon's
misuse of offcial power to obstruct the Federal Bureau of
Investigation's investigation of the Watergate burglary,
President Ford pardoned Nixon. Both Ford's pardon and
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understanding that the former President faced potential
cr
iminal liability.” Brief for United States 15; see also Pub-
lic Papers of the Presidents, Gerald R. Ford, Vol. 1, Sept. 8,
1974, p. 103 (1975) (granting former President Nixon a “full,
free, and absolute pardon . . . for all offenses against the
United States which he . . . has committed or may have com-
mitted 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 inves-
tigations have also operated on the assumption that the Gov-
ernment can criminally prosecute former Presidents for their
offcial 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 Presi-
dent, is subject to prosecution . . . the conduct of President
Reagan in the Iran/contra matter was reviewed by Inde-
pendent 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. No.
117–2, p. 144 (2021). They insisted that a former President “is
like any other citizen and can be tried in a court of law.” Ibid.;
see also 1 id., S. Doc. No. 117–3, at 339 (Trump's impeachment
counsel stating that “no former offceholder is immune” from
the judicial process “for investigation, prosecution, and pun-
ishment”); id., at 322–323 (Trump's impeachment counsel
stating: “If my colleagues on this side of the Chamber actu-
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ally think that President Trump committed a criminal of-
fense
. . . [a]fter he is out of offce, you go and arrest him”).
Now that Trump is facing criminal charges for those acts,
though, the tune has changed. Being treated “like any
other citizen” no longer seems so appealing.
In sum, the majority today endorses an expansive vision
of Presidential immunity that was never recognized by the
Founders, any sitting President, the Executive Branch, or
even President Trump's lawyers, until now. Settled 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],” ante, at 615, or “at least
. . . presumptive[ly],” immune from criminal prosecution for
all of their offcial acts, ante, at 614 (emphasis omitted). The
majority purports to keep us in suspense as to whether this
immunity is absolute or presumptive, but it quickly gives up
the game. It explains that, “[a]t a minimum, the President
must . . . be immune from prosecution for an offcial act un-
less the Government can show that applying a criminal pro-
hibition to that act would pose no `dangers of intrusion
on the authority and functions of the Executive Branch.' ”
Ante, at 615 (emphasis added). No dangers, none at all. It
is hard to imagine a criminal prosecution for a President's
offcial acts that would pose no dangers of intrusion on Presi-
dential authority in the majority's eyes. Nor should that be
the standard. Surely some intrusions on the Executive may
be “justifed by an overriding need to promote objectives
within the constitutional authority of Congress.” Nixon v.
Administrator of General Services, 433 U. S. 425, 443 (1977).
Other intrusions may be justifed by the “primary constitu-
tional duty of the Judicial Branch to do justice in criminal
prosecutions.” United States v. Nixon, 418 U. S. 683, 707
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(1974). According to the majority, however, any incursion
on
Executive power is too much. When presumptive im-
munity is this conclusive, the majority's indecision as to
“whether [officia l-ac ts] i mmunity must be absolute” or
whether, instead, “presumptive immunity is suffcient,” ante,
at 606, hardly matters.
Maybe some future opinion of this Court will decide that
presumptive immunity is “suffcient,” ibid., and replace the
majority's ironclad presumption with one that makes the dif-
ference between presumptive and absolute immunity mean-
ingful. Today's Court, however, has replaced a presumption
of equality before the law with a presumption that the Presi-
dent is above the law for all of his offcial acts.
Quick on the heels of announcing this astonishingly broad
offcial-acts immunity, the majority assures us that a former
President can still be prosecuted for “unoffcial acts.” Ante,
at 615. Of course he can. No one has questioned the ability
to prosecute a former President for unoffcial (otherwise
known as private) acts. Even Trump did not claim immu-
nity for such acts and, as the majority acknowledges, such
an immunity would be impossible to square with Clinton v.
Jones, 520 U. S. 681 (1997). See ante, at 615. This unre-
markable proposition is no real limit on today's decision. It
does not hide the majority's embrace of the most far-
reaching view of Presidential immunity on offer.
In fact, the majority's dividing line between “offcial” and
“unoffcial” conduct narrows the conduct considered “unoff-
cial” 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 offcial action. Ante, at
618 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC
2023)). It then goes a step further: “In dividing offcial from
unoffcial conduct, courts may not inquire into the President's
motives.” Ante, at 618. It is one thing to say that motive
is irrelevant to questions regarding the scope of civil liability,
but it is quite another to make it irrelevant to questions re-
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garding criminal liability. Under that rule, any use of off-
cia
l power for any purpose, even the most corrupt purpose
indicated by objective evidence of the most corrupt motives
and intent, remains offcial and immune. Under the majori-
ty's test, if it can be called a test, the category of Presidential
action that can be deemed “unoffcial” is destined to be van-
ishingly 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 614, but it then proceeds
to place former Presidents beyond the reach of the federal
criminal laws for any abuse of offcial 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, 457 U. S. 731 (1983). Yet
even that test cuts against it. The majority concludes that
offcial-acts immunity “is required to safeguard the inde-
pendence and effective functioning of the Executive Branch,”
ante, at 614, by rejecting that Branch's own protestations
that such immunity is not at all required and would in fact
be harmful, see Brief for United States 18–24, 29–30. In
doing so, it decontextualizes Fitzgerald's language, ignores
important qualifcations, and reaches a result that the Fitz-
gerald Court never would have countenanced.
In Fitzgerald, plaintiff A. Ernest Fitzgerald sued then-
former President Nixon for money damages. He claimed
that, while in offce, Nixon had been involved in unlawfully
fring him from his government job. See 457 U. S., at 733–
741. The question for the Court was whether a former
President had immunity from such a civil suit. The Court
explained that it was “settled law that the separation-of-
powers doctrine does not bar every exercise of jurisdiction
over the President of the United States.” Id., at 753–754.
To determine whether a particular type of suit against a
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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 dero-
gation of the separation of powers, but to maintain their
proper balance, or to vindicate the public interest in an ongo-
ing criminal prosecution—the exercise of jurisdiction has
been held warranted.” Ibid. (citations omitted).
On the facts before it, the Court concluded that a “merely
private suit for damages based on a President's offcial acts”
did not serve those interests. Ibid. The Court reasoned
that the “visibility of [the President's] offce and the effect of
his actions on countless people” made him an easy target for
civil suits that “frequently could distract [him] from his pub-
lic duties.” Id., at 753. The public interest in such private
civil suits, the Court concluded, was comparatively weak.
See id., at 754, n. 37 (“[T]here is a lesser public interest in
actions for civil damages than, for example, in criminal
prosecutions”). Therefore, the Court held that a former
President was immune from such suits. Ibid.
In the context of a federal criminal prosecution of a former
President, however, the danger to the functioning of the Exec-
utive 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 oppo-
site result. Instead, the majority elides any difference be-
tween civil and criminal immunity, granting Trump the same
immunity from criminal prosecution that Nixon enjoyed from
an unlawful termination suit. That is plainly wrong.
1
The majority relies almost entirely on its view of the dan-
ger of intrusion on the Executive Branch, to the exclusion of
the other side of the balancing test. Its analysis rests on
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a questionable conception of the President as incapable of
nav
igating the diffcult decisions his job requires while stay-
ing 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 offcial conduct
“is akin to, indeed greater than, what led us to recognize
absolute Presidential immunity from civil damages liabil-
ity—that the President would be chilled from taking the
`bold and unhesitating action' required of an independent Ex-
ecutive.” Ante, at 613 (quoting Fitzgerald, 457 U. S., at
745). It is of course important that the President be able
to “ ` “deal fearlessly and impartially with” the duties of his
offce.' ” Ante, at 611 (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 liabil-
ity is much smaller. In Fitzgerald, the threat of vexatious
civil litigation loomed large. The Court observed that,
given the “visibility of his offce and the effect of his actions
on countless people, the President would be an easily identi-
fable target for suits for civil damages.” Id., at 753. Al-
though “ `the effect of [the President's] actions on countless
people' could result in untold numbers of private plaintiffs
suing for damages based on any number of Presidential acts”
in the civil context, the risk in the criminal context is “only
that a former President may face one federal prosecution, in
one jurisdiction, for each criminal offense allegedly com-
mitted while in offce.” 704 F. Supp. 3d 196, 213 (DC 2023)
(quoting Fitzgerald, 457 U. S., at 753). The majority's
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bare assertion that the burden of exposure to federal crimi-
na
l prosecution is more limiting to a President than the bur-
den of exposure to civil suits does not make it true, and it is
not persuasive.
Second, federal criminal prosecutions require “robust pro-
cedural safeguards” not found in civil suits. 704 F. Supp. 3d,
at 214. The criminal justice system has layers of protec-
tions that “flter out insubstantial legal claims,” whereas civil
litigation lacks “analogous checks.” Cheney v. United States
Dist. Court for D. C., 542 U. S. 367, 386 (2004). To start,
Justice Department policy requires scrupulous and impartial
prosecution, founded on both the facts and the law. See gen-
erally Dept. of Justice, Justice Manual § 9–27.000 (Principles
of Federal Prosecution) (June 2023). The grand jury pro-
vides an additional check on felony prosecutions, acting as a
“buffer or referee between the Government and the people,”
to ensure that the charges are well founded. United States
v. Williams, 504 U. S. 36, 47 (1992); see also Harlow v. Fitz-
gerald, 457 U. S. 800, 826, n. 6 (1982) (Burger, C. J., dissent-
ing) (“[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 pro-
vides to criminal defendants. If the former President has
an argument that a particular statute is unconstitutional as
applied to him, then he can move to dismiss the charges on
that ground. Indeed, a former President is likely to have
legal arguments that would be unavailable to the average
criminal defendant. For example, he may be able to rely on
a public-authority exception from particular criminal laws,
3
3
See Nardone v. United States, 302 U. S. 379, 384 (1937) (explaining
that public offcers may be “impliedly excluded from [statutory] language
embracing all persons” if reading the statute to include such offcers
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or an advice-of-the-Attorney-General defense, see Tr. of Oral
Arg
. 107–108.
4
If the case nonetheless makes it to trial, the Government
will bear the burden of proving every element of the alleged
crime beyond a reasonable doubt to a unanimous jury of the
former President's fellow citizens. See United States v.
Gaudin, 515 U. S. 506, 510 (1995). If the Government man-
ages to overcome even that signifcant hurdle, then the for-
mer President can appeal his conviction, and the appellate
review of his claims will be “ `particularly meticulous.' ”
Trump v. Vance, 591 U. S. 786, 809 (2020) (quoting Nixon,
418 U. S., at 702). He can ultimately seek this Court's re-
view, and if past practice (including in this case) is any indi-
cation, he will receive it.
In light of these considerable protections, the majority's
fear that “ `bare allegations of malice,' ” ante, at 619 (alter-
ation 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 “ `in-
tense feelings,' ” ante, at 611 (quoting Fitzgerald, 457 U. S.,
at 752), a federal criminal prosecution is made of frmer stuff.
Certainly there has been, on occasion, great feelings of ani-
“would work obvious absurdity as, for example, the application of a speed
law to a policeman pursuing a criminal or the driver of a fre engine re-
sponding to an alarm”); see also Memorandum from D. Barron, Acting
Assistant Atty. Gen., Offce of Legal Counsel, to E. Holder, Atty. Gen., Re:
Applicability of Federal Criminal Laws and the Constitution to Contem-
plated Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July 16,
2010) (interpreting criminal statute prohibiting unlawful killings “to incor-
porate the public authority justifcation, which can render lethal action
carried out by a governmental offcial 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 fu-
ture cases. Yet those defenses would have protected former Presidents
from unwarranted criminal prosecutions much more precisely than the
blanket immunity the majority creates today.
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mosity 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 frst
federal criminal prosecution of a former President. That re-
straint 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 offce and nevertheless boldly fulflled the duties of his
offce. 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 613.
If that is right, then that distortion has been shaping Presi-
dential decisionmaking since the earliest days of the Repub-
lic. Although it makes sense to avoid “diversion of the Pres-
ident's attention during the decisionmaking process” with
“needless worry,” Clinton, 520 U. S., at 694, n. 19, one won-
ders why requiring some small amount of his attention (or
his legal advisers' attention) to go towards complying with
federal criminal law is such a great burden. If the President
follows the law that he must “take Care” to execute, Art. II,
§ 3, he has not been rendered “ `unduly cautious,' ” ante, at
611 (quoting Fitzgerald, 457 U. S., at 752, n. 32). Some
amount of caution is necessary, after all. It is a far greater
danger if the President feels empowered to violate federal
criminal law, buoyed by the knowledge of future immunity.
I am deeply troubled by the idea, inherent in the majority's
opinion, that our Nation loses something valuable when the
President is forced to operate within the confnes 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 613. It cannot possibly be the deterrence of
acts that are truly criminal. Nor does it make sense for the
majority to wring its hands over the possibility that Presi-
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dents might stop and think carefully before taking action
that
borders on criminal. Instead, the majority's main con-
cern could be that Presidents will be deterred from taking
necessary and lawful action by the fear that their successors
might pin them with a baseless criminal prosecution—a
prosecution that would almost certainly be doomed to fail, if
it even made it out of the starting gate. See ante, at 640.
The Court should not have so little faith in this Nation's
Presidents. As this Court has said before in the context of
criminal proceedings, “ `[t]he chance that now and then there
may be found some timid soul who will take counsel of his
fears and give way to their repressive power is too remote
and shadowy to shape the course of justice.' ” Nixon, 418
U. S., at 712, n. 20 (quoting Clark v. United States, 289 U. S.
1, 16 (1933)). The concern that countless (and baseless) civil
suits would hamper the Executive may have been justifed
in Fitzgerald, but a well-founded federal criminal prosecu-
tion 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 fve-Justice majority noted that there was a greater pub-
lic interest “in criminal prosecutions” than in “actions for
civil damages.” 457 U. S., at 754, n. 37. Chief Justice Burg-
er's concurrence accordingly emphasized that the majority's
immunity was “limited to civil damages claims,” rather than
“criminal prosecution.” Id., at 759–760. The four dissent-
ing Justices agreed that a “contention that the President is
immune from criminal prosecution in the courts,” if ever
made, would not “be credible.” Id., at 780 (White, J., dis-
senting). 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.
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The public's interest in prosecution is transparent: a fed-
era
l prosecutor herself acts on behalf of the United States.
Even the majority acknowledges that the “[f]ederal criminal
laws seek to redress `a wrong to the public' as a whole, not
just `a wrong to the individual,' ” ante, at 614 (quoting Hun-
tington v. Attrill, 146 U. S. 657, 668 (1892)), such that there
is “a compelling `public interest in fair and effective law en-
forcement,' ” ante, at 614 (quoting Vance, 591 U. S., at 808).
Indeed, “our historic commitment to the rule of law” is “no-
where more profoundly manifest than in our view that . . .
`guilt shall not escape or innocence suffer.' ” Nixon, 418
U. S., at 708–709 (quoting Berger v. United States, 295 U. S.
78, 88 (1935)).
The public interest in criminal prosecution is particularly
strong with regard to offcials who are granted some degree
of civil immunity because of their duties. It is in those cases
where the public can see that offcials exercising power
under public trust remain on equal footing with their fellow
citizens under the criminal law. See, e. g., O'Shea v. Little-
ton, 414 U. S. 488, 503 (1974) (“[W]e have never held that the
performance of the duties of judicial, legislative, or executive
offcers, requires or contemplates the immunization of other-
wise criminal deprivations of constitutional rights”); Dennis
v. Sparks, 449 U. S. 24, 31 (1980) (“[J]udicial immunity was
not designed to insulate the judiciary from all aspects of pub-
lic accountability. Judges are immune from § 1983 damages
actions, but they are subject to criminal prosecutions as are
other citizens”); Imbler v. Pachtman, 424 U. S. 409, 428–429
(1976) (“We emphasize that the [civil] immunity of prosecu-
tors . . . does not leave the public powerless to deter miscon-
duct or to punish that which occurs. This Court has never
suggested that the policy considerations which compel civil
immunity for certain governmental offcials also place them
beyond the reach of the criminal law. Even judges, cloaked
with absolute civil immunity for centuries, could be pun-
ished criminally”).

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UMP v. UNITED STATES
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The public interest in the federal criminal prosecution of
a
former President alleged to have used the powers of his
offce 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.
Anderson v. Celebrezze, 460 U. S. 780, 795 (1983). When
Presidents use the powers of their offce for personal gain or
as part of a criminal scheme, every person in the country
has an interest in that criminal prosecution. The majority
overlooks that paramount interest entirely.
Finally, the question of federal criminal immunity for a
former President “involves a countervailing Article II con-
sideration absent in Fitzgerald”: recognizing such an immu-
nity “would frustrate the Executive Branch's enforcement of
the criminal law.” Brief for United States 19. The Presi-
dent is, of course, entrusted with “ `supervisory and policy
responsibilities of utmost discretion and sensitivity.' ” Ante,
at 610–611 (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 Execu-
tive. It does not. Rather, it diminishes that independence,
exalting occupants of the offce over the offce itself. There
is a twisted irony in saying, as the majority does, that the
person charged with “tak[ing] Care that the Laws be faith-
fully 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 Ex-
ecutive Branch's interest in upholding Presidential elections
and vesting power in a new President under the Constitu-
tion” as well as “the voters' interest in democratically select-
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ing their President.” 91 F. 4th 1173, 1195 (CADC 2024)
(
per curiam). It also, of course, implicates Congress's own
interest in regulating conduct through the criminal law. Cf.
Fitzgerald, 457 U. S., at 749, n. 27 (noting that the case did
not involve “affrmative action by Congress”). Yet the ma-
jority believes that a President's anxiety over prosecution
overrides the public's interest in accountability and negates
the interests of the other branches in carrying out their con-
stitutionally assigned functions. It is, in fact, the majority's
position that “boil[s] down to ignoring the Constitution's sep-
aration of powers.” Ante, at 640.
C
Finally, in an attempt to put some distance between its
offcial-acts immunity and Trump's requested immunity, the
majority insists that “Trump asserts a far broader immunity
than the limited one [the majority has] recognized.” Ante,
at 632. If anything, the opposite is true. The only part of
Trump's immunity argument that the majority rejects is the
idea that “the Impeachment Judgment Clause requires that
impeachment and Senate conviction precede a President's
criminal prosecution.” Ibid. That argument is obviously
wrong. See ante, at 632–634. Rejecting it, however, does
not make the majority's immunity narrower than Trump's.
Inherent in Trump's Impeachment Judgment Clause argu-
ment is the idea that a former President who was impeached
in the House and convicted in the Senate for crimes involving
his offcial acts could then be prosecuted in court for those
acts. See Br ief for Petiti oner 22 (“ The Founders thus
adopted a carefully balanced approach that permits the crim-
inal prosecution of a former President for his offcial acts,
but only if that President is frst impeached by the House
and convicted by the Senate”). By extinguishing that path
to overcoming immunity, however nonsensical it might be,
the majority arrives at an offcial-acts immunity even more
expansive than the one Trump argued for. On the majori-
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ty's view (but not Trump's), a former President whose abuse
of
power was so egregious and so offensive even to members
of his own party that he was impeached in the House and
convicted in the Senate still would be entitled to “at least
presumptive” criminal immunity for those acts.
V
Separate from its offcial-acts immunity, the majority rec-
ognizes absolute immunity for “conduct within [the Presi-
dent's] exclusive sphere of constitutional authority.” Ante,
at 609. Feel free to skip over those pages of the majority's
opinion. With broad offcial-acts immunity covering the
feld, 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 606, beyond any recogniz-
able bounds.
The idea of a narrow core immunity might have some intu-
itive 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. Saw-
yer, 343 U. S. 579, 638 (1952) (Jackson, J., concurring). In
his Youngstown concurrence, Justice Robert Jackson posited
that the President's “power of removal in executive 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, 13 Wall.
128, 147 (1872) (“To the executive alone is intrusted the
power of pardon; and it is granted without limit”), as does
the power to recognize foreign countries, see Zivotofsky v.
Kerry, 576 U. S. 1, 32 (2015) (holding that the President has
“exclusive power . . . to control recognition determinations”).
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In this case, however, the question whether a former Pres-
ident
enjoys a narrow immunity for the “exercise of his core
constitutional powers,” ante, at 606, has never been at issue,
and for good reason: Trump was not criminally indicted for
taking actions that the Constitution places in the unassail-
able core of Executive power. He was not charged, for ex-
ample, with illegally wielding the Presidency's pardon power
or veto power or appointment power or even removal power.
Instead, Trump was charged with a conspiracy to commit
fraud to subvert the Presidential election. It is true that
the detailed indictment in this case alleges that Trump
threatened to remove an Acting Attorney General who
would not carry out his scheme. See, e. g., App. 216–217,
Indictment ¶¶74, 77. Yet it is equally clear that the Govern-
ment does not seek to “impose criminal liability on the
[P]resident for exercising or talking about exercising the ap-
pointment and removal power.” Tr. of Oral Arg. 127. If
that were the majority's concern, it could simply have said
that the Government cannot charge a President's threatened
use of the removal power as an overt act in the conspiracy.
It says much more.
The core immunity that the majority creates will insulate
a considerably larger sphere of conduct than the narrow core
of “conclusive and preclusive” powers that the Court pre-
viously has recognized. The frst indication comes when the
majority includes the President's broad duty to “ `take Care
that the Laws be faithfully executed' ” among the core func-
tions for which a former President supposedly enjoys abso-
lute immunity. Ante, at 620 (quoting Art. II, § 3). That ex-
pansive 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 con-
cludes that “Trump is . . . absolutely immune from prosecu-
tion for” any “conduct involving his discussions with Justice
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Department offcials.” Ante, at 621. That conception of
core
immunity expands the “conclusive and preclusive” cate-
gory beyond recognition, foreclosing the possibility of prose-
cution for broad swaths of conduct. Under that view of core
powers, even fabricating evidence and insisting the Depart-
ment use it in a criminal case could be covered. The majori-
ty's conception of “core” immunity sweeps far more broadly
than its logic, borrowed from Youngstown, should allow.
The majority tries to assuage any concerns about its made-
up core immunity by suggesting that the Government agrees
with it. See ante, at 634. That suggestion will surprise the
Government. To say, as the Government did, that a “small
core of exclusive offcial acts” such as “the pardon power,
the power to recognize foreign nations, the power to veto
legislation, [and] the power to make appointments” cannot
be regulated by Congress, see Tr. of Oral Arg. 85–87, does
not suggest that the Government agrees with immunizing
any and all conduct conceivably related to the majority's
broad array of supposedly “core” powers. The Government
in fact advised this Court to “leav[e] potentially more diff-
cult questions” about the scope of any immunity “that might
arise on different facts for decision if they are ever pre-
sented.” Brief for United States 45. That would have
made sense. The indictment here does not pose any threat
of impermissibly criminalizing acts within the President's
“conclusive and preclusive” authority. Perhaps for this rea-
son, even Trump discouraged consideration of “a narrower
scope of immunity,” claiming that such an immunity “would
be nearly impossible to fashion, and would certainly involve
impractical line-drawing problems in every application.”
Brief for Petitioner 43–44.
When forced to wade into thorny separation-of-powers dis-
putes, this Court's usual practice is to “confne the opinion
only to the very questions necessary to decision of the case.”
Dames & Moore v. Regan, 453 U. S. 654, 661 (1981). There
is plenty of peril and little value in crafting a core immunity
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Sotomayor, J., dissenting
doctrine that Trump did not seek and that rightly has no
appl
ication to this case.
VI
Not content simply to invent an expansive criminal immu-
nity for former Presidents, the majority goes a dramatic and
unprecedented step further. It says that acts for which the
President is immune must be redacted from the narrative of
even wholly private crimes committed while in offce. They
must play no role in proceedings regarding private criminal
acts. See ante, at 630–632.
Even though the majority's immunity analysis purports to
leave unoffcial acts open to prosecution, its draconian ap-
proach to offcial-acts evidence deprives these prosecutions
of any teeth. If the former President cannot be held crimi-
nally liable for his offcial acts, those acts should still be ad-
missible to prove knowledge or intent in criminal prosecu-
tions of unoffcial acts. For instance, the majority struggles
with classifying whether a President's speech is in his capac-
ity as President (offcial act) or as a candidate (unoffcial act).
Imagine a President states in an offcial speech that he in-
tends to stop a political rival from passing legislation that he
opposes, no matter what it takes to do so (offcial act). He
then hires a private hitman to murder that political rival
(unoffcial act). Under the majority's rule, the murder in-
dictment could include no allegation of the President's public
admission of premeditated intent to support the mens rea of
murder. That is a strange result, to say the least.
5
The majority's extraordinary rule has no basis in law.
Consider the First Amendment context. Although the First
Amendment prohibits criminalizing most speech, it “does not
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 offcial
act,” so long as the prosecutor does not “invite the jury to inspect” the
act in any way. Ante, at 632, n. 3. Whatever that suggestion is supposed
to accomplish, it does not salvage the majority's nonsensical evidentiary
rule.
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prohibit the evidentiary use of speech,” including its use “to
prove
motive or intent.” Wisconsin v. Mitchell, 508 U. S.
476, 489 (1993). Evidentiary rulings and limiting instruc-
tions can ensure that evidence concerning offcial acts is
“considered only for the proper purpose for which it was ad-
mitted.” Huddleston v. United States, 485 U. S. 681, 691–
692 (1988). The majority has no coherent explanation as to
why these protections that are suffcient in every other con-
text would be insuffcient here. It simply asserts that it
would be “untenable” and would deprive immunity of its
“ `intended effect.' ” Ante, at 631 (quoting Fitzgerald, 457
U. S., at 756). The majority hazards an explanation that the
use of offcial-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 offce.” Ante,
at 631. That “unique risk,” however, is not a product of in-
troducing offcial-acts evidence. It is simply the risk in-
volved in any suit against a former President, including the
private-acts prosecutions the majority says it would allow.
VII
Today's decision to grant former Presidents immunity for
their offcial acts is deeply wrong. As troubling as this
criminal immunity doctrine is in theory, the majority's appli-
cation of the doctrine to the indictment in this case is per-
haps even more troubling. In the hands of the majority, this
new offcial-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 offcial
conduct, see ante, at 619–625, 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
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 641. Yet it implicitly ac-
knowledges that it reaches far beyond what any lower court considered or
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Sotomayor, J., dissenting
conceded, for example, that the a llegati on that Tr ump
“
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 fling in court of a verifcation signed by [Trump] that
contained false allegations to support a challenge” “sounds
private.” Ibid.; see also id., at 36–37 (Trump's counsel ex-
plaining that it is not “disputed” that such conduct is “unof-
fcial”). Again, when asked about allegations that “[t]hree
private actors . . . helped implement a plan to submit fraudu-
lent slates of presidential electors to obstruct the certifca-
tion proceeding, and [Trump] and a co-conspirator attorney
directed that effort,” Trump's counsel conceded the alleged
conduct was “private.” Id., at 29–30. Only the majority
thinks that organizing fraudulent slates of electors might
qualify as an offcial act of the President, see ante, at 625–
628, or at least an act so “interrelated” with other allegedly
offcial acts that it might warrant protection, ante, at 628.
If the majority's sweeping conception of “offcial 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 Depart-
ment with immunity, see ante, at 619–621; 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”
any party briefed by designating certain conduct offcial in the frst in-
stance. See ibid. (noting “the lack of factual analysis in the lower courts,
and the lack of briefng on how to categorize the conduct alleged”). In
reaching out to shield some conduct as offcial while refusing to recognize
any conduct as unoffcial, the majority engages in judicial activism, not
judicial restraint.
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function,' ” and it further admits that the President “plays
no
direct constitutional or statutory role” in the counting of
electoral votes. Ante, at 624. Yet the majority refuses to
conclude that Trump lacks immunity for his alleged attempts
to “enlist the Vice President to use his ceremonial role at the
January 6 certifcation proceeding to fraudulently alter the
election results.” App. 187, Indictment ¶10(d). Instead, it
worries that a prosecution for this conduct might make it
harder for the President to use the Vice President “to ad-
vance [his] agenda in Congress.” Ante, at 624. Such a
prosecution, according to the majority, “may well hinder the
President's ability to perform his constitutional functions.”
Ibid. Whether a prosecution for this conduct warrants im-
munity should have been an easy question, but the majority
turns it into a debatable one. Remarkably, the majority
goes further and declines to deny immunity even for the alle-
gations that Trump organized fraudulent elector slates, pres-
sured States to subvert the legitimate election results,
and exploited violence at the Capitol to infuence the certif-
cation proceedings. It is not conceivable that a prosecu-
tion for these alleged efforts to overturn a Presidential elec-
tion, whether labeled offcial or unoffcial under the majori-
ty's test, would pose any “ `dangers of intrusion on the
authority and functions of the Executive Branch,' ” ante, at
615, and the majority could have said as much. Instead,
it perseverates on a threshold question that should be
immaterial.
Looking beyond the fate of this particular prosecution, the
long-term consequences of today's decision are stark. The
Court effectively creates a law-free zone around the Presi-
dent, upsetting the status quo that has existed since the
founding. This new offcial-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 f-
nancial gain, above the interests of the Nation. Korematsu
v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dis-
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senting). The President of the United States is the most
power
ful person in the country, and possibly the world.
When he uses his offcial powers in any way, under the ma-
jority's reasoning, he now will be insulated from criminal
prosecution. Orders the Navy's Seal Team 6 to assassinate
a political rival? Immune. Organizes a military coup to
hold on to power? Immune. Takes a bribe in exchange for
a pardon? Immune. Immune, immune, immune.
Let the President violate the law, let him exploit the trap-
pings of his offce for personal gain, let him use his offcial
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 offcial power, the Presi-
dent is now a king above the law.
***
The majority's single-minded fxation 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 ques-
tion: “Does it also combine the requisites to safety, in a
republican sense,—a due dependence on the people, a due
responsibility?” The Federalist No. 77, p. 507 (J. Harv. Lib.
ed. 2009). The answer then was yes, based in part upon
the President's vulnerability to “prosecution in the common
course of law.” Ibid. The answer after today is no.
Never in the history of our Republic has a President had
reason to believe that he would be immune from criminal
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UMP v. UNITED STATES
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prosecution if he used the trappings of his offce to violate
the
criminal law. Moving forward, however, all former
Presidents will be cloaked in such immunity. If the occu-
pant of that offce misuses offcial 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.
Justice Jackson, dissenting.
Justice Sotomayor has thoroughly addressed the Court's
fawed reasoning and conclusion as a matter of history, tradi-
tion, law, and logic. I agree with every word of her power-
ful dissent. I write separately to explain, as succinctly as I
can, the theoretical nuts and bolts of what, exactly, the ma-
jority 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 frst acknowledge what it means to have
immunity from criminal prosecution. Put simply, immunity
is “exemption” from the duties and liabilities imposed by law.
Black's Law Dictionary 898 (11th ed. 2019); see Hopkins v.
Clemson, 221 U. S. 636, 643 (1911) (explaining that immunity
is “exemption from legal process”). In its purest form, the
concept of immunity boils down to a maxim—“ `[t]he King
can do no wrong ' ”—a notion that was frmly “rejected at the
birth of [our] Republic.” Clinton v. Jones, 520 U. S. 681,
697, n. 24 (1997) (quoting 1 W. Blackstone, Commentaries
*246 (Blackstone)); see United States v. Burr, 25 F. Cas. 30,
34 (No. 14,692d) (CC Va. 1807). To say that someone is im-
mune 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
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Jackson, J., dissenting
having a defense under the law. Rather, it means that the
law
does not apply to the immunized person in the frst place.
Conferring immunity therefore “create[s] a privileged class
free from liability for wrongs inficted or injuries threat-
ened.” Hopkins, 221 U. S., at 643.
It is indisputable that immunity from liability for wrongdo-
ing 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 frst and fnal 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, 330 U. S.
258, 308 (1947) (Frankfurter, J., concurring in judgment).
A corollary to that principle sets the terms for this case:
“No man in this country is so high that he is above the law.
No offcer of the law may set that law at defance with impu-
nity. All the offcers of the government, from the highest to
the lowest, are creatures of the law, and are bound to obey
it.” United States v. Lee, 106 U. S. 196, 220 (1882). We
have long lived with the collective understanding that “[d]e-
cency, security and liberty alike demand that government
offcials shall be subjected to the same rules of conduct that
are commands to the citizen,” for “[i]n a government of laws,
existence of the government will be imperilled if it fails to
observe the law scrupulously.” Olmstead v. United States,
277 U. S. 438, 485 (1928) (Brandeis, J., dissenting).
II
A
These foundational presuppositions are refected in a pro-
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688 TR
UMP v. UNITED STATES
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in the realm of criminal law—what I would call an individual
account
ability 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 defne a
crime, and ordain its punishment.” United States v. Wilt-
berger, 5 Wheat. 76, 95 (1820); accord, Ohio v. Johnson, 467
U. S. 493, 499 (1984). Criminal statutes are laws of general
applicability that express “the assent of the people's repre-
sentatives” that certain conduct is off limits in our society.
Wooden v. United States, 595 U. S. 360, 391 (2022) (Gor-
such, 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 viola-
tion, it persuades a grand jury that there is probable cause
to indict. U. S. Const., Amdt. 5. Then, the Government
marshals evidence to prove beyond a reasonable doubt that
the defendant engaged in the prohibited conduct and pos-
sessed the requisite state of mind. See United States v.
Bailey, 444 U. S. 394, 402 (1980) (observing that, to hold a
person criminally liable, “the concurrence of . . . `an evil-
meaning mind [and] an evil-doing hand' ” must be proved
(quoting Morissette v. United States, 342 U. S. 246, 251
(1952))).
For his part, the defendant “stands accused but is pre-
sumed innocent until conviction upon trial or guilty plea.”
Betterman v. Montana, 578 U. S. 437, 441 (2016). Notably,
criminal defendants have various constitutionally protected
rights during the criminal-liability process, including the
rights to a speedy and public trial, the right to have a jury
decide guilt or innocence, the right to the assistance of coun-
sel, 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
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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
vi olating is unconstituti ona lly vag ue. See Ham l ing v.
United States, 418 U. S. 87, 117 (1974); United States v.
Davis, 588 U. S. 445, 451 (2019). He might further claim
that the law is unconstitutional as applied to his particular
conduct. See United States v. O'Brien, 391 U. S. 367, 376
(1968). And he might maintain that his conduct, even if
proved, does not violate the law at issue. See, e. g., Fischer
v. United States, 603 U. S. 480, 484–485 (2024).
The defendant may also raise, and attempt to prove, af-
frmative defenses that “excuse conduct that would other-
wise be punishable.” Dixon v. United States, 548 U. S. 1, 6
(2006). Generally speaking, affrmative defenses are deter-
minations (often adopted by legislation) that certain conduct
otherwise punishable by law is justifed. This might be the
case, for example, when the Legislature determines that,
under specifed circumstances, the societal harm particular
conduct causes “is outweighed by the need to avoid an even
greater harm.” 1 P. Robinson, Criminal Law Defenses
§ 24(a) (1984) (Robinson).
Importantly, a defense is not an immunity, even though a
defense can likewise result in a person charged with a crime
avoiding liability for his criminal conduct. Consistent with
our foundational norms, the individual accountability model
adheres to the presumption that the law applies to all and
that everyone must follow it; yet, the model makes allow-
ances for recognized defenses. One such defense is the spe-
cial privilege that Government offcials sometimes invoke
when carrying out their offcial duties.
1
1
See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds
which otherwise would be criminal, such as taking or destroying property,
taking hold of a person by force and against his will, placing him in con-
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All of this is to say that our Government has long func-
ti
oned under an accountability paradigm in which no one is
above the law; an accused person is innocent until proven
guilty; and criminal defendants may raise defenses, both
legal and factual, tailored to their particular circumstances,
whether they be Government offcials or ordinary citizens.
For over two centuries, our Nation has survived with these
principles intact.
B
With that understanding of how our system of accountabil-
ity for criminal acts ordinarily functions, it becomes much
easier to see that the majority's ruling in this case breaks
new and dangerous ground. Departing from the traditional
model of individual accountability, the majority has con-
cocted something entirely different: a Presidential account-
ability model that creates immunity—an exemption from
criminal law—applicable only to the most powerful offcial 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 606 (asserting that “the
nature of Presidential power requires that a former President
have some immunity from criminal prosecution for offcial
acts during his tenure in offce”). Instead of no immunity
(the individual accountability model) or an unqualifed grant
of absolute immunity for “all offcial acts,” Brief for Peti-
tioner 44 (emphasis added), the majority purports to adopt
fnement, or even taking his life, are not crimes if done with proper public
authority”); see also 2 Robinson § 141(a) (describing the public-authority
defense, under which a defendant may escape liability if he “has been
specifcally authorized to engage in the conduct constituting the offense in
order to protect or further a public interest”); Brief for United States 29–
30, and n. 11; ante, at 671, n. 3 (Sotomayor, J., dissenting) (citing Nardone
v. United States, 302 U. S. 379, 384 (1937)).
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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 offce, to be determined on a
case-by-case basis. According to the majority, whether a
former President is immune depends on how his criminal
conduct is classifed, 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 author-
ity”—the President is entitled to absolute immunity from
criminal prosecution. See ante, at 606, 609. Second, ex-
panding outward from this “core,” regarding all other “acts
within the outer perimeter of [the President's] offcial re-
sponsibility,” the President is entitled to “at least a presump-
tive immunity from criminal prosecution.” Ante, at 614.
Third, if the criminal conduct at issue comprises “unoffcial
acts, there is no immunity.” Ante, at 615.
3
2
Its feigned judicial humility notwithstanding, see ante, at 641, 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 criminal
prosecution for “all” acts within the outer perimeter of his offcial duties.
See Opening Brief for Defendant-Appellant in No. 23–3228 (CADC, Dec.
23, 2023), p. 9; 91 F. 4th 1173, 1188–1189, 1195, 1208 (CADC 2024) (per cu-
riam); Brief for Petitioner 41–47 (arguing for absolute immunity for “all
actions within the `outer perimeter' ” of a President's responsibilities, and
imploring the Court not to adopt a “ `function-based' approach”). Thus, it
would have been enough for the Court simply to reject petitioner's cate-
gorical claim and leave it at that. But the majority sua sponte rephrased
the question presented, and it now takes full advantage of this opportunity
to devise from whole cloth an entirely new legal framework for judicial
evaluation of potential criminal immunity for former Presidents.
3
It is important to note that the majority reframes the immunity question
presented here as a separation of powers concern that is compelled by Arti-
cle II—as if what is being asked is whether Congress can criminalize execu-
tive prerogatives. See, e. g., ante, at 606–607; see also ante, at 650–652
(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 specifcally criminalizes the President's use of any power that the
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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 frst 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 qualifes
as an “offcial” act or “unoffcial” act of that President. If
the crime is an offcial 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 unoffcial act (a determination that, inciden-
tally, courts must make without considering the President's
motivations, ante, at 618), the President is not immune.
4
Constitution vests exclusively in the Executive, much less that the Judi-
ciary is being conscripted to adjudicate the propriety of such a statute.
To the contrary, the indictment here invokes criminal statutes of general
applicability that everyone is supposed to follow, both on and off the job.
So, the real question is: Can the President, too, be held accountable for
committing crimes while he is undertaking his offcial duties? The nature
of his authority under Article II (whether conclusive and preclusive, or
shared with Congress, or otherwise) is entirely beside the point.
4
Justice Barrett's version of the Presidential accountability para-
digm works slightly differently; she would have us ask, frst, “whether
the relevant criminal statute reaches the President's offcial conduct.”
Ante, at 652. But, again, what is at issue here are statutes of general
applicability—they only “reach” the President's conduct to the extent that
he chooses to engage in the prohibited behavior. See n. 3, supra. Jus-
tice 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 offcial duties using
means that violate criminal law.
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2
The
majority's multilayered, multifaceted threshold pars-
ing of the character of a President's criminal conduct differs
from the individual accountability model in several crucial
respects. For one thing, it makes it next to impossible to
know ex ante when and under what circumstances a Presi-
dent will be subject to accountability for his criminal acts.
For every allegation, courts must run this gauntlet frst—
no matter how well documented or heinous the criminal act
might be.
Thus, even a hypothetical President who admits to having
ordered the assassinations of his political rivals or critics,
see, e. g., Tr. of Oral Arg. 9, or one who indisputably insti-
gates an unsuccessful coup, id., at 41–43, has a fair shot at
getting immunity under the majority's new Presidential ac-
countability model. That is because whether a President's
conduct will subject him to criminal liability turns on the
court's evaluation of a variety of factors related to the char-
acter of that particular act—specifcally, those characteris-
tics that imbue an act with the status of “offcial” or “unoff-
cial” conduct (minus motive). In the end, then, under the
majority's new paradigm, whether the President will be ex-
empt from legal liability for murder, assault, theft, fraud, or
any other reprehensible and outlawed criminal act will turn
on whether he committed that act in his offcial capacity, such
that the answer to the immunity question will always and
inevitably be: It depends.
Under the individual accountability paradigm, the account-
ability 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
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not do; no one has to worry about characterizing any criminal
conduc
t as offcial or unoffcial in order to assess the applica-
bility 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 every-
one 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 confnes of criminal prohibitions, the Presi-
dent cannot be made to do so; he must sometimes be exempt
from the law's dictates depending on the character of his
conduct. Indeed, the majority holds that the President, un-
like anyone else in our country, is comparatively free to
engage in criminal acts in furtherance of his offcial 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 crimi-
nal conduct, so long as he is committing crimes “pursuant to
the powers invested exclusively in him by the Constitution,”
ante, at 607, or as needed “to carry out his constitutional
duties without undue caution,” ante, at 614, he is likely to be
deemed immune from prosecution.
5
Ultimately, the majority's model simply sets the criminal
law to one side when it comes to crimes allegedly committed
5
To fully appreciate the oddity of making the criminal immunity deter-
mination turn on the character of the President's responsibilities, consider
what the majority says is one of the President's “conclusive and preclu-
sive” prerogatives: “ `[t]he President's power to remove . . . those who
wield executive power on his behalf.' ” Ante, at 608 (quoting Seila Law
LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204 (2020)).
While the President may have the authority to decide to remove the At-
torney General, for example, the question here is whether the President
has the option to remove the Attorney General by, say, poisoning him to
death. Put another way, the issue here is not whether the President has
exclusive removal power, but whether a generally applicable criminal law
prohibiting murder can restrict how the President exercises that authority.
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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 apply
to Presidents, no matter how obviously illegal, harmful, or
unacceptable a President's offcial behavior might be. Re-
gardless of all that, courts must now ensure that a former
President is not held accountable for any criminal conduct
he engages in while he is on duty, unless his conduct consists
primarily (and perhaps solely) of unoffcial acts.
3
The structure and function of the two accountability para-
digms are not the only differences—the models also assign
different roles to participants in the criminal justice system,
and they ultimately generate different relationships between
the Presidency and the Rule of Law.
Under the individual accountability model, duty-bound
prosecutorial offcers initially exercise their discretion to de-
cide whether to seek punishment for alleged violations of
criminal law (a determination that is made based on numer-
ous 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 Pres-
ident) will actually be held to account for having engaged
in unlawful conduct, after the court has resolved any legal
challenges and has instructed the jury as to the require-
ments 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, marshaling
their resources to conduct a complex and amorphous thresh-
old immunity evaluation. Whether a former President will
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be entirely exempted from the dictates of the law (such that
the
roles of other participants in the criminal justice process
become irrelevant) requires a judicial assessment, in the frst
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 affrmative 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 justifed
in committing a criminal act while in offce under the given
circumstances. In other words, while the President might
indeed be privileged to commit a crime in the course of his
offcial duties, any such privilege exists only when the People
(acting either through their elected representatives or as
members of a jury) determine that the former President's
conduct was in fact justifed, 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-
cuse; the law simply does not apply to him. Unlike a de-
fendant who invokes an affrmative defense and relies on a
legal determination that there was a good reason for his oth-
erwise unlawful conduct, a former President invoking immu-
nity relies on the premise that he can do whatever he wants,
however he wants, so long as he uses his “ `offcial power' ”
in doing so. Ante, at 620. 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 conse-
quences that are likely to follow from the majority's decision
in this case. Ante, at 684–685 (dissenting opinion). I have
thus far endeavored merely to explain what today's ruling
amounts to on a theoretical level: the Court's abandonment
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of the individual accountability model as applied to Presi-
dents,
and its introduction of a new Presidential accountabil-
ity model that authorizes the Judiciary to exempt Presidents
from punishment under law, depending on the offcial or unof-
fcial 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 undermines
the constraints of the law as a deterrent for future Presi-
dents who might otherwise abuse their power, to the detri-
ment of us all.
A
Consider the structural implications of today's decision
from the standpoint of the separation of powers. Until now,
Congress's laws, passed by the representatives of the People,
bound the People and their elected offcials just the same.
Law, we have explained, “is the only supreme power in our
system of government, and every man who by accepting of-
fce participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limi-
tations which it imposes upon the exercise of the authority
which it gives.” Lee, 106 U. S., at 220. With its adoption
of a paradigm that sometimes exempts the President from
the dictates of the law (when the Court says so), this Court
has effectively snatched from the Legislature the authority
to bind the President (or not) to Congress's mandates, and it
has also thereby substantially augmented the power of both
the Offce of the Presidency and itself.
As to the former, it should go without saying that the Of-
fce of the Presidency, the apex of the Executive Branch, is
made signifcantly more powerful when the constraints of the
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criminal law are lifted with respect to the exercise of a Presi-
dent'
s offcial duties. After today's ruling, the President
must still “take Care that the Laws be faithfully executed,”
Art. II, § 3; yet, when acting in his offcial 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 mean-
ingful 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 pow-
ers with respect to which the President is now entitled to
absolute immunity—a list that apparently includes the re-
moval power, the power to recognize foreign nations, and the
pardon power. Ante, at 607–609. However, the majority
does not—and likely cannot—supply any useful or adminis-
trable defnition of the scope of that “core.” For what it's
worth, the Constitution's text is no help either; Article II
does not contain a Core Powers Clause.
6
So the actual
metes and bounds of the “core” Presidential powers are
really anyone's guess.
Nor does the majority explain how to consistently distin-
guish between offcial and unoffcial 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 diffcult”—likely a
gross understatement given the recognized “breadth of the
6
Some of the powers the majority designates as “core” powers are, at
best, implied from indefnite constitutional language. See, e. g., Seila
Law, 591 U. S., at 268–269 (Kagan, J., concurring in judgment with respect
to severability and dissenting in part) (“Nowhere does the text say any-
thing about the President's power to remove subordinate offcials at will”);
Zivotofsky v. Kerry, 576 U. S. 1, 11 (2015) (“[T]he Constitution does not
use the term `recognition,' either in Article II or elsewhere”); id., at 63
(Roberts, C. J., dissenting) (calling the “asserted textual bases” for an
exclusive Presidential recognition power “tenuous”).
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President's `discretionary responsibilities' under the Consti-
tuti
on and laws of the United States.” Ante, at 617. The
majority likewise provides no guidance as to when, how, or
why the President's “presumptive” immunity for noncore of-
fcial acts might be rebutted, saying only that applying the
criminal law to a President's acts must pose “no `dangers of
intrusion on the authority and functions of the Executive
Branch.' ” Ante, at 615 (quoting Nixon v. Fitzgerald, 457
U. S. 731, 754 (1982)).
At most, to distinguish offcial from unoffcial conduct, the
majority advises asking whether the former President's con-
duct was “ `manifestly or palpably beyond [his] authority.' ”
Ante, at 618 (quoting Blassingame v. Trump, 87 F. 4th 1, 13
(CADC 2023)). But that test can be illusory, as is evidenced
by the facts alleged in this very case. With respect to the
indictment's allegations concerning petitioner's attempt to
assemble false slates of electors in conjunction with the
events of January 6, 2021, for example, the majority admits
that the “alleged conduct cannot be neatly categorized,” and
that “[t]he analysis therefore . . . may prove to be challeng-
ing.” Ante, at 628–629. 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—except
as relates to the President under the new paradigm the ma-
jority 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 mat-
ter, what conduct is on or off limits, the Court has now arro-
gated that power unto itself when that question pertains to
the President. In essence, the Court has now imposed its
own preclearance requirement on the application of Con-
gress's laws to a former President alleged to have committed
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crimes while in offce. Who will be responsible for drawing
the
crucial “ `line between [the President's] personal and of-
fcial affairs' ”? Ante, at 629. To ask the question is to know
the answer. A majority of this Court, applying an indeter-
minate test, will pick and choose which laws apply to which
Presidents, by labeling his various allegedly criminal acts
as “core,” “offcial,” or “manifestly or palpably” beyond the
President's authority.
Ironically, then, while purportedly seeking to transcend
politics, see ante, at 641–642, the Court today displaces the
independent judgments of the political branches about the
circumstances under which the criminal law should apply.
Effectively, the Court elbows out of the way both Congress
and prosecutorial authorities within the Executive Branch,
making itself the indispensable player in all future attempts
to hold former Presidents accountable to generally applicable
criminal laws. “The Framers, however, did not make the
judiciary the overseer of our government.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 594 (1952) (Frank-
furter, J., concurring). To be sure, this Court may some-
times “have to intervene in determining where authority lies
as between the democratic forces in our scheme of govern-
ment.” Id., at 597. But it has long been understood that
“we should be wary and humble” when doing so. Ibid.
The majority displays no such caution or humility now.
Instead, the Court today transfers from the political
branches to itself the power to decide when the President
can be held accountable. What is left in its wake is a greatly
weakened Congress, which must stand idly by as the Presi-
dent disregards its criminal prohibitions and uses the powers
of his offce to push the envelope, while choosing to follow
(or not) existing laws, as he sees ft. We also now have a
greatly empowered Court, which can opt to allow Congress's
policy judgments criminalizing conduct to stand (or not) with
respect to a former President, as a matter of its own
prerogative.
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B
If
the structural consequences of today's paradigm shift
mark a step in the wrong direction, then the practical con-
sequences are a fve-alarm fre that threatens to consume
democratic self-governance and the normal operations of our
Government. The majority shoos away this possibility.
Ante, at 637 (accusing the dissents of “strik[ing] a tone of
chilling doom that is wholly disproportionate to what the
Cour t actua lly does today”). But Justice Sotomayor
makes this point plain, see ante, at 684–685, 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 justifcation for adopting and maintaining systems that
ensure accountability for criminal conduct.
7
For that same
reason, some commentators also maintain that decreasing
the certainty of accountability for wrongful acts at least ar-
guably reduces incentives to follow the law.
8
Under the individual accountability model, because every-
one is subject to the law, the potential of criminal liability
operates as a constraint on the actions and decisions of ev-
eryone, including the President. After today, that reality is
no more. Consequently, our Nation has lost a substantial
7
See, e. g., Plato, Laws 274 (B. Jowett transl. 2000) (“Not that he is pun-
ished because he did wrong, for that which is done can never be undone,
but in order that in future times, he, and those who see him corrected,
may utterly hate injustice, or at any rate abate much of their evil-doing ”);
see also J. Bentham, The Rationale of Punishment 20 (1830) (“General pre-
vention ought to be the chief end of punishment, as it is its real justifca-
tion”); A. von Hirsch, Doing Justice: The Choice of Punishments 44 (1976)
(“The threat and imposition of punishment is called for in order to secure
compliance—not full compliance, but more compliance than there might be
were there no legal penalties at all”).
8
See, e. g., M. Ryan, Taking Another Look at Second-Look Sentencing,
81 Brooklyn L. Rev. 149, 156, and n. 37 (2015) (“[U]ndermining the . . .
certainty of punishment . . . could undermine the deterrence value of
punishment”).
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check on Presidents who would use their offcial powers to
commit
crimes with impunity while in offce.
So, one might ask, what remains of accountability for Pres-
idents under law? With today's paradigm shift, the major-
ity leaves in place only the chance that this Court might
someday determine that the criminal conduct in question
was an “unoffcial” act, or that the Government will somehow
rebut the presumption of immunity that applies to a Presi-
dent's offcial acts, such that criminal consequences might
attach. But with the parameters of offcial and unoffcial
conduct unknown, I think it highly unlikely that a sitting
President wou ld feel constrai ned by these remote
possibilities.
All of this leads me to ponder why, exactly, has the major-
ity concluded that an indeterminate “core”-versus-“offcial”-
versus-“unoffcial” 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 Pres-
idential accountability model might nevertheless be offset by
the great benefts of doing so? Cf. J. Bentham, A Fragment
on Government and an Introduction to the Principles of Mor-
als and Legislation 3 (W. Harrison ed. 1948) (arguing that
acts can be justifed 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 Execu-
tive.” Ante, at 613. The Court's opinion candidly laments
that application of the law to Presidents might not be even-
handed, and that, as a result, Presidents might be less “ `vig-
orous' and `energetic' ” as executive offcers. Ante, at 610; ac-
cord, ante, at 639. But that concern ignores (or rejects) the
foundational principles upon which the traditional individual
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accountability paradigm is based. Worse still, promoting
more
vigor from Presidents in exercising their offcial du-
ties—and, presumably, less deliberation—invites breathtak-
ing risks in terms of harm to the American people that, in
my view, far outweigh the benefts.
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, 343 U. S., at 613 (Frankfurter, J., concurring). But
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 effci-
ency but to preclude the exercise of arbitrary power. The
purpose was, not to avoid friction, but . . . to save the people
from autocracy.” Myers v. United States, 272 U. S. 52, 293
(1926) (Brandeis, J., dissenting).
Having now cast the shadow of doubt over when—if
ever—a former President will be subject to criminal liability
for any criminal conduct he engages in while on duty, the
majority incentivizes all future Presidents to cross the line
of criminality while in offce, knowing that unless they act
“manifestly or palpably beyond [their] authority,” ante, at
618, 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
unoffcial capacity.” Ante, at 639 (emphasis added). This
attempted reassurance is cold comfort, even setting aside the
fact that the Court has neglected to lay out a standard that
reliably distinguishes between a President's offcial and unof-
fcial conduct. Why? Because there is still manifest ineq-
uity: Presidents alone are now free to commit crimes when

704 TR
UMP v. UNITED STATES
Jackson, J., dissenting
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 offcial-versus-unoffcial act distinction also
seems both arbitrary and irrational, for it suggests that the
unoffcial 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 offcial pow-
ers 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,” ante, at 639–640,
actually underscores, rather than undermines, the grim
stakes of setting the criminal law to the side when the Presi-
dent fexes those very powers.
The vision John Adams enshrined in the Massachusetts
Declaration of Rights—“ `a government of laws and not of
men' ”—speaks directly to this concept. Mine Workers, 330
U. S., at 307 (Frankfur ter, J., concurr i ng in judg ment).
Adams characterized that document as an homage to the
Rule of Law; it refected both a fat “rejection in positive
terms of rule by fat” and a solemn promise that “[e]very act
of government may be challenged by an appeal to law.” Id.,
at 308. Thanks to the majority, that vision and promise
are likely to be feeting in the future. From this day for-
ward, Presidents of tomorrow will be free to exercise the
Commander-in-Chief powers, the foreign-affairs powers, and
all the vast law enforcement powers enshrined in Article II
however they please—including in ways that Congress has
deemed criminal and that have potentially grave conse-
quences for the rights and liberties of Americans.
IV
To the extent that the majority's new accountability para-
digm allows Presidents to evade punishment for their crim-
inal acts while in offce, 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
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as: 603 U. S. 593 (2024)
705
Jackson, J., dissenting
to determine for himself what is law, every man can. That
means
frst chaos, then tyranny.” Id., at 312. Likewise,
“[i]f the Government becomes a lawbreaker, it breeds con-
tempt for law; it invites every man to become a law unto
himself; it invites anarchy.” Olmstead, 277 U. S., at 485
(Brandeis, J., dissenting). I worry that, after today's ruling,
our Nation will reap what this Court has sown.
Stated simply: The Court has now declared for the frst
time in history that the most powerful offcial 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
attentive, consistently fulflling their established role in our
constitutional democracy, and thus collectively serving as the
ultimate safeguard against any chaos spawned by this
Court's decision. For, like our democracy, our Constitution
is “the creature of their will, and lives only by their will.”
Cohens v. Virginia, 6 Wheat. 264, 389 (1821).
For my part, I simply cannot abide the majority's senseless
discarding of a model of accountability for criminal acts that
treats every citizen of this country as being equally subject
to the law—as the Rule of Law requires. That core princi-
ple has long prevented our Nation from devolving into despo-
tism. Yet the Court now opts to let down the guardrails of
the law for one extremely powerful category of citizen: any
future President who has the will to fout Congress's estab-
lished boundaries.
In short, America has traditionally relied on the law to
keep its Presidents in line. Starting today, however, Ameri-
cans 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 Presi-
dent have to be let go and which can be redressed as imper-
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Jackson, J., dissenting
missible. So, ultimately, this Court itself will decide
whether
the law will be any barrier to whatever course of
criminality emanates from the Oval Offce 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 accountability
paradigm. I fear that they are wrong. But, for all our
sakes, I hope that they are right.
In the meantime, because the risks (and power) the Court
has now assumed are intolerable, unwarranted, and plainly
antithetical to bedrock constitutional norms, I dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 608, line 14: “, and later President Johnson,” is inserted after “Lincoln”