From Trump vs United States:

Posted on: July 2, 2024 at 18:39:13 CT

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

His authority to act necessarily “stem[s] either from an
act of Congress or from the Constitution itself.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579, 585. In the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id., at 638
(Jackson, J., concurring). When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one
targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional
power. Neither may the courts adjudicate a criminal prosecution that
examines such Presidential actions. The Court thus concludes that
the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. Pp. 6–9.
(2) Not all of the President’s official acts fall within his “conclusive
and preclusive” authority. The reasons that justify the President’s absolute 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 President’s immunity in this context, the Court looks primarily to the Framers’ 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. P.
9.
(i) The Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J.
Cooke ed. 1961) (A. Hamilton). They vested the President with “supervisory 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 proceedings that might render him “unduly cautious in the discharge of
his official duties,” the Court has recognized Presidential immunities
and privileges “rooted in the constitutional tradition of the separation
of powers and supported by our history.” 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 official 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 official decision.” Clinton v. Jones, 520 U. S. 681, 694, n. 19.
By contrast, when prosecutors have sought evidence from the President, 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 subpoena. Marshall simultaneously recognized, however, the existence of a “privilege” to withhold certain “official paper[s].” United
States v. Burr, 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 “absolute privilege.” United States v. Nixon, 418 U. S. 683,
703. But recognizing “the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking,” it held that a
“presumptive privilege” protects Presidential communications. Id., at
708. Because 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. 9–12.
(ii) Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and
functions of the Executive Branch than simply seeking evidence in his
possession. 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 action” required of an independent Executive. Fitzgerald, 457 U. S., at
745. Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and
imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil
damages. The hesitation to execute the duties of his office fearlessly
and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579
U. S. 550, 575, 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 concludes that the separation of powers principles explicated in the
Court’s precedent necessitate at least a presumptive immunity from
criminal prosecution for a President’s acts within the outer perimeter
of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive



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Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be
immune from prosecution for an official act unless the Government can
show that applying a criminal prohibition to that act would pose no
“dangers of intrusion on the authority and functions of the Executive
Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.
(3) As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure
that the President’s decisionmaking is not distorted by the threat of
future litigation stemming from those actions, that concern does not
support immunity for unofficial conduct. Clinton, 520 U. S., at 694,
and n. 19. The separation of powers does not bar a prosecution predicated on the President’s unofficial acts. P. 15.
(b) The first step in deciding whether a former President is entitled
to immunity from a particular prosecution is to distinguish his official
from unofficial actions. In this case, no court thus far has drawn that
distinction, in general or with respect to the conduct alleged in particular. It is therefore incumbent upon the Court to be mindful that it is
“a court of final review and not first view.” Zivotofsky v. Clinton, 566
U. S. 189, 201. Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how
to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct. The Court offers guidance on
those issues. Pp. 16–32.
(1) When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his
office. Fitzgerald, 456 U. S., at 757. Determining whether an action
is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United
States frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. The
immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so
long as they are “not manifestly or palpably beyond [his] authority.”
Blassingame v. Trump, 87 F. 4th 1, 13 (CADC).
In dividing official from unofficial conduct, courts may not inquire
into the President’s motives. Such a “highly intrusive” inquiry would
risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial
merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on “every allegation that
an action was unlawful,” depriving immunity of its intended effect.




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Ibid. Pp. 17–19.
(2) With the above principles in mind, the Court turns to the conduct alleged in the indictment. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are
readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—
such as those involving Trump’s interactions with the Vice President,
state officials, and certain private parties, and his comments to the
general public—present more difficult questions. Pp. 19–30.
(i) The indictment alleges that as part of their conspiracy to
overturn the legitimate results of the 2020 presidential election,
Trump and his co-conspirators attempted to leverage the Justice Department’s power and authority to convince certain States to replace
their legitimate electors with Trump’s fraudulent slates of electors.
According to the indictment, Trump met with the Acting Attorney
General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a
letter from the Department to those States regarding such fraud. The
indictment further alleges that after the Acting Attorney General 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 official
power. The allegations in fact plainly implicate Trump’s “conclusive
and preclusive” 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 exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the
alleged conduct involving his discussions with Justice Department officials. Pp. 19–21.
(ii) The indictment next alleges that Trump and his co-conspirators “attempted to enlist the Vice President to use his ceremonial role
at the January 6 certification proceeding to fraudulently alter the election results.” 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





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to state legislatures for review.
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count
the electoral votes is a constitutional and statutory duty of the Vice
President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s
allegations that Trump attempted to pressure the Vice President to
take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity
is rebutted under the circumstances. It is the Government’s burden to
rebut the presumption of immunity. The Court therefore remands to
the District Court to assess in the first instance whether a prosecution
involving Trump’s alleged attempts to influence the Vice President’s
oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch. Pp.
21–24.
(iii) The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials,
private parties, and the general public. In particular, the indictment
alleges that Trump and his co-conspirators attempted to convince certain state officials that election fraud had tainted the popular vote
count in their States, and thus electoral votes for Trump’s opponent
needed to be changed to electoral votes for Trump. After Trump failed
to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit
fraudulent slates of Presidential electors to obstruct the certification
proceeding. On Trump’s view, the alleged conduct qualifies as official
because it was undertaken to ensure the integrity and proper 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 actions. Determining whose characterization may
be correct, and with respect to which conduct, requires a fact-specific
analysis of the indictment’s extensive and interrelated allegations.
The Court accordingly remands to the District Court to determine in
the first instance whether Trump’s conduct in this area qualifies as
official or unofficial. Pp. 24–28.
(iv) The indictment also contains various allegations regarding
Trump’s conduct in connection with the events of January 6 itself. The
alleged conduct largely consists of Trump’s communications in the
form of Tweets and a public address. The President possesses “extraordinary 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

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communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in
which the President speaks in an unofficial capacity—perhaps as a
candidate for office or party leader. To the extent that may be the case,
objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the
communications alleged in the indictment involve official conduct may
depend on the content and context of each. This necessarily factbound
analysis is best performed initially by the District Court. The Court
therefore remands to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. Pp. 28–30.
(3) Presidents cannot be indicted based on conduct for which they
are immune from prosecution. On remand, the District Court must
carefully analyze the indictment’s remaining allegations to determine
whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must
ensure that sufficient allegations support the indictment’s charges
without such conduct. Testimony or private records of the President
or his advisers probing such conduct may not be admitted as evidence
at trial. Pp. 30–32.
(c) Trump asserts a far broader immunity than the limited one the
Court recognizes, contending that the indictment must be dismissed
because the Impeachment Judgment Clause requires that 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 concerned the checks available against a sitting President; they
did not endorse or even consider whether the Impeachment Judgment
Clause immunizes a former President from prosecution. Transforming
the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32–34.
(d) The Government takes a similarly broad view, contending that
the President enjoys no immunity from criminal prosecution for any
action. On its view, as-applied challenges in the course of the trial
suffice to protect Article II interests, and review of a district court’s
decisions on such challenges should be deferred until after trial. But
questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an
extended proceeding alone may render him “unduly cautious in the



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discharge of his official 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. 34–37.
(e) This case poses a question of lasting significance: When may a
former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and
the public at large, the Court cannot afford to fixate exclusively, or
even primarily, on present exigencies. Enduring separation of powers
principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is
official. The President is not above the law. But under our system of
separated powers, the President may not be prosecuted for exercising
his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity
applies equally to all occupants of the Oval Office. Pp. 41–43.
91 F. 4th 1173, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring
opinion. BARRETT, J., filed an opinion concurring in part. SOTOMAYOR,
J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.
JACKSON, J., filed a dissenting opinion. ...