PRELIMINARY PRINT

Volume 603 U. S. Part 1 Pages 593–706

OFFICIAL REPORTS OF

THE SUPREME COURT July 1, 2024

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2023 593

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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- Page Proof Pending Publication 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 & 594 TRUMP 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- Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 595

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a “privilege” to withhold certain “offcial 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 “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 Page Proof Pending Publication 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 596 TRUMP v. UNITED STATES

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future litigation stemming from those actions, that concern does not support 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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 597

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(i) The indictment alleges that as part of their conspiracy to over- turn 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 Page Proof Pending Publication 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. (ii) The indictment next alleges that Trump and his 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 particular acts in connection with his role at the certifcation proceeding 598 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 599

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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 probing such conduct may not be admitted as evidence at trial. 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 Page Proof Pending Publication 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 TRUMP v. UNITED STATES

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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. Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 601

Opinion of the Court

Chief Justice Roberts delivered the opinion of the Court. 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 Page Proof Pending Publication 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. Wolf; 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 TRUMP v. UNITED STATES

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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 primary means. First, he and his co- conspirators “used knowingly false claims of election fraud to get state legislators and election offcials to . . . change elec- Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 603

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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 Page Proof Pending Publication 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. 604 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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: Cite as: 603 U. S. 593 (2024) 605

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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- Page Proof Pending Publication 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,” 606 TRUMP v. UNITED STATES

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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, 124. 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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 607

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A Article II of the Constitution provides that “[t]he execu- tive Power shall be vested in a President of the United States of America.” § 1, cl. 1. The President's duties are of “unrivaled gravity and breadth.” Trump v. Vance, 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 Page Proof Pending Publication 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. 608 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 609

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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 Page Proof Pending Publication 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 610 TRUMP v. UNITED STATES

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extend to conduct in areas where his authority is shared with 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 611

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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 Page Proof Pending Publication 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. 612 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 613

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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 Page Proof Pending Publication “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 614 TRUMP v. UNITED STATES

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acts are routinely subjected to scrutiny in criminal prosecu- tions, “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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 615

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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 Page Proof Pending Publication 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 616 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 617

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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- Page Proof Pending Publication 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 618 TRUMP 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 functional lines finer than history and reason would support”). In dividing offcial from unoffcial conduct, courts may not Page Proof Pending Publication 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, Cite as: 603 U. S. 593 (2024) 619

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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. Page Proof Pending Publication 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 620 TRUMP v. UNITED STATES

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alleges that after the Acting Attorney General resisted Trump's requests, Trump repeatedly threatened to replace him. See, e. g., id., at 216–217, ¶¶74, 77. The Government does not dispute that the indictment's 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 Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 621

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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 Page Proof Pending Publication involving his discussions with Justice Department offcials.

2 The indictment next alleges that Trump and his co- conspirators “attempted to enlist the Vice President to use his ceremonial role at the January 6 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 622 TRUMP 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. Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 623

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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 Page Proof Pending Publication 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 624 TRUMP v. UNITED STATES

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Vice President presides over the January 6 certifcation pro- ceeding, 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 625

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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 allegations cover a broad range of conduct. Unlike the allegations describing Trump's communications with the Justice Department and the Vice President, these remaining allegations involve Trump's 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 Page Proof Pending Publication 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 626 TRUMP 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- Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 627

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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 Page Proof Pending Publication 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 628 TRUMP v. UNITED STATES

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those who from situation might be suspected of too great devotion 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 629

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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 Page Proof Pending Publication 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. 630 TRUMP v. UNITED STATES

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The indictment refects these challenges. It includes only select Tweets and brief snippets of the speech Trump deliv- ered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump's other communications on January 6 involve 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 Page Proof Pending Publication 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.” Cite as: 603 U. S. 593 (2024) 631

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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 Page Proof Pending Publication 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 632 TRUMP v. UNITED STATES

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tools may suffce to protect the constitutional rights of indi- vidual 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, Page Proof Pending Publication 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). Cite as: 603 U. S. 593 (2024) 633

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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. Historical evidence likewise lends little support 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 Page Proof Pending Publication 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 634 TRUMP v. UNITED STATES

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term in offce can never be held accountable for his criminal acts in the ordinary course of law. So if a President man- ages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to 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 Page Proof Pending Publication 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, Cite as: 603 U. S. 593 (2024) 635

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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 Page Proof Pending Publication 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 636 TRUMP v. UNITED STATES

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system's further protections: grand juries, a defendant's pro- cedural 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. Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 637

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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 Page Proof Pending Publication 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 principal dissent's starting 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- 638 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 639

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duct. See, e. g., post, at 662, 663, n. 2 (citing The Federalist No. 69; 4 Debates on the Constitution, at 109). The principal dissent's most compelling piece of evidence consists of ex- cerpted statements of Charles Pinckney from an 1800 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. Page Proof Pending Publication 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 640 TRUMP v. UNITED STATES

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Constitution vests in him sweeping powers and duties. Ac- counting 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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 641

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Finally, the principal dissent fnds it “troubling” that the Court 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— Page Proof Pending Publication 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 during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we 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 642 TRUMP v. UNITED STATES

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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.” Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 643

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Justice Thomas, concurring. Few 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 Page Proof Pending Publication 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 644 TRUMP 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 filled. The Appointments 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 Page this text. Proof The defaultPending Publication 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- Cite as: 603 U. S. 593 (2024) 645

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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. Page Proof Pending Publication 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 powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . .

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- cial Counsel is an offcer. 646 TRUMP 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 Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 647

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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 Page Proof Pending Publication (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. 648 TRUMP v. UNITED STATES

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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- Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 649

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§ 533, it provides that “[t]he Attorney General may appoint offcials . . . 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- Page Proof Pending Publication 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. 650 TRUMP v. UNITED STATES

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ated the Special Counsel's offce and gave the Attorney Gen- eral 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 Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 651

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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, Page Proof Pending Publication 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, 591 652 TRUMP v. UNITED STATES

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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., Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 653

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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 would unconstitutionally intrude 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 Page Proof Pending Publication 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 654 TRUMP v. UNITED STATES

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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- Page Proof Pending Publication 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). Cite as: 603 U. S. 593 (2024) 655

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Speech or Debate Clause grounds). The prospect of a trial court erroneously allowing the prosecution to proceed poses a unique danger to the “independence of the Executive Branch.” Trump v. Vance, 591 U. S. 786, 800 (2020). As the Court explains, the possibility that the President will be made to defend his 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 Page Proof Pending Publication 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 Nomination of Nelson A. Rockefeller To Be Vice President 656 TRUMP v. UNITED STATES

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Under the Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974) (suggesting that the federal bribery statute applies to the President). Yet excluding from trial any 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 657

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challenge the constitutionality of a criminal statute as ap- plied 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 Page Proof Pending Publication 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 658 TRUMP v. UNITED STATES

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legal authority and alter their state election processes, Trump 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- Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 659

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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 Page Proof Pending Publication 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 660 TRUMP v. UNITED STATES

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holding is unprecedented. See Part VI, infra. Finally, this majority's project will have disastrous consequences for the Presidency and for our democracy. See Part VII, infra.

III The main takeaway of today's decision is that all of a 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 661

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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 Page Proof Pending Publication 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 former Presidents. The majority 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- 662 TRUMP v. UNITED STATES

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ery,” Art. II, § 4, which implicates offcial acts almost by defnition.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 Page Proof Pending Publication 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.” Cite as: 603 U. S. 593 (2024) 663

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Delegate Charles Pinckney later explained that “[t]he Con- vention 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- Page Proof Pending Publication 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”). 664 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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 Nixon's acceptance of the pardon necessarily “rested on the Cite as: 603 U. S. 593 (2024) 665

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understanding that the former President faced potential criminal 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 Page Proof Pending Publication 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- 666 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 667

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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 [official-acts] immunity 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 Page Proof Pending Publication 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- 668 TRUMP v. UNITED STATES

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garding criminal liability. Under that rule, any use of off- cial 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- Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 669

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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. Page Proof Pending Publication 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 670 TRUMP v. UNITED STATES

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a questionable conception of the President as incapable of navigating 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 671

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bare assertion that the burden of exposure to federal crimi- nal 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- Page Proof Pending Publication 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 672 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 673

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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- Page Proof Pending Publication 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- 674 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 675

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The public's interest in prosecution is transparent: a fed- eral prosecutor herself acts on behalf of the United States. Even the majority acknowledges that the “[f]ederal 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 Page Proof Pending Publication 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”). 676 TRUMP 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, Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 677

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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, Page Proof Pending Publication 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 Brief for Petitioner 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- 678 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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”). Cite as: 603 U. S. 593 (2024) 679

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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 Page Proof Pending Publication 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 680 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 681

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doctrine that Trump did not seek and that rightly has no application 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 Page Proof Pending Publication 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. 682 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 683

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conceded, for example, that the allegation that Trump “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” “sounds private.” Tr. of Oral Arg. 29. He likewise conceded that the allegation that Trump “conspired with another private attorney who caused the 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– Page Proof Pending Publication 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. 684 TRUMP v. UNITED STATES

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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- Page Proof Pending Publication 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- Cite as: 603 U. S. 593 (2024) 685

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senting). The President of the United States is the most powerful 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- Page Proof Pending Publication 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 686 TRUMP 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.

Page Proof Pending I Publication 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 Cite as: 603 U. S. 593 (2024) 687

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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). Page Proof Pending Publication 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- cedural paradigm of rules and accountability that operates 688 TRUMP v. UNITED STATES

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in the realm of criminal law—what I would call an individual accountability model. The basic contours of that model are familiar, because they manifest in every criminal case. Criminal law starts with an act of the legislature, which holds the power “to 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 689

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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 violating is unconstitutionally vague. See Hamling v. United States, 418 U. S. 87, 117 (1974); United States v. Davis, 588 U. S. 445, 451 (2019). He might further claim that the law is unconstitutional as applied to his particular conduct. See United States v. O'Brien, 391 U. S. 367, 376 (1968). And he might maintain that his conduct, even if proved, does not violate the law at issue. See, e. g., Fischer v. United States, 603 U. S. 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 Page Proof Pending Publication 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- 690 TRUMP v. UNITED STATES

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All of this is to say that our Government has long func- tioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both 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 Page Proof Pending Publication 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)). Cite as: 603 U. S. 593 (2024) 691

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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

Page 2 Its feignedProof Pending judicial humility notwithstanding, Publication 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 692 TRUMP v. UNITED STATES

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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- Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 693

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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 Page Proof Pending Publication 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 694 TRUMP v. UNITED STATES

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not do; no one has to worry about characterizing any criminal conduct 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- Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 695

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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, Page Proof Pending Publication 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 696 TRUMP v. UNITED STATES

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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. Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 697

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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

Page ConsiderProof Pending the structural implicationsPublication 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 698 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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”). Cite as: 603 U. S. 593 (2024) 699

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President's `discretionary responsibilities' under the Consti- tution 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 Page Proof Pending Publication 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 700 TRUMP v. UNITED STATES

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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 Page Proof Pending Publication 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. Cite as: 603 U. S. 593 (2024) 701

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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 Court actually 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- Page Proof Pending Publication 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”). 702 TRUMP v. UNITED STATES

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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 would feel constrained 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 Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 703

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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 Page Proof Pending Publication 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 TRUMP v. UNITED STATES

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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 (Frankfurter, J., concurring in judgment). Adams characterized that document as an homage to the Page Proof Pending Publication 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 Cite as: 603 U. S. 593 (2024) 705

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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.” Page Proof Pending Publication 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- 706 TRUMP v. UNITED STATES

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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.

Page Proof Pending Publication 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 Page Proof Pending Publication 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”