Case Number: 23-939

Judge: John Roberts

Court: United States Supreme Court

Plaintiff's Attorney: Unknown

Defendant's Attorney: Solicitor General of the United States

Description: A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following theNovember 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the
outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official 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 affirmed. Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts.

Under our constitutional structure of separated powers, the nature
of Presidential power entitles a former President to absolute immunity
from criminal prosecution for actions within his conclusive and preclu-
sive constitutional authority. And he is entitled to at least presump-
tive immunity from prosecution for all his official acts. There is no
immunity for unofficial acts. Pp. 5–43.

(a) This case is the first criminal prosecution in our Nation’s history
of a former President for actions taken during his Presidency. Deter-
mining whether and under what circumstances such a prosecution
may proceed requires careful assessment of the scope of Presidential
power under the Constitution. The nature of that power requires that
a former President have some immunity from criminal prosecution for
official acts during his tenure in office.

President’s exercise of his core constitutional powers, this immunity
must be absolute. As for his remaining official actions, he is entitled
to at least presumptive immunity. Pp. 5–15.

(1) Article II of the Constitution vests “executive Power” in “a
President of the United States of America.” §1, cl. 1. The President
has duties of “unrivaled gravity and breadth.” Trump v. Vance, 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 &
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 author-
ity, Congress cannot act on, and courts cannot examine, the Presi-
dent’s actions. It follows that an Act of Congress—either a specific one
targeted at the President or a generally applicable one—may not crim-
inalize the President’s actions within his exclusive constitutional
power. Neither may the courts adjudicate a criminal prosecution that
examines such Presidential actions. The Court thus concludes that
the President is absolutely immune from criminal prosecution for con-
duct within his exclusive sphere of constitutional authority. Pp. 6–9.

(2) Not all of the President’s official acts fall within his “conclusive
and preclusive” authority. The reasons that justify the President’s ab-
solute immunity from criminal prosecution for acts within the scope of
his exclusive constitutional authority do not extend to conduct in areas
where his authority is shared with Congress. To determine the Presi-
dent’s immunity in this context, the Court looks primarily to the Fram-
ers’ design of the Presidency within the separation of powers, prece-
dent on Presidential immunity in the civil context, and criminal cases
where a President resisted prosecutorial demands for documents. P.
9.

(i) The Framers designed the Presidency to provide for a “vigor-
ous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J.
Cooke ed. 1961) (A. Hamilton). They vested the President with “su-
pervisory and policy responsibilities of utmost discretion and sensitiv-
ity.” Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the “unique
risks” that arise when the President’s energies are diverted by pro-
ceedings that might render him “unduly cautious in the discharge of
his official duties,” the Court has recognized Presidential immunities
and privileges “rooted in the constitutional tradition of the separation
of powers and supported by our history.” Id., at 749, 751, 752, n. 32.
In Fitzgerald, for instance, the Court concluded that a former Presi-
dent is entitled to absolute immunity from “damages liability for acts
within the ‘outer perimeter’ of his official responsibility.” Id., at 756.
The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needlessworry as to the possibility of damages actions stemming from any par-
ticular official decision.” Clinton v. Jones, 520 U. S. 681, 694, n. 19.
By contrast, when prosecutors have sought evidence from the Pres-
ident, the Court has consistently rejected Presidential claims of abso-
lute immunity. During the treason trial of former Vice President Aa-
ron Burr, for instance, Chief Justice Marshall rejected President
Thomas Jefferson’s claim that the President could not be subjected to
a subpoena. Marshall simultaneously recognized, however, the exist-
ence of a “privilege” to withhold certain “official paper[s].” United
States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when a
subpoena issued to President Richard Nixon, the Court rejected his
claim of “absolute privilege.” United States v. Nixon, 418 U. S. 683,
703. But recognizing “the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking,” it held that a
“presumptive privilege” protects Presidential communications. Id., at
708. Because that privilege “relates to the effective discharge of a
President’s powers,” id., at 711, the Court deemed it “fundamental to
the operation of Government and inextricably rooted in the separation
of powers under the Constitution.” Id., at 708. Pp. 9–12.

(ii) Criminally prosecuting a President for official conduct 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 pros-
ecutions than civil damages suits, the threat of trial, judgment, and
imprisonment is a far greater deterrent and plainly more likely to dis-
tort Presidential decisionmaking than the potential payment of civil
damages. The hesitation to execute the duties of his office fearlessly
and fairly that might result when a President is making decisions un-
der “a pall of potential prosecution,” McDonnell v. United States, 579
U. S. 550, 575, raises “unique risks to the effective functioning of gov-
ernment,” 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 official responsibility. Such an immunity is required to safe-
guard the independence and effective functioning of the Executive
Branch, and to enable the President to carry out his constitutional du-
ties without undue caution. At a minimum, the President must be
immune from prosecution for an official act unless the Government can
show that applying a criminal prohibition to that act would pose no
“dangers of intrusion on the authority and functions of the Executive
Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.

(3) As for a President’s unofficial acts, there is no immunity. Alt-
hough Presidential immunity is required for official actions to ensure
that the President’s decisionmaking is not distorted by the threat of
future litigation stemming from those actions, that concern does not
support immunity for unofficial conduct. Clinton, 520 U. S., at 694,
and n. 19. The separation of powers does not bar a prosecution predi-
cated on the President’s unofficial acts. P. 15.

(b) The first step in deciding whether a former President is entitled
to immunity from a particular prosecution is to distinguish his official
from unofficial actions. In this case, no court thus far has drawn that
distinction, in general or with respect to the conduct alleged in partic-
ular. It is therefore incumbent upon the Court to be mindful that it is
“a court of final review and not first view.” Zivotofsky v. Clinton, 566
U. S. 189, 201. Critical threshold issues in this case are how to differ-
entiate between a President’s official and unofficial actions, and how
to do so with respect to the indictment’s extensive and detailed allega-
tions covering a broad range of conduct. The Court offers guidance on
those issues. Pp. 16–32.

(1) When the President acts pursuant to “constitutional and stat-
utory authority,” he takes official action to perform the functions of his
office. Fitzgerald, 456 U. S., at 757. Determining whether an action
is covered by immunity thus begins with assessing the President’s au-
thority to take that action. But the breadth of the President’s “discre-
tionary responsibilities” under the Constitution and laws of the United
States frequently makes it “difficult to determine which of [his] innu-
merable ‘functions’ encompassed a particular action.” Id., at 756. The
immunity the Court has recognized therefore extends to the “outer pe-
rimeter” of the President’s official responsibilities, covering actions so
long as they are “not manifestly or palpably beyond [his] authority.”
Blassingame v. Trump, 87 F. 4th 1, 13 (CADC).

In dividing official from unofficial conduct, courts may not inquire
into the President’s motives. Such a “highly intrusive” inquiry would
risk exposing even the most obvious instances of official conduct to ju-
dicial examination on the mere allegation of improper purpose. Fitz-
gerald, 457 U. S., at 756. Nor may courts deem an action unofficial
merely because it allegedly violates a generally applicable law. Oth-
erwise, Presidents would be subject to trial on “every allegation that
an action was unlawful,” depriving immunity of its intended effect.
Ibid. Pp. 17–19.

(2) With the above principles in mind, the Court turns to the con-
duct alleged in the indictment. Certain allegations—such as those in-
volving Trump’s discussions with the Acting Attorney General—are
readily categorized in light of the nature of the President’s official re-
lationship to the office held by that individual. Other allegations—
such as those involving Trump’s interactions with the Vice President,
state officials, and certain private parties, and his comments to the
general public—present more difficult questions. Pp. 19–30.

(i) The indictment alleges that as part of their conspiracy to
overturn the legitimate results of the 2020 presidential election,
Trump and his co-conspirators attempted to leverage the Justice De-
partment’s power and authority to convince certain States to replace
their legitimate electors with Trump’s fraudulent slates of electors.

According to the indictment, Trump met with the Acting Attorney
General and other senior Justice Department and White House offi-
cials to discuss investigating purported election fraud and sending a
letter from the Department to those States regarding such fraud. The
indictment further alleges that after the Acting Attorney General re-
sisted Trump’s requests, Trump repeatedly threatened to replace him.

The Government does not dispute that the indictment’s allegations
regarding the Justice Department involve Trump’s use of official
power. The allegations in fact plainly implicate Trump’s “conclusive
and preclusive” authority. The Executive Branch has “exclusive au-
thority and absolute discretion” to decide which crimes to investigate
and prosecute, including with respect to allegations of election crime.
Nixon, 418 U. S., at 693. And the President’s “management of the Ex-
ecutive Branch” requires him to have “unrestricted power to remove
the most important of his subordinates”—such as the Attorney Gen-
eral—“in their most important duties.” Fitzgerald, 457 U. S., at 750.

The indictment’s allegations that the requested investigations were
shams or proposed for an improper purpose do not divest the President
of exclusive authority over the investigative and prosecutorial func-
tions of the Justice Department and its officials. Because the Presi-
dent cannot be prosecuted for conduct within his exclusive constitu-
tional authority, Trump is absolutely immune from prosecution for the
alleged conduct involving his discussions with Justice Department of-
ficials. Pp. 19–21.

(ii) The indictment next alleges that Trump and his co-conspira-
tors “attempted to enlist the Vice President to use his ceremonial role
at the January 6 certification proceeding to fraudulently alter the elec-
tion results.” App. 187, Indictment ¶10(d). In particular, the indict-
ment alleges several conversations in which Trump pressured the Vice
President to reject States’ legitimate electoral votes or send them back
to state legislatures for review.

Whenever the President and Vice President discuss their official re-
sponsibilities, they engage in official conduct. Presiding over the Jan-
uary 6 certification proceeding at which Members of Congress count
the electoral votes is a constitutional and statutory duty of the Vice
President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s
allegations that Trump attempted to pressure the Vice President to
take particular acts in connection with his role at the certification pro-
ceeding thus involve official conduct, and Trump is at least presump-
tively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity
is rebutted under the circumstances. It is the Government’s burden to
rebut the presumption of immunity. The Court therefore remands to
the District Court to assess in the first instance whether a prosecution
involving Trump’s alleged attempts to influence the Vice President’s
oversight of the certification proceeding would pose any dangers of in-
trusion on the authority and functions of the Executive Branch. Pp.
21–24.

(iii) The indictment’s remaining allegations involve Trump’s in-
teractions with persons outside the Executive Branch: state officials,
private parties, and the general public. In particular, the indictment
alleges that Trump and his co-conspirators attempted to convince cer-
tain state officials that election fraud had tainted the popular vote
count in their States, and thus electoral votes for Trump’s opponent
needed to be changed to electoral votes for Trump. After Trump failed
to convince those officials to alter their state processes, he and his co-
conspirators allegedly developed and effectuated a plan to submit
fraudulent slates of Presidential electors to obstruct the certification
proceeding. On Trump’s view, the alleged conduct qualifies as official
because it was undertaken to ensure the integrity and proper admin-
istration of the federal election. As the Government sees it, however,
Trump can point to no plausible source of authority enabling the Pres-
ident to take such actions. Determining whose characterization may
be correct, and with respect to which conduct, requires a fact-specific
analysis of the indictment’s extensive and interrelated allegations.

The Court accordingly remands to the District Court to determine in
the first instance whether Trump’s conduct in this area qualifies as
official or unofficial. Pp. 24–28.

(iv) The indictment also contains various allegations regarding
Trump’s conduct in connection with the events of January 6 itself. The
alleged conduct largely consists of Trump’s communications in the
form of Tweets and a public address. The President possesses “ex-
traordinary power to speak to his fellow citizens and on their behalf.”
communications are likely to fall comfortably within the outer perim-
eter of his official responsibilities. There may, however, be contexts in
which the President speaks in an unofficial capacity—perhaps as a
candidate for office or party leader. To the extent that may be the case,
objective analysis of “content, form, and context” will necessarily in-
form the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the
communications alleged in the indictment involve official conduct may
depend on the content and context of each. This necessarily factbound
analysis is best performed initially by the District Court. The Court
therefore remands to the District Court to determine in the first in-
stance whether this alleged conduct is official or unofficial. Pp. 28–30.

(3) Presidents cannot be indicted based on conduct for which they
are immune from prosecution. On remand, the District Court must
carefully analyze the indictment’s remaining allegations to determine
whether they too involve conduct for which a President must be im-
mune from prosecution. And the parties and the District Court must
ensure that sufficient allegations support the indictment’s charges
without such conduct. Testimony or private records of the President
or his advisers probing such conduct may not be admitted as evidence
at trial. Pp. 30–32.

(c) Trump asserts a far broader immunity than the limited one the
Court recognizes, contending that the indictment must be dismissed
because the Impeachment Judgment Clause requires that impeach-
ment and Senate conviction precede a President’s criminal prosecu-
tion. But the text of the Clause does not address whether and on what
conduct a President may be prosecuted if he was never impeached and
convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump
relies concerned the checks available against a sitting President; they
did not endorse or even consider whether the Impeachment Judgment
Clause immunizes a former President from prosecution. Transforming
the political process of impeachment into a necessary step in the en-
forcement of criminal law finds little support in the text of the Consti-
tution or the structure of the Nation’s Government. Pp. 32–34.

(d) The Government takes a similarly broad view, contending that
the President enjoys no immunity from criminal prosecution for any
action. On its view, as-applied challenges in the course of the trial
suffice to protect Article II interests, and review of a district court’s
decisions on such challenges should be deferred until after trial. But
questions about whether the President may be held liable for particu-
lar actions, consistent with the separation of powers, must be ad-
dressed at the outset of a proceeding. Even if the President were ulti-
mately not found liable for certain official actions, the possibility of an
extended proceeding alone may render him “unduly cautious in the
discharge of his official duties.” Fitzgerald, 457 U. S., at 752, n. 32.

The Constitution does not tolerate such impediments to “the effective
functioning of government.” Id., at 751. Pp. 34–37.

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

Outcome: That immunity applies equally to all occupants of the Oval Office. Pp. 41–43.
91 F. 4th 1173, vacated and remanded.

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