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“WITH FEAR FOR OUR DEMOCRACY, I DISSENT.”  
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Sonia Sotomayor
July 1, 2024
Supreme Court of the United States
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_ "The long-term consequences of today’s decision are stark. The
Court effectively creates a law-free zone around the President. When
he uses his official powers in any way he now will be insulated from
criminal prosecution." _

Supreme Court Justice Sonia Sotomayor,

 

Below is the dissent by Justice Sonia Sotomayor, joined by Justices
Kagan and Jackson, from the Supreme Court decision in Donald Trump's
appeal for absolute presidential immunity from criminal prosecution.
Citations have been omitted for readability. -- moderator]

Today’s decision to grant former Presidents criminal immunity
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, the Court gives former President Trump all the
immunity he asked for and more. Because our Constitution does not
shield a former President from answering for criminal and treasonous
acts, I dissent. 

I 

The indictment paints a stark portrait of a President desperate 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,” despite being
“notified repeatedly” by his closest advisers “that his claims
were untrue”. 

When dozens of courts swiftly rejected these claims, Trump allegedly
“pushed officials in certain states to ignore the popular vote;
disenfranchise millions of voters; dismiss legitimate electors; and
ultimately, cause the ascertainment of and voting by illegitimate
electors” in his favor. It is alleged that he went so far as to
threaten one state election official with criminal prosecution if the
official did not “‘find’ 11,780 votes” Trump needed to change
the election result in that state. When state officials repeatedly
declined to act outside their legal authority and alter their state
election processes, Trump and his co-conspirators purportedly
developed a plan to disrupt and displace the legitimate election
certification process by organizing fraudulent slates of electors.. 

As the date of the certification proceeding neared, Trump allegedly
also sought to “use the power and authority of the Justice
Department” to bolster his knowingly false claims of election fraud
by initiating “sham election crime investigations” and sending
official letters “falsely claim[ing] that the Justice Department had
identified significant concerns that may have impacted the election
outcome” while “falsely present[ing] the fraudulent electors as a
valid alternative to the legitimate electors.” Id., at 186–187,
¶10(c). When the Department refused to do as he asked, Trump turned
to the Vice President. Initially, he sought to persuade the Vice
President “to use his ceremonial role at the January 6 certification
proceeding to fraudulently alter the election results.” When
persuasion failed, he purportedly “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.” 

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.” When this crowd then “violently attacked the
Capitol and halted the proceeding,” Trump allegedly delayed in
taking any step to rein in the chaos he had unleashed. Instead, in a
last desperate ploy to hold onto power, he allegedly “attempted to
exploit the violence and chaos at the Capitol” by pressuring
lawmakers to delay the certification of the election and ultimately
declare him the winner. That is the backdrop against which this case
comes to the Court.

 II 

The Court now confronts a question it has never had to answer in the
Nation’s history: Whether a former President enjoys immunity from
federal criminal prosecution. The majority thinks he should, and so it
invents an atextual, ahistorical, and unjustifiable immunity that puts
the President above the law. 

The majority makes three moves that, in effect, completely insulate
Presidents from criminal liability. First, the majority creates
absolute immunity for the President’s exercise of “core
constitutional powers.” This holding is unnecessary on the facts of
the indictment, and the majority’s attempt to apply it to the facts
expands the concept of core powers beyond any recognizable bounds. In
any event, it is quickly eclipsed by the second move, which is to
create expansive immunity for all “official act[s].” Whether
described as presumptive or absolute, under the majority’s rule, a
President’s use of any official power for any purpose, even the most
corrupt, is immune from prosecution. That is just as bad as it sounds,
and it is baseless. Finally, the majority declares that evidence
concerning acts for which the President is immune can play no role in
any criminal prosecution against him. That holding, which will prevent
the Government from using a President’s official acts to prove
knowledge or intent in prosecuting private offenses, is nonsensical. 

Argument by argument, the majority invents immunity through brute
force. Under scrutiny, its arguments crumble. To start, the
majority’s broad “official acts” immunity is inconsistent with
text, history, and established understandings of the President’s
role. Moreover, it is deeply wrong, even on its own functionalist
terms. See Part IV, infra. Next, the majority’s “core” immunity
is both unnecessary and misguided. See Part V, infra. Furthermore, the
majority’s illogical evidentiary holding is unprecedented. See Part
VI, infra. Finally, this majority’s project will have disastrous
consequences for the Presidency and for our democracy. 

III 

The main takeaway of today’s decision is that all of a President’s
official acts, defined without regard to motive or intent, are
entitled to immunity that is “at least . . . presumptive,” and
quite possibly “absolute.” Whenever the President wields the
enormous power of his office, the majority says, the criminal law (at
least presumptively) cannot touch him. This official-acts immunity has
“no firm grounding in constitutional text, history, or precedent.”
Indeed, those “standard grounds for constitutional
decisionmaking,” all point in the opposite direction. No matter how
you look at it, the majority’s official-acts immunity is utterly
indefensible. 

A 

The majority calls for a “careful assessment of the scope of
Presidential power under the Constitution.” 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 dispositive.” Insofar as
the majority rails against the notion that a “‘specific textual
basis’” is required (quoting Nixon v. Fitzgerald), it is attacking
an argument that has not been made here. The omission in the text of
the Constitution is worth noting, however, for at least three
reasons. 

First, the Framers clearly knew how to provide for immunity from
prosecution. They did provide a narrow immunity for legislators in the
Speech or Debate Clause. They did not extend the same or similar
immunity to Presidents. 

Second, “some state constitutions at the time of the Framing
specifically provided ‘express criminal immunities’ to sitting
governors.” Brief for Scholars of Constitutional Law as Amici
Curiae. The Framers chose not to include similar language in the
Constitution to immunize the President. If the Framers “had wanted
to create some constitutional privilege to shield the President . . .
from criminal indictment,” they could have done so. They did not. 

Third, insofar as the Constitution does speak to this question, it
actually contemplates some form of criminal liability for former
Presidents. The majority correctly rejects Trump’s argument that a
former President cannot be prosecuted unless he has been impeached by
the House and convicted by the Senate for the same conduct. 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 official
impeached and convicted by the Senate “shall nevertheless be liable
and subject to Indictment, Trial, Judgment and Punishment, according
to Law.” 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 “Bribery,” Art. II, §4,
which implicates official acts almost by definition. 

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.’” That is true, as far as it goes.
Nothing in our history, however, supports the majority’s entirely
novel immunity from criminal prosecution for official acts. 

The historical evidence that exists on Presidential immunity from
criminal prosecution cuts decisively against it. For instance,
Alexander Hamilton wrote that former Presidents would be “liable to
prosecution and punishment in the ordinary course of law.” (The
Federalist No. 69.) For Hamilton, that was an important distinction
between “the king of Great Britain,” who was “sacred and
inviolable,” and the “President of the United States,” who
“would be amenable to personal punishment and disgrace.” In
contrast to the king, the President should be subject to “personal
responsibility” for his actions, “stand[ing] upon no better ground
than a governor of New York, and upon worse ground than the governors
of Maryland and Delaware,” whose State Constitutions gave them some
immunity. 

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.” There is no record of any such discussion. Delegate
Charles Pinckney later explained that “[t]he Convention which formed
the Constitution well knew” that “no subject had been more abused
than privilege,” and so it “determined to . . . limi[t] privilege
to what was necessary, and no more.” “No privilege . . . was
intended for [the] Executive.” 

Other commentators around the time of the Founding observed that
federal officials had no immunity from prosecution, drawing no
exception for the President. James Wilson recognized that federal
officers who use their official powers to commit crimes “may be
tried by their country; and if their criminality is established, the
law will punish. A grand jury may present, a petty jury may convict,
and the judges will pronounce the punishment.” A few decades later,
Justice Story evinced the same understanding. He explained that, when
a federal official commits a crime in office, “it is indispensable,
that provision should be made, that the common tribunals of justice
should be at liberty to entertain jurisdiction of the offence, for the
purpose of inflicting, the common punishment applicable to unofficial
offenders.” Without a criminal trial, he explained, “the grossest
official offenders might escape without any substantial punishment,
even for crimes, which would subject their fellow citizens to capital
punishment.” 

This historical evidence reinforces that, from the very beginning, the
presumption in this Nation has always been that no man is free to
flout the criminal law. The majority fails to recognize or grapple
with the lack of historical evidence for its new immunity. With
nothing on its side of the ledger, the most the majority can do is
claim that the historical evidence is a wash. It claims that the Court
previously has described the “relevant historical evidence on the
question of Presidential immunity” as “‘fragmentary’” and
not worthy of consideration. Yet the Court has described only the
evidence regarding “the President’s immunity from damages
liability” as “fragmentary.” Moreover, far from dismissing that
evidence as irrelevant, the Fitzgerald Court was careful to note that
“[t]he best historical evidence clearly support[ed]” the immunity
from damages liability that it recognized, and it relied in part on
that historical evidence to overcome the lack of any textual basis for
its immunity. The majority ignores this reliance. It seems history
matters to this Court only when it is convenient. 

C 

Our country’s history also points to an established understanding,
shared by both Presidents and the Justice Department, that former
Presidents are answerable to the criminal law for their official acts.
Consider Watergate, for example. After the Watergate tapes revealed
President Nixon’s misuse of official power to obstruct the Federal
Bureau of Investigation’s investigation of the Watergate burglary,
President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s
acceptance of the pardon necessarily “rested on the understanding
that the former President faced potential criminal liability.” 

Subsequent special counsel and independent counsel investigations have
also operated on the assumption that the Government can criminally
prosecute former Presidents for their official acts, where they
violate the criminal law. 

Indeed, Trump’s own lawyers during his second impeachment 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.” They insisted that a former President “is like any other
citizen and can be tried in a court of law.” (Trump’s impeachment
counsel stating that “no former officeholder is immune” from the
judicial process “for investigation, prosecution, and
punishment”); id., at 322–323 (Trump’s impeachment counsel
stating: “If my colleagues on this side of the Chamber actually
think that President Trump committed a criminal offense . . . [a]fter
he is out of office, you go and arrest him”). Now that Trump is
facing criminal charges for those acts, though, the tune has changed.
Being treated “like any other citizen” no longer seems so
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 understandings of the Constitution are of
little use to the majority in this case, and so it ignores them. 

IV 

A 

Setting aside this evidence, the majority announces that former
Presidents are “absolute[ly],” or “at least . . .
presumptive[ly],” immune from criminal prosecution for all of their
official acts. 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 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.’” No dangers, none at all. It is hard to
imagine a criminal prosecution for a President’s official acts that
would pose no dangers of intrusion on Presidential authority in the
majority’s eyes. Nor should that be the standard. Surely some
intrusions on the Executive may be “justified by an overriding need
to promote objectives within the constitutional authority of
Congress.” Other intrusions may be justified by the “primary
constitutional duty of the Judicial Branch to do justice in criminal
prosecutions.” United States v. Nixon (1974). According to the
majority, however, any incursion on Executive power is too much. When
presumptive immunity is this conclusive, the majority’s indecision
as to “whether [official-acts] immunity must be absolute” or
whether, instead, “presumptive immunity is sufficient,” hardly
matters. 

Maybe some future opinion of this Court will decide that presumptive
immunity is “sufficient,” and replace the majority’s ironclad
presumption with one that makes the difference between presumptive and
absolute immunity meaningful. Today’s Court, however, has replaced a
presumption of equality before the law with a presumption that the
President is above the law for all of his official acts. 

Quick on the heels of announcing this astonishingly broad
official-acts immunity, the majority assures us that a former
President can still be prosecuted for “unofficial acts.” Of course
he can. No one has questioned the ability to prosecute a former
President for unofficial (otherwise known as private) acts. Even Trump
did not claim immunity for such acts and, as the majority
acknowledges, such an immunity would be impossible to square with
Clinton v. Jones (1997). This unremarkable 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 “official” and
“unofficial” conduct narrows the conduct considered
“unofficial” almost to a nullity. It says that whenever the
President acts in a way that is “‘not manifestly or palpably
beyond [his] authority,’” he is taking official action. It then
goes a step further: “In dividing official from unofficial conduct,
courts may not inquire into the President’s motives.” 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 regarding criminal liability. Under that rule,
any use of official power for any purpose, even the most corrupt
purpose indicated by objective evidence of the most corrupt motives
and intent, remains official and immune. Under the majority’s test,
if it can be called a test, the category of Presidential action that
can be deemed “unofficial” is destined to be vanishingly small. 

Ultimately, the majority pays lip service to the idea that “[t]he
President, charged with enforcing federal criminal laws, is not above
them,” but it then proceeds to place former Presidents beyond the
reach of the federal criminal laws for any abuse of official power. 

B 

So how does the majority get to its rule? With text, history, and
established understanding all weighing against it, the majority claims
just one arrow in its quiver: the balancing test in Nixon v.
Fitzgerald (1983). Yet even that test cuts against it. The majority
concludes that official-acts immunity “is required to safeguard the
independence and effective functioning of the Executive Branch,” by
rejecting that Branch’s own protestations that such immunity is not
at all required and would in fact be harmful. In doing so, it
decontextualizes Fitzgerald’s language, ignores important
qualifications, and reaches a result that the Fitzgerald Court never
would have countenanced. 

In Fitzgerald, plaintiff A. Ernest Fitzgerald sued then-former
President Nixon for money damages. He claimed that, while in office,
Nixon had been involved in unlawfully firing him from his government
job. See 457 U. S., at 733– 741. The question for the Court was
whether a former 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
President (or former President) could be heard, a court “must
balance the constitutional weight of the interest to be served against
the dangers of intrusion on the authority and functions of the
Executive Branch.” Id., at 754. The Court explained that, “[w]hen
judicial action is needed to serve broad public interests—as when
the Court acts, not in derogation of the separation of powers, but to
maintain their proper balance, or to vindicate the public interest in
an ongoing criminal prosecution—the exercise of jurisdiction has
been held warranted.” 

On the facts before it, the Court concluded that a “merely private
suit for damages based on a President’s official acts” did not
serve those interests. The Court reasoned that the “visibility of
[the President’s] office and the effect of his actions on countless
people” made him an easy target for civil suits that “frequently
could distract [him] from his public duties.” The public interest in
such private civil suits, the Court concluded, was comparatively weak.
(“[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.  

In the context of a federal criminal prosecution of a former
President, however, the danger to the functioning of the Executive
Branch is much reduced. Further, as every member of the Fitzgerald
Court acknowledged, the public interest in a criminal prosecution is
far weightier. Applying the Fitzgerald balancing here should yield the
opposite result. Instead, the majority elides any difference between
civil and criminal immunity, granting Trump the same immunity from
criminal prosecution that Nixon enjoyed from an unlawful termination
suit. That is plainly wrong. 

1 

The majority relies almost entirely on its view of the danger of
intrusion on the Executive Branch, to the exclusion of the other side
of the balancing test. Its analysis rests on a questionable conception
of the President as incapable of navigating the difficult decisions
his job requires while staying within the bounds of the law. It also
ignores the fact that he receives robust legal advice on the
lawfulness of his actions. 

The majority says that the danger “of intrusion on the authority and
functions of the Executive Branch” posed by criminally prosecuting a
former President for official conduct “is akin to, indeed greater
than, what led us to recognize absolute Presidential immunity from
civil damages liability—that the President would be chilled from
taking the ‘bold and unhesitating action’ required of an
independent Executive.” It is of course important that the President
be able to “‘“deal fearlessly and impartially with” the duties
of his office.’” If every action the President takes exposes him
personally to vexatious private litigation, the possibility of
hamstringing Presidential decisionmaking is very real. Yet there are
many facets of criminal liability, which the majority discounts, that
make it less likely to chill Presidential action than the threat of
civil litigation. 

First, in terms of probability, the threat of criminal liability is
much smaller. In Fitzgerald, the threat of vexatious civil litigation
loomed large. The Court observed that, given the “visibility of his
office and the effect of his actions on countless people, the
President would be an easily identifiable target for suits for civil
damages.” Although “‘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 committed while
in office.” The majority’s bare assertion that the burden of
exposure to federal criminal prosecution is more limiting to a
President than the burden of exposure to civil suits does not make it
true, and it is not persuasive. 

Second, federal criminal prosecutions require “robust procedural
safeguards” not found in civil suits. The criminal justice system
has layers of protections that “filter out insubstantial legal
claims,” whereas civil litigation lacks “analogous checks.”
Cheney v. United States Dist. Court  (2004). To start, Justice
Department policy requires scrupulous and impartial prosecution,
founded on both the facts and the law. The grand jury provides 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. 

If the prosecution makes it past the grand jury, then the former
President still has all the protections our system provides to
criminal defendants. If the former President has an argument that a
particular statute is 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, or an
advice-of-the-Attorney-General defense.

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. If the Government manages to overcome even that
significant hurdle, then the former President can appeal his
conviction, and the appellate review of his claims will be
“‘particularly meticulous.’” He can ultimately seek this
Court’s review, and if past practice (including in this case) is any
indication, he will receive it. 

In light of these considerable protections, the majority’s fear that
“‘bare allegations of malice,’” (alteration omitted), would
expose former Presidents to trial and conviction is unfounded. Bare
allegations of malice would not make it out of the starting gate.
Although a private civil action may be brought based on little more
than “‘intense feelings,’” a federal criminal prosecution is
made of firmer stuff. Certainly there has been, on occasion, great
feelings of animosity between incoming and outgoing Presidents over
the course of our country’s history. Yet it took allegations as
grave as those at the center of this case to have the first federal
criminal prosecution of a former President. That restraint is
telling. 

Third, because of long standing interpretations by the Executive
Branch, every sitting President has so far believed himself under the
threat of criminal liability after his term in office and nevertheless
boldly fulfilled the duties of his office. The majority insists that
the threat of criminal sanctions is “more likely to distort
Presidential decisionmaking than the potential payment of civil
damages.” If that is right, then that distortion has been shaping
Presidential decisionmaking since the earliest days of the Republic.
Although it makes sense to avoid “diversion of the President’s
attention during the decision making process” with “needless
worry,” one wonders why requiring some small amount of his attention
(or his legal advisers’ attention) to go towards complying with
federal criminal law is such a great burden. If the President follows
the law that he must “take Care” to execute, he has not been
rendered “‘unduly cautious.’” 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 confines
of federal criminal law. 

So what exactly is the majority worried about deterring when it
expresses great concern for the “deterrent” effect that “the
threat of trial, judgment, and imprisonment” would pose? 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 Presidents might stop and think carefully before taking action
that borders on criminal. Instead, the majority’s main concern 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. 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.’” The concern that countless (and baseless) civil
suits would hamper the Executive may have been justified in
Fitzgerald, but a well-founded federal criminal prosecution poses no
comparable danger to the functioning of the Executive Branch. 

2 

At the same time, the public interest in a federal criminal
prosecution of a former President is vastly greater than the public
interest in a private individual’s civil suit. All nine Justices in
Fitzgerald explicitly recognized that distinction. The five-Justice
majority noted that there was a greater public interest “in criminal
prosecutions” than in “actions for civil damages.” Chief Justice
Burger’s concurrence accordingly emphasized that the majority’s
immunity was “limited to civil damages claims,” rather than
“criminal prosecution.” The four dissenting Justices agreed that a
“contention that the President is immune from criminal prosecution
in the courts,” if ever made, would not “be credible.” At the
very least, the Fitzgerald Court did not expect that its balancing
test would lead to the same outcome in the criminal context. 

The public’s interest in prosecution is transparent: a federal
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,’” such that there is “a compelling ‘public
interest in fair and effective law enforcement.’” Indeed, “our
historic commitment to the rule of law” is “nowhere more
profoundly manifest than in our view that . . . ‘guilt shall not
escape or innocence suffer.’” 

The public interest in criminal prosecution is particularly strong
with regard to officials who are granted some degree of civil immunity
because of their duties. It is in those cases where the public can see
that officials exercising power under public trust remain on equal
footing with their fellow citizens under the criminal law. This Court
has never suggested that the policy considerations which compel civil
immunity for certain governmental officials also place them beyond the
reach of the criminal law. Even judges, cloaked with absolute civil
immunity for centuries, could be punished criminally”). The public
interest in the federal criminal prosecution of a former President
alleged to have used the powers of his office to commit crimes may be
greater still. “[T]he President . . . 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 office for personal gain or as part
of a criminal scheme, every person in the country has an interest in
that criminal prosecution. The majority overlooks that paramount
interest entirely. 

Finally, the question of federal criminal immunity for a former
President “involves a countervailing Article II consideration absent
in Fitzgerald”: recognizing such an immunity “would frustrate the
Executive Branch’s enforcement of the criminal law.” The President
is, of course, entrusted with “‘supervisory and policy
responsibilities of utmost discretion and sensitivity.’” 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.’” The majority seems to think that
allowing former Presidents to escape accountability for breaking the
law while disabling the current Executive from prosecuting such
violations somehow respects the independence of the Executive. It does
not. Rather, it diminishes that independence, exalting occupants of
the office over the office itself. There is a twisted irony in saying,
as the majority does, that the person charged with “tak[ing] Care
that the Laws be faithfully executed” can break them with
impunity. 

In the case before us, the public interest and countervailing Article
II interest are particularly stark. The public interest in this
criminal prosecution implicates both “[t]he Executive Branch’s
interest in upholding Presidential elections and vesting power in a
new President under the Constitution” as well as “the voters’
interest in democratically selecting their President.” It also, of
course, implicates Congress’s own interest in regulating conduct
through the criminal law. Yet the majority 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 constitutionally assigned functions. It
is, in fact, the majority’s position that “boil[s] down to
ignoring the Constitution’s separation of powers.”

C 

Finally, in an attempt to put some distance between its official-acts
immunity and Trump’s requested immunity, the majority insists that
“Trump asserts a far broader immunity than the limited one [the
majority has] recognized.” 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.” That argument is obviously wrong. Rejecting it,
however, does not make the majority’s immunity narrower than
Trump’s. Inherent in Trump’s Impeachment Judgment Clause argument
is the idea that a former President who was impeached in the House and
convicted in the Senate for crimes involving his official acts could
then be prosecuted in court for those acts. By extinguishing that path
to overcoming immunity, however nonsensical it might be, the majority
arrives at an official-acts immunity even more expansive than the one
Trump argued for. On the majority’s view (but not Trump’s), a
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 official-acts immunity, the majority recognizes
absolute immunity for “conduct within [the President’s] exclusive
sphere of constitutional authority.” Feel free to skip over those
pages of the majority’s opinion. With broad official-acts immunity
covering the field, this ostensibly narrower immunity serves little
purpose. In any event, this case simply does not turn on conduct
within the President’s “exclusive sphere of constitutional
authority,” and the majority’s attempt to apply a core immunity of
its own making expands the concept of “core constitutional
powers,” beyond any recognizable bounds. 

The idea of a narrow core immunity might have some intuitive 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.” In his
Youngstown concurrence, Justice Robert Jackson posited that the
President’s “power of removal in executive agencies” seemed to
fall within this narrow category. Other decisions of this Court
indicate that the pardon power also falls in this category.

In this case, however, the question whether a former President enjoys
a narrow immunity for the “exercise of his core constitutional
powers” has never been at issue, and for good reason: Trump was not
criminally indicted for taking actions that the Constitution places in
the unassailable core of Executive power. He was not charged, for
example, with illegally wielding the Presidency’s pardon power or
veto power or appointment power or even removal power. Instead, Trump
was charged with a conspiracy to commit fraud to subvert the
Presidential election. It is true that the detailed indictment in this
case alleges that Trump threatened to remove an Acting Attorney
General who would not carry out his scheme. Yet it is equally clear
that the Government does not seek to “impose criminal liability on
the [P]resident for exercising or talking about exercising the
appointment and removal power.” If that were the majority’s
concern, it could simply have said that the Government cannot charge a
President’s threatened use of the removal power as an overt act in
the conspiracy. It says much more. 

The core immunity that the majority creates will insulate a
considerably larger sphere of conduct than the narrow core of
“conclusive and preclusive” powers that the Court previously has
recognized. The first indication comes when the majority includes the
President’s broad duty to “‘take Care that the Laws be
faithfully executed’” among the core functions for which a former
President supposedly enjoys absolute immunity. That expansive view of
core power will effectively insulate all sorts of noncore conduct from
criminal prosecution. Were there any question, consider how the
majority applies its newly minted core immunity to the allegations in
this case. It concludes that “Trump is . . . absolutely immune from
prosecution for” any “conduct involving his discussions with
Justice Department officials.” That conception of core immunity
expands the “conclusive and preclusive” category beyond
recognition, foreclosing the possibility of prosecution for broad
swaths of conduct. Under that view of core powers, even fabricating
evidence and insisting the Department use it in a criminal case could
be covered. The majority’s conception of “core” immunity sweeps
far more broadly than its logic, borrowed from Youngstown, should
allow. 

The majority tries to assuage any concerns about its made-up core
immunity by suggesting that the Government agrees with it. That
suggestion will surprise the Government. To say, as the Government
did, that a “small core of exclusive official acts” such as “the
pardon power, the power to recognize foreign nations, the power to
veto legislation, [and] the power to make appointments” cannot be
regulated by Congress does not suggest that the Government agrees with
immunizing any and all conduct conceivably related to the majority’s
broad array of supposedly “core” powers. The Government in fact
advised this Court to “leav[e] potentially more difficult
questions” about the scope of any immunity “that might arise on
different facts for decision if they are ever presented.” 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 reason,
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.” 

When forced to wade into thorny separation-of-powers disputes, this
Court’s usual practice is to “confine the opinion only to the very
questions necessary to decision of the case.” There is plenty of
peril and little value in crafting a core immunity doctrine that Trump
did not seek and that rightly has no application to this case. 

VI 

Not content simply to invent an expansive criminal immunity 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 office. They must play no role in proceedings regarding
private criminal acts. 

Even though the majority’s immunity analysis purports to leave
unofficial acts open to prosecution, its draconian approach to
official-acts evidence deprives these prosecutions of any teeth. If
the former President cannot be held criminally liable for his official
acts, those acts should still be admissible to prove knowledge or
intent in criminal prosecutions of unofficial acts. For instance, the
majority struggles with classifying whether a President’s speech is
in his capacity as President (official act) or as a candidate
(unofficial act). Imagine a President states in an official speech
that he intends to stop a political rival from passing legislation
that he opposes, no matter what it takes to do so (official act). He
then hires a private hitman to murder that political rival (unofficial
act). Under the majority’s rule, the murder indictment could include
no allegation of the President’s public admission of premeditated
intent to support the mens rea of murder. That is a strange result, to
say the least.

The majority’s extraordinary rule has no basis in law. Consider the
First Amendment context. Although the First Amendment prohibits
criminalizing most speech, it “does not prohibit the evidentiary use
of speech,” including its use “to prove motive or intent.”
Evidentiary rulings and limiting instructions can ensure that evidence
concerning official acts is “considered only for the proper purpose
for which it was admitted.” The majority has no coherent explanation
as to why these protections that are sufficient in every other context
would be insufficient here. It simply asserts that it would be
“untenable” and would deprive immunity of its “‘intended
effect.’” The majority hazards an explanation that the use of
official-acts evidence will “raise a unique risk that the jurors’
deliberations will be prejudiced by their views of the President’s
policies and performance while in office.” That “unique risk,”
however, is not a product of introducing official-acts evidence. It is
simply the risk involved in any suit against a former President,
including the private-acts prosecutions the majority says it would
allow. 

VII 

Today’s decision to grant former Presidents immunity for their
official acts is deeply wrong. As troubling as this criminal immunity
doctrine is in theory, the majority’s application of the doctrine to
the indictment in this case is perhaps even more troubling. In the
hands of the majority, this new official-acts immunity operates as a
one-way ratchet. 

First, the majority declares all of the conduct involving the Justice
Department and the Vice President to be official conduct, yet it
refuses to designate any course of conduct alleged in the indictment
as private, despite concessions from Trump’s counsel. Trump’s
counsel 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.” He likewise conceded that
the allegation that Trump “conspired with another private attorney
who caused the filing in court of a verification signed by [Trump]
that contained false allegations to support a challenge” “sounds
private.” (Trump’s counsel explaining that it is not
“disputed” that such conduct is “unofficial”). Again, when
asked about allegations that “[t]hree private actors . . . helped
implement a plan to submit fraudulent slates of presidential electors
to obstruct the certification proceeding, and [Trump] and a
co-conspirator attorney directed that effort,” Trump’s counsel
conceded the alleged conduct was “private.” Only the majority
thinks that organizing fraudulent slates of electors might qualify as
an official act of the President, or at least an act so
“interrelated” with other allegedly official acts that it might
warrant protection. If the majority’s sweeping conception of
“official acts” has any real limits, the majority is unwilling to
reveal them in today’s decision. 

Second, the majority designates certain conduct immune while refusing
to recognize anything as prosecutable. It shields large swaths of
conduct involving the Justice Department with immunity, but it does
not give an inch in the other direction. The majority admits that the
Vice President’s responsibility “‘presiding over the
Senate’” is “‘not an “executive branch” function,’”
and it further admits that the President “plays no direct
constitutional or statutory role” in the counting of electoral
votes. 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 certification proceeding to
fraudulently alter the election results.” Instead, it worries that a
prosecution for this conduct might make it harder for the President to
use the Vice President “to advance [his] agenda in Congress.” Such
a prosecution, according to the majority, “may well hinder the
President’s ability to perform his constitutional functions.”
Whether a prosecution for this conduct warrants immunity 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 allegations that Trump organized fraudulent elector
slates, pressured States to subvert the legitimate election results,
and exploited violence at the Capitol to influence the certification
proceedings. It is not conceivable that a prosecution for these
alleged efforts to overturn a Presidential election, whether labeled
official or unofficial under the majority’s test, would pose any
“‘dangers of intrusion on the authority and functions of the
Executive Branch,’” 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 President, upsetting the status quo
that has existed since the Founding. This new official-acts immunity
now “lies about like a loaded weapon” for any President that
wishes to place his own interests, his own political survival, or his
own financial gain, above the interests of the Nation. Korematsu v.
United States (Jackson, J., dissenting). The President of the United
States is the most powerful person in the country, and possibly the
world. When he uses his official powers in any way, under the
majority’s reasoning, he now will be insulated from criminal
prosecution. Orders the Navy’s Seal Team 6 to assassinate a
political rival? Immune. Organizes a military coup to hold onto power?
Immune. Takes a bribe in exchange for a pardon? Immune. Immune,
immune, immune. 

Let the President violate the law, let him exploit the trappings of
his office for personal gain, let him use his official power for evil
ends. Because if he knew that he may one day face liability for
breaking the law, he might not be as bold and fearless as we would
like him to be. That is the majority’s message today. 

Even if these nightmare scenarios never play out, and I pray they
never do, the damage has been done. The relationship between the
President and the people he serves has shifted irrevocably. In every
use of official power, the President is now a king above the law. 

* * * 

The majority’s single-minded fixation on the President’s need for
boldness and dispatch ignores the countervailing need for
accountability and restraint. The Framers were not so single-minded.
In the Federalist Papers, after “endeavor[ing] to show” that the
Executive designed by the Constitution “combines . . . all the
requisites to energy,” Alexander Hamilton asked a separate, equally
important question: “Does it also combine the requisites to safety,
in a republican sense, a due dependence on the people, a due
responsibility?” The Federalist No. 77. The answer then was yes,
based in part upon the President’s vulnerability to “prosecution
in the common course of law.” The answer after today is no. 

Never in the history of our Republic has a President had reason to
believe that he would be immune from criminal prosecution if he used
the trappings of his office to violate the criminal law. Moving
forward, however, all former Presidents will be cloaked in such
immunity. If the occupant of that office misuses official power for
personal gain, the criminal law that the rest of us must abide will
not provide a backstop. With fear for our democracy, I dissent.

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