Trump v. United States

At a minimum, the President must therefore 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. (page 14)

The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress. (page 9) [emphasis added]

And 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; see United States v. Texas, 599 U. S. 670, 678–679 -- authorizing sale of non-presecution. See III C Note 3
Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [emphasis added]

The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. [emphasis added]

------

Personal Observations

Judgement is the weighing of distinct considerations. Roberts writes (6 pages of 50) of considerations to grant immunity. Where in his opinion are the dangers of granting immunity?

Does the immunity granted in this instance extend to state criminal prosecution? No, see In re Neagle" (1890) .

Does establishing mens rea require examining motive for the alleged acts? "Motive is not always necessary to prove a crime, as other evidence may be sufficient."

What other than motive and evidence (testimony) distinguishes bribery from one party receiving a pardon and the president receiving a gift? Given that this decision states that "Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial." what evidence would exist, other than a written contract, of bribery. Audio and video records might be "private records of the President or his advisers" regarding the motive (payment) for granting of the pardon.

Due to Separation of Powers, a person acting as a member of the Executive Branch, the Vice-President, is acting distinct from the Legislative Branch role of President of the Senate. When the Vice-President speaks concering the processes of the Electoral College, he speaks as President of the Senate, not as Vice-President.

Absolute immunity to prosection even after impeachment and conviction...more protection than the plantiff sought from the court.

Articles and Posts

Crux of Majority Narrative:

"The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” and "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 office.” " both at Opinion of the Court p10 quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton). [emphasis added]

Furthermore, the breadth of statutes leaves a president open to prosecution: "For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently 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 violated 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 ...." Opinion of the Court p40.

[The same statute can be applied to a Federal District Attorney who, in consultation with others, declines to prosecute or IRS officials that decline to audit. Other examples abound. If so, the problem is the breadth of the statute. The answer is not to protect a single person.]

Combining the limitations on evidence immediately below with the requirements imposed for conviction in McDonnell v. United States (2016) and Snyder v. United States (2024) prosecution for reciving a bribe, as opposed to the official act for which the bribe was tendered, may be unobtainable.
"If official 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 unofficial conduct, the “intended effect” of immunity would be defeated. "

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

• We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
• We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial. [contacts with state officials]
• We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. [???]
• 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.
• [???]

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• 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.
• Trump moved to dismiss the indictment based on Presidential immunity.
• The District Court denied the motion to dismiss, holding that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office.”
• The District Court declined to decide whether the indicted conduct involved official acts.
• United States v. Trump (2023) DC District Court Opinion. (Need everything
  )
• The D. C. Circuit affirmed. 91 F. 4th 1173 (2024) (per curiam).
• United States v. Trump (2024) DC Circuit Court Opinion. Written 2024-02-09.
  
• ... the judiciary has the power to hear cases” involving ministerial acts that an officer is directed to perform by the legislature.
• From this distinction [ministerial vs discretionary acts], 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 President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.
• Like the District Court, the D. C. Circuit declined to analyze the actions described in the indictment to determine whether they involved official acts.
• 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 official acts during his tenure in office.”
• United States v. Trump (2024) Stay application treated as Writ of Certiorari. Granted.

Rationale

Majority Opinion (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett excepting III-C)

• The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress. [emphasis added]
• Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. [emphasis added]
• At a minimum, the President must therefore 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.
• The separation of powers does not bar a prosecution predicated on the President’s unofficial acts. [emphasis added]
• Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. [official acts may be illegal and immune to prosecution]
• Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [emphasis added]
• We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
• We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial. [contacting state officials, private parties, and the general public]
• If official 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 unofficial conduct, the “intended effect” of immunity would be defeated. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. [emphasis added]
• ... we cannot afford to fixate exclusively, or even primarily, on present exigencies. [See parts III B 1, III B 2, III B 3, and III C (12 of 50 pages)]
• The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
• A full description of the rationale is available below

Thomas Concurrance

• I write separately to highlight another way in which this prosecution may violate our constitutional structure.
• ... I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure.
• If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.
• No former President has faced criminal prosecution .... And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. [undermine Roberts' fundamental contention of presidential enfeeblement.]
• If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. [invitation to Aileen Cannon to dismiss federal case re: theft of classified documents by the former president. An invitation she accepted on 2024-07-15.]
• I
• Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”
• ... a statute provided for “the appointment of an independent counsel” that we addressed 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.
• If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.
• II
• When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office.
• Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).
• None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.
• [Note 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 federal office without underlying statutory authority to do so.
• Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause.
• If the former [principal officer], his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2.
• Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress ... by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.”
• * * *
• ... there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed.

Barrett Concurrance 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 consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct.
• Properly conceived, the President’s constitutional protection from prosecution is narrow.
• The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance.
• Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute.
• Article II poses no barrier to prosecution in such cases.
• I would thus assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the President’s core executive power—in two steps.
• The first question is whether the relevant criminal statute reaches the President’s official conduct.
• Not every broadly worded statute does. For example, §956 covers conspiracy to murder in a foreign country and does not expressly exclude the President’s decision to, say, order a hostage rescue mission abroad. 18 U. S. C. §956(a).
• Note 2: Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection. The Constitution vests power to appoint Presidential electors in the States. 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 official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct. [emphasis added]
• 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 first whether the statute 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.
• Article II concerns do not insulate the President from prosecution. But they do justify interlocutory review of the trial court’s final decision on the President’s as-applied constitutional challenge.
• I do not join Part III–C, however, which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.
• I disagree with that holding; on this score, I agree with the dissent.
• The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.
• Consider a bribery prosecution .... The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” 18 U. S. C. §201(c).
• 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 evidence official acts for which the President cannot be held criminally liable may prejudice the jury.
• The balance is more likely to favor admitting evidence of an official act in a bribery prosecution, for instance, than one in which the protected conduct has little connection to the charged offense. I see no need to depart from that familiar and time-tested procedure here.
• * * *
• The Constitution does not insulate Presidents from criminal liability for official acts.
• Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.

Sotomayor Dissent (Kagan, Jackson)

Jackson Dissent

Full Recounting of Facts

• 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 obstruct the collecting, counting, and certifying of the election results. [Which of these are official acts? violations of 1512(c)(1)? See Need entry for Fischer-UntiedStates . Quote this statement in a 18 USC 1512 indictment?]
• 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 officials to ... change electoral votes for [Trump’s] opponent, Joseph R. Biden, Jr., to electoral votes for [Trump].”
• Second, Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states” and “caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.”
• 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 identified significant concerns that may have impacted the election outcome.”
• Fourth, Trump and his co-conspirators attempted to persuade “the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” And when that failed, on the morning of January 6, they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.”
• Fifth, when “a large and angry crowd ... violently attacked the Capitol and halted the proceeding,” Trump and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.”
• Based on this alleged conduct, the indictment charged Trump with
  • (1) conspiracy to defraud the United States in violation of 18 U. S. C. §371,
  • (2) conspiracy to obstruct an official proceeding in violation of §1512(k),
  • (3) obstruction of and attempt to obstruct an official proceeding in violation of §1512(c)(2), §2, and
  • (4) conspiracy against rights in violation of §241.
• Trump moved to dismiss the indictment based on Presidential 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 administration of the federal election”; (2) communicated with senior Justice Department officials “about investigating election fraud and about choosing the leadership” of the Department; (3) “communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it”; (4) “communicated with the Vice President” and with “Members of Congress about the exercise of their official duties regarding the election certification”; 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 official authority in a manner advocated for by President Trump.”
• Trump argued that all of the indictment’s allegations fell within the core of his official duties.
• The District Court declined to decide whether the indicted conduct involved official acts.
• A list of the material facts is available above

Majority Full Argument

• This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. [What official acts?]
• I
• See Material Facts
• See Procedural History
• II [Scope of Immunity]
• 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 Presidential power under the Constitution.
• The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office.
• They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. [Which acts are conceded to be unofficial?]
• We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. [emphasis added] [are there official acts NOT "during his tenure in office"? ]
• At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.
• As for his remaining official actions, he is also entitled to [either absolute or presumptive] immunity.
• II A [Absolute Immunity for Core Powers]
• No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.”
• In the latter case, the President’s authority is sometimes “conclusive and preclusive.”
• And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution. Marbury, 1 Cranch, at 166.
• ... once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination. [Pardons for sale? Nominations for sale?] [See III C Note 3]
• The President’s authority to pardon, in other words, is “conclusive and preclusive,” ...
• During and after the Civil War, President Lincoln 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.
• But in 1870, Congress enacted a provision that prohibited using the President’s pardon as evidence of restoration of property rights.
• Chief Justice Chase held the provision unconstitutional because it “impair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.” “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.” 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, concurring) [emphasis added]
• ... an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
• II B [Official Acts]
• The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress. [contradicted by conclusion at end of II B 2]
• II B 1
• In Nixon v. Fitzgerald, for instance, we recognized that as “a functionally mandated incident of [his] unique office,” a former President “is entitled to absolute [civil] immunity from damages liability predicated on his official acts.” Id., at 749.
• We therefore concluded that the President must be absolutely immune from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Fitzgerald, 457 U. S., at 756.
• By contrast, when prosecutors have sought evidence from the President, we have consistently rejected Presidential claims of absolute immunity.
• 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 rejected his claim of “absolute privilege,” given the “constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon, 418 U. S. 683, 703, 707 (1974).
• Because the President’s “need for complete candor and objectivity from advisers calls for great deference from the courts,” we held that a “presumptive privilege” protects Presidential communications. We thus deemed it “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”
• II B 2 Presumptive Immunity for Acts within Outer Perimeter of Official Responsibility
• ... if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined.
• The President, charged with enforcing federal criminal laws, is not above them.
• Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.
• At a minimum, the President must therefore 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.
• ["we do not decide"] whether this immunity is presumptive or absolute ["for a President’s acts within the outer perimeter of his official responsibility."] [contradicts II B first paragraph "reasons that justify ... absolute immunity ... do not extend to conduct in areas where his authority is shared with Congress."]
• II C [Unofficial Acts]
• As for a President’s unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. [prospective indictment enfeebles the executive (18). on-going criminal proceeding of a sitting president does not enfeeble the executive.]
• ... 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 effectively, free from undue pressures or distortions.
• The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.
• III [Official vs Unofficial Acts]
• The first step is to distinguish his official from unofficial actions.
• Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual.
• Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—...best left to the lower courts to perform in the first instance.
• III A [Background]
• Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action.
• ... 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 official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, ....
• In dividing official from unofficial conduct, courts may not inquire into the President’s motives. [what only. not why.] [contacting state election officials (conduct) to address fraud may not be distinguished from doing so to commit fraud. (motive/purpose)] [See Barrett on "corruptly" in Need entry for Fisher-UnitedStates ]
• Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. [official acts may be illegal and immune to prosecution]
• III B 1 Conduct Alleged in the Indictment -- DOJ and AG
• The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority.
• And 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; see United States v. Texas, 599 U. S. 670, 678–679 (2023)
• ... Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority.
• 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 [post-facto authorization of the Watergate Saturday Night Massacre?]
• The indictment’s allegations that the requested investigations 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 Department and its officials.
• Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [emphasis added]
• III B 2 Conduct Alleged in the Indictment -- VP
• Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.
• Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. [President of the Senate, not the Vice-President. Should the Vice-President be unable to serve, a replacement would be designate President of the Senate.]
• It is ultimately the Government’s burden to rebut the presumption of immunity.
• With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes. [Inaccurate. 3 USC 15 Counting electoral votes in Congress only refers to the Vice-President as being elected...and that in the last sentence of the section.]
• We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
• III B 3 Conduct Alleged in the Indictment -- Fake Electors
• The indictment’s remaining allegations cover a broad range of conduct.
• ... these remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public.
• On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election.
• In its [the Government's] view, Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors.
• The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do.
• We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.
• III C Conduct Alleged in the Indictment -- January 6th and other Conduct (30)
• The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Presidents therefore 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.
• [The government] contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.”
• That proposal threatens to eviscerate the immunity 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 prosecution to nonetheless prove his liability on any charge. [does immune mean not able to be prosecuted or not able to be found guilty. Barrett states immune from prosecution.]
• If official 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 unofficial conduct, the “intended effect” of immunity would be defeated. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. [emphasis added]
• The Government asserts that these weighty concerns can be managed by the District Court through the use of “evidentiary rulings” and “jury instructions.”
• Although such tools may suffice to protect the constitutional rights of individual criminal defendants, ....
• The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. [sentence appeared before the prior sentence...Constitution safeguards sufficient for citizens are insufficient for criminal trials of former presidents.]
• From note 3: Barrett disagrees, arguing that in a bribery prosecution, for instance, .... But of course the prosecutor may point to the public record to show the fact that the President performed the official 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 influenced in the performance 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 official act itself. [evidence of quid pro quo required by this court for public corruption. See McDonnell v. United States (2016) and Snyder v. United States (2024)
• IV A Impeachment Clause
• [dismissing claim] that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.
• IV B Dismissing Respondant's Claims
• The Government asserts that the “[r]obust safeguards” available in typical criminal proceedings alleviate the need for pretrial review.
• [the government] points to ... the criminal justice system’s further protections: grand juries, a defendant’s procedural rights during trial, and the requirement that the Government prove its case beyond a reasonable doubt.
• [the government] contends that “existing principles of statutory construction and as-applied constitutional challenges” adequately address the separation of powers concerns involved in applying generally applicable criminal laws to a President.
• They fail to address the fact that under our system of separated powers, criminal prohibitions cannot apply to certain Presidential conduct to begin with.
• Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.
• IV C Responding to the Dissents
• The principal dissent’s starting premise—that unlike Speech and Debate Clause immunity, no constitutional text supports Presidential immunity, see post, at 4–6 (opinion of Sotomayor)—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 unanimously a similar argument in the analogous executive privilege context). “[A] specific textual basis has not been considered a prerequisite to the recognition of immunity.” Fitzgerald, 457 U. S., at 750, n. 31.
• The principal dissent then cites the Impeachment Judgment Clause, arguing that it “clearly contemplates that a former President may be subject to criminal prosecution.” But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular.
• Conspicuously absent [from the dissent] is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. [due to resignation and pardon]
• Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President “above the law.” [not subject to criminal prosecution for any act under color of official duties]
• Without immunity, such types of [political] prosecutions of ex-Presidents could quickly become routine. ["absent is mention of the fact that since the foundind no President has ever faced criminal charges" despite no finding of immunity until today.]
• V
• ... we cannot afford to fixate exclusively, or even primarily, on present exigencies. [See parts III B 1, III B 2, III B 3, and III C (12 of 50 pages)]
• The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
• The core of the rationale is available above