Justice Sotomayor's Dissenting Opinion on Trump v United States

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 a textual, 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.” Ante, at 6. 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].” Ante, at 14.

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. See ante, at 30–32. 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. See Part III, infra. 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. See Part VII, infra.

[1] Article II, §4, provides: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

[2] To note, as the majority does, see ante, at 39, that this Court has recognized civil immunities arguably inconsistent with this view is not to say that Pinckney was wrong about what the Framers had “intended.” Indeed, Pinckney’s contemporaries shared the same view during the ratification debates. See, e.g., 4 Debates on the Constitution 109 (J. Elliot ed. 1836) (J. Iredell) (“If the President does a single act by which the people are prejudiced, he is punishable himself. . . . If he commits any crime, he is punishable by the laws of his country”).