Everything You Need to Know About Trump v. United States

II

A

These foundational presuppositions are reflected in a procedural paradigm of rules and accountability that operates in the realm of criminal law—what I would call an individual accountability model.

The basic contours of that model are familiar, because they manifest in every criminal case. Criminal law starts with an act of the legislature, which holds the power “to define a crime, and ordain its punishment.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820); accord, Ohio v. Johnson, 467 U. S. 493, 499 (1984). Criminal statutes are laws of general applicability that express “the assent of the people’s representatives” that certain conduct is off limits in our society. Wooden v. United States, 595 U. S. 360, 391 (2022) (GORSUCH, J., concurring in judgment).

When the Federal Government believes that someone has run afoul of a criminal statute and decides to exercise its prosecutorial discretion to pursue punishment for that violation, it persuades a grand jury that there is probable cause to indict. U. S. Const., Amdt. 5. Then, the Government marshals evidence to prove beyond a reasonable doubt that the defendant engaged in the prohibited conduct and possessed the requisite state of mind. See United States v. Bailey, 444 U. S. 394, 402 (1980) (observing that, to hold a person criminally liable, “the concurrence of . . . ‘an evil-meaning mind [and] an evil-doing hand’” must be proved (quoting Morissette v. United States, 342 U. S. 246, 251 (1952))).

For his part, the defendant “stands accused but is presumed innocent until conviction upon trial or guilty plea.” Betterman v. Montana, 578 U. S. 437, 441 (2016). Notably, criminal defendants have various constitutionally protected rights during the criminal-liability process, including the rights to a speedy and public trial, the right to have a jury decide guilt or innocence, the right to the assistance of counsel, and the right to confront the witnesses against him. Amdt. 6.

The defendant also has at his disposal many means to defend himself against the criminal charge. He can, of course, seek to hold the Government to its burden of proof at trial. And even before trial, in a motion to dismiss the indictment, he might make any number of legal arguments; he can assert, for example, that the Government’s charging document does not give adequate notice of the charge against him or that the law he has been accused of violating is unconstitutionally vague.

See Hamling v. United States, 418 U. S. 87, 117 (1974); United States v. Davis, 588 U. S. 445, 451 (2019). He might further claim that the law is unconstitutional as applied to his particular conduct. See United States v. O’Brien, 391 U. S. 367, 376 (1968). And he might maintain that his conduct, even if proved, does not violate the law at issue. See, e.g., Fischer v. United States, 603 U. S. ___, ___ (2024) (slip op., at 2).

The defendant may also raise, and attempt to prove, affirmative defenses that “excuse conduct that would otherwise be punishable.” Dixon v. United States, 548 U. S. 1, 6 (2006). Generally speaking, affirmative defenses are determinations (often adopted by legislation) that certain conduct otherwise punishable by law is justified. This might be the case, for example, when the Legislature determines that, under specified circumstances, the societal harm particular conduct causes “is outweighed by the need to avoid an even greater harm.” 1 P. Robinson, Criminal Law Defenses §24(a) (1984) (Robinson).

Importantly, a defense is not an immunity, even though a defense can likewise result in a person charged with a crime avoiding liability for his criminal conduct. Consistent with our foundational norms, the individual accountability model adheres to the presumption that the law applies to all and that everyone must follow it; yet, the model makes allowances for recognized defenses. One such defense is the special privilege that Government officials sometimes invoke when carrying out their official duties.[1]

All of this is to say that our Government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be Government officials or ordinary citizens. For over two centuries, our Nation has survived with these principles intact.

B

With that understanding of how our system of accountability for criminal acts ordinarily functions, it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government.

1

So, how does this new Presidential accountability model work? An initial problem is the lack of clarity regarding what this new model entails. The majority announces only its most basic contours. See ante, at 6 (asserting that “the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office”). Instead of no immunity (the individual accountability model) or an unqualified grant of absolute immunity for “all official acts,” Brief for Petitioner 44 (emphasis added), the majority purports to adopt something of a hybrid.[2]

It holds that a former President may or may not be immune from criminal prosecution for conduct undertaken while in office, to be determined on a case-by-case basis. According to the majority, whether a former President is immune depends on how his criminal conduct is classified, as among three possible categories.

First, with respect to any criminal conduct relating to a President’s “core constitutional powers”—those subjects “within his ‘conclusive and preclusive’ constitutional authority”—the President is entitled to absolute immunity from criminal prosecution. See ante, at 6, 8. Second, expanding outward from this “core,” regarding all other “acts within the outer perimeter of [the President’s] official responsibility,” the President is entitled to “at least a presumptive immunity from criminal prosecution.” Ante, at 14. Third, if the criminal conduct at issue comprises “unofficial acts, there is no immunity.” Ante, at 15.[3]

Applying the majority’s new Presidential accountability model thus seems to involve bearing down on the indictment’s allegations and making a series of determinations about the nature of the conduct at issue. From the structure of the paradigm, it appears that the first decision point is whether the alleged criminal conduct involves one of the President’s “core” powers.

If so (and apparently regardless of the degree to which the conduct implicates that core power), the President is absolutely immune from criminal liability for engaging in that criminal conduct. If not, then one must proceed to consider whether the conduct qualifies as an “official” act or “unofficial” act of that President. If the crime is an official act, the President is presumptively immune from criminal prosecution and punishment.

But even then, immunity still hinges on whether there is any legal or factual basis for concluding that the presumption of immunity has been rebutted. Alternatively, if the charged conduct is an unofficial act (a determination that, incidentally, courts must make without considering the President’s motivations, ante, at 18), the President is not immune.[4]

2

The majority’s multilayered, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts. For every allegation, courts must run this gauntlet first—no matter how well documented or heinous the criminal act might be.

Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably instigates an unsuccessful coup, id., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model.

That is because whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive).

In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends.

Under the individual accountability paradigm, the accountability analysis is markedly less convoluted, and leads to a more certain outcome. None of the same complications or consequences arise, because, as I have explained, there are no exemptions from the criminal law for any person, but every defendant can assert whatever legal arguments and defenses might be applicable under governing law.

Since no one is above the law, everyone can focus on what the law demands and permits, and on what the defendant did or did not do; no one has to worry about characterizing any criminal conduct as official or unofficial in order to assess the applicability of an immunity at the outset.

The majority’s new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society. In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct.

Indeed, the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties.

That point bears emphasizing. Immunity can issue for Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior. Regardless of the nature or the impact of the President’s criminal conduct, so long as he is committing crimes “pursuant to the powers invested exclusively in him by the Constitution,” ante, at 7, or as needed “to carry out his constitutional duties without undue caution,” ante, at 14, he is likely to be deemed immune from prosecution.[5]

Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all.

Also, under the new Presidential accountability model, the starting presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President’s official behavior might be.

Regardless of all that, courts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts.

3

The structure and function of the two accountability paradigms are not the only differences—the models also assign different roles to participants in the criminal justice system, and they ultimately generate different relationships between the Presidency and the Rule of Law.

Under the individual accountability model, duty-bound prosecutorial officers initially exercise their discretion to decide whether to seek punishment for alleged violations of criminal law (a determination that is made based on numerous factors). And even if prosecutors decide to bring a charge, a jury of the criminal defendant’s peers ultimately determines whether that defendant (including a former President) will actually be held to account for having engaged in unlawful conduct, after the court has resolved any legal challenges and has instructed the jury as to the requirements of the law.

By contrast, under the majority’s new Presidential accountability paradigm, what a prosecutor or jury does may not even matter, since the courts take center stage once charges are brought against a former President, marshaling their resources to conduct a complex and amorphous threshold immunity evaluation. Whether a former President will be entirely exempted from the dictates of the law (such that the roles of other participants in the criminal justice process become irrelevant) requires a judicial assessment, in the first instance, of his criminal conduct and the circumstances under which he acted.

Finally, and most importantly, recall that under the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances.

In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former President’s conduct was in fact justified, notwithstanding the general criminal prohibition.

Under the majority’s immunity regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any excuse; the law simply does not apply to him.

Unlike a defendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “‘official power’” in doing so. Ante, at 19. In the former paradigm, the President remains subject to law; in the latter, he is above it.

[1] See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority”); see also 2 Robinson §141(a) (describing the public-authority defense, under which a defendant may escape liability if he “has been specifically authorized to engage in the conduct constituting the offense in order to protect or further a public interest”); Brief for United States 29–30, n. 11; ante, at 16, n. 3 (SOTOMAYOR, J., dissenting) (citing Nardone v. United States, 302 U. S. 379, 384 (1937)).

[2] Its feigned judicial humility notwithstanding, see ante, at 41, the majority’s holding goes further—much further—than necessary to resolve this case. Petitioner’s argument in both the lower courts and this one was that a former President is categorically immune from federal criminal prosecution for “all” acts within the outer perimeter of his official duties. See Opening Brief for Defendant-Appellant in No. 23–3228 (CADC, Dec. 23, 2023), p. 23; 91 F. 4th 1173, 1188–1189, 1195, 1208 (CADC 2024) (per curiam); Brief for Petitioner 41–47 (arguing for absolute immunity for “all actions within the ‘outer perimeter’ ” of a President’s responsibilities, and imploring the Court not to adopt a “ ‘functionbased’ approach”).

Thus, it would have been enough for the Court simply to reject petitioner’s categorical claim and leave it at that. But the majority sua sponte rephrased the question presented, and it now takes full advantage of this opportunity to devise from whole cloth an entirely new legal framework for judicial evaluation of potential criminal immunity for former Presidents.

[3] It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 2 (BARRETT, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute.

To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.

[4] JUSTICE BARRETT’s version of the Presidential accountability paradigm works slightly differently; she would have us ask, first, “whether the relevant criminal statute reaches the President’s official conduct.” Ante, at 2. But, again, what is at issue here are statutes of general applicability—they only “reach” the President’s conduct to the extent that he chooses to engage in the prohibited behavior. See n. 3, supra.

JUSTICE BARRETT’s framing, thus, sidesteps the fact that, when immunity is being considered, what is actually at issue is whether the President is exempt from punishment if he opts to exercise his official duties using means that violate criminal law.

[5] To fully appreciate the oddity of making the criminal immunity determination turn on the character of the President’s responsibilities, consider what the majority says is one of the President’s “conclusive and preclusive” prerogatives: “ ‘[t]he President’s power to remove . . . those who wield executive power on his behalf.’ ” Ante, at 8 (quoting Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204 (2020)). While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.

Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.