Supreme Court Justice Barrett's Opinion on Trump v United States

JUSTICE BARRETT, concurring 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. That said, I would have framed the underlying legal issues differently.

The Court describes the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.

There appears to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Special Counsel all accept that some prosecutions of a President’s official conduct may be unconstitutional. See post, at 16 (opinion of SOTOMAYOR, J.); Brief for United States 24– 30. As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion.

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. See ante, at 14. I would have answered it now.

Though I agree that a President cannot be held criminally liable for conduct within his “conclusive and preclusive” authority and closely related acts, ante, at 8–9, the Constitution does not vest every exercise of executive power in the President’s sole discretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).[1] 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). The underlying murder statute, however, covers only “unlawful” killings. §1111.

The Office of Legal Counsel has interpreted that phrase to reflect a public-authority exception for official acts involving the military and law enforcement. Memorandum from D. Barron, Acting Assistant Atty. Gen., to E. Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12–19 (July 16, 2010); see also Brief for United States 29–30; post, at 16, and n. 3 (SOTOMAYOR, J., dissenting). I express no view about the merits of that interpretation, but it shows that the threshold question of statutory interpretation is a nontrivial step.

If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances poses no “‘dange[r] of intrusion on the authority and functions of the Executive Branch.’” Ante, at 14 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 754 (1982)). On remand, the lower courts will have to apply that standard to various allegations involving the President’s official conduct.[2] Some of those allegations raise unsettled questions about the scope of Article II power, see ante, at 21–28, but others do not.

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. Brief for United States 24–30. It is also our usual approach to considering the validity of statutes in situations raising a constitutional question.

See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 213, 229 (2020).[3] An important difference in this context is that the President is entitled to an interlocutory appeal of the trial court’s ruling. See ante, at 36. A criminal defendant in federal court normally must wait until after trial to seek review of the trial court’s refusal to dismiss charges. See United States v. MacDonald, 435 U. S. 850, 853–854 (1978); see also 18 U. S. C. §3731. But where trial itself threatens certain constitutional interests, we have treated the trial court’s resolution of the issue as a “final decision” for purposes of appellate jurisdiction. MacDonald, 435 U. S., at 854–856; see 28 U. S. C. §1291; see also §1257.

The present circumstances fall squarely within our precedent authorizing interlocutory review. When a President moves to dismiss an indictment on Article II grounds, he “makes no challenge whatsoever to the merits of the charge against him.” Abney v. United States, 431 U. S. 651, 659 (1977) (allowing interlocutory appeal of rejection of double jeopardy defense). He instead contests whether the Constitution allows Congress to criminalize the alleged conduct, a question that is “collateral to, and separable from” his guilt or innocence. Ibid.

Moreover, the President’s Executive Branch authority “would be significantly undermined if appellate review” of the constitutional challenge “were postponed until after conviction and sentence.” Id., at 660; see also Helstoski v. Meanor, 442 U. S. 500, 507 (1979) (allowing interlocutory appeal of refusal to dismiss an indictment on Speech or Debate Clause grounds).

The prospect of a trial court erroneously allowing the prosecution to proceed poses a unique danger to the “independence of the Executive Branch.” Trump v. Vance, 591 U. S. 786, 800 (2020). As the Court explains, the possibility that the President will be made to defend his official conduct before a jury after he leaves office could distort his decisions while in office. Ante, at 13–14, 36.

These 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. See Helstoski, 442 U. S., at 507–508; Abney, 431 U. S., at 659–661; see also Reply Brief for United States in No. 23–624, p. 5 (agreeing that the President “has a right to an interlocutory appeal from the district court’s rejection of his immunity defense”).

I understand most of the Court’s opinion to be consistent with these views. 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. See ante, at 30–32. I disagree with that holding; on this score, I agree with the dissent.

See post, at 25–27 (SOTOMAYOR, J., dissenting). The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. 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).

The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. See Art. II, §4 (listing “Bribery” as an impeachable offense); see also Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974) (suggesting that the federal bribery statute applies to the President). Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution.

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. Ante, at 31. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President’s protected conduct “if its probative value is substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403; see also Rule 105 (requiring the court to “restrict the evidence to its proper scope and instruct the jury accordingly”).

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. And if the evidence comes in, the trial court can instruct the jury to consider it only for lawful purposes. See Richardson v. Marsh, 481 U. S. 200, 206–207 (1987). 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. But any statute regulating the exercise of executive power is subject to a constitutional challenge. See, e.g., Collins v. Yellen, 594 U. S. 220, 235– 236 (2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194 (2012); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 487–488 (2010). A criminal statute is no exception. 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.

[1] Consistent with our separation of powers precedent, I agree with the Court that the supervision and removal of appointed, high ranking Justice Department officials falls within the President’s core executive power. See Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 213–215 (2020); ante, at 19–21. I do not understand the Court to hold that all exercises of the Take Care power fall within the core executive power. Cf. post, at 24 (SOTOMAYOR, J., dissenting). I agree with the dissent that the Constitution does not justify such an expansive view. Ibid.

[2] This analysis is unnecessary for allegations involving the President’s private conduct because the Constitution offers no protection from prosecution of acts taken in a private capacity. Ante, at 15. Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. See, e.g., App. 208. In my view, that conduct is private and therefore not entitled to protection.

See post, at 27–28 (SOTOMAYOR, J., dissenting). The Constitution vests power to appoint Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578, 588–589 (2020). 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.

[3] The Court has sometimes applied an avoidance canon when interpreting a statute that would interfere with the President’s prerogatives. See, e.g., Franklin v. Massachusetts, 505 U. S. 788, 800–801 (1992); Public Citizen v. Dept. of Justice, 491 U. S. 440, 465–467 (1989); see also Sale v. Haitian Centers Council, Inc., 509 U. S. 155, 188 (1993). The Office of Legal Counsel has advocated for a clear-statement rule if applying a statute would “raise serious constitutional questions relating to the President’s constitutional authority.” See Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 350–357 (1995).

In my view, neither canon applies in this circumstance. Courts should instead determine the statute’s ordinary meaning and, if it covers the alleged official acts, assess whether prosecution would intrude on the President’s constitutional authority. See Public Citizen, 491 U. S., at 481–482 (Kennedy, J., concurring in judgment) (declining to apply the avoidance canon and concluding that the Federal Advisory Committee Act is unconstitutional as applied).