"With Fear for Our Democracy, I Dissent."

Here is a link to the full decision on presidential immunity from the Supreme Court.

Here is Justice Sonia Sotomayor’s brilliant dissent. I urge all Americans to read every word of it — legal references and all — because her fear for us is real and valid. And John Roberts can poo-poo our concerns, but deep in the bottom of his very threatened soul, he knows this is true:

---

Today's decision to grant former Presidents criminal immunity

reshapes the institution of the Presidency. It makes

a mockery ofthe 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,

ante, at 3, 13, 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,” App. 181, Indictment ¶2, despite being

“notified repeatedly" by his closest advisers "that his claims

were untrue," id., at 188, ¶11 .

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

2 TRUMP v . UNITED STATES

SOTOMAYOR, J., dissenting

legitimate electors; and ultimately, cause the ascertainment

of and voting by illegitimate electors” in his favor. Id.,

at 185-186, 10(a). It is alleged that he went so far as to

threaten one state election official with criminal prosecution

ifthe official did not “ find 11,780 votes” Trumpneeded

to change the election result in that state. Id. , at 202,

131(f). 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.

See id., at 208-209, ¶¶53–54.

As the date ofthe 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." Id., at 187, ¶ 10 (d). 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."

Id., at 221, 186.

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." Id., at 229 , ¶ 104(a).

When this crowd then “violently attacked the Capitol and

halted the proceeding,” id., at 188, ¶10 (e), Trump allegedly

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SOTOMAYOR, J. , dissenting

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. Id., at 233, ¶119. 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." 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

4 TRUMP v. UNITED STATES

SOTOMAYOR, J., dissenting

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.

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." Ante, at 14.

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." Dobbs v. Jackson Women's Health Organization,

597 U. S. 215, 280 (2022). Indeed, those "standard

grounds for constitutional decisionmaking,” id ., at 279, 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." Ante, at 5.

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

Cite as: 603 U. S. (2024) 5

SOTOMAYOR, J. , dissenting

dispositive." United States v. Nixon, 418 U. S. 683, 706,

n. 16 (1974). Insofar as the majority rails against the notion

that a “ specific textual basis”” is required, ante, at 37

(quoting Nixon v. Fitzgerald, 457 U. S. 731, 750, n. 31

(1982)), 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. See

Art. I, §6, cl. 1 ("Senators and Representatives . . . shall in

all Cases, except Treason, Felony and Breach of the Peace,

be privileged from Arrest during their Attendance at the

Session of their respective Houses, and in going to and returning

from the same; and for any Speech or Debate in either

House, they shall not be questioned in any other

Place"). 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. " Brieffor Scholars of Constitutional Law

as Amici Curiae 4 (quoting S. Prakash, Prosecuting and

Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)).

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. Memorandum from R. Rotunda to K.

Starr re: Indictability of the President 18 (May 13, 1998).

They did not.

Third, insofar as the Constitution does speak to this question,

it actually contemplates some form ofcriminal 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. See ante, at 32-

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SOTOMAYOR, J. , dissenting

34; Part IV-C, infra. 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." Art. I, §3, cl. 7 (emphasis

added). 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 bydefinition.

¹

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 ofthe

separation of powers and supported by our history."" Ante,

at 10 (quoting Fitzgerald, 457 U. S. , at 749). 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, p. 452 (J.

Harv. Lib. ed. 2009). 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

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."

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SOTOMAYOR, J. , dissenting

and disgrace." Id., at 458. 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. Id., at 452.

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.” 2

Records of the Federal Convention of 1787, p. 503 (M. Farrand

ed. 1911) . There is no record of any such discussion.

Ibid. 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." 3 id. , at 385. “No privilege . . . was intended

for [the] Executive." Ibid.²

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 officialpowers

to commit crimes “may be tried by their country; and iftheir

criminality is established, the law will punish. Agrand jury

may present, a petty jury may convict, and the judges will

pronounce the punishment." 2 Debates on the Constitution

177 (J. Elliot ed. 1836). A few decades later, Justice Story

evinced the same understanding. He explained that, when

2To 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") .

8 TRUMP v. UNITED STATES

SOTOMAYOR, J., dissenting

a federal official commits a crime in office, “it is indispensable,

that provision should be made, that the common tribunals

ofjustice should be at liberty to entertain jurisdiction

ofthe offence, for the purpose ofinflicting, the common punishment

applicable to unofficial offenders.” 2 Commentaries

on the Constitution of the United States $ 780,

pp. 250-251 (1833). 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.” Id., at 251.

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. See ante, at 38-39. 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. Ante,

at 38 (quoting Fitzgerald, 457 U. S. , at 752, n. 31). Yet the

Court has described only the evidence regarding “the President's

immunity from damages liability” as “fragmentary.”

Fitzgerald, 457 U. S. , at 751–752, n. 31 (emphasis added).

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. Id., at 152, n. 31. The majority ignores

this reliance. It seems history matters to this Court

only when it is convenient. See, e.g., New York State Rifle

& Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022); Dobbs, 597

U. S. 215 .

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SOTOMAYOR, J. , dissenting

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. Cf. Chiafalo v. Washington,

591 U. S. 578, 592–593 (2020) (" Long settled and established

practice' may have 'great weight in a proper interpretation

of constitutional provisions"" (quoting The

Pocket Veto Case, 279 U. S. 655, 689 (1929))). 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." Brief for United

States 15; see also Public Papers of the Presidents, Gerald

R. Ford, Vol. 1 , Sept. 8, 1974 , p. 103 (1975) (granting former

President Nixon a “full, free, and absolute pardon . . . for all

offenses against the United States which he ... has committed

or may have committed or taken part in during” his

Presidency); R. Nixon, Statement by Former President

Richard Nixon to P. Buchen, Counsel to President Ford,

p. 1 (Sept. 8, 1974) (accepting “full and absolute pardon for

any charges which might be brought against me for actions

taken during the time I was President of the United

States") .

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. See,

e.g., 1 L. Walsh, Final Report of the Independent Counsel

for Iran/Contra Matters: Investigations and Prosecutions

445 (1993) (“[B]ecause a President, and certainly a past

President, is subject to prosecution . . . the conduct ofPres1100

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SOTOMAYOR, J. , dissenting

ident Reagan in the Iran/contra matter was reviewed by Independent

Counsel against the applicable statutes. It was

concluded that [his] conduct fell well short of criminality

which could be successfully prosecuted").

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.” 2 Proceedings ofthe U. S.

Senate in the Impeachment Trial of Donald John Trump, S.

Doc. 117-2, p. 144 (2021). They insisted that a former President

"is like any other citizen and can be tried in a court of

law." Ibid.; see also 1 id., S. Doc. 117–3 , at 339 (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

ofthe 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. Ante, at 14 (emphasis omitted). The majority

purports to keep us in suspense as to whether this

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SOTOMAYOR, J. , dissenting

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. " Ibid. (emphasis added). No dangers, none at all.

It is hard to imagine a criminal prosecution for a President's

official acts that would pose no dangers ofintrusion 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."

Nixon v. Administrator of General Services , 433 U. S. 425,

443 (1977). Other intrusions may be justified by the "primary

constitutional duty of the Judicial Branch to do justice

in criminal prosecutions." United States v. Nixon, 418 U. S.

683, 707 (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,"

ante, at 6, hardly matters.

Maybe some future opinion of this Court will decide that

presumptive immunity is “sufficient,” ibid., 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."

Ante, at 15. Of course he can. No one has questioned the

ability to prosecute a former President for unofficial (other12

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SOTOMAYOR, J., dissenting

wise 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, 520 U. S. 681 (1997). See ante, at 15. 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. Ante, at

17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC

2023)). It then goes a step further: “In dividing official from

unofficial conduct, courts may not inquire into the President's

motives." Ante, at 18. 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 ofthe 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,” ante, at 13–14, but it then proceeds

to place former Presidents beyond the reach of the

federal criminal laws for any abuse of officialpower.

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, 457 U. S. 731 (1983). Yet

Cite as: 603 U. S. (2024) 13

SOTOMAYOR, J. , dissenting

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,” ante, at 14, by rejecting that Branch's own protestations

that such immunity is not at all required and would

in fact be harmful, see Brief for United States 18-24, 29–

30. 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 thenformer

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-ofpowers

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 ofthe 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 ." Ibid. (citations omitted).

On the facts before it, the Court concluded that a "merely

privatesuit for damages based on a President's official acts"

did not serve those interests. Ibid. 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

14 TRUMP v. UNITED STATES

SOTOMAYOR, J. , dissenting

public duties." Id., at 753. The public interest in such private

civil suits, the Court concluded, was comparatively

weak. See id., at 754, n. 37 (“[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. Ibid.

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 ofthe Fitzgerald Court acknowledged, see Part IVB-

2, infra, 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 ofthe 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." Ante, at 13 (quoting Fitzgerald, 457 U. S. , at

745). It is of course important that the President be able to

Cite as: 603 U. S. (2024) 15

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SOTOMAYOR, J. , dissenting

“ “deal fearlessly and impartially with” the duties of his office.

" Ante, at 10 (quoting Fitzgerald, 457 U. S., at 752). 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." Id., at 753. 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." 2023 WL 8359833, * 9 (DC , Dec.

1, 2023) (quoting Fitzgerald, 457 U. S., at 753). 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. 2023 WL

8359833, *10. 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 for D. C., 542 U. S. 367, 386 (2004). To

start, Justice Department policy requires scrupulous and

impartial prosecution, founded on both the facts and the

law. See generally Dept. of Justice, Justice Manual §9–

27.000 (Principles of Federal Prosecution) (June 2023). The

16 TRUMP v. UNITED STATES

SOTOMAYOR, J. , dissenting

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 wellfounded.

United States v. Williams, 504 U. S. 36, 47 (1992);

see also Harlow v. Fitzgerald, 457 U. S. 800, 826, n. 6 (1982)

(Burger, C. J., dissenting) (“[A] criminal prosecution cannot

be commenced absent careful consideration by a grand jury

at the request of a prosecutor; the same check is not present

with respect to the commencement of civil suits in which

advocates are subject to no realistic accountability”) .

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,

see Tr. of Oral Arg. 107-108.4

3See Nardone v. United States, 302 U. S. 379, 384 (1937) (explaining

that public officers may be “impliedlyexcluded from [statutory] language

embracing all persons” if reading the statute to include such officers

"would workobvious absurdity as , for example, the application ofa speed

law to a policeman pursuing a criminal or the driver of a fire engine responding

to an alarm") ; see also Memorandum from D. Barron, Acting

Assistant Atty. Gen., Office of Legal Counsel, to E. Holder, Atty. Gen.,

Re: Applicability of Federal Criminal Laws and the Constitution toContemplated

Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July

16 , 2010) (interpreting criminal statute prohibiting unlawful killings "to

incorporate the public authority justification, which can render lethalaction

carried out by a government official lawful in some circumstances").

4Trump did not raise those defenses in this case, and the immunity

that the majority has created likely will obviate the need to raise them

in future cases. Yet those defenses would have protected former Presidents

from unwarranted criminal prosecutions much more precisely

than the blanket immunity the majority creates today.

Cite as: 603 U. S. (2024) 17

SOTOMAYOR, J. , dissenting

Ifthe case nonetheless makes it to trial, the Government

will bear the burden of proving every element ofthe alleged

crime beyond a reasonable doubt to a unanimous jury of the

former President's fellow citizens. See United States v.

Gaudin, 515 U. S. 506, 510 (1995). 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.””

Trump v. Vance, 591 U. S. 786, 809 (2020) (quoting Nixon,

418 U. S., at 702) . 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,”” ante, at 18 (alteration

omitted), would expose former Presidents to trial and

conviction is unfounded. Bare allegations of malice would

not make it out ofthe starting gate. Although a privatecivil

action may be brought based on little more than “ intense

feelings,"" ante, at 11 (quoting Fitzgerald, 457 U. S., at 752),

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 longstanding 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.” Ante, at 13.

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

18 TRUMP v . UNITED STATES

SOTOMAYOR, J. , dissenting

President's attention during the decisionmaking process"

with "needless worry," Clinton, 520 U. S., at 694 , n. 19, 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,

Art. II, §3, he has not been rendered “ unduly cautious,""

ante, at 10 (quoting Fitzgerald, 457 U. S. , at 752,

n. 32) . 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? Ante, at 13. It cannot possibly be the deterrence

ofacts 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. See ante,

at 40. 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 ofjustice.""

Nixon, 418 U. S., at 712, n. 20 (quoting Clark v. United

States, 289 U. S. 1, 16 (1933)). The concern that countless

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SOTOMAYOR, J. , dissenting

(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." 457 U. S. , at 754, n. 37. Chief Justice

Burger's concurrence accordingly emphasized that the majority's

immunity was “limited to civil damages claims,” rather

than "criminal prosecution." Id., at 759-760. 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 ." Id., at 780 (White, J.,

dissenting). 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,”” ante, at 13 (quoting

Huntington v. Attrill, 146 U. S. 657, 668 (1892)), such that

there is “a compelling ‘public interest in fair and effective

law enforcement,”” ante, at 13 (quoting Vance, 591 U. S., at

808) . 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."" Nixon, 418

U. S., at 708–709 (quoting Berger v. United States, 295 U. S.

78, 88 (1935)).

The public interest in criminal prosecution is particularly

20 TRUMP v. UNITED STATES

SOTOMAYOR, J., dissenting

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. See, e.g., O'Shea v. Littleton,

414 U. S. 488, 503 (1974) (“[W] e have never held that

the performance of the duties of judicial, legislative, or executive

officers, requires or contemplates the immunization

of otherwise criminal deprivations of constitutional

rights"); Dennis v. Sparks, 449 U. S. 24, 31 (1980) (“[J]udicial

immunity was not designed to insulate the judiciary

from all aspects of public accountability. Judges are immune

from §1983 damages actions, but they are subject to

criminal prosecutions as are other citizens") ; Imbler v.

Pachtman, 424 U. S. 409, 428-429 (1976) ("Weemphasize

that the [civil] immunity of prosecutors . . . does not leave

the public powerless to deter misconduct or to punish that

which occurs. 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 imCite

as: 603 U. S. (2024) 21

SOTOMAYOR, J. , dissenting

munity "would frustrate the Executive Branch's enforcement

of the criminal law." Brief for United States 19. The

President is, of course, entrusted with " supervisory and

policy responsibilities ofutmost discretion and sensitivity.""

Ante at 10 (quoting Fitzgerald, 457 U. S., at 750). 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."" Id., at 750 (quoting

Art. II, §3). 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." 91 F. 4th 1173, 1195 (CADC

2024) (per curiam). It also, of course, implicates Congress's

own interest in regulating conduct through the criminal

law. Cf. Fitzgerald, 457 U. S. , at 749, n. 27 (noting that the

case did not involve “affirmative action by Congress"). 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." Ante, at 40.

22 TRUMP v. UNITED STATES

SOTOMAYOR, J. , dissenting

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."

Ante, at 32. Ifanything, 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.” Ibid. That argument is obviously

wrong. See ante, at 32–34. 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. See Brief for Petitioner 22

("The Founders thus adopted a carefully balanced approach

that permits the criminal prosecution of a former President

for his official acts, but only if that President is first impeached

by the House and convicted by the Senate"). By

extinguishing that path to overcoming immunity, however

nonsensical it might be, the majority arrives at an officialacts

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." Ante,

at 9. Feel free to skip over those pages of the majority's

Cite as: 603 U. S. (2024) 23

SOTOMAYOR, J. , dissenting

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," ante, at 6, 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." Youngstown Sheet & Tube Co. v. Sawyer,

343 U. S. 579, 638 ( 1952) (Jackson, J., concurring). 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. Ibid., n. 4.

Other decisions of this Court indicate that the pardon

power also falls in this category, see United States v. Klein,

13 Wall. 128, 147 (1872) (“To the executive alone is intrusted

the power of pardon; and it is granted without

limit"), as does the power to recognize foreign countries, see

Zivotofskyv. Kerry, 576 U. S. 1, 32 (2015) (holding that the

President has "exclusive power . . . to control recognition determinations")

.

In this case, however, the question whether a former

President enjoys a narrow immunity for the “exercise of his

core constitutional powers,” ante, at 6, 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

2244 TRUMP v. UNITED STATES

SOTOMAYOR, J. , dissenting

threatened to remove an Acting Attorney General who

would not carry out his scheme. See, e.g., App . 216–217,

Indictment ¶¶74, 77. 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." Tr. of Oral Arg. 127. 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. Ante, at 20 (quoting Art. II, §3). 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.” Ante, at 21. 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

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SOTOMAYOR, J., dissenting

agrees with it . See ante, at 34. 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, see Tr. of Oral Arg. 85-

87, 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." Brief for United States 45. 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." Brief for Petitioner 43–44.

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." Dames & Moore v. Regan, 453 U. S. 654, 661 (1981) .

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

26 TRUMP v . UNITED STATES

SOTOMAYOR, J. , dissenting

criminal acts. See ante, at 30-32.

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 ofthe President's

public admission of premeditated intent to support

the mens rea of murder. That is a strange result, to say the

least.5

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.” Wisconsin v. Mitchell, 508 U. S.

476, 489 (1993). Evidentiary rulings and limiting instructions

can ensure that evidence concerning official acts is

"considered only for the proper purpose for which it was admitted."

Huddleston v. United States, 485 U. S. 681, 691-

692 (1988). The majority has no coherent explanation as to

5 The majority suggests, in a footnote, that a “prosecutor may point to

the public record to show the fact that the President performed the official

act," so long as the prosecutor does not “invite the jury to inspect"

the act in any way. Ante, at 32, n . 3. Whatever that suggestion is supposed

to accomplish, it does not salvage the majority's nonsensical evidentiary

rule .

Cite as: 603 U. S. (2024) 27

222

SOTOMAYOR, J. , dissenting

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.’ Ante, at 31 (quoting Fitzgerald, 457

U. S., at 756). The majority hazards an explanation that

the use ofofficial-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."

Ante, at 31. 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

ofthe 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, see ante, at 19–24, yet it refuses to designate any

course of conduct alleged in the indictment as private, despite

concessions from Trump's counsel.6 Trump's counsel

conceded, for example, that the allegation that Trump

6The majority protests that it is “adher[ing] to time-tested practices"

by "deciding what is required to dispose of this case and remanding" to

lower courts to sort out the details . Ante, at 41. Yet it implicitlyacknowledges

that it reaches far beyond what any lower court considered or any

party briefed by designating certain conduct official in the first instance.

See ibid. (noting"the lack of factual analysis in the lower courts, and the

lack of briefing on how to categorize the conduct alleged") . In reaching

out to shield some conduct as official while refusing to recognize any conduct

as unofficial, the majority engages in judicial activism, not judicial

restraint.

28 TRUMP v. UNITED STATES

SOTOMAYOR, J., dissenting

“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.” Tr. of

Oral Arg. 29. 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." Ibid.; see also id ., at 36-37 (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 ." Id., at 29-30 . Only the

majority thinks that organizing fraudulent slates of electors

might qualify as an official act of the President, see

ante, at 24-28, or at least an act so "interrelated" with other

allegedly official acts that it might warrant protection, ante,

at 28. If the majority's sweeping conception of“official acts”

has any real limits, the majority is unwilling to revealthem

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, see ante, at 19-21; see also Part

V, supra, 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. Ante, at 23-24. 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." App. 187, Indictment

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SOTOMAYOR, J. , dissenting

¶10(d). 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." Ante, at

24. Such a prosecution, according to the majority, “may

well hinder the President's ability to perform his constitutional

functions ." Ibid. 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,'” ante, at 14, 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 ofthe Nation. Korematsu

v. United States, 323 U. S. 214, 246 (1944) (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

30 TRUMP v. UNITED STATES

SOTOMAYOR, J. , dissenting

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, p. 507 (J. Harvard Library

ed. 2009) . The answer then was yes, based in part

upon the President's vulnerability to "prosecution in the

common course of law." Ibid. 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.

---

The full transcript of the Supreme Court’s decision is here:

https://www.nytimes.com/interactive/2024/07/01/us/scotus-immunity.html