Episode 125
Opinion Summary: Trump v. United States | Date Decided: 7/1/24 | Case No. 23-939
The question presented in this case is: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
The Supreme Court held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
TIMESTAMPS:
00:00 Introduction
00:14 Question Presented
00:30 Voting Breakdown
01:10 Chief Justice Roberts Majority Opinion
02:08 Holding
21:32 Justice Thomas Concurring Opinion
23:48 Justice Barrett Opinion Concurring in Part
28:59 Justice Sotomayor Dissenting Opinion
38:40 Justice Jackson Dissenting Opinion
Transcript
The question presented in this case is whether, and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
Speaker A:Chief Justice Roberts delivered the opinion of the Court in which Justices Thomas, Alito, Gorsuch, and Kavanaugh joined in full and in which Justice Barrett joined except AS to Part 3C.
Speaker A:Justice Thomas filed a concurring opinion.
Speaker A:Justice Barrett filed an opinion concurring in part.
Speaker A:Justice Sotomayor filed a dissenting opinion in which Justices Kagan and Jackson joined.
Speaker A:Justice Jackson filed a dissenting opinion.
Speaker A:Please note that this summary is read.
Speaker B:By an automated voice Chief Justice Roberts's opinion A federal grand jury indicted former President Donald J.
Speaker B: idency following the November: Speaker B:The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.
Speaker B:Trump moved to dismiss the indictment based on presidential immunity, arguing that a president has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities and that the indictment's allegations fell within the core of his official duties.
Speaker B:The District Court denied Trump's motion to dismiss, holding that former presidents do not possess federal criminal immunity for any acts.
Speaker B:The D.C.
Speaker B:circuit affirmed.
Speaker B:Both the district court and the D.C.
Speaker B:circuit declined to decide whether the indicted conduct involved official acts held under our constitutional structure of separated powers.
Speaker B:The nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, and he is entitled to at least presumptive immunity from prosecution for all his official acts.
Speaker B:There is no immunity for unofficial acts.
Speaker B:A this case is the first criminal prosecution in our nation's history of a former president for actions taken during his presidency.
Speaker B:Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of presidential power under the Constitution.
Speaker B:The nature of that power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office, at least with respect to the president's exercise of his core constitutional powers.
Speaker B:This immunity must be absolute.
Speaker B:As for his remaining official actions, he is entitled to at least presumptive immunity.
Speaker B:1 Article 2 of the Constitution vests executive power in a President of the United states of America.
Speaker B:Section 1, clause 1 the President has duties of unrivaled gravity and breadth.
Speaker B:Trump v.
Speaker B:Vance, 591 United States 786, 800.
Speaker B:His authority to act necessarily stems either from an act of Congress or from the Constitution itself.
Speaker B:Youngstown Sheet and Tube COV.
Speaker B:Sawyer, 343 U.S.
Speaker B:579, 585.
Speaker B:In the latter case, the President's authority is sometimes conclusive and preclusive.
Speaker B:At 6.
Speaker B:38 Jackson J.
Speaker B:Concurring.
Speaker B:When the President exercises such authority, Congress cannot act on and courts cannot examine the President's actions.
Speaker B:It follows that an act of Congress, either a specific one targeted at the President or a generally applicable one, may not criminalize the President's actions within his exclusive constitutional power.
Speaker B:Neither may the courts adjudicate a criminal prosecution that examines such presidential actions.
Speaker B:The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
Speaker B:2.
Speaker B:Not all of the President's official acts fall within his conclusive and preclusive authority.
Speaker B:The reasons that justify the President's absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress.
Speaker B:To determine the President's immunity in this context, the Court looks primarily to the Framer's design of the presidency within the separation of powers precedent on presidential immunity in the civil context and criminal cases where a President resisted prosecutorial demands for documents.
Speaker B:I.
Speaker B:The Framers designed the Presidency to provide for a vigorous and energetic executive.
Speaker B:They vested the President with supervisory and policy responsibilities of utmost discretion and sensitivity.
Speaker B:Nixon, Vrai Fitzgerald, 457 U.S.
Speaker B:731, 750 appreciating the unique risks that arise when the President's energies are diverted by proceedings that might render him unduly cautious in the discharge of his official duties, the Court has recognized presidential immunities and privileges rooted in the constitutional tradition of the separation of powers and supported by our history.
Speaker B:In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from damages liability for acts within the outer perimeter of his official responsibility.
Speaker B:The Court's dominant concern is was to avoid diversion of the President's attention during the decision making process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.
Speaker B:By contrast, when prosecutors have sought evidence from the President, the Court has consistently rejected presidential claims of absolute immunity.
Speaker B:During the treason trial of former Vice President Aaron Burr, for instance, Chief Justice Marshall rejected President Thomas Jefferson's claim that the President could not be subjected to subpoena Marshall simultaneously recognized, however, the existence of a privilege to withhold certain official papers, and when a subpoena issued to President Richard Nixon, the Court rejected his claim of absolute privilege.
Speaker B:703 but recognizing the public interest in candid, objective, and even blunt or harsh opinions in presidential decision making, it held that a presumptive privilege protects presidential communications at 708 because that privilege relates to the effective discharge of a president's powers.
Speaker B:At 7:11 the court deemed it fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.
Speaker B:Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the executive branch than simply seeking evidence in his possession.
Speaker B:The danger is greater than what led the Court 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.
Speaker B:Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort presidential decision making than the potential payment of civil damages.
Speaker B:The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under a pall of potential prosecution raises unique risks to the effective functioning of government, but there is also a compelling public interest in fair and effective law enforcement.
Speaker B:Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the Court's precedent necessitate at least a presumptive immunity from criminal prosecution for a President's acts within the outer perimeter of his official responsibility.
Speaker B:Such an immunity is required to safeguard the independence and effective functioning of the executive branch and to enable the President to carry out his constitutional duties without undue caution.
Speaker B:At 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.
Speaker B:3 as for a President's unofficial acts, there is no immunity, although presidential immunity is required for official actions to ensure that the President's decision making is not distorted by the threat of future litigation stemming from those actions.
Speaker B:That concern does not support immunity for unofficial conduct.
Speaker B:The separation of powers does not bar a prosecution predicated on the President's unofficial acts.
Speaker B:B.
Speaker B:The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions.
Speaker B:In this case, no court thus far has drawn that distinction in general or with respect to the conduct alleged in particular.
Speaker B:It is therefore incumbent upon the court to be mindful that it is a court of final review and not first view.
Speaker B:Critical threshold issues in this case are how to differentiate between a president's official and unofficial actions and how to do so with respect to the indictment's extensive and detailed allegations covering a broad range of conduct.
Speaker B:The court offers guidance on those issues.
Speaker B:When the president acts pursuant to constitutional and statutory authority, he takes official action to perform the functions of his office.
Speaker B:Determining whether an action is covered by immunity thus begins with assessing the president's authority to take that action.
Speaker B:But the breadth of the President's discretionary responsibilities under the Constitution and laws of the United States frequently makes it difficult to determine which of his innumerable functions encompassed a particular action.
Speaker B:Id.
Speaker B:At 756.
Speaker B:The immunity the court has recognized, therefore, extends to the outer perimeter of the president's official responsibilities covering actions so long as they are not manifestly or palpably beyond his authority.
Speaker B:In dividing official from unofficial conduct, courts may not inquire into the president's motives.
Speaker B:Such a highly intrusive inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose normay.
Speaker B:Courts deem an action unofficial merely because it allegedly violates a generally applicable law.
Speaker B:Otherwise, presidents would be subject to trial on every allegation that an action was unlawful, depriving immunity of its intended effect.
Speaker B:2 With the above principles in mind, the court turns to the conduct alleged in the indictment.
Speaker B:Certain allegations, such as those involving Trump's discussions with the acting attorney general, are readily categorized in light of the nature of the president's official relationship to the office held by that individual.
Speaker B:Other allegations, such as those involving Trump's interactions with the vice president, state officials, and certain private parties, and his comments to the general public, present more difficult questions.
Speaker B: the legitimate results of the: Speaker B:According to the indictment, Trump met with the acting attorney general and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the department to those states regarding such fraud.
Speaker B:The indictment further alleges that after the acting attorney general resisted Trump's requests, Trump repeatedly threatened to replace him.
Speaker B:The government does not dispute that the indictment's allegations regarding the Justice Department involve Trump's use of official power.
Speaker B:The allegations in fact plainly implicate Trump's conclusive and preclusive authority.
Speaker B:The Executive branch has exclusive authority and absolute discretion to decide which crimes to investigate and prosecute, including with respect to allegations of election crime and the president's management of the executive branch requires him to have unrestricted power to remove the most important of his subordinates, such as the Attorney General, in their most important duties.
Speaker B:The indictment's allegations that the requested investigations were shams or proposed for an improper purpose do not divest the president of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.
Speaker B:Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.
Speaker B:The indictment next alleges that Trump and his co conspirators attempted to enlist the vice president to use his ceremonial role at the January 6th certification proceeding to fraudulently alter the election results.
Speaker B:In particular, the indictment alleges several conversations in which Trump pressured the vice president to reject states legitimate electoral votes or send them back to state legislatures for review.
Speaker B:Whenever the president and vice president discuss their official responsibilities, they engage in official conduct.
Speaker B:Presiding over the January six certification proceeding at which members of Congress count the electoral votes is a constitutional and statutory duty of the vice president.
Speaker B:The indictments allegations that Trump attempted to pressure the Vice president to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
Speaker B:The question then becomes whether that presumption of immunity is rebutted.
Speaker B:Under the circumstances, it is the government's burden to rebut the presumption of immunity.
Speaker B:The court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump's alleged attempts to influence the vice president's oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the executive branch.
Speaker B:The indictment's remaining allegations involve Trump's interactions with persons outside the executive branch, state officials, private parties and the general public.
Speaker B:In particular, the indictment alleges that Trump and his co conspirators attempted to convince certain state officials that election fraud had tainted the popular vote count in their states, and thus electoral votes for Trump's opponent needed to be changed to electoral votes for Trump.
Speaker B:After Trump failed to convince those officials to alter their state processes, he and his co conspirators allegedly developed and effectuated a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
Speaker B:On Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity of and proper administration of the federal election.
Speaker B:As the government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions.
Speaker B:Determining whose characterization may be correct and with respect to which conduct requires a fact specific analysis of the indictment's extensive and interrelated allegations.
Speaker B:The court accordingly remands to the district court to determine in the first instance whether Trump's conduct in this area qualifies as official or unofficial.
Speaker B:I the indictment also contains various allegations regarding Trump's conduct in connection with the events of January 6 itself.
Speaker B:The alleged conduct largely consists of Trump's communications in the form of tweets and a public address.
Speaker B:The President possesses extraordinary power to speak to his fellow citizens and on their behalf, so most of a president's public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.
Speaker B:There may, however, be contexts in which the President speaks in an unofficial capacity, perhaps as a candidate for office or party leader.
Speaker B:To the extent that may be the case, objective analysis of content, form and context will necessarily inform the inquiry.
Speaker B:Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each.
Speaker B:This necessarily fact bound analysis is best performed initially by the district court.
Speaker B:The court therefore remands to the district court to determine in the first instance whether this alleged conduct is official or unofficial.
Speaker B:3.
Speaker B:Presidents cannot be indicted based on conduct for which they are immune from prosecution.
Speaker B:On remand, the district court must carefully analyze the indictment's remaining allegations to determine whether they, too involve conduct for which a president must be immune from prosecution.
Speaker B:And the parties in the district court must ensure that sufficient allegations support the indictment's charges without such conduct, testimony or private records of the president or his advisors probing such conduct may not be admitted as evidence at trial.
Speaker B:C Trump asserts a far broader immunity than the limited one the court recognizes, contending that the Impeachment Judgment clause requires that impeachment and Senate conviction precede a president's criminal prosecution.
Speaker B:But the text of the clause does not address whether and on what conduct a president may be prosecuted if he was never impeached and convicted.
Speaker B:Historical evidence likewise lends little support to Trump's position.
Speaker B:The Federalist Papers on which Trump relies concerned the checks available against a sitting president.
Speaker B:They did not endorse or even consider whether the impeachment judgment clause immunizes a former President from prosecution.
Speaker B:Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the nation's government.
Speaker B:D the government takes a similarly broad view, contending that the President enjoys no immunity from criminal prosecution for any action.
Speaker B:On its view, as applied, challenges in the course of the trial suffice to protect Article 2 interests, and review of a district court's decisions on such challenges should be deferred until after trial.
Speaker B:But questions about whether the President may be held liable for particular actions consistent with the separation of powers must be addressed at the outset of a proceeding.
Speaker B:Even if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him unduly cautious in the discharge of his official duties.
Speaker B:The Constitution does not tolerate such impediments to the effective functioning of government.
Speaker B:E this case poses a question of lasting significance.
Speaker B:When may a former President be prosecuted for official acts taken during his presidency?
Speaker B:In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively or even primarily on present exigencies.
Speaker B:Enduring separation of powers principles guide our decision in this case.
Speaker B:The President enjoys no immunity for his unofficial acts, and not everything the President does is official.
Speaker B:The President is not above the law, but under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.
Speaker B:That immunity applies equally to all occupants of the oval office.
Speaker B:P so 41 to 43 vacated and.
Speaker A:Remanded Justice Thomas's concurring opinion.
Speaker A:Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts.
Speaker A:Fortunately, the Constitution does not permit us to chart such a dangerous course.
Speaker A:As the Court forcefully explains, the Framers deemed an energetic executive essential to the security of liberty, and our system of separated powers accordingly insulates the President from prosecution for his official acts.
Speaker A:To conclude otherwise would hamstring the vigorous executive that our Constitution envisions.
Speaker A:While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.
Speaker A:I write separately to highlight another way in which this prosecution may violate our constitutional structure.
Speaker A:In this case, the Attorney General purported to appoint a private citizen as special counsel to prosecute a former President on behalf of the United States.
Speaker A:But I am not sure that any office for the special counsel has been established by law as the Constitution requires Article 2nd, Section 2, Clause 2.
Speaker A:By requiring that Congress create federal offices by law, the Constitution imposes an important check against the President.
Speaker A:He cannot create offices at his pleasure.
Speaker A:If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.
Speaker A:A private citizen cannot criminally prosecute anyone, let alone a former President.
Speaker A:No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country, and that is so despite numerous past Presidents taking actions that many would argue constitute crimes.
Speaker A:If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.
Speaker A:The lower courts should thus answer these essential questions concerning the Special Counsel's appointment before proceeding.
Speaker C:Justice Barrett's Opinion Concurring in part for reasons I explained below, I do not join Part 3C of the court's opinion.
Speaker C:The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President's exercise of core Article 2 powers and closely related conduct.
Speaker C:That said, I would have framed the underlying legal issues differently.
Speaker C:The Court describes the President's constitutional protection from certain prosecutions as an immunity.
Speaker C:As I see it, that term is shorthand for two propositions.
Speaker C: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.
Speaker C:There appears to be substantial agreement on the first point.
Speaker C:Like the Court, the dissenting Justices and the Special counsel all accept that some prosecutions of a President's official conduct may be unconstitutional.
Speaker C:As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests.
Speaker C:Here, Executive Branch independence on matters that Article 2 assigns to the President's discretion Properly conceived, the President's constitutional protection from prosecution is narrow.
Speaker C: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.
Speaker C:See ante, at 14.
Speaker C: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.
Speaker C:Ante, at 8 to 9.
Speaker C:The Constitution does not vest every exercise of executive power in the President's sole discretion.
Speaker C:Youngstown Sheet and Tube Kobi v.
Speaker C:Sawyer, 343 U.S.
Speaker C: ,: Speaker C:Concurring, 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.
Speaker C:Article 2 poses no barrier to prosecution in such cases.
Speaker C:I would thus assess the validity of criminal charges predicated on most official acts, I.e.
Speaker C:those falling outside of the President's core executive power, in two steps.
Speaker C:The first question is whether the relevant criminal statute reaches the President's official conduct.
Speaker C:Not every broadly worded statute does.
Speaker C:For example, Section 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.
Speaker C:18 United States Code section 956A.
Speaker C:The underlying murder statute, however, covers only unlawful killings.
Speaker C: Section: Speaker C:I express no view about the merits of that interpretation, but it shows that the threshold question of statutory interpretation is a non trivial step.
Speaker C:If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances poses no danger of intrusion on the authority and functions of the executive branch.
Speaker C:On remand, the lower courts will have to apply that standard to various allegations involving the President's official conduct.
Speaker C:Some of those allegations raise unsettled questions about the scope of Article 2 power.
Speaker C:See ante, at 21 to 28, but others do not.
Speaker C: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 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.
Speaker C: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.
Speaker C:It is also our usual approach to considering the validity of statutes in situations raising a constitutional question.
Speaker C:An important difference in this context is that the President is entitled to an interlocutory appeal of the trial court's rul ruling.
Speaker C:A criminal defendant in federal court normally must wait until after trial to seek review of the trial court's refusal to dismiss charges.
Speaker C: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.
Speaker D:Justice Sotomayor's dissenting opinion Today's decision to grant former presidents criminal immunity reshapes the institution of the presidency.
Speaker D:It makes a mockery of the principle foundational to our Constitution and system of government that no man is above the law.
Speaker D:Relying on little more than its own misguided wisdom about the need for bold and unhesitating action by the president, the court gives former President Trump all the immunity he asked for and more.
Speaker D:The majority calls for a careful assessment of the scope of presidential power under the Constitution.
Speaker D:For the majority, that careful assessment does not involve the Constitution's text.
Speaker D:I would start there.
Speaker D:The Constitution's text contains no provision for immunity from criminal prosecution for former presidents.
Speaker D:Of course, the silence of the Constitution on this score is not dispositive.
Speaker D:Insofar as the majority rails against the notion that a specific textual basis is required, it is attacking an argument that has not been made here.
Speaker D:The omission in the text of the Constitution is worth noting, however, for at least three reasons.
Speaker D:First, the Framers clearly knew how to provide for immunity from prosecution.
Speaker D:They did provide a narrow immunity from for legislators in the speech or Debate clause.
Speaker D:See Article 1, Section 6, Clause 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.
Speaker D:They did not extend the same or similar immunity to presidents.
Speaker D:Second, some state constitutions at the time of the framing specifically provided express criminal immunities to sitting governors.
Speaker D:The Framers chose not to include similar language in the Constitution to immunize the president.
Speaker D:If the Framers had wanted to create some constitutional privilege to shield the president from criminal indictment, they could have done so.
Speaker D:They did not.
Speaker D:Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former presidents.
Speaker D: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.
Speaker D:The majority ignores, however, that the impeachment judgment clause cuts against its own position.
Speaker D: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.
Speaker D:Article 1, Section 3, Clause 7, emphasis added.
Speaker D: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.
Speaker D:Article 2, Section 4, which implicates official acts almost by definition 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 of the separation of powers and supported by our history.
Speaker D:That is true as far as it goes.
Speaker D:Nothing in our history, however, supports the majority's entirely novel immunity from criminal prosecution for official acts.
Speaker D:The historical evidence that exists on presidential immunity from criminal prosecution cuts decisively against it.
Speaker D:The 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.
Speaker D:The majority fails to recognize or grapple with the lack of historical evidence for its new immunity.
Speaker D:With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is awash.
Speaker D: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.
Speaker D:Consider Watergate, for example.
Speaker D:After the Watergate tapes revealed President Nixon's misuse of official power to obstruct the Federal Bureau of Investigations investigation of the Watergate burglary, President Ford pardoned Nixon.
Speaker D:Both Ford's pardon and Nixon's acceptance of the pardon necessarily rested on the understanding that the former President faced potential criminal liability.
Speaker D:Subsequent special counsel and independent counsel investigations have also operated on the assumption that that the government can criminally prosecute former presidents for their official acts where they violate the criminal law separate from its official acts.
Speaker D:Immunity the majority recognizes absolute immunity for conduct within the President's exclusive sphere of constitutional Authority.
Speaker D:Ante at 9.
Speaker D:Feel free to skip over those pages of the majority's opinion.
Speaker D:With broad official acts immunity covering the field, this ostensibly narrower immunity serves little purpose.
Speaker D: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 beyond any recognizable bounds.
Speaker D:The idea of a narrow core immunity might have some intuitive appeal in a case that actually presented the issue.
Speaker D:If the President's power is conclusive and preclusive on a given subject, then Congress should not be able to act upon the subject.
Speaker D:Youngstown Sheet and Tube Kove Sawyer, 343 U.S.
Speaker D: ,: Speaker D:Jackson J.
Speaker D: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.
Speaker D:In this case, however, the question whether a former President enjoys a narrow immunity for the exercise of his core constitutional powers has never been at issue, and for good reason.
Speaker D:Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of executive power.
Speaker D:He was not charged, for example, with illegally wielding the presidency's pardon power or veto power or appointment power, or even removal power.
Speaker D:Instead, Trump was charged with a conspiracy to commit fraud to subvert the presidential election.
Speaker D:Not content simply to invent an expansive criminal immunity for former presidents, the majority goes a dramatic and unprecedented step further.
Speaker D: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.
Speaker D:They must play no role in proceedings regarding private criminal acts.
Speaker D:The Majority's extraordinary rule has no basis in law.
Speaker D:Consider the First Amendment context.
Speaker D: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.
Speaker D:Wisconsin vs.
Speaker D:Mitchell, 508 U.S.
Speaker D: ,: Speaker D: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.
Speaker D:Moving forward, however, all former presidents will be cloaked in such immunity if the occupant of that office misuses official power for personal gain.
Speaker D:The criminal law that the rest of us must abide will not provide a backstop with fear for our democracy.
Speaker D:I.
Speaker E:Dissent Justice Jackson's Dissenting Opinion Justice Sotomayor has thoroughly addressed the Court's flawed reasoning and conclusion as a matter of history, tradition, law, and logic.
Speaker E:I agree with every word of her powerful dissent.
Speaker E:I write separately to explain as succinctly as I can the theoretical nuts and bolts of what exactly the majority has done today to alter the paradigm of accountability for presidents of the United States.
Speaker E:I also address what that paradigm shift means for our nation moving forward.
Speaker E:It is indisputable that immunity from liability for wrongdoing is the exception rather than the rule in the American criminal justice system.
Speaker E:That is entirely unsurprising, for the very idea of immunity stands in tension with foundational principles of our system of government.
Speaker E:It is a core tenet of our democracy that the people are the sovereign and the rule of law is our first and final security.
Speaker E:From their own experience and their deep reading in history, the Founders knew that law alone saves a society from being rent by internecine strife or ruled by mere brute power, however disguised.
Speaker E:A corollary to that principle sets the terms for this case.
Speaker E:No man in this country is so high that he is above the law.
Speaker E:No officer of the law may set that law at defiance with impunity.
Speaker E:All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
Speaker E:For his part, the defendant stands accused but is presumed innocent until conviction upon trial or guilty plea.
Speaker E: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.
Speaker E:The defendant also has at his disposal many means to defend himself against the criminal charge.
Speaker E:He can, of course, seek to hold the government to its burden of proof at trial and even before trial.
Speaker E:In a motion to dismiss the indictment, he might make any number of legal arguments.
Speaker E: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.
Speaker E:He might further claim that the law is unconstitutional as applied to his particular conduct, and he might maintain that his conduct, even if proved, does not violate the law at issue.
Speaker E:The defendant may also raise an attempt to prove affirmative defenses that that excuse conduct that would otherwise be punishable.
Speaker E:Generally speaking, affirmative defenses are determinations often adopted by legislation, that certain conduct otherwise punishable by law is justified.
Speaker E: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.
Speaker E: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.
Speaker E: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.
Speaker E:Yet the model makes allowances for recognized defenses.
Speaker E: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.
Speaker E: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.
Speaker E:The majority of my colleagues seems to have put their trust in our court's ability to prevent presidents from becoming kings through case by case application of the indeterminate standards of their new presidential accountability paradigm.
Speaker E:I fear that they are wrong.
Speaker E:But for all our sakes, I hope that they are right in the meantime, because the risks and power the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms.
Speaker E:I dissent.
