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II
This case is the first criminal prosecution in our Nationâs history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse âthe issue of a powerâs validity with the cause it is invoked to promote,â but must instead focus on the âenduring consequences upon the balanced power structure of our Republic.â Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634 (1952) (Jackson, J., concurring).
The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. See id., at 28â30, 36â37, 124.
They disagree, however, about whether a former President can be prosecuted for his official actions. Trump contends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, Fitzgerald, 457 U. S., at 756, he must be absolutely immune from criminal prosecution for such acts. Brief for Petitioner 10. And Trump argues that the bulk of the indictmentâs allegations involve conduct in his official capacity as President. See Tr. of Oral Arg. 30â 32.
Although the Government agrees that some official actions are included in the indictmentâs allegations, see id., at 125, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized. See Brief for United States 9.
We conclude that under our constitutional structure of separated powers, the nature of Presidential 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 Presidentâs exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.
At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
A
Article II of the Constitution provides that â[t]he executive Power shall be vested in a President of the United States of America.â §1, cl. 1. The Presidentâs duties are of âunrivaled gravity and breadth.â Trump v. Vance, 591 U. S. 786, 800 (2020). They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States. See §2.
He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. See §§2, 3. Domestically, he must âtake Care that the Laws be faithfully executed,â §3, and he bears responsibility for the actions of the many departments and agencies within the Executive Branch. He also plays a role in lawmaking by recommending to Congress the measures he thinks wise and signing or vetoing the bills Congress passes. See Art. I, §7, cl. 2; Art. II, §3.
No matter the context, the Presidentâs authority to act necessarily âstem[s] either from an act of Congress or from the Constitution itself.â Youngstown, 343 U. S., at 585. In the latter case, the Presidentâs authority is sometimes âconclusive and preclusive.â Id., at 638 (Jackson, J., concurring). When the President exercises such authority, he may act even when the measures he takes are âincompatible with the expressed or implied will of Congress.â Id., at 637.
The exclusive constitutional authority of the President âdisabl[es] the Congress from acting upon the subject.â Id., at 637â638. And the courts have âno power to control [the Presidentâs] discretionâ when he acts pursuant to the powers invested exclusively in him by the Constitution. Marbury, 1 Cranch, at 166.
If the President claims authority to act but in fact exercises mere âindividual willâ and âauthority without law,â the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nationâs steel mills. See id., at 582â589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.
The Constitution, for example, vests the âPower to Grant Reprieves and Pardons for Offences against the United Statesâ in the President. Art. II, §2, cl. 1. During and after the Civil War, President Lincoln offered a full pardon, with restoration of property rights, to anyone who had âengaged in the rebellionâ but agreed to take an oath of allegiance to the Union. United States v. Klein, 13 Wall. 128, 139â141 (1872).
But in 1870, Congress enacted a provision that prohibited using the Presidentâs pardon as evidence of restoration of property rights. Id., at 143â144. Chief Justice Chase held the provision unconstitutional because it âimpair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.â Id., at 147. âTo the executive alone is intrusted the power of pardon,â and the âlegislature cannot change the effect of such a pardon any more than the executive can change a law.â Id., at 147â148. The Presidentâs authority to pardon, in other words, is âconclusive and preclusive,â âdisabling the Congress from acting upon the subject.â Youngstown, 343 U. S., at 637â638 (Jackson, J., concurring).
Some of the Presidentâs other constitutional powers also fit that description. âThe Presidentâs power to removeâand thus superviseâthose who wield executive power on his behalf,â for instance, âfollows from the text of Article II.â Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204 (2020). We have thus held that Congress lacks authority to control the Presidentâs âunrestricted power of removalâ with respect to âexecutive officers of the United States whom he has appointed.â
Myers v. United States, 272 U. S. 52, 106, 176 (1926); see Youngstown, 343 U. S., at 638, n. 4 (Jackson, J., concurring) (citing the Presidentâs âexclusive power of removal in executive agenciesâ as an example of âconclusive and preclusiveâ constitutional authority); cf. Seila Law, 591 U. S., at 215 (noting only âtwo exceptions to the Presidentâs unrestricted removal powerâ). The power âto control recognition determinationsâ of foreign countries is likewise an âexclusive power of the President.â Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015). Congressional commands contrary to the Presidentâs recognition determinations are thus invalid. Ibid.
Congress cannot act on, and courts cannot examine, the Presidentâs actions on subjects within his âconclusive and preclusiveâ constitutional authority. It follows that an Act of Congressâeither a specific one targeted at the President or a generally applicable oneâmay not criminalize the Presidentâs actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
B
But of course not all of the Presidentâs official acts fall within his âconclusive and preclusiveâ authority. As Justice Robert Jackson recognized in Youngstown, the President sometimes âacts pursuant to an express or implied authorization of Congress,â or in a âzone of twilightâ where âhe and Congress may have concurrent authority.â 343 U. S., at 635, 637 (concurring opinion). The reasons that justify the Presidentâs absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress.
We recognize that only a limited number of our prior decisions guide determination of the Presidentâs immunity in this context. That is because proceedings directly involving a President have been uncommon in our Nation, and âdecisions of the Court in this areaâ have accordingly been ârareâ and âepisodic.â Dames & Moore v. Regan, 453 U. S. 654, 661 (1981). To resolve the matter, therefore, we look primarily to the Framersâ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents.
1
The President âoccupies a unique position in the constitutional scheme,â Fitzgerald, 457 U. S., at 749, as âthe only person who alone composes a branch of government,â Trump v. Mazars USA, LLP, 591 U. S. 848, 868 (2020). The Framers âsought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.â Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment).
They âdeemed an energetic executive essential to âthe protection of the community against foreign attacks,â âthe steady administration of the laws,â âthe protection of property,â and âthe security of liberty.ââ Seila Law, 591 U. S., at 223â224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a âvigorousâ and âenergeticâ Executive, they thought, was to ensure âgood government,â for a âfeeble executive implies a feeble execution of the government.â Id., at 471â472.
The Framers accordingly vested the President with âsupervisory and policy responsibilities of utmost discretion and sensitivity.â Fitzgerald, 457 U. S., at 750. He must make âthe most sensitive and far-reaching decisions entrusted to any official under our constitutional system.â Id., at 752. There accordingly âexists the greatest public interestâ in providing the President with ââthe maximum ability to deal fearlessly and impartially withâ the duties of his office.â Ibid. (quoting Ferri v. Ackerman, 444 U. S. 193, 203 (1979)).
Appreciating the âunique risks to the effective functioning of governmentâ that arise when the Presidentâs energies are diverted by proceedings that might render him âunduly cautious in the discharge of his official duties,â we have recognized Presidential immunities and privileges ârooted in the constitutional tradition of the separation of powers and supported by our history.â Fitzgerald, 457 U. S., at 749, 751, 752, n. 32.
In Nixon v. Fitzgerald, for instance, we recognized that as âa functionally mandated incident of [his] unique office,â a former President âis entitled to absolute immunity from damages liability predicated on his official acts.â Id., at 749.
That case involved a terminated Air Force employee who sued former President Richard Nixon for damages, alleging that Nixon approved an Air Force reorganization that wrongfully led to his firing. In holding that Nixon was immune from that suit, âour dominant concernâ was to avoid âdiversion of the Presidentâs attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.â Clinton, 520 U. S., at 694, n. 19. â[T]he singular importance of the Presidentâs dutiesâ implicating âmatters likely to âarouse the most intense feelings,ââ coupled with âthe sheer prominence of [his] office,â heightens the prospect of private damages suits that would threaten such diversion.
Fitzgerald, 457 U. S., at 751â753 (quoting Pierson v. Ray, 386 U. S. 547, 554 (1967)). We therefore concluded that the President must be absolutely immune from âdamages liability for acts within the âouter perimeterâ of his official responsibility.â Fitzgerald, 457 U. S., at 756.
By contrast, when prosecutors have sought evidence from the President, we have consistently rejected Presidential claims of absolute immunity. For instance, during the treason trial of former Vice President Aaron Burr, Chief Justice Marshall rejected President Thomas Jeffersonâs claim that the President could not be subjected to a subpoena.
Marshall reasoned that âthe law does not discriminate between the president and a private citizen.â United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807) (Burr I). Because a President does not âstand exempt from the general provisions of the constitution,â including the Sixth Amendmentâs guarantee that those accused shall have compulsory process for obtaining witnesses for their defense, a subpoena could issue. Id., at 33â34.
Marshall acknowledged, however, the existence of a âprivilegeâ to withhold certain âofficial paper[s]â that âought not on light ground to be forced into public view.â United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807) (Burr II); see also Burr I, 25 F. Cas., at 37 (stating that nothing before the court showed that the document in question âcontain[ed] any matter the disclosure of which would endanger the public safetyâ). And he noted that a court may not âbe required to proceed against the president as against an ordinary individual.â Burr II, 25 F. Cas., at 192.
Similarly, when a subpoena issued to President Nixon to produce certain tape recordings and documents relating to his conversations with aides and advisers, this Court rejected his claim of âabsolute privilege,â given the âconstitutional duty of the Judicial Branch to do justice in criminal prosecutions.â United States v. Nixon, 418 U. S. 683, 703, 707 (1974).
But we simultaneously recognized âthe public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking,â as well as the need to protect âcommunications between high Government officials and those who advise and assist them in the performance of their manifold duties.â Id., at 705, 708. Because the Presidentâs âneed for complete candor and objectivity from advisers calls for great deference from the courts,â we held that a âpresumptive privilegeâ protects Presidential communications. Id., at 706, 708.
That privilege, we explained, ârelates to the effective discharge of a Presidentâs powers.â Id., at 711. We thus deemed it âfundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.â Id., at 708.
2
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, as in Burr and Nixon. The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liabilityâthat the President would be chilled from taking the âbold and unhesitating actionâ required of an independent Executive. Fitzgerald, 457 U. S., at 745.
Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under âa pall of potential prosecution,â McDonnell v. United States, 579 U. S. 550, 575 (2016), raises âunique risks to the effective functioning of government,â Fitzgerald, 457 U. S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.
And if a former Presidentâs official acts are routinely subjected to scrutiny in criminal prosecutions, âthe independence of the Executive Branchâ may be significantly undermined. Vance, 591 U. S., at 800. The Framersâ design of the Presidency did not envision such counterproductive burdens on the âvigor[]â and âenergyâ of the Executive. The Federalist No. 70, at 471â472.
We must, however, ârecognize[] the countervailing interests at stake.â Vance, 591 U. S., at 799. Federal criminal laws seek to redress âa wrong to the publicâ as a whole, not just âa wrong to the individual.â Huntington v. Attrill, 146 U. S. 657, 668 (1892). There is therefore a compelling âpublic interest in fair and effective law enforcement.â Vance, 591 U. S., at 808. The President, charged with enforcing federal criminal laws, is not above them.
Chief Justice Marshallâs decisions in Burr and our decision in Nixon recognized the distinct interests present in criminal prosecutions. Although Burr acknowledged that the Presidentâs official papers may be privileged and publicly unavailable, it did not grant him an absolute exemption from responding to subpoenas. See Burr II, 25 F. Cas., at 192; Burr I, 25 F. Cas., at 33â34. Nixon likewise recognized a strong protection for the Presidentâs confidential communicationsâa âpresumptive privilegeââbut it did not entirely exempt him from providing evidence in criminal proceedings. 418 U. S., at 708.
Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a Presidentâs acts within the outer perimeter of his official responsibility. 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.
Indeed, if presumptive protection for the President is necessary to enable the âeffective dischargeâ of his powers when a prosecutor merely seeks evidence of his official papers and communications, id., at 711, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions. At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no âdangers of intrusion on the authority and functions of the Executive Branch.â Fitzgerald, 457 U. S., at 754.
But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. See Part IIIâB, infra. Because we need not decide that question today, we do not decide it. â[O]ne caseâ in more than âtwo centuries does not afford enough experienceâ to definitively and comprehensively determine the Presidentâs scope of immunity from criminal prosecution. Mazars, 591 U. S., at 871.
C
As for a Presidentâs unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. When Paula Jones brought a civil lawsuit against then-President Bill Clinton for acts he allegedly committed prior to his Presidency, we rejected his argument that he enjoyed temporary immunity from the lawsuit while serving as President. 520 U. S., at 684.
Although Presidential immunity is required for official actions to ensure that the Presidentâs decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Id., at 694, and n. 19. The ââjustifying purposesââ of the immunity we recognized in Fitzgerald, and the one we recognize today, are not that the President must be immune because he is the President; rather, they are to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions.
520 U. S., at 694, and n. 19 (quoting Fitzgerald, 457 U. S., at 755). â[I]t [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis.â Forrester v. White, 484 U. S. 219, 229 (1988). The separation of powers does not bar a prosecution predicated on the Presidentâs unofficial acts.[2]
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[2] Our decision in Clinton permitted claims alleging unofficial acts to proceed against the sitting President. See 520 U. S., at 684. In the criminal context, however, the Justice Department âhas long recognizedâ that âthe separation of powers precludes the criminal prosecution of a sitting President.â Brief for United States 9 (citing A Sitting Presidentâs Amenability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000); emphasis deleted); see Tr. for Oral Arg. 78.