Supreme Court Docket No. 23–939, DONALD J. TRUMP, PETITIONER v. UNITED STATES
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
JUSTICE JACKSON join, dissenting.
Today’s decision to grant former Presidents criminal im-
munity reshapes the institution of the Presidency. It makes
a mockery of the 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 Presi-
dent, ante, at 3, 13, the Court gives former President Trump
all the immunity he asked for and more. Because our Con-
stitution does not shield a former President from answering
for criminal and treasonous acts, I dissent.
[…]
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 Pres-
ident above the law.
The majority makes three moves that, in effect, com-
pletely 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 con-
cerning 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.
[…]
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 under-
standings of the Constitution are of little use to the majority
in this case, and so it ignores them.
