Writing for the Court, Chief Justice John Roberts started by noting the significance of this case as the first criminal prosecution of a former President in the Nation’s history. He wrote that the Court “[undertook] that responsibility conscious that we must not confuse ‘the issue of a power's validity with the cause it is invoked to promote,’ but must instead focus on the ‘enduring consequences upon the balanced power structure of our Republic.’”

Unofficial Acts

Roberts first established that the President is not immune from criminal prosecution for unofficial acts committed while in office. He explained that “[t]he ‘justifying purposes’ of the immunity we recognized … 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.” He added that “it [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis.”

Roberts clarified that the dispute in this case was whether a former President can be prosecuted for his official actions, , since neither party disagreed with the contention that Presidents have no immunity for unofficial acts.

Official Acts under “Conclusive and Preclusive” Authority

Roberts began the analysis by stating that the President’s duties under Article II “are of ‘unrivaled gravity and breadth.’” That power, however, stems from the Constitution or an act of Congress “no matter the context.” Roberts explained that when the President acts under power granted by the constitution, his authority is sometimes “conclusive and preclusive.” And “[w]hen the President exercises such authority, he “disable[es] the Congress from acting on the subject” and “may act even when the measures he takes are ‘incompatible with the expressed or implied will of Congress.’” Not even the courts have power to control the President’s discretion “when he acts pursuant to the powers invested exclusively in him by the Constitution.” As an example, Roberts pointed to the Court’s ruling in United States v. Klein (1870) that the President’s pardon power is unlimited. Roberts added that If the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so. … 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.

He explained that since “Congress cannot act on, and courts cannot examine, the President's actions on subjects within his ‘conclusive and preclusive’ constitutional authority, [i]t 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. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.” The Court concluded that “the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”

Official Acts in the “Zone of Twilight” of Concurrent Authority

Regarding the “zone of twilight” where the President and Congress may have concurrent authority, Roberts stated that “[t]he reasons that justify the President's absolute immunity from criminal prosecution for acts within the scope of his exclusive authority … do not extend to conduct in areas where his authority is shared with Congress. To determine the extent of Presidential immunity in this area, the Court must look to “the Framers’ 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.”

Evaluating the history, Roberts first established that the President is a unique figure in the constitutional scheme in our government as “the only person who alone composes a branch of government.” He explained that the Framers thought it essential that the Nation have an energetic executive to ensure “good governance” and vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Roberts added that “[a]ppreciating the ‘unique risks to the effective functioning of government’ that arise when the President's energies are diverted by proceedings that might render him ‘unduly cautious in the discharge of his official duties,’ we have recognized Presidential immunities and privileges ‘rooted in the constitutional tradition of the separation of powers and supported by our history.’”

Regarding the Court’s precedent, Roberts pointed to Nixon v. Fitzgerald (1982), where it held that a former President “is entitled to absolute immunity from damages liability predicated on his official acts” as “a functionally mandated incident of [his] unique office.” For cases where prosecutors sought evidence from a President, Roberts first highlighted the Court’s opinion in United States v. Burr (1807), where the Court held that a subpoena could be issued against President Jefferson because the President doesn’t “stand exempt from the general provisions of the constitution.” In that case, Chief Justice John Marshall wrote that “the law does not discriminate between president and private citizen,” but acknowledged that the President had “a ‘privilege’ to withhold certain ‘official paper[s]’ that ‘ought not on light ground be forced into public view.” In United States v. Nixon (1974), the Court rejected President Nixon’s claim of absolute privilege “given the ‘constitutional duty of the Judicial Branch to do justice in criminal prosecutions,” but held that “’a presumptive privilege’ protects Presidential communications.” And that privilege, Roberts explained, “relates to the effective discharge of a President’s powers.” He added that such a protection is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

In evaluating the extent of a former President’s immunity from criminal prosecution for actions taken under authority in this area, Roberts first warned that criminal prosecution of a President for official conduct “poses a far greater intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession.” Roberts explained that the consequences of criminal prosecution far outweigh those involved in a civil case, writing that ‘”[p]otential 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.”

Roberts argued that “if a former President's official acts are routinely subjected to scrutiny in criminal prosecutions, ‘the independence of the Executive Branch’ may be significantly undermined.” He added that “such counterproductive burdens” go against the Framers vision for an energetic executive. Roberts acknowledged that there is a compelling interest in fair and effective law enforcement and stated that “[t]he President, charged with enforcing federal criminal laws, is not above them.”

Ultimately, Roberts found that the principles of the separation of powers found 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.” He explained that if presumptive protection is permitted when a prosecutor seeks evidence his official papers and communications, then its permitted when a prosecutor “seeks to charge, try, and imprison the President himself for his official actions.” Roberts concluded that “[a]t 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 ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Determination of Presidential Immunity

Moving to the determination as to whether a former President is entitled to immunity from a particular prosecution, Roberts established that the first step is to distinguish the President’s official actions from his unofficial action. Roberts stated that the President “takes official action to perform the functions of his office” when he “acts pursuant to ‘constitutional and statutory authority.’” Thus, a determination of whether an action is covered by immunity begins by assessing the President’s authority to take that action.

Roberts explained that some Presidential conduct may qualify as official acts even though they’re not “obviously connected” to a provision of the constitution or a specific statute. For such acts, “the immunity we have recognized 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.’” Roberts added that when dividing official and unofficial conduct, “courts may not inquire into the President’s motives” because “[s]uch an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.” Further, “courts deem an action unofficial merely because it allegedly violates a generally applicable law.”

Turning to the conduct alleged in the indictment, Roberts first found that Trump was “absolutely immune” from prosecution for the alleged conduct involving discussions with DOJ officials. He explained that investigation and prosecution of crimes is a “quintessentially executive function” and “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.”

Second, Roberts found that Trump was “at least presumptively immune from prosecution” for conduct related to discussions with his Vice President about his role at the certification proceeding. Further, he held that “[i]t is ultimately the Government's burden to rebut the presumption of immunity.” Roberts highlighted the close relationship between the President and Vice President and stated that “[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct.”

Third, Roberts found that the alleged conduct related to Trump’s discussions with people outside the Executive Branch may be considered official acts, but they must first be remanded to the District Court to determine how it qualifies. He noted that “[t]he concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent” when evaluating this area of conduct.

Lastly, Roberts found that the alleged conduct related to Trump’s communications with the public on January 6 should also be remanded to the District Court to determine whether they’re official or unofficial acts. He noted that “most of the President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” but acknowledged that there may be “contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity.” Roberts stated that an “objective analysis of ‘content, form, and context” will necessarily inform the inquiry.”

Use of Official Acts as Evidence

On the issue of whether evidence of the President’s official acts can be used to support an indictment against him, Roberts first stated that “[t]he essence of immunity ‘is its possessor's entitlement not to have to answer for his conduct’ in court.” Thus, “Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution.” Responding to the argument that juries could still consider evidence of the President’s official acts to prove other claims, Roberts wrote that such an idea “threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.” He added that it would be “untenable in light of the separation of powers principles” established before and only distort the President’s decisionmaking. Roberts also explained that while “such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.”

Conclusion

Roberts acknowledged the significance of the Court’s decision in this case, noting that “in addressing [the] question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.… Our perspective must be more farsighted, for ‘[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.’” He added that “[t]he President is not above the law” and “immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”