United States v. Trump final for filing

Special counsel Jack Smith urged the Supreme Court on Monday to reject Donald Trump’s claims of sweeping immunity and to deny the former president any opportunity to delay a trial on charges that he attempted to subvert the results of the 2020 election.
Trump’s position, Smith told the court, has no grounding in the Constitution, the nation’s history or Americans’ understanding that presidents are not above the law. Even if the Supreme Court finds that former presidents are entitled to some form of immunity, Smith asserted, at least some of Trump’s actions were private conduct – far removed from “official acts” – and could be prosecuted.
“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,” Smith told the court.
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preside United State criminal prosecute U s petition Court
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preside United State criminal prosecute U s petition Court
 
 
No. 23-939 
In the Supreme Court of the United States 
 
DONALD J. TRUMP, PETITIONER 
v. 
UNITED STATES OF AMERICA 
 
ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
BRIEF FOR THE UNITED STATES 
 
 
 JACK L. SMITH 
Special Counsel 
J. P. COONEY 
Deputy Special Counsel 
MICHAEL R. DREEBEN 
Counselor to the  
Special Counsel 
Counsel of Record 
JAMES I. PEARCE 
Assistant Special Counsel 
Department of Justice 
950 Pennsylvania Ave. NW 
Room B-206 
Washington, D.C. 20530-0001 
SCO_JLS_SupremeCtBriefs 
   @usdoj.gov 
(202) 305-9654 
 
(I) 
QUESTION PRESENTED 
Whether and if so to what extent does a former Pres-
ident enjoy presidential immunity from criminal prose-
cution for conduct alleged to involve official acts during 
his tenure in office.  
 
 
 
 
 
(III) 
TABLE OF CONTENTS 
Page 
Opinions below .............................................................................. 1 
Jurisdiction .................................................................................... 1 
Constitutional and statutory provisions involved ...................... 2 
Statement ...................................................................................... 2 
Summary of argument ................................................................. 4 
Argument ....................................................................................... 8 
I. A former President lacks immunity from federal 
criminal prosecution for official acts during his 
presidency .......................................................................... 9 
A. A claim of absolute criminal immunity for a 
former President’s official acts violates 
established separation-of-powers principles .......... 10 
B. History supports the conclusion that former 
Presidents are subject to prosecution for official 
acts.............................................................................. 13 
C. Criminal immunity for a former President 
enjoys no support from Fitzgerald’s recognition 
of civil immunity ........................................................ 18 
1. The interest in applying federal criminal law 
to all persons is compelling ................................. 19 
2. Robust safeguards protect against the risk of  
improper prosecutions  ........................................ 20 
D. Federal criminal law applies to the President ....... 24 
E.  The Impeachment Judgment Clause does not 
make Senate conviction a prerequisite to 
criminal prosecution of a former President ........... 31 
F. Petitioner’s understanding of Marbury and his 
other remaining arguments lack merit .................. 38 
II. Even if a former President has some immunity 
from federal criminal prosecution for official acts, 
this prosecution should proceed .................................... 44 
A. No form of official immunity should preclude 
trial on the indictment in this case .......................... 45 
 
IV 
 
Table of Contents—Continued:                                               Page 
B. Any remand should permit the district court to 
make evidentiary and instructional rulings at 
trial ............................................................................. 46 
Conclusion ................................................................................... 49 
Appendix  —  Constitutional and statutory provisions .......... 1a 
 
TABLE OF AUTHORITIES 
Cases: 
 
Ashwander v. TVA, 297 U.S. 288 (1936) ............................. 45 
Burdick v. United States, 236 U.S. 79 (1915) ..................... 16 
Cheney v. United States Dist. Ct.,  
542 U.S. 367 (2004)........................................................ 19, 22 
Clinton v. Jones, 520 U.S. 681 (1997) ...................... 10, 24, 40 
Dames & Moore v. Regan, 453 U.S. 654 (1981) ............ 11, 39 
Dennis v. Sparks, 449 U.S. 24 (1980)................................... 43 
Dowling v. United States, 493 U.S. 342 (1990) ................... 48 
Franklin v. Massachusetts, 505 U.S. 788 (1992) .......... 26, 38 
Garcetti v. Ceballos, 547 U.S. 410 (2006) ............................. 47 
Gravel v. United States, 408 U.S. 606 (1972) ...................... 43 
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ......................... 12 
Huddleston v. United States, 485 U.S. 681 (1988) ............. 48 
Imbler v. Pachtman, 424 U.S. 409 (1976)............................ 43 
Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) ................. 39 
Manhattan Cmty. Access Corp. v. Halleck, 
587 U.S. 802 (2019).............................................................. 47 
Marbury v. Madison, 
5 U.S. (1 Cranch) 137 (1803) ................................ 7, 9, 38, 40 
Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ............. 38, 39 
Medellin v. Texas, 552 U.S. 491 (2008) ......................... 12, 39 
Mississippi v. Johnson, 
71 U.S. (4 Wall.) 475 (1866) ................................................ 39 
V 
 
Cases—Continued:                                                                   Page 
Morrison v. Olson, 487 U.S. 654 (1988) ............................... 19 
Nardone v. United States, 302 U.S. 379 (1937) .................. 25 
Neagle, In re, 135 U.S. 1 (1890) ............................................ 22 
Nixon v. Administrator of Gen. Servs., 
433 U.S. 425 (1977)........................................................ 12, 18 
Nixon v. Fitzgerald, 
457 U.S. 731 (1982)......................... 5, 9, 14, 18-20, 39, 40, 42 
Nixon v. United States, 506 U.S. 224 (1993)....................... 33 
O’Shea v. Littleton, 414 U.S. 488 (1974) .............................. 43 
Public Citizen v. United States Dep’t of Justice,  
491 U.S. 440 (1989).............................................................. 26 
Sale v. Haitian Centers Council,  
509 U.S. 155 (1993).............................................................. 30 
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) ................ 11 
Spalding v. Vilas, 161 U.S. 483 (1896) ................................. 43 
Trump v. Anderson, 144 S. Ct. 662 (2024) .......................... 17 
Trump v. Hawaii, 585 U.S. 667 (2018) ................................ 39 
Trump v. Mazars USA, LLP, 591 U.S. 848 (2020) .............. 9 
Trump v. Vance, 591 U.S. 786 (2020) ..... 12, 14, 15, 22, 40, 42 
United States v. Armstrong, 517 U.S. 456 (1996) ........ 20, 21 
United States v. Blagojevich, 
794 F.3d 729 (7th Cir. 2015), cert. denied, 
577 U.S. 1234 (2016) ............................................................ 41 
United States v. Burr, 
25 F. Cas. 30 (C.C.D. Va. 1807) ......................................... 13 
United States v. Butenko, 
494 F.2d 593 (3d Cir.), cert. denied, 
419 U.S. 881 (1974).............................................................. 30 
Unites States v. Claiborne, 727 F.2d 842 (9th Cir.), 
cert. denied, 469 U.S. 829 (1984) ....................................... 33 
United States v. Gaudin, 515 U.S. 506 (1995) .................... 22 
 
VI 
 
Cases—Continued: 
Page 
United States v. Haldeman, 
559 F.2d 31 (D.C. Cir. 1976), cert. denied, 
431 U.S. 933, and 431 U.S. 935 (1977) ......................... 15, 47 
 
United States v. Hastings, 
681 F.2d 706 (11th Cir. 1982), stay denied, 
459 U.S. 1094 (1983), cert. denied, 
459 U.S. 1203 (1983) ............................................................ 33 
United States v. Isaacs,  
493 F.2d 1124 (7th Cir.), cert. denied,  
417 U.S. 976 (1974).............................................................. 33 
United States v. Johnson, 383 U.S. 169 (1966) ................... 44 
United States v. Klein, 
80 U.S. (13 Wall.) 128 (1872) .............................................. 11 
United States v. Lanier, 520 U.S. 259 (1997) ..................... 23 
United States v. Lee, 106 U.S. 196 (1882) ........................... 12 
United States v. Nixon, 
418 U.S. 683 (1974)..................... 12, 15, 16, 19, 21, 22, 30, 33 
United States v. Rostenkowski, 
59 F.3d 1291 (D.C. Cir. 1995) ............................................. 48 
United States v. Sun-Diamond Growers,  
526 U.S. 398 (1999).............................................................. 28 
Unites States v. Texas, 599 U.S. 670 (2023) ........................ 20 
United States v. Williams, 553 U.S. 285 (2008) ................. 22 
United States v. Williams, 504 U.S. 36 (1992) ................... 22 
Virginia, Ex parte, 100 U.S. 339 (1880) .............................. 43 
Wayte v. United States, 470 U.S. 598 (1985) ...................... 22 
Wisconsin v. Mitchell, 508 U.S. 476 (1993) ......................... 48 
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ............... 41 
Yates v. Lansing, 
5 Johns. 282 (N.Y. Sup. Ct. 1810), aff’d, 
9 Johns. 395 (N.Y. 1811) ..................................................... 43 
 
VII 
 
Cases—Continued: 
Page 
Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 579 (1952)......................................... 4, 10-12, 39, 40 
Ziglar v. Abbasi, 582 U.S. 120 (2017) .................................. 30 
Zivotofsky v. Kerry, 576 U.S. 1 (2015) ........................... 11, 30 
Constitution, statutes, and regulations:                                 
U.S. Const.: 
Art. I ......................................................................... 3, 9, 10 
§ 3  ............................................................... 6, 14, 31, 32 
Cl. 6 (Speech and Debate Clause) ................ 32, 1a 
Cl. 7 (Impeachment Judgment Clause) .. 6, 14, 31, 
                                                                32, 33, 1a 
§ 6, Cl. 1 ................................................................ 44, 1a 
Art. II ................................................................. 4, 8, 10, 11 
§ 1  ..................................................................... 9, 38, 45 
Cl. 1 (Vesting Clause) .................................... 45, 2a 
Cl. 2 ........................................................................ 42 
§ 2, Cl. 1 ................................................................ 34, 2a 
§ 2, Cl. 2 (Appointments Clause) .............................. 27 
§ 3  ............................................................... 9, 11, 19, 3a 
§ 4  ....................................................................... 3, 4, 3a 
Art. III ............................................. 9, 10, 22, 26, 29, 33, 38 
Art. VI, Cl. 2 (Supremacy Clause) .....................................  
Amend. I ..................................................................... 47, 48 
Amend. V (Due Process Clause) ................................ 3, 21 
§ 3, Cl. 1 (Double Jeopardy Clause)......................... 48 
Amend. VI ........................................................................ 22 
Cl. 2 ............................................................................. 22 
Administrative Procedure Act, 
5 U.S.C. 701 et seq. .............................................................. 26 
 
 
VIII 
 
Statutes—Continued: 
Page 
Federal Advisory Committee Act, 
Pub. L. No. 92-463. 86 Stat. 770 
(5 U.S.C. App. 1 et seq. (1982)) .......................................... 26 
18 U.S.C. 201 .................................................................... 26, 28 
18 U.S.C. 202(c) ...................................................................... 25 
18 U.S.C. 227 .......................................................................... 25 
18 U.S.C. 241 .......................................................... 3, 13, 24, 4a 
18 U.S.C. 371 .......................................................... 3, 13, 24, 4a 
18 U.S.C. 607(a)(1) ................................................................. 25 
18 U.S.C. 1111 ........................................................................ 26 
18 U.S.C. 1512 .................................................................. 23, 4a 
18 U.S.C. 1512(c) .............................................................. 24, 4a 
18 U.S.C. 1512(c)(2) ..................................................... 3, 23, 4a 
18 U.S.C. 2381 ........................................................................ 26 
18 U.S.C. 2384 ........................................................................ 26 
Miscellaneous: 
Akhil Reed Amar & Brian C. Kalt,  
The Presidential Privilege Against  
Prosecution, 2-SPG NEXUS 11 (1997) ............................ 17 
Application of 28 U.S.C. § 458 to Presidential  
Appointments of Federal Judges,  
19 Op. O.L.C. 350 (1995) ............................................... 27, 28 
Joseph C. Burke, The Cherokee Cases:   
A Study in Law, Politics, and Morality,  
21 Stan. L. Rev. 500 (1969) ................................................ 41 
167 Cong. Rec. S736 (daily ed. Feb. 13, 2021) .................... 34 
Constraints Imposed by 18 U.S.C. § 1913 on  
Lobbying Efforts, 13 Op. O.L.C. 300 (1989) ..................... 28 
Amenability of the President, Vice President and 
other Civil Officers to Federal Criminal 
Prosecution while in Office (1973) .................................... 16 
IX 
 
Miscellaneous—Continued: 
Page 
Rami Fakhouri, The Most Dangerous Blot  
in Our Constitution: Retiring the Flawed  
Electoral College ‘Contingent Procedure,’  
104 Nw. U. L. Rev. 705 (2010) ........................................... 41 
64 Fed. Reg. 37,038 (July 9, 1999) ........................................ 21 
The Federalist (Jacob E. Cook ed. 1961): 
No. 65 .......................................................................... 14, 35 
No. 69 .......................................................................... 14, 35 
No. 77 .................................................................... 14, 35, 36 
Gerald Ford, Presidential Statement  
(Sept. 8, 1974), https://www.fordlibrarymuseum.  
gov/library/document/0067/1563096.pdf ........................... 15 
Josh Gerstein, Comey ‘enthusiastic’ about  
Bill Clinton probe in 2001, FBI memo says,  
Politico, Jan. 18, 2017, https://www.politico. 
com/ story/2017/01/james-comey-fbi-bill- 
clinton-233808...................................................................... 42 
Robert H. Jackson, The Federal Prosecutor,  
24 J. Am. Jud. Soc. 18 (1940) ............................................. 21 
Brett M. Kavanaugh: 
Separation of Powers  
During the Forty-Fourth Presidency and  
Beyond, 93 Minn. L. Rev. 1454 (2009) ..................... 17 
The President and the  
Independent Counsel, 86 Geo. L.J. 2133 (1998) ..... 17 
Philip B. Kurland, Watergate and the Constitution  
(1978)  ................................................................................... 15 
 
 
 
 
 
X 
 
Miscellaneous—Continued: 
Page 
Memorandum from from Laurence H. Silberman, 
Deputy Att’y Gen., to Richard T. Burress,  
Office of the President, Re:  Conflict of Interest 
Problems Arising out of the President’s 
Nomination of Nelson A. Rockefeller to be Vice 
President under the Twenty-Fifth Amendment  
to the Constitution (Aug. 28, 1974) ................................... 24 
Memorandum from David J. Barron, Acting  
Assistant Att’y Gen., Office of Legal Counsel,  
to Att’y Gen., Re:  Applicability of Federal  
Criminal Laws and the Constitution to  
Contemplated Lethal Operations Against  
Shaykh Answar al-Aulaqi (July 16, 2010) ....................... 30 
A Sitting President’s Amenability to  
Indictment and Criminal Prosecution, 
24 Op. O.L.C. 222 (2000) .......................... 9, 16, 17, 35, 36, 37 
Richard Nixon, Statement by Former  
President Richard Nixon (Sept. 8, 1974),  
https://www.fordlibrarymuseum.gov/library/ 
document/0019/4520706.pdf ............................................... 16 
Prosecution for Contempt of Congress of  
an Executive Branch Official Who Has  
Asserted a Claim of Executive Privilege,  
8 Op. O.L.C. 101 (1984) ....................................................... 29 
Elizabeth Rybicki & Michael Greene,  
Cong. Research Serv. R45769,  
The Impeachment Process in the House  
of Representatives (2024) ................................................... 33 
Staff of the National Constitution Center,  
The Nixon pardon in constitutional retrospect  
(Sept. 8, 2023): 
https://constitutioncenter.org/blog/the- 
nixon-pardon-in-retrospect ...................................... 16 
 
XI 
 
Miscellaneous—Continued: 
Page 
https://www.fordlibrarymuseum.gov/library/ 
document/0019/4520706.pdf ...................................... 16 
https://www.fordlibrarymuseum.gov/library/ 
document/0067/1563096.pdf ...................................... 16 
2 Joseph Story, Commentaries on the  
Constitution of the United States (1833).......................... 36 
The Debates in the Several State Conventions  
on the Adoption of the Federal Constitution  
(J. Elliot ed. 1891): 
Vol. 2 ................................................................................. 14 
Vol. 4 ................................................................................. 14 
U.S. Dep’t of Justice, Justice Manual: 
§ 9-27.000 (rev. 2018), https://www.jus-
tice.gov/jm/justice-manual ........................................ 21 
§ 9-27.220 .......................................................................... 41 
§ 9-27.260 (update June 2023) ........................................ 21 
 
United States Assistance to Countries that  
Shoot Down Civil Aircraft Involved in Drug  
Trafficking, 18 Op. O.L.C. 148 (1994) ............................... 30 
1 Lawrence E. Walsh, Final Report Of The  
Independent Counsel For Iran/Contra Matters:   
Investigations and Prosecutions (1993),  
https://irp.fas.org/offdocs/walsh/chap_27.htm ................. 17 
 
 
 
 
 
 
(1) 
In the Supreme Court of the United States 
 
No. 23-939 
DONALD J. TRUMP, PETITIONER 
v. 
UNITED STATES OF AMERICA 
 
ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
BRIEF FOR THE UNITED STATES 
 
OPINIONS BELOW 
The opinion of the court of appeals (J.A. 1-62) is re-
ported at 91 F.4th 1173.  The opinion of the district court 
(J.A. 65-122) is not yet reported but is available at 2023 
WL 8359833. 
JURISDICTION 
The judgment of the court of appeals was entered on 
February 6, 2024.  On February 28, 2024, this Court 
treated petitioner’s application for a stay as a petition 
for a writ of certiorari and granted the petition.  The 
jurisdiction of this Court rests on 28 U.S.C. 1254(1).1    
 
1  Pursuant to 28 U.S.C. 518(a), and in accordance with 28 C.F.R. 
600.4(a), 28 C.F.R. 600.7(a), and Attorney General Order No. 5559-
2022 (Nov. 18, 2022), the Special Counsel has been authorized to 
conduct litigation before this Court on behalf of the United States 
in this matter.  
2 
 
CONSTITUTIONAL AND STATUTORY PROVISIONS  
INVOLVED 
Relevant constitutional and statutory provisions are 
reproduced in the appendix to this brief.  App., infra, 
1a-5a. 
STATEMENT 
1. From January 2017 until January 2021, petitioner 
was President of the United States.  According to a fed-
eral grand jury indictment, petitioner, while serving as 
President, conspired with several private individuals 
and a public official to “overturn the legitimate results 
of the 2020 presidential election by using knowingly 
false claims of election fraud to obstruct the federal gov-
ernment function by which those results are collected, 
counted, and certified.”  J.A. 180-181, 183-184.  The in-
dictment alleges that petitioner sought to accomplish 
the conspiracy’s objectives through five means:  using 
deceit toward state officials to subvert the legitimate 
election results in those States, J.A. 192-207; using de-
ceit to organize fraudulent slates of electors in seven 
targeted States and cause them to send false certifi-
cates to Congress, J.A. 208-215; leveraging the Depart-
ment of Justice (DOJ) to use deceit to have state offi-
cials replace the legitimate electoral slate with electors 
who would cast their votes for petitioner, J.A. 215-220; 
attempting to enlist the Vice President, in his capacity 
as President of the Senate, to fraudulently alter the 
election results during the certification proceeding on 
January 6, 2021, and directing supporters to the United 
States Capitol to obstruct the proceeding, J.A. 220-230; 
and exploiting the violence and chaos that transpired at 
the Capitol on January 6, 2021, J.A. 230-235.   
Based on those allegations, Count 1 charges peti-
tioner with conspiring to defraud the United States, in 
3 
 
violation of 18 U.S.C. 371.  J.A. 180-235.  Counts 2 and 3 
charge petitioner with conspiracy and substantive vio-
lations of 18 U.S.C. 1512(c)(2) for corruptly obstructing 
the certification of the presidential election results on 
January 6, 2021.  J.A. 235-236.  Count 4 charges peti-
tioner with conspiring to violate one or more person’s 
constitutional right to vote and have one’s vote counted, 
in violation of 18 U.S.C. 241.  J.A. 236.   
2. Petitioner moved to dismiss the indictment on the 
grounds, inter alia, that he enjoys absolute immunity 
from criminal prosecution for acts taken within the 
“outer perimeter” of his official responsibilities and that 
the indictment’s allegations all fall within that scope.  
The district court denied petitioner’s presidential-im-
munity claim and a related double-jeopardy claim.2  J.A. 
71-101, 110-117.  The court explained that the Constitu-
tion’s text, structure, and history support the conclusion 
that petitioner “may be subject to federal investigation, 
indictment, prosecution, conviction, and punishment for 
any criminal acts undertaken while in office.”  J.A. 71. 
The court of appeals affirmed.  The court explained 
that “any executive immunity that may have protected 
[petitioner] while he served as President no longer pro-
tects him against this prosecution.”  J.A. 3.  The court 
observed that petitioner’s “alleged efforts to remain in 
power despite losing the 2020 election were, if proven, 
an unprecedented assault on the structure of our gov-
ernment,” and it rejected petitioner’s “claim that a 
President has unbounded authority to commit crimes 
that would neutralize the most fundamental check on 
executive power—the recognition and implementation 
 
2  The district court also denied petitioner’s motion to dismiss rais-
ing claims under the First Amendment, J.A. 101-110, and the Fifth 
Amendment’s Due Process Clause, J.A. 117-122.                
4 
 
of election results.”  J.A. 42-43.  To the contrary, the 
court stated, beyond the general reasons for rejecting 
petitioner’s categorical immunity claim, the charges 
here “implicate the Article II interests in vesting au-
thority in a new President and the citizenry’s interest in 
democratically selecting its President.”  J.A. 40.  After 
analyzing constitutional text, structure, and history, the 
court of appeals concluded that the considerations iden-
tified by this Court in assessing presidential-immunity 
claims “compel the rejection of his claim of immunity in 
this case.”  J.A. 61.   
SUMMARY OF ARGUMENT 
I. A former President lacks absolute immunity from 
federal criminal prosecution for conduct involving his 
official acts. 
A. Petitioner asserts a novel and sweeping immunity 
from the federal criminal laws that govern all citizens’ 
conduct.  Under this Court’s established separation-of-
powers framework, a claim of presidential exemption 
from a statutory limitation requires the President to 
identify an Article II basis that precludes the applica-
tion of that congressional act.  See Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579, 635-638 (1952) (Jack-
son, J., concurring).  No presidential power at issue in 
this case entitles the President to claim immunity from 
the general federal criminal prohibitions supporting the 
charges:  fraud against the United States, obstruction 
of official proceedings, and denial of the right to vote.  
The President’s constitutional duty to take care that the 
laws be faithfully executed does not entail a general 
right to violate them.   
B. History likewise refutes petitioner’s claim.  The 
Framers never endorsed criminal immunity for a for-
mer President, and all Presidents from the Founding to 
5 
 
the modern era have known that after leaving office 
they faced potential criminal liability for official acts.  
The closest historical analogue is President Nixon’s of-
ficial conduct in Watergate, and his acceptance of a par-
don implied his and President Ford’s recognition that a 
former President was subject to prosecution.  Since Wa-
tergate, the Department of Justice has held the view 
that a former President may face criminal prosecution, 
and Independent and Special Counsels have operated 
from that same understanding.  Until petitioner’s argu-
ments in this case, so had former Presidents. 
C. The Court’s holding in Nixon v. Fitzgerald, 457 
U.S. 731 (1982), that a President enjoys immunity from 
private civil damages actions does not extend to federal 
criminal prosecutions.  This case involves the far 
weightier interest in vindicating federal criminal law in 
a prosecution brought by the Executive Branch itself.  
That was not true in Fitzgerald.  On the other side of 
the ledger, while the Fitzgerald Court was concerned 
about the potential that a multiplicity of private civil ac-
tions would chill a President’s decisions, the same con-
cerns are not present in the criminal context.  A crimi-
nal prosecution must be brought by the Executive, with 
strong institutional checks to ensure evenhanded and 
impartial enforcement of the law; a grand jury must find 
that an indictment is justified; the government must 
make its case and meet its burden of proof in a public 
trial; and the courts enforce due process protections to 
guard against politically motivated prosecutions.  Col-
lectively, these layered safeguards provide assurance 
that prosecutions will be screened under rigorous 
standards and that no President need be chilled in ful-
filling his responsibilities by the understanding that he 
is subject to prosecution if he commits federal crimes.  
6 
 
D. Federal criminal law applies to the President.  Pe-
titioner suggests that unless a criminal statute ex-
pressly names the President, the statute does not apply.  
That radical suggestion, which would free the President 
from virtually all criminal law—even crimes such as 
bribery, murder, treason, and sedition—is unfounded.  
That rule finds no support in this Court’s decisions.  Nor 
is it supported by opinions of the Department of Justice, 
which have instead construed statutes to apply to the 
President unless doing so creates a serious risk of in-
fringing the President’s constitutional powers.  That 
more modest interpretive principle has no application to 
the crimes charged here, which pose no risk of uncon-
stitutionally regulating the President’s conduct.  Ample 
other safeguards protect legitimate presidential inter-
ests:  for instance, the established public-authority ex-
emption of certain official conduct from the criminal 
law, narrowing constructions of statutes to avoid seri-
ous constitutional questions, and, as a backstop, as-ap-
plied constitutional challenges.  
E. The Impeachment Judgment Clause, U.S. Const. 
Art. I, § 3, Cl. 7, does not establish a rule requiring a 
President’s impeachment and conviction before a for-
mer President may be prosecuted.  The text of the 
clause clarifies that an impeached and convicted Presi-
dent may nevertheless be prosecuted and thus ex-
pressly recognizes that former Presidents are subject 
to federal criminal prosecution.  Petitioner acknowl-
edges that prosecution is permitted after impeachment 
and conviction, which refutes many of the other argu-
ments in his brief.  And text, structure, and history con-
tradict petitioner’s assertion that the Impeachment 
Judgment Clause implicitly makes Senate conviction a 
condition precedent to prosecution.  Impeachment is an 
7 
 
inherently political process, not intended to provide ac-
countability under the ordinary course of the law.  
Criminal prosecution, in contrast, is based on facts and 
law, and is rigorously adjudicated in court.  Adopting 
petitioner’s position would thwart the ordinary applica-
tion of criminal law simply because Congress, in admin-
istering the political process of impeachment, did not 
see fit to impeach or convict.                  
F. Likewise, neither Marbury v. Madison, 5 U.S. (1 
Cranch) 137 (1803), nor petitioner’s other remaining ar-
guments support his claim.  Marbury did not hold that 
a President’s official acts can never be examined in a 
court, and a host of cases from the Founding to the pre-
sent refute that claim.  The cases on which petitioner 
relies stand for the distinct and narrower proposition 
that courts will not enjoin a sitting President.  That 
principle has no application to criminal prosecution of a 
former President.  
The absence of any prosecutions of former Presi-
dents until this case does not reflect the understanding 
that Presidents are immune from criminal liability; it 
instead underscores the unprecedented nature of peti-
tioner’s alleged conduct.  And none of the dissimilar his-
torical examples on which petitioner relies suggests 
otherwise.  
Petitioner’s reliance on common-law immunity prin-
ciples fares no better.  The established rule for judges 
and prosecutors—that they may claim civil immunity 
for official acts but lack any corresponding criminal  
immunity—applies equally to former Presidents.  By 
contrast, neither constitutional text nor historical prac-
tice supports applying anything akin to legislative im-
munity to Presidents.     
8 
 
II.  Even if this Court holds that a former President 
is entitled to some immunity from criminal prosecution 
for official acts, that principle does not preclude trial on 
this indictment.  
First, the specific form of criminal conduct charged 
here—efforts to subvert an election in violation of the 
term-of-office clause of Article II and the constitutional 
process for electing the President—does not justify any 
form of immunity.  Second, the private conduct that the 
indictment alleges is sufficient to support the charges.  
Thus, even if liability could not be premised on official 
acts, the case should be remanded for trial, with the dis-
trict court to make evidentiary and instructional rulings 
in accordance with this Court’s decision.  Petitioner 
could seek appellate review of those rulings, if neces-
sary, following final judgment.    
ARGUMENT 
This case implicates two principles of paramount im-
portance:  the necessity of the effective functioning of 
the Presidency, and the equally compelling necessity of 
upholding the rule of law.  Petitioner is charged with 
crimes that, if proved at trial, reflect “an unprecedented 
assault on the structure of our government.”  J.A. 
42.  The effective functioning of the Presidency does not 
require that a former President be immune from ac-
countability for these alleged violations of federal crim-
inal law.  To the contrary, a bedrock principle of our 
constitutional order is that no person is above the law—
including the President.  Nothing in constitutional text, 
history, precedent, or policy considerations supports 
the absolute immunity that petitioner seeks. 
9 
 
I. 
 A FORMER PRESIDENT LACKS IMMUNITY FROM 
FEDERAL CRIMINAL PROSECUTION FOR OFFICIAL 
ACTS DURING HIS PRESIDENCY 
As the Department of Justice has long recognized, 
the separation of powers precludes the criminal prose-
cution of a sitting President.  See A Sitting President’s 
Amenability to Indictment and Criminal Prosecution, 
24 Op. O.L.C. 222 (2000) (Amenability to Indictment).  
Such a prosecution—whether for personal or official 
misconduct—would impermissibly interfere with the 
proper functioning of the Executive Branch.  But the 
same concerns do not apply to prosecution of a former 
President.  Rather, a former President is subject to fed-
eral criminal prosecution for personal and official acts 
that violate valid criminal laws.      
The President, of course, “occupies a unique position 
in the constitutional scheme.”  Nixon v. Fitzgerald, 457 
U.S. 731, 749 (1982).  The Constitution vests the “exec-
utive Power” in the President, ibid. (quoting U.S. 
Const. Art. II, § 1), and entrusts him with supervisory 
and policy duties “of utmost discretion and sensitivity,” 
including matters of national security and foreign af-
fairs, id. at 750.  The President is “the only person who 
alone composes a branch of government.”  Trump v. 
Mazars USA, LLP, 591 U.S. 848, 868 (2020).  The Pres-
idency, however, exists within a framework of sepa-
rated powers in which Congress makes laws, U.S. 
Const. Art. I; the President “shall take Care that the 
Laws be faithfully executed,” U.S. Const. Art. II, § 3; 
and the Article III courts exercise the judicial power to 
“say what the law is,” Marbury v. Madison, 5 U.S. (1 
Cranch) 137, 177 (1803)—a power that generally in-
cludes “the authority to determine” whether a 
10 
 
President’s “official action[s]” are “within the law,” 
Clinton v. Jones, 520 U.S. 681, 703 (1997).  
 
If petitioner were correct that the former President 
has permanent immunity from federal criminal prose-
cution except after his impeachment and Senate convic-
tion—which has never happened—it would upset the 
separation of powers and usher in a regime that would 
have been anathema to the Framers.  The Framers had 
experienced firsthand the dangers of a monarch who 
was above the law, and they adopted a system of checks 
and balances to avoid those dangers.  They designed a 
Constitution that would ensure an effective and ener-
getic President under Article II—but one who was ac-
countable to justice under laws passed by Congress un-
der Article I, enforced by the Executive Branch under 
Article II, and adjudicated by the courts under Article 
III.  That careful design leaves no room for an implicit 
and previously unrecognized rule categorically immun-
izing the President from accountability for criminal con-
duct involving the misuse of his office.   
A. A Claim Of Absolute Criminal Immunity For A Former 
President’s Official Acts Violates Established Separa-
tion-Of-Powers Principles  
1. Petitioner asks this Court to create a doctrine of 
absolute criminal immunity, under which duly enacted 
federal criminal statutes cannot be enforced against a 
former President based on conduct involving official 
acts, unless he has been impeached and convicted by the 
Senate for the same conduct.  Pet. Br. 6, 22.  Petitioner 
therefore asserts a new presidential power to be free of 
congressional commands in criminal statutes in virtu-
ally all circumstances.  This Court analyzes “claims of 
Presidential power” under the tripartite framework set 
out in Justice Jackson’s concurrence in Youngstown 
11 
 
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-638 
(1952).  Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015); see, 
e.g., Dames & Moore v. Regan, 453 U.S. 654, 661-662, 
669 (1981).   
Under that framework, the President’s power is at 
its height when he “acts pursuant to an express or im-
plied authorization of Congress.”  Youngstown, 343 U.S. 
at 635 (Jackson, J., concurring).  Where Congress has 
not expressly legislated on a matter, a “zone of twilight” 
exists “in which [the President] and Congress may have 
concurrent authority.”  Id. at 637.  And where “the Pres-
ident takes measures incompatible with the express or 
implied will of Congress,” his power is “at its lowest 
ebb.”  Ibid.  In that third category, the President can 
prevail only when he asserts an Article II power “so 
conclusive and preclusive” as to “disabl[e] the Congress 
from acting upon the subject.”  Id. at 637-638; see Zivo-
tofsky, 576 U.S. at 10.    
That principle flows from the Constitution itself:  Ar-
ticle II, § 3, requires the President to “faithfully exe-
cute[]” valid laws made by Congress under its Article I 
authority.  Congress, of course, may act beyond its con-
stitutional authority, and an Act of Congress may 
trench on an Article II power “that Congress may not 
qualify.”  Zivotofsky, 576 U.S. at 17.  This Court has 
held, for example, that Congress may not constrain the 
President’s power to recognize foreign countries, id. at 
16; to grant pardons, see United States v. Klein, 80 U.S. 
(13 Wall.) 128, 147-148 (1872); or to remove at will a 
principal officer who leads an executive agency headed 
by a single director, Seila Law LLC v. CFPB, 140 S. Ct. 
2183, 2192 (2020).  More generally, the Court has recog-
nized that a statute may not validly “prevent the Exec-
utive Branch from accomplishing its constitutionally 
12 
 
assigned functions.”  Nixon v. Administrator of Gen. 
Servs., 433 U.S. 425, 443 (1977) (GSA).  But in other 
cases, the Court has rejected a claim of presidential 
power when it contravenes Congress’s express enact-
ments and so falls within Youngstown’s third category.  
See, e.g., Medellin v. Texas, 552 U.S. 491, 527 (2008); 
Hamdan v. Rumsfeld, 548 U.S. 557, 639 (2006); Youngs-
town, 343 U.S. at 587-589 (majority opinion). 
2. In claiming here that the Constitution prevents 
all federal criminal statutes from applying to a Presi-
dent’s official acts, petitioner does not purport to iden-
tify any “exclusive” and “preclusive” power that would 
justify such an exemption.  Youngstown, 343 U.S. at 
637-638 (Jackson, J., concurring).  Nor could he.  The 
Framers did not provide any explicit textual source of 
immunity to the President.  “The text of the Constitu-
tion explicitly addresses the privileges of some federal 
officials, but it does not afford the President absolute 
immunity.”  J.A. 47 (quoting Trump v. Vance, 591 U.S. 
786, 816 (2020) (Thomas, J., dissenting)).  And while the 
absence of constitutional text does not foreclose peti-
tioner’s immunity claim, see United States v. Nixon, 
418 U.S. 683, 705-706 n.16, 711 (1974), the Constitution’s 
structure presupposes a government under law, not an 
absolute shield that places the President above the 
criminal law unless he is first impeached and convicted. 
Recognition of petitioner’s immunity claim would 
prevent Congress from applying the criminal laws 
equally to all persons—including the President.  His im-
munity claim thus contradicts bedrock principles by 
placing the President “above the law.”  United States v. 
Lee, 106 U.S. 196, 220 (1882); see also Vance, 591 U.S. 
at 812 (Kavanaugh, J., concurring in the judgment) (ob-
serving that the principle that no one is above the law 
13 
 
“applies, of course, to a President”).  Petitioner’s allu-
sion (Br. 35-37) to alternative remedies for official mis-
conduct does not avoid the necessary result of his argu-
ment: a constitutional exemption for the President from 
the criminal laws that govern everyone else.     
 
The criminal prohibitions at issue here illustrate that 
point: they proscribe a conspiracy to defraud the United 
States by defeating its lawful functions, 18 U.S.C. 371; 
substantive and conspiratorial efforts to obstruct offi-
cial proceedings, 18 U.S.C. 1512(c)(2); and a conspiracy 
to “injure [or] oppress  * * *  the free exercise or enjoy-
ment” of any citizen’s constitutional rights, 18 U.S.C. 
241.  Petitioner has not argued—and could not plausibly 
argue—that the Constitution vests the President with 
authority to perform the conduct prohibited by those 
statutes, or that the President would be unable to fulfill 
his constitutionally assigned role if he were prosecuted 
for such inherently culpable conduct.  Yet petitioner’s 
immunity claim would not only exempt the President 
from those statutes; it would free him from federal 
criminal accountability for any and every crime commit-
ted through official acts absent impeachment and con-
viction.  Article II does not require that result, and it is 
therefore foreclosed by the fundamental separation-of-
powers principle that the President is bound by valid 
statutes unless the Constitution exempts him.  See 
United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 
1807).       
B. History Supports The Conclusion That Former Presi-
dents Are Subject To Prosecution For Official Acts   
History also forecloses petitioner’s claim that the 
Constitution grants a former President absolute im-
munity from criminal prosecution.  Since the Founding, 
every President has known that he could be impeached 
14 
 
and separately “subject to Indictment, Trial, Judgment 
and Punishment, according to Law.”  U.S. Const. Art. I, 
§ 3, Cl. 7.  Even under petitioner’s view, Presidents have 
faced the prospect of impeachment followed by prose-
cution throughout our Nation’s history, and it has never 
been thought to deter a President’s “bold and unhesi-
tating action.”  Fitzgerald, 457 U.S. at 745.   
1. The Framers’ most relevant writings provide no 
support for immunity of the type that petitioner claims.  
“James Wilson, a signer of the Constitution and future 
Justice of this Court, explained to his fellow Pennsylva-
nians that ‘far from being above the laws, [the Presi-
dent] is amenable to them in his private character as a 
citizen, and in his public character by impeachment.’ ”  
Vance, 591 U.S. at 816-817 (Thomas, J., dissenting) 
(quoting 2 The Debates in the Several State Conven-
tions on the Adoption of the Federal Constitution 480 
(J. Elliot ed. 1891) (Debates on the Constitution)).  Wil-
son therefore recognized that prosecution was the 
means of holding a President accountable in his “private 
character” for criminal acts, while impeachment was the 
means of addressing his “public character” as office 
holder.  “James Iredell, another future Justice, ob-
served in the North Carolina ratifying convention that 
‘[i]f [the President] commits any crime, he is punishable 
by the laws of his country.’”  Id. at 817 (Thomas, J., dis-
senting) (quoting 4 Debates on the Constitution 109).  
Alexander Hamilton likewise confirmed that a Presi-
dent, unlike a King, would be “liable to prosecution and 
punishment in the ordinary course of law.”  The Feder-
alist No. 65, at 442; see id. at No. 69, at 463; id. at No. 
77, at 520-521 (noting that the President is “at all times 
liable to impeachment, trial, [and] dismission from 
15 
 
office” as well as “forfeiture of life and estate by subse-
quent prosecution in the common course of law”).   
2. The events of Watergate similarly reflect a broad 
understanding that a former President may be prose-
cuted for official acts.  During Watergate, President 
Nixon was an unindicted co-conspirator in a prosecution 
charging White House officials with conspiracy to de-
fraud the United States and to obstruct justice.  Nixon, 
418 U.S. at 687 n.2; see Vance, 591 U.S. at 804 (recog-
nizing that President Nixon was “under investigation” 
in Watergate).  Those charges were proved by evidence 
of a range of acts taken to achieve an unlawful objective, 
including the abuse of presidential power as a means of 
carrying out the conspiracy.  See United States v. Hal-
deman, 559 F.2d 31, 121-122 (D.C. Cir. 1976) (en banc) 
(per curiam) (describing use of the CIA to obstruct the 
FBI’s investigation of the Watergate burglary), cert. 
denied, 431 U.S. 933, and 431 U.S. 933 (1977).  President 
Nixon resigned after release of the tape revealing his 
misuse of the CIA, yet no one suggested that he was 
immune from federal prosecution once no longer in of-
fice.  See, e.g., Philip B. Kurland, Watergate and the 
Constitution 135-136 (1978) (concluding that a sitting 
President “must be immune from prosecution,” but that 
“there should be no doubt that a removed or retired or 
resigned President is vulnerable to the criminal pro-
cess”).   
To the contrary, President Ford’s pardon of former 
President Nixon, and his acceptance, rested on the un-
derstanding that the former President faced potential 
criminal liability.  See Gerald R. Ford, Presidential 
Statement at 8 (Sept. 8, 1974) (granting former Presi-
dent Nixon a “full, free, and absolute pardon  * * *  for 
all offenses against the United States which he  * * *  
16 
 
has committed or may have committed or taken part in 
during” his Presidency);3 Richard Nixon, Statement by 
Former President Richard Nixon at 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”).4  
Both men were aware of and relied on this Court’s state-
ment in Burdick v. United States, 236 U.S. 79 (1915), 
that acceptance of a pardon represents a “confession of 
guilt,” id. at 91.5   
During the Watergate era, DOJ rejected as “unrea-
sonable” the claim that “an offending federal officer ac-
quires a lifetime immunity against indictment unless 
the Congress takes time to impeach him.”  Amenability 
of the President, Vice President and other Civil Officers 
to Federal Criminal Prosecution while in Office 4-5 
(1973).  And former President Nixon, despite his capa-
cious view of presidential privileges, acknowledged that 
a President may “be indicted after he leaves office at 
the end of his term or after being ‘convicted’ by the Sen-
ate in an impeachment proceeding.”  Resp. Br. at 98, 
United States v. Nixon, Nos. 73-1766 and 73-1834 (June 
21, 1974).  DOJ reiterated that position in 2000.  Ame-
nability to Indictment, 24 Op. O.L.C. at 255. 
3. Subsequent investigations by Independent and 
Special Counsels have taken as a given that a former 
President can be prosecuted for official acts.  For 
 
3 https://www.fordlibrarymuseum.gov/library/document/0067/156 
3096.pdf. 
4 https://www.fordlibrarymuseum.gov/library/document/0019/452 
0706.pdf. 
5 Staff of the National Constitution Center, The Nixon pardon in 
constitutional retrospect (Sept. 18, 2023),  https://constitutioncenter. 
org/blog/the-nixon-pardon-in-retrospect.  
17 
 
instance, the Independent Counsel investigating the 
Iran/Contra affair recognized that “a past President” 
can be “subject to prosecution in appropriate cases” and 
so reviewed “the conduct of President Reagan in the 
Iran/contra matter  * * * against the applicable stat-
utes,” ultimately concluding “that President Reagan’s 
conduct fell well short of criminality which could be suc-
cessfully prosecuted.”6  But no President before or since 
suggested that the prospect of criminal exposure had a 
chilling effect.  And not until petitioner’s briefs in this 
case has a former President suggested that the Consti-
tution affords him criminal immunity.   
Reflecting the same presupposition that a former 
President may face prosecution, arguments for a sitting 
President’s temporary immunity from criminal prose-
cution typically include or advocate offsetting rules, 
such as tolling or extending the statute of limitations, to 
ensure that temporary immunity does not place a Pres-
ident above the law.  See, e.g., Amenability to Indict-
ment, 24 Op. O.L.C. at 255-256 & nn.33-34; Brett M. Ka-
vanaugh, Separation of Powers During the Forty-
Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 
1462 & n.32 (2009); Akhil Reed Amar & Brian C. Kalt, 
The Presidential Privilege Against Prosecution, 2-SPG 
NEXUS 11, 16 (1997).  Absent from these writings is 
any claim that former Presidents have absolute, lifelong 
immunity from prosecution.  The absence of any such 
absolute-immunity claim throughout our history weighs 
heavily against its novel recognition now.  See Trump v. 
Anderson, 601 U.S. 100, 113-114 (2024) (per curiam). 
 
6   1 Lawrence E. Walsh, Final Report Of The Independent Coun-
sel For Iran/Contra Matters: Investigations and Prosecutions , 
Chap. 27 (1993), https://irp.fas.org/offdocs/walsh/chap_ 27.htm. 
18 
 
C. Criminal Immunity For A Former President Enjoys No 
Support From Fitzgerald’s Recognition Of Civil Im-
munity  
Petitioner argues (Br. 7, 25-29) that Fitzgerald sup-
ports his claim of absolute immunity from criminal pros-
ecution.  That is incorrect.  In Fitzgerald, this Court 
held that a former President is immune from a civil 
damages suit based on official acts within the outer pe-
rimeter of presidential responsibility.  457 U.S. at 749, 
755-757.  The Court explained that a private citizen’s in-
terest in recovering damages was outweighed by the 
burden on the Presidency posed by the threat of scores 
of civil suits brought by people affected by presidential 
decisions.  Id. at 752-754.  The Court thus held that im-
munity from civil liability under otherwise valid laws is 
a “functionally mandated incident of the President’s 
unique office, rooted in the constitutional tradition of 
separation of powers.”  Id. at 749.  In other words, the 
Court deemed such immunity to be required by Article 
II because private damages suits would prevent the 
President from “accomplishing [his] assigned func-
tions.”  GSA, 433 U.S. at 443. 
Applying Fitzgerald’s reasoning in this context, how-
ever, leads to the opposite result: Article II does not 
grant a former President absolute criminal immunity 
because the calculus on each side of the scales funda-
mentally differs.  The interest in enforcement of federal 
criminal laws is far weightier than the private damages 
claim at issue in Fitzgerald.  And the many safeguards 
against unfounded federal prosecutions refute peti-
tioner’s argument that the Constitution requires an ab-
solute bar against federal prosecution of a former Pres-
ident.         
19 
 
1.  The interest in applying federal criminal law to all 
persons is compelling  
The charges in this case, alleging a President’s 
crimes to overturn an election and perpetuate himself 
in power, illustrate the compelling public interest in en-
forcing the criminal law.  The “commitment to the rule 
of law  * * *  is nowhere more profoundly manifest” than 
in criminal justice.  Cheney v. United States Dist. Ct., 
542 U.S. 367, 384 (2004) (citation omitted).  Indeed, “the 
primary constitutional duty of the Judicial Branch [is] 
to do justice in criminal prosecutions.”  Nixon, 418 U.S. 
at 707.  Accordingly, Fitzgerald emphasized that “there 
is a lesser public interest in actions for civil damages” 
than “in criminal prosecutions.”  457 U.S. at 754 n.37.  
And although the Court declined to approve the “exer-
cise of jurisdiction over the President” in a case involv-
ing a “merely private suit for damages,” it acknowl-
edged that “the exercise of jurisdiction [over the Presi-
dent] has been held warranted” in order to “vindicate 
the public interest in an ongoing criminal prosecution.”  
Id. at 754 & n.37 (citing Nixon, 418 U.S. 683 (1974)).   
This case also involves a countervailing Article II 
consideration absent in Fitzgerald: petitioner’s immun-
ity claim would frustrate the Executive Branch’s en-
forcement of the criminal law.  In Fitzgerald, all the rel-
evant Executive Branch interests counseled in favor of 
recognizing immunity from private civil suits—there, 
based on implied rights of action.  See 457 U.S. at 740 & 
n.20.  A federal prosecution, in contrast, implicates the 
President’s constitutional responsibility to “take Care 
that the Laws be faithfully executed.”  U.S. Const. Art. 
II, § 3; see Morrison v. Olson, 487 U.S. 654, 706 (1988) 
(Scalia, J., dissenting) (The “investigation and prosecu-
tion of crimes is a quintessentially executive function.”).  
20 
 
The Attorney General and federal prosecutors help ful-
fill that constitutional function.  United States v. Arm-
strong, 517 U.S. 456, 464 (1996).   Allowing a former 
President to assert absolute immunity from applicable 
criminal laws would frustrate the Executive’s constitu-
tional authority and responsibility to enforce those 
laws.  See United States v. Texas, 599 U.S. 670, 678-679 
(2023).  “It would be a striking paradox if the President, 
who alone is vested with the constitutional duty to ‘take 
Care that the Laws be faithfully executed,’ were the 
sole officer capable of defying those laws with impu-
nity.”  J.A. 39.   
2.   Robust safeguards protect against the risk of  
improper prosecutions  
 
The interests on the other side of the scales also 
weigh against criminal immunity because the possibility 
of federal criminal prosecution after a President leaves 
office imposes a much lesser burden on the Executive 
Branch than the private civil suits at issue in Fitzgerald.  
Fitzgerald reasoned that “highly intrusive” private law-
suits from “countless people” directed at a former Pres-
ident, “an easily identifiable target,” would chill the 
President’s conduct and render him “unduly cautious in 
the discharge of his official duties.”  457 U.S. at 752 n.32, 
753, 756.  Those concerns do not translate to the federal 
criminal context.  All federal prosecutions must origi-
nate in the Executive Branch itself, acting through 
DOJ.  Institutional standards of impartial prosecution 
are embedded in longstanding DOJ norms set forth in 
Department policy.  The grand jury provides a further 
independent check against abusive prosecutions, and a 
trial unfolds in public within the systemic constraints of 
the adversary criminal justice system.  Finally, Article 
III courts—including this Court—ensure that any 
21 
 
prosecution of a former President stays within constitu-
tional limits.         
a. The Executive Branch and the criminal justice 
system contain strong safeguards against groundless 
prosecutions.  Congress has vested in the Attorney Gen-
eral “the power to conduct the criminal litigation of the 
United States Government,” Nixon, 418 U.S. at 694, 
and DOJ has a longstanding commitment to the impar-
tial enforcement of the law.  See Robert H. Jackson, The 
Federal Prosecutor, 24 J. Am. Jud. Soc’y 18 (1940).  
DOJ’s standards and institutional structures reinforce 
those values:  federal prosecutors are required to make 
prosecution decisions based on the facts and the law, see 
U.S. Dep’t of Justice, Justice Manual § 9-27.000 (Prin-
ciples of Federal Prosecution), https://www.jus-
tice.gov/jm/justice-manual; and they may not consider, 
inter alia, a potential defendant’s “political associa-
tions, activities, or beliefs,” id. § 9-27.260; see also id.  
§ 1-8.100 (“The rule of law depends upon the even-
handed administration of justice.  The legal judgments 
of the Department of Justice must be impartial and in-
sulated from political influence.”).  This Court has ex-
plained that, based on long experience, absent “clear ev-
idence to the contrary, courts presume that [federal 
prosecutors] have properly discharged their official du-
ties.”  Armstrong, 517 U.S. at 464 (citation omitted).7 
 
The criminal justice system provides further safe-
guards.  Federal felony indictments must be returned 
by the grand jury, see U.S. Const. Amend. V, which is 
“  ‘a constitutional fixture in its own right’ ” and “serv[es] 
 
7 Reliance on Special Counsels in sensitive matters provides fur-
ther safeguards by balancing independence in day-to-day prosecu-
torial decisionmaking with ultimate accountability in the Attorney 
General.  See 64 Fed. Reg. 37,038 (July 9, 1999).   
22 
 
as a kind of buffer or referee between the Government 
and the people.”  United States v. Williams, 504 U.S. 
36, 47 (1992) (citation omitted).  Grand juries are “pro-
hibited from engaging in arbitrary fishing expeditions 
and initiating investigations out of malice or an intent to 
harass.”  Vance, 591 U.S. at 805 (citation omitted).   
 
Prosecutions are also subject to public scrutiny and 
rigorous protections for a defendant’s rights.  The ac-
cused is guaranteed a fair trial, with an array of proce-
dural rights.  U.S. Const. Amend. VI.  And the govern-
ment bears the burden to prove its allegations beyond a 
reasonable doubt to a unanimous jury, United States v. 
Gaudin, 515 U.S. 506, 510 (1995), which guards against 
abusive, unfounded prosecutions.  These established 
safeguards sharply contrast with the potential barrage 
of unscreened private damages actions that concerned 
the Fitzgerald Court.  Cf. Cheney, 542 U.S. at 386 (con-
trasting the criminal justice system’s protections “to fil-
ter out insubstantial legal claims” with the absence of 
“analogous checks” in civil litigation).8 
 
b. Article III courts—including this Court—provide 
the ultimate check against potentially abusive prosecu-
tions of former Presidents.  Politically motivated pros-
ecutions violate the Constitution, see Wayte v. United 
States, 470 U.S. 598, 608 (1985), and courts will review 
a former President’s claims “meticulous[ly],” Vance, 
591 U.S. at 809 (quoting Nixon, 418 U.S. at 702).  The 
 
8 Petitioner’s suggestion that a former President would be at the 
mercy of “2,300 district attorneys,” Pet. Br. 26 (citation omitted), is 
unfounded.  The Supremacy Clause, U.S. Const. Art. VI, Cl. 2, pre-
vents state prosecutors “from interfering with a President’s official 
duties.”  Vance, 591 U.S. at 806; see In re Neagle, 135 U.S. 1 (1890).  
Rejecting petitioner’s claim of immunity from federal prosecution 
would not displace those protections. 
23 
 
groundless threats of politically motivated prosecution 
that petitioner fears (Br. 6-7, 33-35) would not survive 
such review.   
 Courts will also enforce the due process principle 
that a criminal statute must provide “a person of ordi-
nary intelligence fair notice of what is prohibited.”  
United States v. Williams, 553 U.S. 285, 304 (2008); see 
United States v. Lanier, 520 U.S. 259 (1997).  If a for-
mer President lacked fair warning that his official acts 
would violate a criminal prohibition, a court would dis-
miss a prosecution on due process grounds.9  Here, the 
district court correctly rejected petitioner’s due process 
challenge to the charged statutes, J.A. 121-122, but 
those requirements would protect a former President if 
a case arose in which he lacked fair notice.10    
 
Together, these layers of familiar safeguards refute 
petitioner’s contention (Br. 3) that without his novel ab-
solute immunity claim, “[t]he President cannot function, 
 
9 That due process requirement, and the many other safeguards 
that apply in a criminal prosecution, render it unnecessary and in-
appropriate to import the qualified immunity that applies in civil 
damages actions into the criminal context.  Cf. Pet. Br. 46-47. 
10 Petitioner asserts (Br. 39 n.4) that the grant of review in Fischer 
v. United States, No. 23-5572 (oral argument scheduled for Apr. 16, 
2024), suggests that the Section 1512(c)(2) charges here impermis-
sibly stretch the statute.  But whether the Court interprets Section 
1512(c)(2) consistently with a natural reading of its text or adopts 
the evidence-impairment gloss urged by the petitioner in Fischer, 
the Section 1512 charges in this case are valid.  J.A. 208-215, 220-
221 (describing efforts to use fraudulent electoral certifications ra-
ther than genuine ones at the Joint Session); see Merits Reply Br. 
at 9-10, Fischer, supra (acknowledging that the use of falsehoods or 
creation of “false” documents satisfies an evidence-impairment in-
terpretation).   
24 
 
and the Presidency itself cannot retain its vital inde-
pendence.”      
*   
*   
* 
 Because a greater interest exists in vindicating the 
public’s interest in enforcement of the criminal laws—
by Executive officials vested by law with that singular 
public responsibility—than in permitting private indi-
viduals to pursue tort suits, and because greater protec-
tions exist for a former President in the criminal con-
text, Fitzgerald’s reasoning does not support peti-
tioner’s claim of absolute immunity from criminal pros-
ecution.  Congress remains free, however, to “respond 
with appropriate legislation” if it “deems it appropriate 
to afford the President stronger protection” from liabil-
ity.  Clinton, 520 U.S. at 709.  
D. Federal Criminal Law Applies To The President 
Petitioner’s opening brief in this Court asserts, for 
the first time in this litigation, that “the doctrine of im-
munity” requires courts to interpret criminal laws to ex-
empt the President unless he is expressly named.  Pet. 
Br. 40; see id. at 37-40.  That claim finds no basis in text, 
congressional intent, this Court’s precedents, or Office 
of Legal Counsel (OLC) opinions.  And existing princi-
ples of statutory construction, as well as the availability 
of as-applied constitutional challenges, ensure that fed-
eral criminal statutes do not impede the President’s 
ability to carry out his constitutionally assigned duties.  
1. The express text of nearly all federal criminal 
laws covers all persons, including the President.  The 
statutes under which petitioner has been indicted are 
illustrative.  They use the terms “[w]hoever” and “per-
son[]” to describe their coverage.  See 18 U.S.C. 1512(c) 
(“whoever”); 18 U.S.C. 241, 371 (“two or more per-
sons”).  Both terms naturally include individuals who 
25 
 
occupy government offices such as the Presidency.  See 
Nardone v. United States, 302 U.S. 379, 381-384 (1937) 
(holding that the term “any person” in a statute barring 
wiretapping includes federal agents because “the sover-
eign is embraced by general words of a statute intended 
to prevent injury and wrong”).  And another provision 
of the criminal law, 18 U.S.C. 202(c), demonstrates that 
Congress knows how to exclude the President from a 
broadly defined term when it wishes to do so.  That stat-
ute provides that the terms “‘officer’ and ‘employee’” in 
five specific statutes “shall not include the President, 
the Vice President, a Member of Congress, or a Federal 
judge.”  Ibid. (emphasis added). 
No evidence exists that Congress intended courts to 
graft an extra-textual exception for the President into 
all the other federal criminal laws in which he is not spe-
cifically named.  Only two criminal statutes would ap-
pear to remain applicable to the President under that 
rule.  One prohibits a “covered government person” 
from taking an “official act” to influence private employ-
ment decisions, and then defines a “‘covered govern-
ment person’” to include members of Congress and “the 
President, Vice President,” and “executive branch em-
ployee[s].”  18 U.S.C. 227.  The other includes the Pres-
ident as one of the officials who is barred from soliciting 
or receiving campaign funds “in any room or building 
occupied in the discharge of official duties.”  18 U.S.C. 
607(a)(1).    
It is implausible that Congress intended for the 
President to face criminal sanctions for influencing pri-
vate employment or accepting campaign contributions 
in federal buildings, while exempting him from every 
other federal criminal statute, including those barring 
bribery, murder, treason, and seditious conspiracy—
26 
 
none of which mentions the President.  See 18 U.S.C. 
201, 1111, 2381, 2384.  And accepting petitioner’s under-
standing of federal criminal law would render hollow his 
concession (Br. 16-22) that the President may face crim-
inal prosecution after impeachment and conviction.  Un-
der petitioner’s rule, scarcely any laws would allow such 
a prosecution to proceed.  
2. Petitioner errs in asserting (Br. 37-38) that his 
statutory-construction argument finds support in this 
Court’s decisions or OLC’s opinions.  To the contrary, 
those sources recognize a more tailored principle of 
statutory construction that comes into play only when 
the application of a particular statute presents a serious 
risk of infringing the constitutional powers of the Exec-
utive Branch.    
a. This Court has twice construed terms in a statute 
to avoid such a risk.  In Public Citizen v. United States 
Department of Justice, 491 U.S. 440 (1989), the Court 
interpreted the term “utilized” in the Federal Advisory 
Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (5 
U.S.C. App. 1 et seq. (1982)), to exclude a particular ap-
plication of the statute that would have created “formi-
dable constitutional difficulties” by intruding upon the 
“President’s prerogative under Article II to nominate 
and appoint officers of the United States.”  491 U.S. at 
443, 466-467.  And in Franklin v. Massachusetts, 505 
U.S. 788 (1992), the Court construed the term “agency” 
in the Administrative Procedure Act (APA), 5 U.S.C. 
701 et seq., to exclude the President to avoid the serious 
separation-of-powers questions that would have arisen 
if the APA’s judicial review provisions were understood 
to permit Article III courts to review “the President’s 
performance of his statutory duties” for “abuse of dis-
cretion.”  505 U.S. at 800-801.   
27 
 
Neither decision supports reading an implied excep-
tion for the President into every criminal statute that 
does not name him.  Rather, in both cases, the Court 
responded to a specific and serious separation-of-pow-
ers concern raised by the statute—in Public Citizen, 
the threat of intrusion on the President’s Appointment 
Clause power, and in Franklin, the risk that the Judi-
cial Branch would be allowed to second-guess the Pres-
ident’s policy decisions.  And in both cases the Court 
adopted a targeted solution that avoided the problem 
while hewing as closely as possible to the statutory text.  
Thus, in Public Citizen, the Court interpreted the term 
“utilize” to exclude a specific application to a presiden-
tial advisory committee involved in judicial nomina-
tions, while recognizing that the statute continued to 
apply to other presidential advisory committees.  And 
in Franklin, the Court’s interpretation of the term 
“agency” to exclude the President was in keeping with 
the ordinary meaning of the term “agency,” which con-
notes a government entity, not an individual.   
b. OLC has distilled from these decisions a “clear 
statement principle” that interprets general statutes 
that do not expressly refer to the President not to reach 
him where “doing so would raise a serious question un-
der the separation of powers.”  Application of 28 U.S.C. 
§ 458 to Presidential Appointments of Federal Judges , 
19 Op. O.L.C. 350, 354, 357 (1995) (Application of Sec-
tion 458).  But that principle cannot justify the blanket 
presidential exception from the criminal law that peti-
tioner seeks because—as OLC has explained—many 
applications of the criminal law to the President do not 
implicate separation-of-powers concerns, much less “se-
rious” ones.  Id. at 351.   
28 
 
Thus, OLC has observed that the clear statement 
principle “does not apply” to 18 U.S.C. 201, the primary 
federal bribery law, explaining that applying Section 
201 to the President “raises no separation of powers 
question, let alone a serious one” because “[t]he Consti-
tution confers no power in the President to receive 
bribes.”  Application of Section 458, 19 Op. O.L.C. at 
357 n.11; see United States v. Sun-Diamond Growers, 
526 U.S. 398, 407-408 (1999) (discussing the application 
of Section 201’s bar on illegal gratuities to the Presi-
dent’s conduct as a reason for a limiting construction).  
The same reasoning applies to the statutes charged 
here.   
Further, where OLC has found that particular appli-
cations of a criminal law to the President raise serious 
separation-of-powers concerns, it has construed the 
statute to exempt those particular applications, rather 
than exempting the President from the law altogether.  
For example, OLC has concluded that “serious consti-
tutional problems” support a broad interpretation of an 
exception to the criminal anti-lobbying statute to cover 
most forms of routine communication by the President 
and his direct subordinates.  Constraints Imposed by 18 
U.S.C. § 1913 on Lobbying Efforts, 13 Op. O.L.C. 300, 
305 (1989).  But OLC has “caution[ed]” those officials 
“against” engaging in the grassroots lobbying that is at 
the heart of the statutory prohibition.  Id. at 303 n.5.  
Similarly, when OLC determined that it would create 
serious separation-of-powers concerns to apply the 
criminal contempt-of-Congress statute to an official as-
serting executive privilege on the President’s behalf, 
OLC did not conclude that the President or any other 
Executive Branch official is entirely excluded from the 
statute, instead finding that the statute does not “apply 
29 
 
to Presidential assertions of executive privilege.”  Pros-
ecution for Contempt of Congress of an Executive 
Branch Official Who Has Asserted a Claim of Execu-
tive Privilege, 8 Op. O.L.C. 101, 129 (May 30, 1984).   
And to the extent OLC would construe a criminal 
statute to exempt the President altogether, such a deci-
sion would be based on a conclusion that most or all of 
the statute’s core applications to the President would 
present serious separation-of-powers concerns.  See 
Memorandum from Laurence H. Silberman, Deputy 
Att’y Gen., to Richard T. Burress, Office of the Presi-
dent, Re: Conflict of Interest Problems Arising out of 
the President’s Nomination of Nelson A. Rockefeller to 
be Vice President under the Twenty-Fifth Amendment 
to the Constitution 2, 5 (Aug. 28, 1974) (finding that the 
text and legislative history permitted construing a crim-
inal conflict-of-interest law to exclude the President 
where the law might otherwise either “disempower [the 
President] from performing some of the functions pre-
scribed by the Constitution” or “establish a qualifica-
tion for his serving as President  * * *  beyond those 
contained in the Constitution”).  But no such claim can 
be made here.  
3. Petitioner suggests (Br. 37) that his novel implied 
presidential exception from all federal criminal law is 
necessary to protect the President’s ability to carry out 
his constitutionally assigned functions.  But that pur-
pose is already achieved by existing principles of statu-
tory construction and as-applied constitutional chal-
lenges.  If a former President were prosecuted under a 
criminal law that raises serious separation-of-powers 
concerns in a particular context, an Article III court 
could first determine whether a background principle 
such as the public-authority defense protects against 
30 
 
liability;11 construe the statute to avoid a serious sepa-
ration-of-powers concern;12 or, if that is not possible, de-
clare a particular application of the statute unconstitu-
tional.13    
4. Petitioner, however, has no plausible as-applied 
separation-of-powers challenge to the criminal laws he 
is alleged to have violated.  Indeed, petitioner did not 
even challenge the constitutionality of the statutes on 
this basis despite making numerous other pretrial 
claims, see D. Ct. Doc. Nos. 113, 114, 115, and 116 (Oct. 
23, 2023), and such a challenge could not succeed.    
 
11  See Memorandum from David J. Barron, Acting Assistant Att’y 
Gen., Office of Legal Counsel, to Att’y Gen., Re: Applicability of 
Federal Criminal Laws and the Constitution to Contemplated Le-
thal Operations Against Shaykh Anwar al-Aulaqi (July 16, 2010); 
United States Assistance to Countries that Shoot Down Civil Air-
craft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994). 
12  See United States v. Butenko, 494 F.2d 593, 601 (3d Cir.) (en 
banc) (interpreting a surveillance statute to permit the President to 
order foreign wiretaps because the contrary interpretation might 
have interfered with the “President’s effective performance of his 
duties in the foreign affairs field”), cert. denied, 419 U.S. 881 (1974); 
cf. Sale v. Haitian Centers Council, 509 U.S. 155, 188 (1993) (pre-
sumption that federal laws do not apply extraterritorially applies 
“with special force” with respect to a treaty or statute that “may 
involve foreign and military affairs for which the President has 
unique responsibility”). 
13 The foreign-affairs and national-security contexts would be 
strong candidates for such as-applied holdings.  See Zivotofsky, 576 
U.S. at 31-32; see also, e.g., Ziglar v. Abbasi,  582 U.S. 120, 142 (2017) 
(“Judicial inquiry into the national-security realm raises ‘concerns 
for the separation of powers in trenching on matters committed to 
the other branches.’”); Nixon, 418 U.S. at 706, 710 (recognizing 
greater strength of a privilege claim for “military, diplomatic, or 
sensitive national security secrets” where “the courts have tradi-
tionally shown the utmost deference to Presidential responsibili-
ties”).    
31 
 
The Constitution does not give a President the power 
to conspire to defraud the United States in the certifi-
cation of presidential-election results, obstruct pro-
ceedings for doing so, or deprive voters of the effect of 
their votes.  And because neither Article II nor any 
other constitutional provision gives the President any 
role in certifying the election of his successor, petitioner 
cannot make a viable claim that the President’s consti-
tutional role renders it essential for him to engage in 
the criminal conduct alleged in the indictment.  Thus, 
even if petitioner had properly preserved a separation-
of-powers challenge to the application or interpretation 
of the statutes in the indictment, it would fail.   
E.  The Impeachment Judgment Clause Does Not Make 
Senate Conviction A Prerequisite To Criminal Prosecu-
tion Of A Former President    
The Impeachment Judgment Clause provides fur-
ther reason to reject petitioner’s novel claim of absolute 
criminal immunity.  That Clause provides: 
Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and disqualifi-
cation to hold and enjoy any Office of honor, Trust or 
Profit under the United States:  but the Party con-
victed shall nevertheless be liable and subject to In-
dictment, Trial, Judgment and Punishment, accord-
ing to Law. 
U.S. Const. Art. I, § 3, Cl. 7.  Although much of peti-
tioner’s brief is devoted to arguments that necessarily 
imply that a former President can never face criminal 
prosecution, he acknowledges, as he must, that the 
Clause expressly contemplates such prosecutions.  Pe-
titioner attempts to reconcile that necessary concession 
with his position by maintaining (Br. 16-22) that the 
32 
 
Clause implicitly immunizes a former President from 
prosecution unless he has first been impeached by the 
House and convicted by the Senate for the same or 
closely related official conduct.  That argument lacks 
merit.   
1. The text of the Impeachment Judgment Clause 
affords no support for petitioner’s claim.  The first part 
of the Clause limits Congress’s remedies to removal of 
an officer and disqualification from holding office in the 
future.  The second part of the Clause explains that, de-
spite conviction after an impeachment trial, a party con-
victed “shall nevertheless be liable and subject to In-
dictment, Trial, Judgment and Punishment, according 
to Law.”  U.S. Const. Art. I, § 3, Cl. 7.  The text thus 
clarifies that an official who is impeached and convicted 
is “nevertheless” exposed to criminal prosecution in the 
courts of law; he has no double-jeopardy defense.  But 
as the court of appeals noted, “[t]he text says nothing 
about non-convicted officials.”  J.A. 47.   
Petitioner’s contrary assertion (Br. 17) that the 
phrase “Party convicted” in the Impeachment Judg-
ment Clause requires that an officer be both impeached 
and convicted before that officer may face criminal 
prosecution leads to structurally implausible results at 
odds with historical practice.  Under his interpretation 
of the text, all federal officers, not just the President, 
would have to be impeached and convicted before pros-
ecution.  Although petitioner contends (Br. 19-20) that 
Presidents have a special status under the Clause, the 
Constitution itself refutes that claim.  The Framers pro-
vided a separate rule for presidential impeachments in 
the immediately preceding clause (requiring the Chief 
Justice to preside, see U.S. Const. Art. I, § 3, Cl. 6), but 
33 
 
wrote no similar presidential exception into the Im-
peachment Judgment Clause. 
Petitioner’s proposed rule would also raise separa-
tion-of-powers concerns by giving Congress a veto over 
the Executive’s decision to prosecute—a decision over 
which the Executive Branch has “exclusive authority 
and absolute discretion.”  Nixon, 418 U.S. at 693.  And 
history reflects a clear separation between impeach-
ment and prosecution.  Although scores of federal offic-
ers have been criminally prosecuted throughout our his-
tory, fewer than two dozen officers have ever been im-
peached by the House, with only eight—all federal 
judges—convicted in the Senate.  See Elizabeth Rybicki 
& Michael Greene, Cong. Research Serv., R45769, The 
Impeachment Process in the House of Representatives 
(2024).  And in the few cases in which both procedures 
have been invoked, prosecution has regularly preceded 
impeachment.  See, e.g., Nixon v. United States, 506 
U.S. 224, 226 (1993) (impeachment following prosecu-
tion of Article III judge).  Courts have thus uniformly 
rejected the claim that criminal prosecution may occur 
only after impeachment and conviction.  See United 
States v. Claiborne, 727 F.2d 842, 845 (9th Cir.) (per cu-
riam), cert. denied, 469 U.S. 829 (1984); United States 
v. Hastings, 681 F.2d 706, 710 (11th Cir. 1982), stay de-
nied, 459 U.S. 1094, cert. denied, 459 U.S. 1203 (1983); 
United States v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.) 
(per curiam), cert. denied, 417 U.S. 976 (1974). 
2. Petitioner’s contention that impeachment must 
precede criminal prosecution also misapprehends the 
distinct roles that impeachment and prosecution play 
under the Constitution.  The impeachment process is, 
by design, a political remedy for the dangers to govern-
ance posed by an office holder who has committed 
34 
 
“Treason, Bribery, or other high Crimes and Misde-
meanors.”  U.S. Const. Art. II, § 4.  The Constitution 
contemplates that Congress will weigh the need for re-
moval of an official from office by evaluating his fitness 
for continued or future exercise of governmental power.  
That process does not depend on rigorously adjudicat-
ing facts and applying law, or on finding a criminal vio-
lation; it is inherently political.   
Unlike in the criminal justice system, Congress may 
decide not to impeach or convict for reasons that have 
little or no connection to the nature of the evidence or 
the officer’s culpable conduct.  The disruptive conse-
quences of removal from office may be too great.  The 
political alignment of Congress may prevent impeach-
ment and conviction, without regard to the officer’s con-
duct. The culpable conduct may come to light only after 
the President has left office or may occur so close to the 
end of the President’s term that his impending depar-
ture from office makes impeachment seem less urgent.  
Or, as here, the impeachment trial could occur only af-
ter the President has left office, obviating the need for 
removal.  The Senate has never convicted a former offi-
cial, and Senators at petitioner’s impeachment trial ex-
pressed doubt about their power to do so.  See, e.g., 167 
Cong. Rec. S736 (daily ed. Feb. 13, 2021).  All of those 
scenarios further confirm that petitioner’s novel im-
peachment-first theory of criminal liability is untenable.    
In contrast to impeachment, the criminal process 
produces legal, not political, results.  For that reason, 
petitioner’s extrapolation (Br. 29) from “[t]he recent 
history of Presidential impeachment” is inapt.  Because 
impeachment is intrinsically political, experience with 
impeachment provides no basis for speculating that 
criminal prosecutions will follow the same path.  And 
35 
 
basic structural features of the federal system confirm 
that they will not.  Prosecutions do not grow out of “in-
ter-branch conflict” (ibid.), but proceed from institu-
tions that apply the facts and the law.  And they unfold 
under judicial supervision to prevent any abuses.  See 
pp. 22-24, supra.   Petitioner’s further claim (Br. 34) 
that DOJ “recognizes that the prosecution of a Presi-
dent is ‘necessarily political’ ” distorts the reasoning of 
the opinion he cites.  The OLC opinion petitioner quotes 
addresses prosecution of a sitting President.  See Ame-
nability to Indictment, 24 Op. O.L.C. 222, supra.  Inca-
pacitating a sitting President through criminal prose-
cution is tantamount to removal, and thus prosecution 
in that context is “in some respects, necessarily politi-
cal.”  Id. at 230 (emphasis added).  Prosecution itself is 
not.  And prosecution of a former President does not 
raise concerns about the impact on an incumbent Pres-
ident that prompted OLC’s statement.  To the contrary, 
OLC concluded that “an immunity from prosecution for 
a sitting President would not preclude such prosecution 
once the President’s term is over or he is otherwise re-
moved from office by resignation or impeachment.”  Id. 
at 255.   
3. Neither historical sources nor DOJ policy sup-
ports petitioner’s impeachment-first rule.  Petitioner in-
vokes (Br. 17-18, 33-34) three of Alexander Hamilton’s 
essays in The Federalist Nos. 65, 69, and 77 (Jacob E. 
Cook ed. 1961).  None states that conviction by the Sen-
ate is a prerequisite to a former President’s criminal 
prosecution.  Hamilton’s essays instead explained why 
the Supreme Court was not the proper body to serve as 
an impeachment court, id. No. 65, how a President dif-
fered from the British monarch, id. No. 69, and that, de-
spite the President’s formidable powers, strong 
36 
 
constitutional safeguards existed to protect the Nation, 
id. No. 77.  Hamilton’s discussions therefore focused on 
the constitutional processes for remedying misconduct 
by a sitting President; they do not suggest that a former 
President could not be prosecuted unless he was first 
impeached and convicted.     
Petitioner fares no better with his other historical 
sources.  See Br. 18-19.  Petitioner contends that Chief 
Justice Marshall and Charles Lee (who was not Attor-
ney General when he argued Marbury, as petitioner im-
plies) advocated an impeachment-first rule.  But that 
contention is premised on petitioner’s flawed argument 
that courts cannot review a President’s alleged criminal 
conduct under the reasoning in Marbury and its prog-
eny.  See pp. 38-40, infra.  And Justice Joseph Story 
never endorsed the view that criminal prosecution was 
available only following impeachment and conviction for 
the same conduct; indeed, he explicitly rejected it.  See 
2 Joseph Story, Commentaries on the Constitution of 
the United States §§ 780-781 (1833) (observing that the 
Constitution separated an impeachment trial, with its 
exclusive remedies of removal and disqualification, 
from a trial “in the common tribunals of justice” to en-
sure that “a second trial for the same offence could be 
had, either after an acquittal, or a conviction in the court 
of impeachments”). 
 
Those historical sources and the DOJ materials that 
petitioner cites (Br. 19-22) reflect the longstanding De-
partment position that although a sitting President en-
joys temporary immunity from criminal prosecution—
for all conduct, public and private—he may be prose-
cuted after leaving office.  Amenability to Indictment, 
24 Op. O.L.C. at 255; see also Brett M. Kavanaugh, The 
President and the Independent Counsel, 86 Geo. L.J. 
37 
 
2133, 2161 (1998) (noting that if Congress declines to 
“impeach and remove” a sitting President, he cannot 
face criminal prosecution “until his term in office ex-
pires”).  Contrary to petitioner’s implication (Br. 19-22), 
neither OLC nor former Solicitor General Robert Bork 
expressed the view that impeachment and conviction 
were conditions precedent to federal criminal prosecu-
tion of a President.  They instead reasoned that once a 
President has left office—whether through impeach-
ment and conviction, resignation, or the end of his 
term—he may face federal criminal prosecution like any 
other citizen.14  Amenability to Indictment, 24 Op. 
O.L.C. at 255; Memorandum for the United States Con-
cerning the Vice President’s Claim of Constitutional 
Immunity, at 6-7, In re Proceedings of the Grand Jury 
Impaneled December 5, 1972: Application of Spiro T. 
Agnew, Vice President of the United States, No. 73-965 
(D. Md.) (filed Oct. 5, 1973).  Their conclusions therefore 
accord with Chief Justice Marshall’s statement that 
“the president is elected from the mass of the people, 
and, on the expiration of the time for which he is elected, 
 
14 Petitioner’s account (Br. 28) of OLC’s conclusion on the tempo-
rary immunity of a sitting President from criminal prosecution in-
accurately extends that opinion’s rationales to the distinct context 
of a former President’s amenability to prosecution—despite OLC’s 
explicit conclusion that a former President may face prosecution.  
See Amenability to Indictment, 24 Op. O.L.C. at 255 & n.32, 257.  
OLC relied on the ways in which the stigma of criminal charges and 
the distraction they would bring would interfere with a sitting Pres-
ident’s performance of his constitutional duties, as well as the incon-
gruity of de facto removing a President from office by prosecution 
given the constitutional remedy of impeachment for that purpose.  
Id. at 254, 258.  Those rationales do not apply to prosecution of a 
former President: he has no constitutional duties and no office to 
leave.   
38 
 
returns to the mass of the people again.”  United States 
v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 
14692D).                
F. Petitioner’s Understanding Of Marbury And His Other 
Remaining Arguments Lack Merit 
1. Relying on the Vesting Clause, U.S. Const. Art. 
II, § 1, Cl. 1 (“The executive Power shall be vested in a 
President of the United States of America”), and Mar-
bury, supra, petitioner argues that a President’s official 
conduct “can never be examinable by the courts.”  Br. 
11-16, 30, 47 (quoting Marbury, 5 U.S. (1 Cranch) at 
166).  But petitioner’s position that a President may be 
criminally prosecuted following impeachment and Sen-
ate conviction is fundamentally inconsistent with his 
reading of Marbury.  He admits (Br. 16) that courts can 
examine official presidential acts if the former Presi-
dent has been impeached and convicted.  If the judiciary 
can directly examine a former President’s official acts 
in that context, Article III courts unquestionably have 
the constitutional authority and capacity to preside over 
such prosecutions.   
Petitioner’s interpretation of Marbury also fails on 
its own terms.  It is true that courts cannot enter an in-
junction against a sitting President directing his per-
formance of official acts.  See Franklin, 505 U.S. at 826-
828 (Scalia, J., concurring in part and concurring in the 
judgment); see also Martin v. Mott, 25 U.S. (12 Wheat.) 
19 (1827).  But that protection against judicial direction 
of the President’s ongoing conduct of office does not 
suggest that courts are disabled from holding a former 
President accountable when his actions violate federal 
criminal law.   
The exercise of judicial power to review presidential 
acts in certain circumstances dates from the early years 
39 
 
of the Republic and continues to this day.  See, e.g., 
Trump v. Hawaii, 585 U.S. 667 (2018); Medellin, 552 
U.S. 491; Dames & Moore, 453 U.S. 654; Youngstown, 
343 U.S. 579; Little v. Barreme, 6 U.S. (2 Cranch) 170 
(1804) (Marshall, C.J.).  Petitioner suggests (Br. 15) 
that the review of official presidential acts takes place 
through the actions against the President’s subordi-
nates because of judicial incapacity to exercise any au-
thority “directly over the President’s official acts.”  
That claim contradicts the passage from Marbury on 
which he repeatedly relies, which discussed review of a 
subordinate’s acts as an agent for the President.  5 U.S. 
(1 Cranch) at 166.  Beyond that, the principle applies to 
judicial control over the President’s ongoing admin-
istration of the government; it has nothing to do with 
potential criminal prosecution once the President has 
left office.   
Petitioner likewise derives no support from Missis-
sippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867).  Pet. Br. 
12, 31-32.  There, the Court held that it could not issue 
an injunction to control the President’s enforcement of 
the Reconstruction Acts.  71 U.S. (4 Wall.) at 500; see 
Fitzgerald, 457 U.S. at 753 n.34.  But the Court declined 
to “express[] any opinion on the broader issues  * * *  
whether, in any case, the President of the United States 
may be required, by the process of this court, to per-
form a purely ministerial act under a positive law, or 
may be held amenable, in any case otherwise than by 
impeachment for crime.”  Johnson, 71 U.S. (4 Wall.) at 
498.  Johnson’s holding that a sitting President’s acts 
are not susceptible to injunctions against him in his of-
ficial capacity therefore says nothing about whether a 
former President can be prosecuted under federal crim-
inal law. 
40 
 
Finally, Fitzgerald’s civil-immunity ruling is not a 
“‘bookend to Marshall’s ruling’ in Marbury.”  Pet. Br. 
14 (quoting Vance, 591 U.S. at 798).  Fitzgerald in fact 
reaffirmed that courts can exercise “jurisdiction over 
the President,” 457 U.S. at 753-754, and mentioned 
Marbury only in a footnote to refute an argument ad-
vanced by the dissent, id. at 754 n.37.  And more re-
cently, this Court invoked Marbury for precisely the 
opposite of the rule petitioner urges, stating that “when 
the President takes official action, the Court has the au-
thority to determine whether he has acted within the 
law.” Clinton, 520 U.S. at 703.  The Court supported 
that statement by citing Youngstown, supra, which it 
described as “an application of the principle estab-
lished” in Marbury that it “is emphatically the province 
and duty of the judicial department to say what the law 
is.”  520 U.S. at 703 (quoting Marbury, 5 U.S. (1 Cranch) 
at 177).  The actual historical bookends that govern this 
case are Chief Justice Marshall’s decision in Burr 
through the Court’s decision in Vance: each decision ap-
plies the principle that Presidents are amenable to ju-
dicial process and that no person is above the law.  
Vance, 591 U.S. at 793-797 (discussing Burr).  
2. Petitioner contends (Br. 22) that the lack of any 
prosecutions of former Presidents until this case re-
flects the settled conclusion that criminal immunity pre-
cludes such a prosecution.  But this prosecution is a his-
torical first not because of any assumption about im-
munity but instead because of the singular gravity of 
the alleged conduct.  The indictment describes peti-
tioner’s efforts to “remain in power despite losing the 
2020 election.”  J.A. 42.  The severity, range, and de-
mocracy-damaging nature of the alleged crimes are 
unique in American history.  Other than former 
41 
 
President Nixon, whose pardon precluded criminal 
prosecution, petitioner can point to no former President 
alleged to have engaged in remotely similar conduct.      
In listing presidential conduct that he asserts was 
criminal (Br. 22-24), petitioner makes no effort to exam-
ine the specifics of any criminal statutes, consider rele-
vant legal defenses, or address the threshold require-
ment that “the admissible evidence will probably be suf-
ficient to obtain and sustain a conviction.”  Justice Man-
ual § 9-27.220 (Grounds for Commencing or Declining 
Prosecution).  Accusations leveled in political discourse 
do not constitute evidence.   
Petitioner’s examples also fail to prove his point.  
Even if it is true that John Quincy Adams and Henry 
Clay agreed to exchange political support for an ap-
pointment following the election of 1824, see Rami Fak-
houri, The Most Dangerous Blot in Our Constitution: 
Retiring the Flawed Electoral College ‘Contingent Pro-
cedure,’ 104 Nw. U. L. Rev. 705, 719-720 (2010), Adams 
was a presidential candidate, not the President, and pe-
titioner fails to explain how the asserted political deal 
constituted a crime.  See United States v. Blagojevich, 
794 F.3d 729, 734 (7th Cir. 2015) (“[A] proposal to trade 
one public act for another, a form of logrolling, is funda-
mentally unlike the swap of an official act for a private 
payment.”), cert. denied, 577 U.S. 1234 (2016).  Peti-
tioner likewise identifies no court order or criminal stat-
ute that would have applied to President Jackson’s de-
cision not to send federal forces to prevent Georgia of-
ficials from interfering with the Cherokee following this 
Court’s decision in Worcester v. Georgia, 31 U.S. (6 
Pet.) 515 (1832).  See generally Joseph C. Burke, The 
Cherokee Cases: A Study in Law, Politics, and Moral-
ity, 21 Stan. L. Rev. 500 (1969).   
42 
 
Petitioner’s 20th and 21st century examples are sim-
ilarly flawed.  He identifies no criminal statutes that 
could have validly applied to President Roosevelt’s de-
cision to intern Japanese Americans during World War 
II, President Clinton’s decision to launch military 
strikes in the Middle East, or President Obama’s deci-
sion to launch a drone strike abroad.  Those examples 
involved quintessential exercises of the President’s 
Commander-in-Chief power during war or to protect 
the Nation from foreign threats, see U.S. Const. Art. II, 
§ 2, Cl. 1.  Attempts by Congress to regulate the Presi-
dent’s exercise of those authorities through the criminal 
laws would raise the sort of serious separation-of-pow-
ers concerns that are absent here.  See pp. 26-30, supra.  
And petitioner’s assertion (Br. 23) that President Clin-
ton engaged in an “illegal quid pro quo”—granting a 
pardon in exchange for a thing of value—rests on spec-
ulation.15  Finally, petitioner makes no effort to support 
his contentions (Br. 23) that President George W. Bush 
made knowingly false statements about weapons of 
mass destruction in Iraq or that any of the conduct he 
ascribes to President Biden would violate a criminal 
law. 
3. Petitioner’s invocation (Br. 24-25) of common-law 
immunity doctrine is misplaced.  The Court has 
acknowledged that common-law immunity doctrine is of 
limited use because “the Presidency did not exist 
through most of the development of common law.”  See 
Fitzgerald, 457 U.S. at 747-748; see also Vance, 591 U.S. 
 
15 See Josh Gerstein, Comey ‘enthusiastic’ about Bill Clinton 
probe in 2001, FBI memo says, Politico, Jan. 18, 2017 (explaining 
that FBI closed the investigation in 2005 with no charges filed), 
https://www.politico.com/story/2017/01/james-comey-fbi-bill-clinton- 
233808. 
43 
 
at 801-802.  And critically, for judges and prosecutors, 
absolute civil immunity has never implied criminal im-
munity.  J.A. 27-32.  The Court has instead reasoned 
that despite absolute immunity from civil damages 
claims, judges and prosecutors are “subject to criminal 
prosecutions as are other citizens.”  Dennis v. Sparks, 
449 U.S. 24, 31 (1980) (judges); Imbler v. Pachtman, 424 
U.S. 409, 429 (1976) (prosecutors).  The recognition that 
civil immunity does not imply criminal immunity for 
these officials has deep roots in the law, e.g., Ex parte 
Virginia, 100 U.S. 339, 348 (1880), and it equally applies 
here.   
Indeed, exposure to criminal liability is one of the 
justifications for civil immunity.  Criminal prosecutions 
ensure that, despite immunity from private civil dam-
ages actions, official misconduct is adequately punished 
and deterred.  Accordingly, this Court has “never held 
that the performance of the duties of judicial, legisla-
tive, or executive officers, requires or contemplates the 
immunization of otherwise criminal deprivation of con-
stitutional rights.”  O’Shea v. Littleton, 414 U.S. 488, 
503 (1974).  “On the contrary, the judicially fashioned 
doctrine of official immunity does not reach ‘so far as to 
immunize criminal conduct proscribed by an Act of Con-
gress.’”  Ibid. (quoting Gravel v. United States, 408 U.S. 
606, 627 (1972)).16   
 
16 Petitioner suggests (Br. 25) that Spalding v. Vilas, 161 U.S. 483 
(1896), recognized judicial immunity from criminal prosecution.  But 
the language in Spalding was dicta relying on a state case from 
1810, see id. at 494 (discussing Yates v. Lansing, 5 Johns. 282 (N.Y. 
Sup. Ct. 1810), aff’d, 9 Johns. 395 (N.Y. 1811)), and is inconsistent 
with this Court’s more recent pronouncements in O’Shea, Imbler, 
and Dennis. 
44 
 
Likewise, the Speech or Debate Clause, U.S. Const. 
Art. I, § 6, Cl. 1, does not support petitioner’s immunity 
claim.  No similar textual immunity applies to Presi-
dents.  And history explains the distinctive reasons for 
protecting legislators.  The Clause arose in response to 
British kings’ use of “the criminal and civil law to sup-
press and intimidate critical legislators,” United States 
v. Johnson, 383 U.S. 169, 178 (1966), where “judges 
were often lackeys of the Stuart monarchs.”  Id. at 181.  
That history of interbranch abuse against legislators 
has no parallel here.  And structural safeguards protect 
against any such abuses with respect to potential crim-
inal prosecution of former Presidents under federal law.  
See pp. 20-24, supra.    
II.   EVEN IF A FORMER PRESIDENT HAS SOME IMMUN-
ITY FROM FEDERAL CRIMINAL PROSECUTION FOR 
OFFICIAL ACTS, THIS PROSECUTION SHOULD PRO-
CEED 
Even assuming that a former President is entitled 
to some immunity for official acts, that immunity 
should not be held to bar this prosecution.  First, a 
President’s alleged criminal scheme to overturn an elec-
tion and thwart the peaceful transfer of power to his 
lawfully elected successor is the paradigmatic example 
of conduct that should not be immunized, even if other 
conduct should be.  Second, at the core of the charged 
conspiracies is a private scheme with private actors to 
achieve a private end: petitioner’s effort to remain in 
power by fraud.  Those allegations of private miscon-
duct are more than sufficient to support the indictment.  
Thus, even if the Court determines that some form of 
official-act immunity exists and may apply to some acts 
alleged in this case, the Court should remand so the 
45 
 
district court can address the issues through eviden-
tiary and instructional rulings at trial.                
A. No Form Of Official Immunity Should Preclude Trial 
On The Indictment In This Case 
This case should be remanded for trial because any 
novel immunity from criminal liability for a former 
President’s official acts should not apply to the allega-
tions in this case.  A President’s alleged criminal scheme 
to use his official powers to overturn the presidential 
election and thwart the peaceful transfer of power frus-
trates core constitutional provisions that protect de-
mocracy.  See J.A. 40-43.  These provisions include the 
term-of-office clause, see U.S. Const. Art. II, § 1, Cl. 1; 
the provision for electing Presidents, see id. Art. II,  
§ 1, Cl. 2; and the installation-of-successor provision in 
the 20th Amendment.  Petitioner’s concern about 
chilling official conduct that violates those provisions 
rings hollow because no President has an Article II in-
terest in using crimes to give himself a second term af-
ter an election he lost.  Nor would it be a “gerryman-
dered approach,” Pet. Br. 47, to focus on the specific al-
legations that petitioner conspired with others “to over-
turn the legitimate results of the 2020 presidential elec-
tion by using knowingly false claims of election fraud,” 
J.A. 183.  To the contrary, a holding that petitioner has 
no immunity from the alleged crimes would suffice to 
resolve this case, leaving potentially more difficult 
questions that might arise on different facts for decision 
if they are ever presented.  See Ashwander v. TVA, 297 
U.S. 288, 347 (1936) (Brandeis, J., concurring) (describ-
ing as a hallmark principle of judicial restraint that 
“[t]he Court will not formulate a rule of constitutional 
law broader than is required by the precise facts to