In The Supreme Court of The United States: P D J. T, v. U S A

No.
_____
In the Supreme Court of the United States

PRESIDENT DONALD J. TRUMP,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
On Application for Stay of the Mandate To Be Issued by the

United States Court of Appeals for the District of Columbia Circuit
APPLICATION FOR A STAY OF THE D.C. CIRCUIT’S MANDATE PENDING

THE FILING OF A PETITION FOR WRIT OF CERTIORARI
LAURO & SINGER JAMES OTIS LAW GROUP, LLC

John F. Lauro D. John Sauer
Gregory M. Singer Counsel of Record
400 N. Tampa St., 15th Fl. William O. Scharf
Tampa, FL 33602 Michael E. Talent
(813) 222-8990 Kenneth C. Capps
[email protected] 13321 N. Outer Forty Rd.
Suite 300
BLANCHE LAW St. Louis, Missouri 63017
Todd Blanche (314) 562-0031
Emil Bove [email protected]
99 Wall St., Suite 4460
New York, NY 10005
(212) 716-1250
[email protected]
QUESTIONS PRESENTED
The questions presented are:
I. Whether the doctrine of absolute presidential immunity includes immunity from
criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer
perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982)
(quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).
II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles
of double jeopardy foreclose the criminal prosecution of a President who has been impeached
and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies
the criminal charges.
i
PARTIES TO THE PROCEEDING
The applicant is President Donald J. Trump (“President Trump”).
The respondent is the United States of America (“Special Counsel” or “government”).
ii
RELATED PROCEEDINGS
United States District Court (D.D.C.):

• United States v. Trump, No. 23-cr-257 (Dec. 1, 2023)
United States Court of Appeals (D.C. Cir.):

• United States v. Trump, No. 23-3190 (opinion issued Dec. 8, 2023)
• United States v. Trump, No. 23-3228 (opinion issued Feb. 6, 2024)
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................................................................................................... i
PARTIES TO THE PROCEEDING ......................................................................................... ii
RELATED PROCEEDINGS.................................................................................................... iii
TABLE OF CONTENTS...........................................................................................................iv
TABLE OF AUTHORITIES ...................................................................................................... v
INTRODUCTION ...................................................................................................................... 1
STATEMENT ............................................................................................................................ 4
I. President Trump Was Indicted for His Official Acts as President. .............................. 4
II. The Lower Courts Incorrectly Deny President Trump’s Immunity Claims. ................ 6
ARGUMENT.............................................................................................................................. 8
I. There Is a Reasonable Probability That This Court Will Grant Certiorari. ................. 9
A. The Case Raises Important Questions of Federal Law. .......................................... 9
B. The D.C. Circuit’s Opinion Conflicts With Decisions of This Court. .................... 11
II. There Is a Significant Possibility of Reversal. ............................................................ 11
A. The Executive Vesting Clause and Marbury v. Madison. ..................................... 12
B. “The Presuppositions of Our Political History.” .................................................... 21
C. The Likelihood of Chilling Presidential Action. .................................................... 26
III. There Is a Likelihood of Irreparable Harm Absent the Stay. .................................... 31
A. Absent a Stay, President Trump Will Immediately Be Required to Bear the

Burdens of Prosecution and Trial. ......................................................................... 32
B. Conducting the Criminal Trial of President Trump Will Inflict Grave First
Amendment Injuries on Millions of American Voters. .......................................... 33
IV. The Balancing of Equities Strongly Favors a Stay. .................................................... 35
CONCLUSION ........................................................................................................................ 39
APPENDIX
iv
TABLE OF AUTHORITIES
Cases Pages(s)
Abney v. United States,

431 U.S. 651 (1977) ............................................................................................................ 32
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................................ 32
Barr v. Matteo,
360 U.S. 564 (1959) .............................................................................................................. i
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982) ............................................................................................................ 35
Behrens v. Pelletier,
516 U.S. 299 (1996) ............................................................................................................ 32
Belk v. Charlotte-Mecklenburg Bd. of Educ.,

211 F.3d 853 (4th Cir. 2000) .............................................................................................. 39
Blassingame v. Trump,
87 F.4th 1 (D.C. Cir. 2023) ...............................................................................................6-7
Butz v. Economou,
438 U.S. 478 (1978) ............................................................................................................ 21
Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas,
448 U.S. 1327 (1980) ...................................................................................................... 9, 12
Chi. & S. Air Lines v. Waterman S.S. Corp.,

333 U.S. 103 (1948) ............................................................................................................ 13
Clark v. United States,

289 U.S. 1 (1933)................................................................................................................ 27
Clinton v. Jones,
520 U.S. 681 (1997) ............................................................................................................ 15
Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) ........................................................................................................ 37
Digital Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863 (1994) ............................................................................................................ 32
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................................................ 34
v
Ferri v. Ackerman,
444 U.S. 193 (1979) ............................................................................................................ 26
Franklin v. Massachusetts,
505 U.S. 788 (1992) ........................................................................................... 13-15, 17, 28
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) ............................................................................................................ 21
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ............................................................................................................ 32
Helstoski v. Meanor,
442 U.S. 500 (1979) ............................................................................................................ 32
In re Trump,
958 F.3d 274 (4th Cir. 2020) ............................................................................. 14-15, 18, 21
Karcher v. Daggett,
455 U.S. 1303 (1982) ....................................................................................... 8-9, 11, 31, 35
Kendall v. United States ex rel. Stokes,

37 U.S. 524 (1838) .............................................................................................................. 19
Kusay v. United States,

62 F.3d 192 (7th Cir. 1995) ................................................................................................ 38
Landis v. N. Am. Co.,

299 U.S. 248 (1936) ............................................................................................................ 36
Little v. Barreme,
6 U.S. (2 Cranch) 170 (1804) ............................................................................................. 19
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................................................... 3, 11-13, 16-22, 29
Martin v. Mott,
25 U.S. (12 Wheat.) 19 (1827) ...................................................................................... 16, 29
McCulloch v. Maryland,
17 U.S. 316 (1819) .............................................................................................................. 22
McIntyre v. Ohio Elec. Comm’n,

514 U.S. 334 (1995) ............................................................................................................ 34
McLeod v. Gen. Elec. Co.,

87 S. Ct. 5 (1966)............................................................................................................ 9, 12
vi
Meyer v. Grant,
486 U.S. 414 (1988) ............................................................................................................ 34
Midland Asphalt Corp. v. United States,

489 U.S. 794 (1989) ............................................................................................................ 33
Mississippi v. Johnson,
71 U.S. 475 (1866) .................................................................................. 11, 13-15, 17-18, 20
Mistretta v. United States,

488 U.S. 361 (1989) ............................................................................................................ 22
Mitchell v. Forsyth,
472 U.S. 511 (1985) ............................................................................................................ 32
Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971) ............................................................................................................ 34
Morrison v. Olson,
487 U.S. 654 (1988) ................................................................................................ 11, 25, 31
Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) .............................................................................. 14, 16, 20
NFIB v. OSHA,
595 U.S. 109 (2022) ............................................................................................................ 21
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ................................................................. i, 1-2, 6, 11, 15, 20, 22, 26-28
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) ............................................................................................ 38
N.L.R.B. v. Noel Canning,

573 U.S. 513 (2014) ............................................................................................................ 22
Packingham v. North Carolina,

582 U.S. 98 (2017) .............................................................................................................. 35
Pearson v. Callahan,
555 U.S. 223 (2009) ............................................................................................................ 32
P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139 (1993) ............................................................................................................ 32
Printz v. United States,

521 U.S. 898 (1997) ............................................................................................................ 22
vii
Public Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 (1989) ............................................................................................................ 17
Red Lion Broad. Co. v. F.C.C.,

395 U.S. 367 (1969) ............................................................................................................ 35
Republican Party of Minnesota v. White,

536 U.S. 765 (2002) ............................................................................................................ 35
Seila Law, LLC v. CFPB,

140 S. Ct. 2183 (2020) ........................................................................................................ 21
Shiffman v. Selective Serv. Bd. No.5,

88 S. Ct. 1831 (1968) ............................................................................................................ 9
Snyder v. Phelps,
562 U.S. 443 (2011) ............................................................................................................ 34
Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................................................................................ 34
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) ................................................................................. 14, 19-20
Times-Picayune Publ’g Corp. v. Schulingkamp,

419 U.S. 1301 (1974) ...................................................................................................... 8, 12
Trump v. Vance,
140 S. Ct. 2412 (2020) ........................................................................................................ 30
United States v. Burr,

25 F. Cas. 30 (C.C.D.Va. 1807) .......................................................................................... 21
United States v. Johnson,

383 U.S. 169 (1966) ............................................................................................................ 21
United States v. Lee,

106 U.S. 196 (1882) ............................................................................................................ 20
United States v. Nixon,

418 U.S. 683 (1974) .......................................................................................... 10, 28, 33, 38
United States v. Philip Morris, Inc.,

314 F.3d 612 (D.C. Cir. 2003) ............................................................................................ 36
Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) ............................................................................................................ 35
viii
Whalen v. Roe,
423 U.S. 1313 (1975) ............................................................................................................ 8
White v. Florida,
458 U.S. 1301 (1982) ...................................................................................................... 8, 11
Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ...................................................................................................... 14, 19
U.S. Constitution, Statutes, Rules
18 U.S.C. § 1512(c)(2) .......................................................................................................... 4, 18
28 U.S.C. § 1291 ...................................................................................................................... 33
D.C. Cir. R. 41(a)(1) ................................................................................................................... 8
H. Res.24, 117th Cong. (2021) ................................................................................................... 4
Sup. Ct. R. 10(c) ................................................................................................................ 2, 9-11
U.S. CONST. art. I, § 3, cl. 7 ................................................................................. i, 16, 20, 28-29
U.S. CONST. art. II, § 1, cl. 1 .................................................................................................... 12
Other Authorities
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, ch. 37, § 1563
(1833), https://lonang.com/library/reference/story-commentaries-us-constitution/sto-337/
............................................................................................................................................ 13
Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, Nat’l
Review (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wages-of-
prosecuting-presidents-over-their-official-acts/ ................................................................ 23
Andrew McCarthy, Thoughts on Biden’s Funding of Terror-Sponsoring UNRWA and D.C.

Circuit’s Delay on Trump Immunity, Nat’l Review (Jan. 31, 2024),
https://www.nationalreview.com/corner/thoughts-on-bidens-funding-of-terror-
sponsoring-unrwa-and-d-c-circuits-delay-on-trump-immunity/ ....................................... 23
Byron York (@ByronYork), X (Dec. 11, 2023),

https://twitter.com/ByronYork/status/1734305076582244850?s=20 ................................ 37
Editorial Board, Jack Smith and the Supreme Court, Wall St. J. (Dec. 16, 2023) ................ 37
ix
Elie Honig, Why Jack Smith Will Never Say the ‘E’ Word, CNN (Dec. 16, 2023),
https://www.cnn.com/videos/politics/2023/12/16/smr-honig-on-smith-vs-election-
calendar.cnn ....................................................................................................................... 37
Francis X. Clines and Steven Lee Myers, Attack on Iraq; The Overview; Impeachment Vote
in House Delayed As Clinton Launches Iraq Air Strike, Citing Military Need to Move
Swiftly, N.Y. Times (Dec. 17, 1998), https://www.nytimes.com/1998/12/17/world/attack-
iraq-overview-impeachment-vote-house-delayed-clinton-launches-iraq-air.html ........... 23
Gary L. Gregg II, George W. Bush: Foreign Affairs, UVA Miller Center,
https://millercenter.org/president/-gwbush/foreign-affairs ............................................... 22
Jason Willick, Politics Are Now Clearly Shaping Jack Smith’s Trump Prosecution, Wash.
Post (Dec. 12, 2023), https://www.washingtonpost.com/opinions/2023/12/12/special-
counsel-jack-smith-politicized-prosecution/ ...................................................................... 37
Jason Willick, The Eyebrow-Raising Line in the Trump Immunity Opinion, Wash. Post
(Feb. 7, 2024), https://www.washingtonpost.com/opinions/2024/02/07/trump-immunity-
decision-disclaimer/ ........................................................................................................... 23
Jessie Kratz, The 1824 Presidential Election and the “Corrupt Bargain”, National Archives
(Oct. 22, 2020), https://prologue.blogs.archives.gov/2020/10/22/the-1824-presidential-
election-and-the-corrupt-bargain/ ..................................................................................... 22
Spencer Ackerman, US Cited Controversial Law in Decision to Kill American Citizen by

Drone, The Guardian (June 23, 2014),
https://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-
citizen-awlaki ..................................................................................................................... 23
The Editors, Alien and Sedition Acts, History (June 21, 2023),
https://www.history.com/topics/early-us/alien-and-sedition-acts ..................................... 24
The Editors, Hamas Was Right Under Unrwa’s Nose, Wall St. J. (Feb. 11, 2024),
https://www.wsj.com/articles/hamas-was-right-under-unrwas-nose-tunnels-gaza-israel-
war-f715d219?mod=opinion_lead_pos2 ............................................................................. 24
The Editors, Indian Treaties and the Removal Act of 1830, Office of the Historian, U.S.
Department of State, https://history.state.gov/milestones/1830-1860/indian-treaties .... 24
The Editors, Iran-Contra Scandal Begins with Shredded Documents, History (Nov. 13,
2009), https://www.history.com/this-day-in-history/oliver-north-starts-feeding-
documents-into-the-shredding-machine............................................................................ 23
The Editors, Mexican-American War, Encyclopaedia Britannica (Jan. 2, 2024),

https://www.britannica.com/event/Mexican-American-War/Invasion-and-war ............... 24
THE FEDERALIST NO. 47 .......................................................................................................... 29
x
Tim Arango, Ex-Prosecutor’s Book Accuses Bush of Murder, N.Y. Times (July 7, 2008),
https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html ........................... 22
U.S. Dep’t of Justice, Justice Manual § 9-27.260 (2018) ........................................................ 37
U.S. Dep’t of Justice, Justice Manual § 9-85.500 (2018) ........................................................ 37
U.S. Dep’t of Justice Memorandum, Doc. 28 in Missouri v. Biden, No. 4:21-cv-00287-AGF

(E.D. Mo. filed June 4, 2021) ............................................................................................. 14
U.S. Dep’t of Justice, Reply Brief for Pet’r, In re Trump, No. 18-2486 (4th Cir. filed Feb. 21,
2019) ............................................................................................................................. 14, 18
World Media Troubled by Clinton’s Timing in Airstrikes, CNN (Dec. 18, 1998),
http://edition.cnn.com/WORLD/meast/9812/18/iraq.press/ ............................................... 23
Yogi Berra Museum & Learning Center, “Yogi-isms,” https://yogiberramuseum.org/about-

yogi/yogisms/ ........................................................................................................................ 1
xi
INTRODUCTION
This application is “déjà vu all over again.” Yogi Berra Museum & Learning Center,
“Yogi-isms,” https://yogiberramuseum.org/about-yogi/yogisms/. Two months ago, after the
district court denied President Trump’s claim of Presidential immunity in this criminal case,
the Special Counsel filed a petition for certiorari before judgment asking this Court to
undertake an extraordinary departure from ordinary appellate procedures and decide the
vital and historic question of Presidential immunity on a hyper-accelerated basis. This Court
correctly chose to follow standard judicial process and declined to do so. Now, at the Special
Counsel’s urging, a panel of the D.C. Circuit has, in an extraordinarily fast manner, issued a
decision on President Trump’s claim of immunity and ordered the mandate returned to the
district court to proceed with President Trump’s criminal trial in four business days, unless
this Court intervenes (as it should). App’x 58A. This Court should stay the D.C. Circuit’s
mandate to forestall, once again, an unprecedented and unacceptable departure from
ordinary appellate procedures and allow President Trump’s claim of immunity to be decided
in the ordinary course of justice.
The reasons to do so are compelling. President Trump’s claim that Presidents have
absolute immunity from criminal prosecution for their official acts presents a novel, complex,
and momentous question that warrants careful consideration on appeal. The panel opinion
below, like the district court, concludes that Presidential immunity from prosecution for
official acts does not exist at all. This is a stunning breach of precedent and historical norms.
In 234 years of American history, no President was ever prosecuted for his official acts. Nor
should they be. Presidents “must make the most sensitive and far-reaching decisions
entrusted to any official under our constitutional system.” Fitzgerald, 457 U.S. at 752. Their
decisions are the most politically controversial of any official, and they draw the most
national attention and political ire, making “the President … an easily identifiable target”
1
for politically motivated prosecution. Id. at 753. If the prosecution of a President is upheld,
such prosecutions will recur and become increasingly common, ushering in destructive cycles
of recrimination. Criminal prosecution, with its greater stigma and more severe penalties,
imposes a far greater “personal vulnerability” on the President than any civil penalty. Id.
The threat of future criminal prosecution by a politically opposed Administration will
overshadow every future President’s official acts—especially the most politically
controversial decisions. The President’s political opponents will seek to influence and control
his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of
indictment by a future, hostile Administration, for acts that do not warrant any such
prosecution. This threat will hang like a millstone around every future President’s neck,
distorting Presidential decisionmaking, undermining the President’s independence, and
clouding the President’s ability “‘to deal fearlessly and impartially with’ the duties of his
office.” Id. at 752. Without immunity from criminal prosecution, the Presidency as we know
it will cease to exist.
President Trump’s application easily satisfies this Court’s traditional factors for
granting a stay of the mandate pending en banc review and review on certiorari by this Court.
First, the likelihood that this Court will grant certiorari in the future is extremely
strong. As the Special Counsel emphatically stated in December, “[i]t is of imperative public
importance that [President Trump’s] claims of immunity be resolved by this Court,” and “only
this Court can definitively resolve them.” Pet. for Cert. Before Judgment, United States v.
Trump, No. 23-624 (U.S. filed Dec. 11, 2023), at 2, 3 (“Pet. in No. 23-624”). President Trump’s
claim presents “a quintessential example of ‘an important question of federal law that has
not been, but should be, settled by this Court.’” Id. at 12 (quoting Sup. Ct. R. 10(c)).
2
Second, there is far more than a “fair prospect” that this Court will reverse the
decision below. The panel opinion misapprehends and contradicts the original understanding
of the Executive Vesting Clause and the separation of powers, as interpreted in an unbroken
line of legal and historical precedent going back to Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803). Chief Justice Marshall thought it self-evident that Article III courts cannot sit
in judgment directly over the President’s official acts, which “can never be examinable by the
courts.” Id. at 166. Because “the courts” cannot “examin[e],” id., the President’s official acts,
they cannot enter a criminal judgment against him and imprison him on the basis of those
official acts. Yet the D.C. Circuit’s judgment seemingly authorizes the district court to
conduct a criminal trial of President Trump based on his official acts before this Court
concludes its review of this momentous question—thus subjecting the Presidency to the most
intrusive possible “examin[ation] by the courts,” id., and inflicting one of the gravest wounds
to the separation of powers in our Nation’s history.
Third, absent a stay from this Court, irreparable injury to President Trump is
inevitable. It is axiomatic that President Trump’s claim of immunity is an entitlement not
to stand trial at all, and to avoid the burdens of litigation pending review of his claim. Yet
the D.C. Circuit’s judgment appears to authorize the district court to resume criminal
proceedings immediately, and to conduct President Trump’s criminal trial while his claim is
pending before this Court—and there is strong indication that the district court will do so.
In addition, President Trump is the leading candidate for President in the 2024 election.
Conducting a months-long criminal trial of President Trump at the height of election season
will radically disrupt President Trump’s ability to campaign against President Biden—which
appears to be the whole point of the Special Counsel’s persistent demands for expedition. The
D.C. Circuit’s order thus threatens immediate irreparable injury to the First Amendment
3
interests of President Trump and tens of millions of American voters, who are entitled to
hear President Trump’s campaign message as they decide how to cast their ballots in
November.
This Court should stay the D.C. Circuit’s mandate pending resolution of President
Trump’s petition for certiorari in this Court and subsequent proceedings on the merits. As
additional relief, President Trump also requests that this Court stay the D.C. Circuit’s
mandate pending the resolution of a petition for en banc consideration in that court, before
the filing (if necessary) of his petition for certiorari in this Court.
STATEMENT
I. President Trump Was Indicted for His Official Acts as President.
On August 1, 2023, President Trump was indicted on four counts—including two
counts alleging violations of 18 U.S.C. § 1512(c)(2)1—for his alleged conduct following the
outcome of the 2020 Presidential election. D. Ct. Doc. 1. All the conduct alleged in the
indictment occurred between November 2020 and early January 2021, while President
Trump was still President. D. Ct. Doc. 1. President Trump was impeached for much of the
same conduct charged in the indictment on January 11, 2021, and acquitted by the U.S.
Senate on February 13, 2021. See H. Res.24, 117th Cong. (2021). The indictment charges
President Trump with five types of conduct, all constituting official acts of the President.
First, it alleges that President Trump, using official channels of communication, made
a series of tweets and other public statements on matters of paramount federal concern,
contending that the 2020 federal election was tainted by fraud and irregularities that should
be addressed by government officials. D. Ct. Doc. 1, ¶¶ 2, 11-12, 19, 32-34, 37, 41-42, 46, 52,
1This is the same statutory section whose interpretation is at issue in Fischer v. United
States, No. 23-5572 (cert. granted Dec. 13, 2023), which is pending before this Court and may
bear directly upon the validity of those charges against President Trump.
4
99, 102, 104 (alleging public statements regarding the federal election and state and federal
officials’ exercise of their official responsibilities with respect to the election); id. ¶¶ 22, 28,
44, 50, 87-88, 90(c), 96(a)-(c), 100(a)-(b), 111, 114 (alleging tweets about the same topics).
Second, the indictment alleges that President Trump communicated with the Acting
Attorney General and officials at the U.S. Department of Justice—which he oversaw as an
integral part of his official duties as chief executive—about investigating suspected election
crimes and irregularities, and possibly appointing a new Acting Attorney General. Id.
¶¶ 10(c), 27, 29, 36, 45, 51, 70-85. These include allegations of a series of communications
urging the Acting Attorney General and Acting Deputy Attorney General to investigate
widespread reports of election fraud, id. ¶¶ 29, 36, 45, 51; and allegations of deliberations
during Oval Office meetings about whether to replace the Acting Attorney General, a
Cabinet-level officer constitutionally appointed by the President, id. ¶¶ 74, 77, 84.
Third, the indictment alleges that President Trump communicated with state officials
about the administration of the federal election and urged them to exercise their official
responsibilities in accordance with the conclusion that the 2020 presidential election was
tainted by fraud and irregularities. Id. ¶¶ 10(a), 15-18, 21, 24, 26, 31, 35, 38-39, 43.
Fourth, the indictment alleges that President Trump communicated with the Vice
President in his capacity as President of the Senate, the Vice President’s official staff, and
other members of Congress to urge them to exercise their official duties in the election
certification process in accordance with President Trump’s contention that the election was
tainted by fraud and irregularities. Id. ¶¶ 10(d), 86-95, 97, 101, 122 (Vice President and his
official staff); id. ¶¶ 115, 119(b)-(c) (attempts to communicate with Members of Congress).
Fifth, the indictment alleges that other individuals organized slates of alternate
electors from seven States to ensure that the Vice President would be authorized to exercise
5
his official duties in the manner urged by President Trump. Id. ¶¶ 53-69. According to the
indictment, these alternate slates of electors were designed to validate the Vice President’s
authority to conduct his official duties as President Trump urged. Id. ¶¶ 10(b), 53.
II. The Lower Courts Incorrectly Deny President Trump’s Immunity Claims.
President Trump filed motions to dismiss the indictment on multiple grounds. As
relevant here, President Trump contended that (1) the indictment must be dismissed because
it brings criminal charges against him based on his official acts as President, and is thus
barred by absolute Presidential immunity from criminal prosecution for official acts, D. Ct.
Doc. 74; and (2) the indictment must be dismissed under the Impeachment Judgment Clause
and principles of double jeopardy because it charges President Trump with conduct for which
he was impeached and acquitted by the U.S. Senate, D. Ct. Doc. 113.
On December 7, 2023, the district court ruled against President Trump’s claims. Pet.
App’x in No. 23-624, at 1a-59a. The district court held that Presidential immunity from
criminal prosecution for official acts does not exist in any circumstance. Id. at 7a. It held
that a federal prosecutor may bring criminal charges against a former President based on
conduct for which he was acquitted during an impeachment proceeding. Id. at 46a.
The district court did not assess whether President Trump’s alleged actions fell within
the “outer perimeter of his official responsibility,” Fitzgerald, 457 U.S. at 755 (quotation
marks omitted), or were official acts on any basis. D. Ct. Doc. 171, at 30. Instead, the district
court held that Presidential immunity from prosecution for official acts does not exist at all.
Id. For the same reason, the district court did not conduct factfinding on this subject or give
President Trump an opportunity to present facts regarding the official nature of his conduct
prior to a potential trial. See Blassingame v. Trump, 87 F.4th 1, 5 (D.C. Cir. 2023).
6
President Trump timely appealed the district court’s judgment to the D.C. Circuit.
The district court stayed proceedings in the district court pending the outcome of the appeal.
D. Ct. Doc. 186, at 2 (quoting Blassingame, 87 F.4th at 29).
On December 11, 2023, the Special Counsel filed a petition for certiorari before
judgment and a motion to expedite in this Court, seeking this Court’s immediate review of
President Trump’s claims on an extraordinarily expedited basis. Pet. in No. 23-624, at 2. On
December 22, 2023, this Court denied the request. Dec. 22, 2023, Order in No. 23-624.
The Special Counsel was, however, able to convince a panel of the D.C. Circuit to hear
President Trump’s claims on an extremely accelerated basis, giving President Trump just ten
days to draft and file his opening brief, only three days to file his reply brief, and setting the
case for oral argument one week later, on January 9, 2024. C.A. Doc. 2031419, 2032082. In
his brief to the D.C. Circuit, President Trump requested, “[i]f the Court affirms the district
court in any respect, … that the Court stay the issuance of its mandate pending further
review, including possible en banc proceedings and/or Supreme Court review.” C.A. App. Br.
55. The Special Counsel, by contrast, “request[ed] the Court to issue the mandate five days
after the entry of judgment,” citing (as it had done to this Court) the supposed, but
nonexistent, “imperative public importance of a prompt resolution of this case.” C.A. Resp.
Br. 65-66.
On February 6, 2024, the D.C. Circuit panel issued a per curiam opinion ruling against
President Trump’s immunity claims, providing an analysis that overlooks and
mischaracterizes many of President Trump’s major arguments. App’x 1A-57A. On the same
day, the D.C. Circuit entered a judgment directing the clerk to issue the mandate to the
district court in four business days if President Trump did not file an application in this Court
to stay the mandate in that time. Id. at 58A. The D.C. Circuit’s judgment directs the Clerk
to issue the mandate after February 12, 2024, unless President Trump “notifies the Clerk in
7
writing that he has filed an application with the Supreme Court for a stay of the mandate
pending the filing of a petition for a writ of certiorari,” in which case “the Clerk is directed to
withhold issuance of the mandate pending the Supreme Court’s final disposition of the
application.” Id. The D.C. Circuit further directed that “[t]he filing of a petition for rehearing
or rehearing en banc will not result in any withholding of the mandate.” Id.
This order departs from the D.C. Circuit’s ordinary procedures, which provide,
consistent with Federal Rule of Appellate Procedure 41(b), that “the court ordinarily will
include as part of its disposition an instruction that the clerk withhold issuance of the
mandate until 7 days after the expiration of the time for filing a petition for rehearing or a
petition for rehearing en banc and, if such petition is timely filed, until 7 days after
disposition thereof.” D.C. Cir. R. 41(a)(1).
On February 12, 2024, as required by the D.C. Circuit’s judgment, President Trump
filed this application to stay the D.C. Circuit’s mandate pending disposition of his petition for
certiorari. President Trump also asks this Court to stay the D.C. Circuit’s mandate pending
resolution of his planned petition for en banc consideration in that court.
ARGUMENT
“The standards for granting a stay of mandate pending disposition of a petition for
certiorari are well established.” White v. Florida, 458 U.S. 1301, 1302 (1982) (Powell, J., in
chambers). “[1] There must be a reasonable probability that four members of the Court would
consider the underlying issue sufficiently meritorious for the grant of certiorari or the
notation of probable jurisdiction; [2] there must be a significant possibility of reversal of the
lower court’s decision; and [3] there must be a likelihood that irreparable harm will result if
that decision is not stayed.” Id. (quoting Times-Picayune Publ’g Corp. v. Schulingkamp, 419
U.S. 1301, 1305 (1974) (Powell, J., in chambers)); accord Karcher v. Daggett, 455 U.S. 1303
(1982) (Brennan, J., in chambers); Whalen v. Roe, 423 U.S. 1313, 1316-17 (1975) (Marshall,
8
J., in chambers). In addition, “in a close case it may be appropriate to ‘balance the equities’—
to explore the relative harms to applicant and respondent, as well as the interests of the
public at large.” Karcher, 455 U.S. at 1305–06.
Further, a stay is more likely warranted where, as here, “[t]he underlying issue in
th[e] case … has not heretofore been passed upon by this Court and is of continuing
importance.” McLeod v. Gen. Elec. Co., 87 S. Ct. 5, 6 (1966) (Harlan, J.). Thus, “the existence
of an important question not previously passed on by this Court” is a factor that weighs in
favor of a stay. Shiffman v. Selective Serv. Bd. No.5, 88 S. Ct. 1831, 1832 n.3 (1968) (Douglas,
J., dissenting); Certain Named and Unnamed Non-Citizen Children and Their Parents v.
Texas, 448 U.S. 1327, 1332 (1980) (Powell, J., in chambers) (holding that a case that “presents
novel and important issues” warrants a stay). Where the appeal “raises a difficult question
of constitutional significance” that “also involves a pressing national problem,” a stay is
warranted. Texas, 448 U.S. at 1331.
Here, each of these traditional factors counsels in favor of granting the stay.
I. There Is a Reasonable Probability That This Court Will Grant Certiorari.
The appeal addresses two issues: whether the President possesses absolute immunity
from criminal prosecution for his official acts, and whether the impeachment and acquittal
of a President forecloses a subsequent criminal prosecution of the President for the same
and/or closely related conduct. The Court is likely to grant a petition for certiorari to review
these questions. Certiorari is warranted when “a United States court of appeals has decided
an important question of federal law that has not been, but should be, settled by this Court,
or has decided an important federal question in a way that conflicts with relevant decisions
of this Court.” Sup. Ct. R. 10(c). Both criteria are satisfied here.
A. The Case Raises Important Questions of Federal Law.
9
First, this case involves “important question[s] of federal law that ha[ve] not been, but
should be, settled by this Court.” Id. As the Special Counsel advised this Court on December
11, 2023, “[t]his case presents a fundamental question at the heart of our democracy: whether
a former President is absolutely immune from federal prosecution” for his official acts. Pet.
for Cert. Before Judgment, United States v. Trump, No. 23-624 (U.S. filed Dec. 11, 2023), at
2 (“Pet. in No. 23-624”). “This case involves a paradigmatic issue of imperative public
importance: the amenability to criminal prosecution of a former President of the United
States for [official] conduct undertaken during his presidency.” Id. at 10. President Trump’s
claim of absolute immunity from criminal prosecution for a President’s official acts “is a
quintessential example of ‘an important question of federal law that has not been, but should
be, settled by this Court.’” Id. at 12 (quoting Sup. Ct. R. 10(c)).
As the Special Counsel urged, “[i]t is of imperative public importance that [President
Trump’s] claims of immunity be resolved by this Court,” id. at 2, and “only this Court can
definitively resolve them,” id. at 3. “[T]his Court” should “grant review” and “resolve the
important immunity question presented here.” Id. at 10. “It requires no extended discussion
to confirm that this case … is at the apex of public importance.” Id. at 10. “The public
importance of the issues presented” in this case “merit this Court’s intervention.” Id. at 12
(quoting United States v. Nixon, 418 U.S. 683, 687 (1974)).
On this point, the parties agree. “An erroneous denial of a claim of presidential
immunity from criminal prosecution unquestionably warrants this Court’s review.” Br. in
Opposition in No. 23-624 (U.S. filed Dec. 20, 2023), at 3 (“BIO in No. 23-624”).
The public importance of Presidential immunity cannot be overstated. As stated
above, an absence of criminal immunity for official acts threatens the very ability of the
President to function properly. Any decision by the President on a politically controversial
10
question would face the threat of indictment by the opposing party after a change in
administrations. All presidential decisions would be exposed to undue, wrongful pressure
from opposing political forces, under a threat of indictment after the President has left office.
The D.C. Circuit’s denial of immunity thus threatens every future President with both
attempts of de facto extortion and blackmail while in office, and years of post-office trauma
at the hands of his or her political opponents. The threat of prosecution will become a political
cudgel used to influence the most sensitive and important Presidential decisions with the
menace of personal vulnerability after leaving office. The D.C. Circuit’s categorical denial of
immunity would forever undermine the independence, authority, and decisiveness of the
Presidency. The more consequential the decision, the more likely that political opponents
will use the threat of wrongful criminal prosecution to bully and extort the President, gravely
weakening the independence of the Presidency, and thus our country as a whole. Cycles of
recrimination are inevitable, thrusting the most sensitive and vital Presidential decisions in
the Nation’s future into a “context” that will be “acrid with the smell of threatened” criminal
prosecution. Morrison v. Olson, 487 U.S. 654, 702 (1988) (Scalia, J., dissenting). All this
directly contradicts the Founders’ careful design, as discussed below.
B. The D.C. Circuit’s Opinion Conflicts With Decisions of This Court.
The D.C. Circuit’s decision also warrants review because it decided important federal
questions “in a way that conflicts with relevant decisions of this Court.” Sup. Ct. R. 10(c). As
discussed below, infra Part II, the D.C. Circuit’s decision conflicts with Marbury v. Madison,
Mississippi v. Johnson, Nixon v. Fitzgerald, and a host of other decisions of this Court.
II. There Is a Significant Possibility of Reversal.
The second factor considers whether there is “a significant possibility of reversal of
the lower court’s decision.” White, 458 U.S. at 1302. A “fair prospect of reversal” suffices.
Karcher, 455 U.S. at 1306. The factor is satisfied when “[t]he issues underlying this case are
11
important and difficult,” and it does not require “anticipating [the Court’s] views on the
merits.” Times-Picayune Publ’g, 419 U.S. at 1309. A stay is appropriate if “petitioner’s
position … cannot be deemed insubstantial,” McLeod, 87 S. Ct. at 6, and the Court need not
“think it more probable than not that” reversal will occur, Texas, 448 U.S. at 1332.
Here, the D.C. Circuit’s opinion mischaracterizes this Court’s case law and commits a
series of fundamental errors. A full accounting of these errors must await merits briefing,
but President Trump highlights a series of independently sufficient bases for reversal here.
A. The Executive Vesting Clause and Marbury v. Madison.
First, the panel opinion’s analysis of the Executive Vesting Clause and Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803), is profoundly wrong.
The Executive Vesting Clause provides that “[t]he executive Power shall be vested in
a President of the United States of America.” U.S. CONST. art. II, § 1, cl. 1. For another
branch to arrogate the “executive Power” to itself, or to purport to dictate how the President
must exercise that authority, is a core violation of the separation of powers. As a direct
corollary, the Clause provides that the Judicial Branch cannot sit in judgment directly over
the President’s official acts, and that any attempt to do so violates the separation of powers.
In Marbury v. Madison, Chief Justice Marshall described this doctrine as foundational
and self-evident. “By the constitution of the United States, the President is invested with
certain important political powers, in the exercise of which he is to use his own discretion,
and is accountable only to his country in his political character, and to his own conscience.”
5 U.S. at 165–66. When it comes to the President’s official acts, “whatever opinion may be
entertained of the manner in which executive discretion may be used, still there exists, and
can exist, no power to control that discretion.” Id. at 166. “[N]othing can be more perfectly
clear than that” the President’s discretionary “acts are only politically examinable.” Id.
12
“Questions … which are, by the constitution and laws, submitted to the executive, can never
be made in this court.” Id. at 170. The President’s official acts, therefore, “can never be
examinable by the courts.” Id. at 166 (emphasis added).
Consistent with this opinion, an unbroken tradition from Marbury to the present
holds that Article III courts lack authority to sit in judgment directly over a President’s
official acts. In 1833, citing Marbury, Justice Story wrote that “[i]n the exercise of his political
powers [the President] is to use his own discretion, and is accountable only to his country,
and to his own conscience. His decision, in relation to these powers, is subject to no control;
and his discretion, when exercised, is conclusive.” 3 J. STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES, ch. 37, § 1563 (1833),
https://lonang.com/library/reference/story-commentaries-us-constitution/sto-337/.
In Mississippi v. Johnson, this Court, citing Marbury, held that Article III courts lack
jurisdiction to enter an injunction directly against the President in the exercise of his official
duties. 71 U.S. 475, 499 (1866). “An attempt on the part of the judicial department of the
government to enforce the performance of such duties by the President might be justly
characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive
extravagance.’” Id. (quoting Marbury, 5 U.S. at 170). “[T]his court has no jurisdiction of a
bill to enjoin the President in the performance of his official duties.” Id. at 501.
In 1948, this Court wrote that “whatever of this order emanates from the President is
not susceptible of review by the Judicial Department.” Chi. & S. Air Lines v. Waterman S.S.
Corp., 333 U.S. 103, 112 (1948). The Judicial Branch cannot “require [the President] to
exercise the ‘executive Power’ in a judicially prescribed fashion.” Franklin v. Massachusetts,
505 U.S. 788, 826 (1992) (Scalia, J., concurring in part and concurring in the judgment). “It
13
is incompatible with his constitutional position that [the President] be compelled personally
to defend his executive actions before a court.” Id. at 827.
Thus, Article III courts lack jurisdiction to enter an injunction directly against the
President in the exercise of his official responsibility, and no court has ever entered a
declaratory judgment against the President in his official acts. The D.C. Circuit observed
that “in Franklin, … [t]he plurality opinion of the Court concluded that ‘in general, this court
has no jurisdiction of a bill to enjoin the President in the performance of his official duties,’
and a majority of the Justices in fact subscribed to this position.” Swan v. Clinton, 100 F.3d
973, 977 (D.C. Cir. 1996) (quoting Franklin, 505 U.S. at 802-03). “With regard to the
President, courts do not have jurisdiction to enjoin him, and have never submitted the
President to declaratory relief.” Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010).
This is also the consistent litigation position of the U.S. Department of Justice, which
oversees the Special Counsel. See, e.g., U.S. Dep’t of Justice, Reply Brief for Pet’r, In re
Trump, No. 18-2486 (4th Cir. filed Feb. 21, 2019), at 4-6 (invoking “the separation-of-powers
principle that ‘courts have no jurisdiction of a bill to enjoin the President in the performance
of his official duties’”) (quoting Mississippi, 71 U.S. at 501) (cleaned up); U.S. Dep’t of Justice
Memorandum, Doc. 28 in Missouri v. Biden, No. 4:21-cv-00287-AGF (E.D. Mo. filed June 4,
2021) (same).
“Since Mississippi, the federal courts have continued this practice without exception
and have not sustained a single injunction against the President in his official capacity.” In
re Trump, 958 F.3d 274, 297–98 (4th Cir. 2020), cert. granted, judgment vacated sub nom.
Trump v. D.C., 141 S. Ct. 1262 (2021) (Wilkinson, J., dissenting) (italics in original).
To be sure, Article III courts sometimes review the validity of the official acts of
subordinate executive officials below the President, see, e.g., Youngstown Sheet & Tube Co. v.
14
Sawyer, 343 U.S. 579 (1952), and such review may reflect indirectly on the lawfulness of the
President’s own acts or directives. But the authority of judicial review of the official acts of
subordinate officers has never been held to extend to the official acts of the President himself.
Rather, there is an “‘unbroken historical tradition ... implicit in the separation of powers’ that
a President may not be ordered by the Judiciary to perform particular Executive acts.”
Clinton v. Jones, 520 U.S. 681, 719 (1997) (Breyer, J., concurring) (quoting Franklin, 505 U.S.
at 827 (Scalia, J., concurring in part and concurring in the judgment)).
These two lines of precedent—that courts may not sit in judgment over a President’s
official acts, but they may review the validity of the acts of, and enjoin, subordinate executive
officials—both originate in the decisions of Chief Justice Marshall and have coexisted in
harmony for over two centuries. The distinction they reflect is not one of mere formalism.
“Youngstown … underscores the constitutional necessity of the judiciary separating the
President, as chief executive, from his subordinate officers within the executive branch.” In
re Trump, 958 F.3d at 301 (Wilkinson, J., dissenting). “This distinction, in fact, makes all
the difference…. First, more formally, when a federal court enjoins the conduct of a
subordinate executive officer, it may frustrate the President’s will in a specific instance, but
it does not seize the very reins of the executive branch by exercising control over ‘the
executive department’ itself.” Id. (quoting Mississippi, 71 U.S. at 500). “Second, more
functionally, the President is ‘entrusted with supervisory and policy responsibilities of
utmost discretion and sensitivity,’ and how he decides to allocate his energies and attentions
in an official capacity is itself owed constitutional protection.” Id. (quoting Fitzgerald, 457
U.S. at 750). “By contrast, when the judiciary enjoins subordinate executive officers, … the
level of intrusion into the executive branch’s fluid operation is far less severe.” Id.
15
Accordingly, the Executive Vesting Clause and the separation of powers prevent
Article III courts from sitting in judgment directly over the President’s official acts. Under
this principle, no Article III court has jurisdiction to enter an injunction against the
President, and no court has even ventured to enter a declaratory judgment against the
President opining on the validity of his official acts. Newdow, 603 F.3d at 1013. A fortiori,
the authority asserted by the lower courts here—to put a President on trial, enter a criminal
judgment against him, and punish him with imprisonment or other criminal penalties, all
for his official acts—constitutes a core violation of the separation of powers. Cf. Martin v.
Mott, 25 U.S. (12 Wheat.) 19, 32-33 (1827) (Story, J.) (holding that, “[w]hen the President
exercises an authority confided to him by law,” his official conduct cannot “be passed upon by
a jury” or “upon the proofs submitted to a jury”). Accordingly, the Impeachment Judgment
Clause explicitly presupposes that, absent impeachment and conviction by the U.S. Senate,
a President cannot be prosecuted for his official acts. U.S. CONST. art. I, § 3, cl.7.
The D.C. Circuit’s opinion offers a series of arguments to distinguish Marbury and the
subsequent line of authority. None is convincing.
First, the opinion notes that “Marbury distinguished between two kinds of official acts:
discretionary and ministerial.” App’x 21A. It admits that the President’s “discretionary acts
… ‘can never be examinable by the courts.’” Id. (quoting Marbury, 5 U.S. at 166). But it
likens the President’s alleged duty to comply with each and every federal criminal law—a
duty that no court has ever upheld—to a “ministerial” duty of a subordinate official that
admits of no discretion. Id. at 22A (holding that “Marbury thus makes clear that Article III
courts may review certain kinds of official acts — including those that are legal in nature”);
16
see also id. at 25A (holding that “actions” that “allegedly violated generally applicable
criminal laws2 … were not properly within the scope of his lawful discretion”).
This characterization of a “ministerial” duty under Marbury as any duty that is “legal
in nature,” id., cannot be squared with Marbury itself. What renders a duty “ministerial” is
not whether it is “legal in nature,” id., but whether it admits of any discretion (which is why
“ministerial” duties are distinguished from “discretionary” acts, id.). A “ministerial act” is
one—like the delivery of an already-signed commission—where there is “a precise course
accurately marked out by law, [which] is to be strictly pursued.” Marbury, 5 U.S. at 158. A
ministerial duty arises when the legislature “direct[s]” an official “peremptorily to perform
certain acts.” Id. at 166. By contrast, in any case “in which the executive possesses a
constitutional or legal discretion,” id., the official act is not ministerial. As the Court held in
Mississippi, “[a] ministerial duty” is “a simple, definite duty” in “which nothing is left to
discretion.” 71 U.S. at 498. If there is any “exercise of judgment” involved, the duty is not
ministerial. Id. at 499. Even the panel opinion admits that a “ministerial” duty is one “in
which ‘nothing [i]s left to discretion.’” App’x 23A (quoting Mississippi, 71 U.S. at 498).
2 The D.C. Circuit’s unsupported assumption that all “generally applicable criminal laws”
apply to the President in his official acts cannot be squared with Franklin, which held that
“[w]e would require an express statement by Congress before assuming it intended to subject
the President’s performance of his statutory duties to be reviewed for abuse of discretion.”
Franklin, 505 U.S. at 801; see also Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466
(1989) (“[W]e are loath to conclude that Congress intended to press ahead into dangerous
constitutional thickets in the absence of firm evidence that it courted those perils.”). This
Court requires an “express statement” before it will construe even a civil statute to grant
judicial review over the President’s official acts, yet the D.C. Circuit assumes that every
“generally applicable” federal criminal statute must be construed to cover the President in
the exercise of his official responsibilities. Contrary to this assumption, statutes providing
for judicial review of a President’s official acts present, at very least, “dangerous
constitutional thickets” and grave “perils,” requiring an extremely clear statement of
Congress’s intent to cover the President. Public Citizen, 491 U.S. at 466.
17
Here, even a moment’s reflection demonstrates that avoiding violations of federal
criminal law involves the “exercise of judgment,” Mississippi, 71 U.S. at 499, and of “executive
discretion.” Marbury, 5 U.S. at 166. A statute that imposes a “ministerial” duty is one that
commands a specific, affirmative course of conduct that admits of no discretion in its
execution. Criminal statutes do not command specific, affirmative courses of action; rather,
they prohibit certain specified conduct, leaving those covered with a wide range of discretion
in how to conduct themselves in compliance with such prohibitions. Given a prohibition in a
criminal statute, a covered individual has a virtually infinite array of options on structuring
his or her conduct to avoid violating the statute—thus rendering compliance “discretionary”
within the meaning of Marbury and its progeny.
In fact, the government itself has contended that complying with a constitutional
prohibition, the Emoluments Clause, is obviously not ministerial because it “requires ample
‘exercise of judgment’.” In re Trump, Reply Brief, at 5. This point is indisputable:
[O]nce an official responsibility involves the ‘exercise of judgment,’ it is a non-

ministerial official duty. That describes compliance with the Emoluments Clauses….
[C]ompliance in practice is not a “simple, definite” endeavor; rather, it involves
seemingly innumerable judgment calls about how a President must organize his
financial interests, sequester his real assets, or restructure his holdings. To put a
finer point on it, compare these sorts of choices with what was required in the
quintessential example of a ministerial duty: the delivery of the commission in
Marbury v. Madison. There, Marbury’s commission had been signed and sealed, but
not delivered. The Secretary of State was required by law to just hand over the
parchment, a function that required no judgment and where nothing was left to
discretion. Such a rote errand is different in kind from the sort of discretionary
conduct at issue here.
In re Trump, 958 F.3d at 299–300 (Wilkinson, J., dissenting). Likewise, “compliance in
practice” with federal criminal statutes “is not a ‘simple, definite’ endeavor,” id.—especially
the vague, broadly phrased statutes charged in the indictment here, such as 18 U.S.C. §
1512(c)(2).
18
Moreover, the government contends that these statutes purport to impose duties on
the President as he exercises his official responsibilities in overseeing the affairs of the
Department of Justice, deliberating about Cabinet-level appointments, communicating with
members of Congress and state officials about matters of enormous federal concern,
communicating with the public on matters of public concern through official government
channels, etc.—all of which are obviously discretionary, not “ministerial,” responsibilities, for
which the President possesses discretion on how to carry out those duties and
responsibilities. Indeed, virtually all the President’s official responsibilities involve the
exercise of discretion, which is perhaps why the federal courts “have … never attempted to
exercise power to order the President to perform a ministerial duty.” Swan, 100 F.3d at 978.
Second, the panel opinion reasons that “[t]he cases following Marbury confirm that
we may review the President’s actions when he is bound by law, including by federal criminal
statutes.” App’x 22A. But all the cases cited in the opinion do not involve review of “the
President’s actions,” id., but review of the actions of subordinate federal officials or others
implementing federal programs, not the President himself. Id. at 22A-23A. As the opinion
admits, Little v. Barreme, 6 U.S. (2 Cranch) 170, 177-79 (1804), reviewed the acts of a private
ship’s captain, not the President, App’x 22A; Kendall v. United States ex rel. Stokes, 37 U.S.
524, 612-13 (1838), “reviewed the official acts of the Postmaster General, not the President,”
App’x 22A; and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), reviewed the
acts of the Secretary of Commerce, not the President, App’x 23A. None of these cases provides
any authority for Article III courts to sit in judgment directly over the President’s official acts;
and none contradicts the still-binding holding of Marbury that such acts “can never be
examinable by the courts.” 5 U.S. at 166.
19
In fact, the opinion concedes that “Marbury and its progeny exercised jurisdiction only
over subordinate officers, not the President himself,” App’x 24A, and that “[t]he writ in
Marbury was brought against the Secretary of State; in Little against a commander of a ship
of war; in Kendall against the postmaster general; in Youngstown against the Secretary of
Commerce.” Id. But the opinion then pivots—in a dizzying non sequitur—to assert that “the
Supreme Court has unequivocally explained” that “[n]o man in this country is so high that
he is above the law.” Id. (quoting United States v. Lee, 106 U.S. 196, 220 (1882)).
The D.C. Circuit’s reliance on the highly generalized maxim that “no man … is above
the law,” id., fails to provide a plausible basis for it to disregard Marbury, Mississippi, or its
own precedents in Swan and Newdow. Those cases, and the separation of powers reflected
in Article II, are part of “the law” that binds the courts. In Fitzgerald, this Court held that
the contention that recognizing absolute Presidential immunity “places the President ‘above
the law’” is “rhetorically chilling but wholly unjustified.” 457 U.S. at 758 n.41. As the panel
opinion overlooks, “[t]he remedy of impeachment demonstrates that the President remains
accountable under law for his misdeeds in office.” Id. This is especially true here, where the
Impeachment Judgment Clause specifically authorizes the criminal prosecution of a
President, but only after the crucial structural check of impeachment and conviction. U.S.
CONST. art. I, § 3, cl. 7. “It is simply error to characterize an official as ‘above the law’ because
a particular remedy is not available against him.” Fitzgerald, 457 U.S. at 758 n.41. Indeed,
the Constitution—including the Executive Vesting Clause—is the most fundamental “law,”
and it dictates that Article III courts lack authority to sit in judgment over a President’s
official acts. Marbury, 5 U.S. at 166. “[T]he federal judiciary, no less than the President, is
subject to the law. And here the federal judiciary has sorely overstepped its proper bounds.”
20
In re Trump, 958 F.3d at 291 (Wilkinson, J., dissenting); see also, e.g., Butz v. Economou, 438
U.S. 478, 506 (1978).
Next, the panel opinion notes that “[t]he President does not enjoy absolute immunity
from criminal subpoenas issued by state and federal prosecutors and may be compelled by
the courts to respond.” App’x 24A (citing United States v. Burr, 25 F. Cas. 30, 33-34
(C.C.D.Va. 1807)). But compelling the President to provide information in response to a
criminal subpoena is a far cry from putting him on trial, entering judgment against him, and
potentially subjecting him to imprisonment for his official acts. Thus, Chief Justice Marshall,
the author of Burr, 25 F. Cas. 33-34, wrote just a few years earlier that the President’s official
acts “can never be examinable by the courts.” Marbury, 5 U.S. at 166.3
B. “The Presuppositions of Our Political History.”
Below, President Trump argued that “‘[p]erhaps the most telling indication of a severe
constitutional problem’ with this ‘wholly unprecedented’ prosecution ‘is a lack of historical
precedent to support it.’” C.A. App.Br. 7 (quoting Seila Law, LLC v. CFPB, 140 S. Ct. 2183,
2201 (2020)); see also id. at 17-18. “The unbroken tradition of not exercising the supposed
formidable power of criminally prosecuting a President for official acts—despite ample
motive and opportunity to do so, over centuries—implies that the power does not exist.” Id.
at 18 (citing, inter alia, NFIB v. OSHA, 595 U.S. 109, 119 (2022) (per curiam); Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 505 (2010)). “[T]he longstanding
3 The panel opinion’s discussion of legislative and judicial immunity, App’x 25A-30A,
misapprehends this Court’s case law, but also overlooks a fundamental point. At common
law, immunity from criminal prosecution was more fundamental to the doctrine of official
immunity than immunity from civil liability. As this Court has recognized, “the privilege” of
legislative immunity “was not born primarily of a desire to avoid private suits …, but rather
to prevent intimidation by the executive and accountability before a possibly hostile
judiciary.” United States v. Johnson, 383 U.S. 169, 180–81 (1966). Preventing “the
instigation of criminal charges against critical or disfavored legislators” was the “chief fear”
that led to the recognition of legislative immunity. Id. at 182 (emphasis added).
21
‘practice of the government,’ can inform our determination of ‘what the law is.’” N.L.R.B. v.
Noel Canning, 573 U.S. 513, 525 (2014) (quoting McCulloch v. Maryland, 17 U.S. 316, 401
(1819), and Marbury, 5 U.S. at 177). “That principle is neither new nor controversial,” and
this Court’s “cases have continually confirmed [this] view.” Id. (citing Mistretta v. United
States, 488 U.S. 361, 401 (1989), and eight other cases from 1803 to 1981). Consulting “the
presuppositions of our political history,” C.A. App.Br. 17 (quoting Fitzgerald, 457 U.S. at 749),
President Trump argued that this 234-year-long, unbroken “constitutional practice ... tends
to negate the existence of the … power asserted here.” Id. at 18 (quoting Printz v. United
States, 521 U.S. 898, 918 (1997)).
The opinion below overlooks this argument. It cites Seila Law only for the proposition
that the President is “elected by the entire Nation,” App’x 39A, and it does not cite or discuss
NFIB, Free Enterprise Fund, Printz, or similar cases. It also declines to grapple with
President Trump’s long series of real-world, historical examples of former Presidents accused
of criminal behavior through their official acts—none of whom, in 234 years, ever faced
prosecution, despite ample political motive and practical opportunity to charge them.
“American history abounds with examples of Presidents who were accused by political
opponents of committing crimes through their official acts.” C.A. App.Br. 17. “These include,
among many others, John Quincy Adams’ alleged ‘corrupt bargain’ in appointing Henry Clay
as Secretary of State;4 President George W. Bush’s allegedly false claim to Congress that
Saddam Hussein possessed stockpiles of ‘weapons of mass destruction,’ which led to war in
which thousands were killed;5 and President Obama’s alleged authorization of a drone strike
4See, e.g., Jessie Kratz, The 1824 Presidential Election and the “Corrupt Bargain”, National
Archives (Oct. 22, 2020), https://prologue.blogs.archives.gov/2020/10/22/the-1824-
presidential-election-and-the-corrupt-bargain/.
5 See, e.g., Gary L. Gregg II, George W. Bush: Foreign Affairs, UVA Miller Center,
https://millercenter.org/president/-gwbush/foreign-affairs; Tim Arango, Ex-Prosecutor’s Book
22
that targeted and killed a U.S. citizen abroad (and his teenage son, also a U.S. citizen).6” Id.
They also include, among many other examples, President Reagan’s alleged involvement in
the Iran-Contra scandal,7 President Clinton’s last-minute pardon of fugitive financier Marc
Rich,8 President Clinton’s repeated use of airstrikes in the Middle East in August and
November 1998 in an alleged attempt to distract attention from the Monica Lewinsky
scandal,9 President Biden’s egregious mismanagement of the United States’ border security,
and President Biden’s alleged “material support for terrorism” through the funding of the
UNRWA despite its documented history of direct support for terrorism.10 From the earliest
Accuses Bush of Murder, N.Y. Times (July 7, 2008),

https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html.
6 See, e.g., Spencer Ackerman, US Cited Controversial Law in Decision to Kill American
Citizen by Drone, The Guardian (June 23, 2014),

https://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-
citizen-awlaki.
7 The Editors, Iran-Contra Scandal Begins with Shredded Documents, History (Nov. 13,
2009), https://www.history.com/this-day-in-history/oliver-north-starts-feeding-documents-
into-the-shredding-machine.
8 Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, Nat’l
Review (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wages-of-prosecuting-

presidents-over-their-official-acts/ (reporting first-hand that “[i]n 2001 … the Justice
Department considered criminal charges against former president Clinton, and even a theory
that Hillary Clinton may have conspired with him, in connection with his final-day corrupt
pardons,” by which federal prosecutors were “righteously appalled,” but “the Bush Justice
Department would not cross that Rubicon”).
9 See, e.g., World Media Troubled by Clinton’s Timing in Airstrikes, CNN (Dec. 18, 1998),
http://edition.cnn.com/WORLD/meast/9812/18/iraq.press/; Francis X. Clines and Steven Lee

Myers, Attack on Iraq; The Overview; Impeachment Vote in House Delayed As Clinton
Launches Iraq Air Strike, Citing Military Need to Move Swiftly, N.Y. Times (Dec. 17, 1998),
https://www.nytimes.com/1998/12/17/world/attack-iraq-overview-impeachment-vote-house-
delayed-clinton-launches-iraq-air.html.
10 See, e.g., Jason Willick, The Eyebrow-Raising Line in the Trump Immunity Opinion, Wash.
Post (Feb. 7, 2024), https://www.washingtonpost.com/opinions/2024/02/07/trump-immunity-

decision-disclaimer/; Andrew McCarthy, Thoughts on Biden’s Funding of Terror-Sponsoring
UNRWA and D.C. Circuit’s Delay on Trump Immunity, Nat’l Review (Jan. 31, 2024),
https://www.nationalreview.com/corner/thoughts-on-bidens-funding-of-terror-sponsoring-
unrwa-and-d-c-circuits-delay-on-trump-immunity/ (“When President Biden insisted on
restarting funding for UNRWA, to the tune of over $1 billion since 2021, there was abundant,
well-known evidence, going back decades, that UNRWA provides material support to
terrorism. It was not just a hypothetical possibility that Biden’s funding might end up
23
days of the Republic until today, American history is littered with examples of allegedly
“criminal” behavior by Presidents in their official acts, behavior that was never prosecuted.11
The panel opinion ignores the long history of real-world examples of Presidents
engaging in actual behavior that political opponents viewed as egregious and “criminal.”
Instead, keying on the Special Counsel’s arguments, the panel fretted about lurid
hypotheticals that have never occurred in 234 years of history, almost certainly never will
occur, and would virtually certainly result in impeachment and Senate conviction (thus
authorizing criminal prosecution) if they did occur—such as a hypothetical President
corruptly ordering the assassination of political rivals through “SEAL Team Six.” D.C. Cir.
Oral Arg Tr. 10:19-21. Such hypotheticals provide fodder for histrionic media coverage, but
they are a poor substitute for legal and historical analysis. Confronted with real-world
hypotheticals—such as President Obama’s killing of U.S. citizens by drone strike—the
Special Counsel conceded below that Presidential immunity from criminal prosecution for
official acts likely exists and would apply, directly contradicting the “categorical,” App’x 20A,
holdings to the contrary of both the appellate panel and the trial court. D.C. Cir. Oral Arg.
facilitating Hamas’s operations. There were notorious cases over the years of UNRWA terror
support.”); The Editors, Hamas Was Right Under Unrwa’s Nose, Wall St. J. (Feb. 11, 2024),
https://www.wsj.com/articles/hamas-was-right-under-unrwas-nose-tunnels-gaza-israel-war-
f715d219?mod=opinion_lead_pos2 (“Israel has provided evidence that 12 Unrwa employees
took part in the Oct. 7 massacre, and that 1,200 are affiliated with or members of Hamas and
Islamic Jihad.”).
11 Similar examples pervade American history—consider, for example, President Adams’
jailing of political opponents under the Alien and Sedition Acts, see The Editors, Alien and
Sedition Acts, History (June 21, 2023), https://www.history.com/topics/early-us/alien-and-
sedition-acts; President Jackson’s treatment of the Cherokee and other tribes in defiance of
this Court’s rulings, see The Editors, Indian Treaties and the Removal Act of 1830, Office of
the Historian, U.S. Department of State, https://history.state.gov/milestones/1830-
1860/indian-treaties; and President Polk’s allegedly false statement to Congress that Mexico
had “invaded our territory and shed American blood on American soil” at the outbreak of
Mexican-American War, which then-Congressman Abraham Lincoln challenged through the
famous “Spot Resolutions,” The Editors, Mexican-American War, Encyclopaedia Britannica
(Jan. 2, 2024), https://www.britannica.com/event/Mexican-American-War/Invasion-and-war.
24
Tr. 49:18-22 (Special Counsel admitting that a “drone strike” where “civilians were killed …
might be the kind of place in which the Court would properly recognize some kind of
immunity”). Further, the logical presupposition of such speculative hypotheticals—i.e., that
the Founders supposedly must have intended that no alleged Presidential misdeed could ever
escape prosecution—is plainly incorrect and contradicts the basic premises of a system of
separated powers. “While the separation of powers may prevent us from righting every
wrong, it does so in order to ensure that we do not lose liberty.” Morrison, 487 U.S. at 710
(Scalia, J., dissenting).
Thus, when the panel did get around to addressing actual history, App’x 35A-37A, it
drew precisely the wrong conclusions. The panel somehow proposed that there is no reason
to fear “a torrent of politically motivated prosecutions” in the future, because “this is the first
time since the Founding that a former President has been federally indicted,” and so the
prosecution of President Trump is sure to be a historical one-off. App’x 35A. This reasoning
is unpersuasive to followers of recent American political history. For example, “[i]n the 209
years from 1789 to 1998, there was one impeachment of a President—Andrew Johnson in
1868.” BIO in No. 23-624, at 33. “In the last 25 years, there have been three, with a fourth
currently under consideration by the U.S. House of Representatives.” Id. “Presidential
impeachment is changing from virtually unthinkable to a fixture of interbranch politics.” Id.
Moreover, “impeachment faces formidable structural checks—it must be voted by a majority
of the House, with a supermajority of the Senate required to convict. Criminal prosecution,
by contrast, requires only the action of a single enterprising prosecutor and a compliant grand
jury.” Id.
25
For all these reasons, the “presuppositions of our political history” decisively favor the
recognition of Presidential immunity from criminal prosecution for acts within the “outer
perimeter of the President’s official responsibilities.” Fitzgerald, 457 U.S. at 745, 756.
C. The Likelihood of Chilling Presidential Action.
In Fitzgerald, this Court held that the threat of future civil liability for official acts—
including years after the President left office—could deter the President from the “bold and
unhesitating action” required for his official responsibilities. 457 U.S. at 745. In so holding,
“[t]his Court … weighed concerns of public policy, especially as illuminated by our history
and the structure of our government.” Id. at 747–48. The Court emphasized that “[t]he
President occupies a unique position in the constitutional scheme,” id. at 749, and is
“entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity,”
id. at 750. “Because of the singular importance of the President’s duties, diversion of his
energies by concern with private lawsuits would raise unique risks to the effective
functioning of government.” Id. at 751. “[T]here exists the greatest public interest in
providing” the President with “‘the maximum ability to deal fearlessly and impartially with’
the duties of his office.” Id. at 752 (quoting Ferri v. Ackerman, 444 U.S. 193, 203 (1979)).
“This concern is compelling where” the President “must make the most sensitive and far-
reaching decisions entrusted to any official under our constitutional system.” Id. “Nor can
the sheer prominence of the President’s office be ignored.” Id. at 752–53. “[T]he President
would be an easily identifiable target” for politically motivated litigation. Id. at 753.
“Cognizance of this personal vulnerability frequently could distract a President from his
public duties, to the detriment of not only the President and his office but also the Nation
that the Presidency was designed to serve.” Id.
26
All the same concerns apply to the threat of criminal prosecution of a President for his
official acts—in fact, those concerns are dramatically enhanced. The President’s “personal
vulnerability,” id., to criminal prosecution, with its greater stigma and far more severe
penalties, provides a much graver deterrent to “bold and unhesitating action” in making “the
most sensitive and far-reaching decisions entrusted to any official under our constitutional
system.” Id. at 745, 752. The panel opinion disagrees, dismissing such concerns as
unfounded. App’x 32A-35A. Its analysis is unpersuasive.
First, the panel opinion begins by drawing a comparison between the exercise of the
President’s “unique” responsibilities and the deliberations of ordinary citizens called to serve
as federal jurors. Id. (citing Clark v. United States, 289 U.S. 1, 16 (1933)). The opinion
reasons that “[w]e cannot presume that a President will be unduly cowed by the prospect of
post-Presidency criminal liability any more than a juror would be influenced by the prospect
of post-deliberation criminal liability….” App’x 32A-33A. This analogy falls short. Though
undoubtedly exercising an important function, a juror in a federal case does not “occup[y]”
anything like the President’s “unique position in the constitutional scheme,” Fitzgerald, 457
U.S. at 749, and is not “entrusted with supervisory and policy responsibilities of utmost
discretion and sensitivity” on a scale anything like the Presidency, id. at 750. “The singular
importance of [a federal juror’s] duties” does not entail that “diversion of his energies by
concern with [personal liability] would raise unique risks to the effective functioning of
government.” Id. at 751. A federal juror does not “make the most sensitive and far-reaching
decisions entrusted to any official under our constitutional system.” Id. at 752. “Nor” does a
federal juror sit in a position whose “sheer prominence” cannot “be ignored.” Id. at 752–53.
A federal juror would not “be an easily identifiable target” for politically motivated
prosecution. Id. at 753. “Cognizance of this personal vulnerability” is unlikely to “distract a
27
[federal juror] from his public duties, to the detriment of not only the [juror] and his office
but also the Nation that the [juror] was designed to serve.” Id.
The per curiam opinion also relies on an analogy with the executive staffers in United
States v. Nixon, 418 U.S. 683 (1974). App’x 32A-33A. That reasoning is likewise
unconvincing, for at least two reasons. First, Nixon addressed the potential deterrence to
candid advice from the requirement of providing information in response to a criminal
subpoena, see App’x 32A-33A, not the far more chilling threat of “personal vulnerability” to
prosecution, conviction, and imprisonment. Second, Fitzgerald and other cases correctly
reject the analogy between the President, who occupies “a unique position in the
constitutional scheme,” 457 U.S. at 749, and lower-level executive officials such as aides,
staff, and even Cabinet officers. “The President’s unique status under the Constitution
distinguishes him from other executive officials.” Id. at 750. The Court has thus “long
recognized” that “the scope of Presidential immunity from judicial process differs
significantly from that of Cabinet or inferior officers.” Franklin, 505 U.S. at 826 (Scalia, J.,
concurring in part and concurring in judgment).
Next, the D.C. Circuit’s opinion reasons that “past Presidents have understood
themselves to be subject to impeachment and criminal liability, at least under certain
circumstances, so the possibility of chilling executive action is already in effect,” because
“criminal prosecution of a former President is expressly authorized by the Impeachment
Judgment Clause after impeachment and conviction.” App’x 33A. This argument ignores
the enormous significance of the structural check that the Constitution places between a
President and criminal prosecution for his official acts—i.e., the requirement of impeachment
and conviction by the U.S. Senate. U.S. CONST. art. I, § 3, cl.7.
28
The Founders were steeped in classical history and understood that politically
motivated prosecutions had corroded democratic and republican governments in ancient
Athens and Rome. They were thus explicitly concerned about the destructive effect on the
new Republic of such politically motivated prosecutions—i.e., what James Madison described
as the “new fangled and artificial treasons, [which] have been the great engines, by which
violent factions, the natural offspring of free governments, have usually wreaked their
alternate malignity on each other.” THE FEDERALIST NO. 47 (Madison). Accordingly, the
Founders exercised care when they consciously departed from the British common-law
practice of treating the Chief Executive as absolutely immune in all circumstances. They
crafted a carefully balanced approach that authorizes the criminal prosecution of a President,
but only after both Houses of Congress—reflecting the widespread political consensus
required for a two-thirds majority vote of the Senate—support the President’s removal from
office for high crimes and misdemeanors. U.S. CONST. art. I, § 3, cl.7.
Contrary to the lower court’s ahistorical analysis, this was the common understanding
of the Founders—that criminal prosecution of a President could only occur if the President
was impeached and convicted by the U.S. Senate. Id. This understanding matches the views
of both Chief Justice Marshall and Attorney General Charles Lee (Attorney General under
Presidents George Washington and John Adams), as expressed in Marbury v. Madison, 5
U.S. at 149, 165-66, and the understanding of Justice Story reflected both in his
Commentaries and in his opinion in Martin, 25 U.S. at 32-33.
This was also the clear and unambiguous understanding of Alexander Hamilton. The
per curiam opinion states that “President Trump turns to one sentence written by Alexander
Hamilton in the Federalist 69,” App’x 46A, but its math is off. Hamilton wrote, not once, but
three times in three different essays, that the President may be subject to criminal
prosecution only after he is impeached and convicted by the Senate, and as a “consequence”
29
of that conviction. “The President of the United States would be liable to be impeached, tried,
and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from
office; and would afterwards be liable to prosecution and punishment in the ordinary course
of law.” THE FEDERALIST NO. 69 (Hamilton). “The punishment which may be the consequence
of conviction upon impeachment, is not to terminate the chastisement of the offender. After
having been sentenced to a perpetual ostracism from the esteem and confidence, and honors
and emoluments of his country, he will still be liable to prosecution and punishment in the
ordinary course of law.” THE FEDERALIST NO. 65 (Hamilton). The President is “at all times
liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the common course of law.” THE
FEDERALIST NO. 77 (Hamilton) (all emphases added). As Hamilton explains, criminal
prosecution of a President can arise only “after,” “subsequent” to, “afterwards,” and as a
“consequence” of “conviction upon impeachment.” Id. (emphasis added). “The plain
implication” of this Clause “is that criminal prosecution, like removal from the Presidency
and disqualification from other offices, is a consequence that can come about only after the
Senate’s judgment, not during or prior to the Senate trial.” Trump v. Vance, 140 S. Ct. 2412,
2444 (2020) (Alito, J., dissenting). “This was how Hamilton explained the impeachment
provisions in the Federalist Papers. He wrote that a President may ‘be impeached, tried,
and, upon conviction ... would afterwards be liable to prosecution and punishment in the
ordinary course of law.’” Id. (quoting THE FEDERALIST NO. 69).
The opinion below errs by disregarding this formidable, carefully crafted structural
check against the criminal prosecution of Presidents for their official acts. Conviction upon
impeachment requires both a majority vote of the House to impeach, and two-thirds majority
vote of the U.S. Senate to convict—which together require a widespread political consensus
of elected representatives across the political spectrum and across the Nation’s geographic
30
regions. Criminal prosecution, by contrast, requires only a single enterprising prosecutor
and a compliant grand jury drawn from a tiny slice of America, which may be—and, if the
prosecutor is clever enough, probably will be—located in an enclave of deep political hostility
to the President. Therefore, criminal prosecution which can only occur after impeachment
and conviction plainly does not present the same “chilling effect,” App’x 33A, as prosecution
unhindered by any structural check—as in this case, where President Trump was acquitted
by the Senate but then wrongfully prosecuted by his political opponent for the same conduct.
Finally, for the reasons discussed above, the D.C. Circuit’s overall assessment that
“the risk of criminal liability chilling Presidential action appears to be low,” App’x 34A,
cannot be squared with our recent political history. Impeachment of Presidents, once
virtually unheard-of, is becoming a routine feature of interbranch conflict. Once the political
Rubicon is crossed, criminal prosecution of Presidents by their political opponents will
become common, and the threat of such prosecution will become ubiquitous, hanging over
every President like a sword of Damocles. Instead of acting fearlessly, every President will
be forced to ponder, before taking any official act—especially the most politically
controversial decisions—whether the decision may lead to his or her prosecution, conviction,
and imprisonment once the administration changes. Enterprising political opponents, aware
of this, will wield the threat of prosecution as a powerful and menacing tool to influence
Presidents’ official actions. The judgment below thus “deeply wounds the President” by
forever undermining his or her independence. Morrison, 487 U.S. at 713 (Scalia, J.,
dissenting).
III. There Is a Likelihood of Irreparable Harm Absent the Stay.
The third factor considers whether the applicant “would … suffer irreparable harm
were the stay not granted.” Karcher, 455 U.S. at 1306. Here, the threat of irreparable injury
if the D.C. Circuit’s mandate is not stayed is clear and manifest.
31
A. Absent a Stay, President Trump Will Immediately Be Required to Bear
the Burdens of Prosecution and Trial.
Absolute immunity is “an entitlement not to stand trial or face the other burdens of
litigation…. The entitlement is an immunity from suit rather than a mere defense to liability;
and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis added). Absolute immunity’s
protection is “not limited to liability for money damages,” but “also include[s] ‘the general
costs of subjecting officials to the risks of trial—distraction of officials from their
governmental duties, inhibition of discretionary action, and deterrence of able people from
public service.’” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)). Under absolute
immunity, “even such pretrial matters as discovery are to be avoided if possible, as
‘[i]nquiries of this kind can be peculiarly disruptive of effective government.’” Id. (quoting
Harlow, 457 U.S. at 817); see also Pearson v. Callahan, 555 U.S. 223, 231-32 (2009)
(reaffirming that official immunity is “an immunity from suit rather than a mere defense to
liability” that “is effectively lost if a case is erroneously permitted to go to trial”); Ashcroft v.
Iqbal, 556 U.S. 662, 672 (2009); Behrens v. Pelletier, 516 U.S. 299, 308 (1996); P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-44 (1993).
The same is true of President Trump’s claim based on principles of double jeopardy
under the Impeachment Judgment Clause. See, e.g., Helstoski v. Meanor, 442 U.S. 500, 507-
08 (1979) (double jeopardy protects defendants “not only from the consequences of litigation’s
results but also from the burden of defending themselves”) (quotation omitted); Abney v.
United States, 431 U.S. 651, 661 (1977) (double jeopardy “assures an individual that, among
other things, he will not be forced, with certain exceptions, to endure the personal strain,
public embarrassment, and expense of a [second] criminal trial”); accord Digital Equip. Corp.
v. Desktop Direct, Inc., 511 U.S. 863, 869-71 (1994) (summarizing cases holding that double-
32
jeopardy and immunity defenses involve an “entitlement not to stand trial or face the other
burdens of litigation”).
In fact, the opinion below strongly endorses this conclusion. In holding that there is
appellate jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291, the opinion
emphasizes that “[i]t would be … ‘unseemly’ for us to require that former President Trump
first be tried in order to secure review of his immunity claim after final judgment.” App’x
14A (quoting Nixon, 418 U.S. at 691-92). “[T]he ‘deprivation of the right not to be tried’ would
be ‘effectively unreviewable on appeal from a final judgment.’” Id. at 15 (quoting Midland
Asphalt Corp. v. United States, 489 U.S. 794, 800–01 (1989)). “[T]he right not to stand trial
must be ‘vindicated before trial’ or not at all.” Id. These statements cannot be squared with
the panel’s decision to dramatically accelerate its issuance of the mandate—thus immediately
launching criminal proceedings and trial in the district court—before the completion of
ordinary appellate review, especially this Court’s review. App’x 58A.
B. Conducting the Criminal Trial of President Trump Will Inflict Grave

First Amendment Injuries on American Voters.
The D.C. Circuit’s extraordinary decision to return the mandate to the district court
to proceed to trial imposes another grave species of irreparable injury—the threat to the First
Amendment rights of President Trump, his supporters and volunteers, and all American
voters, who are entitled to hear from the leading candidate for President at the height of the
Presidential campaign. The Special Counsel seeks urgently to force President Trump into a
months-long criminal trial at the height of campaign season, effectively sidelining him and
preventing him from campaigning against the current President to whom the Special Counsel
ultimately reports, President Biden. This would impose grave First Amendment injuries on
President Trump and all American voters, whether they support him or not, and threatens
to tarnish the federal courts with the appearance of partisanship.
33
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
Here, President Trump is the leading candidate for President of the United States and the
greatest electoral threat to President Biden, whose administration is prosecuting him.
Conducting a months-long criminal trial of the leading opponent of the current regime in the
middle of a Presidential campaign will inevitably disrupt President Trump’s ability to
campaign against President Biden, stifling his voice and preventing American voters from
hearing from the leading candidate.
The speech of a Presidential candidate campaigning for President stands at the
pinnacle of First Amendment protection. “Speech on matters of public concern is at the heart
of the First Amendment’s protection. That is because speech concerning public affairs is
more than self-expression; it is the essence of self-government.” Snyder v. Phelps, 562 U.S.
443, 451-52 (2011) (cleaned up) (citing numerous cases). “No form of speech is entitled to
greater constitutional protection” than “[c]ore political speech.” McIntyre v. Ohio Elec.
Comm’n, 514 U.S. 334, 347 (1995). Likewise, the First Amendment’s “constitutional
guarantee has its fullest and most urgent application precisely to the conduct of campaigns
for political office.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014) (quoting
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Campaign speech lies “at the core of
our electoral process of the First Amendment freedoms—an area … where protection of
robust discussion is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (citations and
quotations omitted).
This First Amendment protection extends, first and foremost, to the American voters
who would hear and consider President Trump’s campaign speech as they reflect on how to
cast their ballots in November. The First Amendment’s “protection afforded is to the
34
communication, to its source and to its recipients both.” Va. State Bd. of Pharm. v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (citing many cases); see also
Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and
listen, and then … speak and listen once more,” as a “fundamental principle of the First
Amendment”); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969). “[T]he right to receive
ideas follows ineluctably from the sender’s First Amendment right to send them.” Bd. of
Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982). A de facto
restriction on President Trump’s campaign speech—such as that caused by a months-long
criminal trial at the height of campaign season—inflicts a “reciprocal” injury on the hundreds
of millions of Americans who listen to him. Va. State Bd. of Pharm., 425 U.S. at 757.
This Court has “never allowed the government to prohibit candidates from
communicating relevant information to voters during an election.” Republican Party of
Minnesota v. White, 536 U.S. 765, 781-82 (2002). Permitting the Biden administration to put
its leading political opponent on trial in the middle of the campaign for President would do
just that—effectively stifling President Trump’s campaign speech for months on end with the
election date less than nine months away.
IV. The Balancing of Equities Strongly Favors a Stay.
Since this is not a “close case,” the Court need not “balance the equities.” Karcher,
455 U.S. at 1305-06. But if it does, the equities strongly favor a stay of the mandate. As
detailed above, the considerations counseling in favor of a stay are overwhelming. They
include preserving this Court’s jurisdiction to hear this appeal in an orderly fashion,
protecting the 234-year tradition against prosecuting Presidents for their official acts,
preventing all Presidents from being effectively blackmailed and extorted by their political
opponents with threat of wrongful prosecution for their official acts, preventing the manifest
35
irreparable injury of forcing President Trump to undergo criminal trial before his claim of
immunity is adjudicated, and violating the First Amendment rights of all American voters to
hear from the leading candidate at the height of a Presidential campaign.
Against these compelling interests, in the court below, the Special Counsel cited only
one consideration supposedly justifying the immediate return of the mandate to the district
court: “the imperative public importance of a prompt resolution of this case.” C.A. Resp.Br.
at 65. The Special Counsel cited the same vaguely defined interest in “prompt resolution” of
this case in its Petition for Certiorari Before Judgment, which this Court denied. As noted
in President Trump’s Brief in Opposition, the Special Counsel conflates the supposed “public”
interest, id., with the manifestly partisan interest of the Special Counsel’s ultimate boss,
President Biden, in conducting President Trump’s criminal trial while he is campaigning
against President Biden himself.
In the Court of Appeals, as here, the Special Counsel never explains why it is so
“imperative” that this case proceed to trial immediately, forestalling ordinary en banc review
and even this Court’s review procedures. The prospect that an interlocutory appeal of an
immunity question might affect a pending trial date is commonplace and routine. “Especially
in cases of extraordinary public moment, the individual may be required to submit to delay
not immoderate in extent and not oppressive in its consequences if the public welfare or
convenience will thereby be promoted.” Landis v. N. Am. Co., 299 U.S. 248, 256 (1936). “A
mere assertion of delay does not constitute substantial harm. Some delay would be
occasioned by almost all interlocutory appeals.” United States v. Philip Morris, Inc., 314 F.3d
612, 622 (D.C. Cir. 2003), jurisdictional ruling overruled by Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100 (2009).
“The Special Counsel’s request, therefore, cannot avoid the appearance of
partisanship.” BIO in No. 23-624, at 22. “This Court is ‘not required to exhibit a naiveté
36
from which ordinary citizens are free.’” Id. (quoting Dep’t of Com. v. New York, 139 S. Ct.
2551, 2575 (2019)). The Special Counsel’s prior request to circumvent ordinary appellate
review caused “commentators from across the political spectrum [to] observe[] that its evident
motivation is to schedule the trial before the 2024 presidential election—a nakedly political
motive.” Id. (citing Elie Honig, Why Jack Smith Will Never Say the ‘E’ Word, CNN (Dec. 16,
2023), https://www.cnn.com/videos/politics/2023/12/16/smr-honig-on-smith-vs-election-
calendar.cnn; Editorial Board, Jack Smith and the Supreme Court, Wall St. J. (Dec. 16, 2023);
Jason Willick, Politics Are Now Clearly Shaping Jack Smith’s Trump Prosecution, Wash. Post
(Dec. 12, 2023), https://www.washingtonpost.com/opinions/2023/12/12/special-counsel-jack-
smith-politicized-prosecution/; and Byron York (@ByronYork), X (Dec. 11, 2023),
https://twitter.com/ByronYork/status/1734305076582244850?s=20).
“The Special Counsel thus confuses the public interest with a partisan interest of his
superior, President Biden.” Id. at 22. “The Special Counsel’s politicization of the trial
schedule” also “departs from the best traditions of the U.S. Department of Justice,” which
“call for prosecutors to avoid the appearance of election interference in the prosecution of
political candidates.” Id. at 23 (citing U.S. Dep’t of Justice, Justice Manual §§ 9-27.260, 9-
85.500 (2018); https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-
27.260). “The Special Counsel’s extraordinary petition creates a strong appearance of a
significant departure from those rules and aspirations.” Id. at 24.
“Even worse, the Special Counsel’s request threatens to tarnish” the Court of Appeals’
“procedures with the same appearance of partisanship.” Id. at 24 (citing Editorial Board,
Jack Smith and the Supreme Court, Wall St. J. (Dec. 16, 2023)). “The Special Counsel
urge[d]” the lower court “to jettison venerable principles of prudence, leapfrog the ordinary
process of appellate review, and rush headlong to decide one of the most novel, complex, and
37
momentous legal issues in American history.” Id. at 25. “In doing so, the Special Counsel
seeks to embroil” both the Court of Appeals and “this Court in a partisan rush to judgment
on some of the most historic and sensitive questions that the Court may ever decide.” Id.
The Court should issue a stay of the D.C. Circuit’s mandate to put an end to these ill-
conceived efforts to circumvent the ordinary processes of appellate review.
***
“‘Haste makes waste’ is an old adage. It has survived because it is right so often.”
Kusay v. United States, 62 F.3d 192, 195 (7th Cir. 1995). The Court should stay the D.C.
Circuit’s mandate pending resolution of a petition for certiorari, and if review is granted,
resolution of this case on the merits by this Court.
As additional relief, in issuing its stay, President Trump requests that this Court
direct that the D.C. Circuit’s mandate is stayed pending the resolution, not just of
proceedings in this Court, but also of President Trump’s planned petition for en banc
consideration in the D.C. Circuit, which he intends to file in the D.C. Circuit in the ordinary
course before seeking (if necessary) this Court’s review, if given the opportunity to do so. As
noted in President Trump’s Brief in Opposition in No. 23-624, en banc consideration by the
lower courts provides an important part of the percolation that this Court ordinarily prefers
before reviewing petitions for certiorari. For example, in United States v. Nixon, this Court
had the benefit of the multiple thoughtful opinions produced by the D.C. Circuit’s en banc
consideration of Nixon v. Sirica, which addressed the same executive privilege asserted
against a grand-jury subpoena the year before. 487 F.2d 700, 700-22 (D.C. Cir. 1973) (en
banc) (cited in Nixon, 418 U.S. at 689, 708 & n.17); id. at 729 (MacKinnon, J., concurring in
part and dissenting in part); id. at 762 (Wilkey, J., dissenting). Allowing President Trump
to pursue en banc review in the D.C. Circuit will provide an opportunity for similar
thoughtful consideration in the lower court before this Court addresses the novel, complex,
38
and momentous issues at stake in this appeal. See Belk v. Charlotte-Mecklenburg Bd. of
Educ., 211 F.3d 853, 854-55 (4th Cir. 2000) (Wilkinson, C.J., concurring in the denial of initial
hearing en banc).
CONCLUSION
This Court should stay the D.C. Circuit’s mandate pending resolution of President
Trump’s petition for certiorari in this Court. As additional relief, President Trump requests
that this Court stay the D.C. Circuit’s mandate pending the resolution of a petition for en
banc consideration in that court, before the filing (if necessary) of his petition for certiorari
in this Court.
February 12, 2024 Respectfully submitted,
LAURO & SINGER JAMES OTIS LAW GROUP, LLC

John F. Lauro
Gregory M. Singer /s/ D. John Sauer
400 N. Tampa St., 15th Fl. D. John Sauer
Tampa, FL 33602 Counsel of Record
(813) 222-8990 William O. Scharf
[email protected] Michael E. Talent
Kenneth C. Capps
BLANCHE LAW 13321 N. Outer Forty Rd., Suite 300
Todd Blanche St. Louis, Missouri 63017
Emil Bove (314) 562-0031
99 Wall St., Suite 4460 [email protected]
New York, NY 10005
(212) 716-1250 Attorneys for President Donald J.
[email protected] Trump
39
APPENDIX
Per Curiam Opinion of the United States Court of Appeals for the District of Columbia
Circuit (February 6, 2024) ................................................................................................ 1A
Per Curiam Judgment and Order of the United States Court of Appeals for the District of
Columbia Circuit (February 6, 2024) ............................................................................. 58A
USCA Case #23-3228 Document #2039001 Filed: 02/06/2024 Page 1 of 57
1A
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2024 Decided February 6, 2024
No. 23-3228
UNITED STATES OF AMERICA,

APPELLEE
v.
DONALD J. TRUMP,
APPELLANT
Appeal from the United States District Court

for the District of Columbia
(No. 1:23-cr-00257-1)
D. John Sauer argued the cause for appellant. With him

on the briefs were John F. Lauro, Gregory M. Singer, Emil
Bove, William O. Scharf, and Michael E. Talent.
Paul M. Dorsey, pro se, was on the brief for amicus curiae
Paul M. Dorsey in support of appellant.
Victor Williams, pro se, was on the brief for amicus curiae
Law Professor Victor Williams in support of appellant.
James I. Pearce, Assistant Special Counsel, U.S.

Department of Justice, argued the cause for appellee. With him
on the brief were J. P. Cooney, Deputy Special Counsel,
2A
2
Michael R. Dreeben and Raymond N. Hulser, Counselors to the
Special Counsel, John M. Pellettieri and Cecil W.
VanDevender, Assistant Special Counsels, and Molly Gaston
and Thomas P. Windom, Senior Assistant Special Counsels.
Richard D. Bernstein was on the brief for amici curiae

Former Officials in Five Republican Administrations, et al. in
support of appellee.
Fred Wertheimer, Matthew A. Seligman, Seth P. Waxman,

Colleen M. Campbell, Nathaniel W. Reisinger, David M.
Levine, and Kyle T. Edwards were on the brief for amici curiae
Former Government Officials and Constitutional Lawyers in
support of appellee.
R. Stanton Jones and Andrew T. Tutt were on the brief for

amicus curiae American Oversight in support of dismissal for
lack of jurisdiction.
Gene C. Schaerr and Justin A. Miller were on the brief for

amici curiae Former Attorney General Edwin Meese III and
Law Professors Steven G. Calabresi and Gary S. Lawson in
support of neither party.
Before: HENDERSON, CHILDS and PAN, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Donald J. Trump was elected the 45th

President of the United States on November 8, 2016. He was
sworn into office at noon on January 20, 2017, and served until
his term expired at noon on January 20, 2021. At that moment,
President Trump became former President Trump and his
successor, Joseph R. Biden, became President and began his
own four-year term. U.S. CONST. art. II, § 1. Although this
3A
3
sequence is set by the Constitution, id. amend. XX, it did not
proceed peacefully. Indeed, from election day 2020 forward,
the government alleges that President Trump denied that he had
lost his bid for a second term and challenged the election results
through litigation, pressure on state and federal officers, the
organization of an alternate slate of electors and other means.
His alleged interference in the constitutionally prescribed
sequence culminated with a Washington, D.C., rally held on
January 6, 2021, the day set by the Electoral Count Act, 3
U.S.C. § 15(a), for the Congress to meet in joint session to
certify the election results. The rally headlined by President
Trump resulted in a march of thousands to the Capitol and the
violent breach of the Capitol Building. The breach delayed the
congressional proceedings for several hours and it was not until
the early morning of January 7th that the 2020 presidential
election results were certified, naming Joseph R. Biden as the
soon-to-be 46th President.
Since then, hundreds of people who breached the Capitol

on January 6, 2021, have been prosecuted and imprisoned.
And on August 1, 2023, in Washington, D.C., former President
Trump was charged in a four-count Indictment as a result of his
actions challenging the election results and interfering with the
sequence set forth in the Constitution for the transfer of power
from one President to the next. Former President Trump
moved to dismiss the Indictment and the district court denied
his motion. Today, we affirm the denial. For the purpose of
this criminal case, former President Trump has become citizen
Trump, with all of the defenses of any other criminal defendant.
But any executive immunity that may have protected him while
he served as President no longer protects him against this
prosecution.
4A
4
I. BACKGROUND
Former President Trump did not concede the 2020 election

and, in the ensuing months, he and his supporters made
numerous attempts to challenge the results. Many of their
attempts were allegedly criminal.1 A District of Columbia
federal grand jury indicted former President Trump on four
criminal counts arising from the steps he allegedly took to
change the outcome of the election: (1) conspiracy to defraud
the United States by overturning the election results, in
violation of 18 U.S.C. § 371; (2) conspiracy to obstruct an
official proceeding — i.e., the Congress’s certification of the
electoral vote — in violation of 18 U.S.C. § 1512(k); (3)
obstruction of, and attempt to obstruct, the certification of the
electoral vote, in violation of 18 U.S.C. §§ 1512(c)(2), 2; and
(4) conspiracy against the rights of one or more persons to vote
and to have their votes counted, in violation of 18 U.S.C. § 241.
At this stage of the prosecution, we assume that the allegations
set forth in the Indictment are true. United States v. Ballestas,
795 F.3d 138, 149 (D.C. Cir. 2015). We emphasize that
whether the Indictment’s allegations are supported by evidence
sufficient to sustain convictions must be determined at a later
stage of the prosecution.
The Indictment alleges that former President Trump

understood that he had lost the election and that the election
results were legitimate but that he nevertheless was
“determined to remain in power.” Indictment ¶ 2. He then
conspired with others to cast doubt on the election’s outcome
and contrived to have himself declared the winner. The
1
Former President Trump’s campaign and his supporters also
unsuccessfully challenged the election results in several state and
federal courts.
5A
5
Indictment charges that he and his co-conspirators allegedly
advanced their goal through five primary means:
First, they “used knowingly false claims of election fraud”

to attempt to persuade state legislators and election officials to
change each state’s electoral votes in former President Trump’s
favor. Indictment ¶ 10(a). For example, he and his allies
falsely declared “that more than ten thousand dead voters had
voted in Georgia”; “that there had been 205,000 more votes
than voters in Pennsylvania”; “that more than 30,000 non-
citizens had voted in Arizona”; and “that voting machines . . .
had switched votes from [Trump] to Biden.” Id. at ¶ 12.
Second, then-President Trump and his co-conspirators

“organized fraudulent slates of electors in seven targeted
states . . . attempting to mimic the procedures that the
legitimate electors were supposed to follow.” Indictment
¶ 10(b). They “then caused these fraudulent electors to
transmit their false certificates to the Vice President and other
government officials to be counted at the certification
proceeding on January 6.” Id.
Third, then-President Trump and his co-conspirators

pressed officials at the Department of Justice “to conduct sham
election crime investigations and to send a letter to the targeted
states that falsely claimed that the Justice Department had
identified significant concerns that may have impacted the
election outcome.” Indictment ¶ 10(c).
Fourth, then-President Trump and his co-conspirators

attempted to convince then-Vice President Mike Pence to “use
his ceremonial role at the January 6 certification proceeding to
fraudulently alter the election results.” Indictment
¶ 10(d). When the Vice President rebuffed them, he stirred his
base of supporters to increase pressure on the Vice President.
See id. at ¶¶ 10(d), 96, 100. Ultimately, on the morning of
6A
6
January 6, 2021, he held a rally in Washington D.C. where he
“repeated knowingly false claims of election fraud to gathered
supporters” and “directed them to the Capitol to obstruct the
certification proceeding and exert pressure on the Vice
President to take the fraudulent actions he had previously
refused.” Id. at ¶¶ 10(d), 90(c).
Fifth, and finally, from the January 6 rally, thousands of

his supporters — “including individuals who had traveled to
Washington and to the Capitol at [his] direction” — swarmed
the United States Capitol, causing “violence and chaos” that
required the Congress to temporarily halt the election-
certification proceeding. Indictment ¶¶ 107, 119, 121. At that
point, he and his co-conspirators “exploited the disruption by
redoubling efforts to levy false claims of election fraud and
convince Members of Congress to further delay the
certification.” Id. at ¶ 10(e).
Then-President Trump’s efforts to overturn the election

results were unsuccessful and the Congress certified the
Electoral College vote in favor of President-Elect Biden.
Indictment ¶ 123. On January 11, 2021, nine days before
President-Elect Biden’s inauguration, the House of
Representatives adopted an impeachment resolution charging
then-President Trump with “Incitement of Insurrection.” H.R.
Res. 24, 117th Cong. (2021). The single article of
impeachment alleged that he had violated “his constitutional
oath faithfully to execute the office of President of the United
States . . . [and] his constitutional duty to take care that the laws
be faithfully executed . . . by inciting violence against the
Government of the United States.” Id. at 2. The impeachment
resolution asserted that “President Trump repeatedly issued
false statements asserting that the Presidential election results
were the product of widespread fraud and should not be
accepted by the American people or certified by State or
7A
7
Federal officials,” id. at 2–3; that his statements on the morning
of January 6 “encouraged — and foreseeably resulted in —
lawless action at the Capitol,” id. at 3; and that he attempted to
“subvert and obstruct the certification of the results of the 2020
Presidential election” by other means, including by threatening
a Georgia state official into manipulating the results, id. at 3–
4.
Importantly, by the time the United States Senate

conducted a trial on the article of impeachment, he had become
former President Trump. At the close of the trial, on February
13, 2021, fifty-seven Senators voted to convict him and forty-
three voted to acquit him. See 167 CONG. REC. S733 (daily ed.
Feb. 13, 2021). Because two-thirds of the Senate did not vote
for conviction, he was acquitted on the article of
impeachment. See id.; U.S. CONST. art. I, § 3, cl. 6.
On November 18, 2022, the U.S. Attorney General

appointed John L. Smith as Special Counsel to investigate
“efforts to interfere with the lawful transition of power
following the 2020 presidential election or the certification of
the Electoral College vote.”2 A Washington, D.C., grand jury
returned the instant four-count Indictment against former
President Trump on August 1, 2023, and on August 28, 2023,
the district court set a trial date of March 4, 2024.
Former President Trump filed four motions to dismiss the

Indictment, relying on: (1) presidential immunity; (2)
constitutional provisions, including the Impeachment
Judgment Clause and principles stemming from the Double
2
Off. of the Att’y Gen., “Appointment of John L. Smith as
Special Counsel,” Order No. 5559-2022 (Nov. 18, 2022).
8A
8
Jeopardy Clause; (3) statutory grounds; and (4) allegations of
selective and vindictive prosecution.
On December 1, 2023, the district court issued a written

opinion denying the two motions that are based on presidential
immunity and the two constitutional provisions. In relevant
part, the district court rejected Trump’s claim of executive
immunity from criminal prosecution, holding that “[f]ormer
Presidents enjoy no special conditions on their federal criminal
liability.” United States v. Trump, --- F. Supp. 3d ---, 2023 WL
8359833, at *3 (D.D.C. Dec. 1, 2023). It concluded that “[t]he
Constitution’s text, structure, and history do not support” the
existence of such an immunity, id., and that it “would betray
the public interest” to grant a former President “a categorical
exemption from criminal liability” for allegedly “attempting to
usurp the reins of government.” Id. at *12. It also held that
“neither traditional double jeopardy principles nor the
Impeachment Judgment Clause provide that a prosecution
following impeachment acquittal violates double jeopardy.”
Id. at *18.3
Former President Trump filed an interlocutory appeal of

the district court’s presidential immunity and double-jeopardy
holdings. On December 13, 2023, we granted the
3
Former President Trump does not challenge the district court’s
other holdings at this stage: (1) that “the First Amendment does not
protect speech that is used as an instrument of a crime, and
consequently the indictment — which charges [Trump] with, among
other things, making statements in furtherance of a crime — does not
violate [Trump]’s First Amendment rights,” Trump, --- F. Supp. 3d
---, 2023 WL 8359833, at *15, and (2) that the Indictment does not
violate Due Process because Trump “had fair notice that his conduct
might be unlawful,” id. at *22.
9A
9
government’s motion to expedite the appeal, and oral argument
was held on January 9, 2024.
II. JURISDICTION
Although both parties agree that the Court has jurisdiction

over former President Trump’s appeal, amicus curiae
American Oversight raises a threshold question about our
collateral-order jurisdiction. In every case, “we must assure
ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868
(D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us
jurisdiction over “final decisions of the district courts,” id., “we
ordinarily do not have jurisdiction to hear a defendant’s appeal
in a criminal case prior to conviction and sentencing,” United
States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The
collateral-order doctrine, however, treats as final and thus
allows us to exercise appellate jurisdiction over “a small class
of [interlocutory] decisions that conclusively determine the
disputed question, resolve an important issue completely
separate from the merits of the action, and are effectively
unreviewable on appeal from a final judgment.” Citizens for
Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d
860, 864 (D.C. Cir. 2008) (cleaned up). The district court’s
denial of former President Trump’s immunity defense
unquestionably satisfies the first two requirements and thus we
focus our analysis on the third: whether the denial of immunity
is effectively unreviewable on appeal from a final judgment.
District court orders rejecting claims of civil immunity are

quintessential examples of collateral orders. See, e.g., Nixon v.
Fitzgerald, 457 U.S. 731, 741–43 (1982) (executive immunity
from civil liability); Blassingame v. Trump, 87 F.4th 1, 12
(D.C. Cir. 2023) (same). But in Midland Asphalt Corp. v.
United States, the Supreme Court counseled that the collateral-
10A
10
order doctrine is interpreted “with the utmost strictness in
criminal cases.” 489 U.S. 794, 799 (1989) (cleaned up).
The Midland Asphalt Court emphasized that criminal

collateral orders that are based on “[a] right not to be tried”
must “rest[] upon an explicit statutory or constitutional
guarantee that trial will not occur” — singling out the Double
Jeopardy Clause and the Speech or Debate Clause. 489 U.S. at
801 (emphasis added). Former President Trump does not raise
a straightforward claim under the Double Jeopardy Clause but
instead relies on the Impeachment Judgment Clause and what
he calls “double jeopardy principles.” Appellant’s Br. 54 n.7.
The double-jeopardy “principle[]” he relies on is a negative
implication drawn from the Impeachment Judgment Clause.
See id. at 8, 12, 46–47. Thus, he does not invoke our
jurisdiction based on the explicit grant of immunity found in
the Double Jeopardy Clause.
Nevertheless, we can exercise jurisdiction for two reasons.

First, Midland Asphalt is distinguishable and does not require
immunity to derive from an explicit textual source. Second,
the theories of immunity former President Trump asserts are
sufficient to satisfy Midland Asphalt under Circuit precedent.
A. DISTINGUISHING MIDLAND ASPHALT
Midland Asphalt dealt with the third prong of the

collateral-order test in the context of criminal defendants who
argued they were entitled to immediately appeal the denial of
their motion to dismiss an indictment because the government
had violated Federal Rule of Criminal Procedure 6(e)(2)’s
requirement of grand jury secrecy. 489 U.S. at 796. The
Supreme Court held that an order is “effectively unreviewable”
on appeal “only where the order at issue involves ‘an asserted
right the legal and practical value of which would be destroyed
if it were not vindicated before trial.’” Id. at 799 (quoting
11A
11
United States v. MacDonald, 435 U.S. 850, 860 (1978)). The
Court rejected the defendants’ argument that the denial of the
motion satisfied the third prong. It explained that “[i]t is true
that deprivation of the right not to be tried satisfies the Coopers
& Lybrand requirement of being ‘effectively unreviewable on
appeal from a final judgment,’” but held that the defendants
had not asserted a right against trial in “the sense relevant for
purposes of the exception to the final judgment rule.” Id. at
801–02 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978) (“To come within the [collateral-order doctrine],
the order must conclusively determine the disputed question,
resolve an important issue completely separate from the merits
of the action, and be effectively unreviewable on appeal from
a final judgment.”)).
The reason the defendants’ argument failed, the Midland

Asphalt Court held, was that it overlooked the “crucial
distinction between a right not to be tried and a right whose
remedy requires the dismissal of charges.” 489 U.S. at 801
(quotation omitted). “A right not to be tried in the sense
relevant to the [collateral-order doctrine] rests upon an explicit
statutory or constitutional guarantee that trial will not occur —
as in the Double Jeopardy Clause . . . or the Speech or Debate
Clause.” Id. By contrast, Rule 6(e)(2) did not “give[] rise to a
right not to stand trial” but instead merely created a right to
secret grand jury proceedings, the violation of which could be
remedied through the indictment’s dismissal. Id. at 802.
American Oversight’s argument hinges on the Court’s use

of the adjective “explicit” — a word that appears only once in
the Midland Asphalt opinion. The Court has repeatedly (and
recently) cautioned against “read[ing] too much into too little,”
reminding us that “‘[t]he language of an opinion is not always
to be parsed as though we were dealing with language of a
statute.’” Nat’l Pork Producers Council v. Ross, 598 U.S. 356,
12A
12
373 (2023) (quoting Reiter v. Sonotone Corp., 442 U.S. 330,
341 (1979)). Instead, opinions “must be read with a careful eye
to context” and the “particular work” that quoted language
performs within an opinion. Id. at 374; see also Goldman
Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct. 1951, 1968
(2021) (Gorsuch, J., concurring in part) (“[T]his Court [has]
often said it is a mistake to parse terms in a judicial opinion
with the kind of punctilious exactitude due statutory
language.”).
The Supreme Court itself has hinted, although not squarely

held, that Midland Asphalt’s language should not be read
literally. In Digital Equipment, the Court quoted the relevant
sentence from Midland Asphalt and characterized it as a
“suggest[ion].” Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 874 (1994) (“Only such an ‘explicit statutory or
constitutional guarantee that trial will not occur,’ we suggested,
could be grounds for an immediate appeal of right under
§ 1291.” (internal citation to Midland Asphalt, 489 U.S. at 801,
omitted)). The Court then weighed the argument that Midland
Asphalt’s comment is dictum because the Court allows
interlocutory review of other implied immunities, including
qualified immunity. Id. at 875 (citing Mitchell v. Forsyth, 472
U.S. 511 (1985)). The Court did not concede the point,
however, as it pointed out that Midland Asphalt is a criminal
case and Mitchell is a civil case, but it allowed that “even if
Mitchell could not be squared fully with the literal words of the
Midland Asphalt sentence . . . that would be only because the
qualified immunity right is inexplicit, not because it lacks a
good pedigree in public law.” Id. It then noted “the insight
that explicitness may not be needed for jurisdiction consistent
13A
13
with § 1291.”4 Id. The Court ultimately chose to reject the
petitioner’s argument on a different basis, see id. at 877, so it
did not squarely resolve how to interpret Midland Asphalt. But
a fair reading contemplates that there are exceptions to Midland
Asphalt’s broad statement. See id. at 875. Other courts have
held to that effect. See Al Shimari v. CACI Int’l, Inc., 679 F.3d
205, 217 n.9 (4th Cir. 2012) (en banc) (reading Digital
Equipment to hold that qualified immunity’s “good pedigree in
public law . . . more than makes up for its implicitness”
(cleaned up)); McClendon v. City of Albuquerque, 630 F.3d
1288, 1296 n.2 (10th Cir. 2011) (interpreting Digital
Equipment’s “good pedigree in public law” comment as a
“binding” reconciliation of Midland Asphalt with the
immediate appealability of some implicit immunities).
There is good reason not to read Midland Asphalt literally

here. Read in context, the Court’s use of “explicit” was simply
to contrast a right against trial and a right that entitles the
defendant to the dismissal of charges. The latter can be
vindicated through appeal after a final judgment, but the former
cannot. The Court was not addressing an issue as to which it
was necessary to distinguish between explicit and implied
rights against trial; instead, it addressed the defendants’
assertion that the violation of the Federal Rules of Criminal
Procedure entitled them to immediate review. See Midland
Asphalt, 489 U.S. at 802 (Rule 6(e) contained “no hint” of a
right against trial). Thus, “explicit” did not perform any
“particular work” within the opinion, see Nat’l Pork
Producers, 598 U.S. at 374, meaning it would be a mistake to
make a doctrinal mountain out of a verbal molehill. See Al
4
Elsewhere, Digital Equipment refers to rights “originating in
the Constitution or statutes.” 511 U.S. at 879. Its broader
formulation comfortably encompasses implicit as well as explicit
immunities.
14A
14
Shimari, 679 F.3d at 246 (Wilkinson, J., dissenting) (calling
Midland Asphalt’s sentence “dictum” and a “lonely line”).
Nor was the question presented in Midland Asphalt

anything like the one before us. Procedural rules are worlds
different from a former President’s asserted immunity from
federal criminal liability. The Supreme Court has repeatedly
emphasized that the President is sui generis. In the civil
context, the Court has held that the denial of the President’s
assertion of absolute immunity is immediately appealable “[i]n
light of the special solicitude due to claims alleging a
threatened breach of essential Presidential prerogatives under
the separation of powers.” Fitzgerald, 457 U.S. at 743. And
in United States v. Nixon, the Court waived the typical
requirement that the President risk contempt before appealing
because it would be “unseemly” to require the President to do
so “merely to trigger the procedural mechanism for review of
the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally
“unseemly” for us to require that former President Trump first
be tried in order to secure review of his immunity claim after
final judgment. When the Court instructs us to read its opinions
“with a careful eye to context,” see Nat’l Pork Producers, 598
U.S. at 374, it authorizes us to consider the “special solicitude”
due a former President, Fitzgerald, 457 U.S. at 743.
One final reason not to overread a single adjective in

Midland Asphalt is that there is no apparent reason to treat an
implicit constitutional immunity from trial differently from an
explicit one for interlocutory review.5 Midland Asphalt
5
By contrast, the Supreme Court has explained why a right
against trial must ordinarily be “statutory or constitutional” in nature
to fall within the collateral-order doctrine. Midland Asphalt, 489
U.S. at 801. Whether a right can be effectively reviewed after final
judgment “simply cannot be answered without a judgment about the
15A
15
certainly did not provide one. The ultimate source of our
appellate jurisdiction is 28 U.S.C. § 1291, which extends to the
“final decision[]” of the district court. There is no basis in the
statutory text to treat the denial of an explicit immunity as final
but the denial of an implicit immunity as non-final. In both
cases, the “deprivation of the right not to be tried” would be
“effectively unreviewable on appeal from a final judgment.”
Midland Asphalt, 489 U.S. at 800–01 (quotation omitted).
Whether explicit or implicit in the Constitution, the right not to
stand trial must be “vindicated before trial” or not at all. Id. at
799 (quotation omitted).
B. CIRCUIT PRECEDENT
Our Circuit precedent has taken a broad view of Midland

Asphalt, consistently holding that the denial of a right not to
stand trial is immediately appealable if the right is similar or
analogous to one provided in the Constitution. Both of former
President Trump’s asserted sources of immunity — separation
of powers and double jeopardy principles — fit within this
window of appealability. See Appellant’s Br. 2–3 (listing
“Statement of the Issues”).
Our caselaw includes United States v. Rose, a civil case in

which we held that Congressman Rose’s standalone separation
of powers immunity was reviewable under § 1291 because it
served the same function as a claim of Speech or Debate Clause
immunity. 28 F.3d 181 (D.C. Cir. 1994). Congressman Rose
value of the interests that would be lost through rigorous application

of a final judgment requirement.” Digital Equip., 511 U.S. at 878–
79. But there is no need for courts to make that judgment call
“[w]hen a policy is embodied in a constitutional or statutory
provision,” thus leaving “little room for the judiciary to gainsay its
importance.” Id. at 879 (cleaned up).
16A
16
argued that he had immunity from the DOJ’s suit against him
because “the action was barred by the Speech or Debate
Clause” and, separately, because “the separation of powers
doctrine barred the DOJ from suing him” when a congressional
committee had already investigated him. Id. at 185. We held
that the latter claim falls within the collateral-order doctrine,
“recogniz[ing] claims of immunity based on the separation of
powers doctrine as an additional exception to the general rule
against interlocutory appeals.” Id. Granted, we acknowledged
that the separation of powers doctrine “does not provide as
precise a protection as the Speech or Debate Clause,” but we
focused on the “equivalent reasons for vindicating in advance
of trial whatever protection it affords.” Id. at 186 (quotation
omitted).
We confirmed Rose’s applicability in the criminal context

in United States v. Durenberger, 48 F.3d 1239 (D.C. Cir.
1995). There, former Senator Durenberger sought to dismiss
an indictment, arguing based on separation of powers that the
district court was powerless to decide whether he had violated
the Senate’s rules, a prerequisite of its assessment of the
criminal charges against him. See id. at 1241; U.S. CONST. art.
I, § 5, cl. 2 (“Each House may determine the Rules of its
Proceedings . . . .”). He thus “claim[ed] that, as a former
member of the Senate, he cannot be held to answer criminal
charges when his liability depends on judicial usurpation of the
Senate’s exclusive right to formulate its internal rules.”
Durenberger, 48 F.3d at 1242. We held that this “colorable”
argument was sufficient to confer appellate jurisdiction under
Rose. Id. Notably, the constitutional text invoked in
Durenberger can hardly be said to create an “explicit” right not
to stand trial. As we explained in a subsequent case, both Rose
and Durenberger rest on the rationale that the “separation-of-
powers doctrine conferred . . . an analogous and comparable
17A
17
privilege” to the Speech or Debate Clause. United States v.
Cisneros, 169 F.3d 763, 770 (D.C. Cir. 1999).
Following the Supreme Court’s lead, see Abney v. United

States, 431 U.S. 651, 662 (1977) (denial of motion to dismiss
indictment on double jeopardy grounds is immediately
appealable), we have also allowed interlocutory review by
analogizing to the explicit constitutional immunity in the
Double Jeopardy Clause. In United States v. Trabelsi, we
exercised interlocutory appellate jurisdiction of the defendant’s
invocation of a treaty’s non bis in idem provision, which
“mirror[ed] the Constitution’s prohibition of double jeopardy.”
28 F.4th 1291, 1298 (D.C. Cir. 2022), cert. denied, 143 S. Ct.
345 (2022). The treaty provision’s similarity to the
constitutional guarantee, we held, was enough to bring the
appeal within the scope of Abney.
Former President Trump’s two arguments can be

analogized to explicit constitutional immunities, which is all
that Durenberger and Trabelsi require. His separation of
powers argument does not explicitly draw on the Speech or
Debate Clause but neither did the argument in Durenberger.
The immunity for official acts former President Trump asserts
is “closely akin to a claim of Speech or Debate Clause
immunity,” Cisneros, 169 F.3d at 770, making it immediately
appealable because “there are equivalent reasons for
vindicating [it] in advance of trial,” Rose, 28 F.3d at 186
(quotation omitted). Likewise, the defense argues that the
Impeachment Judgment Clause “incorporates a Double
Jeopardy principle.” Appellant’s Br. 46. We found a similar
line of reasoning convincing in Trabelsi. If a treaty provision
that “mirrors” the Double Jeopardy Clause falls within the
collateral-order doctrine, so does a constitutional clause that
(purportedly) attaches jeopardy to a Senate’s impeachment
acquittal. Both of former President Trump’s arguments are at
18A
18
least analogous enough to the Speech or Debate Clause or the
Double Jeopardy Clause to fit within our precedent.
Nor will exercising jurisdiction here put us in conflict with

other circuits, as American Oversight suggests. See Am.
Oversight Br. 9. The chief cases on which American Oversight
relies are readily distinguishable because in each the asserted
right against trial was not grounded solely in either the
Constitution or a statute. See United States v. Joseph, 26 F.4th
528, 534 (1st Cir. 2022) (a state judge’s immunity depended
“solely on the common law”); United States v. Macchia, 41
F.3d 35, 38 (2d Cir. 1994) (addressing “an alleged agreement
with the United States Attorney” to provide the defendant with
immunity); United States v. Wampler, 624 F.3d 1330, 1337 &
n.3 (10th Cir. 2010) (involving “an executory plea agreement
between a company and the government” that excluded the
defendants).
Accordingly, we conclude that we have jurisdiction to

reach the merits of former President Trump’s appeal.
III. EXECUTIVE IMMUNITY
For all immunity doctrines, “the burden is on the official

claiming immunity to demonstrate his entitlement.” Dennis v.
Sparks, 449 U.S. 24, 29 (1980). Former President Trump
claims absolute immunity from criminal prosecution for all
“official acts” undertaken as President, a category, he contends,
that includes all of the conduct alleged in the Indictment.
The question of whether a former President enjoys

absolute immunity from federal criminal liability is one of first
impression. See Blassingame, 87 F.4th at 5 (noting the
unresolved question of “whether or when a President might be
immune from criminal prosecution”). The Supreme Court has
consistently held that even a sitting President is not immune
19A
19
from responding to criminal subpoenas issued by state and
federal prosecutors. See Trump v. Vance, 140 S. Ct. 2412, 2431
(2020); Nixon, 418 U.S. at 706; United States v. Burr, 25 F.
Cas. 30, 33–34 (C.C. Va. 1807) (Marshall, C.J.). In the civil
context, the Supreme Court has explained that a former
President is absolutely immune from civil liability for his
official acts, defined to include any conduct falling within the
“‘outer perimeter’ of his official responsibility.” Fitzgerald,
457 U.S. at 756. Both sitting and former Presidents remain
civilly liable for private conduct. Clinton v. Jones, 520 U.S.
681, 686, 694–95 (1997); Blassingame, 87 F.4th at 12–14.
When considering the issue of Presidential immunity, the
Supreme Court has been careful to note that its holdings on
civil liability do not carry over to criminal prosecutions. See
Fitzgerald, 457 U.S. at 754 n.37 (explaining the “lesser public
interest in actions for civil damages than, for example, in
criminal prosecutions”); cf. Clinton, 520 U.S. at 704 n.39
(noting special considerations at issue in criminal cases).
Former President Trump’s claimed immunity would have

us extend the framework for Presidential civil immunity to
criminal cases and decide for the first time that a former
President is categorically immune from federal criminal
prosecution for any act conceivably within the outer perimeter
of his executive responsibility. He advances three grounds for
establishing this expansive immunity for former Presidents:
(1) Article III courts lack the power to review the President’s
official acts under the separation of powers doctrine; (2)
functional policy considerations rooted in the separation of
powers require immunity to avoid intruding on Executive
Branch functions; and (3) the Impeachment Judgment Clause
does not permit the criminal prosecution of a former President
in the absence of the Congress impeaching and convicting him.
20A
20
Our analysis is “guided by the Constitution, federal
statutes, and history,” as well as “concerns of public policy.”
Fitzgerald, 457 U.S. at 747. Relying on these sources, we
reject all three potential bases for immunity both as a
categorical defense to federal criminal prosecutions of former
Presidents and as applied to this case in particular.
A. SEPARATION OF POWERS DOCTRINE
The President of the United States “occupies a unique

position in the constitutional scheme.” Fitzgerald, 457 U.S. at
749; see Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034
(2020) (“The President is the only person who alone composes
a branch of government.”). Under the separation of powers
established in the Constitution, the President is vested with
“executive Power,” U.S. CONST. art. II, § 1, cl.1, which entails
the duty to “take Care that the Laws be faithfully executed,” id.
§ 3, and “supervisory and policy responsibilities of utmost
discretion and sensitivity,” Fitzgerald, 457 U.S. at 750. The
President’s constitutional role exists alongside the Congress’s
duty to make the laws, U.S. CONST. art. I, § 1, and the
Judiciary’s duty to “say what the law is,” Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 (1803).
“It is settled law that the separation-of-powers doctrine

does not bar every exercise of jurisdiction over the President of
the United States.” Fitzgerald, 457 U.S. at 753–54; see also
Nixon, 418 U.S. at 706 (separation of powers doctrine cannot
“sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances”).
Nevertheless, former President Trump argues that the
constitutional structure of separated powers means that
“neither a federal nor a state prosecutor, nor a state or federal
court, may sit in judgment over a President’s official acts,
which are vested in the Presidency alone.” Appellant’s Br. 10.
21A
21
He relies on Marbury’s oft-quoted statement that a President’s
official acts “can never be examinable by the courts.” Id.
(quoting Marbury, 5 U.S. (1 Cranch) at 166); see also Reply
Br. 6.
Former President Trump misreads Marbury and its

progeny. Properly understood, the separation of powers
doctrine may immunize lawful discretionary acts but does not
bar the federal criminal prosecution of a former President for
every official act.
Marbury distinguished between two kinds of official acts:

discretionary and ministerial. As to the first category, Chief
Justice Marshall recognized that “the President is invested with
certain important political powers, in the exercise of which he
is to use his own discretion, and is accountable only to his
country in his political character, and to his own conscience.”
Marbury, 5 U.S. (1 Cranch) at 165–66. When the President or
his appointed officers exercise discretionary authority, “[t]he
subjects are political” and “the decision of the executive is
conclusive.” Id. at 166. Their discretionary acts, therefore,
“can never be examinable by the courts.” Id. “But,” Chief
Justice Marshall continued, “when the legislature proceeds to
impose on that officer other duties; when he is directed
peremptorily to perform certain acts; when the rights of
individuals are dependent on the performance of those acts; he
is so far the officer of the law; is amenable to the laws for his
conduct; and cannot at his discretion sport away the vested
rights of others.” Id. (emphases added). Under these
circumstances, an executive officer acts as a “ministerial
officer . . . compellable to do his duty, and if he refuses, is
liable to indictment.” Id. at 150; see id. at 149–50 (“It is not
consistent with the policy of our political institutions, or the
manners of the citizens of the United States, that any
ministerial officer having public duties to perform, should be
22A
22
above the compulsion of law in the exercise of those duties.”).
Based on these principles, Chief Justice Marshall concluded
that, although discretionary acts are “only politically
examinable,” the judiciary has the power to hear cases “where
a specific duty is assigned by law.” Id. at 166. Marbury thus
makes clear that Article III courts may review certain kinds of
official acts — including those that are legal in nature.
The cases following Marbury confirm that we may review

the President’s actions when he is bound by law, including by
federal criminal statutes. In Little v. Barreme, the Supreme
Court concluded that the President’s order to a subordinate
officer to seize American ships traveling to or from French
ports violated the Nonintercourse Act precisely because the
Congress had acted to constrain the Executive’s discretion. 6
U.S. (2 Cranch) 170, 177–79 (1804). Chief Justice Marshall
observed that the President may have had the discretionary
authority to order the seizure absent legislation but had no
discretion to violate the Act. Id. at 177–78. Similarly, in
Kendall v. United States ex rel. Stokes, the Supreme Court
reviewed the official acts of the postmaster general, the
President’s subordinate officer who derived his authority from
the Executive Branch, because the civil case involved the
violation of a statutory requirement. 37 U.S. 524, 612–13
(1838). To find a statutory violation unreviewable, the Court
held, “would be clothing the President with a power entirely to
control the legislation of congress, and paralyze the
administration of justice.” Id. at 613.
Then, in Mississippi v. Johnson, the Supreme Court

considered whether the State of Mississippi could sue President
Andrew Johnson to enjoin him from enforcing the
Reconstruction Acts, which the State alleged were
unconstitutional. 71 U.S. 475, 497–98 (1866). The Court
concluded that it lacked jurisdiction to issue an injunction,
23A
23
relying on Marbury, Kendall and the distinction between “mere
ministerial dut[ies]” in which “nothing was left to discretion”
and “purely executive and political” duties involving the
President’s discretion. Id. at 498–99; see also Martin v. Mott,
25 U.S. 19, 31–32 (1827) (no judicial power to review
President exercising his “discretionary power” conferred by
statute). In holding that it could not enjoin the President from
using his discretion, the Court nevertheless affirmed the role of
the Judiciary in checking the other two branches of
government: “The Congress is the legislative department of
the government; the President is the executive department.
Neither can be restrained in its action by the judicial
department; though the acts of both, when performed, are, in
proper cases, subject to its cognizance.” Mississippi, 71 U.S.
at 500.
The Supreme Court exercised its cognizance over

Presidential action to dramatic effect in 1952, when it held that
President Harry Truman’s executive order seizing control of
most of the country’s steel mills exceeded his constitutional
and statutory authority and was therefore invalid. Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–89 (1952). The
Congress had not legislated to authorize President Truman’s
seizure and in fact had “refused to adopt th[e seizure] method
of settling labor disputes.” Id. at 586. President Truman could
lawfully act only to execute the Congress’s laws or to carry out
his constitutional duties as the Executive; and he lacked
authority from either source to seize the steel mills. Id. at 587–
89. As Justice Jackson explained, the Court’s holding
invalidating the executive order was proper because “[w]hen
the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb.” Id.
at 637 (Jackson, J., concurring). Based on Youngstown and
Marbury, the Supreme Court in Clinton easily concluded that
“when the President takes official action, the Court has the
24A
24
authority to determine whether he has acted within the law.”
Clinton, 520 U.S. at 703.
Objection may be made that Marbury and its progeny

exercised jurisdiction only over subordinate officers, not the
President himself. The writ in Marbury was brought against
the Secretary of State; in Little against a commander of a ship
of war; in Kendall against the postmaster general; in
Youngstown against the Secretary of Commerce. But as the
Supreme Court has unequivocally explained:
No man in this country is so high that he is

above the law. No officer of the law may set
that law at defiance with impunity. All the
officers of the government, from the highest to
the lowest, are creatures of the law and are
bound to obey it. It is the only supreme power
in our system of government, and every man
who by accepting office participates in its
functions is only the more strongly bound to
submit to that supremacy, and to observe the
limitations which it imposes upon the exercise
of the authority which it gives.
United States v. Lee, 106 U.S. 196, 220 (1882). “That principle
applies, of course, to a President.” Vance, 140 S. Ct. at 2432
(Kavanaugh, J., concurring).
Further, the Supreme Court has repeatedly affirmed the

judiciary’s power to “direct appropriate process to the
President himself.” Clinton, 520 U.S. at 705. The President
does not enjoy absolute immunity from criminal subpoenas
issued by state and federal prosecutors and may be compelled
by the courts to respond. Burr, 25 F. Cas. at 33–34; Nixon, 418
U.S. at 713–14; Vance, 140 S. Ct. at 2431. We have “200 years
of precedent establishing that Presidents, and their official
25A
25
communications, are subject to judicial process, even when the
President is under investigation.” Vance, 140 S. Ct. at 2427
(citations omitted); see also Clinton, 520 U.S. at 703–05
(recounting history of sitting Presidents complying with court
orders to provide testimony and other evidence).
The separation of powers doctrine, as expounded in

Marbury and its progeny, necessarily permits the Judiciary to
oversee the federal criminal prosecution of a former President
for his official acts because the fact of the prosecution means
that the former President has allegedly acted in defiance of the
Congress’s laws. Although certain discretionary actions may
be insulated from judicial review, the structure of the
Constitution mandates that the President is “amenable to the
laws for his conduct” and “cannot at his discretion” violate
them. Marbury, 5 U.S. (1 Cranch) at 166. Here, former
President Trump’s actions allegedly violated generally
applicable criminal laws, meaning those acts were not properly
within the scope of his lawful discretion; accordingly, Marbury
and its progeny provide him no structural immunity from the
charges in the Indictment.
Our conclusion that the separation of powers doctrine does

not immunize former Presidents from federal criminal liability
is reinforced by the analogous immunity doctrines for
legislators and judges. Legislators and judges are absolutely
immune from civil suits for any official conduct, and legislators
have an explicit constitutional immunity from criminal
prosecution arising from the Speech or Debate Clause.
Nevertheless, legislators and judges can be criminally
prosecuted under generally applicable laws for their official
acts consistent with the separation of powers doctrine.
Legislators have explicit constitutional immunity from

criminal or civil liability “for what they do or say in legislative
26A
26
proceedings” under the Speech or Debate Clause. Tenney v.
Brandhove, 341 U.S. 367, 372 (1951); see U.S. CONST. art. I,
§ 6, cl. 1. But outside of constitutionally protected legislative
conduct, members of the Congress perform a wide range of
“acts in their official capacity” that are not “legislative in
nature” and so can subject them to criminal liability. Gravel v.
United States, 408 U.S. 606, 625 (1972); see id. at 626 (Speech
or Debate Clause “does not privilege either Senator or aide to
violate an otherwise valid criminal law in preparing for or
implementing legislative acts”). In United States v. Johnson, a
Congressman was criminally charged with conspiring to
pressure the Department of Justice to dismiss pending
indictments of a loan company and its officers on mail fraud
charges. 383 U.S. 169, 171 (1966). The Supreme Court held
that the prosecution could not include evidence related to a
speech made by Johnson on the House floor because of his
constitutional immunity but, the Court made clear, Johnson
could be retried on the same count “wholly purged of elements
offensive to the Speech or Debate Clause.” Id. at 185.
Although his unprotected conduct constituted an official act
under Fitzgerald (communicating with the Executive Branch),
see id. at 172, it was constrained by and subject to “criminal
statute[s] of general application.” Id. at 185.
Judges are similarly liable to the criminal laws for their

official acts. A notable example is Ex parte Commonwealth of
Virginia, in which the Supreme Court applied Marbury’s
discretionary/ministerial distinction to affirm the criminal
indictment of a judge based on an official act. 100 U.S. 339
(1879). A county judge was indicted in federal court for
violating a federal statute that prohibited discriminating on the
basis of race in jury selection. Id. at 340, 344. The Supreme
Court began by observing the principle that officers are bound
to follow the law: “We do not perceive how holding an office
under a State, and claiming to act for the State, can relieve the
27A
27
holder from obligation to obey the Constitution of the United
States, or take away the power of Congress to punish his
disobedience.” Id. at 348. The Court then addressed the
judge’s argument that the Court lacked the authority to punish
a state judge for “his official acts.” Id. Its response was
twofold. First, the Court described juror selection as “merely
a ministerial act, as much so as the act of a sheriff holding an
execution, in determining upon what piece of property he will
make a levy, or the act of a roadmaster in selecting laborers to
work upon the roads.” Id. The Court then explained that even
if juror selection is considered a “judicial act,” the judge had a
legal duty to obey the criminal laws:
But if the selection of jurors could be considered

in any case a judicial act, can the act charged
against the petitioner be considered such when
he acted outside of his authority and in direct
violation of the spirit of the State statute? That
statute gave him no authority, when selecting
jurors, from whom a panel might be drawn for
a circuit court, to exclude all colored men
merely because they were colored. Such an
exclusion was not left within the limits of his
discretion. It is idle, therefore, to say that the
act of Congress is unconstitutional because it
inflicts penalties upon State judges for their
judicial action. It does no such thing.
Id. at 348–49 (emphasis added).6
6
The Court’s reference to “the State statute” is to the Virginia
law charging the county judge with the duty to select jurors in the
circuit and county courts. Ex parte Virginia, 100 U.S. at 340.
28A
28
More recent case law on the judicial immunity doctrine
affirms that judges are not immune from criminal liability for
their official acts. O’Shea v. Littleton confirmed the holding of
Ex parte Virginia in dismissing a civil rights action for
equitable relief brought against a county magistrate and
associate judge of a county circuit. 414 U.S. 488, 490–91, 503
(1974). The Supreme Court concluded that the requested
injunction was not the only available remedy because both
judges remained answerable to the federal criminal laws:
[W]e have never held that the performance of

the duties of judicial, legislative, or executive
officers, requires or contemplates the
immunization of otherwise criminal deprivation
of constitutional rights. 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
Congress . . . .’
Id. at 503 (citation to Ex parte Virginia, 100 U.S. 339, omitted;

quoting Gravel, 408 U.S. at 627). Similarly, in Dennis v.
Sparks, the Court affirmed judicial immunity from civil money
damages in the context of bribery allegations but explained that
judges “are subject to criminal prosecutions as are other
citizens.” 449 U.S. at 31. Crucially, the judge in Dennis
retained civil immunity because “the challenged conduct” —
allegedly issuing an injunction corruptly after accepting bribes
as part of a conspiracy — was “an official judicial act within
his statutory jurisdiction, broadly construed.” Id. at 29. The
scope of civil judicial immunity thus aligns with civil
Presidential immunity under Fitzgerald, but a judge has no
criminal immunity for the same “official act.” See also Imbler
v. Pachtman, 424 U.S. 409, 429 (1976) (“Even judges, cloaked
with absolute civil immunity for centuries, could be punished
29A
29
criminally for willful deprivations of constitutional
rights . . . .”); United States v. Gillock, 445 U.S. 360, 372
(1980) (“[T]he cases in this Court which have recognized an
immunity from civil suit for state officials have presumed the
existence of federal criminal liability as a restraining factor on
the conduct of state officials.”).7
When considering the criminal prosecutions of judges,

other circuits have repeatedly rejected judicial criminal
immunity for official acts, largely in the context of bribery
prosecutions. See United States v. Claiborne, 727 F.2d 842,
845 (9th Cir.) (per curiam), cert. denied, 469 U.S. 829 (1984);
United States v. Hastings, 681 F.2d 706, 709–11 (11th Cir.
1982), cert. denied, 459 U.S. 1203 (1983); United States v.
Isaacs, 493 F.2d 1124, 1143–44 (7th Cir.) (per curiam), cert.
denied, 417 U.S. 976 (1974), overruled on other grounds by
United States v. Gimbel, 830 F.2d 621 (7th Cir. 1987). Former
President Trump argues that bribery allegations were not
considered “judicial acts” at common law, Appellant’s Br. 21,
but his sources do not support his conclusion. He is correct that
7
In his brief, former President Trump contends otherwise,
primarily relying on two words in a single line of dictum from
Spalding v. Vilas to urge that judges are immune from criminal
prosecution for their official acts. Appellant’s Br. 19. Spalding was
a civil case in which the Supreme Court quoted an opinion of the
Supreme Court of New York: “The doctrine which holds a judge
exempt from a civil suit or indictment for any act done or omitted to
be done by him, sitting as judge, has a deep root in the common law.”
Spalding v. Vilas, 161 U.S. 483, 494 (1896) (quoting Yates v.
Lansing, 5 Johns. 282, 291 (N.Y. Sup. Ct. 1810)) (emphasis added).
The Supreme Court did not analyze the scope of judicial criminal
immunity itself and the quoted New York language is flatly
incompatible with the Supreme Court case law addressed supra. We
do not consider Spalding’s dictum binding on the question of judicial
criminal immunity.
30A
30
Blackstone and other early common law sources expressly
contemplated the criminal prosecution of judges on bribery
charges. See 4 WILLIAM BLACKSTONE, COMMENTARIES *139;
Perrin v. United States, 444 U.S. 37, 43 (1979). But this shows
only that judicial immunity did not stretch to shield judges from
generally applicable criminal laws, not that bribery was ever
considered a nonofficial act. And as explained supra, the
Supreme Court emphasized the official nature of the bribery
allegations in Dennis while reinforcing the judge’s criminal
liability.
We therefore conclude that Article III courts may hear the

charges alleged in the Indictment under the separation of
powers doctrine, as explained in Marbury and its progeny and
applied in the analogous contexts of legislative and judicial
immunity. The Indictment charges that former President
Trump violated criminal laws of general applicability. Acting
against laws enacted by the Congress, he exercised power that
was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson,
J., concurring). Former President Trump lacked any lawful
discretionary authority to defy federal criminal law and he is
answerable in court for his conduct.
B. FUNCTIONAL POLICY CONSIDERATIONS
Even though it is proper under Marbury and its progeny

for an Article III court to hear criminal charges brought against
a former President, we “necessarily” must “weigh[] concerns
of public policy, especially as illuminated by our history and
the structure of our government,” including our “constitutional
heritage and structure.” Fitzgerald, 457 U.S. at 747–48; see id.
at 748 (our historical analysis merges with public policy
analysis “[b]ecause the Presidency did not exist through most
of the development of common law”); Clinton, 520 U.S. at 694
(courts apply “a functional approach” in determining the scope
31A
31
of official immunity). “This inquiry involves policies and
principles that may be considered implicit in the nature of the
President’s office in a system structured to achieve effective
government under a constitutionally mandated separation of
powers.” Fitzgerald, 457 U.S. at 748. Our analysis entails
“balanc[ing] the constitutional weight of the interest to be
served against the dangers of intrusion on the authority and
functions of the Executive Branch.” Id. at 754.
We note at the outset that our analysis is specific to the

case before us, in which a former President has been indicted
on federal criminal charges arising from his alleged conspiracy
to overturn federal election results and unlawfully overstay his
Presidential term.8 We consider the policy concerns at issue in
this case in two respects. First, we assess possible intrusions
on the authority and functions of the Executive Branch and the
countervailing interests to be served as those concerns apply to
former President Trump’s claim that former Presidents are
categorically immune from federal prosecution. We conclude
that the interest in criminal accountability, held by both the
public and the Executive Branch, outweighs the potential risks
of chilling Presidential action and permitting vexatious
litigation. Second, we examine the additional interests raised
by the nature of the charges in the Indictment: The Executive
Branch’s interest in upholding Presidential elections and
vesting power in a new President under the Constitution and
the voters’ interest in democratically selecting their President.
We find these interests compel the conclusion that former
President Trump is not immune from prosecution under the
Indictment.
8
We do not address policy considerations implicated in the
prosecution of a sitting President or in a state prosecution of a
President, sitting or former.
32A
32
1. CATEGORICAL IMMUNITY DEFENSE
Former President Trump argues that criminal liability for

former Presidents risks chilling Presidential action while in
office and opening the floodgates to meritless and harassing
prosecution. These risks do not overcome “the public interest
in fair and accurate judicial proceedings,” which “is at its
height in the criminal setting.” Vance, 140 S. Ct. at 2424.
Former President Trump first asserts that the prospect of

potential post-Presidency criminal liability would inhibit a
sitting President’s ability to act “fearlessly and impartially,”
citing the “especially sensitive duties” of the President and the
need for “bold and unhesitating action.” Appellant’s Br. 21–
22 (quoting Fitzgerald, 457 U.S. at 745–46). But “[t]he chance
that now and then there may be found some timid soul who will
take counsel of his fears and give way to their repressive power
is too remote and shadowy to shape the course of justice.”
Clark v. United States, 289 U.S. 1, 16 (1933). In Clark, the
Supreme Court dismissed the threat of a chilling effect, holding
that jurors could be subject to criminal prosecution for conduct
during their jury service and explaining that a “juror of integrity
and reasonable firmness will not fear to speak his mind if the
confidences of debate are barred to the ears of mere
impertinence or malice.” Id. Rather, the Court observed, “[h]e
will not expect to be shielded against the disclosure of his
conduct in the event that there is evidence reflecting upon his
honor.” Id. The Court reinforced the point in United States v.
Nixon, holding that it could not “conclude that [Presidential]
advisers will be moved to temper the candor of their remarks
by the infrequent occasions of disclosure because of the
possibility that such conversations will be called for in the
context of a criminal prosecution.” 418 U.S. at 712. So too
here. We cannot presume that a President will be unduly
cowed by the prospect of post-Presidency criminal liability any
33A
33
more than a juror would be influenced by the prospect of post-
deliberation criminal liability, or an executive aide would be
quieted by the prospect of the disclosure of communications in
a criminal prosecution.
Moreover, past Presidents have understood themselves to

be subject to impeachment and criminal liability, at least under
certain circumstances, so the possibility of chilling executive
action is already in effect. Even former President Trump
concedes that criminal prosecution of a former President is
expressly authorized by the Impeachment Judgment Clause
after impeachment and conviction. E.g., Oral Arg. Tr. 13:25–
14:9. We presume that every President is aware of the
Impeachment Judgment Clause and knows that he is “liable
and subject to Indictment, Trial, Judgment and Punishment,
according to Law,” at least after impeachment and conviction.
U.S. CONST. art. I, § 3, cl. 7.
Additionally, recent historical evidence suggests that

former Presidents, including President Trump, have not
believed themselves to be wholly immune from criminal
liability for official acts during their Presidency. President
Gerald Ford issued a full pardon to former President Richard
Nixon, which both former Presidents evidently believed was
necessary to avoid Nixon’s post-resignation indictment. See,
e.g., President Gerald R. Ford’s Proclamation 4311, Granting
a Pardon to Richard Nixon, Ford Presidential Library (Sept. 8,
1974); Statement by Former President Richard Nixon 1, Ford
Presidential Library (Sept. 8, 1974). Before leaving office,
President Bill Clinton agreed to a five-year suspension of his
law license and a $25,000 fine in exchange for Independent
Counsel Robert Ray’s agreement not to file criminal charges
against him. See John F. Harris & Bill Miller, In a Deal,
Clinton Avoids Indictment, WASH. POST (Jan. 20, 2001),
https://perma.cc/MMR9-GDTL. And during President
34A
34
Trump’s 2021 impeachment proceedings for incitement of
insurrection, his counsel argued that instead of post-Presidency
impeachment, the appropriate vehicle for “investigation,
prosecution, and punishment” is “the article III courts,” as
“[w]e have a judicial process” and “an investigative process . . .
to which no former officeholder is immune.” 167 CONG. REC.
S607 (daily ed. Feb. 9, 2021); see also id. at S693 (daily ed.
Feb. 12, 2021) (“[T]he text of the Constitution . . . makes very
clear that a former President is subject to criminal sanction after
his Presidency for any illegal acts he commits.”). In light of
the express mention of “Indictment” in the Impeachment
Judgment Clause and recent historical evidence of former
Presidents acting on the apparent understanding that they are
subject to prosecution even in the absence of conviction by the
Senate, the risk of criminal liability chilling Presidential action
appears to be low.
Instead of inhibiting the President’s lawful discretionary

action, the prospect of federal criminal liability might serve as
a structural benefit to deter possible abuses of power and
criminal behavior. “Where an official could be expected to
know that certain conduct would violate statutory or
constitutional rights, he should be made to hesitate . . . .”
Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). As the district
court observed: “Every President will face difficult decisions;
whether to intentionally commit a federal crime should not be
one of them.” Trump, --- F. Supp. 3d ---, 2023 WL 8359833,
at *9.
Former President Trump next urges that a lack of criminal

immunity will subject future Presidents to politically motivated
prosecutions as soon as they leave office. In the civil context,
the Supreme Court found official-act Presidential immunity
necessary in part to avoid “subject[ing] the President to trial on
virtually every allegation that an action was unlawful, or was
35A
35
taken for a forbidden purpose.” Fitzgerald, 457 U.S. at 756;
see id. at 753 (“In view of the visibility of his office and the
effect of his actions on countless people, the President would
be an easily identifiable target for suits for civil damages.”).
But the decision to initiate a federal prosecution is committed
to the prosecutorial discretion of the Executive Branch.
Prosecutors have ethical obligations not to initiate unfounded
prosecutions and “courts presume that they . . . properly
discharge[] their official duties.” United States v. Armstrong,
517 U.S. 456, 464 (1996) (quoting United States v. Chem.
Found., Inc., 272 U.S. 1, 14–15 (1926)). There are additional
safeguards in place to prevent baseless indictments, including
the right to be charged by a grand jury upon a finding of
probable cause. U.S. CONST. amend. V; Kaley v. United States,
571 U.S. 320, 328 (2014). “[G]rand juries are prohibited from
engaging in ‘arbitrary fishing expeditions’ and initiating
investigations ‘out of malice or an intent to harass.’” Vance,
140 S. Ct. at 2428 (quoting United States v. R. Enters., Inc.,
498 U.S. 292, 299 (1991)). Additionally, former President
Trump’s “predictive judgment” of a torrent of politically
motivated prosecutions “finds little support in either history or
the relatively narrow compass of the issues raised in this
particular case,” see Clinton, 520 U.S. at 702, as former
President Trump acknowledges that this is the first time since
the Founding that a former President has been federally
indicted. Weighing these factors, we conclude that the risk that
former Presidents will be unduly harassed by meritless federal
criminal prosecutions appears slight.
On the other side of the scale, we must consider “the

constitutional weight of the interest to be served” by allowing
the prosecution of a former President to proceed. Fitzgerald,
457 U.S. at 754. The public has a fundamental interest in the
enforcement of criminal laws. Vance, 140 S. Ct. at 2424.
“[O]ur historic commitment to the rule of law . . . is nowhere
36A
36
more profoundly manifest than in our view that ‘the twofold
aim (of criminal justice) is that guilt shall not escape or
innocence suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger
v. United States, 295 U.S. 78, 88 (1935)). As the Nixon Court
explained, wholly immunizing the President from the criminal
justice process would disturb “the primary constitutional duty
of the Judicial Branch to do justice in criminal prosecutions” to
such an extent that it would undermine the separation of powers
by “plainly conflict[ing] with the function of the courts under
Art. III.” Nixon, 418 U.S. at 707.
There is also a profound Article II interest in the

enforcement of federal criminal laws. The President has a
constitutionally mandated duty to “take Care that the Laws be
faithfully executed.” U.S. CONST. art. II, § 3. As part of this
duty, the President is responsible for investigating and
prosecuting criminal violations. See Morrison v. Olson, 487
U.S. 654, 706 (1988) (Scalia, J., dissenting) (“Governmental
investigation and prosecution of crimes is a quintessentially
executive function.”); see also In re Lindsey, 158 F.3d 1263,
1272 (D.C. Cir. 1998) (“Investigation and prosecution of
federal crimes is one of the most important and essential
functions within [the President’s] constitutional
responsibility.”); Cmty. For Creative Non-Violence v. Pierce,
786 F.2d 1199, 1201 (D.C. Cir. 1986) (“The power to decide
when to investigate, and when to prosecute, lies at the core of
the Executive’s duty to see to the faithful execution of the
laws . . . .”). Beyond simply making explicit that a President
must enforce the law, the Take Care Clause plays a central role
in “signify[ing] . . . the principle that ours is a government of
laws, not of men, and that we submit ourselves to rulers only if
under rules.” Youngstown, 343 U.S. at 646 (Jackson, J.,
concurring). It would be a striking paradox if the President,
who alone is vested with the constitutional duty to “take Care
37A
37
that the Laws be faithfully executed,” were the sole officer
capable of defying those laws with impunity.
The federal prosecution of a former President fits the case

“[w]hen judicial action is needed to serve broad public
interests” in order to “vindicate the public interest in an
ongoing criminal prosecution.” Fitzgerald, 457 U.S. at 754.
The risks of chilling Presidential action or permitting meritless,
harassing prosecutions are unlikely, unsupported by history
and “too remote and shadowy to shape the course of justice.”
See Clark, 289 U.S. at 16. We therefore conclude that
functional policy considerations rooted in the structure of our
government do not immunize former Presidents from federal
criminal prosecution.
2. IMMUNITY FROM THE INDICTMENT’S

CHARGES
In addition to the generally applicable concerns discussed

supra, the allegations of the Indictment implicate the Article II
interests in vesting authority in a new President and the
citizenry’s interest in democratically selecting its President.
The Indictment alleges that the assertedly “official”

actions at issue here were undertaken by former President
Trump in furtherance of a conspiracy to unlawfully overstay
his term as President and to displace his duly elected successor.
See Indictment ¶¶ 2, 10. That alleged conduct violated the
constitutionally established design for determining the results
of the Presidential election as well as the Electoral Count Act
of 1887, neither of which establishes a role for the President in
counting and certifying the Electoral College votes. U.S.
CONST. art. II, § 1, cl. 3; id. amend. XII; 3 U.S.C. § 15,
amended by 136 Stat. 4459, 5238 (2022); see Indictment ¶¶ 9–
10. The alleged conduct also violated Article II’s mandate that
a President “hold his Office during the Term of four Years.”
38A
38
U.S. CONST. art. II, § 1, cl. 1. The Twentieth Amendment
reinforces the discrete nature of a presidential term, explicitly
providing that “[t]he terms of the President and Vice President
shall end at noon on the 20th day of January . . .; and the terms
of their successors shall then begin.” U.S. CONST. amend. XX,
§ 1. Upon “the expiration of the time for which he is elected,”
a former president “returns to the mass of the people again” and
the power of the Executive Branch vests in the newly elected
President. Burr, 25 F. Cas. at 34; U.S. CONST. art. II, § 1, cl. 1
(“The executive Power shall be vested in a President of the
United States of America.”) (emphasis added).
The President, of course, also has a duty under the Take

Care Clause to faithfully enforce the laws. This duty
encompasses following the legal procedures for determining
election results and ensuring that executive power vests in the
new President at the constitutionally appointed time. To the
extent former President Trump maintains that the post-2020
election litigation that his campaign and supporters
unsuccessfully pursued implemented his Take Care duty, he is
in error. See infra n.14. Former President Trump’s alleged
conduct conflicts with his constitutional mandate to enforce the
laws governing the process of electing the new President.
The public has a strong interest in the foundational

principle of our government that the will of the people, as
expressed in the Electoral College vote, determines who will
serve as President. See U.S. CONST. amend. XII (“The Electors
shall meet in their respective states, and vote by ballot for
President and Vice-President. . . . The person having the
greatest number of votes for President, shall be the
President.”); Chiafalo v. Washington, 140 S. Ct. 2316, 2328
(2020) (“Early in our history, States decided to tie electors to
the presidential choices of [citizens].”). The Supreme Court
recently noted that “the Framers made the President the most
39A
39
democratic and politically accountable official in
Government,” the only one who (along with the Vice
President) is “elected by the entire Nation.” Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2203 (2020).
“To justify and check” the President’s “unique [authority] in
our constitutional structure,” Article II “render[s] the President
directly accountable to the people through regular elections.”
Id. As James Madison put it, “[a] dependence on the people is,
no doubt, the primary control on the government.” The
Federalist No. 51, at 253 (James Madison) (Coventry House
Publishing, 2015)9; see also Morrison, 487 U.S. at 731 (Scalia,
J., dissenting) (“[T]he Founders . . . established a single Chief
Executive accountable to the people” so that “the blame [could]
be assigned to someone who can be punished.”). Thus, the
quadrennial Presidential election is a crucial check on
executive power because a President who adopts unpopular
policies or violates the law can be voted out of office.
Former President Trump’s alleged efforts to remain in

power despite losing the 2020 election were, if proven, an
unprecedented assault on the structure of our government. He
allegedly injected himself into a process in which the President
has no role — the counting and certifying of the Electoral
College votes — thereby undermining constitutionally
established procedures and the will of the Congress. To
immunize former President Trump’s actions would “further . . .
aggrandize the presidential office, already so potent and so
relatively immune from judicial review, at the expense of
Congress.” Youngstown, 343 U.S. at 654 (Jackson, J.,
concurring) (footnote omitted). As Justice Jackson warned:
9
Federalist No. 51 is “generally attributed to Madison” but is
“sometimes attributed to ‘Hamilton or Madison.’” INS v. Chadha,
462 U.S. 919, 950 (1983).
40A
40
Executive power has the advantage of
concentration in a single head in whose choice
the whole Nation has a part, making him the
focus of public hopes and expectations. In
drama, magnitude and finality his decisions so
far overshadow any others that almost alone he
fills the public eye and ear. No other personality
in public life can begin to compete with him in
access to the public mind through modern
methods of communications. By his prestige as
head of state and his influence upon public
opinion he exerts a leverage upon those who are
supposed to check and balance his power which
often cancels their effectiveness.
Id. at 653–54 (Jackson, J., concurring).
We cannot accept former President Trump’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 of election
results. Nor can we sanction his apparent contention that the
Executive has carte blanche to violate the rights of individual
citizens to vote and to have their votes count.
* * *
At bottom, former President Trump’s stance would

collapse our system of separated powers by placing the
President beyond the reach of all three Branches. Presidential
immunity against federal indictment would mean that, as to the
President, the Congress could not legislate, the Executive could
not prosecute and the Judiciary could not review. We cannot
accept that the office of the Presidency places its former
occupants above the law for all time thereafter. Careful
evaluation of these concerns leads us to conclude that there is
41A
41
no functional justification for immunizing former Presidents
from federal prosecution in general or for immunizing former
President Trump from the specific charges in the Indictment.
In so holding, we act, “not in derogation of the separation of
powers, but to maintain their proper balance.” See Fitzgerald,
457 U.S. at 754.
C. THE IMPEACHMENT JUDGMENT CLAUSE
The strongest evidence against former President Trump’s

claim of immunity is found in the words of the Constitution.
The Impeachment Judgment Clause provides that “[j]udgment
in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy
any Office of honor, Trust or Profit under the United States:
but the Party convicted shall nevertheless be liable and subject
to Indictment, Trial, Judgment and Punishment, according to
Law.” U.S. CONST. art. I, § 3, cl. 7. That language limits the
consequences of impeachment to removal and disqualification
from office, but explicitly preserves the option of criminal
prosecution of an impeached official “according to Law.”
Former President Trump agrees that the Impeachment

Judgment Clause contemplates and permits the prosecution of
a former President on criminal charges — he argues only that
such a former President first must be impeached by the House
and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In
other words, he asserts that, under the Clause, a former
President enjoys immunity for any criminal acts committed
while in office unless he is first impeached and convicted by
the Congress. Under that theory, he claims that he is immune
from prosecution because he was impeached and acquitted. By
taking that position, former President Trump potentially
narrows the parties’ dispute to whether he may face criminal
charges in this case consistent with the Impeachment Judgment
42A
42
Clause: If the Clause requires an impeachment conviction first,
he may not be prosecuted; but if it contains no such
requirement, the Clause presents no impediment to his
prosecution.
Former President Trump also implicitly concedes that

there is no absolute bar to prosecuting assertedly “official”
actions. He argues elsewhere in his brief that his impeachment
on the charge of inciting insurrection was based on conduct that
was the “same and closely related” to the “official acts”
charged in the Indictment. Appellant’s Br. 46 (“President
Trump was impeached and acquitted by the Senate for the same
and closely related conduct to that alleged in the indictment.”
(emphasis omitted)); id. at 42 (“[A]ll five types of conduct
alleged in the indictment constitute official acts.”). And he
agrees that if he had been convicted by the Senate in that
impeachment trial, he would not be immune from prosecution
for the “official acts” at issue here. See id. at 31. Thus, he
concedes that a President can be prosecuted for broadly defined
“official acts,” such as the ones alleged in the Indictment, under
some circumstances, i.e., following an impeachment
conviction.
The Impeachment Judgment Clause is focused solely on

those who are convicted by the Senate following impeachment
by the House. The first part of the Clause limits the penalties
that can be imposed based on an impeachment conviction:
“Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United
States.” U.S. CONST. art. I, § 3, cl. 7. The second part makes
clear that the limited consequences of impeachment do not
immunize convicted officers from criminal prosecution:
“[T]he Party convicted shall nevertheless be liable and subject
43A
43
to Indictment, Trial, Judgment and Punishment, according to
Law.” Id.
In former President Trump’s view, however, the word

“convicted” in the second phrase implicitly bestows immunity
on Presidents who are not convicted, based on a negative
implication. He asserts that the Impeachment Judgment Clause
“presupposes” that a President is not criminally liable absent a
conviction in the Senate. Appellant’s Br. 12. Other courts have
rejected this “tortured” interpretation of the Impeachment
Judgment Clause, which previously has been advanced to
support claims of judicial immunity. See Claiborne, 727 F.2d
at 846 (“According to Claiborne, this language means that a
federal judge cannot be indicted and tried in an Article III court
unless he has been removed from office by the impeachment
process. Both Isaacs and Hastings rejected this tortured
interpretation . . . .” (cleaned up)); Hastings, 681 F.2d at 710;
Isaacs, 493 F.2d at 1142 (The Impeachment Judgment Clause
“does not mean that a judge may not be indicted and tried
without impeachment first.”). Moreover, former President
Trump’s interpretation runs counter to the text, structure and
purpose of the Impeachment Judgment Clause. See N.L.R.B. v.
SW Gen., Inc., 580 U.S. 288, 302 (2017) (“The force of any
negative implication . . . depends on context,” and “applies
only when circumstances support a sensible inference that the
term left out must have been meant to be excluded.” (cleaned
up)); Mercy Hosp., Inc. v. Azar, 891 F.3d 1062, 1069 (D.C. Cir.
2018) (“Finding the negative implication of a statute is a
context-specific exercise.”).
To begin, former President Trump’s reliance on a negative

implication is an immediate red flag: The Framers knew how
to explicitly grant criminal immunity in the Constitution, as
they did to legislators in the Speech or Debate Clause. See U.S.
CONST. art. I, § 6, cl. 1. Yet they chose not to include a similar
44A
44
provision granting immunity to the President. See Vance, 140
S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the
Constitution explicitly addresses the privileges of some federal
officials, but it does not afford the President absolute
immunity.”). The Impeachment Judgment Clause merely
states that “the Party convicted” shall nevertheless be subject
to criminal prosecution. The text says nothing about non-
convicted officials. Former President Trump’s reading rests on
a logical fallacy: Stating that “if the President is convicted, he
can be prosecuted,” does not necessarily mean that “if the
President is not convicted, he cannot be prosecuted.” See, e.g.,
N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J.,
concurring) (explaining “the fallacy of the inverse (otherwise
known as denying the antecedent): the incorrect assumption
that if P implies Q, then not-P implies not-Q”).
Another important clue is the Clause’s use of the word

“nevertheless,” as in “the Party convicted shall nevertheless be
liable.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added). The
meaning of “neverthele’ss,” according to a contemporaneous
18th century dictionary, is “[n]otwithsta’nding that,” which in
turn means “[w]ithout hindrance or obstruction from.” 2
Samuel Johnson, A Dictionary of the English Language 200,
216 (1773). The Impeachment Judgment Clause contains no
words that limit criminal liability — and, to the contrary, it uses
“nevertheless” to ensure that liability will not be limited (i.e.,
“hindered or obstructed”), even after an official is impeached,
convicted and removed from office.
The text of the Impeachment Judgment Clause reflects its

purpose: To allocate responsibility between the Legislative
and Executive branches for holding impeached officers
accountable for misconduct. In 18th-century Great Britain,
impeachment could result in “capital punishment . . . fine and
ransom[,] or imprisonment.” 2 Joseph Story, Commentaries on
45A
45
the Constitution of the United States § 782; see also Whether a
Former President May Be Indicted and Tried for the Same
Offenses for Which He was Impeached by the House and
Acquitted by the Senate, 24 Op. O.L.C. 110, 120 (2000)
(hereinafter, “OLC Double Jeopardy Memo”) (noting that
impeachment in Britain could have resulted “in a wide array of
criminal penalties, including fines, imprisonment, and even
execution”). The Framers chose to withhold such broad power
from the Senate, specifying instead that the Senate could
impose “only political, not ordinary criminal, punishments.”
OLC Double Jeopardy Memo at 124; see also Tench Coxe, An
American Citizen, Independent Gazetteer (Philadelphia), Sept.
28, 1787 (The Senate “can only, by conviction on
impeachment, remove and incapacitate a dangerous
officer . . . .” (emphasis in original)). That approach naturally
“raise[d] the question whether the other punishments the
founding generation was accustomed to seeing” in British
impeachment proceedings “could be imposed at all under the
new American government.” OLC Double Jeopardy Memo at
126. The Framers wished to make clear that a President would
“still be liable to prosecution and punishment in the ordinary
course of law.” The Federalist No. 65, at 321 (Alexander
Hamilton) (Coventry House Publishing, 2015); Coxe, An
American Citizen (“[T]he punishment of [a dangerous officer]
as a criminal remains within the province of the courts of law
to be conducted under all the ordinary forms and
precautions . . . .” (emphasis in original)). They therefore
added the provision that “the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.” U.S. CONST. art. I, § 3, cl. 7.
As the Office of Legal Counsel noted, that “second part makes
clear that the restriction on sanctions in the first part was not a
prohibition on further punishments; rather, those punishments
would still be available but simply not to the [Senate].” OLC
Double Jeopardy Memo at 126–27. In short, then, the Framers
46A
46
intended impeached officials to face criminal liability
“according to Law.” U.S. CONST. art. I, § 3, cl. 7.
To counter the historical evidence that explains the

purpose of the Impeachment Judgment Clause, former
President Trump turns to one sentence written by Alexander
Hamilton in the Federalist 69: “The President of the United
States would be liable to be impeached, tried, and, upon
conviction of treason, bribery, or other high crimes or
misdemeanors, removed from office; and would afterwards be
liable to prosecution and punishment in the ordinary course of
law.” The Federalist No. 69, at 337 (Alexander Hamilton)
(Coventry House Publishing, 2015). He focuses on the word
“afterwards” and suggests that a President is not “liable to
prosecution and punishment” until “after[]” he has been
impeached and convicted by the Senate. See Appellant’s Br.
14–15. But we think the more significant word in Hamilton’s
statement is “liable,” which means “subject to.” Liable, 1 John
Ash, New and Complete Dictionary of the English Language
(1795). Hamilton specifies that a President would be subject
to impeachment, trial, conviction and removal from office; and
“afterwards” would be subject to prosecution and punishment,
without regard to the verdict in the impeachment proceeding.10
Moreover, in the very next sentence of the same essay,
Hamilton stresses that the President must be unlike the “king
of Great Britain,” who was “sacred and inviolable.” The
10
Former President Trump also cites to Hamilton’s statement
in Federalist 77 that the President is “at all times liable to
impeachment, trial, dismission from office, incapacity to serve in any
other, and to forfeiture of life and estate by subsequent prosecution
in the common course of law.” The Federalist No. 77, at 378–79
(Alexander Hamilton) (Coventry House Publishing, 2015) (emphasis
added). This argument is similarly unavailing based on Federalist
77’s analogous use of “liable.”
47A
47
Federalist No. 69, at 337–38. It strains credulity that Hamilton
would have endorsed a reading of the Impeachment Judgment
Clause that shields Presidents from all criminal accountability
unless they are first impeached and convicted by the Congress.
Other historical evidence further supports our conclusion.

For example, many founding-era sources state that an
impeached-and-acquitted official may face criminal indictment
and trial. Edmund Pendleton, President of the Virginia
Ratifying Convention, noted that Senate “obstruction” of an
impeachment charge would not allow an official to escape
accountability because the people “may yet resort to the Courts
of Justice, as an Acquital [sic] would not bar that remedy.” 10
The Documentary History of the Ratification of the
Constitution 1773 (Merrill Jensen et al, eds. 1976) (Letter from
Edmund Pendleton to James Madison, Oct. 8, 1787).
Similarly, James Wilson — a member of the Constitutional
Convention committee that drafted the Impeachment Judgment
Clause — argued as follows: “Though [Senators] may not be
convicted on impeachment before the Senate, they may be tried
by their country; and if their criminality is established, the law
will punish. A grand jury may present, a petit jury may convict,
and the judges will pronounce the punishment.” See 2 The
Documentary History of the Ratification of the Constitution
492 (Merrill Jensen et al, eds. 1976); see also 9 Annals of Cong.
2475 (1798) (statement of Rep. Dana) (“[W]hether a person
tried under an impeachment be found guilty or acquitted, he is
still liable to a prosecution at common law.”).
In drafting the Impeachment Judgment Clause, to the

extent that the Framers contemplated whether impeachment
would have a preclusive effect on future criminal charges, the
available evidence suggests that their intent was to ensure that
a subsequent prosecution would not be barred. See OLC
Double Jeopardy Memo at 122 (noting limited scope of
48A
48
discussion at the Constitutional Convention and ratifying
conventions regarding the Impeachment Judgment Clause).
Joseph Story explained that the Impeachment Judgment Clause
removed doubt that “a second trial for the same offence could
be had, either after an acquittal, or a conviction in the court of
impeachments.” 2 Story, Commentaries § 780; id. § 781
(noting the Constitution “has wisely subjected the party to trial
in the common criminal tribunals, for the purpose of receiving
such punishment, as ordinarily belongs to the offence”). Story
explained that without a criminal trial “the grossest official
offenders might escape without any substantial punishment,
even for crimes, which would subject their fellow citizens to
capital punishment.” Id. § 780.11
Finally, the practical consequences of former President

Trump’s interpretation demonstrate its implausibility. The
Impeachment Judgment Clause applies not just to Presidents
but also to the “Vice President and all civil Officers of the
United States.” U.S. CONST. art. II, § 4. Thus, his reading
would prohibit the Executive Branch from prosecuting current
and former civil officers for crimes committed while in office,
11
Former President Trump points to some historical evidence
that he considers countervailing. He notes that some state
constitutions explicitly provided for the criminal prosecution of a
party acquitted on impeachment charges, arguing that silence on that
point therefore should be inferred as precluding prosecution. But
some early state constitutions also expressly granted criminal
immunity to the state’s chief executive, so interpreting silence is not
so simple. See Saikrishna Bangalore Prakash, Prosecuting and
Punishing Our Presidents, 100 Tex. L. Rev. 55, 69–70 (2021) (citing
1776 Virginia and Delaware constitutions). Any limited, indirect
historical clues must be weighed against the compelling textual,
structural and historical evidence that the Founders did not intend the
Impeachment Judgment Clause to bar the criminal prosecution of an
official who was impeached and acquitted (or not impeached at all).
49A
49
unless the Congress first impeached and convicted them. No
court has previously imposed such an irrational “impeachment
first” constraint on the criminal prosecution of federal officials.
See, e.g., Isaacs, 493 F.2d at 1144 (“[W]e are convinced that a
federal judge is subject to indictment and trial before
impeachment . . . .”).12 Even if there is an atextual basis for
treating Presidents differently from subordinate government
officials, as former President Trump suggests, his proposed
interpretation still would leave a President free to commit all
manner of crimes with impunity, so long as he is not impeached
and convicted. Former President Trump’s interpretation also
would permit the commission of crimes not readily categorized
as impeachable (i.e., as “Treason, Bribery, or other high Crimes
and Misdemeanors”) and, if thirty Senators are correct, crimes
not discovered until after a President leaves office. See U.S.
CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily
ed. Feb. 13, 2021) (statement of Senate Minority Leader
McConnell) (“We have no power to convict and disqualify a
former office holder who is now a private citizen.”).13 All of
12
Indeed, history reveals examples of prosecutions preceding
impeachments. See Nixon v. United States, 506 U.S. 224, 226–27
(1993) (defendant judge criminally prosecuted and then impeached);
Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989)
(same); Amenability of the President, Vice President and other Civil
Officers to Federal Criminal Prosecution While in Office, Op.
O.L.C. 4 (1973) (observing that, as of 1973, only 12 impeachments
had occurred, but “presumably scores, if not hundreds, of officers of
the United States have been subject to criminal proceedings for
offenses for which they could have been impeached”).
13
See also statements of Senators Barrasso, Blunt, Braun,
Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley,
Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis,
Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune,
Tillis, Tuberville and Wicker.
50A
50
this leads us to conclude that, under the best reading of the
Impeachment Judgment Clause, a former President may be
criminally prosecuted in federal court, without any requirement
that he first be impeached and convicted for the same
conduct.14
IV. DOUBLE JEOPARDY PRINCIPLES
Former President Trump alternatively argues that the

Impeachment Judgment Clause and “principles of double
jeopardy” bar his prosecution because he was impeached by the
14
Because we conclude that former President Trump is not
entitled to categorical immunity from criminal liability for assertedly
“official” acts, it is unnecessary to explore whether executive
immunity, if it applied here, would encompass his expansive
definition of “official acts.” Nevertheless, we observe that his
position appears to conflict with our recent decision in Blassingame,
87 F.4th at 1. According to the former President, any actions he took
in his role as President should be considered “official,” including all
the conduct alleged in the Indictment. Appellant’s Br. 41–42. But
in Blassingame, taking the plaintiff’s allegations as true, we held that
a President’s “actions constituting re-election campaign activity” are
not “official” and can form the basis for civil liability. 87 F.4th at
17. In other words, if a President who is running for re-election acts
“as office-seeker, not office-holder,” he is not immune even from
civil suits. Id. at 4 (emphasis in original). Because the President has
no official role in the certification of the Electoral College vote,
much of the misconduct alleged in the Indictment reasonably can be
viewed as that of an office-seeker — including allegedly organizing
alternative slates of electors and attempting to pressure the Vice
President and Members of the Congress to accept those electors in
the certification proceeding. It is thus doubtful that “all five types of
conduct alleged in the indictment constitute official acts.”
Appellant’s Br. 42.
51A
51
House of Representatives for the same or closely related
conduct but acquitted by the Senate. We disagree.
As we have discussed, supra Part III.C, the Impeachment

Judgment Clause addresses only convicted parties; it does not
address the consequences of a Senate acquittal. For the reasons
already stated, the Clause’s provision that “the Party convicted
shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law” does not bar the
prosecution of an official who, like former President Trump,
was acquitted rather than “convicted” in an impeachment
proceeding; nor does it bar the prosecution of an official who
was never impeached in the first place. U.S. CONST. art. I, § 3,
cl. 7. The Clause simply does not speak to such matters. But
the weight of historical authority indicates that the Framers
intended for public officials to face ordinary criminal
prosecution as well as impeachment. Supra Part III.C.
To the extent former President Trump relies on “double

jeopardy principles” beyond the text of the Impeachment
Judgment Clause, those principles cut against him. The Double
Jeopardy Clause provides: “No person shall . . . be subject for
the same offence to be twice put in jeopardy of life or limb.”
U.S. CONST. amend. V. It has been interpreted to prohibit
“imposition of multiple criminal punishments for the same
offense.” Hudson v. United States, 522 U.S. 93, 99 (1997)
(citation omitted). Under precedent interpreting the Double
Jeopardy Clause, former President Trump’s impeachment
acquittal does not bar his subsequent criminal prosecution for
two reasons: (1) An impeachment does not result in criminal
punishments; and (2) the Indictment does not charge the same
offense as the single count in the Impeachment Resolution.
52A
52
A. IMPEACHMENT IS NOT “CRIMINAL”
Under the Double Jeopardy Clause, a defendant is not “put

in jeopardy of life or limb,” U.S. CONST. amend. V, when faced
with any penalty “that could, in common parlance, be described
as punishment”; instead, double jeopardy guards only against
“imposition of multiple criminal punishments for the same
offense.” Hudson, 522 U.S. at 99 (cleaned up). Although
double jeopardy applies only to criminal punishments,
impeachment imposes political punishments.
Impeachment is a political process that is instigated and

overseen by the Congress. See 2 Story, Commentaries § 784
(“There is wisdom, and sound policy, and intrinsic justice in
this separation of the offence, at least so far, as the jurisdiction
and trial are concerned, into its proper elements, bringing the
political part under the power of the political department of the
government . . . .” (emphasis added)); 9 Annals of Cong. 2475
(1798) (statement of Rep. Dana) (“The process in cases of
impeachment, in this country, is distinct from either civil or
criminal — it is a political process, having in view the
preservation of the Government of the Union.”). It is a tool
entrusted to elected officials and “designed to enable Congress
to protect the nation against officers who have demonstrated
that they are unfit to carry out important public
responsibilities.” OLC Double Jeopardy Memo at 130; see The
Federalist No. 66, at 324 (Alexander Hamilton) (Coventry
House Publishing, 2015) (“[T]he powers relating to
impeachments are, as before intimated, an essential check in
the hands of [Congress] upon the encroachments of the
executive.”); Mazars USA, LLP, 140 S. Ct. at 2046 (Thomas,
J., dissenting) (“The founding generation understood
impeachment as a check on Presidential abuses.”). The
consequences imposed by an impeachment conviction —
removal from office and disqualification from future service,
53A
53
U.S. CONST. art. I, § 3, cl. 7. — are intended to hold officials
politically accountable, while leaving criminal accountability
to the Judicial Branch.
As a result of the political nature of impeachment

proceedings, impeachment acquittals are often unrelated to
factual innocence. See The Federalist No. 65, at 319 (In an
impeachment proceeding, “there will always be the greatest
danger that the decision will be regulated more by the
comparative strength of parties, than by the real demonstrations
of innocence or guilt.”). Former President Trump’s acquittal
in his impeachment trial on the charge of inciting insurrection
makes this point. The forty-three Senators who voted to acquit
him relied on a variety of concerns, many of which had nothing
to do with whether he committed the charged offense. Those
Senators cited jurisdictional reasons, see, e.g., 167 CONG. REC.
S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority
Leader McConnell) (“We have no power to convict and
disqualify a former office holder who is now a private
citizen.”); process-based reasons, see, e.g., Press Release, Sen.
Todd Young, Senator Young Statement on Impeachment Trial
(Feb. 13, 2021), https://perma.cc/26Z8-XYTT (“Simply put,
the U.S. House of Representatives conducted a rushed and
incomplete process for this snap impeachment.”); and political
reasons, see, e.g., Press Release, Sen. Ron Johnson, Johnson
Statement on Impeachment Trial of Former President Trump
(Feb. 13, 2021), https://perma.cc/L4EZ-7C77 (“The
Democrats’ vindictive and divisive political impeachment is
over. While there are still many questions that remain
unanswered, I do know neither the Capitol breach nor this trial
should have ever occurred. Hopefully, true healing can now
begin.”). Indeed, at least thirty Senators who voted to acquit
relied at least in part on a belief that the Senate lacked the
power to convict a former President. See supra n.13.
54A
54
Criminal prosecutions, by contrast, are aimed at
“penaliz[ing] individuals for their criminal misdeeds . . . by
taking away their life, liberty, or property.” OLC Double
Jeopardy Memo at 130; see also Kansas v. Hendricks, 521 U.S.
346, 361–62 (1997) (identifying “retribution [and] deterrence”
as “the two primary objectives of criminal punishment”). The
consequences of a criminal conviction are predicated on a
finding of guilt beyond a reasonable doubt, United States v.
Gaudin, 515 U.S. 506, 510 (1995); and such consequences can
be severe, including asset forfeiture, incarceration and even
death, see, e.g., 18 U.S.C. §§ 982, 3581, 3591. Criminal
prosecutions are overseen by the judiciary, which enforces
stringent procedural protections that reflect the gravity of the
potential ramifications for the defendant. See Nixon, 418 U.S.
at 707 (describing “the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions”). The
Double Jeopardy Clause is one such procedural protection,
ensuring that a criminal defendant is not forced to face
prosecution twice for the same offense.
In light of the very different procedures and purposes

associated with impeachment proceedings as compared to
criminal proceedings, former President Trump’s reliance on the
Double Jeopardy Clause is misplaced. Impeachment is not a
criminal process and cannot result in criminal punishment.15
15
When determining whether a punishment labeled “civil” by
the Congress is criminal for double-jeopardy purposes, courts apply
a multi-factored test. See Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69 (1963). Because former President Trump does not
contend impeachment threatens criminal punishment, and because
we think the political nature of impeachment makes that clear, we
need not address those factors. Cf. OLC Double Jeopardy Memo at
139–48 (concluding, under the Mendoza-Martinez test, that removal
55A
55
He does not seriously contend otherwise; and he does not
explain why he believes that impeachment can implicate
“double jeopardy principles” when it does not involve criminal
punishment.
B. BLOCKBURGER TEST
Even if we assume that an impeachment trial is criminal

under the Double Jeopardy Clause, the crimes alleged in the
Indictment differ from the offense for which President Trump
was impeached. In determining whether two charges are the
“same” for double-jeopardy purposes, courts apply “the same-
elements test” (also known as the “Blockburger test”): If “each
offense contains an element not contained in the other,” the
offenses are different. United States v. Dixon, 509 U.S. 688,
696 (1993) (citing Blockburger v. United States, 284 U.S. 299,
304 (1932)) (cleaned up). If the charges at issue are not the
“same offense” under that test, double jeopardy does not bar
prosecution. Id. at 696–97.
Under the Blockburger test, none of the four offenses

alleged in the Indictment is the same as the sole offense charged
in the article of impeachment. The indicted criminal counts
include conspiracy to defraud the United States under 18
U.S.C. § 371; conspiracy to obstruct and obstructing an official
proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy
to deprive one or more individuals of the right to vote under 18
U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast,
the article of impeachment charged former President Trump
with incitement of insurrection. See H.R. Res. 24, 117th Cong.
(2021). Each of the indicted charges requires proof of an
element other than those required for incitement. And the
and disqualification are not criminal punishments implicating double

jeopardy).
56A
56
offense of incitement of insurrection requires proof of
incitement — an element that is distinct from those associated
with each of the crimes of indictment. In other words, the
charges are not the same under a straightforward application of
the Blockburger test.
Former President Trump does not dispute this analysis and

instead contends that, rather than applying the Blockburger
test, a subsequent criminal prosecution cannot be based on “the
same or closely related conduct” as an unsuccessful
impeachment. Appellant’s Br. 52. But that argument is
foreclosed by case law: “The ‘same-conduct’ rule . . . is wholly
inconsistent with . . . Supreme Court precedent and with the
clear common-law understanding of double jeopardy.” Dixon,
509 U.S. at 704; see also Hudson, 522 U.S. at 107 (Stevens, J.,
concurring in the judgment) (“[T]he Double Jeopardy Clause
is not implicated simply because a criminal charge involves
essentially the same conduct for which a defendant has
previously been punished.” (cleaned up)).
Thus, well-established law interpreting the Double

Jeopardy Clause undermines rather than supports former
President Trump’s argument that he may not be prosecuted.
Perhaps recognizing that normal double-jeopardy rules
disfavor his position, he claims that the Impeachment
Judgment Clause incorporates “double jeopardy principles”
that are distinct from the Double Jeopardy Clause. See
Appellant’s Br. 54 n.7. But if the “double jeopardy principles”
he invokes are unmoored from the Double Jeopardy Clause, we
are unable to discern what the principles are or how to apply
them. He thus fails to establish that his Senate acquittal bars
his criminal prosecution.
* * *
57A
57
We have balanced former President Trump’s asserted
interests in executive immunity against the vital public interests
that favor allowing this prosecution to proceed. We conclude
that “[c]oncerns of public policy, especially as illuminated by
our history and the structure of our government” compel the
rejection of his claim of immunity in this case. See Fitzgerald,
457 U.S. at 747–48. We also have considered his contention
that he is entitled to categorical immunity from criminal
liability for any assertedly “official” action that he took as
President — a contention that is unsupported by precedent,
history or the text and structure of the Constitution. Finally,
we are unpersuaded by his argument that this prosecution is
barred by “double jeopardy principles.” Accordingly, the order
of the district court is AFFIRMED.16
So ordered.
16
Amici former Attorney General Edwin Meese III and others
argue that the appointment of Special Counsel Smith is invalid
because (1) no statute authorizes the position Smith occupies and (2)
the Special Counsel is a principal officer who must be nominated by
the President and confirmed by the Senate. See U.S. CONST. art. II,
§ 2, cl. 2 (Appointments Clause). On appeal from a collateral order,
we generally lack jurisdiction to consider issues that do not
independently satisfy the collateral order doctrine unless we can
exercise pendent jurisdiction over the issue. See Abney, 431 U.S. at
663; Azima v. RAK Inv. Auth., 926 F.3d 870, 874 (D.C. Cir. 2019).
Because the Appointments Clause issue was neither presented to nor
decided by the district court, there is no order on the issue that could
even arguably constitute a collateral order for us to review.
Additionally, the exercise of pendent jurisdiction would be improper
here, assuming without deciding that pendent jurisdiction is ever
available in criminal appeals. See Abney, 431 U.S. at 663; Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir.
1996).
584
Anited States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 23-3228 September Term, 2023

FILED ON: FEBRUARY 6,2024
"UNITED STATES OF AMERICA,
APPELLEE
v.
DONALD J. TRUMP,
APPELLANT
Appeal from the United States District Court
for the Districtof Columbia
(No. 1:23-cr-00257-1)
Before: HENDERSON, CHILDS and PAN, Circuit Judges
JUDGMENT
“This cause came on to be heard on the record on appeal from the United States District
Court for the Districtof Columbia and was arguedby counsel. On consideration thereof, it is
ORDERED and ADJUDGED that the order ofthe District Court appealed from in this
causebeaffirmed, in accordance with the opinionofthe court filed herein this date.
he Clerk is directed owithhold issuance of the mandate through February 12,2024,
within that period, Appellant notifies the Clerk in writing that he has filed an application with the
Supreme Curt for a Sayofthe mandate pending the ling of pelion for vr ofcriora, the
Clerk i directed to wihhold issuance ofthe mandte pending the Supreme Courts final
disposition ofthe application. The filing ofa petion lor rehearingo rehearing en banc will not
resin any withholdingofthe mandate, athough the grantofrehearing ofrearing en banc
Yreka ecall Bf testes ifthe mandate has already issued. See D.C. Cir. R.
@
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Daniel J. Reidy
Deputy Clerk
Date: February 6, 2024
Opinion Per Curiam

In The Supreme Court of The United States: P D J. T, v. U S A

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

In The Supreme Court of The United States: P D J. T, v. U S A

Uploaded by

Copyright:

Available Formats

No.

In the Supreme Court of the United States

On Application for Stay of the Mandate To Be Issued by the

APPLICATION FOR A STAY OF THE D.C. CIRCUIT’S MANDATE PENDING

LAURO & SINGER JAMES OTIS LAW GROUP, LLC

The questions presented are:

I. Whether the doctrine of absolute presidential immunity includes immunity from

(quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).

the criminal charges.

The applicant is President Donald J. Trump (“President Trump”).

The respondent is the United States of America (“Special Counsel” or “government”).

United States District Court (D.D.C.):

United States Court of Appeals (D.C. Cir.):

QUESTIONS PRESENTED ...................................................................................................... i

PARTIES TO THE PROCEEDING ......................................................................................... ii

RELATED PROCEEDINGS.................................................................................................... iii

TABLE OF AUTHORITIES ...................................................................................................... v

A. The Case Raises Important Questions of Federal Law. .......................................... 9

II. There Is a Significant Possibility of Reversal. ............................................................ 11

A. The Executive Vesting Clause and Marbury v. Madison. ..................................... 12

B. “The Presuppositions of Our Political History.” .................................................... 21

C. The Likelihood of Chilling Presidential Action. .................................................... 26

III. There Is a Likelihood of Irreparable Harm Absent the Stay. .................................... 31

A. Absent a Stay, President Trump Will Immediately Be Required to Bear the

IV. The Balancing of Equities Strongly Favors a Stay. .................................................... 35

Abney v. United States,

Belk v. Charlotte-Mecklenburg Bd. of Educ.,

Chi. & S. Air Lines v. Waterman S.S. Corp.,

Clark v. United States,

Dep’t of Com. v. New York,

Digital Equip. Corp. v. Desktop Direct, Inc.,

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

Kendall v. United States ex rel. Stokes,

Kusay v. United States,

Landis v. N. Am. Co.,

McIntyre v. Ohio Elec. Comm’n,

McLeod v. Gen. Elec. Co.,

Midland Asphalt Corp. v. United States,

Mistretta v. United States,

Monitor Patriot Co. v. Roy,

N.L.R.B. v. Noel Canning,

Packingham v. North Carolina,

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

Printz v. United States,

Red Lion Broad. Co. v. F.C.C.,

Republican Party of Minnesota v. White,

Seila Law, LLC v. CFPB,

Shiffman v. Selective Serv. Bd. No.5,

Susan B. Anthony List v. Driehaus,

Times-Picayune Publ’g Corp. v. Schulingkamp,

United States v. Burr,

United States v. Johnson,

United States v. Lee,

United States v. Nixon,

United States v. Philip Morris, Inc.,

Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc.,

Youngstown Sheet & Tube Co. v. Sawyer,

U.S. Constitution, Statutes, Rules

18 U.S.C. § 1512(c)(2) .......................................................................................................... 4, 18

28 U.S.C. § 1291 ...................................................................................................................... 33

D.C. Cir. R. 41(a)(1) ................................................................................................................... 8

H. Res.24, 117th Cong. (2021) ................................................................................................... 4