Page:SCOTUS No. 23–939 DONALD J. TRUMP, PETITIONER v. UNITED STATES.pdf/101

 of counsel, and the right to confront the witnesses against him. Amdt. 6. The defendant also has at his disposal many means to defend himself against the criminal charge. He can, of course, seek to hold the Government to its burden of proof at trial. And even before trial, in a motion to dismiss the indictment, he might make any number of legal arguments; he can assert, for example, that the Government’s charging document does not give adequate notice of the charge against him or that the law he has been accused of violating is unconstitutionally vague. See Hamling v. United States, 418 U. S. 87, 117 (1974); United States v. Davis, 588 U. S. 445, 451 (2019). He might further claim that the law is unconstitutional as applied to his particular conduct. See United States v. O’Brien, 391 U. S. 367, 376 (1968). And he might maintain that his conduct, even if proved, does not violate the law at issue. See, e.g., Fischer v. United States, 603 U. S. ___, ___ (2024) (slip op., at 2).

The defendant may also raise, and attempt to prove, affirmative defenses that “excuse conduct that would otherwise be punishable.” Dixon v. United States, 548 U. S. 1, 6 (2006). Generally speaking, affirmative defenses are determinations (often adopted by legislation) that certain conduct otherwise punishable by law is justified. This might be the case, for example, when the Legislature determines that, under specified circumstances, the societal harm particular conduct causes “is outweighed by the need to avoid an even greater harm.” 1 P. Robinson, Criminal Law Defenses §24(a) (1984) (Robinson).

Importantly, a defense is not an immunity, even though a defense can likewise result in a person charged with a crime avoiding liability for his criminal conduct. Consistent with our foundational norms, the individual accountability model adheres to the presumption that the law applies to all and that everyone must follow it; yet, the model makes allowances for recognized defenses. One such defense is the