Page:SCOTUS No. 23–939 DONALD J. TRUMP, PETITIONER v. UNITED STATES.pdf/61

Rh

, concurring in part.

For reasons I explain below, I do not join Part III–C of the Court’s opinion. The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct. That said, I would have framed the underlying legal issues differently. The Court describes the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.

There appears to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Special Counsel all accept that some prosecutions of a President’s official conduct may be unconstitutional. See post, at 16 (opinion of ); Brief for United States 24–30. As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion.

Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the