Page:SCOTUS No. 23–939 DONALD J. TRUMP, PETITIONER v. UNITED STATES.pdf/62

 possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. See ante, at 14. I would have answered it now. Though I agree that a President cannot be held criminally liable for conduct within his “conclusive and preclusive” authority and closely related acts, ante, at 8–9, the Constitution does not vest every exercise of executive power in the President’s sole discretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute. Article II poses no barrier to prosecution in such cases.

I would thus assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the President’s core executive power—in two steps. The first question is whether the relevant criminal statute reaches the President’s official conduct. Not every broadly worded statute does. For example, §956 covers conspiracy to murder in a foreign country and does not expressly exclude the President’s decision to, say, order a hostage rescue mission abroad. 18 U. S. C. §956(a). The underlying murder statute, however, covers only “unlawful” killings. §1111. The Office of Legal Counsel has interpreted that phrase to reflect a public-authority exception for official acts involving the military and law enforcement. Memorandum from D. Barron, Acting Assistant Atty. Gen., to E. Holder, Atty.