Por: Ian Neifa Torres*
Introduction
In Trump v. United States, the United States Supreme Court established one of the most controversial precedents in recent jurisprudence, “the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”[1] In a 6-3 decision, the Supreme Court ruled in favor of Donald Trump, establishing that presidents are immune from criminal charges for their official acts,[2] even if they are controversial or publicly perceived as an abuse of power. The court emphasized that presidential immunity serves not to protect the individual, but rather to safeguard the function of the office, ensuring that presidents can fulfill their constitutional duties without judicial distractions that might impede government administration.[3] According to the ruling, official acts are covered under this immunity,[4] even those that might appear politically motivated,[5] reaffirming the separation of powers and the executive’s autonomy in making critical national decisions.
Justice Sonia Sotomayor, dissenting, joined by Justice Kagan and Justice Jackson, sharply criticized the decision, arguing that granting absolute immunity for official acts could enable abuses of power without legal accountability.[6] They characterize the Court’s decision as one that “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”[7] The dissenting justices cautioned that such a broad interpretation of presidential immunity risks undermining accountability and transparency, potentially paving the way for illegal or undemocratic conduct to be shielded under the guise of official acts.[8]
Sotomayor expressed concern that the decision could set a dangerous precedent, allowing future presidents to feel empowered to engage in harmful or abusive actions without fear of legal repercussions, as long as they can frame those actions as part of their official acts.[9] Justice Sotomayor lists actions that could potentially be framed as official acts, for example: fabricating evidence, ordering the Navy’s Seal Team 6 to assassinate a political rival, organizing a military coup to hold onto power, and taking a bribe in exchange for a pardon.[10] Their central critique was that the ruling undermines the principles of accountability and judicial oversight, which are fundamental to any functioning democracy.[11]
In this article, I will address the historical precedents that have shaped the doctrine of presidential immunity to examine how this concept has evolved and assess whether the argument for presidential immunity for official acts holds merit. I will analyze key cases that have defined the boundaries of presidential immunity, such as Marbury v. Madison,[12] Nixon v. United States,[13] and Nixon v. Fitzgerald,[14] and how courts have interpreted these rulings to protect the president in the performance of official acts. This analysis will help determine whether the recent decision in Trump v. United States aligns with established precedent or, conversely, represents an undue expansion of presidential immunity.[15]
I. Balancing the Separation of Powers in a Democracy
In The Federalist Papers, the Framers advocated for a system where power would be deliberately divided and restrained to prevent the common kinds of abuses under monarchies, particularly the British crown, from which the United States had just won independence.[16] By fragmenting political authority among the distinct branches of government, the Framers aimed to prevent the concentration of excessive power within any single branch.[17] Simultaneously, each branch was endowed with the capacity to oversee and restrain the actions of the others, thereby ensuring a dynamic equilibrium of governance.[18] This intricate structure embodies the principle of checks and balances, a cornerstone of the constitutional framework designed to safeguard against tyranny and preserve the separation of powers.[19]
The Constitution grants that “[t]he executive Power shall be vested in a President of the United States.”[20] This establishes the president as the sole constitutional officer responsible for executing the laws, serving as Commander-in-Chief of the armed forces, and managing foreign affairs, among other duties.[21] However, the Framers were deeply concerned about preventing the presidency from becoming akin to a monarchy or dictatorship.[22] To avoid this, they implemented critical safeguards and checks on presidential power.[23] These include regular elections every four years, the possibility of impeachment, and the President’s liability to prosecution.[24] As Hamilton noted, in terms of personal responsibility, the president would stand “upon no better ground than a governor of New York.”[25] Additionally, Congress holds the power to override a presidential veto with a two-thirds majority of each body.[26]
The authors advocated for a strong yet restrained unitary Executive designed to act swiftly and decisively in matters of national security and diplomacy, but always subject to the checks and balances provided by the legislative and judicial branches.[27] Hamilton advocated for a vigorous and energetic Executive with the authority to enforce the law and protect the nation.[28] Central to the reasoning in Trump v. United States is the belief that criminally prosecuting a president for official acts could intrude upon the authority and functions of the Executive Branch, thereby compromising the capacity for a vigorous and energetic Executive.[29] Trump v. United States holds that excessive judicial review of a president’s official acts, especially concerning criminal prosecutions or investigations, could severely undermine the independence the office demands in a manner that threatens the very foundations of governance.[30]
However, while the President must enjoy a certain level of independence, it should not be absolute. The principle that no man is above the law is central to the philosophy underpinning the United States constitutional system.[31] Marbury v. Madison establishes that no individual is above the law when it asserts that: “[t]he government of the United States has been emphatically termed a government of laws, and not of men.”[32] Marbury emphasized that it is the duty of the courts to interpret the law and ensure that all branches of government operate within the limits set by the Constitution, thereby guaranteeing that justice prevails over any personal or political interest.[33] The United States Supreme Court has further established that: “[n]either the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”[34]
The judiciary, therefore, is vested with the authority to ensure that even the highest office in the land does not operate outside the law.[35] However, Marbury also recognizes limitations that could strengthen the reasoning found in Trump.[36] The case establishes that whether an act is subject to judicial review depends entirely on the nature of the act, rather than the identity of the person performing it.[37] “Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court.”[38] This distinction resembles the line drawn in Trump, which differentiates between official and unofficial acts, thereby defining the scope of judicial review for the President’s conduct.[39] Marbury holds that “[b]y 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.”[40]
The separation of powers is thus a balancing act. On one hand, the president must have the autonomy to perform his duties effectively.[41] On the other, the judiciary must retain the ability to hold the president accountable for actions that potentially exceed constitutional boundaries.[42] The Constitution’s system of checks and balances exists not merely to prevent overreach but to facilitate a government that remains transparent, accountable, and responsive to the people it serves.[43] As such, while the Executive Branch must be granted a measure of flexibility, it cannot be insulated from judicial review when that flexibility risks distorting the separation of powers and encroaching upon constitutional boundaries.[44]
II. The Evolution of Presidential Privileges and Immunities
Article I of the Constitution explicitly grants Members of Congress specific privileges and immunities, such as the protection that:
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Sessions of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.[45]
In stark contrast, Article II lacks explicit provisions for the President.[46] Nonetheless, the courts have long recognized implied executive privileges and immunities, deriving them from the structural separation of powers within the Constitution.[47] Over time, jurisprudence has shaped and refined these privileges through landmark cases.[48]
To understand how Trump v. United States fits within the broader legal framework of presidential immunities and privileges, we must first examine key historical rulings on the matter. Two central questions shape this analysis: (1) does Trump v. United States contradict or alter any of the Supreme Court’s previous rulings regarding presidential immunity?, and (2) does its reasoning stand in opposition to the ideals established in prior jurisprudence? By exploring these questions, we can more effectively assess whether Trump v. United States adheres to or diverges from established precedent on presidential privileges and immunities.
May the president of the United States be subpoenaed to testify and produce documents? This was addressed in United States v. Burr, where Burr sought a subpoena duces tecum seeking documents related to his criminal case.[49] Chief Justice John Marshall ruled that the president is not immune from a subpoena requiring the production of documents, stating that “[i]n the provisions of the constitution, and of the statute, which gives to the accused right to the compulsory process of the court, there is no exception whatever.”[50] This ruling applies as long as the requested documents are relevant to the case, although the president may still invoke executive privilege to withhold sensitive information.[51]
Marshall balanced the need for evidence in a criminal trial against the executive’s interests, holding that while the president holds a high office, he is not outside the judicial process.[52] The decision underscored that even presidential communications could be subject to judicial scrutiny if they were deemed necessary for the administration of justice.[53] However, Burr allowed for an exception if “his duties as chief magistrate demand his whole time for national objects.”[54] This rationale parallels the balance between executive independence and the necessity of judicial oversight discussed in Nixon v. Fitzgerald and in Trump v. United States,[55] which we will explore further.
Addressing the first question, Trump v. United States does not alter the precedent set by Burr. The President can still be subpoenaed to produce documents and testify at criminal proceedings. [56] However, the reasoning in Trump appears to diverge from the ideals expressed in Burr, where Chief Justice Marshall made a significant distinction between the powers of the President and those of a monarch, particularly the English king, who historically enjoyed absolute immunity under the doctrine of “the King can do no wrong.”[57] Marshall noted that, unlike the king, the President of the United States is not immune from legal process.[58] The Constitution provides mechanisms to hold the President accountable, including impeachment, which illustrates that the office is not above the law.[59]
“Marshall reasoned that ‘the law does not discriminate between the president and a private citizen.’”[60] Marshall’s decision reflected the democratic principles embedded in the U.S. Constitution, emphasizing that the president, unlike a king, is subject to judicial scrutiny and can be held liable through legal processes when necessary.[61] This idea played a crucial role in limiting presidential immunity, illustrating that the president could not claim protections akin to royal prerogatives. The ruling affirmed the fundamental concept that the rule of law applies to all, including the highest executive officer, and that presidential privileges are not boundless.[62]
In Mississippi v. Johnson, the Court faced its first lawsuit against a sitting president when Mississippi sought an injunction to prevent President Andrew Johnson from enforcing the Reconstruction Acts.[63] The court ruled that it lacked the authority to issue an injunction restraining the President from carrying out an act of Congress, as the Supreme Court “has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”[64] The Court also acknowledged the practical limitations of such an action, noting that even if an injunction were granted, “[i]f the President refuse obedience, it is needless to observe that the court is without power to enforce its process.”[65]
This case highlights two key issues for discussion. First, it underscores the deference that the judiciary owes to the official acts of the president, recognizing the executive branch’s distinct role and the inherent challenges of judicial oversight. Second, it raises a critical question: even if the Court were to assert jurisdiction over such matters, how could it enforce such an order against the president? These considerations emphasize the complexities of balancing judicial authority with the executive branch independence, a central issue in Trump v. United States.[66] Notably, Trump does not alter the ruling in Mississippi v. Johnson; rather, it aligns with its reasoning, reaffirming that the judiciary cannot interfere with the president’s ability to perform his constitutional duties.
The scope of executive privilege was further clarified in United States v. Nixon, which arose from the White House’s involvement in the Watergate burglary and its ensuing cover-up.[67] Here, the President was named as an unindicted co-conspirator in various charges and was subpoenaed by the United States District Court to produce tapes and documents.[68] Nixon claimed that the Constitution granted an absolute executive privilege for all presidential communications.[69] However, the Supreme Court’s decision rejected this claim, recognizing instead a presumptive privilege, particularly concerning criminal investigations.[70] The Court concluded that a generalized interest in confidentiality does not outweigh the judicial interest in producing all relevant evidence in a criminal case.[71]
In contrast, Trump v. United States seems to have altered this balance by prioritizing executive privilege, even in the face of potential criminal misconduct.[72] This raises critical questions about the durability of Nixon’s balancing test, where judicial oversight and the need for accountability were paramount. The Court’s more deferential stance in Trump suggests that former presidents now enjoy broader protections from legal scrutiny, potentially insulating their actions from the kind of legal scrutiny that was firmly upheld in Nixon. Such an approach risks creating a precedent where executive privilege becomes a tool to evade legal responsibility, rather than a safeguard for legitimate presidential duties.
While Trump does not overturn the fundamental ruling established in Nixon, it does stand in tension with its ideals. The Nixon Court might have reasoned that the president should have presumptive immunity in matters involving military and diplomatic official acts given that “to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.”[73] However, the balance test struck in Nixon was clear, the judiciary would suffer more than the president if it were:
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Art. III.[74]
Jackson’s dissent in Trump v. United States highlights a similar conundrum, noting that the ruling effectively “elbows out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future attempts to hold former Presidents accountable to generally applicable criminal laws.”[75] Jackson is concerned that the Court’s opinion centralizes too much power within the Judiciary and Executive, sidelining the constitutional roles of Congress in maintaining checks and balances.[76] This encroachment on Congressional authority suggests a departure from the reasoning in United States v. Nixon, as Jackson warns, “the Court today transfers from the political branches to itself the power to decide when the President can be held accountable.”[77]
In Nixon v. Fitzgerald, Fitzgerald sought civil damages against former President Nixon who argued that he was absolutely immune from suit for actions taken in his official capacity.[78] The Court agreed, recognizing that such immunity is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.”[79] Similarly, in Trump v. United States, the Court aimed to ensure a vigorous and energetic president.[80] In Fitzgerald, the Courts aimed to provide the executive officer “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.”[81] However, the key distinction is that Fitzgerald dealt with civil liability, whereas Trump involves criminal accusations.
While Fitzgerald did not explicitly distinguish between civil and criminal liability, it asserted that the “rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive.”[82] The opinion identified several “formal and informal checks,” including scrutiny by the press, Congress oversight, the threat of Impeachment, and a desire to earn reelection to which it delegates the responsibility of holding the president accountable.[83] This might suggest that this immunity extends to criminal law. However, Fitzgerald clarified that “public interest in an ongoing criminal prosecution” outweighs that of a “merely private suit for damages based on a President’s official acts,”[84] and Chief Justice Burger, in his concurring opinion, stated that “[t]he immunity is limited to civil damages claims.”[85]
Trump v. United States does not overturn Fitzgerald but extends its immunity to include presumptive protection in criminal cases, expanding its scope. Now, does its ruling stand in opposition to Fitzgerald’s reasoning? That depends. Both the majority opinion and Justice Sotomayor’s dissent in Trump reference Fitzgerald to bolster their respective analysis.[86] On the surface, the president retains absolute “immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility,”[87] a principle seemingly aligned with the Court’s opinion in Trump.[88]However, Justice Sotomayor contends that the balancing test established in Nixon v. Fitzgerald undermines the Court’s opinion.[89] This test balances “the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.”[90] Since Fitzgerald previously held that the public interest in a criminal prosecution outweighs that of a civil suit,[91] one could argue that the Court’s ruling in Trump departs from this key principle, favoring broader executive immunity in a way that deviates from the balance struck in Fitzgerald.
The next case, Clinton v. Jones, establishes a straightforward principle: the Constitution does not grant the president of the United States immunity from civil litigation involving actions committed before entering office.[92] This is echoed in Trump v. United States, which asserts that “for a president’s unofficial acts, there is no immunity.”[93] But, one could argue that the ideals of accountability and transparency are upheld by Clinton v. Jones, standing in stark contrast to Trump v. United States, where critics may contend that the Court’s ruling enables impunity and subterfuge. Moreover, the broad scope of immunity for official acts in Trump v. United States does not consider the motive behind such acts, leading to concerns that “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity.”[94] This potentially covers behaviors that would not have been protected under the rationale from Clinton v. Jones.[95]
Is a sitting president immune from subpoenas in a state criminal prosecution? This was President Trump’s stance in Trump v. Vance, where Manhattan District Attorney Vance issued a subpoena to produce nine years of the President’s tax returns and financial records as part of a criminal investigation.[96] The Court rejected Trump’s claim, holding that “[i]n our judicial system, ‘the public has a right to every man’s evidence.’”[97] Chief Justice Roberts, who also authored the majority opinion in Trump v. United States, emphasized that the need for justice and the enforcement of criminal law “cuts in favor” of the subpoena, asserting that the broad immunity President Trump sought would impede the “fair and effective” administration of justice.[98]
Does Trump. v. United States alter Vance’s ruling? No, Vance remains valid as it addressed only the President’s personal papers, rather than documents related to presidential duties.[99] This distinction was reinforced in Trump v. United States, where the Court denied immunity for actions outside the scope of official acts, reinforcing that while executive protections apply to official acts, personal matters like personal papers or actions not tied to the office are not shielded.[100] Moreover, Vance acknowledges an exception when “the President sets forth and explains a conflict between judicial proceeding and public duties,” or shows that an order or subpoena would “significantly interfere with his efforts to carry out” those duties, ‘the matter changes.’”[101] This reasoning resembles Trump’s, regarding interference with the president’s “constitutional duties”, though both cases ultimately reinforce that personal matters do not warrant immunity.[102]
Ultimately, Trump v. United States does not directly overturn any established presidential immunity precedent; it tiptoes masterfully around existing precedents. However, it sidesteps much of the reasoning that underpinned those rulings, particularly regarding the delicate balance between executive privilege and judicial oversight. Trump signals a potential shift that may challenge the longstanding equilibrium between holding the president accountable and preserving executive authority.
Conclusion
The Court’s ruling in Trump v. United States has ignited a debate over the future of presidential accountability, one that centers around two competing visions of what unchecked power and judicial interference could mean for the separation of powers. The majority’s opinion in Trump warns against a scenario where the “Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”[103] The resulting fear, according to the Court, is an Executive paralyzed by the specter of criminal liability, unable to boldly and fearlessly carry out its duties, thus diminishing the vigorous and energetic that the Framers deemed essential to the office.[104] This is the dystopian future that Trump seeks to prevent: a future of weakened leadership, instability, and a separation of powers under siege.
But wait, “every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office”?[105] History has shown that the threat of post-presidential prosecution has not deterred presidents from making decisive and often controversial decisions during their tenure. From Nixon’s pardon to the investigation regarding Reagan’s actions in the Iran/Contra mentioned by Sotomayor.[106] This inherent awareness of potential post-term accountability has served as a moderating force, reminding presidents that their actions must ultimately conform to the law and constitutional principles.
The dissenting opinion of Justice Sotomayor illustrates a different dystopia.[107] She envisions a world in which a president, emboldened by a shield of immunity, uses his official acts as a cloak for misconduct, abusing the power of the office without fear of consequence.[108] In this future, the President becomes immune not only from prosecution but from the core principles of democracy itself, accountability, transparency, and the rule of law. Such immunity could potentially enable a president to engage in criminal behavior or undermine democratic institutions.
Which of these scenarios presents a greater threat? The majority in Trump fears an Executive that is too weak to perform its functions, while the dissent foresees an Executive that is too powerful to be restrained by the law. In either scenario, the separation of powers is at risk. The Court’s decision in Trump v. United States arguably shifts the balance too far in favor of the Executive, insulating it from the mechanisms designed to prevent tyranny.
One must consider what mechanisms remain effective to impede a President who might abuse his power. The political processes of elections and impeachment still stand as potential checks. However, are they sufficient to address the concerns raised in the dissent? Suppose the President uses his Commander-in-Chief powers, an official act, to deploy the military and prevent people from voting. How can elections serve as an effective check on his power?[109] Similarly, if the President uses that same authority to target members of Congress who could impeach him, then impeachment itself ceases to be a viable constraint on executive overreach.
Another problem is that the immunity provided for the president in Trump v. United States appears to undermine the Impeachment clause of the Constitution, as Justice Sotomayor explains.[110] “The Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate ‘shall nevertheless be liable and subject to Indictment, Trial, Judgment[,] and Punishment, according to Law.’” [111] By providing immunity for official acts even in the face of potential criminal liability, the Court’s decision not only contradicts the plain text of the Constitution, but also disrupts the system of checks and balances it aims to protect.[112]
Trump v. United States does not overturn previous precedents but carves out a new and potentially far-reaching doctrine that redefines the boundaries of presidential immunity. The majority’s concern of a feeble executive is legitimate.[113] However, Justice Sotomayor’s concern is far more alarming. Were the mechanisms put in place to prevent the president from becoming a monarch overridden by Trump v. United States? What remains of accountability when the Court reinterprets the very mechanisms that were once thought to check the powers of the Executive? The Framers established the separation of powers to prevent any single branch from dominating the others, but this ruling could distort that balance.[114] Trump v. United States could set a dangerous precedent for the expansion of presidential power beyond what the Framers could have envisioned.
*El autor es estudiante de segundo año de la Escuela de Derecho de la Universidad de Puerto Rico y redactor del séptimo volumen de InRev. Posee un bachillerato en Ciencias con concentración en Cinematografía Digital.
[1] Trump v. United States, 603 U.S. 593, 600 (2024).
[2] Id. at 2333, 2334.
[3] Id. at 614.
[4] Id.
[5] Id. at 684 (Sotomayor, S., dissenting).
[6] Id. at 668 (Sotomayor, S., dissenting).
[7] Id. at 657 (Sotomayor, S., dissenting).
[8] Id. at 684-85 (Sotomayor, S., dissenting).
[9] Id. at 684 (Sotomayor, S., dissenting).
[10] Trump, 603 U.S. at 685 (“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”); See Trump, 603 U.S. at 680 (“[E]ven fabricating evidence and insisting the Department use it in a criminal case could be covered.”).
[11] Trump, 603 U.S. at 685 (Sotomayor, S., dissenting); See Trump, 603 U.S. at 696-97 (Brown, K., dissenting).
[12] See Marbury v. Madison, 5 U.S. 137 (1803).
[13] See United States v. Nixon, 418 U.S. 683 (1974).
[14] See Nixon v. Fitzgerald, 457 U.S. 731 (1982).
[15] See Trump, 603 U.S. 593.
[16] See THE FEDERALIST NO. 47, at 250-52 (James Madison) (Gideon ed., 2001); THE FEDERALIST NO. 48, at 258-60 (James Madison) (Gideon ed., 2001); THE FEDERALIST NO. 51, at 268-69 (James Madison) (Gideon ed., 2001).
[17] THE FEDERALIST NO. 48, supra note 16, at 258-60 (James Madison).
[18] THE FEDERALIST NO. 47, supra note 16, at 252-53 (James Madison); THE FEDERALIST NO. 48, supra note 16, at 258-59 (James Madison).
[19] THE FEDERALIST NO. 51, supra note 16, at 268-69 (James Madison).
[20] U.S. Const. art. II, § 1.
[21] U.S. Const. art. II, §§ 2-3.
[22] See THE FEDERALIST NO. 67, supra note 16, at 348 (Alexander Hamilton); THE FEDERALIST NO. 69, supra note 16, at 355 (Alexander Hamilton).
[23] See THE FEDERALIST NO. 69, supra note 16, at 355 (Alexander Hamilton).
[24] Id. at 355.
[25] Id. at 356.
[26] U.S. Const. art. I, § 7.
[27] See THE FEDERALIST NO. 69, supra note 16 (Alexander Hamilton); THE FEDERALIST NO. 70, supra note 16, at 362 (Alexander Hamilton).
[28] THE FEDERALIST NO. 70., supra note 16, at 362 (Alexander Hamilton).
[29] Trump v. United States, 603 U.S. 593, 614 (2024).
[30] Id. at 620.
[31] Id. at 600.
[32] Marbury v. Madison, 5 U.S. 137, 163 (1803).
[33] Id. at 177 (“It is emphatically the province and duty of the judicial department to say what the law is.”).
[34] United States v. Nixon, 418 U.S. 683, 684 (1974).
[35] Id.
[36] See Marbury, 5 U.S. at 170.
[37] Id.
[38] Id.
[39] Trump v. United States, 603 U.S. 593, 609-10, 615-16 (2024).
[40] Marbury, 5 U.S. at 165-66.
[41] See Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); United States v. Nixon, 418 U.S. 683, 703 (1974).
[42] Nixon, 418 U.S. at 706-707; Nixon, 433 U.S. at 443.
[43] Nixon, 418 U.S. at 707.
[44] Nixon, 418 U.S. at 706-707; Nixon, 433 U.S. at 443.
[45] U.S. Const. art. I, § 6, cl. 1.
[46] See U.S. Const. art II.
[47] See Marbury v. Madison, 5 U.S. 137, 165, 170 (1803); Nixon, 418 U.S. at 685, 705, 708.
[48] See Marbury, 5 U.S.; United States v. Burr, 25 F. Cas. 30, (1807); Nixon, 418 U.S.; Nixon 433 U.S.
[49] United States v. Burr, 25 F. Cas. 30, 34 (1807).
[50] Burr, 25 F. Cas. at 34 (emphasis added) (referring to the compulsory process guarantee found in the Sixth Amendment of the United States Constitution. (U.S. Const., amend. VI)).
[51] Id. at 31, 34-35.
[52] Id. at 34.
[53] Id. at 37.
[54] Id. at 34.
[55] Nixon v. Fitzgerald, 457 U.S. 731, 754, 761, 794 (1982); Trump v. United States, 603 U.S. 593, 609-10, 615-16 (2024).
[56] Trump, 603 U.S. at 612.
[57] Burr, 25 F. Cas. at 34.
[58] Id.
[59] Id.
[60] Trump, 603 U.S. at 612 (citing Burr, 25 F. Cas. at 34).
[61] See Burr, 25 F. Cas. at 34.
[62] Id.
[63] Mississippi. v. Johnson, 71 U.S. 475, 475, 478 (1866).
[64] Id. at 501.
[65] Id. at 500-01.
[66] Trump v. United States, 603 U.S. 593, 613-14 (2024).
[67] United States v. Nixon, 418 U.S. 683, 685, 689, 705, 713 (1974).
[68] Id. at 683, 687.
[69] Id. at 697.
[70] Id. at 706.
[71] Id. at 713.
[72] See Trump v. United States, 603 U.S. 593, 657-59 (2024) (Sotomayor, S., dissenting).
[73] Nixon, 418 U.S. at 710.
[74] Id. at 707.
[75] Trump, 603 U.S. at 700 (Brown, K., dissenting).
[76] Id. at 669-700 (Brown, K., dissenting).
[77] Id. at 700 (Brown K., dissenting).
[78] Nixon v. Fitzgerald, 457 U.S. 731, 733, 748 (1982).
[79] Id. at 749.
[80] Trump, 603 U.S. at 594 (citing THE FEDERALIST NO. 70, at 471-72 (Alexander Hamilton) (J. Cooke, ed. 1961)).
[81] Nixon, 457 U.S. at 752 (citing Ferri v. Ackerman, 444 U.S. 193, 203 (1979)).
[82] Id. at 757.
[83] Id.
[84] Id. at 754.
[85] Id. at 759 (Burger, W., concurring).
[86] See Trump v. United States, 603 U.S. 593 (2024).
[87] Nixon, 457 U.S. at 756.
[88] Trump, 603 U.S. at 615.
[89] Id. at 668 (Sotomayor, S., dissenting).
[90] Nixon, 457 U.S. 731, at 754 (1982) (citing Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977)); See United States v. Nixon, 418 U.S. 683, 703 (1974).
[91] Nixon, 457 U.S. at 754.
[92] Clinton v. Jones, 520 U.S. 681, 70506 (1997).
[93] Trump, 603 U.S. at 595.
[94] Id. at 667 (Sotomayor, S., dissenting).
[95] Id. (Sotomayor, S., dissenting).
[96] Trump v. Vance, 591 U.S. 786, 791 (2020).
[97] Id. at 786 (citation omitted).
[98] Id. at 808.
[99] Id. at 807-808, 845 (“If there be a paper in the possession of the executive, which is not of an official nature, he must stand, as respects that paper, in nearly the same situation with any other individual.”) (citing United States v. Burr, 25 F. Cas. 187, 191 (1807)).
[100] Trump, 603 U.S. at 616.
[101] Trump, 591 U.S. at 810 (citing Clinton v. Jones, 520 U.S 681, 710, 714 (1997) (Breyer, S., concurring)).
[102] Trump, 603 U.S. at 595.
[103] Id. at 640.
[104] Id. at 610, 639.
[105] Id. at 673 (Sotomayor, S., dissenting).
[106] Id. at 665. (Sotomayor, S., dissenting).
[107] Id. at 657- 685 (Sotomayor, S., dissenting).
[108] Id. at 685 (Sotomayor, S., dissenting).
[109] Id. (Sotomayor, S., dissenting).
[110] Id. at 661-62 (Sotomayor, S., dissenting).
[111] Id. at 661 (Sotomayor, S., dissenting) (citing U.S. Cons., art. 1, § 3, cl. 7).
[112] Id. at 2357-58 (Sotomayor, S., dissenting).
[113] Id. at 642 (Sotomayor, S., dissenting).
[114] Id. at 697 (Sotomayor, S., dissenting).
