Former president Donald Trump’s criminal indictments mean that the courts could be as decisive in the 2024 presidential election as they were in 2000. So it’s notable that the U.S. Court of Appeals for the D.C. Circuit included a Bush v. Gore-style disclaimer in its Tuesday opinion denying Trump’s claims of immunity from criminal prosecution.
“We note at the outset that our analysis is specific to the case before us,” the court wrote, “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.”
That limitation appears in the court’s analysis of the “policy considerations” around presidential immunity. The Supreme Court has previously held that presidents are immune from civil lawsuits for their official acts. Trump argued that criminal immunity was also necessary to prevent prosecutors from paralyzing the executive. The three-judge panel disagreed: “The interest in criminal accountability,” it reasoned, “outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.”
The judges’ weighing of the interests is for the most part persuasive. So why the need to emphasize that it is “specific to the case before us”? Every judicial opinion is about the case before the court. But the law is supposed to be applied consistently in all cases.
Does the court’s disclaimer mean that in cases involving different presidents or different kinds of presidential mischief, immunity might be warranted? The judges don’t say that explicitly; in fact, they write that “there is no functional justification for immunizing former Presidents from federal prosecution in general.” But if that were really the case, then the sentence limiting the court’s reasoning to Trump’s effort to overturn the election would be superfluous.
The court is trying to put an asterisk next to its ruling. It is hinting — as the Supreme Court hinted in Bush v. Gore — that this is an extraordinary case and that in other cases, the same logic might not apply.
After all, even a prosecutor for special counsel Jack Smith conceded at oral argument that if a president authorized a drone strike on a short timeline and faced murder charges, “that might be the kind of place in which the court would properly recognize some kind of immunity.”
Or to take a more topical example: National Review’s Andrew C. McCarthy pointed out that absent presidential immunity, a Republican administration could plausibly indict President Biden for “material support of terrorism” over his 2021 decision to restore funding to the U.N. Relief and Works Agency. Israel has accused several UNRWA workers of being involved in the Oct. 7 Hamas attack. (The United States cut off funding last month pending further investigation.)
Ruth Marcus: Trump craves immunity from prosecution. An appeals court just said no.
Such indictments would be outrageous, of course. Foreign policy, in particular, requires presidents to use violence and deal with nefarious groups and states, and impeachment is the best remedy for any abuses. But under this Trump opinion, prosecutors could pursue criminal charges as they please.
Presidential immunity is vexing because it might be desirable in some circumstances but not others. It’s nearly impossible to draw a principled legal line. Maybe the least-bad solution, then, is not to draw one: Let presidents face indictment for their official acts like anyone else, hope that presidents act in good faith and hope that political norms restrain prosecutors from bringing cases that shouldn’t be brought.
That’s the gist of this ruling against Trump. But the court didn’t quite have the courage of its convictions, so it simultaneously implied that it was issuing a ticket good for one day only. Partly for that same reason, Bush v. Gore prompted endless accusations of partisan interference. If United States v. Trump can be seen to swing the 2024 election, expect a similar result.