THE EYEBROW-RAISING LINE IN THE IMMUNITY OPINION
In its 2000 decision in Bush v. Gore stopping Florida’s presidential election recount, the Supreme Court famously suggested its reasoning might not apply in other cases: “Our consideration is limited to the present circumstances.”
That line earned the court the undying opprobrium of liberals, who said it showed the justices knew their reasoning would be problematic if universally applied.
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 threejudge panel disagreed.
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.”
The court is trying to put an asterisk next to its ruling. It is hinting — as it 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.”
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.
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.