There’s a new argument making the rounds among former President Donald Trump’s defenders, and it doubles as a threat of political retribution. The upshot of this argument is that, if he’s not immunized from criminal prosecution in Washington (for his role in the Jan. 6 insurrection) and Georgia (for his attempt to interfere in the state’s election results), then sham prosecutions await every president. And if courts allow Colorado to disqualify Trump from the presidential ballot, then disqualification will become the norm even for candidates whose behavior comes nowhere close to having participated in an insurrection or a rebellion covered by the 14th Amendment’s text. “If it can happen to Trump,” the argument goes, “it can happen to anyone.”
Even before Trump’s immunity claim was rejected by the D.C. circuit court on Tuesday, Republicans were already activating the cycle of political payback.
Even before Trump’s immunity claim was rejected by the Washington, D.C., circuit court on Tuesday, Republicans were already activating the cycle of political payback. Trump himself has threatened, if elected, to order that President Joe Biden be indicted. There is chatter about charging Barack Obama with murder because of a wartime military operation in Yemen. And Florida Gov. Ron DeSantis has made not totally credible noises about removing Biden from Florida ballots. The race to the bottom is already underway — and, per the story coming from Trump’s defenders, courts that rule against him will only accelerate it.
We find these cycle-of-retribution arguments lacking, for reasons we explain in more detail below. But we were comforted to see that courts don’t seem to be buying them, either. For example, In Tuesday’s blockbuster opinion denying Trump’s presidential immunity claim, the D.C. Circuit said: “The risk that former presidents will be unduly harassed by meritless federal prosecutions appears slight,” and the specter of “a torrent of politically motivated prosecutions finds little support in either history or the relatively narrow compass of the issues raised in this particular case.”
Slippery-slope arguments of the type that the D.C. Circuit rejected have three major problems. First, they necessarily conflate the legal response to Trump’s unique malfeasance with more conventional partisan disputes over, for instance, immigration or national security policy. Even if Trump avoids criminal punishment and/or appears on the ballot in all 50 states, no one with a handle on reality can plausibly claim that the cases against him are frivolous. Indeed, the D.C. Circuit panel, which includes stalwart conservative Karen Henderson, went out of its way to detail the extraordinary criminality alleged in the indictment. The legal consequences of Trump’s electoral interference — a profound and singular threat to American democracy — sit in stark contrast to the content-lite narratives offered in support of disqualifying or prosecuting Biden.
Second, the Trump-aligned argument ignores many mechanisms that constrain bad-faith prosecution and disqualification. For instance, former presidents don’t need “presidential immunity” to protect against bad-faith state prosecutions because “Supremacy Clause immunity” already prevents states from prosecuting federal officials — including ex-presidents — for official conduct. (The Georgia case is about Trump the candidate, not Trump the president.) Even if a state prosecutor and a state court ignored a former president’s immunity, they would still be able to enforce the immunity in the federal court to which any such case could be removed. Ditto efforts by federal prosecutors to bring frivolous charges against a former president, which would presumably fail a motion to dismiss. (Tuesday’s D.C. Circuit opinion lists several.) Without getting into the weeds of the procedural mechanisms that would slow any spiral of reciprocity, the upshot is that there can be a cascade of abusive prosecutions only if the U.S. Supreme Court signs off on them. And Congress can preclude retaliatory disqualification by simply passing legislation. If those institutions fail, then American democracy has far graver problems than vindictive federal prosecutors and abusive state election officials.
And that brings us to the third, most important point. If prosecutors and state election officials are inclined to indict or disqualify in bad faith, then courts’ having pumped the brakes on the Trump cases won’t stop them. The reason is simple enough: Immunizing Trump from criminal prosecution and preventing his ballot disqualification would hardly arrest our political polarization. And so long as demagogic political leaders describe opponents as “enemies” and demand extravagant legal responses to vague, unspecified charges of wrongdoing, it won’t matter how courts approach the Trump cases. There’s little room for nuance when the watchword is grievance. It strikes us as particularly naive to suggest that the breadth of presidential immunity meaningfully influences the rate at which ex-presidents are subject to politicized indictments. If there are to be bad-faith prosecutions of former presidents, it won’t be because courts failed to declare sweeping presidential immunities. It will be because our politics have passed the point of no return. When faced with the specter of bad-faith prosecutions, the objective can’t be to disable presidential prosecution at all costs. It must instead be to ensure that courts have the power to spare ex-presidents from frivolous proceedings. To indulge Trump’s legal arguments, the downside risk of political reprisal must outweigh costs on the other side of the ledger. To indulge Trump’s legal arguments, the downside risk of political reprisal must outweigh costs on the other side of the ledger. But just consider the price of the categorical presidential immunity that Trump seeks. Last month, Trump’s lawyer told the D.C. Circuit that former presidents should be immune from criminal prosecution even in cases in which they ordered the assassinations of political opponents or accepted bribes in exchange for pardons. The reason this wouldn’t spell the rule of law’s end, Trump’s lawyer argued, is that such a president would still be politically accountable. Of course, our polarized politics have already failed to hold Trump accountable (for instance, with his acquittal by the Senate at his post-Jan. 6 impeachment trial). And if those same polarized politics are what produces that dystopian autocracy, it seems foolish to expect them to save us. Like many Americans, the two of us don’t agree perfectly on how the courts should handle the immunity and disqualification cases. But we do agree with the D.C. Circuit that fear of bad-faith governance can’t dictate their response. We take seriously the threat that political polarization poses to the rule of law, and it’s well worth addressing. But asking the courts to bury their heads in the sand — rather than to do the job to which the Constitution commits them — will only make it worse.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast).
Lee Kovarsky
Lee Kovarsky is the Bryant Smith Chair in Law at the University of Texas, where he also co-directs the University's Capital Punishment Center. He teaches and writes about civil procedure, criminal procedure, federal jurisdiction, and the death penalty. His academic work has been cited across the federal and state judiciaries, and he writes a leading case book on habeas corpus. He regularly represents death-sentenced prisoners as they approach their executions, having argued numerous cases over the last two decades – including at the U.S. Supreme Court. He was elected to the American Law Institute in 2020. 
