Donald Trump Is Asking the Supreme Court for the Bush v. Gore Treatment

The Supreme Court will soon be under the microscope like it hasn’t been since the disputed 2000 U.S. presidential election in Bush v. Gore, as it considers not one but now two major cases that each could strongly influence whether Donald Trump will become president again. One of the major criticisms from the left of the court’s opinion in Bush was that it was a “one day only” ticket to hand George W. Bush the presidency without establishing a legal precedent to apply to other cases. And yet Trump is making similar arguments in both of his cases coming before the court, arguing for a kind of exceptionalism that would help Trump, and only Trump, regain power and stay out of jail. If the court cares about its legitimacy and its sagging public opinion, it should not embrace Trump exceptionalism no matter how it otherwise decides these cases.

Consider first Trump’s argument in the disqualification case that the Supreme Court will hear in oral argument on Thursday. That case concerns a Colorado Supreme Court decision keeping Trump off the ballot for the Republican presidential nomination on grounds that he engaged in insurrection in violation of Section 3 of the 14^th Amendment. I’ve already noted here at Slate that Trump’s arguments in his Supreme Court opening brief against the Colorado decision spent an inordinate amount of time on a hypertechnical argument about whether the president is an “officer of the United States” and the presidency is an “office” of the United States for purposes of Section 3. The argument is exceptionally weak. As Marty Lederman writes, “If the presidency isn’t an office of the United States, of what sovereignty is it an office? Ohio? France?”

As Marty helpfully explains, there are really two related hypertechnical arguments here. First, because the presidency is not an “office” of the United States, the disqualification provision of Section 3 does not disqualify anyone who engaged in insurrection from serving as president. The second argument is that disqualification does not apply to a former president who has violated his oath, because the president is not an “officer of the United States” and Section 3 applies only to someone who has “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States.” Trump has focused on this second argument.

Just about everyone who wishes to run for president has served in an earlier office and taken an oath to support the Constitution. Joe Biden, for example, was a senator, among other things, before becoming president. In his reply brief, Trump admits he is arguing for an exception that likely would apply only to Trump and to no one else: “Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment.” In other words, if the court accepts Trump’s primary argument, it won’t affect the meaning of Section 3 for any candidates running for president except as to Donald Trump.

Trump has made similar exceptionalist argument in the criminal case for election subversion filed by special counsel Jack Smith in federal district court in D.C. That case was supposed to go to trial in early March, but Trump took a special appeal to the United States Court of Appeals for the D.C. Circuit, putting trial preparations on hold. Trump is arguing that he is immune from criminal prosecution for any official act he did as president and that his attempted election subversion was an official act.

The D.C. appeals court, in an opinion Tuesday, accepted for the sake of argument that Trump’s attempt to meddle in the counting of ballots and Electoral College votes was an official act (though it was skeptical of that argument too). But it ruled that presidents are not immune from criminal liability even for official acts, giving Trump until only Monday to seek to stop the trial through an emergency motion filed in the Supreme Court.

The D.C. appeals court called Trump’s argument one of “first impression,” meaning that this is an issue that courts have never had to consider before. After noting that presidents have certain immunity from civil suits for official acts, the court wrote: “Former President Trump’s claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.”

The court rejected the argument that no other president or former president has made or would make, because no other president or former president had ever engaged in or been charged with trying to subvert a presidential election. As the court wrote: “Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role—the counting and certifying of the Electoral College votes—thereby undermining constitutionally established procedures and the will of the Congress.”

The Supreme Court now faces what are potentially two outcome-determinative questions on the presidential election, and it will likely make one or both decisions in a matter of weeks. If the court disqualifies Trump, that should be the end of his candidacy. If the court finds one way or the other not to disqualify Trump (and there are many ways the court can do so aside from embracing the hypertechnical argument), then the decision on timing on the immunity question becomes crucial.

If the court lets the election subversion case go to trial after holding there is no immunity, there’s a real chance Trump is convicted, and that conviction could be enough to swing the election away from Trump. Indeed, if it happens before the Republican National Convention, there’s a real chance the delegates could choose someone other than Trump for the general election.

Whatever the court does, it needs to be guided by the principle that like cases should be treated alike, and no person is above the law. The surest way for the court to lose more respect in the public’s eye is if it creates a rule that helps Donald Trump and only Donald Trump.