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Presidential Privilege Is Case-Specific

The Supreme Court seems confused in its consideration of the former president’s claim that all actions by a president are immune from prosecution. Comments made from the bench during oral argument suggest that they are looking for principles to last for all time of the distinction between presidential actions that are liable to criminal prosecution and those that are not. The question they should be asking is case-specific: Is a president or former president immune from criminal prosecution for election interference.



This is a case of first impression. We have never before had a president or a past president indicted for criminal conduct. In our judicial system, inherited from the Common Law, judges are almost always expected to decide only cases where there is a real controversy, and the decision is supposed to be specific to that controversy.



This applies to the Supreme Court even where presidents are concerned. In United States v. Nixon (1974) a unanimous Court ruled that the president wasn’t immune from a subpoena for  taped conversations in his office. Justice Berger’s majority opinion recognized that greater deference to presidential confidentiality is due where military and national security matters are at issue, but declined to extend immunity from disclosure needed in a criminal matter to cover all communications that a president may want to be kept confidential. There was no discussion, much less decision about immunity except from complying with a subpoena for tapes of a conversation that did not concern military or national security matters.



When the issue arose whether burning the American flag in protest against the Vietnam war was speech protected by the First Amendment, the Court didn’t try to solve all issues of political speech, it issued a ruling about burning the American flag.



Another landmark case, Bush v. Gore (2000) also illustrates the case-specific nature of Supreme Court decisions. The Court decided regarding the recount of the November 2000 vote in Florida that then Vice-President Gore sought, and that the Florida Supreme Court had approved, couldn’t be done in a time. In addition, the manner of recounts would deprive the voters of Florida the right to vote on equal terms because decisions regarding voters’ intentions based on the physical state of their ballots would not be uniform across the state. (This decision is much reviled for good reason, but that is beyond the scope of the present post.)



In general, Court decisions rest on precedents and a common-sense weighing of competing factors. More recently, the Court also considers the original meaning of the Constitution and historic practices related to the specific claims in the case at hand.  



There are exceptions when courts, including the Supreme Court, issue declarative judgments, as in the 303 Creative case where a woman wanted to know if she would be breaking the law if she were to create websites for weddings without making her services available to same-sex couples. The Court’s decision did not concern past illegal conduct or currently aggrieved parties, but it was case specific, nevertheless.



Another type of exception concerns decisions needed to clarify the Court’s own precedents in an area of the law. Justice Rehnquist complained about the Court’s seemingly inconsistent decisions between 1947 and 1985 about when aid to religious schools violates the Establishment Clause.



A State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip.



Several of these confusing precedents date from between 1947 and 1971 when the Court stepped in with a decision designed to clarify the law in general, not just decide the specific case before it. The Court announced a three-part test which was always controversial and is no longer used.



There are no precedents for the case currently before the Court and therefore no reason for clarification of the whole area of presidential immunity from prosecution for election interference. The Court, to be consistent with its normal procedure, should just decide that narrow issue. Members of the Court who favor the original understanding of the Constitution’s text should have no difficulty. The Constitution gives presidents no official duties regarding the electoral process, so they act in this area as an ordinary citizen and are therefore obviously not immune from prosecution.



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