I have a column up on the website urging that the United Nations Relief and Works Agency be formally designated as a terrorist organization under U.S. law in the wake of revelations about its complicity in Hamas’s October 7 atrocities. We also have an editorial urging an end to UNRWA, starting with the utterly irresponsible U.S. government funding of it — funding that I regard as criminal given the wealth of evidence, gathered over decades, of UNRWA’s support for anti-Israeli terrorism.

Considering all of this got me to thinking about the delay in the D.C. Circuit’s issuance of a ruling on Donald Trump’s claim of immunity from criminal prosecution for acts during his presidency that were arguably within the ambit of his executive authority.

The case was argued before a three-judge panel of the circuit about three weeks ago. As I noted at the time, the panel (consisting of two Biden-appointed judges and one Bush-41 appointee) seemed hostile to Trump’s claim. The part that relies on the impeachment clause is ill conceived, and the judges were taken aback by the logic of the claim, which would theoretically immunize a president who, for example, ordered the armed forces to assassinate a political rival (as highly unlikely, and unprecedented after nearly a quarter millennium of constitutional governance, as that would be). On the other hand, as insightfully observed by Judge Karen L. Henderson (the Bush-41 appointee), the court, by rejecting Trump’s claim, might open the floodgates for banana-republic-style politicized prosecutions.

The problem of course is that we already have politicized prosecutions. They were a staple of the Obama-Biden administration, and the Biden-Harris administration has tripled down: siccing the Justice Department not only on political enemies and political targets of significance to progressives, but also filing not one but two indictments against Trump — each strategically timed to be tried and get Trump convicted during the stretch run of a campaign in which he is Biden’s main competition in the November election. (Hence Trump’s immunity claim.)

Here’s why I raise this: When President Biden insisted on restarting funding for UNRWA, to the tune of over $1 billion since 2021, there was abundant, well-known evidence, going back decades, that UNRWA provides material support to terrorism. It was not just a hypothetical possibility that Biden’s funding might end up facilitating Hamas’s operations. There were notorious cases over the years of UNRWA terror support.

UNRWA’s promotion of jihadist ideology in Palestinian schools, its aiding and abetting jihadists in concealing and deploying missiles, its employment of Hamas operatives on the payroll, participation by its employees in terrorist operations — all of this was well known. Yet Biden, in his mulish determination to reverse Trump policies for no better reason than that they were Trump policies, restored UNRWA funding, knowing the deadly risk. The degree of atrociousness of the October 7 attacks was shocking; but the fact that Hamas carried out attacks and that UNRWA was complicit was as predictable as the sunrise.

Under those circumstances, if the D.C. Circuit rejects Trump’s claim of immunity from prosecution for official acts, would anything prevent the next Republican Justice Department from subjecting Biden, and every Biden official who was involved in the decision to restart UNRWA funding, to the stigma and financial ruin of criminal investigation? Is there anything that would prevent those officials from being indicted for material support of terrorism? Not that I can see.

I’ve recently argued that, while I believe immunity is the right policy, I would empathize with the reluctance of a court to spell that out in law. It is a legitimate worry that doing so would encourage presidential lawlessness in a way that the tacit norm we’ve maintained against prosecuting former presidents (and other high officials) has not. Both Trump in his outrageousness, and his adversaries in their heedless smashing of norms to nail him, have done real damage to the functioning of government.

If I had anything to say about it, Congress would impeach and remove Biden for the UNRWA funding, just as it would for his dereliction of the duty to secure our borders and his willful lawlessness in ushering millions of illegal aliens into our country. But it would be terrible for the country if, after his presidency, Biden were indicted for crimes arising out of his policy choices, as indefensible as those choices may be.

Nevertheless, Biden has normalized political prosecutions. In response, Trump promises that his will be the “retribution” presidency; while his last attorney general, Bill Barr, rebuffed demands for prosecutions of Trump’s political enemies, Trump would make the pursuit of such prosecutions a condition of his next attorney general’s appointment.

I imagine that has been going through the minds of the D.C. Circuit judges ever since they finished the easy part of their job — raising concerns about the logic of Trump’s position — and got down to the hard part: writing an opinion that neither endorses presidential abuses of power nor ushers in a future in which political rivals investigate and indict each other whenever power changes partisan hands.