Month: July 2024

President Biden’s decision to drop out of the 2024 election, while hardly surprising, certainly adds drama to the already dramatic twists and turns in the election–particularly of late. While it remains to be seen how it plays out, a few things seem fairly obvious.

First, Biden had no real choice but to quit the race. Democratic politicians and their media allies virtually destroyed his chances by their escalating expressions of doubt over his capacity to win reelection and serve a second term. It had reached the point where the growing perception they fed that he was unelectabe became a self-fulfilling reality. With friends like these, he was almost sure to lose.

Second, their hypocrisy in now praising Biden for his “selflessness” is breathtaking. These are the same folks who have been working intensely for weeks, overtly or covertly, to undermine his viability as a candidate and make it almost impossible for him to continue effectively. Many among them were also surely aware of his limitations for some time, but willing enough to cover them up before his debate performance made that no longer possible.

Third, it’s hard to believe that Democrats have either the time or the inclination to mount a serious, substantive contest over their presidential nomination at this late stage and after all their internal angst and dissension over Biden. Many are already coalescing behind Kamala Harris. If they do go through some sort of process other than selecting her by acclamation, it will probably be mainly window-dressing. What credible Democratic rival, particularly anyone looking to the future, would want to risk mounting a forceful, potentially divisive, and probably long-shot challenge to her at this point? Any real competition will most likely be limited to the nominee for vice president, where a couple of swing state governors (Whitmer, Shapiro) might give Democrats a much needed boost.

Last but not least, Trump’s malignant and utterly graceless statement on Biden dropping out refutes once again any fleeting notion that he has somehow taken on a less toxic persona.

In Trump v. United States, the Supreme Court held that presidents have broad immunity from criminal prosecution for acts involving their official functions. Notably, the six conservative justices in the majority abandoned the originalist and textualist interpretive principles they usually claim to embrace. Instead, they essentially invented presidential criminal immunity in a manner reminiscent of decisions from the freewheeling Warren Court era.

Nothing in the Constitution’s text grants criminal immunity to presidents; on the contrary, the most relevant constitutional provisions strongly suggest that there is no such immunity. History and tradition, albeit limited, likewise support the conclusion that presidents do not enjoy immunity from criminal prosecution.^[1]See here and below for more detail on these points.

The Court’s opinion rejects these specific points out of hand. It reasons more generally that the nature of presidential power under the Constitution and separation of powers principles require that presidents be accorded sweeping immunity from criminal prosecution for all their official actions. Such immunity is “absolute” regarding a president’s “core” constitutional functions; all remaining presidential functions are entitled either to absolute or “presumptive” immunity.  

The Court holds that the president’s exercise of core powers is wholly beyond the reach of Congress, including the criminal laws it enacts. Regarding other presidential powers, it says immunity is rooted in the need to ensure that the president is “energetic,” “vigorous,” and not “unduly cautious.”^[2]Slip op. at 14. The presumption of immunity can be overcome only by a showing that prosecuting a particular presidential act “would pose no [i.e., zero] ‘dangers of intrusion on the authority and functions of the Executive Branch.’”^[3]Id. (emphasis added).

In arriving at these conclusions, the Court relies mainly on prior decisions dealing with presidential privileges and immunities in other contexts. It leans heavily on a 1982 decision, Nixon v. Fitzgerald, which held that presidents enjoy absolute immunity from civil liability for all actions within the outer perimeter of their duties. However, this 5-4 decision likewise rests on a shaky foundation of policies the majority justices deduced from the structure and general provisions of the Constitution rather than anything dealing specifically with presidential immunity. The Fitzgerald opinion also put some distance between its holding on civil immunity and potential criminal immunity, observing that “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”^[4]457 U.S. at 754, n.37.

As noted above, the Court glosses over or ignores multiple specific indications that the Constitution does not grant presidents immunity from criminal prosecution. For starters, while the Constitution confers limited immunity on members of Congress, it says nothing about presidential immunity. On the contrary, Article I, section 3, clause 7 provides that persons convicted in an impeachment shall nevertheless remain “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” This language explicitly recognizes that officials subject to impeachment—which, of course, includes the president–are likewise subject to the criminal law.^[5]The Court rejected Trump’s absurd argument that this provision makes impeachment and conviction a prerequisite to criminal prosecution. Rather, it merely clarifies that an impeachment conviction … Continue reading

The Court’s only response is that this provision “does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular.”^[6]Slip op. at 38 (emphasis in original). But it does clearly indicate just that. It applies by its terms to any official who has been impeached and convicted on any grounds. Obviously, presidents are subject to impeachment and conviction on grounds relating to their official acts. Indeed, impeachments are typically grounded on official misconduct rather than private acts.

The Court asserts that historical evidence concerning presidential criminal immunity is “fragmentary” and “unhelpful.” It’s not surprising that the history is sparse since the framers of the Constitution gave no serious thought to immunizing the president. Having recently won independence from the British Crown, they had no interest in creating a chief executive with king-like attributes. Alexander Hamilton, a leading advocate for a strong president, affirmed in the Federalist Papers Nos. 65, 69 and 77 that the president would be subject to criminal prosecution. In Federalist 69, Hamilton distinguished the president from the English king in this respect:

“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” 

By contrast, he observed, “[t]he person of the king of Great Britain is sacred and inviolable.”

Finally, the Court asserts, wrongly, that all our Nation’s past practice establishes regarding whether presidents can be prosecuted is “silence.” Issues concerning presidential criminal immunity did not arise until the Watergate scandal of the 1970’s. Since then, however, it has been widely and consistently assumed that presidents are subject to criminal prosecution. Among those sharing this assumption were former Presidents Nixon, Ford, and Clinton as well as Trump’s attorneys during his second impeachment trial along with many senators who voted to acquit him on the basis that criminal prosecution was the proper recourse for his misconduct.

The Justice Department’s Office of Legal Counsel (OLC), another zealous advocate for the presidency, also espoused this position. OLC maintains that a president cannot be prosecuted while in office, but it has long recognized that former presidents are subject to the criminal law for their conduct in office. For example, summarizing earlier opinions, a 2000 OLC memorandum observed:

“To be sure, as the Court has emphasized, ‘[n]o man in this country is so high that he is above the law.’ . . . [I]mmunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial. . . . A sitting President who engages in criminal behavior falling into the category of ‘high Crimes and Misdemeanors,’ U.S. Const, art. II, §4, is always subject to removal from office upon impeachment by the House and conviction by the Senate, and is thereafter subject to criminal prosecution.”

In sum, the Constitution’s text as well as all specifically relevant history and past practice that exists contradict the Court’s holding. But the Court had no persuasive response—in fact, little response at all—to any of this.

Unmoored from specific objective legal criteria, the Court’s opinion makes liberal use of policy arguments, many imported from Fitzgerald. It repeatedly stresses the need to ensure that the president is energetic, fearless, and not unduly cautious. It downplays the dissents’ concerns over presidential lack of accountability and potential abuses. It accuses the dissenters of “fear mongering on the basis of extreme hypotheticals” without specifically refuting any of them.^[7]Id. at 40. It counters with its own seemingly extreme but, according to the Court, “more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

The Court ridicules the dissenters’ assertion that it places the president “above the law.” However, if the president is not entirely above the law, he is very close to it. The combined effect of this decision and Fitzgerald is to grant presidents absolute or presumptive immunity from all civil and criminal liability for all their official acts. They remain fully subject to criminal law only for their wholly private actions, which was never at issue.

The Court leaves some room for the presumption of criminal immunity to be rebutted and remands the case to the trial court to initially sort it out. However, the Court’s comments on the Trump indictment and its other general observations indicate that it will be challenging to overcome the presumption. It may also be difficult to separate out a president’s private actions.

The Court starts by placing official discussions between a president and his attorney general in the core functions category of absolute immunity.^[8]Id. at 20, 37. This approach would seem potentially applicable to presidential discussions with a host of other government officials as well. The Court also holds that the president’s motivations may not be scrutinized and that the fact that an action is allegedly illegal does not make it unofficial. Finally, the Court seems to severely limit the use of evidence concerning a president’s official acts in a prosecution based on his unofficial conduct.^[9]This may effectively foreclose prosecutorial efforts to counter Trump’s far-fetched claims that he sincerely believed the 2020 election was stolen from him.

It’s hard to predict the legal and practical fallout from the Trump decision either as to Trump or looking farther into the future. Perhaps the dire consequences that critics anticipate will prove to be exaggerated. What is clear is that the Court eschewed textualism and originalism, which provide a straightforward answer in this case, in favor of a muddled decision that rests on a highly dubious legal foundation.^[10]There may well be circumstances in which the application of particular criminal laws to particular presidential acts raises legitimate constitutional issues. (See Justice Barrett’s … Continue reading Conservative justices accuse those who favor such loose interpretive methods of “making stuff up,” particularly when they announce constitutional rights and protections that are nowhere mentioned in the Constitution’s text or firmly grounded in history and tradition. Yet, that is exactly what the conservatives did here.

Many critics will insist that this decision is further evidence that the current Court is “illegitimate” or in the tank for Trump. A far more likely explanation is that the conservative justices have a sincerely-held, if excessive, philosophical bias in favor of presidential prerogatives.^[11]See, for example, this article by (then Judge) Kavanaugh.

First the good news: The absence of an audience and the fact that the moderators did not engage in debate with the debaters eliminated distractions and enabled the candidates to be themselves. The bad news, which permeated everything else, is that the candidates were indeed themselves.

Overall, the debate reinforced how degraded our national politics have become with a presidential contest featuring two highly unpopular candidates who, for different reasons, both appear unfit for the presidency. As the ever-acerbic Maureen Dowd put it, we face an electoral choice between “the ghastly” and “the ghostly.”

The primary, pervasive takeaway from the debate was that President Biden is significantly impaired. Based on his excruciating debate performance and prior incidents, it’s hard not to doubt his capacity to serve a second term. Few are buying the notion that he was the victim of a “cold” or just having a “bad night.” Instead, many prominent voices on the left now openly question his electability and fitness for office and are calling for him to drop out of the race. (This includes some who had previously downplayed concerns over his acuity.)  

The intense focus on Biden diverted attention from Trump’s own miserable performance. He hardly answered any of the moderators’ questions and spewed a torrent of exaggerations, misrepresentations, and outright lies. Some were so preposterous as to insult the intelligence of anyone listening. The notion that Trump “won” the debate, at least in any positive sense, is bizarre. At best, he was marginally less outrageous and obnoxious than in previous debates. Even this probably resulted more from the format (limiting his ability to interrupt) than any genuine improvement on his part.

Who knows exactly what will unfold in the aftermath of the debate. Clearly, however, the main consequence is to leave Democrats in a very difficult bind of their own making (surely those close to Biden have long known of his issues) and very little time to resolve it.

One option is to ride it out with Biden. Actually, this is the only option unless Biden can be persuaded to step aside. So far, there is no indication that he will; to the contrary, he seems to be pushing back hard.  Continuing with Biden is risky and likely to become more so. There were major concerns over Biden’s physical and mental fitness going into the debate and it strongly reinforced them. According to a post-debate poll, close to three-quarters of registered voters think Biden lacks the mental capacity to be president and should not be running. Almost half of Democratic voters think he should not run.

These concerns will not simply blow over; people can’t unsee what they saw in the debate. Assurances of his fitness and rejection of any contrary suggestions  will no longer be taken at face value. Insulting and dismissing as “bedwetters” those who are skeptical based on what they observed first hand is likely to backfire; it will only engender resentment at being gaslighted. Biden will not get away with a stealth campaign; everything he says and does will be scrutinized for signs of possible decline. There will be intense pressure for him to submit to unscripted events such as media interviews and press conferences in order to prove himself. Assuming that his debate performance was not an aberration, these events don’t figure to go well.

The other option is for Democratic elder statesmen (Obama, Schumer, etc.) and close confidants to convince Biden—probably both Joe and Jill—that he should step aside for the good of the party, his legacy, and the country. However, this option carries its own complications. First among them is what to do about Kamala Harris. While she is as unpopular as Biden, dropping her would be a major challenge for identity-obsessed Democrats. Another problem is holding an open convention. This would invite chaos and warfare among the many Democratic factions that have up to now coalesced behind Biden.

One possible approach: (1) Convince Biden to withdraw and to urge his delegates to support a specific candidate, such as the governor of one of two key swing states—Whitmer of Michigan or Shapiro of Pennsylvania. (2) Convince Harris to remain on the ticket as vice presidential nominee.

Whatever strategy the Democrats adopt to address the mess they find themselves in following the debate, they need to act quickly and decisively.