The Supreme Court's Conservative Majority is a Threat to Democracy
PLUS: A bunch of stray thoughts on Biden's imperiled presidential campaign
It says a lot about the current state of our country that four days after declaring a homeless person can be arrested and even imprisoned for sleeping on a sidewalk, the Supreme Court’s conservative majority ruled a president cannot be prosecuted for using his official powers to commit a crime.
Having just celebrated the Fourth of July—the day political authority in this nation was officially transferred from a king to the people—it’s worth letting that one sink in a bit.
It is hard to overstate the significance of Trump v. United States, the presidential immunity case the Court decided last week. It is significant not only because it formally expands the power of the president so that those powers now encompass criminal behavior or because it is destined to join Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, Buck v. Bell, Korematsu v. United States, and Bowers v. Hardwick as among the very worst decisions ever handed down by the Court, but because it effectively wires dynamite around the pillars of our constitutional republic and passes the detonator to the president.
And it comes at a time when the leading candidate to become the next commander in chief has not hidden his intention to blow that republic to smithereens.
The case arises out of special counsel Jack Smith’s prosecution of Donald Trump for attempting to reverse the results of the 2020 presidential election. Trump’s lawyers claimed presidents have absolute immunity from prosecution for acts committed while president. The government argued presidents can be prosecuted after leaving office for violating laws while president.
The Court—and by the Court, we should specify the conservative majority consisting of Chief Justice John Roberts (the author of the opinion) and justices Clarence Thomas, Samual Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—issued a decision that came down on Trump’s side of the argument. In the process, they radically expanded the powers of the presidency.
Roberts wrote presidents not only have absolute immunity from prosecution for acts related to the exercise of their core constitutional powers (i.e., commanding the military, issuing pardons, vetoing legislation, etc.) but also possess the presumption of immunity for all official acts. Presidents can only be prosecuted for an official act so long as prosecutors can show that the charges would not threaten the ambiguously-defined “powers and functions” of the executive branch. Presidents can still be prosecuted for unofficial acts—acts which are not based in constitutional or statutory authority; in other words, private acts—but Roberts added that when determining if an act is official or unofficial, courts cannot consider the president’s motives. (Justice Barrett dissented on that last point.) Roberts noted, however, it is often very difficult to tell the difference between official and unofficial acts. After applying these ideas to the case at hand, the majority found Trump’s communications with Justice Department officials count as official acts stemming from a president’s core powers and are therefore immune from prosecution. Everything else was remanded to a lower court for factual review.
The implications of this decision for American politics are stunning. It basically means presidents cannot be prosecuted for any act they can presumably connect to their official duties. Or to put it another way, presidents now know they can commit crimes and not risk personal punishment so long as the president can claim he was acting in his official capacity as president when committing the crime. The logic verges on the Nixonian:
That’s not how the law is supposed to work, but thanks to the Supreme Court, that’s essentially how it works now. As Justice Sonia Sotomayor wrote in her dissent
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
And remember the president gets the benefit of the doubt in these cases because Roberts wrote the difference between an official and unofficial act is very blurry. Furthermore, a presidential action only needs the veneer of an official act for it to be deemed off-limits to prosecution, as courts cannot explore motive when attempting to determine if an action was official or private. So if a president accepts a bribe from a foreign government in exchange for preferential treatment or orders the assassination of a pesky political opponent, he can get away with it so long as it is linked in some way to an official duty (i.e., national security.) And even if he told an executive branch official he accepted the bribe or authorized the murder of someone for his own personal gain, it wouldn’t matter, since motive can’t be taken into account. All that matters is that he acted in an ostensibly official capacity.
There are good reasons to grant a president some degree of immunity while in office. A president could be hobbled if they were constantly being dragged into court by aggrieved citizens. The opposition party could kneecap a president by bombarding him with lawsuits. For Machiavellian reasons, there may be moments when a president finds it necessary to bend or break a law for the sake of national security or public order. At the same time, however, it is very reasonable for people to be concerned that a president who is unaccountable to the law may abuse their powers, which the majority in this case admits are of “unrivaled gravity and breadth.” It’s a difficult dilemma to resolve.
Yet one of the most shocking features of Roberts’ opinion is that he barely wrestles with this dilemma. Roberts spends little time considering how a president immune to prosecution might abuse his powers and instead obsesses over the possibility that an adverse ruling would limit the powers of the presidency. That’s strange since we live in a nation with a limited government whose citizens have always been skeptical of the exercise of political power. It often seems like Roberts can’t even imagine a president using his powers to commit a crime. Again, sure, you want to make sure the president can act. But it’s not just that Roberts is more concerned that the president may be the target of lawfare than he is that the president may use his powers to despotic ends, or that the president might be afraid to act in a Machiavellian moment. It’s that Roberts makes it seem as though it would be constitutionally problematic to hinder a president’s ability to commit a crime. As Sotomayor wrote in her dissent, “There is a twisted irony in saying, as the majority does, that the person charged with ‘tak[ing] Care that the Laws be faithfully executed’ can break them with impunity.”
For a conservative bloc so insistent on reading the Constitution in light of its original meaning, Roberts’ opinion is a startling break with the Founders’ vision of executive power. Having just fought the Revolutionary War, the Founders were very concerned with concentrating so much power in one individual and designed the executive branch accordingly. When Alexander Hamilton proposed creating something close to a monarch, his idea found no support at the Constitutional Convention. It is ironic, then, that Roberts relies so heavily in his opinion on the thoughts of Hamilton, the Founding Father with the most extreme (and at the time, unpopular) theory of executive power.
Still, it is a convention to reference Hamilton and Federalist 70 (his quintessential statement on the presidency) when discussing the constitutional theory of the executive branch. But Federalist 70 doesn’t come close to endorsing Roberts’ views on presidential powers. It is true Hamilton argues for an “energetic Executive,” but he makes that argument in the context of a discussion about whether the powers of the executive branch should be invested in a council or a single individual. Hamilton argues for a single individual because a single person has a single (rather than a divided) will and can therefore act more efficiently when it is time to act. While Hamilton personally envisioned a strong executive, Federalist 70 is not an endorsement of an imperial presidency, let alone the lawless Machiavellian presidency Roberts envisions. More damningly, Federalist 70 actually emphasizes the need to hold an executive accountable for his actions, including if they run afoul of the law:
But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall.
Hamilton is arguing for a single executive for the sake of accountability, even (if it comes to it) legal accountability. To paraphrase, he’s basically affirming what Harry Truman would eventually say about the presidency: “The buck stops here.” Roberts adds an addendum to Truman’s maxim: “And there’s nothing anybody can do about it.”
That’s admittedly a slight exaggeration. Roberts would insist there are plenty of constraints on a president’s power, as Congress, the courts, and the people themselves can push back against a rogue president by, say, passing laws, overriding vetoes, declaring actions unconstitutional, withdrawing popular support, or voting him out of office. There are also things the Constitution prohibits the president from doing.
For the most part, however, those arguments about checks and balances are absent from Roberts’ opinion. Roberts is instead so concerned about the restraints that may be placed on a president that he fails to imagine a president who might bend the Constitution to its breaking point, use his official powers to commit crimes, or employ illegal means to cripple those holding him accountable. Supreme Court justices are supposed to be good at imagining such scenarios; for instance, the same conservative majority that backed the decision in Trump v. US also recently imagined that the law prohibiting homeless people from sleeping in public spaces could also be applied to wayward campers or protesters, meaning it could be applied to different kinds of people and didn’t simply target the homeless. (So clever! 😒)
It therefore shouldn’t be hard for a judicial genius like John Roberts to imagine how a malignant president could, oh, I don’t know, order agents to assassinate his political rivals under the auspices of an “official act” and then use his official pardon power to get the assassins off the hook. If the Chief Justice isn’t inclined to such flights of fancy, he could look at the history of other nations with similar political structures to see what happened when presidents gained similar powers, and he only needed to be conscious for the past ten years to imagine how that could come to pass here. But Roberts didn’t entertain such ideas. Heck, Roberts didn’t even consider the possibility that an enraged rogue president might one day persecute the members of a defiant judicial branch and render the court system toothless. (Who and what army stops a president then?) Rather than write an opinion that reckoned with the real threat posed by Donald “Dictator for a Day” Trump, Roberts instead provided Trump with the legal roadmap the wannabe autocrat has been looking for.
If all of that isn’t outrageous enough, Roberts takes a moment near the end of his opinion to lecture the dissenters for their alleged myopia, writing, “In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic. Our perspective must be more farsighted[.]” But who is more shortsighted? If Sotomayor and the dissenters had won the day but were proven wrong by history, their error could be corrected more easily. But if the Court’s conservative majority is wrong, how do we pick up the pieces? How does a republic that’s been demolished by a lawless president reconstitute itself? How does a Supreme Court walk an opinion like this one back once it’s too late?
The Court could have taken another path forward. If they were worried about a ruling that would have placed too many restraints on presidential power, the Court could have narrowly tailored their ruling to circumstances surrounding elections. There’s a basic principle they could have articulated to achieve this: Because incumbent presidents have powers derived from their office related to the administration of elections that their challengers lack, and because presidents could use those powers to their advantage, presidents must not have the same level of immunity when it comes to the administration of elections that they may have in other areas connected to their official powers. It would be unfair to deny one candidate immunity from the charge of election fraud but grant it to another (thus allowing them to commit election fraud) because they happen to be the President of the United States.
The Court’s decision in Trump v. US absolutely floored me. The Roberts Court’s reputation has already taken a massive hit given a spate of recent rulings, the revelations about Justice Thomas’s and Justice Alito’s personal conduct while serving on the bench, and the circumstances surrounding the elevation of Trump’s three nominees to the Court. This case, however, has disabused me of the notion that the Court is a reservoir of wisdom and trustworthiness within our political system. I don’t know if the Court’s conservative majority is behaving this way due to naivete, ideological radicalism, or naked partisanship—it’s probably some combination of all three—but in addition to assuming the worst from them going forward, I’m also now viewing them as a threat to American democracy.
So what is to be done going forward? One thing President Biden could do now is draft a presidential code of ethics that could place limits on presidential actions. Such a code could, for instance, reform the pardon process; prevent the president from directly involving himself in the oversight of elections; prohibit him from ordering others to engage in torture, assassination, or the persecution of political opponents; etc. The problem with relying on a code of ethics is that even if presidents swore to adhere to it, it would not be legally binding. A president like Trump could always ignore it. Yet publicly committing to a code of conduct could give the code some weight in the realm of public opinion, which could make it costly for a president to violate it.
Beyond that, Democrats should revisit the idea of packing the Court. The problem with such a notion is that Republicans can easily counter by further packing the Court once they have the opportunity to do so. But if the Supreme Court is handing down rulings that gut the nation’s system of separated powers, it may be necessary to act now before more permanent damage is done.
Many would certainly claim that a proposal to pack the Court is an extreme reaction driven by a mere difference of opinion, and that the composition of the Court should only be changed via ordinary political processes outlined in the Constitution. The Court, however, is highly resistant to change via ordinary political processes, as we’ve reached the point where the composition of the Court only stands a chance of changing when a sitting justice unexpectedly dies. That makes it extremely difficult to check a Court running roughshod over the Constitution.
And yes, I appreciate the fact that the Constitution insulates the Court from politics by design, but do not use the sanctity of constitutional design to defend a Court that exhibits no regard itself for constitutional design. We are taught as school children that no man is above the law in this country. Last week, the Supreme Court definitively placed the president above the law and in the process did catastrophic damage to the United States’ system of separated powers. Given that, taking a drastic step like packing the Court may be the only way to save the Supreme Court from itself.
FURTHER READING:
⭐⭐⭐ By Sidney Blumenthal for The New Republic: “If Joe Biden Were as Ruthless About Immunity as Donald Trump…” ⭐⭐⭐
By Quinta Jurecic and Benjamin Wittes for Lawfare: “A Decision of Surpassing Recklessness in Dangerous Times”
By Richard L. Hasen for Slate: “Trump Immunity Ruling Will Be John Roberts’ Legacy to American Democracy”
By Adam Serwer of The Atlantic: “The Supreme Court Puts Trump Above the Law”
“As I looked at it, I realized Richard Nixon would have had a pass. Virtually all of his Watergate-related conduct [and] virtually all that evidence falls in what could easily be described as ‘official conduct.’”—John Dean, former legal counsel to President Nixon, 1970-1973
By Quin Hillyer of the Washington Examiner: “Supreme Court Grants Trump a Malignant Degree of Immunity” (“At first glance, the Supreme Court’s Monday decision on presidential immunity looked like an unwise overstatement of otherwise valid principles. At closer glance, it looks almost abominable. If there is a future President Kamala Harris, the decision in Trump v. United States would make her frighteningly unpunishable in criminal court even for what otherwise would be massive illegalities. Fans of former President Donald Trump who are now celebrating the decision could find themselves obliterated on their own petards.”)
Stray Thoughts on Biden’s Imperiled Campaign
Where things stand this weekend:
The Biden campaign and the Democratic Party are still reeling from Biden’s poor debate performance. Rather than counter his poor performance in the debate with a packed schedule of events that could demonstrate his fitness for office, Biden’s public appearances have instead been limited, which has not inspired confidence. His outreach to members of Congress has also been limited. His campaign is in full damage control mode.
Nearly all major media polls show Biden losing ground to Trump in national and battleground state polls.
Five Democratic members of Congress have called on Biden to step aside. Others have said he can’t beat Trump. Senator Mark Warner of Virginia is organizing a letter calling on Biden to end his campaign. Off-the-record comments suggest many Democratic lawmakers want to move on from Biden, but there is reluctance to push him aside out of fear he will only dig in.
Multiple sources report megadonors are beginning to hold back cash in an effort to push Biden from the race.
The Biden family and his inner circle of advisors appear dug-in.
Democrats seem to be coalescing around Vice President Kamala Harris as Biden’s replacement at the top of the ticket.
Reporting this week suggests Biden is considerably more frail than the White House has led Americans to believe and that his decline has accelerated over the past 6-12 months.
My thoughts:
Biden’s interview with ABC News’ George Stephanopoulos this past Friday was neither a disaster nor a reassuring reset. For what it’s worth, Stephanopoulos missed an opportunity to press Biden about why he isn’t out holding multiple campaign events on consecutive days to prove his fitness. Still, the political significance of the event was two-fold. First, his insistence that he was fine, that his campaign was going well, that his polling was strong, and that people were making too much of his struggles made him seem completely out of touch with reality. And secondly—and more importantly—his defiant attitude will probably only encourage more Democratic politicians to publicly and more forcefully call for him to step aside.
Many of the arguments Biden’s defenders have used to resist calls for him to step down are bad:
If Biden’s debate performance was only indicative of a “bad night,” why isn’t he going out of his way to show Americans a good night? Why isn’t he determined to show us a month’s worth of good nights?
If the debate was “not a big deal” since debates don’t change many voters’ minds, what was the point of participating in the debate to begin with?
If Kamala Harris is too great a risk to put at the top of the ticket, why did Biden pick her to serve as vice president, and how does that reflect on Biden’s own judgment?
Democrats on Capitol Hill are starting to sound like Republicans who blast Trump off-the-record but praise him in public comments.
Why the hell is Biden suddenly turning to his son (and convicted felon) Hunter for political counsel?
Just an observation: If Biden and his team are working harder to stay in the race than they are trying to win the race, get out of the race.
And now some thoughts about switching nominees:
There are countervailing impulses that must play out here. For example, Democrats need to give themselves time to figure out how they would handle a post-Biden political world (i.e., open convention, Harris promotion, etc.,) but they also need to move quickly so Biden does not entrench himself and so the party does not waste the remaining campaign days. Along those same lines, for multiple reasons, the Biden campaign must insist wholeheartedly that Biden is not dropping out up until the day he actually drops out (i.e., in case he stays in the race, so Republicans keep their fire on him rather than direct it at other aspirants, etc.,) but Democrats must also apply significant pressure to Biden to convince him to drop out so that he does not assume people are satisfied with him staying in the race. Finding the right balance between patience and urgency is critical.
Democrats are coming around to the realization that their best bet moving forward is probably elevating Vice President Harris to the top of the ticket. She did not impress during her 2020 presidential run and she has liabilities as a candidate. But:
She has been vetted (presumably; who knows how thorough a job oppo researchers did digging into her background during the 2020 pandemic election.)
She is a veteran of a national campaign (albeit one that occurred during a pandemic.)
As vice president, she’s regularly briefed on issues of national significance and therefore will have less of a learning curve to get caught up on issues a presidential candidate will need to discuss (although her limited portfolio may have limited her engagement with many of these issues.)
She can easily access the $240 million in donations the Biden-Harris campaign has sitting in the bank.
It would be easier to convince other contenders to defer to Harris if the party simply designated her Biden’s rightful successor.
Harris is the only potential nominee the party elders could simply pick, meaning the party could immediately return to general election mode while avoiding a time-consuming nominating process that could also turn divisive.
That said, there are two major risks in elevating Harris. First, voters have not responded well to her in the past. Some attribute this to voters’ attitudes regarding her race and gender, but others find that she struggles to connect with people and comes across as more phony than natural. Second, as vice president, she may not offer enough of a break with Biden (although she could be a more effective advocate for the Biden administration’s accomplishments than Biden himself.) Harris does have notable upsides, however, most notably in her potential to rally female, minority, and young voters.
If Biden steps down and Harris gets the nod, she’ll need time to assemble a campaign team and polish a stump speech so that she can hit the ground running as soon as Biden says he’s out. But just consider the awkward spot she’s in right now: She has to be one of Biden’s strongest defenders, but she can’t be too strong, since overshadowing him could be regarded as a self-interested move by Team Biden. This will only get more awkward the longer this drags on.
Harris will need a good answer for when she’s asked if she knew or was worried about Biden’s condition as VP.
If Harris ascends to the top of the ticket, there will be talk about whether Biden should resign so Harris can assume the powers of the presidency. It’s worth considering, but I say no for this reason: It is unlikely the House would confirm Harris’s temporary replacement pick for vice president (even if that pick is different than her pick as running mate) since a.) The House is led by Republicans who would want to make Harris’ life as miserable as possible by dragging the confirmation through the mud; and b.) They’d prefer to keep Speaker of the House Mike Johnson one heartbeat away from the presidency. (Maybe Harris could avoid that if she nominated a non-partisan person to fill in as vice president for about seven months?) And if President Harris doesn’t have a vice president, the Senate may lack the person who needs to preside over the electoral vote count in 2025, and we all know how that event went last time.
So let’s speculate: Who would Kamala Harris pick as her running mate in the 2024 election? My guess is Harris would want to signal to the white, predominantly male, predominantly working-class voters that Biden had credibility with that she sees them and wants them to stick with her. She would also want to aim that message at voters in the must-win Blue Wall states of Wisconsin, Michigan, and Pennsylvania. If you look at those states, however, there are only five white male Democrats serving in statewide office, and none of them is particularly appealing: Wisconsin Governor Tony Evers (too old at 72); Michigan Senator Gary Peters (too meh); Pennsylvania Senator Bob Casey (used to be pro-life); Pennsylvania Senator John Fetterman (dealing with health issues stemming from a stroke); and Pennsylvania Senator Josh Shapiro (too inexperienced). So she’d need to think outside that box a bit. Some contenders:
Governor Andy Beshear of Kentucky: Yes, a Democrat is governor of Kentucky, and he ranks among the most popular in the nation. At 46 years old, his star is on the rise, and he’s often discussed as a replacement for Biden if there’s a more open process. But Beshear styles himself as a moderate, which could dampen enthusiasm for a Harris-Beshear ticket among the party faithful.
Governor Gretchen Whitmer of Michigan: Whitmer won re-election in 2022 and remains popular in Michigan. She has credibility as a no-nonsense working-class pro-choice Democrat. But are voters ready for a ticket consisting of two women? Or might that energize female voters to turn out throughout the country and turn the gender gap to the Democrats’ advantage?
Secretary of Transportation Pete Buttigieg: Mayor Pete is great on the stump and would be an excellent surrogate for the ticket. He may read a little too progressive to some voters, however. A ticket consisting of a South Asian/Black woman and a gay man may also be too “woke” for a lot of Americans.
Arizona Senator Mark Kelly: Kelly, a former astronaut, is married to gun control advocate Gabby Giffords, who was severely wounded during an assassination attempt in 2011. Kelly is a moderate but is also a team player who has supported the Democratic agenda in Congress for the past four years. He could help with turnout in Arizona and help mend Harris’ liabilities on border security. If elected vice president, Arizona’s Democratic governor is required by law to replace him in the Senate with a Democrat, who would serve out the last two years of Kelly’s term. Kelly could be a very strong pick.
Minnesota Governor Tim Walz: If Harris wants to pick someone with ties to the Midwest, Walz may be her best option. Walz has a long record of accomplishment as Minnesota’s governor. He was able to keep the progressive-populist, urban-rural Democratic coalition together in his home state. As chairman of the Democratic Governors Association, he’d be able to bring some gravitas (although maybe not a lot of wow factor) to the ticket. Still, he’s the sort of candidate I’d want campaigning for Democrats in small towns and medium-sized cities in Wisconsin, Michigan, and Pennsylvania.
Signals and Noise
The Biden Campaign in Crisis
“I fell asleep on the stage.”—Joe Biden, blaming his heavy travel schedule and jet lag for his poor debate performance. Biden had returned from an overseas trip eleven days prior to the debate.
Reid J. Epstein and Maggie Haberman of the New York Times report Biden told a gathering of Democratic governors that he needs to get more sleep, work less, and not hold events after 8:00 PM.
“I'll feel, as long as I gave it my all, and I did as good a job as I know I can do, that’s what this is about.”—Biden, when asked how he would feel if everything his doubters are worried about came to pass and he lost this fall’s election.
By Bryan Walsh of Vox: “Democrats Say Trump is an Existential Threat. They’re Not Acting Like It” (“When it comes to the Democrats and the left — from the Biden campaign on down to the activists — it is impossible to look at what they’re doing and conclude that they truly believe Donald Trump is an existential threat. And that may pose an existential challenge to the party.”)
Ronald Brownstein of The Atlantic looks at how Democratic party leaders are dealing with the crisis.
By Michelle Goldberg of the New York Times: “There’s No Reason to Resign Ourselves to Biden”
NBC News points out the Democratic Party does have rules for replacing a presidential candidate.
Jonathan V. Last of The Bulwark wonders if Biden decides not to run and the baton is passed to Kamala Harris if Biden should also resign the presidency so Harris can become president or if she should remain vice president. (One thought he didn’t consider: If you assume a Republican House wouldn’t confirm a new Democratic vice president [which would leave Mike Johnson next in line for the presidency] there would not be a Democratic president to preside over the Senate’s electoral count in January, which could be a problem given what happened the last time Congress counted electoral votes.)
Jim VandeHei and Mike Allen of Axios consider the credibility crisis Biden is now dealing with along with the signs of decline so many Democrats and journalists either downplayed or dismissed.
By Olivia Nuzzi of New York: “The Conspiracy of Silence to Protect Joe Biden” (“Those who encountered the president in social settings sometimes left their interactions disturbed. Longtime friends of the Biden family, who spoke to me on the condition of anonymity, were shocked to find that the president did not remember their names. At a White House event last year, a guest recalled, with horror, realizing that the president would not be able to stay for the reception because, it was clear, he would not be able to make it through the reception. The guest wasn’t sure they could vote for Biden, since the guest was now open to an idea that they had previously dismissed as right-wing propaganda: The president may not really be the acting president after all.”)
By A.B. Stoddard of The Bulwark: “A Plea to Jill Biden: Reckon with Reality” (“By every account, the president’s wife is his closest adviser. She gets the last word in the significant debates about his future. She is not only unwavering, she is emphatic. The question now is whether she is letting that empathy and resolve get in the way of doing what’s right.”)
By Thomas Friedman of the New York Times: “The Question President Biden Needs to Ask Himself. Now.” (“At this moment of incredible importance for America and the Democratic Party, I would urge President Biden, his family and his party’s leadership to ask the same question: What does your worst enemy, Donald Trump, want you to do now? Then do the opposite. … So, what keeps Trump up at 3 a.m.? My guess is a scenario where Biden turns to his family and his top advisers and pulls out a line from the musical Hamilton:
George Washington: I’m stepping down. I’m not running for president.
Alexander Hamilton: I’m sorry, what?
Washington: One last time. Relax, have a drink with me. One last time. Let’s take a break tonight. And then we’ll teach them how to say goodbye.
Yes, what Trump fears most right now is that Biden will teach the country how to say goodbye.”
By Nate Silver for the New York Times: “Doing Nothing About Biden Is the Riskiest Plan of All” (“But Democrats should be more open to what polls are telling them — and again, not just Biden-Trump polls. There is a silver lining for Democrats to be found in these surveys. Voters in these polls like Democratic candidates for Congress just fine. More than fine, actually: It’s Mr. Biden who is the problem.”)
By Michael Scherer of the Washington Post: “Biden Needs Support from Millions of Americans Who Don’t Think He Can Do the Job” (“The numbers lay bare a central challenge for the Biden campaign: If he only receives votes from those who find him competent, he would receive support from less than a third of the electorate — far behind the winning margin he needs, even with a significant third-party candidate lowering the share of the vote total he needs to win.”)
Democratic donors are pivoting away from contributing money to the Biden campaign and instead channeling cash into House and Senate races in an effort to build a counter to what many believe is an inevitable Trump presidency.
The Supreme Court
By Laurence Tribe for the New York Times: “The Trump Decision Reveals Deep Rot in the System” (“To repair the profound and growing problem of presidential unaccountability, we must dare to design a separate branch of government, outside the existing three, charged with investigating and prosecuting violations of federal criminal laws.”)
Trump’s sentencing hearing in his hush money case has been moved to September so the judge can determine if the Supreme Court’s ruling on presidential immunity affects Trump’s conviction.
In a unanimous decision, the Supreme Court kicked two cases challenging state laws that attempted to prevent social media companies from moderating content posted on their platforms by users back to lower courts for analysis. (Moody v. NetChoice)
If you want to get a sense for how corporate America is reacting to the Supreme Court’s evisceration of the regulatory state (they’re pumped) check out “Corporate Lobbyists Eye New Lawsuits After Supreme Court Limits Federal Power” by Tony Romm of the Washington Post.
Democracy Watch
🚨🚨🚨 “Some folks need killing! It’s time for somebody to say it. It’s not a matter of vengeance. It’s not a matter of being mean or spiteful. It’s a matter of necessity!”—Republican North Carolina gubernatorial candidate Mark Robinson, during a speech last week at a small-town church. 🚨🚨🚨
🚨🚨🚨 “And so I come full circle on this response and just want to encourage you with some substance that we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”—Kevin Roberts, the leader of the conservative Heritage Foundation, touting conservatives’ recent political successes in the Supreme Court and in the presidential race. 🚨🚨🚨
Don Trump amped-up calls on social media to jail his political opponents, including Biden, Kamala Harris, Mitch McConnell, Chuck Schumer, Mike Pence, and Liz Cheney.
Steve Bannon reported to jail to begin a four-month prison sentence.
Citizens for Responsibility and Ethics in Washington estimated Trump received $160 million from businesses in foreign countries while president.
Democratic Rep. Jared Golden of Maine needs a primary challenger after writing this op-ep, in which he writes that, since the country has survived bad things in the past, he is fine with a Donald Trump presidency.
The 2024 Presidential Election
Stephanie McCrummen writes in The Atlantic about the disenchantment with Democrats in the Democratic stronghold of Albany, Georgia.
“There’s two things I wouldn’t eat. Well, three. I wouldn’t eat a human, I wouldn’t eat a monkey, and I wouldn’t eat a dog.”—Robert F. Kennedy, Jr., responding to a Vanity Fair report that…well, as they say, if you’re explaining that you’re not a cannibal, you’re…something.
RFK, Jr. also promised not to “take sides on 9/11.”
Trump is distancing himself from Project 2025, the conservative Heritage Society’s plan to reshape the federal government and implement far-right policy priorities should Trump win re-election. Democrats have been using Project 2025 to highlight Trump’s ultra-conservative agenda.
Aruna Viswanatha and Sadie Gurman of the Wall Street Journal look at how Trump’s once dire legal peril has rebounded to the point where he could now retake the White House with unprecedented executive powers.
Curious: In a break with tradition, the RNC will write its platform behind closed doors. Also, the Trump campaign has blocked a pair of anti-abortion activists from spots on the platform writing committee.
By Russell Berman of The Atlantic: “Why Trump’s Conviction Barely Registered in Polls” (“Pollsters told me they weren’t surprised by the conviction’s muted impact, largely because the public’s views of Biden and Trump are already so ingrained. Indeed, polling averages throughout the campaign have been more stable than in past elections [although Biden’s widely criticized performance in last week’s debate threatens that stability].”)
Monthly illegal border crossings have fallen to a three-year low, marking the lowest level recorded during the Biden administration. (They’re basically at the level Trump was at when he left office.)
Alec MacGillis writes in The Atlantic about rural Republican opposition to the school voucher movement, a Republican initiative gutting small-town schools.
James Fanelli of the Wall Street Journal reports more and more campaigns are now spending on Apple AirTags, which can be placed inside yard signs so that the signs can be traced when they are stolen.
International News
Labour won the UK general election in a landslide, making Keir Starmer the new Prime Minister of the United Kingdom. The Conservatives, led by former PM Rishi Sunak, lost a whopping 252 seats in a massive repudiation of the party that ushered in Brexit and cycled through five different prime ministers over the past eight years. (The Conservatives lost seats that once belonged to former PMs David Cameron, Teresa May, and Liz Truss.) Most observers see the vote as a rejection of the Tories rather than an endorsement of Labour. Of note: The populist/nationalist far-right Reform Party only gained five seats but came in second in 93 seats won by Labour.
The center collapsed in the first round of parliamentary elections in France, as French President Emmanuel Macron’s centrist party was drubbed by the far-right National Rally (receiving about 33% of the vote) and a coalition of left-wing parties (receiving about 28% of the vote.) Runoff elections to determine final winners will be held this week; many centrist and left-wing candidates who qualified as third candidates on the ballot are dropping out so as not to split votes between them and hopefully block far-right candidates.
Iran elected Masoud Pezeshkian, a reformist, as its new president.
Umair Irfan of Vox argues Hurricane Beryl, the first hurricane to ever reach Category 5 status in not only July but June, is a preview of extreme weather events to come as a result of global warming.