Monday the U.S. Supreme Court, by a 6-3 majority, ruled that presidents in general, and Donald Trump in particular, have “absolute immunity” from criminal prosecution for crimes perpetrated in office when those crimes are committed in performance of a president’s “core constitutional powers.”
Four things seem perfectly clear at this moment.
First: Monday’s SCOTUS decision is a devastating blow to the rule of law and constitutional democracy. It makes the effective federal prosecution of Trump for his January 6, 2021 efforts to overthrow the 2020 presidential election impossible before the upcoming November election; deprives the public of a proper legal verdict on Trump’s crimes; and allows him to dismiss all federal prosecution in 2025 should he be returned to the White House this November. Trump is effectively immunized from prosecution for his role in the January 6 insurrection.
Second: guilty verdicts in Trump’s many prosecutions were never going to defeat Trump politically, something that can only be accomplished at the ballot box in November. Monday’s decision only underscores the necessity of defeating Trump in November.
Third: the only way to defeat Trump in November is to do everything humanly possible to support the Democratic candidate running against him.
Fourth: if that candidate is Joe Biden—as seems likely, though all too many people refuse to acknowledge that he has not yet become the Democratic party’s official nominee—this means doing everything humanly possible to support Joe Biden and assure his re-election. This is beyond doubt and warrants no further discussion.
While Trump exceeded and abused his proper constitutional authority, endangering democracy in ways that the SCOTUS majority is now willing to exonerate, Biden and Garland, by contrast, failed to energeticallyusetheir actual constitutional authority to uphold the rule of law.
Whether that candidate is Joe Biden a week from now, or two months from now, remains to be seen. I continue to believe, along with virtually every commentator who is not a Biden acolyte or staffer, that Biden’s candidacy does not maximize the chance of defeating Trump, and that Biden’s abysmal debate performance last week was only the latest and most shockingly visible indication of Biden’s weaknesses as a candidate and as a defender of democracy. That case has already been made.
But Monday’s events are not unrelated to the case. And since the precariousness of Biden’s candidacy continues to be discussed even as his campaign seeks to shut the conversation down, it is worth explaining why: because Monday’s SCOTUS decision further underscores Biden’s political weakness.
There is an irony here: the SCOTUS ruling, by greenlighting Trump’s past presidential weaponization of the Justice Department to subvert an election –and also his promise to do a better job next time-- also highlights one of the ways that Biden’s own Justice Department, led by the milquetoast Attorney General he chose to appoint, failed to do its job in the years since Biden took office.
Think about it. The “logic” of the SCOTUS decision is that any president, acting in his official capacity as the Chief Executive of the federal government, is legally entitled to use his authority to order the investigation, prosecution, and weakening of political opponents considered dangerous to the Constitution as he sees it, and cannot be held criminally liable for doing so. This logic of immunity would apply as much to Biden and Merrick Garland as it does to Trump and his own rotating cast of Attorneys General.
It is of course a good thing that Biden is the kind of president who would not so weaponize the Justice Department, Trump’s lies notwithstanding.
But it is not a good thing that Biden appointed an extremely cautious Attorney General (there were alternatives), and took a completely hands-off approach to Justice as it dealt with a crisis—an insurrection incited by Trump—of unprecedented proportions in an incredibly torpid and reticent way.
Instead of acting on Day One to prepare prosecutions for the manifest crimes of January 6, 2021, Garland waited almost two years, until the House January 6 Committee completed its work in late December, 2022, to even begin the process of filing charges. His decision to appoint a Special Counselor, Jack Smith, to lead the prosecution, brought further delays. As a result, Justice only brought indictments in August 2023 (the New York Times documented this slow-walking and its weaknesses in a March, 2024 report, pointing out the enormous frustration of House committee members urging Justice to move expeditiously).
Garland’s legalistic scrupulousness might have been an exemplary public performance of respect for due process in normal times. But Biden’s entire presidency is premised on the fact that these are not normal times, and that Trump and his MAGA party were pursuing an ongoing assault on constitutional democracy that began in 2016. And yet Garland dithered, and Biden--the chief executive who appointed him and clearly had a legitimate constitutional authority to make sure that the law was faithfully executed under his watch--did nothing to spur Garland on.
If justice delayed is justice denied, then it must be said: the Biden administration has not delivered justice in this affair.
This is legally unfortunate. But it is also politically unfortunate, for vigorous prosecution, while not legitimately motivated by the desire to win an election, might well have helped to expose Trump’s criminality and to politically slay the beast of Trumpism instead of allowing it to rise like a phoenix in the months and years since January 6.
If justice delayed is justice denied, then it must be said: the Biden administration has not delivered justice in this affair.
While Trump exceeded and abused his proper constitutional authority, endangering democracy in ways that the SCOTUS majority is now willing to exonerate, Biden and Garland, by contrast, failed to energeticallyusetheir actual constitutional authority to uphold the rule of law. And so Trump, McCarthy, Jordan, Johnson, Greene, Vance, et al have continued to denounce “the steal” and defend January 6, poisoning public discourse and positioning Trump to run again, to lead in the polls, and to convince large numbers of people that he stands for democracy and Biden stands against it.
And now House Republicans are suing Garland over his refusal to turn over audiotaped interviews of Biden’s alleged senescence. The suit is an outrageous attempt to weaponize the law for electoral purposes. But at this moment, it seems likely that it might well win, and that the disclosure of the tapes will furnish further evidence of Biden’s mental lapses. Regardless, the political implications of the overall situation are clear: while Trump and his allies have continued to view political conflict as a blend of no-holds-barred Ultimate Fighting and WWF wrestling, Biden, Mr. Bipartisanship and Institutionalism, has been loath even to play constitutional hardball.
The fecklessness of the Garland Justice Department is but one example.
Historical memory is short in American politics. But certain things ought not be easily forgotten. Back in 2018, Democrats in both the Senate and the House started promoting major legislation to strengthen democratic electoral processes and protect voting rights. After Biden’s victory in 2020, both the “For the People Act” and the “John Lewis Voting Rights Enhancement Act” were resoundingly passed in the House in 2021, when the Democrats controlled the presidency and both Houses of Congress. But both bills were killed in the Senate by the filibuster rule.
Biden was pressed to support an end to the Senate’s filibuster rule.
He refused, deferring both to institutional precedent and “bipartisanship.”
Only in January of 2022 did Biden come out in favor of Senate rules changes, after the moment for the contest had passed. There have been no such rule changes, and it would be hard to say that he exercised strong leadership on the matter. In 2021, Guardian columnist David Smith presciently observed that “Joe Biden’s reforming agenda at risk of dying a slow death in Congress.” Biden’s legislative accomplishments are rightly praised. But the most important “democracy-promoting” bills promised by Biden—the For the People Act, the John Lewis Act, the Protecting the Right to Organize (PRO) Act—have all languished in Congress and are now barely mentioned by Biden in his campaign speeches.
It surely is tempting to suppress the inclination to point all of this out, and to simply rally behind Biden.
In the likely event that he remains the Democratic candidate, it will surely be necessary to support Biden and to summon all possible energy and rhetorical creativity to promote his candidacy in the face of his increasingly manifest limitations.
But it is intellectually irresponsible and politically foolish to ignore the obvious. Joe Biden is a good president who is without question a better person and a better candidate than Donald Trump, a megalomaniacal fascist. But he has not been a vigorous opponent of Republican efforts to undermine constitutional democracy, and he is now a weak and severely weakened candidate at a time when a strong, vigorous, and assertive defender of democracy has never been more needed.
The short speech Biden delivered Monday night from the White House criticizing the Supreme Court's decision was strong. But it was very short and very carefully scripted and, and it was noticeable that after speaking Biden simply turned around and walked away, again choosing to avoid directly engaging the questioning of journalists. The decision to shield him from challenging situations will not restore the confidence in his communicative and cognitive abilities that was lost last week.
Can Biden’s campaign make the changes necessary to strengthen his candidacy? Are
any changes capable of doing this? Perhaps. This remains to be seen. What is clear is that deference to the unwavering confidence of his family and recourse to overblown rhetoric about his unique ability to defend democracy are no substitutes for a serious reckoning with hard questions by all those who claim to be leaders of the Democratic Party. And while personal loyalty to a decent man is a virtue, what is required now above all is fidelity to democracy itself.
