Over the past few weeks, two events have dramatically changed the nature of the US presidential race. Joe Biden’s debacle in his debate against Donald Trump threw the Democratic Party into chaos, making it increasingly unclear whether Biden can continue as the party’s nominee. Perhaps even more importantly, a recent decision by the US Supreme Court has granted presidents immunity from prosecution for a wide range of criminal behavior, dramatically raising the stakes of November’s election.
The Assassin-in-Chief?
The Supreme Court ruling came in response to an attempt by Trump to have the charges against him in the federal January 6th probe thrown out. However, the justices ruled in a way that goes far beyond that narrow case, and in doing so they fundamentally revised the American constitutional order. From now on, presidents have absolute immunity from prosecution for any acts which relate to their “core constitutional responsibilities” and what the court called “presumptive immunity” for any acts related to their “official duties”.[1]
Cutting through this legalese is hard, in part because the court has entirely invented much of it. There is no precise definition of “official duties”, “core constitutional responsibilities”, or even “presumptive immunity”. Presumably, these will be defined by future case law.
Let’s take a look at one much-discussed example: could the president order the military to assassinate a political rival? The answer seems to be quite clearly that yes, he could. Control of the military is clearly within the president’s core constitutional responsibilities, as set out in Article II of the constitution.[2] Even conservative commentators who have been dismissive of this scenario only do so based on the claim that the president would not be able to find any military personnel willing to carry out the order, and that he would be impeached if he did.[3] Given previous examples of presidential abuse of power involving the military as well as the intense partisanship of current US politics, both of these assumptions are highly questionable.
To take another example: the president’s ability to influence the legal process. Both the pardon power and the power to direct the Department of Justice are clearly within the president’s “core constitutional responsibilities”. Henceforth the president can order his political opponents to be prosecuted on false pretenses, and pardon any of his own supporters who commit federal crimes. In the assassination scenario, whoever pulled the trigger would still ordinarily be liable to prosecution – but a rogue president could now simply pardon them without any fear of legal ramifications.
Raising the stakes
Long-term, the myriad ways in which future presidents might abuse this ruling are hard to predict. In the short-term, however, it is clear that whoever wins in November, they will be handed an office with vastly increased powers. And if the victor in that election is Donald Trump, we already have some idea of how he might use them.
Trump has been quite open about his plans for a second term, and even before the immunity decision he did not shy away from spelling out how he would abuse the powers of his office. Among other things, Trump has threatened to have his political opponents prosecuted or subject to military tribunals, laid out plans to deport millions of people in mass immigration sweeps involving the military, and said he will pardon the perpetrators of the January 6th insurrection.[4] The immunity ruling provides him with a menu of other options for using presidential power to advance his personal and political interests, from enriching his family through corruption to suppressing political opposition.
In such a scenario, the only potential checks on Trump would be Congress, the federal bureaucracy, and mass protests. However, in today’s hyper-polarized age, impeachment is almost impossible. Members of Congress are not willing to risk the wrath of members of their own party by voting to convict, and the Congressional Republican Party is today more pro-Trump than it has ever been.[5] The federal bureaucracy might provide a check, but Trump’s allies have already formulated plans to reduce the power of civil servants and subject the bureaucracy to much greater political control.[6] Trump has also openly speculated about using the military to suppress protests in a second term.[7] Moreover, while presidents would in theory still face regular elections, they could also use their new powers to subvert them, much as Trump attempted to in 2020.
Democratic woes
These developments have coincided with the outbreak of complete chaos in the Democratic Party. Biden’s disastrous performance at the presidential debate in Atlanta has brought out into the open long-standing concerns about the president’s age and cognitive abilities.
Perhaps even more damaging than the debate itself has been what has happened since. As Biden’s standing in the polls has plummeted, he has appeared to falter in subsequent appearances in which he has been unable to rely on a teleprompter. This has fueled the belief that the president is unable to campaign and sparked rage among other Democratic politicians that the deterioration of his condition has been hidden up to this point. It has not helped that the White House has attacked critics from within the party as “bedwetters” and “hysterical” while also repeatedly changing its story about why Biden appeared so unwell during the debate.[8]
With the Supreme Court’s immunity decision focusing the party’s minds on the stakes in November, Vice President Kamala Harris has seen her stock within the party rise dramatically. Attitudes towards her taking the nomination range from resignation to enthusiasm. Even her critics concede that passing her over might alienate sections of the Democratic Party, and they also realize that campaign finance law makes her the only plausible candidate who can maintain access to the Biden campaign’s substantial financial resources.[9] More enthusiastic supporters point out that she is young, energetic, and can be an articulate spokesperson for the party’s case.
Over the past year, the Democratic Party has arguably become used to setting its expectations low. Even before the debate, the Biden campaign had decided on a light schedule for its candidate in deference to his age and low energy levels. The theory was that it would not matter if Biden was not particularly visible, because Trump would implode in a cloud of his own legal woes and controversial statements.[10] If that strategy was ever tenable, it is not anymore after the debate, when Biden himself has become the focus of media attention. Democrats desperately need to get the focus back on Trump. Having a much younger and energetic candidate barnstorming the swing states, while highlighting the stakes of a new Trump presidency, might be just the way to do it.
If Biden does step down from the campaign, focus is likely to shift to the question of whether it is even tenable for him to remain president for the next seven months in the run up to the election. If his mental condition really has deteriorated as dramatically as it seems, it will be difficult – not to mention distracting – for Harris to continue to justify him remaining in office on the campaign trail. Letting President Harris run, with all of the powers of incumbency, might be the best way forward.[11]
These are not easy matters to navigate. American democracy is currently in grave peril, and almost any decision that Biden and others in the party take carries great risks. Yet one thing is clear: absolute focus must be maintained on keeping Trump and the authoritarian forces that he represents out of the White House.
There is no time, now, to allow personal egos or long-running intra-party feuds get in the way of what needs to be done. A Democratic presidential candidate needs not only to be able to win the election, but also to engage in the long struggle ahead to put American democracy back on a sustainable footing. When the dangers are this great, anyone who aspires to carry the torch of freedom has to prove that they can bear it – or hand it over to someone else who can.
Andrew Gawthorpe is an expert on US foreign policy and politics at Leiden University and the creator of America Explained, a podcast and newsletter. He was formerly a research fellow at the Harvard Kennedy School, a teaching fellow at the UK Defence Academy, and a civil servant in the Cabinet Office.
[1] Supreme Court of the United States, Trump v. United States, July 2024, https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
[2] Quinta Jurecic and Benjamin Wittes, A Decision of Surpassing Recklessness In Dangerous Times, Lawfare, July 2024, https://www.lawfaremedia.org/article/a-decision-of-surpassing-recklessness-in-dangerous-times
[3] The Supreme Court Protects the Presidency In Trump v. US, Wall Street Journal, July 2024, https://www.wsj.com/articles/trump-v-u-s-supreme-court-presidential-immunity-official-acts-john-roberts-january-6-c4d5eddc; Dan McLaughlin, Actually, Presidents Still Can’t Murder People With Impunity, National Review, July 2024, https://fpc.org.uk/the-transatlantic-partnership-looking-ahead-on-the-impacts-of-trade/
[4] Chris Cameron, Trump Amplifies Calls to Jail Top Elected Officials, Invokes Military Tribunals, The New York Times, July 2024, https://www.nytimes.com/2024/07/01/us/politics/trump-liz-cheney-treason-jail.html; Zachary B. Wolf, Trump Explains His Militaristic Plan To Deport 15-20 Million People, CNN, May 2024, https://edition.cnn.com/2024/05/01/politics/trump-immigration-what-matters/index.html; Lauren Aratani, Trump Says Pardoning Capitol Attackers Will Be One Of First Acts If Elected Again, Guardian, March 2024, https://www.theguardian.com/us-news/2024/mar/12/trump-january-6-pardons
[5] Patrick Svitek and Mariana Alfaro, Trump’s Influence Looms Large Over Congressional Republicans, The Washington Post, April 2024, https://www.washingtonpost.com/politics/2024/04/12/donald-trump-congress-republicans-mike-johnson-fisa-ukraine-abortion/
[6] Trump’s Schedule F Plan, Explained, Protect Democracy, June 2024, https://protectdemocracy.org/work/trumps-schedule-f-plan-explained
[7] Michael Waldman, Trump’s Insurrection Act Threat, Brennan Center for Justice, November 2023, https://www.brennancenter.org/our-work/analysis-opinion/trumps-insurrection-act-threat
[8] Toluse Olorunnipa, Tyler Page and Michael Scherer, Biden Team Works Furiously To Quell Any Democratic Revolt After Debate, The Washington Post, June 2024, https://www.washingtonpost.com/politics/2024/06/30/biden-democrats-election/; Alex Thompson, “Freaking The F*** Out”: Turmoil In The White House Over Biden, Axios, July 2024, https://www.axios.com/2024/07/02/biden-white-house-campaign-staff-freaking-out-debate
[9] David Dayen, Campaign Finance Laws Give Harris Big Boost in Biden Dropout Scenario, The American Prospect, July 2024, https://prospect.org/power/2024-07-02-campaign-finance-laws-harris-big-boost-biden-dropout-scenario/
[10] Edward-Isaac Dovere, How The Biden Campaign Hopes To Make 2024 Less About Biden And More About A Contrast With Trump, CNN, January 2024, https://edition.cnn.com/2024/01/02/politics/biden-campaign-strategy-trump-2024/index.html
[11] Andrew Gawthorpe, The Case for Biden Resigning Right Now, America Explained, June 2024, https://amerex.substack.com/p/the-case-for-biden-resigning-right