Biden in trouble as Supreme Court hands Trump another big win
2024-07-04 00:30:09
Every Friday, Guardian columnist and former Washington correspondent, Jonathan Freedland, invites experts to help analyse the latest in American politics. From politicians to journalists covering the White House and beyond, Jonathan and his guests give listeners behind the scenes access to how the American political machine works.
This is The Guardian.
As Americans celebrate Independence Day, Democrats are scrambling after a calamitous week for their president, their party, and, it seems, for American democracy.
The Supreme Court ruling that Donald Trump may claim immunity from criminal prosecution for some of the actions that he took in the final days of his presidency.
The decision made by the majority conservative bench had an immediate effect on Donald Trump and his legal battles.
Now, former President Donald Trump will not be sentenced, if he is sentenced, until the final stretches leading up to the general election.
All this was happening against the backdrop of a candidate, wounded by last week's disastrous TV debate, now trying to convince his party and voters that he's fit and ready to be president for another four years. So what do the Democrats do now? I'm Jonathan Friedland, columnist for The Guardian, and this is Politics Weekly America.
This is an enormous peril for Joe Biden, frankly, but also for the Democrats. Every member of Congress will go home. They will march in their wonderful Fourth of July parades in their small towns or big cities or neighborhood blocks.
Paul Begala is a political contributor to CNN and a scholar at the University of Virginia's Center for Politics. In a past life, he was an advisor to President Bill Clinton and a chief strategist for the 1992 Clinton-Gore campaign.
And maybe what they will hear is what the Biden campaign says. He's a good man. He delivered us from Trump. He beat Trump. once.
He can beat him again. He had a bad night. Maybe, though, they're going to hear what I'm hearing, which is, dear God, we have to make a change.
So we're going to come on to all of that and that mood of, you. know, whether it's panic, alarm, freak out, choose your word. But before we plunge into that, the newer development of this week, which was yet another boon for Donald Trump, as if he didn't have enough good news from last week, was this ruling from the Supreme Court. Now, Paul, among your many hats that you've worn in your life, you are an alumnus of the University of Texas Law School. You are a qualified lawyer.
But just in a nutshell, just explain to us what the Supreme Court of the United States ruled on Monday.
Well, for the first time in history, the Supreme Court ruled that the president of the United States is immune from investigation or prosecution in his core functions.
And you are seeing in some of the liberal dissent this suggestion that the majority gave Donald Trump everything he wanted here. Now, obviously, the chief justice is pushing back on that, saying that that is not the case, that the assertion that the former president's team made went far beyond what the court ended up giving him. But the bottom line is this. The former president is interpreting this as a victory.
He's absolutely immune, by which they mean signing or vetoing laws, granting pardons, accepting ministers from foreign countries. The president has a few specifically enumerated powers in the Constitution. When he exercises those, he is absolutely immune, even from investigation, according to the court. Then there are all these other official acts, not enumerated in the Constitution, but obviously part of the president's job. He is essentially, he's presumptively immune, is what the court said.
And again, even that you cannot even investigate because of this presumption of immunity. So they carved an extraordinary set of immunities for any president. Of course, everybody is worried about Donald Trump because he's a man who seems to be not very observant of the guardrails that did exist. But really, when you step back, it's not that long. Read Justice Sotomayor's dissent.
It is the most flaming dissent I have ever read. 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. My own view is we had a good run. You know, we go back to June 15th, 1215.. Your country creates the Magna Carta. So we had 809 years of believing that no king, no president was above the law.
And that's come to an end. I'm sorry to sound cynical about it, but it's that dire. Because we're about to put that power potentially in the hands of someone who we know from past experience will blow through any guideline regulation. And now he's been given a carte blanche by the Supreme Court.
And Justice Sotomayor, who you quoted there, did say in her dissenting opinion, with fear for our democracy, I dissent. And she and others said this point about this isn't a president, this is a king. But, as you make the point, at least with kings post-Magna Carta, they had some restraints. This is lifting the restraints. Because, as you've explained, it's not just the official act.
The wording says that that sort of immunity will extend to the outer perimeter of his office. And even the unofficial act, if prosecuting those will involve citing or drawing on the official act, well, then you can't even proceed. And one commentator said, you know, if Donald Trump asked for immunity, expecting to get, you know, maybe 50, 75 percent of what he asked for, he instead got 105 percent of what he was asking for. The court almost went further than he himself did. What is your explanation for why the Supreme Court, we know there is now a, whether you want to call it conservative, with a small c, or right-leaning, or whether you want to just say overtly, a kind of Republican majority.
They are judges, they're serious judicial figures. Why did they make this decision?
Well, because they could. It was raw power. It was unhinged from any constitutional jurisprudence, as we said, going back 809 years. The only good news as a political hack is the Democrats can and should run against the court. The court has never been this unpopular.
in the history of polling. 60, 70 years we've polled. There's only about one in four Americans who has any faith in the court. And even just a few years ago, before they threw out Roe versus Wade, that number was multiple times higher. So I think Democrats should run against it.
Yeah, that's the argument. in a way they've been handed. And just in terms of their legal justification, which you should know should make people feel better about it, in a way it doesn't. They said they believed immunity was necessary because it will allow the president to execute his or her duties fearlessly and fairly and take, their words, bold and unhesitating action. This is a real shift, because the presidency was always seen as an office right from the founding, that in some ways did need to be restrained, that there needed to be checks on the power of the president.
That's why you can't do things alone. You have to have the, if you're nominating people, including judges, you have to have the backing of the Senate. The Senate can override a presidential veto. In a way, this is a new doctrine of a much more powerful presidency. And scholars will be pouring over this, because this is why people are talking about it being historic.
But I wanted to get you on the couple of very practical, tangible implications of this, because the Supreme Court don't just issue rulings in the abstract. It's about specific cases. And the case that was before them was the one about Donald Trump's role in January, the 6th and the attempted insurrection coup, overturning an election.
The former president and his defense team made the argument that a president, not only former President Trump, but any president, has absolute immunity, this after he was criminally charged with plotting to overturn the results of the 2020 election. The import of this case simply cannot be overstated.
Essentially, now the Supreme Court has sent that case back down to a lower court to decide whether or not it fits within the parameters the Supreme Court has just drawn. Is it your sense that now it's going to be much harder to prosecute, to hold Donald Trump to account for his role in potentially overturning the 2020 election?
Yes. As a practical matter, there will be no trial before the election. But as a legal matter, if and when it ever comes, I think the chances of this being dismissed are very, very high. You know, this is Richard Nixon's fondest dream. He gave that famous interview to David Frost where he said, well, if the president does it, it's not illegal.
The president already has vast powers. The president has the Insurrection Act, through which he can use active duty troops to attack American citizens if he believes they are themselves committing an insurrection. He used to call that, and I'm quoting the president here, Mr. Trump, my magical powers. Now he was restrained many, many times in his presidency.
He wanted to invoke the Insurrection Act and send the U.
S. military out to confront protesters. And he was constrained every time by a variety of aides and generals and lawyers who kept telling him, no, no, that would be illegal. They can't tell him that now. And I'm sorry to sound apocalyptic, but if he wins the election on the day he is inaugurated, Mr.
Trump will invoke the Insurrection Act and he will send active duty troops out to confront American citizens, who will no doubt be protesting if he becomes president.
Yeah, it's a terrifying scenario, but not at all implausible. In your reference to Richard Nixon, I noticed a few people on social media saying we owe Richard Nixon an apology now, because he was what, you know, if today's Supreme Court would say he was well within his rights to do whatever he liked, essentially, in terms of this ruling, the other implication that it could have, or is already having, is on the case that brought a conviction just a matter of weeks ago in New York, and in New York court, Donald Trump found guilty on 34 felony counts in the case around hush money paid to Stormy Daniels and the falsification of electoral records and financial records and all of that. He was meant to be sentenced, Donald Trump, next week. That has now been postponed by this ruling. Just explain to us why.
that is, especially because that case seemed to lie outside all of this stuff, because it was a state action, but also it was about Donald Trump's conduct as a candidate before he was even elected to the presidency. So just explain to us why that court has decided to delay, and quite substantially to September sentencing and even attaching some wording saying there may not even be a sentence passed at all.
That's how vast this ruling is. The conduct for which Mr. Trump was convicted was before he was president. So it can't be plausibly argued that he has immunity for that. But some of the evidence proving his state of mind and intent were two critical conversations while he was president.
Hope Hicks, a close personal aide in the White House, testified that Mr. Trump said certain things to her while he was president. that tended to incriminate Mr. Trump, and Michael Cohen, his former fixer, who turned on him, also testified about conversations he had with Trump while Trump was president. And it could be that the judge looks at that and said, well, those were conversations with White House aides and outside advisors while he was president.
They can't be entered into evidence. Therefore, the fruit of the poison tree must never be eaten. We can't do any of this. That's a reach. But if I were Trump's lawyer, I would be in that court arguing that.
Yeah. And I heard lawyers saying it's not a frivolous argument that they will be making. It will have to be litigated. Who knows? They may fail, but they've now got grounds to proceed with that argument, to have the entire case chucked out, with the argument that it should never have been brought, given that it sort of intruded, encroached on presidential immunity.
All of this has made people, for the reasons you've explained, all the more terrified about a Trump second presidency because they imagine a President Trump with total immunity and a freer hand to do all the things he has promised, slash, threatened to do. So that brings us to the question of defeating Donald Trump and, of course, the prospect of the incumbent president, Democratic nominee presumptive Joe Biden. I mean, just tell us how you yourself feel about, because I know you're a friend and admirer of Joe Biden's. But how, where have you got to yourself on his chances, his ability to defeat Donald?
Trump in November? Well, he went into the debate slightly, ever so slightly behind. So he needed this debate. And I thought it was brilliant. And his team scheduled it early in the election cycle, earlier than we've ever had a national debate.
I thought that was wonderful. His team negotiated with Trump to deny Trump an audience which feeds his oxygen. The timing and the rules were set by Joe Biden's campaign. So I was utterly confident. I was very pleased to see Biden's campaign do all of this.
And then the bar was so low, it was two inches off the ground and Biden could not clear it. And it was absolutely crushing. It was heartbreaking. This wasn't just a bad night, Jonathan. This was an existential crisis, because the central question everyone has about Biden is, is he up to the job?
Is he too old? This confirmed the worst. It's like this. It's like going back to the legal analogy. If you're a lawyer and your client is on trial for shoplifting and he takes the stand and he steals the judge's gavel, that's a bad look.
Kind of confirms your worst suspicions. That's what happened in this debate. So it was crushing.
But has it led you to conclude that he should step aside and let somebody else take over?
Well, I'm letting other people make the.
. I mean, it's not for me to say, but it's pretty obvious that I've been talking to Democrats, nonstop, major donors, current politicians and office holders, and I don't think I've come across... I have come across one, to be honest. But I'd say 95% of them think that Biden should not be the candidate.
And so far, that has.
. And I'm picking up the same, but it's private. It's people saying these things in private. One, as you and I speak now, one congressman, Lloyd Doggett of Texas, has broken cover and said publicly that Biden should make the painful and difficult decision to withdraw. Do you think Doggett's going to be out there on his own, or do you think, if nothing moves, he's going to be the first of a stampede of congressional Democrats, elected Democrats, governors, as you said, donors, the full party, who will eventually go public?
The donors are pushing very hard. You know, the order goes like this, I think. First, the commentators. So you've seen the most thoughtful, David Remnick and Tom Friedman, I think. They're brilliant, and they're thoughtful, and they're certainly, let's be honest, pro-Biden.
They have weighed in as just heartbreaking, creed of court columns. Then, is the donors, okay? Second, I've been talking to them, and they are nearly unanimous. Third, are the politicians, and, as it happens, Jonathan, when I was a college student in 1981, I began my career in politics as an intern in the office of State Senator Lloyd Doggett. So Lloyd has been my friend and mentor for all of my adult life.
Look, I'll be honest. I talked to him. He didn't care if anybody else came with him. Politicians in the main are herd animals, and Doggett is not. I don't want to quote a private conversation, but believe me, he doesn't give a ripped snort if anybody else joins him.
That's highly unusual. I was surprised that within an hour of his statement, no one had joined, and now it's been a day, and no one has joined.
When you have former Congress member Tim Ryan, of course, from Ohio, this very sort of interesting district, say that President Biden was supposed to be a bridge. That bridge has now collapsed and throws support behind Kamala Harris. These are all flashing red warning signals, Kate and Zinkley, of the potential for that dam to break. So far, though, you have Senator Chuck Schumer, for example, saying he backs the president and no indication that the president is, in fact, going to come off the ticket.
I do think they're going to go home and assess with their, these politicians, with their constituents and their donors and their activists. And we'll see. But I would be surprised if he is both first and last.
Yes. And this point about the time, passage of time, a lot of people said, wait till there's polling, polling, that is, you know, where the results were drawn from? being in the field post-debate, and that it's in the swing states. And if those numbers are terrible, then that will, you know, concentrate minds. With that in mind, perhaps I wondered about what your thoughts were of this leaked confidential polling memo, which shows terrible numbers for him in key electoral battlegrounds, losing, even in states like Virginia, where in recent years, Democrats have been pretty confident.
It made me think that this operated on two levels. First, the numbers themselves are terrible. But second, it suggested, there are people within the Biden re-election campaign, within even the Biden White House, who wanted those numbers out there. In other words, who are quite keen to sort of, as it were, push this crisis to a decision point.
I think you're right on both. It does mean that someone in there, what is the thing from the horror shows? The calls are coming from inside the House. Right. I looked at that data.
Biden's approval is 36.
. That is catastrophic. When you go below 45 and you're an incumbent president, you're likely to lose. No one has won with approval below 45.. He's not even looking at 45..
He's got to climb a long ladder to get to where he loses. So it's. it's just catastrophic. I'm sorry to be glib about it, but it is. it is catastrophic.
And the politicians will wait and look at the polling. So far, it's very, very early. A lot of them are already having the debate of should we support Kamala or someone else, which shows you just how dire it is.
Well, just before we get to that, because that's a huge question and a very important, interesting one. Just in terms of the fightback effort by the White House, Joe Biden himself, as you know, in prepared remarks, scripted remarks read perhaps significantly from a teleprompter said that it was, but he blamed it all on having traveled around the world and going through multiple time zones, and he was exhausted. That's one effort. They've scheduled an interview with George Stephanopoulos for, I think, Friday. I think also a phone meeting with Democratic governors.
On the other, reports coming seem to be sourced to aid inside the White House and in Biden's team, saying that this was not really a one off, that there have been quite a lot of these lapses or this seeming to have diminished capacity, and that they've been working around it sort of in terms of scheduling and so on. Where do you think the argument is going? Is his defense effort prevailing or are people actually more concerned now than they were by last week?
His defense effort is getting a little better. It began, though, by attacking, which is always my inclination. But when you're 36, you don't attack your fellow Democrats. It was really dumb and insulting, calling people like me, I suppose, who were criticizing. How could you not criticize a debate performance?
I mean, how could you be a sentient creature and watch that and not be aware that the guy was not functioning at top capacity? So they've kind of backed off of that now because they've gotten blowback. Now the president says, I was tired. The debate was 12 days after he got back from Europe. Others said he had a cold.
Okay. Others have said he's on cold medicine. You know, again, when Obama lost that debate against Romney, he walked into his staff and he said, this is on me. I let you down. And, you know, that staff would have gone through a wall for Barack Obama after that because he owned it.
And, you know, Biden doesn't seem capable of owning this in part because I fear that he knows it wasn't just a momentary lapse. He was better when he said, I was tired. I should listen to my staff. So, instead of throwing AIDS under the bus, he is at least trying a little bit. But I'm not sure how you fight your way out of this.
I'm not sure how you explain your way out of this. That's the problem.
And do you think, I mean, people are talking about what it would take to make him step aside. It is really only him. It's very difficult. It's not like our system here in, you know, the British system in Westminster, where you can drive out a leader who has lost his party's confidence. It really has to be Biden's own decision.
Given what you know of the man, people tell us he's proud, he's stubborn. It seems as if his family, who often people thought might be the crucial casting vote, they want him to stay. Can you see him actually voluntarily stepping aside, even if the donors and the House congressional Democrats rebel against him?
I do. I don't think it's likely for the reasons you state. I have to say I'm troubled that he went off to Camp David with his family. I'm all for that. I love family.
And any good politician should begin by talking to their spouse and their family. If it were me, call Barack, call Bill, call Hillary, call Michelle, call Nancy Pelosi, call Chuck Schumer and say, let's all go to Camp David. Away from the press, away from the aides. And let's strip this thing down and really analyze if this is survivable. You have access to the only people in the world who know what you're going through.
And he's not using it. And again, I love my family. I know he loves his. He's the best dad in the world. But he's got to broaden his circle of advisors.
And I don't mean to knuckleheads on television like me. I mean to former presidents who love him and desperately want to see Trump kept out of the Oval Office.
Well, what do you make of the argument that says, look, there are powerful arguments for him going, but if he does, this is the downside. It is not easy at all to work out how he would be replaced as the Democratic nominee or who would do it. And there is discomfort around Kamala Harris, the vice president, whose polling numbers are almost as bad, in some cases worse than his. And then, if you have a big free for all competition, there's just not enough time. Democrats will be turning on each other.
There'll be anger that a black woman was passed over and that, in a way, there's a whole world of pain to getting rid of Joe Biden. What do you make of that?
It's 100 percent true. There's risk and cost with every plan of action. It seems to me the greatest risk and the greatest cost is by standing. pat. The vice president, in the eyes of most Democrats, has not met the moment, but maybe she will now.
We don't know. She certainly, I will say in defense of her, has found her voice on abortion rights more powerfully than Biden, who's an older Irish Catholic dude. You know, she has been powerful on this. So, you know, she would be the presumptive favorite. There's an additional wrinkle that it may be that, legally, the vice presidential candidate is the only person who would have the legal right to access the $140 million that Joe Biden's put the bank for this campaign, which is not nothing.
And who would you feel if it was up to you? And I know it's not. But if it was up to you, who would you feel less uneasy about as a standard bearer in November?
But I mean, who's. who's going to win the 100 meters in Paris? We've got to put them on the track. I am. I am not as bothered as some.
at a several week campaign where we would have debates. We'd have policy speeches. People could go to Penn State University and University of Michigan and line out what they would do about the courts and about climate, and about jobs and about inflation. And then you'd have a convention.
I noticed you mentioned Penn State or University of Michigan. That seemed to me a coded way of saying. Josh Shapiro, governor of Pennsylvania, and Gretchen Whitman, governor of Michigan, would be at least on your ideal shortlist of candidates to run around that racetrack.
Yeah. The truth is, and I know your listeners know this, but 85 percent of Americans don't matter in this election because the electoral college. The only people who will decide our presidency, are swing voters in swing states. And if you really drill down, it's just three states. Michigan, Wisconsin, Pennsylvania, the famous blue wall of the industrial belt of America.
You have to add to that actually Omaha, oddly, because Nebraska disaggregates their electoral votes. If the Democrats lose Arizona, which they won last time, if they lose Georgia, which they won last time, if they lose Nevada, which they won last time, but they hold Michigan, Wisconsin, Pennsylvania and Omaha, they win. So if you're really drilling down, give me Michigan, give me Wisconsin, give me Pennsylvania, give me Omaha, Nebraska, and I'll give you the White House. So, of course, I think Democrats are going to say who can run strongest in those states. And it is impressive that Gretchen Whitman has won many campaigns in Michigan.
Josh Shapiro was twice elected attorney general and then elected governor. And I think anybody would have to look at them and say they happen to be very strong where we cannot afford to lose.
Yeah. And whether that competition even happens is in the hands of one man, Joe Biden. We're going to be obviously watching it closely. Paul, you know, we like to ask our guests a what else? question, something completely different.
Robert Kennedy Jr. fended off accusations of sexual assault this week by saying, I am who I am.
You know, the article is, is a lot of garbage. I said in my announcement speech that I have I have, if I have, so many skeletons in my closet that if that, if they could all vote, I could run for king of the world. So, you know, there is Vanity Fair, is recycling 30 year old stories. And I'm not going to comment on the details of any of them. But it's I.
you know, I am who I am.
As if, in other words, he doesn't need to actually defend himself. Is this peculiar to him, or is this something about what's happened to American politics in the era of Donald Trump, who manages to, it seems, and now perhaps even officially, just get away with it?
Right. It's a little bit of both. You know, he. he had a parasitic worm eating his brain and the worm died of starvation. You know, he just.
I'm sorry. I used to know him. This is disgraceful. These are allegations of very nonconsensual conduct. And that's all he says is tough luck.
I am who I am. That's pretty disgraceful. And yet, right now, he has a pretty significant following. James Carville and I have been partners, I don't know, 40 years. And we often disagree.
Makes a good partnership. He is convinced that Kennedy hurts Trump more. I'm convinced that Kennedy hurts the Democrats more, hurts Biden more. He says, look, he's anti-vax. He's much more of a chaos candidate.
He has many of the Trump sort of mannerisms. witness that statement. My view is it's pretty simple. His name is Kennedy.
Yeah.
And so we don't know who he hurts more. But I do think he owes a more honest accounting of these allegations.
Paul Begala, thanks so much for joining me on Politics Weekly America.
Jonathan, thank you so much.
And that is all from me for this week. But as we wait to hear the results of Election Day in the U.K., do make sure to listen to Today in Focus on Friday morning, as the team brings you all the results from around the country. Later on in the afternoon, our Politics Weekly U.K. colleagues, John Harris, Pippa Crera, and Kieran Stacey, will analyse what the next government will bring us, as well as the fallout from any upsets. So search for both of those wherever you get your podcasts.
And also Hugh Muir, John Crais, Gabby Hinsliffe, Zoe Williams, and I will be taking to the stage this Friday evening for a special Guardian Live event, providing expert analysis on the outcome of the U.
K. election and exploring what happens next. It's in person, but also available online. And there'll be a link to where you can get tickets for either one of those options on today's episode description on the Guardian website. And if you've got any time after all of that, it would be great if you could rate and review this podcast wherever you find us.
All those generous and kind words that you've been supplying do mean a lot. But for now, it's goodbye. The producer is Daniel Stephens. The executive producer this week is Nicole Jackson. I'm Jonathan Friedland.
Thanks, as always, for listening.
This is The Guardian.
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