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High court makes bad week worse

Political Notes

by Jon Fuhrman

One could write a novel about the events of the last week, but I’ll try to keep it down to a few paragraphs.

I guess everyone knew President Joe Biden was 81, but for a few minutes in Thursday’s debate, that truth became starkly, uncomfortably, indelibly imprinted in viewers’ minds. Never mind that during the next 75 minutes of the debate the President performed quite credibly. Never mind that he was really quite sharp and effective the next day in a stump speech in North Carolina. The image of him stumbling and seemingly lost, whether fair or not, overwhelmed all other logic and analysis.

It certainly was enough to send the pundit class into hyperdrive, predicting (and demanding) that the President withdraw. But what did the voters and grass-roots supporters think? What did the swing voters (all 7 of them around the country) think?

It appears that the impact of those awful few minutes may have been well short of a worst case scenario. One of my favorite political blogs,, noted that the Biden campaign raked in $27 million in the 24 hours after the debate, and another $6 million that day after that. That’s more than the $26 million that Biden earned from the star-studded Radio City Music Hall event back in March. Indeed, Thursday was the best fundraising day for the entire Biden campaign. Even more fascinating, Trump pulled in a mere $8 million in that same time period.

Post-debate polling is still sparse, but there doesn’t seem to be any indications of a major collapse. One poll, the Morning Consult, had Biden still ahead of Trump. Most other polls continue to show him narrowly behind, almost always within the margin of error.

So the voters at large don’t seem to be deserting the President, notwithstanding polling results showing substantial majorities think he is too old. And overwhelmingly Democrats still see Trump as a mortal threat to democracy and freedom, let alone wrong on a myriad of policy issues.

So it looks to me that the fundamental framework of the election isn’t much changed. People know that Biden is old and that Trump is a felon intent on destroying his political enemies, the Constitution be damned. The election is likely to depend upon who turns out to vote, and I still believe that the reproductive rights issue will drive more folks to the polls and will benefit our side.

As if this wasn’t enough for a whole month, the Supreme Court finally delivered its analysis of former President Trump’s immunity claims, and they pretty much came down on his side, but not totally. Most commentators have been appalled – and rightly so – but I think the Court has left an interesting opening that may allow lower courts to continue with their cases, even if they are trimmed back a bit.

First off, aside from the details of the decision, the former President achieved a substantial victory by delaying the resolution of these cases. At best, the lower courts might be able to finalize a determination of what allegations fall under the “official duties” rubric and which don’t, and therefore could still be prosecuted, in a few months. Those decisions would then be appealed to the Circuit Court and then back to the Supreme Court, where they would have to deal with specifics in excruciating detail as opposed to hypothetical high-level frameworks. There’s no way all that can be done before the November election, so in that sense, Trump has won an absolute victory.

But on the substance, it’s much less clear. Most commentators have focused on the Court’s grant of absolute immunity to “the President’s exercise of his core constitutional powers”, and a presumptive (but rebuttable) immunity for other actions “within the outer perimeter of his official responsibility”.

But the majority opinion does also note that there “may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity – perhaps as a candidate for office or a party leader.” In these cases, there may be no immunity, but the opinion directs the lower courts to dig deep into the details looking at “content, form and context”; they recognize there “is not always a clear line between [the President’s] personal and official affairs”; finally, they note the “analysis therefore must be fact specific and may prove challenging.”

So this Court has said, perhaps not clearly but at least inferentially, that a lower court could determine, after considering the content, form, context and specific facts, that a President was acting personally and not officially when, for example, he cajoled the Vice-President about not counting electoral votes, and therefore has no immunity even if those actions occurred in the Oval Office.

Of course, the Court offers lower courts no guidelines, suggestions or standards, and certainly no bright lines, to use when categorizing acts as official or unofficial. But it certainly has laid the basis for a lower court determination that certain actions had to be, by their very nature, unofficial and thus liable for prosecution.

Interestingly, the courts might find some help by looking at the Hatch Act. Congress has already drawn fairly specific boundaries between official and political (or unofficial) actions by Administration appointees. Government employees cannot use government resources, or government time, to be active in electoral politics. There is a fairly rich set of case law identifying those sorts of activities and recognizing that they fall outside of official duties. The President and Vice-President are explicitly excluded from those prohibitions, but that doesn’t mean those actions relating to electoral politics are now within the official duties of the President. With the Roberts decision explicitly noting that acting “as a candidate for office or a party leader” falls squarely of the unofficial side of the boundary, I think there is a good likelihood that most of the charges filed will fall outside the grant of immunity, and that the President will, eventually, be held accountable.

Any such finding, though, is dead certain to be appealed to the Circuit Court and then back to the Supremes, and at that point, their allegiance to their appointing President will be sorely tested. Justice Barrett has already broken ranks to a degree, agreeing with the dissenting Justices on one key point about how evidence of intent might be introduced into a trial. Unfortunately, it’s almost inconceivable that this appeal might reach the Supreme Court prior to the November election.

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