Biden Trumped in the Debate

The past few days have generated uncertainty about the US presidential race. This has been because of the sub-par performance by President Joe Biden in his debate on June 28 with former President Donald Trump. More significantly, the US Supreme Court has, in a historic 6-3 decision on July 1, granted almost complete immunity to former Presidents from criminal prosecution for official acts undertaken by them during their time in office. While this decision has an immediate bearing on Trump, it also has vast implications for the US constitutional system and its politics.

This writer has earlier noted, in these columns, that the US Presidential office is the most powerful executive office in the world and its holder has a profound impact on the unfolding of global events. Hence, any matter which has a bearing on the power of the office and the conduct of those who hold it, is relevant, not only for the US but for the world at large. Thus, both the present election prospects of Biden and Trump and the US Supreme Court decision merit attention.

By now it is being acknowledged by even die-hard Biden supporters that Trump was far more effective in the debate. Vice-President Kamala Harris has conceded that her boss made a “slow start” but in a show of loyalty, she asserted that he recovered as the debate went on. The problem with Biden was not with the substance of his views but that he did not show the physical strength and vigour that Trump was able to display. His voice was feeble and he did not complete some of his sentences. Biden will be two weeks short of 82 years on November 5, the date of the presidential election this year. Trump will be over 78 on that day but he appears far fitter.

After the debate voices are beginning to be raised within the Democratic Party about the viability of Biden as candidate. This view is being contested by those who feel Biden is still the Party’s best bet. As I write these lines the White House Press Secretary has emphatically denied that Biden is thinking of “stepping down”. These words cannot be taken to mean that he will still be the candidate though they suggest that he will be so. Ultimately, it will be for Biden who has been in US national politics for over fifty years---he became a member of the US Senate at the age of 30 in 1972—to take a decision whether to run for a second term or not. He will have to take a call within the next few weeks for the elections are only 4 months away and the Democratic Party Convention to formally anoint its presidential nominee is scheduled to be held on August 19-22. However, reports indicate that a virtual will be held between July 21 and August 7 when the Presidential nominee will be announced by the Party. The Republican Party Convention will be held on July 15-18 and there is no doubt that Trump will formally become the party’s nominee.

The Democratic Party will be in turmoil should Biden decide not to contest. There is simply no clarity, at present, on what the party will do except that it is likely to declare a nominee at its virtual convention and formally adopt the name at the August convention where the delegates will be physically present. Some names of potential nominees are doing the rounds but the speculation is that Vice-President Kamala Harris will be chosen as the party’s nominee in case Biden drops out. If chosen she will have a mountain to climb against Trump. This will in part be because of the Supreme Court decision on Presidential immunity.

The immediate impact of the Court decision is that the judge who had scheduled Trump’s sentencing for July 11 in the Stormy Daniels case where the jury held him guilty has now decided to delay it till September. He will now first hear if the case and the jury decision can withstand the Supreme Court decision. If he concludes it is so then he will sentence Trump on September 18. The other cases against Trump cannot also be heard before the elections because of legal technicalities arising out the Supreme Court’s decision. It would not be wrong to assess that it will be very difficult to criminally prosecute a former President in the US now.

Significantly, all 6 conservative judges voted in favour of giving a former President immunity from prosecution for any official act committed by him while in office. This specifically applies to his “core” constitutional functions but he will also have presumptive immunity for his remaining “official acts”. He will not have immunity for his unofficial acts. The 3 liberal judges were appalled at this majority view. After demolishing the logic of that view, one of the 3, Justice Sonia Sotomayor opined “Looking beyond the fate of this particular prosecution, [Trump for promoting insurrection on January 6, 2021] the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding”. She goes on to mention that the President will be immune even if he orders “Navy Seals” to “assassinate a political rival”. She concludes by noting “In every use of official power, the President is now a king above the law”.

US Presidents, till now, constrained by laws while discharging their official functions may now well begin to act as Sotomayor fears. That will be dangerous not only for the US but the world.