Calling Donald Trump a threat to the rule of law has backfired
To President Joe Biden, former President Donald Trump and his “MAGA Republican extremists” are a threat to “the very foundations of our republic”. Democrats once insisted that prosecuting Mr Trump for his conduct as president would illuminate his menace and bar him from the office. For their part, federal prosecutors have never given a hint of partisan objectives; they wanted to vindicate the principle that no one is above the law.
As Mr Trump acquires the Republican presidential nomination for a third time, these political and legal aspirations are disintegrating. Prosecuting Mr Trump boosted him politically. It rallied Republicans to him in the primaries and, perversely, helped him redirect the very charge that he threatened democracy to Mr Biden by falsely claiming the president was “weaponising” the Department of Justice. And, as of this month, prosecuting Mr Trump has resulted in a new constitutional standard that presidents can, in fact, forever be uniquely beyond the reach of the law. The political and legal consequences are converging to probably make Mr Trump—now the victim of that most antidemocratic of acts, an attempted assassination—the first president to begin a term with this new understanding of unassailable executive power.
It is honourable, if puzzling, that Democrats retained enough faith to expect a different legal outcome. Did they not believe their own warnings about conservative capture of the Supreme Court? Its ruling on July 1st in United States v Trump undercut the federal and state prosecutions of Mr Trump by asserting broad immunity for presidents who commit crimes in office. Beyond the immediate implications for this election, the decision clarified this court’s view of the capacious scope for the use not only of a president’s power, but of its own.
In the court of public opinion, prosecuting the case against Mr Trump as a threat to democracy has always made more sense as a way for Mr Biden to excite core supporters than to appeal to a broad majority. Polls have consistently shown that Americans are more worried about matters such as the economy and immigration—matters the Republicans emphasised at their convention—than abstract threats to democracy. When voters are pressed about democracy, their views do not necessarily favour the president. A poll in six swing states by the Washington Post, published in June, found that 44% of voters thought Mr Trump would do a better job of handling “threats to democracy in the US”. Just 33% felt that way about Mr Biden. That may have had less to do with any analysis of each man’s values than with Mr Trump’s own core argument, that he is strong and Mr Biden is weak. Regardless, it suggested Mr Biden was not persuading enough people that Mr Trump threatened democracy.
And yet though Mr Biden can point to real policy achievements he continues to reprise his pitch of the last campaign, that he is out to save “the soul of the nation”. When Mr Trump announced Senator J.D. Vance as his running-mate, Mr Biden’s campaign attacked him by saying first that he “will do what Mike Pence wouldn’t on January 6th,” before describing his opposition to abortion rights. Since, unlike Mr Trump, Mr Biden has yet to present a detailed domestic agenda for a second term, voters may be wondering if all the talk of democracy is a distraction.
The president is in a bind. Whereas Mr Trump’s victories in the primaries and the attempt on his life unified Republicans, Mr Biden is waging an intraparty struggle to cling to his own nomination. He has been shoring up support on the left, which argues against boasting about his recent success in blocking illegal immigration and instead falling back on warnings about Mr Trump. It is surely no coincidence that, according to the Washington Post, Mr Biden chose to reveal to the Congressional Progressive Caucus on July 13th that he plans to propose an overhaul of the Supreme Court, possibly including a constitutional amendment to eliminate the presidential immunity created by United States v Trump.
The idea, which would face long odds of passage, gives the measure of how deep a hole Mr Biden believes the prosecutions of Mr Trump have accidentally placed the country in. In a potent dissent against the court’s ruling, Justice Sonia Sotomayor reeled off crimes she feared presidents could now commit with impunity, from ordering assassinations to organising coups. But in writing for the majority, Chief Justice John Roberts conjured up a different fear, not of presidents but for them, of “the more likely prospect of an executive branch that cannibalises itself, with each successive president free to prosecute his predecessors”.
Faction or fiction?
Chief Justice Roberts worried not about lawbreaking but about vindictive prosecution. “Such types of prosecutions of ex-presidents could quickly become routine,” he warned. “The enfeebling of the presidency and our government that would result from such a cycle of factional strife is exactly what the framers intended to avoid.” He had a point: cycles of factional strife are the dizzying output of this polarised era. This decision may have done as much to protect Mr Biden as Mr Trump.
But at what cost? Chief Justice Roberts wrote that fear of prosecution might leave a president “unable to boldly and fearlessly carry out his duties”. Yet for more than 200 years presidents had no reason to assume they were immune. Despite that, as Justice Clarence Thomas wrote in a concurring opinion, “numerous past presidents” took actions “that many would argue constitute crimes”. Equipped with this new shield of immunity, what might a president of low character do? The court has acted to protect presidents from one another. Other Americans may not prove so lucky. Mr Trump may well pose a threat to democracy; prosecuting him, it turns out, already has. ■
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