The Supreme Court May Have Set the Stage for an Imperial Presidency. Biden May Have Set Himself Up for a Fall. How Do We Avert Disaster?

Two events during this past week have placed our democracy in danger: the Supreme Court’s ruling on presidential immunity, and President Joe Biden’s inexplicably muddled performance in his debate with former president Donald Trump, who spent much of his airtime spouting lies and threats. Both instances, each historic in its own way, have created a single crisis that requires Americans and their leaders to respond in order to avoid the obvious perils of a second Trump presidency.

I have spent the last dozen years working with John Dean, Nixon’s former White House counsel, creating continuing-education legal seminars on ethics and presidential powers. I am also a lawyer and a presidential historian, having written books and articles on Wilson, Harding, FDR, Nixon, LBJ, Trump, and JFK. Even without being a student of American history, it’s not difficult to see we are at a turning point that will determine whether we proceed as a democracy or descend into authoritarianism.

The Supreme Court’s ruling on immunity is, in effect, an invitation for presidential impunity. The decision makes it certain that in the time between now and November, Trump will not face a trial on the Department of Justice’s charges related to his actions during the January 6 insurrection. It also puts Judge Tanya Chutkan, the federal district court arbiter overseeing that indictment, in a legal straitjacket as she decides if any of the charges brought by special counsel Jack Smith will go to trial—and that’s true even in the event Biden or another Democrat wins the election. If Trump is elected president, it is a virtual certainty that he or his incoming attorney general will dismiss Smith’s charges. A possible Republican-controlled Congress might move forward with recent calls for disbanding Smith’s office. And that would be just the beginning. It’s not inconceivable that Trump and his legal team will go further: moving to dismiss his other cases under the Supreme Court’s ruling, and then, quite possibly, consolidating power at the executive level, exercising a degree of impunity never imagined by the Constitution’s founders.

Facing this prospect, the American electorate has a single option for buttressing the retaining wall between the people’s power and unfettered presidential power. Trump must be defeated at the polls. If this occurs, and if voters manage to elect a Democratic Congress (a big “if”), then there needs to be serious debate about whether the Supreme Court should be expanded from its current nine justices. Such an expansion is not inconceivable. The number of justices has varied since the Court was established in 1789. It might also be the case that impeachment proceedings need to be brought against current justices who are compromised by gifts; who have perjured themselves to get onto the Court in the first place; or who implicitly supported the insurrection and didn’t recuse themselves in any of the January 6 cases.

But arriving at such an outcome is going to be more than challenging.

The Supreme Court’s immunity decision is a hot mess. It provides absolute immunity to a president from criminal prosecution for “actions within [the president’s] conclusive and preclusive constitutional authority.” Further, the Court has found that the president is “entitled to at least presumptive immunity from prosecution for all his official acts.” In contrast, the Court has held that there “is no immunity for unofficial acts.”

But what does this mean?

It sounds reasonable, on its face, to find immunity where a president is acting “within his conclusive and preclusive constitutional authority,” regarding his commander-in-chief powers or his “take care” powers (meant to ensure that the laws be faithfully executed). The problem is that the Court, in applying its own reasoning to Trump’s indictment, has given him a pass on a key point: his having asked Department of Justice officials to send a false letter to the states claiming that the DOJ had found evidence of election fraud. At the same time, the Court’s decision has left open the question of whether Trump’s pressure on then vice president Mike Pence—to fraudulently alter the election results at the January 6 certification proceeding—was itself a possibly illegal act. The Court has found that Trump’s pressure on Pence involved “official conduct,” but the justices have only applied the “presumptive immunity” test. In Justice John Roberts’s majority opinion, the onus falls on the government—the DOJ—to rebut the presumption of immunity by showing that a prosecution on this charge would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.”

If this analysis confuses you, you’re not alone. Both of the above instances involve a president attempting to distort an election’s outcome through fraudulent means. The Supreme Court deemed both to involve “official acts.” And yet the former is considered an act from which Trump is “absolutely immune,” while the latter is one from which he is “presumptively immune.” This reasoning makes little sense—and is self-contradictory.

The remainder of the decision discusses areas that may or may not involve unofficial conduct, depending on evidentiary hearings that Judge Chutkan will now conduct. And yet the Supreme Court has declared some of the evidence to be out of bounds before any hearing can even begin. The president’s intent or motives aren’t to be the subject of inquiry. Quoting Roberts and company: “Such a ‘highly intrusive’ inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.” The Court has also slammed the door on a prosecutor’s ability to gather evidence of “private records of the President or his advisors probing such conduct,” which begs the question of how an impartial judge or jury would possibly know what the president did or said on January 6.

This shield for Trump, the justices tell us, is meant to protect presidents, regardless of party. But it is hard to see it as anything but a charade—a deliberate block to prosecuting Trump for January 6 crimes. After Judge Chutkan holds an evidentiary hearing, It’s not hard to imagine her findings being immediately appealed to the same Supreme Court, which may well find some flaw in her findings and/or throw out the case entirely.

Gone are the days when the leaders of the three branches of government protected their own interests by asserting their unique, Constitution-given powers. Today, as evidenced by the Roberts decision—and the behavior of members of the Republican caucus in Congress, who recently bowed and scraped before Trump when he visited Capitol Hill for the first time since the insurrection—the legislative and judicial branches appear not to be independent bodies run by independently minded stewards but ruled largely by men and women doing the bidding of one ex-executive.

As I said above, this leaves us with one choice: to defeat Trump. And here is where it becomes three-dimensional chess.

President Biden’s tepid and confused performance in Thursday’s debate shocked everyone, including his ardent supporters. While he and his campaign responded the next day with a good showing in North Carolina and rightly claimed Biden has a successful record as president, a deep concern among the electorate has been triggered that, moving forward, events like the debate performance may recur or worsen. The issues for voters, as such, are threefold: (a) whether Biden can defeat Trump, (b) whether Biden is the best candidate to defeat Trump, and (c) whether, if elected, Biden can reasonably be expected to fulfill his duties, mentally and physically, during a second four-year term.

There is a chance President Biden’s doctors can answer the last question. Maybe it was all due to his cold medicine. Maybe he had a minor neurological event, which is unlikely to be repeated. Such possibilities, and others, have roared across the media ether like a Greek chorus. But, for now, there is a cloud over what happened. And unless that murkiness is cleared up, Biden’s reelection is anything but certain.

It is not easy—for either party—to merely pivot to a new ticket. In our nation’s past, open conventions were how we decided on national candidates. This method generally produced competent or even excellent candidates. In most elections, the nominees proved to be rational and responsible. This year we have one candidate who is a convicted felon, twice impeached as president, who continuously makes outrageous statements about how he will govern at home and abroad. This means that in the unlikely event there is an open convention for Democrats come August, such a gathering will have to produce candidates who will be acceptable as legitimate representatives of the Democratic Party and its delegates, but also acceptable to a vast number of independent voters.

A look back is a warning. In 1920, Woodrow Wilson was completing a second term and, although he was not elderly, he had suffered a debilitating stroke. His wife effectively ran the executive branch for the last year and a half of his presidency. Yet Wilson secretly wanted his name inserted into the mix at the Democratic Convention held in San Francisco (the first in the far West). Dozens of candidates came to the convention with a puncher’s chance, but the leading contender, William Gibbs McAdoo, Wilson’s son-in-law and former Treasury Secretary, was undercut by Wilson’s mania to gain a third term.

As a consequence, a fairly obscure governor, James M. Cox of Ohio, won the nomination after days of slugging it out—and 44 ballots. He proved a weak candidate, who carried Wilson’s baggage of the League of Nations and Americans’ distaste for involvement in more foreign wars. Warren G. Harding, an Ohio senator, easily defeated Cox by leaning on an “America first” and “return to normalcy” campaign.

A silver lining was that Cox selected a young Franklin D. Roosevelt as his VP choice. Twelve years later, FDR won the presidency and saved the nation during the Depression and World War II.

But Harding and his fellow Republicans didn’t end democracy, make outrageous dictatorial claims, or support dictators. Cox could afford to lose and the country was still in safe hands.

If there is, in fact, an open convention for Democrats, the anointed nominee cannot lose in the general election.

Therefore, it is incumbent upon the incumbent (or whoever carries the Democratic banner) to win. Which is a tall order. The Supreme Court, Trump’s stated plans if elected, the persistent doubts about Biden’s debate performance, and the election calendar—aren’t making the task any easier.