HERE'S WHAT WOULD REALLY HAPPEN IF BIDEN RESIGNED

I'm not sure whether President Biden should stay on the ticket or step aside. I don't see much evidence that he's suffering large numbers of defections -- in the latest CNN poll, the gap between Biden and Donald Trump is exactly the same as it was in April, and a CBS poll shows only a small and possibly temporary slippage for Biden. Biden needs to gain ground and hasn't found a way to do that, so that could be a reason to switch. But no other candidate seems likely to electrify the public -- except perhaps Michelle Obama, who won't run.

If Biden does drop out, nominating anyone other than Kamala Harris could mean leaving a massive amount of money on the table, as David Dayen recently explained:

The Biden for President campaign committee controls candidate contributions for the 2024 election. It has received $220 million up through May 31; we know that in the four days from last Thursday’s debate through Monday, the campaign committee raised another $33 million. As of May 31, the committee had $91.5 million in cash on hand.

If Biden, as candidate, wanted to contribute money from this account to another candidate for the presidency, he’s limited to $2,000 per election. If Biden withdraws, he could convert this campaign committee to a political action committee. In that case he could direct $3,300 to another candidate. These numbers, it must be said, are significantly smaller than what’s in the account....

The only way these complications are nullified is if Vice President Harris is the nominee. Harris and Biden share this campaign committee, as the federal campaign finance laws allow for one fund when the president and vice president run on the same ticket. So if Harris succeeded Biden, she would control all the funds in the campaign committee and could use them in the election campaign.

If Biden does step aside, he should do so in favor of Harris.

But some pundits, such as Daniel Drezner, think Biden should step aside and resign the presidency. Drezner's reasons include this:

The move would put Harris at Trump’s level and eliminate experience as a Trump argument during the campaign.

But this is America. We don't vote on experience. The less experienced candidate was elected president in 1976, 1992, 2000, 2008, and 2016.

Emptywheel says this is a terrible idea, and she's right, but I'm not sure she adequately conveys why it's a terrible idea. She writes:

It turns out with a House packed with rabid supporters of Trump and led by a better-spoken but equally rabid supporter of this fascist project, having a Vice President is an important failsafe for democracy.

That’s true for two reasons. First, remember what happened on January 6, 2021? Big mob, chants of “hang the VP,” tweets encouraging the mob to do so? The VP may not have a big portfolio on most days. But she does on the day that, recent history warns us, is a fragile moment of our democracy. Certainly, it’s possible Democrats could convince Republicans to let Patty Murray do that job, as Chuck Grassley was prepared to do back in 2021.

But the bigger problem is the target you would put on Kamala Harris’ back if she became a President, running for re-election, without a Vice President as her designated successor. Trump has already made it clear he plans to return to power by any means necessary. Trump has already spent years frothing up his followers to a frenzy that could (and has) tipped into violence with little notice. Indeed, more than a handful of Trump’s supporters have embraced violence, some after getting riled up on Truth Social, others after little more than an incendiary Fox News rant.

The Secret Service did a piss poor job of protecting Kamala Harris on January 6. Let’s not tempt fate or Trump’s rabid brown shirts to make Mike Johnson President.

In a sane America, Harris would have a vice president if she replaced Biden as president. Section 2 of the 25th Amendment not only gives Harris the right to pick a VP, it suggests that she would be required to pick one:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

But there's the problem. The House has a Republican majority, and the people who make up that majority will inevitably reject anyone Harris chooses, though only after a sustained campaign of character assassination and kangaroo-court hearings, probably chaired by Jim Jordan in full pitbull-on-bath-salts mode. This process will be designed to waste Harris's time just as she's trying to cold-start a campaign, and make her look like a failure who can't even win a vote in Congress.

The 25th Amendment was ratified in 1967. Two presidents have chosen VPs this way: Richard Nixon chose Gerald Ford after Spiro Agnew's resignation, then Ford chose Nelson Rockefeller after Nixon resigned. Ford was nominated on October 12, 1973, and approved on November 27; the votes were bipartisan (92-3 in the Senate and 387-35 in the House). Rockefeller's choice was more contentious:

Rockefeller underwent extended hearings before Congress, suffering embarrassment when it was revealed he made massive gifts to senior aides, such as Henry Kissinger, and used his personal fortune to finance a scurrilous biography of political opponent Arthur Goldberg.... He had also taken debatable deductions on his federal income taxes, and ultimately agreed to pay nearly one million dollars to settle the issue, but no illegalities were uncovered, and he was confirmed.... a minority bloc [of conservative Republicans] (including Barry Goldwater, Jesse Helms and Trent Lott) voted against him.... Many conservative groups campaigned against Rockefeller's nomination, including the National Right to Life Committee, the American Conservative Union, and others.

Rockefeller won a 90-7 vote in the Senate and a 287-128 vote in the House, but it took Ford four months to get him approved. (This year's presidential election is in four months.) The process of seeking approval for Harris VP nominee would be much, much rougher.

If Harris has no vice president, would Republicans allow someone else to sub in for the VP on January 6, 2025? In 2021, Democrats probably would have, but there's no way Republicans will do so next January.

Therefore, Democrats need Harris to remain as VP. Biden absolutely should not resign.

*****

Harris, of course, can pick a running mate without congressional approval. That person, however, would have no power to participate in January 6 if Harris wins. (The VP-elect won't be sworn in until January 20.)

If Harris is the nominee, I'm worried that we're going to hear the usual pundit blather about a "unity ticket." The commentariat will try to portray Biden's low approval ratings as a sign that voters are rejecting Democrats, or at least mainstream Democrats. They'll make ridiculous proposals for Harris's #2: Mitt Romney, Liz Cheney, Jamie Dimon, Joe Manchin.

If Harris is the nominee, that message should be met with scorn and ridicule. Mainstream Democrats have been doing very well in off-year elections -- and as Nate Silver notes, mainstream Democrats are outpolling Biden right now:

There are five presidential swing states that also have highly competitive Senate races this year: Arizona, Michigan, Nevada, Pennsylvania and Wisconsin.... In those states, there have been 47 nonpartisan surveys conducted since Mr. Biden and Mr. Trump emerged as their parties’ clear nominees in March....

None of the 47 polls — not a single one of them — showed the Democratic candidate trailing in the Senate race, though two showed a tie. In contrast, Mr. Biden led in only seven of the surveys, was tied with Mr. Trump in two and trailed in the other 38.

Silver offers this as a reason for Biden to withdraw from the race -- but I'm offering it as a reason why Harris (or any other Democrat who might take over if Biden steps aside) should pick a real Democrat as a running mate.

The Democratic message is popular. There's no reason for Democrats to field a "unity ticket." But many pundits will propose that if Biden withdraws. They may hate the actually existing Democratic Party, but the public doesn't.

I THINK REPUBLICANS ARE WORRIED ABOUT THIS IMMUNITY RULING -- WITH GOOD REASON (updated)

The Speaker of the House thinks the public needs reassurance:

House Speaker Mike Johnson (R-La.) on Monday shrugged off Democrats’ concern over the Supreme Court’s presidential immunity ruling, calling their fears of future presidential criminality “madness.”

“Look, there’s all sorts of hyperbole tonight…and just this, fantastical, these hypotheticals they’ve made up [that] future presidents are going to turn into assassins and all the rest,” Johnson said Monday in an interview on Fox News. “It’s madness.”

“Listen, remember this. The president and vice president are the only two officers in our constitutional system that are elected by all the people, no one who is elected to that office going to be prone to this kind of crazy criminal activity,” Johnson added.

Speaker Mike Johnson on Fox News: "The president and VP are the only two offices in our constitutional system that are elected by all the people. No one who is elected to that office is going to be prone to this kind of crazy criminal activity." pic.twitter.com/jxb3yWBJz0

— Aaron Rupar (@atrupar) July 2, 2024

We know that the authoritarian plotters who hope to work in a second Trump administration are thrilled by yesterday's ruling:

“It’s like Christmas,” a conservative attorney close to Trump tells Rolling Stone on Monday afternoon....

Plans are already in motion to use this new, historic court decision as a legal shield to help a potential second Trump administration implement his extreme policy agenda with less concern for rules and laws, sources with knowledge of the matter say.

But does Speaker Johnson represent a faction of Republicans who are concerned that the ruling will worry middle-of-the-road voters, specifically the ones who aren't big Trump fans but have been leaning toward Trump because they want change? Johnson knows that most voters don't like Trump and see him as a person who doesn't play by the rules. Does Johnson think he needs to say "Nothing to see here, move along" because those voters might be uncomfortable handing unlimited power to Trump?

Johnson knows that the Dobbs decision has helped Democrats win elections. I hope he's right to worry that this ruling could help President Biden and other Democrats in November. Is it possible that this is the Democrats' "They're coming for you" moment?

right. the president could order troops to suppress protesters using live fire and the supreme court would extend that absolute immunity

— b-boy bouiebaisse (@jbouie.bsky.social) Jul 1, 2024 at 5:07 PM

Most Americans aren't political, but some apolitical suburban moderates might have attended a George Floyd rally in 2020, or might have a kid who attends Gaza demonstrations. Do they want a Tiananmen Square on America soil?

Do they want Trump legally cleared to commit the kinds of crimes they know or suspect he's committed? Financial crimes? Sex crimes? Bribery?

Last night on social media, I posted this:

A one-sentence constitutional amendment: "The president of the United States is not a monarch, and is subject to the rule of law like any citizen." It couldn't pass soon, but it's reasonable, and advocating for it would make opponents - i.e., all Republicans - seem unreasonable.

— Steve M. (@stevemnomoremister.bsky.social) Jul 1, 2024 at 8:31 PM

(I went with "monarch" rather than "king" because I don't want a future President Marjorie Taylor Greene -- come on, you know it's possible -- to wield the power that the Supreme Court just gave Trump.)

A Democratic backbencher in the House had the same idea:

Rep. Joe Morelle (D-N.Y.) said Monday he will introduce a constitutional amendment to reverse the Supreme Court ruling issued Monday, which largely shields former presidents from criminal prosecution for actions in office.

“I will introduce a constitutional amendment to reverse SCOTUS’ harmful decision and ensure that no president is above the law. This amendment will do what SCOTUS failed to do—prioritize our democracy,” Morelle wrote on the social platform X.

Can this pass? Of course not. It can't possibly get a two-thirds vote in both houses of Congress. (It would also need to be ratified by 38 state legislatures.)

But ratification isn't the point. The point is to write an amendment that's extremely even-handed and 100% consistent with American norms, and then say to Republicans (who will oppose it as a bloc), "Every time a Democratic president does something you don't like, you call him a dictator. So why don't you support this? All it says is that any president, Republican, Democratic, or otherwise, is subject to the rule of law. How could you possibly object to that? Why did we fight the British if you think we should have a king?"

Democrats should be putting Republicans on the defensive on this issue. The president started the process with his speech last night. The next step should be hearings and a floor vote on a constitutional amendment to nullify this decision. Every Democrat should vote for the amendment. And then every Democrat should run on it.

*****

UPDATE: The ACLU is also calling for a constitutional amendment.

A president who knows they can commit crimes with impunity is dangerous.

Tell Congress: We need a constitutional amendment reestablishing criminal accountability for the president NOW.https://t.co/7FqxdUH7TK

— ACLU (@ACLU) July 2, 2024

NEVER LISTEN TO ANYONE WHO TELLS YOU THAT REPUBLICAN SUPREME COURT JUSTICES WILL ACT IN GOOD FAITH

In early February, the U.S. Court of Appeals for the D.C. Circuit ruled that Donald Trump doesn't have legal immunity from prosecution for crimes committed during his presidency. After this ruling came down, Trump appealed. Very Smart People told us he had no grounds for appeal, and therefore the Supreme Court was highly unlikely to rule in his favor.

“I think there’s a strong chance the Supreme Court will unanimously uphold this [D.C. Circuit ruling],” Michael Waldman, president of the Brennan Center for Justice at New York University's law school, told USA TODAY. "The question to me is not how the court will rule, but when."

After I read this, I -- a schmuck blogger with no law degree -- called it "obviously nonsense."

Around that time, Lee Kovarsky, who teaches law at the University of Texas, published a New York Times op-ed in which he argued that the Supreme Court couldn't possibly throw out a significant number of charges against Trump by ruling that Trump's misdeeds were "official acts":

It has already been determined — in a recent decision in a civil case, by a separate D.C. Circuit Court panel — that Mr. Trump’s extramural efforts to remain in office were not “official acts.” ... Mr. Trump was acting as an “officeseeker” rather than an “officeholder,” and the private sphere of office-seeking conduct sits outside the scope of official-acts immunity.

Only the tiniest slice of the indicted conduct could bear a straight-faced description as an “official act”...

In other words: A lower court has convincingly made the case that the Republican candidate for president can't get away with this! Surely the Supreme Court will act in good faith and affirm this wise decision!

I wrote:

But isn't this precisely the kind of "settled" law that this corrupt and biased Supreme Court loves to overturn?

... I think the Supremes will proclaim that the push for "sham election crime investigations" by the Justice Department was absolutely within Trump's power because he was acting as president rather than as a citizen.... The Court may also rule that failing to intervene to stop the January 6 riot is also Trump acting as president, and thus covered by presidential immunity.

... I think the Court will grant partial immunity while greatly reducing Trump's legal jeopardy. The Court doesn't want to give presidents blanket immunity because, obviously, that would also apply to Democratic presidents, and we can't have that. The Court will toss out some of the charges because it can, and because fuck you, liberals, that's why.

That's precisely what happened:

The Supreme Court ruled on Monday that former President Donald J. Trump is entitled to substantial immunity from prosecution, a decision that will almost surely delay the trial of the case against him on charges of plotting to subvert the 2020 election past the coming election in November....

Chief Justice John G. Roberts Jr., writing for the majority, said Mr. Trump had at least presumptive immunity for his official acts. He added that the trial judge must undertake an intensive factual review to separate official and unofficial conduct and to assess whether prosecutors can overcome the presumption protecting Mr. Trump.

And specifically:

A key quote from the immunity ruling: “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

The Court's Republicans were vague about what else constitutes an official act for two obvious reasons: (1) They want to retain the right to play Calvinball with any future challenge to a president's authority (Democratic acts that could be charged as crimes will be deemed outside the scope of the president's official duties, while a Republican president's acts won't be, as long as the Supremes can argue, however implausibly, that the acts fall into two separate categories); and (2) if Trump loses the election, they want Jack Smith to restructure and refile his case and then be delayed further, as Trump's challenge of the new indictment slowly wends its way through the courts.

A couple of weeks ago, Very Smart former U.S. attorney Elie Honig argued that a Trump lawyer made a terrible mistake in presenting the former president's case before the Court:

During oral argument on Donald Trump’s presidential-immunity claim back in January, District of Columbia Circuit Court of Appeals Judge Florence Pan posed this hypothetical: “Could a president who ordered SEAL Team Six to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?”

Trump’s attorney John Sauer — Rhodes Scholar, Harvard Law School grad, Supreme Court clerk, former solicitor general of Missouri — gave this astonishing answer: “If he were impeached and convicted first.” Pan incisively replied, “So your answer is ‘no.’” Sauer tried to recast his response as a “qualified ‘yes,’” but the damage was done. The hypothetical resurfaced during Supreme Court oral arguments with a bit of additional hedging by Trump’s team, but their bottom-line position remained mostly unchanged.

Sauer’s answer to the SEAL Team Six question, on Trump’s behalf, is wrong, reckless, and self-defeating. It’s also entirely unnecessary to the argument he needed to make and to how the Supreme Court will likely rule.

I responded that this wasn't reckless or self-defeating at all -- it was Sauer giving his fellow Federalist Society affiliates on the High Court an outrageous ask so they could reject the outrageousness and still give Trump just about everything he wants, all while seeming "reasonable" and "moderate." I was told that I was being ridiculous -- this isn't how the law works at all! A lawyer in Sauer's position needs to make a credible case!

It looks as if I was right -- there was nothing reckless or self-defeating about Sauer's bluster.

And in the future, if Trump becomes president again, Very Smart People will still tell you that the Supreme Court acts in good faith and is constrained by "guardrails." Trump will do outrageous things, and we'll be told that the Court is right-leaning but it won't let him get away with that.

But the Court will let Trump get away with just about everything he wants to do. The rulings will need to have the appearance of consistency with constitutional principles, but that's easily faked.

In every politcally charged case that comes before this Court, imagine the worst possible outcome. Then move it a sixteenth of an inch to the left. That's probably what will happen.