Biden and Trump are showing their age – but only one of them is in a legal mess

Republicans are buoyed by two apparently encouraging rulings from the US Supreme Court but Trump may yet be on trial before the November election

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As he and his predecessor, Donald Trump, effectively secured their parties’ nominations on Tuesday, US President Joe Biden continues to struggle in polls. And that's despite persistent economic good news and Americans increasingly recognising that their economy is thriving. The most recent results among registered voters show Mr Biden trailing Mr Trump by five percentage points.

Although voters say that Mr Trump’s policies were better for them, it is likely that many have tuned out of politics since the mayhem of January 6, 2021, and have developed a predictable amnesia details of Mr Trump’s record, particularly in the first year of the pandemic. Few have probably registered yet how extreme and unstable Mr Trump appears to have become in the years since.

Undoubtedly, they’ll be reminded and informed of all that soon enough.

It’s far too early for Democrats to start the handwringing to which they seem uncommonly addicted. Still, Mr Biden must steadfastly claim credit for the remarkable US economic comeback and promote his new initiatives to tackle inflation, while also pressing forward with unilateral action on the border and continuing to publicly implore Republican lawmakers to take “yes” for an answer on immigration legislation. In the coming months, he would then have every opportunity to deny Mr Trump access to what should be his two most effective issues: inflation and immigration.

Nonetheless, in addition to recent polling, Republicans are feeling buoyed by two apparently encouraging rulings from the Supreme Court. Many Democrats conversely bemoan the decisions, yet again condemning the Court as hopelessly biased in favour of the former president who appointed three of the six-vote right-wing majority.

Despite this apparent bipartisan consensus, Mr Trump may not actually benefit from either case.

Last week, the Court declined to simply uphold a watertight ruling by the DC circuit appellate court denying Mr Trump’s novel claims of absolute presidential immunity from prosecution, including after leaving office.

The idea is patently absurd: how can the national chief magistrate, the one person sworn to “take care to see that the laws are faithfully executed”, simultaneously be the sole individual empowered to ignore all such laws with complete impunity and unaccountability? What would then compel the president to leave office at all, or abstain from committing crimes, or doing anything whatsoever that he or she finds convenient, useful or even amusing – no matter how outrageous or unlawful?

Many liberals hoped that the Supreme Court wouldn’t entertain such propositions and simply let the unassailable DC court ruling stand, not least because the outcome is inevitable. Many reacted with apoplexy when, instead, the Court announced that it would hear arguments in April, and rule by the end of its term on June 20. The typical Trump delaying tactic worked again, they cried.

Trump will therefore enter the general election campaign as a legally adjudicated insurrectionist as well as liable for sexual abuse

Perhaps. But the Court has set itself a clear timetable. If it rules in late June that presidents may not break the law with permanent impunity, as it surely will, that should free Judge Tanya Chutkan and prosecutor Jack Smith to move expeditiously to put Mr Trump on trial for attempting to remain in power unlawfully by overturning a valid election and launching a failed coup against the US Constitution.

It’s not obvious why either would want to do Mr Trump any special favours by suspending legal processes simply because he’s running for re-election in a system for which he has evident contempt.

Unless Mr Trump comes up with some plausible new objections, the trial is unlikely to be delayed until after the election (and, if he wins, ordered abandoned). Instead, there seems to be every possibility that he will stand trial for election subversion in the weeks immediately before voting.

That’s unlikely to bolster his campaign or win many votes among the suburban and swing voters in the six or seven competitive “purple” states that will decide the outcome in November. The Court probably did indeed provide Mr Trump a delay, but not necessarily one that’s going to end up helping him get re-elected.

The second decision, on Monday, was – also probably incorrectly – again greeted on both sides as a big win for Mr Trump. The Supreme Court held that courts in Colorado misread the 14th amendment when they held that, as an insurrectionist, he is ineligible to regain federal office and should be removed from the state’s ballots. The unanimous, though strikingly inconsistent Court opinions weren’t just incompatible. They were often incomprehensible and unintelligible.

The conservative justices, as I predicted in these pages, made no effort whatsoever to uphold their supposed principles and tie their rulings to the amendment’s plain text or history. They merely identified their preferred outcome – a practice they abhor as intolerable when practised by liberals – and declared that only Congress, and not states, can enforce the amendment. There’s nothing whatsoever in the amendment’s language or the historical record supporting that conclusion.

Most glaringly, the two-paragraph concurrence from Judge Amy Coney Barrett appears self-contradictory and garbled, while openly admitting that the Court sought to avoid any politically “divisive” judgment. This is thinly veiled code for deliberately avoiding any ruling on the primary substantive factual finding of the Colorado district court and the Supreme Court: that Mr Trump is an insurrectionist, irrespective of whether the 14th amendment can be applied by states, or is self-executing, or anything else.

That's hardly a great look or much of a win. Not only did the Supreme Court duck the key holding that Mr Trump is an insurrectionist, so did his own attorneys. No one challenged this adjudication, thereby leaving it standing unopposed.

Mr Trump will therefore enter the general election campaign as a legally adjudicated insurrectionist as well as having been found liable for sexual abuse and defamation of the writer E Jean Carroll. Another recently decided New York case establishes him as a legally adjudicated serial fraudster and tax cheat. Among 91 pending felony charges, he faces a looming trial involving hush-money payments to an adult actress.

Mr Biden is old and clearly showing his age. So is Mr Trump, who keeps confusing the current president with Barack Obama, among other glaring mistakes. But only one of the two elderly men with memory lapses is also a legally adjudicated wrongdoer in numerous disturbing cases, and may well be a convicted felon before the election.

Let that sink in. With the American public, it hasn’t yet. But it will.

Published: March 06, 2024, 5:31 PM