Washington Wednesday: Immunity and capability

LINDSAY MAST, HOST: It’s Wednesday the 3rd of July, 2024.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Lindsay Mast.

NICK EICHER, HOST: And I’m Nick Eicher.

Time now for Washington Wednesday. Today, what voters think about last week’s presidential debate. But first, political fallout from the Supreme Court’s decision in Trump v. U.S.

Here’s WORLD’s Washington Bureau reporter Leo Briceno.

LEO BRICENO: On Monday, the Supreme Court ruled that presidents enjoy “absolute immunity” while acting within their official capacity. It’s a ruling that Florida Rep. Byron Donalds believes preserves something central to the office.

BRYON DONALDS: Look, I think presidents have obviously unique powers, so if they’re in the official duties of their office, yes I do believe presidents should be able to leave office with elements of immunity for their official duties.

The question now becomes how the decision will affect former President Donald Trump’s criminal case in federal court in the District of Columbia. The decision won’t automatically dismiss the four charges he still faces there, but it does give his legal team a chance to refute allegations of attempted election interference.

Those four charges involve obstruction of an official proceeding, conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, and a conspiracy against the constitutional rights of voters. The maximum sentence Trump would receive if he were convicted on all four charges would be more than 30 years.

Clark Neily, senior vice president for Legal studies at the Cato Institute, believes the case has already shifted a bit in Trump’s favor.

CLARK NEILY: Some counts in the indictment are just done with. So, for example … communications with Vice President Pence in which Donald Trump tried to persuade him to use his office to alter the outcome of the election—are going to be presumptively official acts. And so those will almost certainly not be able to move forward.

If Trump’s lawyers can successfully argue that he acted within his constitutional powers as president on January 6, 2021, Trump could avoid having a second felony conviction added to his record.

On Monday, President Joe Biden criticized the court’s decision, saying it fundamentally expanded the powers of the presidency.

BIDEN: You not only face moments where you need the courage to exercise the full power of the presidency. You also face moments where you need the wisdom to respect the limits of the power of office of the presidency. Today’s decision almost certainly means that there are virtually no limits on what a president can do.

During oral arguments in April, the Supreme Court justices asked attorneys where they would draw the line between official and unofficial acts.

Here’s Justice Sonia Sotomayor questioning John Sauer, lawyer for Trump.

SOTOMAYOR: If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?

JOHN SAUER: It would depend on the hypothetical, but we can see that could well be an official act...

The majority opinion states that a president takes an official action when he or she acts pursuant to “constitutional and statutory authority”….meaning when the president carries out duties explicitly assigned to the executive. But specific applications of the distinction between official and unofficial acts will need to be tried in court.

Trump’s attorneys are already trying to apply the decision’s logic to other cases. On Tuesday morning, prosecutors didn’t object to delaying sentencing for Trump’s felony convictions in a Manhattan business fraud case…over concerns that presidential immunity might come into play there, too. The original sentencing was scheduled for July 11.

Despite the questions about just how far this immunity goes, Congressman Donalds points out that the court’s decision on immunity is bigger than one administration.

DONALDS: I think people get caught up on this case about ‘oh this is for Donald Trump.’ That’s not true. It would protect official duties of president Obama, President Bush, President Biden.

Neily echoed those thoughts—although he himself isn’t at ease with the idea of Trump’s immunity.

NEILY: That’s a difficult pill for many people to swallow if you believe Donald Trump really did try to overturn the last election. But I think the majority is trying to take a broad view here and they specifically say that right up front in their opinion that they’re writing an opinion not just for the outcome of this case but writing an opinion for this country and for this office. I would be hesitant to be overly critical of either the majority or the dissent in this case.

Reporting for WORLD, I’m Leo Briceno.

MAST:Turning now to the debate after the debate.

President Biden’s performance on stage against former President Trump has many questioning whether he has what it takes to serve four more years.

Washington Bureau reporter Carolina Lumetta now with what voters are thinking after the debate.

BIDEN: I don’t walk as easy as I used to, I don’t speak as smoothly as I used to, I don’t deba-debate as well as I used to. But I know what I do know, I know how to tell the truth.

CAROLINA LUMETTA: President Joe Biden was more energized at a North Carolina rally last week than he was on the debate stage Thursday night, when his halting performance plunged the Democratic Party into panic.

Post-debate polling has shown Biden’s support flagging after he struggled to answer several questions, stumbled over his words, said inaccurate phrases, and delivered lines with a raspy voice.

BIDEN: We’ve got to take a look at what I was left when I became president, what Mr. Trump left me.

The White House has said the president was battling a cold. Biden, at age 81, is America’s oldest president ever. He will turn 82 soon after Election Day. Voters have told pollsters for months that they think Biden is too old to be president, and post-debate polling shows the showdown with former President Donald Trump only heightened that concern.

A USA Today and Suffolk University poll conducted Friday through Sunday found that roughly 41 percent of members of the Democratic Party want to replace Biden as the presidential nominee. Likely voters told Ipsos and FiveThirtyEight that they rated Biden an average of 2.2 on a scale of 5 for physical and mental fitness. Across every survey, Trump came out the winner of the debate. Lisa Barnhart watched the debate Thursday night with fellow Republicans just outside Atlanta.

LISA BARNHART: I feel compassion for President Biden, because I can't understand what he's saying.

With less than a month until the Democratic National Convention, a change now could cost the party an already-close race.

Longtime Republican consultant Craig Snyder is now the executive director of Haley Voters for Biden.

CRAIG SNYDER: I’ve known President Biden for many years, not as a close friend, but I was a staffer in the U.S. Senate while he was there as a senator for years. And I've always thought him to be a very decent man, certainly a capable man. He was not projecting capability in the debate.

The Biden campaign asked for the debate with Trump and specifically scheduled it earlier than any other first presidential debate in modern history. Snyder says the team likely hoped for an energetic performance, similar to the State of the Union, to calm complaints about Biden’s age. That strategy backfired. I spoke to Georgia Republican Party Chairman Josh McKoon at the watch party outside Atlanta:

JOSH MCKOON: I think it will be an even bigger issue than it already was. Of course, Republicans have been talking about this really, throughout the administration. Who's really in charge? You know, the gaffes on public events. But tonight, really painfully, put it on display for an hour and a half that there's some appear to be, some real deficits in being able to lead and being up to this challenge, and so I certainly expect you'll hear more of that as well.

Since the debate, the Biden campaign has avoided the age question, instead going on the offense against Trump, accusing him of lying and misrepresenting Biden’s policies. Meanwhile, most Democratic lawmakers are closing ranks around Biden, but not as tightly as before. Yesterday, Congressman Lloyd Doggett of Texas became the first Democrat to publicly call for Biden to withdraw and give the nomination to someone else. For now, Doggett is an outlier. Here’s Congressman Robert Garcia, a Democrat from California, on Monday:

ROBERT GARCIA: The Democratic Party is united around Joe Biden, he is our nominee, he will be our nominee…

REPORTER: Was it a bad night for him, though?

GARCIA: I mean, look, obviously, Joe Biden had a little bit of a sore throat. But Joe Biden, Joe, Joe Biden actually delivered substance and actually a message and Donald Trump all he did was lie.

Overall, the debate has not significantly shifted the candidates’ national standings. Before the debate, Trump held a 0.2 percent lead over Biden according to polling averages. As of Tuesday, he was 1.4 points in the lead. A RealClearPolitics aggregate of polls has him ahead of Biden by as many as 2.7 points. Though that’s still within the margin of error.

Here’s Snyder again:

SNYDER: There's no question that the project that I'm doing and that others are doing as well to try to persuade persuadable swing voters to vote for Biden got a lot harder at the debate. There's no question. People have concerns, those are legitimate concerns. I think the most important thing is not to try to minimize the concern, not to try to pretend that people didn't see what they saw. You have to look at the risks and dangers on the one hand and the opportunities on the other hand, on both sides.

If the Democrats want to replace Biden, the process is complicated, and they’re running out of time. The party plans on nominating him through a virtual vote in a couple of weeks to meet Ohio’s ballot deadline. Additionally, all of Biden’s 3,894 delegates are pledged to him personally, meaning only he can release them to vote for someone else.

BIDEN: Folks, I give you my word as a Biden that I wouldn’t be running again if I didn’t believe with all my heart and soul that I can do this job because quite frankly.

Reporting for WORLD, I’m Carolina Lumetta in Atlanta, Georgia.

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