The Week Ahead (01.07.24)

Biden condemns while Trump lies about January 6, big hearing in the D.C. Circuit, and SCOTUS leaves a horrific abortion law in place in Idaho

Joe Biden speaks about democracy near Valley Forge. Photo: Ricky Fitchett/Zuma

The return from the holidays can feel a bit jarring after the lull in news, and our political and legal news is no exception. There are three stories I’m following today:

• The battle over democracy and the political narratives (one true, one false) by the two parties’ leading presidential nominees;

• A critical hearing in the D.C. Circuit on Trump’s claim of “absolute presidential immunity” from criminal prosecution; and

• A decision by SCOTUS to let stand one of the nation’s harshest abortion bans, leaving women in the state in a dystopian nightmare.

Before I dive into what may feel like an alarming and frightening summary, I want to pause a moment and give some assurances as well.

This does not have to be our future. We are capable, as a nation, of defeating authoritarian forces who seek to wreck our democracy, splinter our nation, and control the bodies and lives of others, including millions of women. We have succeeded before—and this time, it is still possible to achieve victory at the ballot box and not the battlefield. But it is a victory we must see through, and no one can sit on the sidelines.

So deep breath. Here are some of the stories that are top of mind.

January 6 and the trashing of our democracy

On the third anniversary of the January 6 insurrection at the Capitol, President Biden delivered his most important speech to date. It was the official launch of his campaign in 2024, and his message was clear: Trump is prepared to violate the Constitution, is hell bent on using the White House to come after political rivals, and is an existential threat to democracy.

“Donald Trump’s campaign is about him —not America, not you,” Biden said Friday at a speech near Valley Forge. “He’s willing to sacrifice our democracy, put himself in power.” Biden made clear that November’s election is ultimately about preserving our democracy. “Democracy is on the ballot. Your freedom is on the ballot.” He reminded listeners that Trump “refuses to denounce political violence,” asserting, “You can’t be pro-insurrectionist and pro-American.” And in what I felt was his most memorable line, Biden addressed the American people directly by calling the ultimate question: “We all know who Donald Trump is. The question is: Who are we?”

Trump responded angrily by seeking to gaslight us all. He claims that it is Biden who threatens democracy because this administration, through its Justice Department, has indicted him on dozens of criminal counts. “They’ve weaponized government, and he’s saying I’m a threat to democracy,” Trump told his followers during a rambling and often incoherent speech.

Trump’s position proved too much even for the normally both-sidesy New York Times, which reported,

Three years after the former president’s supporters stormed the Capitol, Mr. Trump and his campaign are engaged in an audacious and baseless attempt to paint Mr. Biden as the true menace to the nation’s foundational underpinnings. Mr. Trump’s strategy aims to upend a world in which he has publicly called for suspending the Constitution, vowed to turn political opponents into legal targets and suggested that the nation’s top military general should be executed.

Trump’s ultimate goal is to confuse enough of America about the true threat to democracy, such that the claim loses its strength. Accusing the other side of doing the thing you are guilty of is classic misdirection. It is the same reason that the GOP is trying baselessly to impeach Biden, and even why they claim Democrats and drag queens are pedophiles and groomers, just as big child sexual abuse scandals emerge that involve conservative, Republican and Evangelical leaders.

The Biden campaign, and all defenders of democracy, need to respond firmly. Accountability for Trump’s crimes, under the rule of law, is actually how democracy gets preserved. “I know you are but what am I?” may work as a schoolyard taunt, but it should never carry the day in our political discourse.

Before we despair that any message about Trump being a menace to democracy will be lost within a MAGA smokescreen, polls strongly indicate that Trump’s anti-factual claims about January 6 and his political persecution resonate only within his existing base. Democrats, independents and traditional Republicans aren’t buying it. A full 93 percent of likely Democratic voters and a majority of likely independent voters agree that the prosecutions of Trump are not politically motivated, according to a recent Times/Sienna poll. And while only 16 percent of Republicans believe the same, that is a critical block of support Trump would need to win.

The further Trump leans into his extremism and denialism, the more support he loses. We saw this play out in the 2022 midterm elections, and the Biden campaign is baiting Trump into these positions again today. Biden’s attack upon Trump over democracy—and the Trump Campaign’s predictable response—is thus both necessary for our democracy’s preservation and smart politics. In an election where Biden isn’t popular, but Trump is even less so, the more this is about voting against Trump the better Democrats and Biden will fare.

A critical hearing before the D.C. Circuit

On Tuesday, January 9th, Trump’s lawyers will go before a panel of the D.C. Circuit Court of Appeals and argue not that he is innocent, but that he is immune from prosecution. There is a thematic tie-in here to all we have been hearing from Trump over the past few months: that he is a king, that he promises to be a “Day One” dictator, and that he is above the law.

Let’s be clear. There is no world in which the D.C. Circuit will agree with him. The only question is how quickly they will rule, and whether they will force Trump to move rapidly to appeal the case to the entire circuit or up to the Supreme Court. They can do this by putting a stay upon their affirmation of Judge Chutkan’s order only for a limited time—say, two weeks—pending appeal by Trump.

Or, they could go even further. There is a chance they could agree with the lawyers from American Oversight, who argued in a friend-of-the-court brief that Trump is actually not entitled to a stay of the trial proceedings and does not have an automatic right to appeal his claim of absolute immunity because it appears nowhere clearly in the Constitution. I actually give this a decent chance of happening, especially if the D.C. Circuit is not inclined to enable any of Trump’s efforts at delay.

There’s another appellate path that I would be happy to see: A smackdown by the D.C. Circuit, and a relative prompt decision by SCOTUS not to hear the appeal. It could come in the form of an unsigned, single sentence on the High Court’s docket, and that would put Trump right back before Judge Chutkan, with the trial date not affected by too much delay. Perhaps this is optimistic of me, but it is definitely within the realm of the possible.

But we can play this out even further. As we look ahead to the Court’s calendar, it’s possible the justices might decide to issue their decision on immunity in tandem with their ruling on Trump’s eligibility to appear on the Colorado primary ballot. That question is set for hearing in early February, and if the Court, being the political body that it now is, wanted to please and disappoint both sides at once, in February it could deliver the expected victory for Trump on his ballot eligibility while dealing him a blow on his claim of immunity.

SCOTUS and abortion

A decision last week by SCOTUS to leave in place an Idaho abortion ban has me quite worried. The Court allowed Idaho to enforce its existing abortion ban, one of the strictest in the country, by lifting a stay of the law put in place earlier by a judge. This effectively means that it’s now impossible to get an abortion in the state.

The Idaho law, which sprang into place after Roe was overturned, declares that anyone who performs an abortion can be sent to prison for up to five years in prison. Doctors and other health care providers who violate the law can lose their professional licenses. There is an exception only if the abortion was necessary to protect the life of the pregnant woman, but that is a very high bar. Pregnancies that could result in serious bodily injury, infertility, or other major health issues, for example, cannot be terminated.

The U.S. government had sued to stop the enforcement of the law, arguing that federal law on providing emergency medical care, including abortion, controls. The trial court and the Ninth Circuit agreed, but the ruling by SCOTUS putting the law back into place indicates trouble ahead. It will hear the case (likely together with an appeal from a similar case out of the Fifth Circuit) in April, with a decision in June.

We should think of this case, as well as the case about the national availability of the abortion medication mifepristone, as Dobbs Part 2. Just how far can Christo-nationalist extremists take their war on women before the Court will step in?

On Tuesday, I will be writing up a larger thought piece for The Big Picture on how consequential 2024 is already proving to be for the Supreme Court, from deciding key matters about Trump and the election to establishing what limits, if any, there are on draconian state bans on abortion. Be sure not to miss that piece; you can subscribe for free (or even better as one of our paid supporters) at this link: https://thinkbigpicture.substack.com/subscribe. Please do sign up!

Jay