The Week Ahead (12.03.23)
Congress after Santos, Trump comes for Obamacare, and two big court rulings
I’m watching three stories today, all of which have implications for 2024 and the pivotal election in November.
Santos is out. Now what?
With George Santos officially expelled from Congress, there is now the question of who will replace him in NY-3. That district is part of the Long Island set of congressional districts, which swung massively toward the Republicans in 2022 after a successful campaign based on rising crime rates and an unpopular incumbent governor running against a well-heeled Republican challenger. Gov. Kathy Hochul (D-NY) survived, but the GOP won enough seats on Long Island and in the Hudson Valley to tip the balance of power in the House.
Now Santos’s seat is up for grabs, and the Democrats smell a pick-up opportunity. The Special Election, which will take place in late February, will be a test of how much anger there is at Republican malfeasance and corruption. And it could serve as a stern rebuke to their chaotic party. According to Politico, Democrats are expected to spend tens of millions to win back the seat in a notoriously expensive media market.
Democrats are leaning toward selecting Tom Suozzi, who was the district’s former incumbent who retired to run a failed primary challenge to Gov. Hochul. His name recognition would go a long way in the race, and there would be a strong comfort level with re-electing him to serve out the balance of the term. There are a number of Republican contenders, and we will have to see who rises to the top.
With an expected retirement of another House GOP member from Ohio, a pick-up by the Democrats in NY-3 would narrow the GOP’s majority even further, meaning they could only afford three defections on any full vote of the House.
Trump attacks Obamacare with an unforced error
Trump is notoriously unable to control his mouth, and this past week left his campaign staff pounding their heads on the table. The Wall Street Journal Editorial Board had penned an OpEd that blasted Obamacare and lamented the lack of any alternative to it, enough so that the former president apparently got quite miffed and decided to post about it.
The subject is still a sore one: Trump had promised to repeal his predecessor’s signature health care bill in its entirety, but opposition from his own party (including his arch-nemesis, the late Sen. John McCain) prevented him from doing so.
Trump fired off a Truth Social post where he claimed he was “seriously looking at alternatives” and that 2017’s failed effort was “a low point for the Republican Party.” He said he would “never give up” on trying to repeal it.
This unexpected attack was a boon for the Biden campaign, which immediately began running messaging on Trump wanting to take away healthcare from Americans with preexisting conditions and launching a powerful television ad around not going back to the days before the ACA.
President Biden also weighed in on the debate. “My predecessor has – once again, God love him – called for cuts that could rip away health insurance for tens of millions of Americans,” Biden said at a White House event. “They just don’t give up. But guess what? We won’t let these things happen.”
And on Friday, per reporting by the Washington Post,
Biden hailed North Carolina’s expansion of Medicaid under the ACA, which officials say will provide immediate coverage to 300,000 North Carolinians, and lambasted “MAGA Republicans” who want to repeal the law. His campaign warned that millions of Americans who get health care through Obamacare “could wave goodbye to their coverage” if Trump wins the White House again.
Trump may have recognized his error. He posted in response, “I don’t want to terminate Obamacare, I want to REPLACE IT with MUCH BETTER HEALTHCARE. Obamacare Sucks!!!”
But Trump has opened the door now, and the GOP is now on the defensive. Reporters can now ask every Republican candidate whether they agree the ACA should be repealed and replaced, just as Trump tried and failed to do in 2017. Since that time, millions more have enrolled, and the program has become quite popular, with 62 percent of adults holding favorable views of the law, according to KFF, a health research and polling organization.
The GOP is already vulnerable with older American voters on the question of their party coming after earned benefits such as Social Security and Medicare. Now, thanks to Trump, they will have to also answer the broader question of whether they favor scrapping the ACA.
Two rulings, clock ticking
On Friday, Judge Tanya Chutkan issued a ruling denying Trump’s motion to dismiss the D.C. federal criminal charges on grounds of “presidential immunity.” This motion was always a long shot, but his target audience was never this judge. It’s always been the higher courts—the D.C. Court of Appeals and the U.S. Supreme Court—which Trump hopes will agree with his broad argument that former presidents can’t be criminally prosecuted for acts they commit while in office.
Judge Chutkan’s ruling was notable for its careful analysis as well as its eloquence.
Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.
Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.
The “presidential immunity” argument got a further dose of reality that very same day from a D.C. appellate panel in another matter, which unanimously held that Trump could be held civilly liable for actions taken while he was president, so long as they were not part of his official duties.
“The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints,” the appellate court said in its ruling. “We answer no, at least at this stage of the proceedings. When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.”
Indeed, the law makes a strong distinction between someone acting as president, whose actions are official in nature, and someone acting as a presidential candidate, whose actions are not part of the Office of the President. In Trump’s case, allegedly inciting an insurrection and attempting to overturn the results of the election are outside of his official presidential duties and inure solely to the benefit not of the American people, but of Trump the candidate.
The reasoning of this appellate panel ruling can be extended fairly readily to knock back Trump’s broader argument, i.e., that he can’t be criminally charged after he leaves office for actions taken while in office. After all, if Trump can be held civilly liable for his extra-official conduct, why could he not be held criminally liable as well?
The real reason Trump is teeing up this motion is to run out the clock. He is hoping that the appellate court takes a long time coming back with an answer either affirming Judge Chutkan or overruling her on this matter, after which he can appeal to the entire D.C. Circuit (an “en banc” review) and/or to the Supreme Court. This motion, unlike others Trump filed, is the kind that needs to be decided before the trial can commence. If the appeals process goes beyond February 2024—just three months away—then the March 2024 trial date will have to be pushed back.
It remains to be seen whether the higher courts will countenance this obvious attempt to delay the trial beyond the election. Special Counsel Jack Smith will no doubt move for an expedited briefing process, which should be granted given that the papers are the same as they were before Judge Chutkan.
Some panels of the D.C. Court of Appeals have shown themselves capable of compressing time when Trump seeks to waste it, sometimes even ordering overnight briefing when witness testimony the following day was at stake. Now that an entire election and the country’s future is on the line, will they acknowledge and demonstrate the same need for haste? And will SCOTUS take up the question, or will it simply deny review and let the ruling stand, allowing the trial to move forward?
Time is the greatest enemy of justice at this point. And it is ticking. I’ll be monitoring what the higher courts do with Trump’s last weapon for delaying his D.C. criminal case, and I will be reporting out here on it.