Josh Marshall
Some things I write are not what I believe, think should happen, etc. They are merely statements of what is happening. Statements today from Nancy Pelosi and Jim Clyburn make me think that Biden may be losing hold of the key stakeholders at the center of the Democratic Party. There’s far too much chaos and noise at the moment to confidently distinguish between signal and noise at the moment. But that is what I see.
Late Update: The comment from Jim Clyburn that I saw didn’t really accurately convey what he said. So this really now goes on a comment from Nancy Pelosi. Again, I think all remains in flux.
SCOTUS Also Changed Constitution To Help Trump Overturn NY State Felonies
In addition to a plainly corrupt and unconstitutional decision, SCOTUS appears to have added rules of evidence fine print which will likely invalidate Trump’s felony conviction. Here’s TPM Reader WT, a TPM alum and now lawyer (and expert commentator on Trump’s various New York litigations) …
Read MoreYesterday’s decision handed Trump an even bigger gift that initial headlines have suggested. SCOTUS has effectively federalized the two state prosecutions against him. (Note: As I type this, news is already breaking that Trump’s sentencing in his New York conviction is likely to be delayed.) Reading yesterday’s opinion, I’d be shocked if Trump ever gets sentenced. More likely, his NY conviction will get overturned before it even gets up to appeal.
From TPM Reader JG …
Saw the front page NYT on the Dems “strong bench” that all took a pass on 2024 to avoid (as I would put it) Carter-Kennedy and “now we are stuck with Biden.” So let’s pivot to something constructive: let’s have that strong bench out there from now through November supporting a national campaign (and candidacy) based on preserving and extending reproductive freedom, protecting democracy (keeping a power-tripping maniac from the presidency), and celebrating economic stability and even prosperity. In other words, start the 2028 election cycle now: let Harris, Newsom, Pritzker, Whitmer, Beshear [Klobuchar, Warnock, Shapiro, Cooper?] start campaigning nationally. It’s not just a President we are selecting but a set of beliefs about America. Lots of would-be leaders need to be out there making the case. (I don’t mean to exclude Obama; his role is assumed, but he shouldn’t be the only other voice.
This is so precisely right it’s not even funny.
Yes, By All Means … 
A TPM Reader wrote in this morning asking if it’s just grasping at straws to make a big push to put not just yesterday’s ruling but the Court itself at the center of the campaign. Is trying to change the subject in that way crazy? What I said was, not at all. Obviously, wanting to focus attention on something doesn’t mean you’ll succeed. And for those ready to pounce: No, this is irrespective of who is at the top of the Democratic ticket. The obvious fact is that any day Democrats are talking about Joe Biden’s age is a wasted, lost day. What’s more relevant is that this is not and would not be changing the subject. It is the subject. It’s the actual subject that the campaign and election are about.
Read MoreIf the Roberts’ Court is right about the Constitution, it’s hard to imagine what the authors of the Constitution had in mind when they proposed that a President could be guilty of “high crimes and misdemeanors.” Yes, that is in a non-criminal context wherein criminal penalties aren’t possible. But they clearly meant this to be inclusive of official acts. Indeed, it almost certainly is primarily about official acts. Yes, you can kind of thread a needle to maybe work your way out of this contradiction. But you don’t need much of an acquaintance with the period in which the Constitution was written to know that the people of the time would have found this decision shocking. The mere words of the impeachment clause itself tell you that.
One of the many things we have going for us at TPM is that we have two really talented reporters covering different aspects of the world of the law and the courts and we have an executive editor who is himself a lawyer, which adds an additional layer of sophistication. I’ll leave the details of the Court’s decision to them. But I can speak broadly to the nature of president power. This decision creates two classes of presidential immunity for official acts, one absolute, the second presumptive. This is much closer to total immunity than many seem to understand. It is precisely the President’s official actions, actions taken with official powers, that we’re most concerned about. We’re not worried that the President will steal a toaster. If a President beats their spouse that is an outrage and he or she should be held accountable to the full extent of the law. But that doesn’t threaten the state itself. It is precisely official acts which matter most with a President and where legal accountability is necessary because the Constitution gives Presidents such vast powers and their conferral is personal and will-based in nature.
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More Thoughts on the Debate and Its Aftermath
As with my last post, a few thoughts not organized into a single argument but presented as a list of items.
- On the question of Biden dropping out, I hear people say, “surely there’s another leading Democrat who is up to this challenge?” Or, “how can it be there’s no way to do this?” Or, to me personally, “why can’t you see that this is the obvious thing to do?” The best way I can answer this is to say that my assumption is that switching candidates now is the equivalent of pricing in 10 or 20 debate-night disasters. That doesn’t include how the next person does. I mean the simple act of making the switch. I’m not asking you to believe that’s true for the moment. Maybe you disagree and that’s fine. But if you’re trying to understand my reasoning, that is a significant part of what it’s based on. Needless to say, you need to be certain the current plan is hopeless and that person X is going to really knock it out of the park if you make the switch. Again, I have my own assumptions and theories that get me to this conclusion. I note it here just to give you a sense of why, while I’m not ruling anything out, I’m still very skeptical about a switch.
A Few Thoughts on Last Night
A few thoughts on last night’s debate and the fallout, presented as a series of items.
- Last night really sucked. Someone said to me that it brought back feelings of déjà vu about election night 2016. You’re sitting there and the thing you were afraid of but didn’t think was actually possible is happening. And you can blink your eyes and it doesn’t stop happening. I had that same feeling. I’ve had various people write in and say, “You don’t get it, Josh,” in response to things I wrote last night or said on the pod — “It was physically uncomfortable for me to watch.” “I was horrified.” “I wanted to throw up.” All I can say to this is, it was really, really unpleasant for me, too. I just don’t talk or write that way. It royally sucked.
Both Nancy Pelosi and Hakeem Jeffries discussed Biden’s performance last night and how he stacked up to Trump in a way I can only call fairly equivocal.
These are both quotes from impromptu conversations this morning posted by credentialed reporters on Twitter.
Read MoreFrom TPM Reader JY …
Read MoreTrying to collect my thoughts reading the debate reactions from readers you already posted, and hearing about Axelrod and Plouffe going on tv and just aimlessly panicking, and the biggest thing that came to mind was the Access Hollywood tape. I’m about your age and that’s the only time I can recall that the other side actually panicked. You had reporters saying they were hearing from GOP operatives that all was lost.