The Backchannel

This may seem like a minor point. But I thought it’s worth saying because I have seen a minor rearguard argument to this effect: that the SCOTUS immunity decision doesn’t actually change any laws, doesn’t change what a president can and can’t do. It simply removes the possibility in many or most cases for post-presidency prosecution, something which has actually never happened in American history until last year. This is notionally a good point, but in a purely notional way. It’s true as applied to presidents who didn’t need this kind of hammer hanging over them. All of us are constantly through every day abiding by laws even though we’ve never been prosecuted — or at least most of you, maybe some have been prosecuted before — for breaking a criminal law. We report all our income on our taxes; we don’t fraudulently sign documents; we don’t steal from the store. Most of us act that way just because it’s the right thing to do, though most of us have been tempted at the margins. But laws work in complicated ways. Much of our understanding of what is the right thing to do is in fact conditioned by the laws themselves. As we’ve noted before, laws and prosecutions are not only to keep people in line and punish wrongdoers. They are how societies speak to themselves about what is acceptable and what is not.

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.

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’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.

Let me share a few thoughts on tonight’s debate.

Needless to say, we will be providing live coverage of tonight’s debate and commentary and discussion afterwards. Depending on how everything shakes out, we may record a quick instapod version of The Josh Marshall Podcast Featuring Kate Riga to discuss our initial reactions.

In the old days, when we had two more or less professional politicians debating each other, the debates had a certain degree of predictability. There might be gaffes or gotcha moments. But the room for really big surprises was limited. That’s not where we are anymore. Now we have one candidate, Trump, who knows no bounds and will try to do everything he can to disrupt the proceedings or throw the other participants back on their heels. He brings his pro-wrestling mentality right onto the stage. Meanwhile, Democrats go into these affairs in spite of themselves terrified that Biden will have some gaffe or senior moment that will send his campaign into a terminal tailspin. Both of these factors together create a feeling of maximal unpredictability and tension — and moments like that are Donald Trump’s happy place.

We got the result that vibes, conventional wisdom and limited polling — always questionable in a low-turnout primary — led us to expect in NY-16: Rep. Jamaal Bowman went down to a decisive bordering on overwhelming defeat. Current results give County Executive George Latimer 58% of the vote to Rep. Jamaal Bowman’s 42%. “Current” isn’t a throwaway line. The results I’m looking at say that is 88% of the vote. New York is notoriously, verging on comically, slow to count votes. You don’t hear about it as much as you should because we don’t have a lot of high-profile national races, though last cycle and this one we will have a handful of House races that could well determine who controls the House.

We hear a lot that the press is making all the same mistakes with Donald Trump that it did back in 2016. There are certainly many ways this is the case. But not in all the ways. Indeed, I think Trump has perversely and paradoxically benefited from one thing most news organizations have done very differently. They don’t carry his speeches live. They don’t report all his latest nonsense. I think this has been a net plus for him, especially in a rematch with Biden, since there’s less reminder of just how out there, unhinged and violence-inciting he is. That benefit is only starting to ebb now as we’re getting into the meat of the campaign proper and people really are hearing a lot of it. Thursday night’s debate will bring that to the fore.

Which brings us to the debate.

One thing I’m very curious about is whether certain parts of Trump’s schtick will just seem stale the third time.

I wanted to share a few thoughts on Tuesday’s primary in New York’s 16th congressional district, which pits Rep. Jamaal Bowman (D) against Westchester County Executive George Latimer. It is apparently going to be the most expensive congressional primary ever. The headlines are that AIPAC itself, and a number of AIPAC adjacent pro-Israel groups, are pouring money into the race and Bowman is being wildly outspent. And that’s true. Limited polling suggests Latimer is a strong favorite. But this headline version misses a lot of the story. Or, more specifically, it mistakes cause and effect.

There’s a wrongheaded tendency to think the Court isn’t quite as bad or corrupt when it hands down one of these “good” decisions as it did today in the domestic abusers gun case. Resist the urge. One of the many things I’ve learned from my podcast colleague Kate Riga in our many podcast discussions is that we get a lot of these cases lately because, in addition to taking many fewer cases in general, the Court is now basically open season for culture-war cases. Even in relative terms there are many fewer of the cases that are on some obscure dimension of the tax code or other important-but-to-most-people-obscure questions that don’t obviously line up with hot-button political issues.

This case was one of those cases on a few different levels. The fact that the plaintiff succeeded at the circuit court level is astonishing and scandalous in itself. But let’s start with some basics. The landmark Heller decision in 2008 did not uphold the kind of absolute 2nd Amendment “gun rights” advocates have long claimed. It was terrible, but it didn’t do that. What it did was for the first time find an individual right to own and possess firearms. Like all rights, any regulation of that must be justified by and balanced against some legitimate public interest or need.

Yesterday I opened my inbox to an Axios email with the subject line: “Dems Fear Biden Loss.” Needless to say, versions of this story have become almost a stock piece of the 2024 campaign. And, look, I fear a Biden loss as well. He could totally lose and that would be really, really bad. But I got the sense that the import of this item was a bit more totalizing than that. And well … I was right. The item presents a picture of a campaign cocooned from outside input, intolerant of dissenters who aren’t confident of a win and largely the work of Biden and top advisor Mike Donilon, who is portrayed as having a strategy that is little more than a preciously naive hope that in the end voters will “do the right thing.”

But the heart of the piece comes at the top with a quote (emphasis added) from someone described as a “Democratic strategist in touch with the campaign.”

“It is unclear to many of us watching from the outside whether the president and his core team realize how dire the situation is right now, and whether they even have a plan to fix it. That is scary.”