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It could all still come down to Biden [1]

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Date: 2024-09-25  

Everyone around here is probably familiar with the “trump” card in the MAGA playbook for the upcoming election: keep things close enough that the vote-counting and certification results in one or more key swing states can be contested by Republican-dominated election boards and wind up in court or the House of Representatives. In a case like that, we could ultimately see the Supreme Court handing the presidency to Trump—even if Harris wins by a relative landslide in the popular vote and even if she would win the contested states under any semblance of traditional jurisprudence, precedent, and fair play.

Ironically, the antidote to a potential Supreme Court ruling of this sort (really nothing less than a judicial coup d'état) was enabled by that same Supreme Court in its foul decision in June granting presidents complete immunity for all official acts. Although the Trump justices obviously intended this decision to aid Trump and Trump alone (particularly once he regains the presidency, if only through their assistance), it’s probably not lost on even Thomas and Alito that Joe Biden is the president until late January 2025 and is therefore the only sitting president so far to have been granted this monarchial power. The caveat is that anything Biden might decide to do in the wake of an election that he decided was morphing into a slow-motion coup attempt would have to be deemed an official act of his presidency. Given the kinds of criminal actions the Court decided Trump should enjoy immunity for committing while he was president, it’s a real stretch to think of anything Biden might do to save American democracy by thwarting a coup that would not count as an official presidential action.

As a thought experiment, let’s first assume that Biden could be persuaded to take bold, unprecedented action to blow up a Trump/MAGA coup attempt immediately after election day. More on that question later. But if so, what actions might a president with blanket immunity powers take in this situation? First, I’ll venture that the MAGA coup plot will be largely about sowing sufficient chaos around voting and vote-counting in closely contested swing states to deny Harris an outright win and certification in one or more of those states. And when the Democrats challenge those efforts, the cases will wind up in court … and eventually in the US Supreme Court, which, as we know, is in the bag for Trump. What would this mean for Biden’s intervention? Are there any effective extrajudicial acts he could take before the process gets to SCOTUS? I’d welcome ideas here from anyone who’s more strategically prescient than I am about this sort of political espionage in the American system.

In any case, let’s assume the Supreme Court is the ground on which the coup either succeeds or fails.* An immunity-empowered president might order at least Alito, Thomas, and perhaps Gorsuch to recuse themselves from these election cases based on their well-documented bias and corruption. And if they refused to do so, he could order the Justice Department to step in with contempt charges and even detention (and perhaps looping in the toxic Alito and Thomas spouses). Alternatively, he might summarily expand the Supreme Court to 13 members, post haste. More radically—and depending on just how unhinged and treasonous Trump has behaved since election day—he might also consider detaining and arresting Trump himself as an insurrectionist under sedition and treason charges. And what about an intervention at Fox News, which would be apoplectically bellowing insurrectionist propaganda and disinformation over this lame-duck president going rogue with the very powers their all-time favorite Supreme Court casually granted Trump? Could Biden threaten them with criminal libel and seditious disinformation charges for backing an administrative/judicial coup attempt? Might he summon Rupert Murdoch to a back-channel meeting, making clear what dire consequences will ensue if Murdoch fails to come to the table? After all, Fox effectively admitted guilt in the Dominion lawsuit over spewing debunked lies about the 2020 election, so it’s not as though they don’t have a vulnerable track record in this domain.

I imagine there are other bold administrative actions Biden could take that would pass "official duties" muster and therefore qualify as immunity-protected. The obvious problem, though: Joe Biden’s political ethics were formed in a different era. As I like to say, he (and the Democratic Party generally) tends to show up to the knife fight that is modern American politics armed with only a feather pillow. At this point, the fact that Biden is widely deemed "too decent" to fight fire with fire and take the daring, radical actions that these extraordinary times might soon call for is arguably no compliment. Instead, his civility betrays the probability that he’d play the virtuous statesman rather than initiate risky, unprecedented action to save American democracy.

But who knows? Just a little over two months ago, Biden appeared to remain intransigent in the face of calls that he withdraw from the race, and sane people everywhere were increasingly resigned to the unbearable prospect of another Trump presidency. In that flash decision alone, along with his near-instant endorsement of Harris, Biden showed how cogent and vital he really was. When the stakes of remaining in the race finally got through to him, he did the right thing without further delay or apparent regret. Could he be convinced by Nancy Pelosi, for example, to at least start considering a plan for responding to a Republican/SCOTUS coup plot, so that once it starts unfolding, he’s not left standing by flat-footed? Could such discussions already be underway? What a karmically fitting final act for Joe Biden’s already historic presidency.

*Another possibility is a contingent election, where a majority of state delegations, not House members overall, decide the winner of a presidential election when neither candidate gets 270 electoral votes. Under this scenario, each state gets one vote for president regardless of population. In a contingent election, the 28 smallest states control 56 percent of the votes. If intentional chaos and dithering by Republican election boards set up a scenario that results in a contingent election, the Democrats would sue to halt these machinations, and such litigation would also likely end up before the Supreme Court.

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