I am now convinced that President Biden will step aside as his party’s nominee. This isn’t a value judgment, just an analysis of reality. As I explained on Monday, if that happens, Kamala Harris is—far and away—the most likely replacement.
If this happens, we will immediately be confronted with a new question: Should Biden resign his office and elevate Harris to the presidency?
For starters, it will depend on Biden’s condition. If/when he withdraws his candidacy, some reason will be given. Does that reason center on his health or his cognitive functioning?
If it’s just a question of health and general frailty, then resignation becomes a judgment call. If the president is mentally compromised, then he may have no choice but to resign.
For the sake of today’s discussion, though, let’s pretend that Biden’s ability to carry out his office for the next six months is not substantially affected and so the decision of whether or not to resign becomes purely (meaning politically) prudential. What then?
Let me paint a picture of what a post-Biden world looks like:
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Kamala Harris is the focus of more attention than anyone in politics, including Trump. She will be able to pack stadiums and arenas instantly. It will be an unprecedented hand-off to the next generation of Democrats combined with a high degree of uncertainty as to whether or not she can deliver the goods. If she nails the handoff, there will be an immediate bump for her in the polls and public interest will build.
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Republicans will spend every day arguing that Biden should be removed via the 25th Amendment and Harris will have to answer that charge every time she talks to the media. And she will do a lot of media. The only way this works is if she turns the handoff into a blitzkrieg and sprints all the way through to Election Day.
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Meanwhile the real world continues. Maybe Israel opens up a shooting war with Hezbollah. Maybe there’s a terrorist attack in the United States. Maybe the border gets out of control. Maybe a hurricane hits a major American city.
There are upsides and downsides to having Harris as the incumbent president in this environment.
The case for Harris running as the incumbent president.
For starters, having President Harris traveling on Air Force One and standing behind the presidential seal would instantly solidify her gravitas. It would create even more attention for her and give her the ability to dominate pretty much every news cycle from here to the election. Everything about her candidacy becomes even more historic and exciting.
It also evens the playing field between Harris and Trump. Trump gets to run as both an insurgent and an incumbent. Vice President Harris would be neither, trapped in a sour spot of being on the hook for everything voters dislike about the Biden administration without the benefits of being battle tested. If Harris is running as the sitting president, she will have demonstrated that she can do the job. People will have seen her—literally—in the big chair.
It is possible that some Americans might have trouble picturing a black woman as commander in chief. If Harris is the sitting president, then they will see it in reality and if she does a satisfactory job for then it might allay their concerns.
Finally, Trump would plotz every time he heard Harris referred to as Madame President. This is not nothing.
The case for Harris remaining Biden’s VP while replacing him on the ticket.
The biggest issue: Presidenting takes up a lot of time and energy and Harris will need to be campaigning at full speed. If Harris is the sitting president her attention will be divided and her time on the campaign trail will be limited by her job.
Also, if Harris is only the vice president, then President Biden can take actions that might not be popular with the base—closing the border, dealing with Bibi Netanyahu—and absorb those hits for her. More importantly: If something bad happens (say, a terrorist attack) it’s on President Biden and not her.
One final consideration: her running mate.
If Harris is sworn in as president, she will need to bring a vice president with her. That means nominating someone who must be confirmed by both the House and Senate. That could be a difficult process; we should assume that House Republicans would try to sabotage it.
Harris’s choices would be constrained by two factors. First, could her VP nominee by confirmed by the Republican House? Second, her nominee would have to resign his or her office to accept what might be a short-term job. I doubt that Josh Shapiro, Andy Beshear, or any governor or senator would accept under those terms.
If Harris stays VP, she can get her dream partner as her running mate since he or she won’t have to resign their office before the election.
I’m not sure how this balances out. Ultimately, the decision will be driven more by Biden’s reality as by what gives Harris the bigger advantage. But I promise you that people will be thinking about all of this, soon.
You may have noticed that some people have been unhappy that The Bulwark has been pursuing this conversation about Biden over the last week. I understand the feeling. Biden is a good man who has been a good president. He deserves better than the situation in which fate has placed him.
But for all my admiration of Biden, this moment is bigger than him. And because he is a patriot, I am certain he realizes understands that truth. The people who admire Biden owe him the loyalty of their candor. And by the way, that’s the kind of loyalty Biden wants: He never asked for a cult.
I’ve been proud of the way The Bulwark community has met this moment. Proud of my colleagues and especially proud of you guys for the way you’ve handled these conversations. If the rest of America were like what we’ve built here, then everything would be okay.
Keep at it, fam. I know it looks dark, but I’m actually heartened by further confirmation that we still have one healthy political party.
Never forget that after that debate, the Republican party continued its refusal to countenance the problems with its nominee. Meanwhile, most of the Democratic party skipped damage control and is now, however painfully, engaged in a serious discussion about what is best for the country.
That’s encouraging.
I know that none of this has been fun. But as Harvey Dent once said, it’s always darkest before the dawn.
If you’ve ever been on the fence about becoming part of what we’re doing here, I hope you’ll join us now. These are your people. This is the moment.
Kevin Roberts, the president of the Heritage Foundation, had some thoughts about the Supreme Court’s decision on presidential immunity. Here’s his conclusion:
We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.
Yes, we have arrived at the point where the president of America’s premiere conservative think tank issues threats of political violence and no one even notices. Certainly no one in the swamp Conservatism Inc. will excommunicate him. Or turn Heritage into a pariah organization. Or decline to take part in panels with people from Heritage or any of the other small acts of disavowal that might have been expected a decade ago.
What’s funny is that Roberts may be correct. We do seem to be in the middle of a revolution in which our liberal democracy is replaced with an illiberal democracy. And thus far Republicans have been willing to eschew violence so long as they get their way. It has only been when our democracy thwarts Republican ambitions that some Very Fine People have been moved to bloody violence.
Here’s Politico working through the aftermath of the presidential immunity decision:
Richard Fallon, a constitutional law professor at Harvard Law School, argued the ruling does not leave presidential power completely unchecked. Lawless presidential conduct can still be prevented or unraveled by other parts of the Constitution—for instance, if a president illegally imprisoned a political enemy, that person would be entitled to a court order to go free.
President Joe Biden “is fettered in just the way the presidents were fettered the day before yesterday,” he said.
But the extraordinary scenario of an assassination ordered by the president would be different, Fallon acknowledged. It couldn’t be undone after the fact.
“The only thing that the law can do is impose criminal punishment,” he said—but the president would be immune.
The biggest challenge for a president ordering an assassination would be finding military personnel willing to carry out the order, legal experts explained. While the president himself would have the protection of immunity, others involved would remain vulnerable to prosecution because the Supreme Court’s decision doesn’t make the underlying act legal.
“If they are given an illegal order by the president or by someone who is directly answering the president, they may be in a position that they are subject to court martial in either direction,” said Claire Finkelstein, a professor of national security law at the University of Pennsylvania.
A lawless president, however, could get around that problem by promising to pardon anyone who carried out his orders.
Finkelstein, who submitted an amicus brief in Trump’s case alongside 14 other national security professionals, warned that such a Catch-22 would create dangerous confusion within the military’s chain of command, undermining its necessary discipline and order.
Read the whole thing, I guess.
We have a word for this, by the way—when the written laws do not apply to the president, but he can give illegal orders to the military and then promise to pardon them and shield them from the law when they carry out his illegal commands.
It’s called “dictatorship.”
