CIVICUS discusses the recent US Supreme Court ruling on presidential immunity and its potential impact on the 5 November presidential election with Ciara Torres-Spelliscy, a professor of Law at Stetson University College of Law.
Ciara Torres-SpelliscyOn 1 July, the US Supreme Court ruled that presidents have absolute immunity for the exercise of their core constitutional powers and are entitled to a presumption of immunity for other official acts, although they don’t enjoy immunity for unofficial acts. The decision comes as Donald Trump faces criminal charges for trying to overturn his 2020 election loss to Joe Biden. The question now is whether Trump’s actions will be considered official or unofficial. But it’s unlikely he’ll be tried before the election, and if he returns as president he could pardon himself. Critics claim the Supreme Court ruling violates the spirit of the US Constitution by placing the president above the law.
What are the main points of the Supreme Court ruling on presidential immunity?
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This is a ruling in the federal case against Trump for trying to overturn his loss to Biden in the 2020 election. He is accused of pressuring state officials to overturn the results, spreading lies about voter fraud and using the Capitol riot of 6 January 2021 to delay Biden’s certification and stay in power. Trump pleaded not guilty and asked the US Supreme Court to dismiss the entire case, arguing that he was acting in his role as president and was therefore immune from prosecution.
The Supreme Court didn’t do that, but instead created three new categories of presidential immunity: complete immunity for official acts involving core constitutional powers, potential immunity for acts within the ‘outer perimeter’ of official duties and no immunity for private, unofficial acts.
The key question now is whether Trump’s actions will be deemed official, giving him immunity, or unofficial, leaving him open to prosecution. This is the first case of its kind, as Trump is the first American president to be prosecuted.
How does this ruling affect Trump’s other criminal cases?
This immunity ruling is likely to delay all four of his criminal cases, as judges will have to apply these new rules and drop any charges that involve the use of core presidential powers, as these can no longer be used as evidence against him.
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As well as being accused of trying to overturn his 2020 defeat, Trump is also accused of paying adult film actress Stormy Daniels hush money during the 2016 election and not properly accounting for it in his business records. This case is unlikely to be affected by the ruling, as his actions don’t involve either core or peripheral presidential powers. Judge Merchan will have to decide whether any of his 34 felony business fraud convictions will stand or be thrown out.
But some of his other crimes occurred during his time in the Oval Office. Trump is accused of conspiring to overturn his 2020 loss in Georgia by asking the state’s top election official to ‘find 11,780 votes’. Trump has pleaded not guilty and could be prosecuted in his personal capacity, as presidents have no role in administering US elections. As in the Capitol case, this was a private action he took as a candidate and it would be difficult to fit into the category of presidential immunity.
The fourth case Trump faces is the Mar-a-Lago classified documents case. Trump is accused of mishandling classified documents by taking them to his Mar-a-Lago residence after leaving office and refusing to return them to the National Archives when he could no longer lawfully possess them. As his alleged crimes took place when he was no longer president, this case shouldn’t be affected by the immunity ruling. However, he could argue he possessed the documents while in office and ask that his case be treated differently from other defendants. This case was dismissed by Judge Cannon. However, the Mar-a-Lago criminal case could come back to life if the 11th Circuit reverses her dismissal.
What are the broader implications of this case for the presidential election?
After this decision, the American public should think about the consequences of who they elect as president, because the presidency can become a wellspring of crime.
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An honest president wouldn’t be affected by the Trump v. US decision, because an honest person doesn’t need criminal immunity. Only time will tell whether the Supreme Court has invited future presidents to go on a crime spree. But what is certain is that only US voters can keep criminals out of the White House. So, as I write in my new book, Corporatocracy, the stakes in the 2024 election are incredibly high for the fate of US democracy.
Civic space in the USA is rated ‘narrowed’ by the CIVICUS Monitor.
NEW YORK, Jul 31 2024 (IPS) – Within the Democratic field, no potential candidate for president is better-positioned, at this juncture, to defeat Trump more skillfully and pointedly than Kamala Harris. She is writing a new chapter in American history that will chart a new national course impacting future generations.
When it became clear that President Biden would likely drop out of the race, I hoped that some shining, younger, experienced, and inspiring Democratic candidate would emerge to assume Biden’s mantra and crush Trump.
Once Biden endorsed Kamala Harris, within hours, she responded to the call of a party saddled with uncertainly and sorely in need of coalescing around a leader with qualities to galvanize and unite a party; she rose to the occasion and stymied every potential rival from challenging her.
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Her subsequent performance on the stump has demonstrated that she is not only up to the task but also the candidate who will give Trump a run for his money and expose him for what he really is: a man who will not ‘make America great again’ but the one who will bring shame to America and destroy its greatness.
Before I expound on why Harris is the right candidate for the right time, when everything—the Supreme Court, House, and Senate are on the ballot—it is critical to contextualize the social and political environment in which we find ourselves today.
Trump’s dire divisiveness and polarization that is tearing America apart and what the horrific domestic and international ramifications will be should Trump be elected place a formidable burden on Harris to literally save America from the pandemic that has infected the majority of the Republican party.
Yes, a Black and South Asian woman is now tasked to save America from a wannabe dictator, a fascist bent on destroying America’s democracy and its unique standing in the world only to serve his cultish, sickening ego.
No one but Harris can possibly fathom how fateful her mission is and how arduous the road she must travel to restore America’s political and social civility and its leadership in the world will be. She knows she is writing a new chapter on America’s destiny and why she cannot fail.
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Harris enjoys many professional skills and attributes and can build on Biden’s legacy and remarkable achievements over the past four years. Here are nine reasons Harris can, and most likely will, crush Trump in the upcoming elections and win.
Harris is inspiring
There was a hunger among the Democratic party to desperately find someone other than Biden to coalesce around without infighting, a candidate that could restore dignity to politics. Harris has engendered tremendous enthusiasm and many qualified voters will vote for her just for that reason.
The polls have already reflected the public fervor for change, a trend that she can sustain as we edge closer to election day. Moreover, the enthusiasm she evoked has also translated to raising a record amount of money during the last week since she became the presumptive nominee.
The age advantage
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Harris is relatively young (59) and energetic, with charisma, stamina, and natural flair. She has no age problem that has been haunting Biden. She can now turn the table on Trump and use the age issue against him—he is old (77), fumbles, goes off on tangents, and is generally incoherent, all of which reflects that his age caught up with him prematurely.
Harris’s advantage as a woman
Post-Hillary Clinton, many voters of all ethnicities and ages have become more comfortable with a woman as president. Moreover, at a time of extreme political tension and divisiveness, where compromises are hard to come, women tend to work out compromises and keep a respectful tone in politics, which is particularly needed, thanks to Trump, in this poisonous political atmosphere. She will be in a perfect position to deal with an angry, unhinged, and temperamental fool like Trump and play the adult in any setting with him.
Skilled prosecutor
As an experienced prosecutor in California and attorney general, Harris is best positioned to prosecute the case against Trump, probably like no other. She has prosecuted, over the years, sex offenders, grand larcenists, tax evaders, and swindlers. As she recently said, “I know his type.” Trump will sweat it out with her and not know where the next punch is coming from.
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Energizing young Democrats
Many young Black women have been reinvigorated by Harris’ campaign, in part due to her race and gender, with a “Win With Black Women” Zoom fundraising event raising over $1.5 million for the Harris campaign the same day Biden endorsed her. Many young Black men who were disenchanted by Biden and considered giving Trump a chance have returned to the fold and will vote for Harris in droves.
They sought someone to inspire them, and Harris came to quench their yearning. Moreover, younger people are generally less inclined to judge an individual based on gender. In this case, Harris may have an added advantage.
Galvanize Democrats on the fence and anxious Republicans
Given the concerns of a growing number of Democrats about Biden’s age and frailty when he was still the de facto nominee of his party and many Republicans’ anxiety over Trump’s unfitness to serve another term as president, many eligible voters have been swayed to stay out and not vote at all. That has changed with the rise of Harris to the top of the ticket. She has now offered a viable alternative and fundamentally altered the election’s trajectory in her favor.
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Harris can speak about abortion freely
Biden, who is a Catholic, supports women’s right to choose and stated last year that the now-overturned Roe v. Wade “got it right,” but is not the strongest Democratic orator on the issue, given his personal religious beliefs on the issue, which is critical for women of all colors and ethnicities.
Harris, on the other hand, has already been Biden’s surrogate on the issue, becoming the first vice president to visit a Planned Parenthood clinic in March, and has made women’s right to abortion one of her central themes. Approximately 65 percent of all women oppose the Supreme Court’s decision to annul Roe v. Wade and found many of the red states passing draconian laws against abortions as despicable and chauvinist. The majority of these women will flock toward Harris, giving her a significant advantage on election day.
Harris has more time and energy to campaign
Unlike President Biden, who must still deal with increasingly mounting domestic and foreign policy issues, Harris has considerably more time to campaign nearly full-time, with the resilience and energy needed to campaign in every swing state time and again. Harris is engaging, and an increasing number of undecided voters in these crucial swing states find her refreshing with solid ideas that address their concerns.
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Harris is an excellent debater
As California’s attorney general, she honed her public speaking and debating skills and became an excellent debater who is engaging, charismatic, and an outstanding communicator. Harris is very good at punching back forcefully, which puts her opponent on the defensive. In any debate with Trump, all he will be able to do is bark back and keep trying to change the subject. But he is no match for Harris’ piercing counter-attack, which may force him to lose his composure and badly expose his vulnerabilities.
Combating prejudices and mitigating disadvantages
Many Republicans have spared no time criticizing her on a range of issues, claiming that she has presumably failed in addressing the immigration problem, she is too liberal, has no experience in foreign policy, comes through as ingenuine, is fully supportive of Biden’s policies, which they consider to be an utter failure, and that she will be unable to distance herself from his agenda.
Harris will need to overcome several of these disadvantages, real or perceived. She will continue to face prejudices, particularly racism and sexism, which are hard to mitigate, as old white men would want to stop her. However, Harris can overcome most of the ideological obstacles, provided she projects herself as a uniter who is out to mend the horrific social and political schism that has affected this country to the core.
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Harris needs to demonstrate that she is a moderate, mainstream Democrat, defend democracy, and draw a clear contrast with the extremist Republicans. She must focus on the economy as people are hurting and need relief. She must keep Biden’s promise to put a cap on rent increases, limit income tax on those earning less than $400,000 a year, ensure that the rich pay their fair share of taxes, ban medical debt from credit reports, and forgive student loans that have saddled borrowers with endless debt as their minimum payments hardly cover the interest they pay.
Finally, Harris knows that millions of Republicans despise Trump and wish that he would disappear from the political scene and restore sanity to a party that has lost its way—a party that stood for constructive conservatism, respected the rule of law, assumed fiscal responsibility, stood for fair and free elections, strengthened America’s alliances and leadership in the world, and stood firm against Russia and China.
These Republicans are not Hillary Clinton’s “deplorables.” They are dedicated Americans to whom Harris must appeal and solicit their involvement and even offer high-profile positions to those who want to share her vision about America’s future. As an example, she could invite Senator Mitt Romney, a staunch anti-Trump Republican and one of the few voices on the right calling to combat climate change, to serve as her Climate Czar.
Harris must now articulate that new vision for America and explain why she would be the best person to lead the country at this historic, fateful time in American history. Harris must make a new contract with America founded on unity of purpose, growth, and prosperity while safeguarding our democracy with zeal.
Harris can win this election; I believe she will because America is desperately ready for change, and Harris is best positioned to lead the way.
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Dr. Alon Ben-Meir is a retired professor of international relations, most recently at the Center for Global Affairs at NYU. He taught courses on international negotiation and Middle Eastern studies.