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The Supreme Court decision in Trump v. United States grants presidents immunity from criminal prosecution under many circumstances. This is good news for Donald Trump, but great news for Joe Biden: Not only is it now impossible for Trump to prosecute Biden if Trump wins the election, but Biden can use the decision to ensure that Trump loses.
Let’s start with the easy part: Trump has been fuming on the campaign trail that he’s your retribution and that he will order the Department of Justice to prosecute Biden after Trump wins the election.
That’s now impossible. Biden has absolute immunity for his core constitutional actions and, at least, presumptive immunity for all of his official conduct. Everything that seemingly outrages Trump about Biden — He’s weaponized the Justice Department! He’s opened up the border! — falls under the rubric of either “core” or “official” presidential conduct. Biden has done nothing in his unofficial capacity that warrants imprisonment.
Sorry, Donald: You’ll have to take that riff out of your stump speech. You won’t be able to prosecute Biden if you win the election.
But it gets better: If Biden’s clever, he can use the Supreme Court’s decision to ensure that he wins the upcoming election.
Directing the actions of law enforcement is plainly a core constitutional authority of the president. Biden would thus be absolutely immune from criminal liability for anything that he did in that sphere.
So be clever: Win the election!
Direct the Department of Justice to arrest all known Trump supporters in battleground states on November 4, 2024 — the day before Election Day. Tell those law enforcement officers that they’re prohibited from bringing the tens of thousands of suspects to court for probable cause hearings — which might allow those folks to be released from jail — until the morning of November 6.
Presto! Tens of thousands of Trump supporters would be imprisoned, and thus unable to vote, on Election Day.
All these folks would be released the day after the election, of course, because they hadn’t done anything wrong. But by then the damage would have been done: Biden would have been reelected. And, when Biden ultimately left the presidency, he’d be absolutely immune from criminal prosecution because he’d done wrong, if at all, only in the exercise of his core constitutional powers.
Biden shouldn’t announce his plans in advance, of course: If warned in advance, early voting, or voting by mail, might permit some of the Trump supporters to cast their ballots before they were imprisoned. Or the Trump supporters might evade arrest until after Election Day.
So just be quiet.
Arrest the lot of them the day before the election. Feel confident that you’ll both win reelection and be immune from prosecution for anything about this that sounds suspicious.
It’s almost biblical, Supreme Court: Sow the wind, and reap the hurricane.
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].
