David Bell – The Campaign Enters the Courts… And the Old Age Clinic

[NOTE TO READERS: This Election Chronicle is also being published in French and Spanish translations at Le Grand Continent].

As I predicted in an earlier post, the presidential campaign these past two weeks has largely moved into the courts. But it is also passing into another, more unusual arena: gerontological medicine. 

Yes, in theory, an actual primary campaign is still taking place on the Republican side. Despite her losses to Donald Trump in Iowa and New Hampshire, Nikki Haley has refused to concede to the man who calls her “birdbrain” and “Nimbra” (a deliberate mangling of her birth name, Nimarata Nikki Randhawa). She has pinned her hopes on a strong performance in her home state of South Carolina’s February 24 Republican primary. According to the polls, she has picked up some support there over the last two weeks, moving from roughly 25% to 32%. Unfortunately for her, the same polls show Trump at over 65% in the state. Barring a very unexpected development, South Carolina will mark the burial of her campaign, and Trump’s coronation as the unchallenged Republican nominee. Haley is now desperately trying to portray Trump as erratic, confused and chaotic. But Republican voters have seen ample evidence of these qualities in Trump for many years now. If they haven’t turned against him yet, they are unlikely to do so now.

Far more attention has focused on the amazingly large number of legal cases in which Trump features. There is the jury that gave him an $83 million fine for defaming E. Jean Carroll, the woman who accused him of raping her in the 1990’s. There is the pending trial judgment in New York for which the judge has already determined that Trump committed civil fraud in his real estate dealings and could fine him $370 million or more. There is the case now being decided by the Supreme Court, on whether states have the right—or, perhaps, the obligation—to remove Trump from their presidential ballots because he engaged in “insurrection.” This is a case which will hinge on how the court interprets the Fourteenth Amendment to the Constitution, initially written to bar former Confederates from federal office. There is Trump’s assertion of blanket immunity from prosecution for actions taken while president, which would shield him from facing trial as an insurrectionist. A federal appeals court has struck down the claim, but this case, too, is heading for the Supreme Court. And then there are the criminal cases pending against Trump: for inciting insurrection and trying to overturn the election results nationally; for trying to do the same in Georgia; for improper handling of classified documents; for business fraud when he used campaign funds to buy the silence of a porn star he had slept with. In most of these cases, Trump is using the same basic strategy he perfected over many years as a crooked real estate mogul facing lawsuits from businesses, workers. and tenants: delay, delay, delay. Have your expensive lawyers use every legal trick in the book to stretch cases out, until the other side simply gives up. Above all, Trump wants to prevent the trials reaching a conclusion (or, ideally, not starting at all) until after the November election.

So the United States is faced with the bizarre situation that the choice of its next president may well depend on tiny, highly technical matters of legal procedure, and how well Trump’s lawyers exploit them. But, then, we have been here before. In 2000, the Supreme Court’s decision handing the election to George W. Bush likewise depended on technical questions of election law, legal procedure, and how to read tiny pieces of paper ballots in the state of Florida. On such minute matters the fates of republics should not depend. But, apparently, they do.

Meanwhile, the political world is also abuzz over a report by yet another special prosecutor, this time an attorney named Robert K. Hur whom the Justice Department had charged with investigating the handling of classified documents by President Biden. While Donald Trump faces multiple charges for the same offense, Hur exonerated Biden from any criminal responsibility. But he also described Biden as “an elderly man with a poor memory,” and claimed that Biden appeared confused in their interviews, misremembering important dates, including those of his own vice-presidency and his son Beau’s death. Not surprisingly, Republicans have seized gleefully on the report as proof of Biden’s senility and unfitness for office, while Democratic and centrist commentators have been wringing their hands.

It is worth stating that the charges of senility are unfounded. Joe Biden is an 81-year-old man whose memory occasionally fails, as one would expect of anyone his age. He had a well-deserved reputation for gaffes and verbal fumbles long before reaching old age. He meets with dozens of people a day, and it strains belief to think that they are all colluding to suppress news of severe mental impairment. A few weeks ago, he met for lunch with a group of historians, several of whom I know personally, and they reported that he listened carefully and asked intelligent questions. But he looks frail and uncertain, and one need only string three or four clips of his verbal and/or physical missteps together to make him look entirely gaga. He has cut back on press appearances to avoid providing more of these clips, but his opponents have seized on this as further proof that he is, in reality, a drooling wreck who cannot face public scrutiny. Trump routinely makes many more errors and verbal slips than Biden, but thanks to his undeniable vigor and stamina does not appear anywhere near as old (he in fact just four years younger).

But the mainstream media have obsessively covered Hur’s assessment, largely ignoring the fact that Hur has contributed to Republican candidates and was appointed by Attorney General Merrick Garland in a gesture towards bipartisanship.  And they have played down the most important fact about the case, namely that Hur found no basis for charging Biden with criminal mishandling of classified documents, even as Trump faces 37 felony counts and a possible 20 years in prison for the same crime. The coverage has been all too reminiscent of when, shortly before the 2016 election, FBI Director James Comey exonerated Hillary Clinton of charges related to her using a private email server for official State Department business, but also sharply criticized her behavior. The media focused far more on the criticism than on the exoneration, contributing to Clinton’s defeat.

Biden has an enormous amount to lose here. Like Clinton, and very much unlike Trump, he does not have a hard core of fanatical supporters who view him as a savior—even as a weird cross between Jesus and Superman. The prosecutions of Trump have actually helped consolidate his support in the Republican Party, although they could still conceivably hurt him with the electorate at large—especially if a jury finds him guilty of a felony before the election. But reports of Biden’s diminished mental state help him with no one. They drive some voters away to his opponent and make others less likely to vote at all. Could the damage get serious enough to force Biden to withdraw from the race? The New York Times columnist Ross Douthat suggested this week that Biden announce his withdrawal just before the Democratic Convention this summer in Chicago, allowing the delegates to pick a younger, more vigorous candidate. It’s a tempting prospect (Gretchen Whitmer, our nation turns its lonely eyes to you…). But the American electoral process has become too sclerotic, with candidates building up too much inertia too early, for it to come about. Unfortunately, at this point, the only thing that can prevent the United States from having to choose between Donald Trump and Joe Biden next November is a major medical crisis, or worse.