Thread by @SethAbramson

Supreme Court decisions cut both ways; they become the law of the land for *all*.

President Biden is *entitled* now—by *law*—to determine what official acts that might previously have been deemed illegal he can take, with presidential immunity, to protect us from insurrection.

I have no idea what those acts would be. I simply know that we are in the midst of an active insurrection that is being led by Donald Trump, and that the Supreme Court has just said that all presidents, including Democrats, have far more power than was ever previously thought.

Again, I do not know where this takes us. But I know that Republicans are discussing this decision as though it will only ever apply to Donald Trump if he attempts to establish a dictatorship in the United States after a hypothetical November election victory.

They are wrong.

Indeed, the framing of any legal analysis of this decision should not focus on whoever is running the next presidential administration but on the current presidential administration.

We have a president *right now*, and the Supreme Court just dramatically increased *his* powers.

It is a gift to Trump for media or for the Biden administration to act as though this decision about the powers of the presidency does not apply to the current president. By the same token, it would be a gift to insurrectionists to say we are not currently facing an insurrection.

Donald Trump incited an armed rebellion. In an interview a week ago he indicated he will do so again if he loses. He has refused to endorse or accept the peaceful transfer of power. After the decision today, we know that if elected he will be above the law and a worldwide threat.

So all I am saying—no more than this—is that the Biden administration has an *obligation* to look at this decision and ask not just, (1) What would this mean if Trump is elected? (an immaterial question in practical terms), but also (2) What does this mean for *us* right *now*?

You can be certain that SCOTUS—which is lawless and now officially radicalized—issued this decision comfortable that *only* its favorite son, Trump, will be able to exploit its parameters. But of course that’s *literally* untrue. *Joe Biden* is the President of the United States.

So it is a defeatist attitude—more than that, a violation of a president’s Oath of Office—for Biden to not zealously advocate, in a time of insurrection, for using the powers *SCOTUS has just told him he has* to protect this country and instead say, “Let the Dictator have them.”

Moreover, SCOTUS has just made clear that presidential actions are non-justiciable: they will be permitted to wend their way through the courts for months and years. So with four months until Election Day, there would be no time—*per SCOTUS*—to review anything Joe Biden does.

Again, *I do not know what that should be*.

I simply know that a known insurrectionist is on the cusp of ending two of the cases against him, pardoning himself, and becoming—by his own admission—a *dictator*.

And I know SCOTUS just told Biden he has *broad powers* to stop that.

I also know that as Democrats we *rightly* reject—as Republicans don’t—a president failing to do his duty *or* exceeding the scope of his authority. But now the Supreme Court has dramatically expanded presidential authority, likely because it believes Biden will ignore this fact.

But what if President Biden *didn’t* ignore the powers granted him by the Supreme Court—as one could argue it’s his obligation *not* to? Whatever happens in November Joe Biden is President of the United States for at least 7 more months. What can he do to protect us in that time?

By way of example—only as an academic exercise, not a suggestion for future action—the Court ruled today that President Biden can do what he likes to *direct* the prosecution(s) of Donald Trump to ensure they go to trial pre-January 20, 2025. Should he use that power? If so, how?

If these questions are not even being *asked*, we who love democracy are being defeatists—presuming that any Supreme Court decision *can* only be read to aid the enemies of democracy, and *must* not be read as giving patriots new avenues to *protect* our democracy. I reject that.

Will Biden take such actions? Almost certainly not—for precisely the reason we just saw with the Atlanta debate: *he* is held by media and the nation to a different standard than Trump. Those who love democracy must play by special princess rules; *Trump* is free to be a monster.

Anything President Biden does *must* be peaceful, lawful and fair. It *must* be within the scope of his official duties. Those terms must *also* be read within the context of America being in the midst of an active insurrection.

Again, I don’t actually know where that takes us.

Having said this, the *problem* here is that the Supreme Court has been much more evil here—yes, evil—than most realize. The *rule* is established today is not on its face preposterous; what was preposterous was how it did so, given the context in which it did so. Let me explain.

None of the acts Trump is charged criminally with are official acts. None. Zero. There’s no credible argument that they are. The Court *could* have laid out the rule it did today and then said, correctly, that none of the acts in question *as to Trump* receive any protections.

What the Court *did* is take up on appeal a *ruling that said that* by the DC Circuit Court, sit on it for half a year, then take no position—with minor exceptions—on which acts are official, ensuring that this case cannot go to trial pre-election and Trump can end it if he wins.

So the deviousness here is off the chart. One could argue that *in a vacuum* this ruling is *distantly* defensible—immunity for core official acts, presumptive but rebuttable immunity for outer-limit official acts, no immunity for unofficial acts—but *in context* it’s truly vile.

Essentially, the ruling—including its timing and its deliberate self-limitations—was shaped to (1) save Trump, (2) keep President Biden scared enough to not make any use of it as president. And *that* is what I am trying to grapple with in this thread. Let me explain what I mean.

If we see the holding today as having two parts—a lawful (if deeply questionable and perhaps unworkable) ruling, and the lawless timing and *details* of that ruling (e.g., not declaring all the acts charged against Trump unofficial)—we fully see the dilemma President Biden is in.

There’s a real chance that *in a vacuum* the Biden administration doesn’t find *the ruling itself* so shocking—meaning, the holding (legal rule) outlined today. All presidents surely think they shouldn’t be able to be prosecuted for engaging in acts that are part of their duties.

But President Biden also *cannot* ignore that the *lawless* part of the far-right ruling today—SCOTUS implying that *obviously unofficial* acts are actually official, and creating an adjudicative regime that makes most presidential acts nonjusticiable if they’re near an election.

So President Biden is empowered, now, to (a) deem as *official* acts we previously would have assumed were *unofficial*, and (b) engage in those acts with the knowledge that there’s no way for the Supreme Court or *any* court to effectively *review* them before the 2024 election.

But if President Biden does any of that, he’s doing so against the backdrop of a SCOTUS ruling that *in a vacuum* seems not entirely outside the bounds of propriety—again, it becomes lawless because of the procedures SCOTUS used and its refusal to rule Trump’s actions unofficial.

Which is another way of saying this: if *Biden* tries to use the powers this far-right Court just tried to gift *Trump*, *this* Court will (a) deem anything he does *unofficial* and open to prosecution and (b) move *swiftly* to adjudicate him as being open to federal prosecution.

Moreover, President Biden knows that *using* his new powers could cost him the election, as he’d lose the moral high ground he now has (*rightly or wrongly*, he’d lose it—even if he noted he was trying to comply with the new legal regime the Supreme Court has just established).

And if Trump wins in November after President Biden has tried to use his new powers, Trump would have him arrested on January 20, 2025. And President Biden could have *no* confidence *this* Court wouldn’t move *quickly* to find that his conduct was *unofficial* and *unprotected*.

*That* is why I call this ruling evil.

It is not just partisan, but *devious*.

It’s openly seeking to aid Trump’s re-election *and* aid his ability to launch a dictatorship if elected, while *hamstringing* President Biden’s ability to make any use of it.

Which is why he won’t.

The game of chicken SCOTUS has established is this: President Biden can *only* make use of this ruling if he intends to do so in a way that a) *conclusively* protects democracy from Trump, b) could land him in jail pursuant to a notional 2025, 2026 or 2027 ruling from this Court.

So for instance, President Biden can issue an internal executive-branch finding that Trump engaged in insurrection, and on that basis direct DOJ to ensure he is not on the ballot in November. He would then lose to whoever replaced Trump and face imprisonment under that new POTUS.

And I want to be *very* clear and quick in saying that President Biden will not do any of that.

But *could* President Biden do things we’d never have dreamed he’d do to protect America from Trump so long as he’s willing to face jail years from now when it turns out that—before *this* Supreme Court—all MAGA POTUS acts are *official* and all Democratic ones *unofficial*? Yes.

You might say, but Seth, he already *can* do that (as long as he’s willing to face jail)! But the answer is actually no, he couldn’t—before today. Because before today he wouldn’t have a Supreme Court doctrine to justify his actions *and* the benefit of a long adjudicative delay.

Before today, the actions that are now possible for President Biden would have (a) led to *immediate* impeachment and removal, and (b) a likely indictment before November.

*Now* he can say, I am doing these things under the ruling in Trump v. United States, and furthermore...

...Democrats in the Senate could refuse to convict him (as of course the GOP House would impeach him immediately) on the same grounds: the president was engaging in official acts under Trump v. United States.

By the same justification, his DOJ would not charge him for his acts.

And of course if he still *won* in November, he’d never face prosecution. If he *lost*, SCOTUS has now created an adjudicative regime that’d probably ensure that it would be *years* before a criminal case against (a post-presidency) Biden could wend its way through the courts.

So whatever President Biden does—which I believe will be nothing—he must be mindful that this holding today was *explicitly* constructed to wound and hamstring him and aid and relieve Donald Trump, and that he would have to act in startling fashion to break through that reality.

(CONCLUSION) Having walked through these thoughts in real time, my advice to President Biden is...

...do nothing. The ruling’s so deviously crafted—in its process, context, acts and omissions—that it’s a trap for any person of good conscience, even as it’s a weapon for monsters.