So many eventful happenings again this past week. As a consequence this Post will be a quick ‘dip and serve’ of several consequential matters. First from my international law colleague, Ooa Hathaway from Yale Law School and the Department of Political Science at Yale. She is one of the best. She and her colleague, Scott Shapiro wrote a terrific book in 2017, The Internationalists: How a Radical Plan to Outlaw War Remade the World. And it was interesting to see this past week that her piece on the Presidential Immunity case, Trump v the United States, appeared in Foreign Affairs, the journal not particularly notable for publishing international law issues. Nevertheless, the piece is quite interesting by pointing out that this examination of Presidential Immunity domestically has long been examined internationally – and the consequences have not been good. As Oona writes:
What most analysts have failed to note, however, is that this lack of legal accountability for decisions by the U.S. president, including decisions to direct the military to use lethal force, is nothing new. It has long been the reality for most of the world outside the United States.
As Oona points out there has been a long effort to reign in such ‘extra-legal’ Presidential behavior:
What most analysts have failed to note, however, is that this lack of legal accountability for decisions by the U.S. president, including decisions to direct the military to use lethal force, is nothing new. It has long been the reality for most of the world outside the United States.
For years, attempts have been made to hold the United States accountable for its unsanctioned violence. Lawyers in the United States and overseas have filed case after case challenging U.S. military and CIA operations abroad, but few have made it past procedural and jurisdictional hurdles. As a result, the U.S. president has long been a “king above the law” when it comes to actions outside the United States.
As Oona, perhaps, vainly concludes:
The problem of presidential immunity—and the capacity of the president to act outside the law—was not created by the Supreme Court’s decision in Trump v. United States. It was simply exposed and expanded by it. Outside the United States, American presidents have long been able to violate the law with impunity, inflicting death and property destruction on civilians in the process. Now that this is also true in the United States, perhaps there will be the will to do something about it.
The acknowledgement of some immunity for ‘official acts’ – still to be determined of course, is just one aspect of presidential intensity that I recognized in the past week. The obvious other matter is the gathering US presidential race. It has been a whirlwind of change for the Democrats of course, but it seems for the Republicans and the Trump campaign as well.
First was the incredibly speedy replacement of President Biden with his Vice-President, Kamala Harris. The ultra speedy consolidation of her position as the presumptive nominee for the Democrats was startling and indeed head spinning. As Shane Goldmacher described in his recent NYT piece, titled, “How Kamala Harris Took Command of the Democratic Party in 48 Hours”:
Time was of the essence. A sprawling call list of the most important Democrats to reach had been prepared in advance, according to two people with knowledge of the situation. The vice president, in sneakers and a sweatshirt, began methodically dialing Democratic power brokers.
I wasn’t going to let this day go by without you hearing from me,” Ms. Harris had said over and over, as day turned to night, according to five people who received her calls or were briefed on them.
The blitz demonstrated exactly the kind of vigor and energy that Mr. Biden had lacked in recent weeks. Mr. Biden had reportedly made 20 calls to congressional Democrats in the first 10 or so days after the debate, while his candidacy hung in the balance. Ms. Harris made 100 calls in 10 hours.
Within 48 hours, Ms. Harris had functionally cleared the Democratic field of every serious rival, clinched the support of more delegates than needed to secure the party nomination, raised more than $100 million and delivered a crisper message against former President Donald J. Trump than Mr. Biden had mustered in months.
The speed and impact on the Democratic Party of Harris assuming leadership, and the invidious comparison with Biden and his now ended campaign appears quite stark. As described by Goldmacher:
Even some at the White House and the newly transformed Harris campaign in Wilmington, Del., privately confided that the vice president’s energetic early appearances were a refreshing change from those of the 81-year-old president, whose verbal stumbles were constant fodder on the right.
The heaviness and distress of the prior campaign was only underlined by the President’s ‘stepping aside’ Oval Office appearance and statement this last Wednesday. It was quite the downer and it certainly lacked insight and explanation. Susan B. Glasser of TheNewYorker did a good job of describing the very short Biden speech:
The short, awkward speech—a mere eleven minutes, though it felt longer than that, listening to Biden’s painful communion with the ghosts of Presidents past as he justified his decision to step aside a few months before the election—served as yet another reminder of why Democratic officials had felt such an urgency to act. … Lyndon B. Johnson was the only other modern President to choose not to run again for a second term, and, in the address he gave to the nation making his surprise announcement, in March of 1968, the trauma of Vietnam that prompted his decision did not seem at all comparable to Biden’s quieter tragedy of an octogenarian in decline and denial.
Years from now, I suspect it will not be Biden’s speech that I’ll remember so much as the few heady days of pure political joy among Democrats that preceded it: the race against Trump, practically given up for lost, suddenly looked winnable again.
That sudden energy and excitement that appeared to surge through the Democratic Party seemed very evident if not palatable. Now, let’s be clear, it is far too early to tell if the Harris ascension has in fact altered the trajectory of the race. And it will take some time to get some electoral evidence impact. Any numbers at the current moment can only be received with restraint if not outright skepticism. Still, here is just an early dip into the electoral waters at this very early stage by folks at the NYT under the heading: “Harris Narrows Gap Against Trump, Times/Siena Poll Finds” :
Overall, Mr. Trump leads Ms. Harris 48 percent to 47 percent among likely voters in a head-to-head match. That is a marked improvement for Democrats when compared to the Times/Siena poll in early July that showed Mr. Biden behind by six percentage points, in the aftermath of the poor debate performance that eventually drove him from the race.” … Because the survey was of voters nationwide, the impact of Ms. Harris’s candidacy in particular battleground states was not immediately clear.
And my colleague Dan Drezner from Drezner’s World, a noted Substack provider not to mention a Distinguished Professor of International Politics at the Fletcher School of Tufts University set out ‘Ten Things I Think I Think About the 2024 Presidential Race After Joe Biden’s Exit’. Here just one point:
Until then, [the Convention] I have ten thoughts — some of which are pretty banal but nonetheless worthy of mention:
2. Despite all the shocks, the race remains mostly unchanged. In the past ten days there has been an assassination attempt, multiple court rulings favorable to Trump, his choice of J.D. Vance to be his vice president candidate, and the pageantry of the Republican National Convention. Despite all that, Trump has not received much of a bump. To be sure, he’s in the lead, which is something. Still, despite a month’s worth of good news, it’s still a pretty tight race. That is mostly because Trump is a historically unpopular politician. Never forget that although Trump has a high floor of support, he also has an incredibly low ceiling.
It is clearly, at this moment, a real contest again. Phew! And, enjoy the Olympics!
Image Credit: CNBC