Lawfare not the way to campaign

US Democrats’ attempts to use lawfare to thwart Donald Trump’s campaign to return to the White House always appeared misguided. That is even more the case following the historic judgment on Monday (Tuesday AEST) by the Supreme Court in Washington on Mr Trump’s claims of presidential immunity over the various prosecutions brought against him since he left office, including allegations over the January 6, 2021 attack by his supporters on the US Capitol aimed at subverting the outcome of the 2020 election.

Mr Trump has claimed the Supreme Court’s 6-3 decision, in which it ruled that former presidents enjoy sweeping immunity for their acts while in office, is a “big win” for him. It is. But it is more important than that. More crucially, it is a ringing endorsement of the separation of powers that lies at the heart of the US constitution and the innate strength of the world’s greatest democracy.

The majority judgment, written by Chief Justice John Roberts and supported by the court’s so-called “conservatives”, including the three judges appointed when Mr Trump was in the White House – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – makes it clear that the former president “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts”. That will make it much more difficult to bring successful prosecutions against Mr Trump at any time, and certainly before the November 5 presidential election.

But the court rejected Mr Trump’s claim that all presidential acts have absolute immunity. A president (any president), Chief Justice Roberts wrote, has only “presumptive immunity” from prosecution for official acts outside his key constitutional powers. Unofficial acts have no immunity.

That is of secondary significance, however, to the main thrust of the ruling’s endorsement of the crucial separation of powers. Chief Justice Roberts said that without such expansive immunity from future prosecution, presidents might hesitate from taking bold action to further the nation’s interests. To rule otherwise could forever create “an executive branch that cannibalises itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next”, the Chief Justice wrote.

In response to the verdict, President Joe Biden took the low road. He claimed that the judgment will give Mr Trump open slather to do what he likes if he wins back the White House. “Today’s decision almost certainly means that there are virtually no limits on what a president can do,” Mr Biden said. The judgment may have put paid to Democrat hopes of seeing Mr Trump prosecuted and imprisoned for some offence before November 5. They must now face the consequences of a judgment that boosts the Trump campaign, is a blow to the troubled Biden campaign, and hands Mr Trump an opportunity to claim the role of victim, which he enjoys.

Mr Biden should recognise that the Supreme Court’s ruling will apply equally to him if Mr Trump wins in November and seeks to prosecute him on criminal charges. There is little confidence the Biden campaign knows what it is doing.

Reports that the Biden family is blaming the debate disaster on White House aides whose job it was to prepare the President are as irrational as the family’s reported conclusion that Mr Biden is fighting fit and ready to win.