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Biden's campaign sent out an email over the weekend chastising self-important podcasters. I'm pretty sure that we're not the podcast they're talking about. I don't think we're important enough. Galen, you need to, you know, you got to have a little more self-confidence. You know, you don't think you're important enough. You're very important. Have that self-importance. You go for it.
Hello and welcome to the FiveThirtyEight Politics podcast. I'm Galen Druk. Since Thursday, the only story in American politics has been President Biden's performance in Thursday night's debate and what on earth Democrats are going to do about it.
That was until today, when the Supreme Court ruled that American presidents have some legal immunity. Absolute immunity for core constitutional duties like appointing officials or granting pardons. Presumed immunity for official acts, which is at present a somewhat murky and potentially very broad category. And then no immunity for unofficial acts.
As far as former President Trump's federal indictment for behavior surrounding January 6th and attempts to overturn the 2020 election is concerned, it now seems very unlikely that case will make it to trial before the election. Perhaps completely impossible. We'll get into it. In fact,
It's likely that lower courts are now going to have to determine what counts as an official versus unofficial act and that any decision they come to may end up back at the Supreme Court. So we're going to talk about it all today. And here with us to do that is professor of law at Cardozo Law and former federal prosecutor Jessica Roth. Welcome back to the podcast. Thank you.
Our trusty source for when legal news arises. I really appreciate you being here with us on the final day of the Supreme Court term. And we got a big one for you. I'll also say here that later on in the podcast, my colleagues Nathaniel Rakich and Tia Yang are going to join me to talk about the continuing fallout from Joe Biden's debate performance. But let's focus on the news of the day first. So,
I tried to summarize what was ultimately more than a 40-page opinion,
What more is there to say? Or did I get the fundamentals right? Fact check me here. Yes. The majority opinion written by Chief Justice Roberts said that there is such a thing as immunity from criminal prosecution for a former president, that it is absolute within this core of the president's executive functions as entrusted to the president by the Constitution of the United States. For that core, there can be no criminal prosecution, full stop.
Then there's this second category of conduct for which there could in some circumstances be criminal prosecution that would be acts within the outer perimeter of the president's official duties, but that there would be presumptive immunity for such conduct that could be overcome
come on a showing by the government. Prosecution for that conduct would not intrude on the proper functioning of the executive powers. And then there would be a third category where there would be no immunity at all, and that would be for unofficial or private conduct.
But this is such a momentous opinion, in part because there had never been a ruling from the Supreme Court establishing immunity from prosecution for the president. There had been this prior opinion, Nixon versus Fitzgerald, about immunity from civil liability. And the court essentially adopted that framework from Nixon versus Fitzgerald and applied it to the criminal prosecution context.
for these functions of the president that are official. And then in addition, created this category where there's absolutely complete immunity. So I want to pause for a second before we get any further into the weeds.
How, to put it bluntly, big of a deal is this? This is a tremendous deal. It has ramifications, obviously, for the prosecution of Donald Trump. But this is a rule that was being written for the ages. And the majority opinion by Chief Justice Roberts takes pains to say that, that this is a rule that is being articulated going forward. And the court cannot be thinking solely about the exigencies of the moment.
One of the things that I think is most striking about the opinions, because, of course, there was also a very strong dissenting opinion, actually two dissenting opinions. But in terms of what is the biggest concern that is articulated by the opinions, for the majority, it's dissent.
the concern about future presidents being chilled in the performance of their duties by the prospect of criminal prosecution when they leave office, and the idea of there being such prosecutions and the courts being drawn into the adjudication of prosecutions of former presidents by the people who succeed them in office. Those are the biggest concerns of the majority opinion.
And Jessica, just to clarify here what we're talking about, like when the president is deciding theoretically in the middle of the night whether or not to go to war or who to even appoint or pardon or whatever, they might be concerned that they will have legal liability as a result of it. And it will hamstring them in a way that the Supreme Court has determined is not constitutional or not beneficial to the United States. Is that right?
Yes, that's one of the two concerns that the majority articulates, that in the performance of their duties, the president would be concerned, would be chilled about doing what the president thought was in the best interests of the country because of concern about their own personal criminal responsibility or liability when they left office. And I think the second half of the concern articulated by the majority opinion was essentially this very unsavory prospect of
right, of there being actually prosecutions of former presidents by their successors who would be presumably their political opponents and that we would have this never-ending cycle of recriminations through the political process. And then you have the concern articulated by the dissenters, which is focusing on the president while in office being completely undeterred.
from committing crimes because they would have this absolute immunity for things that could be shoehorned into this idea of their core executive functions and then near absolute immunities or presumptive immunity that could only be overcome on a strong showing for things within the outer perimeter of their official duties. And that standard is not very clearly articulated in the majority opinion such that
lots of conduct could be put within that outer perimeter of the official duties. And so the dissent says, look at the world that our holding is creating. It is a presidency that is completely unencumbered by any concern about criminal responsibility for acts taken using the most powerful office in the world, right? So that is the prospect that most terrifies the dissenters.
So it's not really our jobs here to determine who is right per se, but oftentimes we do rely on public opinion for better understanding the world around us. And I will say that we actually have a decent amount of public opinion data on this question. And I'll just cite a Marquette University law poll that came out in May.
And they asked Americans nationally, do you think that presidents, former presidents, should have immunity from criminal prosecution for their official acts? We're not talking about unofficial acts here where they definitely don't have immunity, according to this decision. But whether former presidents should have immunity from criminal prosecution for their official acts. Overall, nationally, 71% say they should not have immunity.
71 to 16 percent who say they should have immunity. If you want to break it down further by partisanship, even Republicans overwhelmingly more Republicans than not say that presidents should not have immunity from criminal prosecution for their official act.
So that breaks down to about 50% of Republicans saying no immunity to 30% of Republicans saying immunity. And then when you look at independents or Democrats, it's, of course, even more overwhelming. So the Supreme Court does not have to adhere to public opinion, and it is not accountable in a electoral way that, you know, the other two branches of government are. But...
Americans are, I guess, reacting to what they just see as as wrong or this general sense of no man is above the law, et cetera, et cetera. How does this change things on a practical level? Like, has the American presidency just changed?
Well, arguably it has in the sense that now presidents would take office knowing they do have absolute immunity from criminal prosecution for acts that can be characterized as within the core of their functions under the Constitution and that they have presumptive immunity
from prosecution for most other acts that they take within the outer perimeter of their office. Before today, it was actually understood to be the opposite, that presidents did not have immunity from criminal prosecution for their official acts, and that that was different from their exposure to civil lawsuits. Under the precedent I mentioned earlier, Nixon versus Fitzgerald, it was understood that presidents were immune from civil lawsuits for their official acts, but
But in that opinion, the Supreme Court took pains to say that it was not announcing such a rule of immunity for criminal prosecution. And so it was understood because of, in part, that language that there was no such immunity from criminal prosecution. And, for example, when Ford pardoned Nixon, right, it was understood that was in large part because he had exposure to criminal prosecution.
prosecution. When former President Trump's argued at his impeachment trial that impeachment was not the right vehicle for holding him responsible for the conduct at issue there, that he could be prosecuted when he left office, right, that reflected that common understanding that presidents were subject to criminal prosecution. So things really have changed
quite a lot today in terms of what that foundational understanding is of presidents going in. Will that actually impact how they go about how they conduct the office? I think that will depend on the individual who's entrusted with that office. I do want to say one other thing, though, which is to say that even without immunity, as articulated by the court today from criminal prosecution,
It's not to say that it would have been so easy to prosecute presidents for their official acts. There are lots of other doctrines that would have prevented prosecutions of presidents for acts taken using their office. It's not that it was open season on presidents in terms of being prosecuted before today. It's just now the immunity doctrine is going to do a very strong version of that work and make such prosecutions sort of impossible at the outset.
And I haven't already said it, but I think that folks listening to this will know that this was a 6-3 decision. So it was split strictly along ideological lines. There are some nuances there in the sense that there were two
two dissenting opinions. And Amy Coney Barrett wrote a concurring opinion that was a bit narrower than the opinion that Roberts wrote. I think where she took issue was on the presumptive immunity for official acts, which we can get into. But on the 6-3 point here, we have been tracking the popularity of the Supreme Court now since before the Dobbs decision. So since 2021. And
And we have seen a significant uptick in the disapproval of the court. In fact, just a month ago, the Supreme Court hit its all time worst in terms of net approval at net negative 22 percentage points. And I think in combination with folks viewing this as a particularly partisan decision because of the 6-3 split with Democrats.
it being not aligning with where public opinion actually stands. I think we will be on watch to see how trust in the Supreme Court evolves after this.
But I want to ask, one, does Barrett's concurring opinion constrain the majority opinion at all? And also, how are we going to define these lines? What's the difference between presumptive immunity versus absolute immunity? And what's the difference between an official and an unofficial act?
So these are all great questions. Three of them all at once. I'm just going to throw them all at you. So yeah, we can go in order. And don't worry, we'll take our time here. So on Amy Coney Barrett's concurring opinion, we're all still processing this. So I haven't read it multiple times yet. My biggest takeaway from her concurrence was that it was actually addressing a narrow point, which was whether official acts...
that the majority opinion says now are presumptively immune, whether those acts nevertheless could be introduced as evidence
in a case where unofficial acts were charged and could be prosecuted. So if you had official acts where there's presumptive immunity and that presumption was not overcome, could those acts be introduced and discussed at the trial to prove up essentially the charges based on the unofficial acts? Amy Coney Barrett said, yes, those official acts were
could play a role as evidence in the trial. And the majority had said the opposite, that if they are official acts for which there is immunity, then they essentially can't play a role in the trial at all as the basis for the charge or as evidence of charges based on the unofficial acts. So that's where she split with the majority. Sort of what does that mean? What's the significance of that? It would be if you were trying to prove, for example,
the conspiracy to overturn the election as alleged in the January 6th indictment, and the government were not allowed to introduce evidence of some communications of Trump with, say, state officials because the court determined that those were actually official acts.
Right? The government couldn't use those in service of the charges based on things that Trump did primarily through private actors as a candidate that were deemed to be unofficial acts. So all those things he did that were deemed to be official would just drop out of the case. And that would change the narrative and the story that prosecutors could put before the jury.
Now, on the standards itself, what's official versus unofficial, I don't think the court drew any bright lines, and it didn't give us a very coherent test. And I would say that's one of my biggest criticisms of the ruling, which is to say it's sending a lot back to the lower courts, and it's doing so without very clear guidance.
For example, the conduct of Trump in communicating with state officials, the opinion opines essentially that could be official or could be unofficial. The trial court is going to have to take evidence on it and hear argument.
on which bucket it falls into most cleanly. But I think the court could have done a much better job of giving clear guidance about what exactly constitutes official and not official. So that's all going to have to get worked out in terms of more fulsome statements of what the standard is, and then also application of the standard to the facts. So we could be looking at iterations of appeals on those issues as we go forward.
Yeah. In a practical sense, again, what does this mean for the January 6th and the broader conspiracy to overturn the 2020 election that the district court in Washington, D.C. has to now go through and determine of all of the behavior? What is official? What is unofficial? And in cases where it is official, does it meet this threshold for presumptive immunity requirements?
then presumably Trump would appeal this back to the Supreme Court and the Supreme Court will then have to decide whether the lower court
judged all of this correctly. Is that what we're looking at here? I think so. And then there's the intermediate step, which is the D.C. Circuit. So the trial court, Judge Shutkin, will make her rulings. And then that could be, I believe, I don't see why it couldn't be appealed on an interlocutory basis again to the D.C. Circuit. And then Trump or the government, in theory, could appeal that to the U.S. Supreme Court, which wouldn't have to take the case again. But there would be the delays occasioned by those appeals.
It's possible that Jack Smith could try to expedite this to the extent he can by focusing only on the acts that he thinks have the greatest chance of being deemed unofficial.
or if official, arguably official, as to which he thinks he has the best shot of overcoming the presumption of immunity, really focus in that way in the hopes that he would get a quick ruling from the district court judge, that it would be quickly affirmed by the D.C. Circuit, and that maybe the Supreme Court wouldn't take it. Is that the circumstance in which we would have some conclusion about Trump's guilt before the election? Or even in that case, are we not looking at any kind of ruling by...
November. It's almost impossible to imagine a scenario in which this goes to trial before November. I think that if he wants to keep as many of the allegations in the indictment in the case, then he's going to proceed on an aggressive approach of arguing that it's all unofficial or if official, that the presumption of immunity is overcome and seek a ruling from the district court judge to that effect.
live with the appeals as they go forward and then say, I'll try the case however it comes back to me, right? Whatever is ruled that I can go forward on, that's what I'm going forward on. And perhaps on the view that it's not going to happen before the election anyway.
And so just go forward with what he thinks are the acts that can survive the standards articulated in today's opinion. And if Trump wins the election, then the case is not going to go forward because presumably Trump will order his Department of Justice to drop the case. And if Trump doesn't win, then the case goes forward with as much evidence and as much in the charges as can survive the most aggressive view of the court standard today.
A lot to parse through here. But before we go, is there anything else that you want to note that's in this ruling today that we have not yet discussed that merits it? Well, there's going to be a lot to say as we all continue to digest it. There's a lot of language in here on both sides that really merits digesting and thinking about what's being communicated beyond what's actually said.
sort of in the words themselves. There's a lot in the majority opinion from Chief Justice Roberts that I read as expressing frustration with being asked to rule quickly on a case of such significance without the benefit of full fact-finding and briefing. And you can sort of hear the exasperation in him that they're being asked to make determinations about what's official and what's not when that was not ruled upon by the district court or by the D.C. Circuit.
and sort of a sense of trying to tell people this is not about Trump, this is about what comes for the future. And you hear in the dissenting opinions very much, this is about Trump and this is about the future also, and an unconstrained president. So there's so much that's going on beyond the words and the legal language.
Yeah. In fact, in Sotomayor's dissenting opinion, she writes about the possibility of a president ordering the assassination of a political rival using the military. And because the president is commander in chief of the military, that that would be an official act. I mean, is that
Is that the way that you read this type of immunity? Is there anything in the Roberts majority opinion that suggests, no, this is on the outer bounds, this would actually face criminal liability? Or is it as she says? So I think that the best reading of the majority opinion by Justice Roberts is that it would provide immunity for that circumstance because serving as commander in chief is within the core responsibilities of the president.
But that said, there's language toward the end of the majority opinion, where Chief Justice Roberts says that the dissent is conjuring sort of an impending doom and talking about chilling scenarios that are not before the court today. And he goes on to say that actually our holding is quite narrow, right? And it says that there is immunity for court conduct. And here we hold that communications between the president and his attorney general are
immune, and then we're remanding to the lower courts to determine in the first instance whether and to what extent Trump's remaining alleged conduct is entitled to immunity. And so that arguably leaves open the door, right, for lower courts to bring a more granular gloss to various types of conduct and leave for another day determinations of immunity for the scenarios that are discussed by the dissent.
All right. Well, I'm going to leave things there. Thank you so much for joining me today, Jessica. Thank you. Let's move on and talk about the continuing fallout from last week's debate. But first, a break.
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As I mentioned at the top, the only story in American politics for the past four days or so has been Biden's debate performance. And that changed a bit on Monday morning with the Supreme Court's ruling on presidential immunity. But I still do want to talk about the fallout from Biden's debate performance. And here with me to do that now is senior elections analyst Nathaniel Rakeh to welcome the podcast, Nathaniel. Hey, Galen.
And also here with us is senior editor Tia Yang. Welcome to the podcast, Tia. Hey, Galen. Thanks for having me. It's great to have you. So we can dive into the numbers surrounding Biden's debate performance. In fact, we did some polling with Ipsos that we can look at the before and after. There's other head-to-head polling out there that we can look at. But first, I want to ask, how do you feel about the
how these two stories intersect with each other. Does the fact that the Supreme Court came out with a blockbuster ruling in a sense Monday morning mean that this story about Biden's debate performance now falls from the headlines a little bit? Or does it make it all
the more urgent for Democrats who were already mid freak out because of what this means for whether the January 6th case will go to trial before Election Day and what a Trump 2.0 presidency could look like. Nathaniel, I think probably more the former than the latter, but I don't really think the stories intersect all that much.
The SCOTUS decision, despite appearances, is not and probably was never going to be really an electoral story. And that's because the odds of a trial happening before the election were already quite low.
And so now we know basically for sure that that's not going to happen, given that the lower courts are going to have to weigh in. But it's not like that was really going to change things on that front. And therefore, it was more of a kind of legal jurisprudence story. And if they had given him total blanket immunity, that would have been a huge story kind of legally and constitutionally. But again, wouldn't have really changed the reality that the trial isn't going to happen before the election. So I think on kind of the electoral track,
You're still going to hear a lot of stuff about Biden's age just in terms of the fact that there are only so many minutes that can be filled on cable news and in newspaper columns. Basically, I think that the headlines on Tuesday in the quote unquote election section of like your favorite local newspapers website are still going to be about the debate.
Okay, so let's talk about the debate this case aside. How would you describe the fallout from the debate from voters' perspective based on the data that we have so far? So I would say that voters really felt like Biden did very poorly at the debate. So we conducted a poll with Ipsos where we asked, among other things,
Who do you think won the debate? How would you grade each candidate's performance on a scale of one to five? Biden's average score on that debate front was two out of five, which is we haven't been doing this for that long, but since the beginning of the year, so including all the Republican primary debates, that's the lowest performance score.
grade that anybody has ever gotten. And I think that's actually particularly notable because unlike in the Republican primary, where maybe you would have a little more fluidity because everybody we were asking was a Republican voter, here you have half of the sample basically is already inclined to like be rooting for Joe Biden. And a lot of them still gave him a very poor grade. So there's really no question that Americans thought his debate performance was pretty terrible. And other polls that have come out since the debate corroborate that.
To put a finer point on that in that poll, over 70 percent of likely voters who watched the debate said that Biden's performance was either terrible or poor, whereas just over 30 percent said the same for Trump. Yeah, exactly. Those numbers, when we asked like outright, who do you think did better? 60 percent said Trump. Twenty one percent said Biden.
Tia, what other data are you picking up on in terms of judging how this all went for Biden and Democrats? 49% of Democrats thought Biden won, which is not even half. So that's not a great signal for Biden on how Democrats felt about his performance.
Viewers really seem to be paying the most attention to Biden's sort of verbal stumbles and not necessarily the substance of the debate. We saw that in their views on the issues and how the debate addressed the issues. We asked how they thought the debate addressed things ranging from the top issue priorities like economy, immigration, abortion, and also things like Trump's indictments and both candidates' fitness for office.
And I think the top number for those, as far as watchers saying the debate did a good job of addressing any of those issues, was 25 percent. And that was actually candidates' fitness for office. On all of the other issue topics, it was less than a quarter of watchers thought that the debate did a good job addressing those items. And that was also reflected in a similar question on those same sort of topics.
how much do you trust Trump or Biden to address each of those? There was really not that much movement. There's a little bit of movement toward Trump, which makes sense given his better performance. But there wasn't a ton of movement there. And I think voters really their main takeaway was just that Biden had a poor performance as far as his delivery, potentially also substance. But delivery was really the focus here.
Yeah, we talked on the late night Thursday night reaction podcast about like basically we knew that Biden did terribly in the debate. The only question was and potentially his saving grace was our voters so dug in slash maybe did enough people not see the debate that it's not going to matter all that much electorally and are not.
Ipsos poll did seem to bear that out. There was not a lot of movement on the question of which candidate are you considering supporting. Other polls have come out that have shown small movements toward Trump in the wake of the debate, but not something huge. That said, of course, it's basically a tied race, or it was, and now...
The two-point movement, say, toward Trump is something that would significantly increase his odds of winning the presidency. But, of course, we also – it's still relatively early. We don't have a ton of data on the head-to-head shifts, so we are going to have to wait. But what we're seeing so far does not look good for Biden.
Yeah, Nathaniel, to your point, I think there's a lot of numbers we can start looking at to try to get a sense of where things are headed. I mean, in our averages, the 538 averages, we've seen it move from about a tie race to Trump plus a point and a half or so. Obviously, our average is a bit more slow moving. So if you only look at
polls that have come out since the debate and don't average them with the polls that were from pre-debate, you see more like a Trump plus three national race, which of course we know from the forecast and history that
Republicans have an electoral college advantage. And so a three-point race nationally could look more like four points or maybe even more in some of the northern battleground states. And, you know, if we were to shift the southern battleground states like Arizona, Nevada, North Carolina and Georgia, three percentage points, we would see, you know, close to a 10 percentage point lead in some of those states. There are questions about the durability of any ships that we see.
And I think more than anything, we just need a bit more time. Like in general, I think we advise take a week, you know, before you can really tell how much the head to head shifts have been priced in and polls. A lot of pollsters are still out in the field. Although I would also caution that this may not be ever an answerable question because we are about to get a lot of news.
So next week, in all likelihood, we are probably going to get Trump's running mate decision. Well, we just got news this morning. Now it's even muddled by the Supreme Court ruling. Right. That's a great point. Exactly. And then we're also going to have his sentencing on July 11th. We're going to have the RNC starting on July 15th. And of course, that usually produces a convention bounce. So there could potentially be a lot of polling movement for a lot of different reasons over the next few weeks. Caution is warranted.
Head-to-head polling is one thing, and this election is obviously what we spend a lot of time covering. But there's another question here, which maybe gets more at how Americans feel about our current leadership, how Americans feel about the country, which is how did Americans just broadly react to Biden's performance? Not when they're thinking about will they vote for Biden or Trump, but when they think about who they have as a president today, Tia.
Some of the more telling numbers there on how Biden performed were not just on what he said or how he did in the debate, but actually their perceptions of how qualified he is for office based on his age, based on his mental capacity. We saw a CBS YouGov poll that found the share of Democrats who said Biden should not run for office. Again, that's not the same as I won't vote for Biden. That's he probably shouldn't have run, jumped from 36 to 46 percent since February.
So that's a 10 point change in how Democrats specifically feel about their candidate. And then we also asked a similar question in our poll with Ipsos, where we asked voters what they thought about both candidates fitness to serve based on mental fitness and their physical fitness performance.
And Biden saw drops in both of those categories, while Trump saw slight increases. One thing that I thought was interesting was that Ipsos took a deeper look at those numbers, and they saw the drop-off came even more steeply among Democrats than among voters as a whole, and also among Black respondents to this survey. So those are obviously problematic for Biden. Yeah, Tia, to the point about that CBS poll that you mentioned earlier with YouGov,
From early June to now, after the debate, the percentage of Americans, overall Americans, not just Democrats, Americans overall that say Biden does not have the mental or cognitive health to serve as president. It was 65 percent in mid-June. Now it's 72 percent.
And I have to think that that permeates all kinds of perceptions about the country, the economy. It's like, you know, we're always asking, you know, why? Why is there this gap between Biden's approval and how the economy is performing or between, you know, the unemployment rate, et cetera, et cetera, et cetera. And if Americans, broadly speaking, almost three quarters of Americans just don't think their president has the mental or physical capacity to do his job, then
Then in some ways, those questions are maybe besides the point, because obviously, in the United States, the presidency is built as a very powerful position that has a lot of also sort of cultural significance. And so people think about that person as you know, do they seem like a leader? Are they being a leader? Not just what does my bank statement look like? I would have to think Nathaniel.
I think that's true. I think they feed into each other, but I actually think probably the causality runs mostly the other direction. I think people generally are unhappy with the way things are going in the country and then look at Biden and say, well, no wonder things are going so badly in this country. This guy doesn't have it.
I think if things were going fantastically with the economy and like all metrics even, I know that in some ways it's going well. But like if prices were just the same as they were in 2019 and it was a golden age for America in every way and there were no international wars and everything like that, I think people would be perceiving Biden's age a little differently and perhaps more sympathetically.
Okay, having discussed some of that data, it seems unambiguous. The American public, not just the pundits, think that Joe Biden did poorly as a result, and building on views they already had, don't see him as fit for the presidency when it comes to mental or physical fitness. Now, of course, all eyes turn to Democrats, the party, the leadership, the lawmakers, and the Biden campaign in terms of how they're going to react to all of this.
Nathaniel, you said Thursday night that you didn't think that Biden would be replaced. Has your thinking changed at all on that question since Thursday? No, it hasn't. I think this obviously is going to be a maybe not a long term discussion, but a medium term discussion.
I don't think he's going to make a hasty decision. And even in this case, I think even taking a weekend would be hasty and decide that he's going to drop out. I think if it's going to happen, it's going to be something that builds over the course of maybe a couple of weeks, a few weeks. And so we are going to have to wait and see to some extent. Obviously, a lot of Democrats are publicly saying, no, he's our guy. You know, one debate performance doesn't change that. Biden himself and the White House are saying, no, of course, he's not going to drop out.
I also don't put a lot of stock in that. As folks who listen to this podcast know, I don't think he will drop out. But what is he going to say? Is he going to say, yeah, we're thinking about dropping out? Like, that would be a huge media storm. And it's always the case. We saw this in the Republican presidential primaries, right? Candidates are like, yeah, we are staying in this race. We are going to win it right up until the moment that they say, no, actually, we're dropping out. So I just wouldn't put a lot of stock in any public statements that people are making right now.
Tia, you have covered Congress for a long time. What do you make of how lawmakers are reacting at this point or what pressures Biden might feel from lawmakers?
Yeah, I think that we've seen a lot of coverage of congressional Democrats and their so-called panic and people just swarming Democrats in the halls of Congress to try to get their takes. We've seen stories of people ducking into elevators, pretending to take calls. The vibe is a little bit like, oh, I didn't see his tweet. I mean, no one has flat out said, you know, from the Trump era, no one has flat out said, I didn't watch the debate. But the vibes are not dissimilar.
But, yeah, we saw a lot of statements from Democrats who have been defending Biden. We've seen a lot of no comments. And we have seen a few statements from some lawmakers who were a little bit more seemingly open to the discussion of should Biden be replaced. One that caught my eye was.
From Congressman Raskin, who obviously is a sort of long-tenured leader in the Democratic Party, he said the party is having serious conversations about if Biden should be the nominee. He definitely did not state his opinion on whether Biden should be the nominee. But he did emphasize that regardless of who the candidate is, Biden is sort of the key figure in the party and the person to lead the party forward and still the head of the party. So,
I think that like many things in Congress, it will blow over. Wait, wait, wait, wait. Hold on. Tia, Tia, you think this is going to blow over? Aren't there a lot of opportunities for Joe Biden to be old in public between now and November 5th? And this question will just keep coming back to lawmakers again and again and again and
Similar to, as I already said, what we saw between, you know, Republicans on the press during the Trump era, where it was constantly like, did you see this tweet? Did you see this behavior? Do you think this is presidential? Do you think this person is fit to serve as president? And again, not just president today, but president for plus years from now.
blow over? Yeah, I mean, I guess I specifically was referring to the talk about whether congressional Democrats are going to explicitly call for Biden to step down. I think that, no, the issue of Biden's age is not going to blow over. We've seen that throughout the campaign. Obviously, you're right that Republicans are going to take any opportunity they can to bring it up again.
But for the same reasons that I think many people have stated, it is not particularly likely right now that Biden's going to suddenly bow out of the race. So I don't think that we're going to see a rush of Democrats calling for him to to bow out. Because there's no benefits to doing it. Like, basically, they don't want to be seen as pushing Biden out. If Biden wants to get out, he'll get out on his own because that's
Otherwise, the optics look bad or maybe he digs his heels in or whatever. And then also there are incentives to be a party player. Like if he doesn't get out and you're the one person who called for him to get out and say he wins, you're in a bad spot from 2025 onward, potentially. Nathaniel, do you have anything else to say about these congressional machinations as our swamp correspondent? No.
I believe that's part of my official title on my business cards, Swamp Correspondent 538. Yeah, I think this is going to be in the air for a while. Again, kind of going back to what I said, the news events of July, other than, I guess, Trump's sentencing and I suppose things that we can't predict, are
are generally going to be good for Trump. And I think that by the end of July, you could have a situation where he is significantly up in the polls and that basically you're going to have an inverse function between
between pressure on congressional and other elite Democrats to do or say something versus Trump standing in the polls. And that, I feel like, might not reach its height until end of July. Plus, there are going to be other pressures, like if they are going to switch to Kamala Harris, say, she's going to have to pick a running mate, and that's something that they would want to have happen probably before the convention. So yeah, like late July, early August is kind of the sweet spot.
So just to wrap up here on that point, we've been tracking the online bettors over at Predict It. Currently, Joe Biden's chances, according to the Scottish teens for being the Democratic nominee, are 62 percent. That's not all that different from where we left things Thursday night when we talked.
But to that conversation, there's now been polling on some alternatives to come out since the debate. And one in particular was from Data for Progress, where they look at how folks like Harris, Buttigieg, Booker, Newsom, Whitmer, Klobuchar, Shapiro and Pritzker would do against Trump. They find that while there are more undecided voters, when you match those two, you know,
in this poll, Trump leads by three points against Biden, and he leads by three points against basically everyone else as well. What should folks make of that kind of a poll? Does it mean that switching to an alternative wouldn't make Democrats any more electable? What do you take away from that?
First of all, and we can talk about this, but if it's not Biden, it's going to be Kamala Harris for several reasons. So the rest of them are somewhat irrelevant, I think. But no, I don't really think this is a great argument for the Biden campaign because it also, I don't know, more undecideds. Isn't that good? Normally, you would expect...
You would actually expect probably Trump to be doing better against these candidates who aren't as well-known because people know who Trump is and theoretically have made up their mind about Trump, whereas they have a lot to learn about Gretchen Whitmer or whatever still. And she would theoretically have room to grow. And this is what happens in a kind of quote-unquote typical presidential election where you have an incumbent. Trump's not the incumbent, but he has some traits of an incumbent.
such as being well-known. You have an incumbent, and then you have a challenger who needs to introduce themselves to the American public, and that is often why the first debate is good for a challenger. They introduce themselves, and conventions are important, et cetera, et cetera. In this case, Trump actually loses a little bit of ground when he matched up against Gretchen Whitmer from when he's matched up against Biden, which suggests to me that some people are supporting Trump
because he's facing Biden and would be open to switching their vote if Gretchen Whitmer or somebody else were the nominee. And so, like, obviously, Whitmer or Warnock or whoever those alternatives are aren't going to get all of those undecided people. But it's interesting to me. That said, I will also say, like, it's just really hard to get
data on these counterfactuals because there is so much that would have to happen between point A and point B to get to that point where Gretchen Whitmer or whatever is nominated, including passing over Kamala Harris, which would be a problem. But even to get to the point where Kamala Harris is nominated, there would be a lot of drama in the Democratic Party and without the Democratic Party.
So it is hard to say, but I don't think that the data is really strongly supporting either side's argument. But I think there is a strong theoretical case you can make for replacing Biden, and the data is not inconsistent with that. All right. We're going to leave things there for today. Very much to be continued. Thank you, Nathaniel and Tia. Thanks, Galen. Thanks for having us, Galen.
My name is Galen Druk. Our producers are Shane McKeon and Cameron Tretavian, and our intern is Jayla Everett. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we'll see you soon.