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    ‘Two men three years apart’: Democrats highlight Trump’s mental lapses after Biden report

    The special counsel Robert Hur’s contention that Joe Biden suffers from memory problems caused by advanced age prompted delight among the president’s Republican opponents – and pushback from Democrats pointing out how often Donald Trump has his own lapses, and how dangerous they are to the country.Speaking on MSNBC amid shockwaves from the release of Hur’s report on Biden’s retention of classified information after his time as a senator and as vice-president, Jen Psaki, Biden’s first White House press secretary, emphasised: “The choice in all likelihood here is going to be between two men who are three years apart.”Already the oldest president ever, Biden is 81 and would be 86 at the end of a second term. Trump, the probable Republican presidential nominee this year, will turn 78 in June.Biden’s gaffes – including calling the president of Egypt the president of Mexico in the same Thursday remarks in which he angrily attacked Hur – are relentlessly scrutinised.To some extent, so are those of Trump – who recently confused Viktor Orbán, prime minister of Hungary, with Recep Tayyip Erdoğan, president of Turkey. He also confused Nikki Haley, his last remaining rival for the Republican nomination, with Nancy Pelosi, the Democratic House speaker when Trump sent a mob to attack Congress on 6 January 2021.But despite Trump’s frequent mistakes, polling has consistently shown that more Americans think Biden is too old than think the same about Trump.This week, before the release of Hur’s report, the progressive political strategist Rachel Bitecofer said: “Polling data consistently shows that its Biden, not Trump, voters perceive as having mental decline. No, REALLY. The reason is, Republicans have been pounding that false narrative hard since 2020 using [Biden’s] stuttering clips. We need CONSTANT coverage of Trump’s decline across all media outlets to fix that.”On Thursday, Psaki said Biden and Trump “are both older than I would think a lot of people in the public would like … [but] the choice is ultimately going to be between somebody who – in the Biden campaign, this is what they’ll argue – was guilty of trying to overturn the election, overturn the will of voters, and somebody who was not. And they’re three years apart.“People have concern about age, have concern about whether Biden’s up to the job … There is an element of that that has existed for years, and some of it was pushed by the right wing effectively … despite the fact that Trump is only a little bit younger.”The Biden campaign, Psaki added, “need[s] to figure out ways to address that, including having him out in the country, having him out on the trail”.Psaki’s host, Katy Tur, responded: “I covered Donald Trump really closely [in 2016] and when I see him now, he is a lot different than he was eight years ago. He is not the same candidate that he was.”That seems evident to most observers – and the issue has not been absent from the Republican primary.skip past newsletter promotionafter newsletter promotionHaley, who made a call for age limits for public office a central plank of her campaign, has said Trump is “just not at the same level” as he was while president.“Are we really gonna go into a situation where we have wars around the world and we’re trying to prevent war, and we’re gonna have someone who we can or can’t be sure that they’re gonna get confused?” the 51-year-old former South Carolina governor and UN ambassador told CBS last month.At a New Hampshire rally, she added: “Do we really want to go into an election with two fellas that are gonna be president in their 80s? And that’s not ageism that I’m saying here … when you’re dealing with the pressures of a presidency, we can’t have someone else that we question whether they’re mentally fit to do this.”Trump himself has addressed the subject – if by inviting widespread mockery with boasts about acing basic cognitive tests while in the White House.In New Hampshire last month, Trump told supporters: “I think it was 35, 30 questions. They always show you the first one, like a giraffe, a tiger, or this, or that – a whale. ‘Which one is the whale?’ OK. And that goes on for three or four [questions] and then it gets harder and harder and harder.”The Canadian creator of the test in question, the Montreal Cognitive Assessment, told the Washington Post it had never included a drawing of a whale.For the Biden campaign, and for Democrats in general, the challenge now is to get more Americans to read such stories. More

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    Democrats work on damage control after Biden’s fiery surprise speech

    Democrats and their allies were shaping a damage control response on Friday to a hastily organized White House press call the night before that appeared to fall short in its mission to reassure voters about Joe Biden’s mental acuity after it was harshly questioned in a prosecutor’s report about his having kept classified documents at the end of his vice-presidency.Biden already said that his interview with the special counsel Robert Hur last October – in which he was reported to have forgotten the year his son Beau died and precisely when he had been vice-president – came in the days straight after Hamas attacked southern Israel, when Biden was preoccupied with the US response.Hur’s report concluded on Thursday that Biden would not face criminal charges in the case, despite “willfully” retaining and disclosing classified material, which he would not be open to as a sitting president anyway but also would not be warranted even if he was no longer president.But Hur then went on to describe at length how he found the US president’s memory to be failing, prompting anger from Biden and, in the following hours and into Friday, Democrats and aides to come to his defense.“The way that the president’s demeanor in that report was characterized could not be more wrong on the facts and clearly politically motivated,” Kamala Harris told MSNBC on Friday.The vice-president slammed claims of Biden’s failing mental acuity made in the 388-pages report as “gratuitous, inaccurate and inappropriate”.Earlier, Democratic Senator Tammy Baldwin from the crucial swing state of Wisconsin addressed the conclusions by special counsel Robert Hur that the 81-year-old president’s recall was “significantly limited”, and that Hur would not bring charges over classified documents in part because jurors would see the US president not as a willful criminal but as a “well-meaning, elderly man with a poor memory”.“I judge a president on what they’ve done and whose side they’re on,” Baldwin told the Milwaukee Journal Sentinel. She pointed to Biden’s “strong record of creating good-paying jobs, rebuilding our infrastructure, and lowering prescription drug prices”.Tommy Vietor, a former Obama administration staffer, wrote on X that the prosecutor’s comments were “just a rightwing hit job from within Biden’s own DOJ. Wild.”On MSNBC, which often previews the Democratic party line, the host Joe Scarborough addressed the conclusions by the special counsel that the president’s recall was “significantly limited” and he would not bring charges over classified documents in part because jurors would see Biden as a “well-meaning, elderly man with a poor memory”, not a criminal.“So bizarre,” Scarborough said. “Why in the world would [Hur] put his neurological assessment of Joe Biden in his report, and why would [US attorney general] Merrick Garland release garbage like that in a justice department report?”Dan Goldman, the Democratic congressman from New York, told the station that he did not have “any concerns” about Biden’s age or ability. “Remember, the job of the president is to guide our country. It is not to be a cheerleader for the United States. It is to govern our country,” he said.Referring to missing Hillary Clinton emails that became an issue on the eve of the 2016 election, Scarborough added: “It sure sounds like James Comey in 2016 when he couldn’t indict Hillary Clinton legally so he indicted her politically.”Vietor echoed that line, claiming Hur had “clearly decided to go down the Jim Comey path of filling his report absolving Biden of criminal activity with ad hominem attacks”.The long-shot Democratic primary challenger Dean Phillips, who is campaigning against Biden, said Hur’s report had “all but handed the 2024 election to Donald Trump”.skip past newsletter promotionafter newsletter promotion“The report simply affirms what most Americans already know, that the President cannot continue to serve as our Commander-in-Chief beyond his term ending January 20, 2025,” Phillips said in a statement.Behind closed doors, some Democrats expressed mounting concerns about a re-election narrative that focuses on Biden’s age. “It’s a nightmare,” a Democratic House member reportedly told NBC News. “It weakens President Biden electorally, and Donald Trump would be a disaster and an authoritarian.”“For Democrats, we’re in a grim situation,” the anonymous source reportedly added.Biden hit back at Hur’s characterization of his mental condition during a surprise press conference at the White House on Thursday evening. The president maintained that his memory was “just fine” and in a tense exchange said “I know what the hell I’m doing” and that remarks about his memory had “no place in this report”.“My memory is fine,” Biden said. “Take a look at what I’ve done since I’ve become president.”“For any extraneous commentary, they don’t know what they’re talking about,” he added. “It has no place in this report.”At the end of the interview, he referred to Egypt’s president, Abdel Fattah el-Sisi, as the “president of Mexico” in a response to a reporter’s query about the current situation in the Middle East. The error came after two other public gaffes this week in which Biden claimed to have spoken recently with two long-dead European leaders, Germany’s Helmut Kohl and France’s François Mitterrand.Polling has consistently shown that concerns about Biden’s age are seen as his greatest political liability in a rematch with Donald Trump.A poll by NBC News last month found that 76% of voters had major or moderate concerns when asked whether Biden has “the necessary mental and physical health to be president for a second term”. Asked the same question about the 77-year-old Trump, 48% said they had major or moderate concerns. More

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    Hospitalized lawmakers showing up for last-minute votes? Not as rare as you’d think

    The US House of Representatives was on edge on Tuesday night: would the homeland security secretary, Alejandro Mayorkas, be impeached? The Republicans’ mission looked likely to succeed, just barely, when a lone Democrat in a wheelchair and a hospital outfit emerged and put a stop to it.That man was Al Green – not that Al Green, but a representative from Texas who’d taken an Uber from the hospital to make his views known. In a line perfectly tailored to a scene the New York Times compared to a political thriller, Green told the paper: “I came because it was personal.” He had undergone emergency abdominal surgery days before and was back in his hospital bed when he spoke to the reporter, Kayla Guo.It’s not the first time the US Capitol has played host to such a dramatic vote. Lawmakers have always had to balance their physical health with the demands of the job – and on occasions from the passage of the Civil Rights Act to the near-death of Obamacare, the results have been momentous.Green was the latest politician to make such a memorable entrance. “I had to cast this vote because this is a good, decent man whose reputation should not be besmirched,” he said of Mayorkas, who Republicans, in a partisan effort, accused of purposely failing to enforce immigration laws. Signs suggest they may attempt the process again – but for now, Green’s last-minute rush to the chamber prevented the first impeachment of a cabinet member since 1876.A comparable moment in recent memory came in 2017. After he was diagnosed with brain cancer, John McCain returned to the Senate to weigh in on the future of the Affordable Care Act, AKA Obamacare, travelling across the country from his home in Arizona. And that wasn’t the most surprising part: with Republicans only slightly outnumbering Democrats in the Senate, 52-48, there was little wiggle room in their effort to undo the health law.McCain’s return could have helped his party undermine legislation that members had been whining about for almost a decade – and which McCain himself opposed. But his views on the “skinny” repeal were more complicated. On 25 July, he voted to begin debate on the bill but expressed his reservations about it, calling it a “shell of a bill” and condemning the process that created it.A few nights later, with a scar over his left eyebrow, he told reporters to “wait for the show”. When it came time to vote, he gave a thumbs down, casting a decisive vote that salvaged the healthcare reform he had campaigned against; gasps could be heard in the chamber. “I was thanked for my vote by Democratic friends more profusely than I should have been for helping save Obamacare,” he later wrote. “That had not been my goal.” Still, the healthcare act lived on.Another historic piece of US legislation, the Civil Rights Act, benefited from the heroics of a single lawmaker in poor health. In 1964, the law had passed the House and was facing a Senate vote – but 18 senators were determined to filibuster it. Senator Richard Russell, a Georgia Democrat, said he and his allies would “resist to the bitter end” efforts “to bring about social equality” in the south. The chamber needed 67 votes to end the filibuster, and Senator Clair Engle, a California Democrat, was in the hospital with a brain tumor.View image in fullscreenOn the day of the vote, as Colin Son recounted in the journal Neurosurgical Focus, an ambulance carried Engle to the chamber. In a wheelchair, he struggled to speak; instead, he pointed to his eye, mouthing the word “aye”. Some colleagues were said to be in tears. The vote counted, and the measure passed, allowing the bill to move forward. Engle returned to the chamber for the last time nine days later, on 19 June, when the Senate passed the Civil Rights Act.Other instances of rushed trips to the Capitol have had somewhat lower stakes. In 1985, for instance, Pete Wilson of California arrived in the Senate in a wheelchair and a bathrobe at 1.32am after getting his appendix out. According to a Times report, he asked colleagues: “What was the question?” and then voted to pass Ronald Reagan’s 1986 budget, prompting cheers. And across the ocean, Westminster has seen its share of politicians overcoming illness to cast votes: in 2018, for instance, the Labour MP Naz Shah discharged herself from a hospital and traveled four hours to London for a vote on a Brexit amendment. “I was standing next to Laura Pidcock [the Labour MP for North West Durham], who is eight months pregnant and in agony,” she told the Guardian at the time.Shah called the voting process archaic; similar arguments have been made about the US system. Last year, several House Democrats introduced a bill to allow voting by proxy, which was permitted early in the pandemic but shut down when Republicans took control of the House. “Of course we’re going to try to get here no matter what, but we have medical emergencies, just like our constituents do,” Representative Deborah Ross told CQ Roll Call.Then again, some perfectly healthy US lawmakers have done the opposite. On multiple occasions, senators have had to be essentially hauled on to the chamber floor.In 1988, the Senate’s sergeant-at-arms was ordered to arrest no-shows – it was the only way to halt a filibuster. According to the chamber’s official history, he “led a ‘posse of six Capitol police officers’ in a post-midnight search” of their offices. Senator Robert Packwood, an Oregon Republican, had jammed a chair against his door, but officers finally managed to get him to the chamber.“By prearrangement, Senator Packwood collapsed into the arms of the officers who then transported him feet-first into the Chamber,” the history says. “On his feet again, he announced: ‘I did not come fully voluntarily.’” More

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    Special counsel report on Biden a ‘partisan hit job’, Democrats say

    Joe Biden, senior aides and political observers strongly criticised the special counsel, Robert Hur, for extensively discussing the president’s age and allegedly fading memory in his report on Biden’s retention of classified information from his time as a senator and as vice-president – which did not produce an indictment.Hur, who Donald Trump appointed US attorney for Maryland, “could not refrain from investigative excess”, said Bob Bauer, Biden’s personal counsel.Though this was “perhaps unsurprising given the intense pressures of the current political environment”, Bauer added, the final report “flouts Department [of Justice] regulations and norms”.Others raised the spectre of James Comey, the FBI director who in 2016 investigated Hillary Clinton over her use of private email in office. Declining to indict, Comey chose instead to publicly cast doubt on Clinton’s character, an act widely held to have helped tip the election to Trump.Speaking to Politico, an unnamed top Biden campaign official said Hur’s report “felt like a Comey moment”, as the special counsel had put his “thumb on the scale during an election season”.Dan Pfeiffer, a Barack Obama adviser turned commentator, called Hur’s report “a partisan hit job”.The oldest US president ever, Biden is now 81 and would be 86 by the end of a second term. Polling shows most Americans think he is too old.In late 2022, as Trump faced his own special counsel investigation regarding retention of classified information, Biden was discovered to have retained materials from his time as a senator from Delaware and as vice-president to Obama.Hur was appointed special counsel by Merrick Garland, the US attorney general. Then in private practice but also a former principal associate deputy attorney general, Hur was described by Andrew McCabe, a former FBI deputy director, as a “well-informed, industrious, hard-working guy”.A little over a year later, on Thursday, Hur issued his 388-page report.Biden’s memory “appeared to have significant limitations”, it said, also suggesting Biden would appear to any jury as “a well-meaning, elderly man with a poor memory”.“He did not remember when he was vice-president, forgetting on the first day of the interview when his term ended … and forgetting on the second day of the interview when his term began,” Hur wrote.“He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him.”Trump – the probable Republican presidential nominee who at 77 faces his own doubts about mental fitness, even if fewer Americans say he is too old – seized on Hur’s report, particularly in the context of his own problems regarding classified records, the subject of 40 of 91 criminal charges across four cases.Some Trump allies called for the use of the 25th amendment to the US constitution, providing for the removal of a president deemed incapable.Biden reacted furiously. Regarding the claim he couldn’t remember the year (2015) of the death of his older son, the former Delaware attorney general Beau Biden, the president said: “How in the hell dare [Hur] raise that. Frankly … I thought to myself it wasn’t any of their damn business. I don’t need anyone to remind me when he passed away.“The simple truth is, I sat for a five-hour interview over two days of events going back 40 years. At the same time, I was managing an international crisis [the Hamas attacks on Israel on 7 October].“I’m well-meaning and I’m an elderly man and I know what the hell I’m doing. I’ve been president and I put this country back on its feet. I don’t need his recommendation.”skip past newsletter promotionafter newsletter promotionHur’s “extraneous commentary” had “no place in this report”, Biden added.Bauer elaborated: “The [DoJ] inspector general observed only a few years ago that high-profile investigations, such as those of a president, may be ‘subject to scrutiny not typical of the average criminal case, but that does not provide a basis for violating well-established department norms, and, essentially, ‘trashing’ the subject of an investigation’ with extraneous, unfounded and irrelevant critical commentary.“The inspector general added that it ‘violate[s] long-standing department practice and protocol’ to ‘criticise uncharged conduct’. The special counsel report fails that test as well.”Hur, Bauer said, “had no choice but to find that criminal charges were not warranted. He had other choices, which should have been guided by the department’s rules, policies, and practices, and he made the wrong ones.”The MSNBC host Joe Scarborough, an ex-Republican congressman, accused Hur of “irrelevant … politically charged, Trump-like ramblings”.“It sure sounds like James Comey, who couldn’t indict Hillary Clinton illegally so he decided to hold a press conference and indict her politically.”In his Message Box newsletter, Pfeiffer said the report was “very bad and poses some real political peril”.But he added: “Robert Hur is described in press reports as a ‘well-respected US attorney’ – and maybe he once was. But this report is a partisan hit job. He swerves out of his lane to drive a negative narrative about Biden, the same message the Republican party uses against Biden … generously describ[ing] memory lapses from others but hammer[ing] Biden for the same.“It’s hard to read the report and not think that, without the ability to charge Biden with a crime, Hur wanted to damage him politically.”Pfeiffer added: “If Biden acts like Hur says, we would all know. Biden meets with dozens of people daily … if [he] was regularly misremembering … or making other mistakes that suggested he was not up to the job, it would be in the press. Washington is not capable of keeping something like that secret.”Speaking to Politico, the unnamed Biden official said the campaign would seek to portray Hur as “a Maga guy”, meaning a Trump loyalist, but acknowledged that public perceptions about the president’s age persist.“The fact that he’s a senior citizen is not going to go away,” the Biden official said. More

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    Trump is too old and incited a coup. Biden is too old and mixes up names. America, how to choose? | Marina Hyde

    To the US, where one likely candidate for the presidency delivers hour-long rambling speeches in which he explains that he’s going to be a dictator, but all the chat is about whether the other candidate has lost his marbles. And yes, let me pre-emptively apologise, because I can already tell that we will only be on about the third paragraph of this column before I have exhausted the Guardian’s approved list of euphemisms for being a couple of world leaders’ names short of a full set.Anyway, our business today is with the president, Joe Biden, who called an impromptu press conference on Thursday night in which he hotly insisted that his memory was just fine. The occasion was the publication of a justice department report that cleared Biden of criminal charges over his handling of highly classified materials. This year-long investigation was carried out by special counsel Robert Hur, who happens to be a registered Republican, and whose report specifically mentions the president’s “significantly limited” memory. Mr Hur says that part of the reason he didn’t bring charges was that “at trial, Mr Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” Oh dear. A real muffin-basket of an attack-line gifted to Donald Trump there, and confirmation of my long-held conviction that fake sympathy is far deadlier a tone than open attack.Biden had almost left the stage last night when he returned to the podium to take a question on the Israel-Gaza conflict, in which he unfortunately referred to the Egyptian leader Abdel Fattah el-Sisi as “the Mexican president”. On the one hand, this was always going to happen just at the moment he was insisting his memory was great, just as it is a truth universally acknowledged that people correcting someone else’s grammar or spelling will normally involuntarily commit some howler of their own in the process. Call it the pedants’ curse – or indeed, the pedant’s curse.On the other hand … oh dear. According to polling, Biden’s age and cognitive glitches are his biggest vulnerability with voters. As for his likely opponent, for my armchair diagnosis, the most terrifying thing about Donald Trump is that he is completely sane (unless you count advanced narcissism, which I suppose we have to these days). But Trump is a mere three years younger than Biden, often walks with a wobble, and himself recently confused Nikki Haley with Nancy Pelosi in a rant. So is it fair that the one should face infinitely more scrutiny on the lost-plot front than the other?Alas, fairness isn’t one of the base notes of political life. I’m afraid we could be dealing with Ye Olde Vibes Theory of Politics (est 2022), which holds that the feels-based way in which a politician presents is more important than such trivialities as the facts or their record. Listen – I don’t make the rules. But during the first 2022 Conservative leadership contest in the UK, remainer Liz Truss presented as more Brexity to the party grassroots than leaver Rishi Sunak. Why? Vibes. Just … vibes.The vibes on Biden’s seniority are not great. Yes, he has led his country’s exceptional and internationally envied economic recovery from the pandemic, so the large rational part of me judges that unfair. But another part of me, perhaps the irrational, can no longer watch any Biden speech or address without picturing his aides also watching backstage, mainlining cortisol, every fibre of their brace-positioned beings willing him to get over the line without making any unforced errors – and to then exit the stage without trying to use a flag as a door.I’m sure this is complete fantasy and the only cortisol levels going through the roof are my own. Nevertheless: vibes. Can’t fight ’em. I remember my heart feeling similarly in my mouth during the aforementioned Tory leadership contest when runaway favourite Truss walked the wrong way off stage after her campaign launch. Did I think Liz Truss literally wasn’t even up to finding her way off a stage? Of course not. Rationally, I knew it was just a silly mistake, of the sort that all of us make every day. At the same time, the irrational half of me felt the satisfying click of the right key turning in the lock. I knew that Liz Truss metaphorically wasn’t even up to finding her way off a stage. There was some kind of ineffable psychological truth to it all that was far more powerful than the facts.As someone who believes the likely Republican candidate is hideously, overwhelmingly worse, I fear that Joe Biden is gearing up for a gruelling election at precisely this vibes-based disadvantage. Both he and Trump are at the stage of life when sensible ordinary people find the strength to turn to their families and ask: be honest, should I still be driving? Yet Trump’s great power is defying rationality, like some dark lord of the vibes. He is possessed of a mesmerising ability to make every single thing feel like it is playing into his hands, which is why we now all watch news reports of various criminal charges being brought against him and go, “Oh this’ll play well for him”. Will it? And if so, why should it? Who really knows, but the vibes say so.After the last time I touched on the gerontocracy in these pages, the Guardian printed three letters from older male readers under the headline, What’s age got to do with it, Marina Hyde? Ageism was mentioned, with one of the correspondents advancing details of how he spent his days, as an argument against what we might kindly have termed my own argument about when big hitters should leave the professional stage. Now, no one more than me welcomes a good bollocking on the letters page, and all the three men were very nice about the rest of my output. Thank you!However. At the risk of drawing further correspondence, I feel I still have to hold to the position that being president of the United States is not the same as “writing, teaching, and volunteering in a residential home”, and is a job for a younger man than either Biden and Trump. Not a younger woman, of course – that would be genuinely insane in the strictest clinical sense of the term. But younger than 86 at conclusion of office. So I end this column with a challenge: if any readers of this newspaper are able to get to the end of the lengthy forthcoming US election campaign and think it showcased a vibrant, healthy and sprightly democracy, then I urge them to write in on 6 November, and suggest mandatory retirement for me.
    Marina Hyde is a Guardian columnist More

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    US supreme court justices have strange views on whether Trump is disqualified | Moira Donegan

    Elena Kagan once referred to Jonathan Mitchell sarcastically as “some genius”. That was in oral arguments surrounding SB8, the bounty-hunter abortion ban that Texas succeeded in passing before the overturn of Roe v Wade, which Mitchell wrote, pioneering a cockamamie scheme for evading judicial review.Mitchell, a far-right lawyer currently vying for a spot in the second Trump administration, is a fan of this kind of bald, legal bad faith: you can’t quite call him duplicitous, because he never quite pretends that the law really leads him to the conclusions he’d like to reach. He’s more about coming up with novel legal schemes to get to his desired outcome and trusting that the federal judiciary, captured as it is by Federalist Society acolytes and wingnut cranks, will go along with him because they share his political proclivities.That’s what worked for him with SB8: the supreme court allowed Texas’s abortion ban to go into effect long before Dobbs: not because Mitchell made a convincing argument, but because he offered them an opportunity to do what they wanted to do anyway.Something similar happened in Thursday’s oral arguments in Trump v Anderson, a question about whether Donald Trump is disqualified from holding federal office under section three of the 14th amendment.The case reached the supreme court after a Colorado court found that Trump’s actions on January 6 disqualified him. The court wanted to disagree and was desperate to find a way to restore Trump to the Colorado ballot without addressing the underlying question of whether Trump committed an insurrection or not. Mitchell, Trump’s lawyer, gave them very little help: he gave a shoulder-shrugging argument to the justices, after filing a bizarre and strained brief that primarily focused on the absurd claim that the president is not an “officer.” Left to their own devices, the justices went fishing, looking for an argument that could plausibly allow them to exit the case, since Mitchell did not provide them one.The winning entry came from Justice Samuel Alito, who first offered the suggestion that a state like Colorado did not have the authority to enforce section three of the 14th amendment without congressional permission. The rest of the justices seemed to like the sound of that and were soon all asking questions about the scope of state authority over the administration of federal elections.It was a bit of an odd argument: the court recently came close to embracing a much more wide-reaching vision of the authority of state legislatures to govern federal elections in their borders, in its address of a rightwing legal curiosity called the “independent state legislature theory”. And the notion that section three of the 14th amendment requires congressional action to go into effect is on its own peculiar: no other section of the amendment has been found to require such instigating legislation from Congress, and the language of the amendment itself suggests that the disqualification of onetime insurrectionists is something that Congress has to act to turn off, but not to turn on.It is strange, too, that the court, which in past years has made dramatic and ruinous changes to American life out of its professed loyalty to our nation’s “history and traditions”, chose to more or less completely ignore the suggestions of history here. The 14th amendment’s section three has seldom been enforced – in part because of the rarity of insurrections – and so there are few impediments to the court’s self-styled originalists delving headfirst into the history of the amendment’s intention and context.But instead the justices chose to dismiss the considerable evidence that the framers of the 14th amendment intended section three to be used precisely to protect the republic from a figure like Trump. They attend themselves instead not to the lessons of the past, but to the incentives of the present.By the end of the arguments, it was clear: what the justices will write will be a 9-0 or 8-1 decision (only Sonia Sotomayor voiced much dissent) saying that section three is not self-enacting, or at any rate that the states cannot enact it themselves. They will have arrived at this conclusion not because the argument was made persuasively or at all by Trump attorney Mitchell – it wasn’t – and not because it is the place where the text compels them to arrive – it isn’t. They will instead have fabricated this reasoning out of whole cloth, because it gets them out of an inconvenient question: the question of whether the constitution’s substantive protections for democracy can withstand the stress Trump applies to them.One point that several of the justices touched on, and which has been taken up by those skeptical of the Colorado case and similar efforts to disqualify Trump from office on 14th amendment grounds, is the notion that his disqualification would be somehow anti-democratic, disenfranchising the people who would like to vote for him and would not get a chance to.But democracy means more than the simple ability to vote; it requires a commitment to constitutional principles – to the limits of an office, to the rights of the minority, to the separation of private and public interests among those in power and to the willingness to place the dignity of the country before the petty preferences of the man who leads it.Trump has no intention of upholding these principles. We know: he tells us all the time. To disqualify him would not be to undermine democracy but to protect it, by averting the seizure of the republic by the man who has been quite frank about his intention to destroy it.Meanwhile, section three of the 14th amendment now seems set to be orphaned – denied its status as self-effecting, curtailed in its enforcement by the states. If section three is still the law, and if insurrectionists are still barred from taking federal office, then how can this law be enforced? And that’s where the court, in its apparent effort to avoid having to take much of a stand on the issue, seems to have planted a loaded gun. Because if states can’t enforce the ban on insurrectionists in office, then only Congress can. And where would Congress do that? At the certification of the electoral votes – on 6 January 2025.
    Moira Donegan is a Guardian US columnist More

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    Who tanked the border bill? – podcast

    Illegal immigration via the US-Mexico border remains one of the most pressing problems for Congress. And yet the much anticipated $118bn border security bill, which included aid packages to Ukraine and Israel, was blocked by senators after a chaotic week.
    Why did this crucial piece of legislation with bipartisan support get rejected by the very people who demanded it? This week, Joan E Greve is joined by Marianna Sotomayor, the congressional reporter for the Washington Post, to discuss why the border bill failed

    How to listen to podcasts: everything you need to know More

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    Donald Trump wins Nevada Republican caucuses in effective one-horse race

    Donald Trump was anointed the victor of Nevada Republican caucuses, after staunch loyalists in the state helped maneuver the election process to assure his success.Shortly after the caucuses concluded, the AP confirmed Trump, who was the only major candidate participating, as the winner, capping off a perplexing election week in a key battleground state. Ryan Binkley, a little-known pastor and businessman from Texas, was the only other candidate running.With Joe Biden having easily secured victory in the Democratic primary on Tuesday, the current and former president are one step closer to a rematch in the November general election. Trump’s victory Tuesday came on the same day that the US supreme court appeared poised to reject a challenge to his candidacy in Colorado over his attempts to subvert the 2020 election results.Nevada’s “first in the west” presidential choice contest is usually a crucial milestone for both major parties. But this year’s primaries were a strange and subdued affair, and sparsely attended – only 16% of registered voters in Nevada participated in the primary.The odd, bifurcated Republican voting system may be partly to blame.The caucuses, which were organized by the state’s GOP, came just two days after the Republican primary in which Nikki Haley, despite being the only candidate on the ballot, trailed behind a “none of these candidates” option. Registered Republicans in the state were eligible to vote in both the caucuses and the primary, but candidates could only compete in one or the other. All of the state’s 26 Republican delegates will be allocated based on the caucus, whereas the primary results are non-binding.For years, Nevada held caucuses – calling on voters from each major party to gather at local sites to debate and then vote for a preferred candidate. But after the last presidential election, lawmakers in the state passed legislation requiring primaries instead, arguing that the more traditional style of voting, either at polling stations or by mail, would make it easier for more people to participate.But state Republicans rejected the change. Although they still held primaries on Tuesday, as required by law, they also held their own caucuses that reflect their party’s efforts to limit voting.Those participating in the caucuses were required to come in person, at specific locations, and bring a photo ID. As voters sardined into a high school in Henderson, Nevada, attendees packed into the gymnasium.“He needs our support – look at the treatment he’s getting ,” said Takashi Tamara, 83, referring to the legal cases against the Trump. He had initially been confused about why Trump’s name wasn’t on the primary ballot on Tuesday, until a volunteer with the local Republican party explained that it was only the caucuses that would count toward the nomination process.As the line of voters outside the school grew, snaking around the corner, some began to leave early. Several voters had been mistaken about which precinct they were supposed to report to. Others were annoyed at the chaos inside the packed gymnasium. Leaders of the caucus effort, which included Trump allies who were indicted for their roles in trying to overturn the 2020 election results, said the process was more secure than the primaries. The claim has been contested by election experts, and voter fraud is exceedingly rare.Media, who had in past elections been allowed to observe both Democratic and Republican caucuses, were being barred from observing inside the caucus location by party officials.“We’ve had really disappointing relationships with the press, we are very defensive as a result,” said Jesse Law, GOP chair for Clark county, which encompasses Las Vegas. Law was one of six Republican electors who signed fake electoral certificates declaring Trump the winner of Nevada in 2020, despite Biden winning the state by more than 30,000 votes, and was indicted for his role in the scheme by a grand jury.Voting experts are unclear on how disinformation about the voting process, and confusion around the dueling primary election systems, might affect turnout in future elections.At a Las Vegas rally last week, Trump encouraged voters to ignore the primaries in favor of the caucus. “Don’t waste your time on primary,” he said. “Waste all of your time on caucus because the primary doesn’t mean anything.”Trump won the caucuses here and on the US Virgin Islands – a territory where residents cannot vote in the presidential election, but can help choose the candidate. More