It is extraordinary for a defeated ex-president to play a starring role in the first midterm election since he lost power. Yet Donald Trump’s decision to use the 2022 elections as a stage to avenge his 2020 defeat and President Joe Biden’s strategy of making the man he vanquished the focus of the Democratic campaign are shaking up conventional wisdom about November’s critical vote.
A race expected to turn on Biden’s unpopularity and high inflation had already been shaken up by the overturning of a woman’s constitutional right to an abortion by the Supreme Court, whose conservative majority Trump had solidified. Now, the ex-President has roared back to center stage, powered by his inflammatory efforts to turn the midterms into a proving ground for his false claims the 2020 election was stolen and reverberations of the FBI search of his resort in Florida.
History would suggest the Democrats – as the party of a first-term president – will face a drubbing in the midterms.
But Trump has yet again shattered expectations and is turning what had been shaping up as a referendum on Biden and the economy into one on his own grievance-fueled politics.
And as well as offering a rerun of their bitter duel two years ago, both men may be offering a preview of a fearsome 2024 presidential race – even if recent polls have shown large chunks of voters in each party might prefer a fresher line up.
Most one-term presidents quickly fade from the scene. But even the shame of inciting an insurrection didn’t end Trump’s political career.
It’s a mark of his stunning hold over his party’s grassroots, the power of his falsehoods about the last election, and the GOP’s embrace of his democracy-threatening populism that he’s still perhaps its most strident political force in 2022.
Republican leaders hoped to keep the focus on Biden, near 40-year highs in the cost of living, fears of rising crime and perceptions that the nation is headed in the wrong direction. But Trump’s behavior is recalling the unchained conduct that hurt House Republicans in 2018 and later helped Democrats flip the Senate. His backing of fellow election deniers and untested candidates for key Senate races threatens to squander what should have been an easier path to the majority since the GOP only needs to gain one seat.
The Trump complication was on full show over the Labor Day weekend, the end-of-summer holiday that traditionally marks the sprint to votes being cast. The ex-President starred in a wild rally in Pennsylvania on Saturday night, then on Monday seized on a favorable ruling in a court case relating to his hoarding of classified information in Florida to issue a constitutionally impossible demand for a reversal of 2020 election results on his Truth Social platform.
“The FBI and the Justice Department have become vicious monsters, controlled by radical left scoundrels, lawyers and the media who tell them what to do … and when to do it,” Trump fumed at his rally in Wilkes-Barre, which Biden has visited just days before. Trump’s fiery rhetoric over the search had earlier led to a stream of violent threats against FBI officers.
Trump’s comments on Saturday prompted one of the top lawmakers on the House committee investigating January 6, 2021, to caution that the ex-President’s rhetoric could cause violence similar to that in the US Capitol insurrection.
Asked by CNN’s Jim Acosta on Sunday whether Trump was guilty of incitement, Democratic Rep. Zoe Lofgren said: “Well, potentially yes.”
“In the lead-up to January 6, there were extravagant claims made meant to inflame public opinion and that is what is happening here. … The ex-President ought to stop it. Meanwhile all of us, Democrats and Republicans in elected office, should call this out. This is not proper behavior,” the California Democrat added.
Her comment was a reminder that the select committee, which has painted a damning picture of Trump’s actions in the run-up to the insurrection, could also be an important factor in shaping the midterm picture with at least one televised hearing expected in the coming weeks.
Trump was quick to politicize the Florida judge’s ruling that an independent third party known as a “special master” should be appointed to sift large numbers of documents – including some bearing the most classified designations used by the intelligence community – for legal and executive privilege issues.
In granting Trump most of what he wanted in a ruling that effectively slowed the Justice Department investigation, Judge Aileen Cannon, a Trump appointee, also offered Trump a political opening in her ruling. She said that as a former president of the United States, “the stigma associated with the subject seizure is in a league of its own.”
The statement suggested that contrary to Department of Justice vows, a former president really could be above the law and be entitled to special treatment out of reach of other Americans. While the ruling may not significantly alter the outcome of the investigation, it played directly into the ex-President’s claims that the search proves he is the victim of political persecution.
Trump’s dominance of the Republican scene over the weekend, threats toward the FBI and his declaration that the current President is an “enemy of the state” also, however, threatened to prove Biden’s point as he seeks to make 2022 all about Trump. The President reinforced his new message in events on Monday in Pennsylvania and Wisconsin – two states that could decide the destiny of the Senate – that Trump stands for anti-democratic extremism.
“The extreme MAGA Republicans in Congress have chosen to go backwards, full of anger, violence, hate and division. But together, we can and we must choose a different path forward,” Biden said at Milwaukee Laborfest in Wisconsin.
Monday’s ruling was the first significant legal victory for the ex-President’s team after a period in which he has struggled to match his incendiary political response with a coherent courtroom strategy.
The move means that the Justice Department will temporarily be barred from using documents taken from Mar-a-Lago after the search last month in its investigation and potentially in grand jury appearances. The judge, however, permitted the use of the material by the intelligence community as it assesses the potential damage to sources and methods posed by the ex-President’s storage of such highly classified material in insecure circumstances, including in his office.
The DOJ and Trump have until Friday to seek agreement on who should serve as special master — a tough proposition given their mutual hostility so far.
The judge’s argument that Trump, as an ex-president, risked being stigmatized by being searched puzzled many legal experts, and appeared to create a special category of citizen who could be immune from searches conducted on the basis of a court-approved warrant. It also played directly into Trump’s belief, as President and afterwards, that he is immune from criminal accountability – and helps validate a campaign message he spelled out on Saturday night. He told his crowd that the FBI and the media were trying to “silence me, and more importantly they are trying to silence you,” extending the sense of personal persecution to his movement as a whole – an attempt to supercharge cohesion and resentment in a tactic familiar to strongmen leaders.
By also raising the question of whether some documents were subject to executive privilege, Cannon potentially opened up a new avenue of litigation for Trump that he might hope to use to delay the Justice Department investigation for months. She did not say that Trump could win a case based on a claim that the documents were protected by the doctrine that presidents should receive advice and information in office that should remain private. But she noted the question remained unresolved given the paucity of litigation on the issue.
The question of whether Trump risked US national security with careless handling of national security documents may not hang on such issues anyway.
The fact that Cannon was appointed by Trump unleashed an outpouring of claims she was faithfully executing the ex-President’s bidding among liberals on social media. Certainly, Cannon made more fluent arguments than Trump’s team did in seeking a special master. And she did offer him some openings that could be exploited politically. But it is not outlandish to see a special master appointed in such a case — even if Trump’s team added to suspicions it was seeking a delaying tactic by not asking for one until two weeks after the FBI obtained material from Mar-a-Lago. The reaction showed how deeply the legal system has become politicized — on both sides of the aisle – even if Trump’s deliberate sowing of suspicion on such grounds was a feature of his presidency. After all, if every time a judge issues a ruling in a politically sensitive case it is ascribed as a service to the president who appointed her, the notion of accountability and even a functioning legal system becomes impossible.
Still, two legal experts told CNN Cannon’s ruling was legally questionable.
“There’s just never been a case where irreparable harm has been shown by being under criminal investigation,” Jennifer Rodgers, a former federal prosecutor, told CNN’s John King. Renato Mariotti, another former federal prosecutor, said on CNN “Newsroom” that the ruling was “very much unsupported by the case law” and called it a “pretty massive shift to the defense.”
While Trump was trying to spin the latest twist in his long tussle with the rule of law, Biden was seeking to capitalize on some unexpected momentum in the midterm election race that has challenged predictions that his party would be overwhelmed by a red Republican wave in November.
The President drove home his claim that Trump represents a dangerous creed of extremism that threatens American democracy, seeking to win over suburban, moderate and independent voters who were alienated by Trump’s extreme message in previous elections. Biden, however, is now stressing that he doesn’t view all Republicans as bent on destroying American democracy – a sign perhaps that he went a little too far last month when he argued Trump’s philosophy was like “semi-fascism.”
The President also unveiled a newly broad campaign message on Monday – seeking to highlight legislative successes like his bipartisan infrastructure plan, legislation equipping the US semiconductor industry to take on China and his new health care and climate bill as a job creating engine that could help revitalize blue collar areas where Trump has run strongly. He crowed over legislative victories over the National Rifle Association and “Big Pharma” — adding a populist edge to a campaign that is also seeking to tap into majority public concern over the Supreme Court’s ruling overturning federal abortion rights.
After months fearing a red wave, there is reason for Democrats to look with more optimism to the midterms. In a Wall Street Journal poll released last month, Democrats actually led Republicans by three points in the generic ballot. That might not be enough to cling to the House but is a better picture than for most of the year. And in a finding that tends to bolster Biden’s decision to make the election a choice between him and Trump, his approval rating was higher in that poll than Trump’s. But adding to the confused picture, when voters were asked which party they believed could be trusted to handle the economy, crime, foreign policy and to tame inflation, Republicans were still ahead.
All of this suggests November’s midterm elections will be more intriguing than had seemed possible a few weeks ago, although with Trump and Biden once again clashing, it’s sometimes tough to work out whether America is back in 2020 or has suddenly leaped forward into the 2024 campaign.