Six things to look for in the first debate

One way or another, democracy will be on stage

Tonight, Joe Biden and Donald Trump will take the stage in the first presidential debate. This is an unusual (and unusually important) debate. Amid a frenzy of spin and heavyweight fight night theatrics, topics of democracy — free and fair elections, the rule of law, checks and balances, and so on — are almost certain to be front and center. 

Here are six of the main issues we expect to see, with some facts and resources from experts at Protect Democracy and the National Task Force on Election Crises to have on hand while you watch (or catch up on the coverage afterwards — we get it). 

1. The integrity of the 2020 and 2024 elections

It is highly likely that Trump repeats the false claims that Democrats “stole” the 2020 election. And since laying the groundwork to cry “fraud” should he lose has been his campaign strategy since 2016, the former president will likely repeat claims the 2024 election will be somehow rigged against him. We speculate that such accusations will take one of two forms: critiques of the election system itself and claims that politically-motivated lawsuits are keeping him off the campaign trail.

What you need to know:

• The 2020 election was decided correctly and was the most secure and transparent election in American history. The closest results were audited, recounted, and litigated to confirm that the results were accurate. There is no evidence that widespread fraud occurred. Read more: Election 2020: What Went Right

• Much like in 2020, the 2024 primary elections have reflected the will of the people and we expect the 2024 general election to run smoothly. 

2. False claims that non-citizens are voting 

In recent months, GOP lawmakers and officials, including Trump, have made unsupported claims of widespread noncitizen voting in the upcoming election — this suggests that disinformation about noncitizen or ineligible voters could feature prominently at the debate as well. 

What you need to know:

• It is already illegal for noncitizens to vote in federal elections, and it carries criminal penalties. Every voter in the United States must provide an ID to register. In every state, secretaries of state and local election officials perform routine voter list maintenance and check the accuracy of their voter rolls to ensure only eligible voters can vote. 

• Frivolous efforts to dispute the eligibility of hundreds of thousands of voters are, in all likelihood, a deliberate attempt to undermine confidence in the election. Read more: The frivolous effort to mass-disqualify voters.

3. False claims that Trump’s criminal charges are politically motivated

Trump and his supporters have insisted, falsely, that his various criminal charges are being directed by President Biden. As a result, Trump’s criminal proceedings and related questions around the rule of law are likely to loom large over the debate between the two men. 

We would not be surprised to hear more false attacks on attorneys, jurors, court personnel, judges, and others during the debate — precisely the kinds of attacks that prompt his base to issue threats of violence and for which he has been repeatedly castigated by judges. His attacks have also prompted senior GOP officials and elected leaders, including Speaker Mike Johnson, to echo his lies.  

What you need to know:

• President Biden is not directing any of the criminal cases against Trump. There is no evidence that the White House has interfered in any way in any of the federal prosecutions of Trump or his alleged co-conspirators. And President Biden and the federal Department of Justice have no jurisdiction over the New York criminal justice system, where Trump has been afforded all of the due process rights that he is owed and was convicted by a jury of his peers on 34 felony counts in The State of New York vs. Donald J. Trump. 

• As we noted in an amicus brief to the Supreme Court in April, Trump’s main strategy has not been to challenge the facts of the cases against him but to delay his trials “until after the 2024 election for the purpose of denying the voters relevant information and perhaps avoiding a jury of his peers altogether.” 

• In certain cases it’s appropriate for judges to weigh free speech against the safety and integrity of our judicial system by narrowly limiting the speech of defendants. But in spite of being restricted from attacking witnesses, jurors, and career prosecutors, Trump has been given considerable leeway to criticize the cases against him. Read more: Trump “gag” order: More at stake than the First Amendment. 

• Political candidates are not entitled to special treatment by the law in our system and, in fact, experts find accountability for political leaders is vital to the health of a democracy. Read more: Towards Non-Recurrence: Accountability Options for Trump-Era Transgressions.

• It’s possible to distinguish appropriate and independent prosecutions or investigations from politicized abuses. Read more: Investigating and prosecuting political leaders in a democracy: How to assess the difference between the rule of law and abuses of power. 

4. Whether presidents should be immune from prosecution

It’s possible that the Supreme Court will issue a ruling immediately before or immediately after the debate on Trump’s claim that former presidents are immune from criminal prosecution. In any case, the question of presidential immunity is likely to be addressed, at least obliquely. 

What you need to know: 

• Up to now, American law has not recognized absolute presidential immunity from prosecution, and in fact, our system presumes equal treatment under the law, including for political leaders. The founders didn’t depose a king just to elevate someone else above the law.

• Even so, the Supreme Court has already effectively intervened on Trump’s behalf by delaying his federal trials for 197 days (and counting). 

• There are clear guidelines in place for prosecuting political leaders during an election campaign. In short, there is no prohibition on doing so and the public has a strong interest in knowing the evidence for and resolution of pending charges against political candidates. Read more: Prosecuting political leaders during an election.

5. Pardons for January 6 insurrectionists (including Trump)

Trump has repeatedly pledged to pardon January 6 insurrectionists convicted of crimes if he wins. This follows from a first term in which he used the pardon power aggressively to benefit himself and his supporters. Many expect that he would even attempt to pardon himself, seeking to free himself from accountability for his criminal charges. President Biden is likely to highlight Trump’s pardon pledges, potentially in contrast to his own refusal to pardon his son Hunter. 

What you need to know:

• Trump’s first pardon abuses were so significant they essentially created a new category of “henchmen pardons.”

• There are real and important limits on the pardon power and an attempted self-pardon would likely be unconstitutional. 

• A new poll finds that self-pardons and pardons for January 6 insurrectionists are extremely unpopular, including with Republicans. Read more: What do Americans think about presidential pardons?

6. Trump’s second-term retribution agenda

Unlike in his first presidential run, Trump’s current run for the White House includes a highly detailed agenda for systematically consolidating power in the presidency. Many of these plans — which include things like civil service purges and withholding federal funds from political adversaries — are detailed in a 900+ page “Protect 2025” report by the Heritage Foundation. While some campaign advisors have downplayed the significance of the plan, former Trump aide Russ Vought, who advised the Project 2025 effort, is now the policy director for the 2024 RNC’s platform committee. Count on both the moderators and President Biden to push Trump on his agenda. 

What you need to know:

• It’s not just “Project 2025” — virtually all public statements by Trump and his advisors are consistent with a clear plan to consolidate power in the White House and wield it against his enemies. Read more: The Authoritarian Playbook for 2025.

• The key components of this plan, in the words of Trump and his supporters, include five tactics — pardons to license lawbreaking, directing investigations against critics and rivals, regulatory retaliation, federal law enforcement overreach, and domestic deployment of military forces. 

Photo credit: Sipa USA via AP