GeoLegal Special Update - Un-Presidented
How should legal leaders think about the US presidential election in light of the news?
Hi All, You’ll still get my weekly this week (NOT related to US politics) but I wanted to quickly react to the news that US President Joe Biden has stepped aside in the race for US president. As you will know from my past weeklies, I’m not surprised but I did want to share some quick views as all this un-presidenting is truly unprecedented.
I’ll spare you why this occurred and focus on looking ahead. This change comes very late in the game - so late that it is not clear what type of process will follow from it. Most likely, Democrats will rally around Harris, with arguments that she was already on the ticket selected in the primaries and has earned it as Biden’s running mate. The strongest arguments in favor of this are a) she is the most qualified, having served as Vice-President b) that she has a potential claim to the money raised by the Biden-Harris ticket and money matters at this stage of the campaign and c) to bypass the Vice-President, who was on the ticket that won the primaries, smacks of misogyny and racism. Biden’s endorsement of her makes her the heir apparent.
Some Democrats will argue that she would be better-off if she “wins” the nomination rather than having it handed to her. So they may push to open a contest of some sort against her. From where I sit, that would be noise. She would still be the overall favorite in such a contest because a ) it would be fairly quixotic for anyone to challenge her at this stage and b) other presidential hopefuls won’t exactly relish the chance to run a short, controversial campaign against a surging Trump - limiting the field of contenders. There will be a big emphasis from Democratic leadership on turning attention to Trump not to fighting each other.
Can Harris beat Trump? Yes, she can (which is not the same as it being likely - she starts the race at a disadvantage).
She will have a high-stakes chance to (re)-introduce herself to the nation. While conventional wisdom is somewhat negative about her, we really have no idea how she will position now that she’s out front. There are many issues where she will be more effective than Biden in connecting with voters.
A big boost will come because she has a chance to bring another name on the ticket and introduce her Vice-Presidential candidate as a heavyweight part of the campaign to unify and rally Democrats. As I wrote last week, most voters don’t start paying attention until Labor Day and so this race will certainly tighten up. There’s lots of rumors about who that VP will be - from where I sit, it doesn’t really matter so long as it’s someone from a contested state that can appeal to the working class vote and be an attack dog. All that talk about unifying America is over - this will be a battle.
For legal leaders, the key takeaways are:
Talk less, smile more - Unless you want to place a big bet on one of the parties - and accept downside in the event you are wrong - it’s best to keep your head down for now (read my advice generally on commenting about politics here). Commenting in the news on the process and election that is about to unfold only makes sense if your bet is big enough that there’s a real payoff if you choose the right side. We’re seeing this with Silicon Valley firms endorsing Trump - they are getting lots of support from Trump world and will get lots of benefits if he lands in the White House. In the meantime, they are also getting tough pieces in the news for doing so.
Advice on Advising - The same is true for law firm partners and “political” GCs. As a citizen, you have every right to get involved with a campaign and help it win. But be sure that doing so has a big enough payoff to limit your downside. You may hope your brilliant advice will land you as Ambassador to a small island nation (or better) but remember that this election is so divisive, your clients will not forget if you lined up against their political wishes (even if you never wavered in your support for their business). That’s different than in the past. An extension of this is for law firms choosing to get involved with parts of the electoral process or any election disputes - it’s hard for me to see it worth the fees to take the reputational risk so I would only do it if your client book lines up on the side you’re fighting for.
Scenarios, not Bets - Remember that all of the scenarios I outlined last week are still in play. Trump could win big and shift policy dramatically across the country. Harris (or another Democrat) could win, and would probably have a weak mandate and we face gridlock. Or we could descent into some amount of chaos if the case is decided by the Courts or influenced in some way by an October surprise (deepfake scandals etc).
Biden stepping aside is unprecedented. The attack on Trump was unprecedented. The potential for Harris to break all sorts of ceilings if she is President is unprecedented. What we will see over the next few months will be unprecedented. Get ready for all of it.
Feel free to shoot across any hypotheticals or questions you’re wrestling with as you wade through this.
-SW
Scenario 3 being "a weak mandate and gridlock" possibly the best of all worlds.
It’s true - that’s not necessarily a risk. In fact it’s a scenario markets generally prefer, though they would prefer candy from Trump in the form of tax cuts and deregulation instead.