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Biden's 'privilege' claims sound like arguments Trump officials made before getting thrown in jail: attorney

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Biden's 'privilege' claims sound like arguments Trump officials made before getting thrown in jail: attorney

President Biden’s assertion of executive privilege to prevent recordings of his interviews with special counsel Robert Hur from being released shares some similarities with former President Trump’s attempts to use privilege while in the White House, according to one legal expert.

Though transcripts of Biden’s interview with Hur have already been released to a committee, the White House asserted executive privilege to block the audio recordings from becoming public while arguing in lockstep with Attorney General Merrick Garland that “law enforcement files like these need to be protected.”

“The same arguments were made during the Trump years as are being made now. It’s just that the roles are reversed,” former Assistant U.S. Attorney Andrew McCarthy told Fox News Digital

“For example, during the Mueller investigation, Trump made available Don McGahn, who was the White House counsel. They not only let Mueller interview McGahn at length, but McGahn took voluminous notes of his conversations with Trump, which they also turned over. And then Democrats wanted to subpoena McGahn to come to the House Judiciary Committee, and the Republicans fought it.

BIDEN’S PRIVILEGE CLAIM TO KEEP SPECIAL COUNSEL INTERVIEW UNDER WRAPS A ‘CRUDE POLITICS’ MOVE: EXPERTS

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President Biden speaks at the National Museum of African American History and Culture in Washington, D.C., May 17, 2024. (Al Drago/Bloomberg via Getty Images)

“What they said was giving information to an executive branch prosecutor doesn’t waive the privilege as to Congress,” he added. “The Democrats all said that this was an obstruction of justice, that it was outrageous, that he’d already waived the privilege by allowing McGhan to speak to the prosecutor.”

Executive privilege has been around since the earliest days of the country and gives the executive branch the ability to withhold certain internal discussions and documents from scrutiny by the courts and the legislative branch. It allows the president some breathing room for his own deliberations with staff.

“The fact is that since the Republic started, presidents have been withholding information from Congress,” McCarthy said.

Congress has a variety of tools it can use to pry information out of the executive branch, including by holding people in contempt. 

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“Congress has a whole arsenal of stuff from the Constitution, powers that it can use to fight back and pry information out of the executive branch,” McCarthy said. “You know, you can slash budgets or hold up appointments, and if it gets bad enough, you can start holding people in contempt. … The final option, obviously, is impeachment.”

McCarthy warned, however, that if the president’s party has enough influence in Congress, those efforts can be more challenging.

“If the president’s party has enough sway in Congress that you can stop that arsenal from being used, then the whole thing is just a political calculation,” he said. “Like for Biden here, it’s how much worse would I be hurt by letting the tape come out or the recording come out than by stonewalling. It looks like the tape is so bad, he’s decided that even though he’s going to be damaged by stonewalling, that’s better than letting the tape out.”

McCarthy also highlighted how the media has reacted to Biden’s assertion of executive privilege, saying they’ll report on the matter in an attempt to preserve their integrity and then move on from it to “help Biden bury it.”

“The usual problem that you always have here is that when Republican administrations stonewall, the media gets all whipped up about it, and when Democratic administrations stonewall, they feel like they have to cover it for a day or two so that they can say they covered it but then move on to another subject and help Biden bury it, or at least they’ll try,” he said.

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Former President Trump, left, and President Biden (Associated Press )

Garland on Thursday defended Biden’s decision to assert executive privilege, saying the subpoena for audio recordings “is one that would harm our ability in the future to successfully pursue sensitive investigations.”

“There have been a series of unprecedented, frankly, unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files is just the most recent effort to threaten, defund our investigations, and the way in which there are contributions to an atmosphere that puts our agents and our prosecutors at risk,” he added.

“It is the longstanding position of the executive branch held by administrations of both parties that an official who asserts the President’s claim of executive privilege cannot be prosecuted for criminal contempt of Congress,” Associate Attorney General Carlos Uriarte wrote in a letter Thursday to GOP Reps. Jim Jordan and James Comer, chairmen of the Committee on the Judiciary and Committee on Oversight and Accountability, respectively.

That “longstanding position,” however, was challenged following Trump’s term in the White House and the Capitol protests Jan. 6, 2021. 

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Two individuals who served in the Trump administration and raised executive privilege claims — former White House chief strategist Steve Bannon and former Trump adviser Peter Navarro – have been convicted of contempt of Congress and sentenced to serve jail time for their refusal to comply with subpoenas issued by the now-defunct House select committee investigating the Capitol protests.

TRUMP ALLY STEVE BANNON LOSES APPEAL ON CONTEMPT CONVICTION AS HE FIGHTS TO STAY OUT OF PRISON

Bannon, 70, was sentenced to four months in prison in October 2022 and a $6,500 fine for ignoring a congressional subpoena.

Bannon’s appeal was denied last week after the U.S. Court of Appeals for the D.C. Circuit released a 20-page opinion that said granting Bannon’s appeal would “hamstring Congress’s investigatory authority.”

Bannon claimed he acted on the advice of his legal team and did not intend to break the law. Judge Bradley Garcia wrote the acting on “advice of counsel” defense is “no defense at all.”

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The ruling will be appealed, Bannon’s attorney, David Schoen, told Fox News Digital last week.

Schoen noted that Bannon’s attorney at the time he received the subpoena, Robert Costello, advised his client that he was not permitted, as a matter of law, in any way to respond to the notice, saying executive privilege had been raised and that it was not his privilege to waive it. Costello wrote the committee to inform it that Bannon would comply if the panel worked out any privilege issues with former President Trump or if a court ordered him to comply, Schoen said.

Former White House chief strategist Steve Bannon, left, and former Trump adviser Peter Navarro (Getty Images)

Similarly, Navarro, who reported to prison in Miami in March following an order from the U.S. Supreme Court, was charged and convicted with contempt of Congress after he refused to comply with a congressional subpoena demanding his testimony and documents relating to the events of Jan. 6.

Though Navarro is attempting to appeal his contempt of Congress conviction, the court refused to postpone his imprisonment until after the appeal is concluded.

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Navarro claimed he could not cooperate with the committee investigating the Jan. 6 attack because Trump had invoked executive privilege, an argument that lower courts have rejected.

The lower courts found that Navarro could not actually prove Trump had invoked executive privilege.

Biden’s decision to assert the privilege, according to White House press secretary Karine Jean-Pierre, came at the request of Garland. Jean-Pierre said it was Garland’s suggestion that “law enforcement files like these need to be protected.”

The House Judiciary Committee on Thursday advanced a resolution to hold Garland in contempt of Congress over the Justice Department’s failure to produce the subpoenaed audio recording of Biden’s interview with Hur. The vote advances the measure for a full floor vote.

Special Counsel Robert Hur, left, and President Biden (Getty Images)

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Hur led the investigation into Biden’s handling of classified documents after his departure as vice president under the Obama administration. Hur announced in February that he would not recommend criminal charges against Biden for possessing classified materials after his vice presidency, saying Biden is “a sympathetic, well-meaning, elderly man with a poor memory.”

Hur wrote in the report that “it would be difficult” to convince a jury to convict Biden of any willful crime, citing his advanced age. 

The findings sparked widespread outrage that Biden was effectively deemed too cognitively impaired to be charged with a crime but could serve as president. Trump has meanwhile slammed the disparity in charges as a reflection of a “sick and corrupt, two-tiered system of justice in our country.

Fox News’ Chris Pandolfo, Elizabeth Elkind, Louis Casiano and Emma Colton contributed to this report.

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Marjorie Taylor Greene criticizes Trump’s meetings with Zelenskyy, Netanyahu: ‘Can we just do America?’

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Marjorie Taylor Greene criticizes Trump’s meetings with Zelenskyy, Netanyahu: ‘Can we just do America?’

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Rep. Marjorie Taylor Greene, R-Ga., on Sunday called for President Trump to only focus on America’s needs as the president meets with Ukrainian President Volodymyr Zelenskyy and Israeli Prime Minister Benjamin Netanyahu.

The president has been heavily involved in the Russia-Ukraine and Israel-Hamas conflicts since returning to the White House.

Trump met with Zelenskyy on Sunday at Mar-a-Lago to discuss a peace plan aimed at ending the Russia-Ukraine war that began with an invasion by Moscow in February 2022.

Netanyahu arrived in Florida on Sunday ahead of their scheduled meeting on Monday at Trump’s estate to address Israel’s conflicts in the Middle East. It will be the sixth meeting of the year between the two leaders.

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TRUMP ZELENSKYY SAY UKRAINE PEACE DEAL CLOSE BUT ‘THORNY ISSUES’ REMAIN AFTER FLORIDA TALKS

Rep. Marjorie Taylor Greene criticized President Donald Trump’s meetings with Ukrainian President Volodymyr Zelenskyy and Israeli Prime Minister Benjamin Netanyahu. (Anna Moneymaker/Getty Images)

Greene, responding to Trump’s meeting with Zelenskyy and Netanyahu, said that the Trump administration should address the needs of Americans rather than becoming further involved in global conflicts.

“Zelensky today. Netanyahu tomorrow,” she wrote on X.

President Donald Trump welcomes Ukrainian President Volodymyr Zelenskyy at his Mar-a-Lago residence in Palm Beach, Florida. (Jim WATSON / AFP via Getty Images)

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“Can we just do America?” the congresswoman continued.

The congresswoman has been a vocal critic of supplying U.S. military aid to foreign countries amid the conflicts in Europe and the Middle East.

She has also referred to Zelenskyy as “a dictator who canceled elections” and labeled Israel’s military campaign in Gaza as a genocide and humanitarian crisis.

ZELENSKYY READY TO PRESENT NEW PEACE PROPOSALS TO US AND RUSSIA AFTER WORKING WITH EUROPEAN TALKS

Rep. Marjorie Taylor Greene and President Donald Trump had a public feud in recent months. (Getty Images)

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This comes after Taylor Greene, who is set to resign from the House in January, had a public spat with Trump over the past few months as Trump took issue with the Georgia Republican’s push to release documents related to the investigations into deceased sex predator Jeffrey Epstein.

Trump had withdrawn his endorsement of Greene and called her a “traitor” over the public feud.

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Commentary: America tried something new in 2025. It’s not going well

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Commentary: America tried something new in 2025. It’s not going well

Is there a dumpster somewhere to torch and bury this year of bedlam, 2025?

We near its end with equal amounts relief and trepidation. Surely we can’t be expected to endure another such tumultuous turn around the sun?

It was only January that Donald Trump moved back into the White House, apparently toting trunkloads of gilt for the walls. Within weeks, he’d declared an emergency at the border; set in motion plans to dismantle government agencies; fired masses of federal workers; and tariffs, tariffs, tariffs.

Demonstrators at a No Kings rally in Washington, protesting actions by President Trump and Elon Musk.

(Jose Luis Magana / Associated Press)

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By spring, the administration was attacking Harvard as a test case for strong-arming higher education. By June, Trump’s grotesquely misnamed Big Beautiful Bill had become law, giving $1 trillion in tax cuts to billionaires and funding a deportation effort (and armed force) that has fundamentally reshaped American immigration law and ended any pretense about targeting “the worst of the worst.”

Fall and winter have brought questionable bombings of boats in the Caribbean, a further backing away from Ukraine, a crackdown on opposition to Trump by classifying it as leftist terrorism and congressional inaction on healthcare that will leave many struggling to stay insured.

That’s the short list.

It was a year when America tried something new, and while adherents of the MAGA movement may celebrate much of it, our columnists Anita Chabria and Mark Z. Barabak have a different perspective.

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Here, they renew their annual tradition of looking at the year past and offering some thoughts on what the new year may bring.

Chabria: Welp, that was something. I can’t say 2025 was a stellar year for the American experiment, but it certainly will make the history books.

Before we dive into pure politics, I’ll start with something positive. I met a married couple at a No Kings rally in Sacramento who were dressed up as dinosaurs, inspired by the Portland Frog, an activist who wears an inflatable amphibian suit.

When I asked why, the husband told me, “If you don’t do something soon, you will have democracy be extinct.”

A woman standing before an American flag during an anti-Trump protest in downtown Los Angeles.

Crowds participate in No Kings Day in downtown Los Angeles in October.

(Genaro Molina / Los Angeles Times)

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I loved that so many Americans were doing something by turning out to not just protest policies that hit personally, but to rally in support of democracy writ large. For many, it was their first time taking this kind of action, and they were doing it in a way that expressed optimism and possibility rather than giving in to anger or despair. Where there is humor, there is hope.

Barabak: As in, it only hurts when I laugh?

In 2024, a plurality of Americans voted to reinstall Trump in the White House — warts, felony conviction and all — mainly in the hope he would bring down the cost of living and make eggs and gasoline affordable again.

While eggs and gas are no longer exorbitant, the cost of just about everything else continues to climb. Or, in the case of beef, utility bills and insurance, skyrocket.

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Workers adding Donald Trump's name to the John F. Kennedy Memorial Center for the Performing Arts

The John F. Kennedy Memorial Center for the Performing Arts is another of the long-standing institutions Trump has smeared his name across.

(Jacquelyn Martin / Associated Press)

Meantime, the president seems less concerned with improving voters’ lives than smearing his name on every object he lays his eyes on, one of the latest examples being the John F. Kennedy Center for the Performing Arts.

(The only place Trump doesn’t want to see his name is in those voluminous Epstein files.)

I wonder: Why stop there? Why not brand these the United States of Trump-erica, then boast we live in the “hottest” country on Planet Trump?

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Chabria: Stop giving him ideas!

You and I agree that it’s been a difficult year full of absurdity, but we’ve disagreed on how seriously to take Trump as a threat to democracy. As the year closes, I am more concerned than ever.

It’s not the ugly antics of ego that alarm me, but the devastating policies that will be hard to undo — if we get the chance to undo them.

The race-based witch hunt of deportations is obviously at the top of that list, but the demolition of both K-12 and higher education; the dismantling of federal agencies, thereby cutting our scientific power as a nation; the increasing oligarchy of tech industrialists; the quiet placement of election deniers in key election posts — these are all hammers bashing away at our democracy.

Now, we are seeing overt antisemitism and racism on the MAGA right, with alarming acceptance from many. The far right has championed a debate as dumb as it is frightening, about “heritage” Americans being somehow a higher class of citizens than nonwhites.

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Vice President JD Vance speaks at a college campus event in front of a poster reading "This Is the Turning Point."

Vice President JD Vance speaks at the University of Mississippi in Oxford.

(Gerald Herbert / Associated Press)

Recently, Vice President JD Vance gave a speech in which he announced, “In the United States of America, you don’t have to apologize for being white anymore,” and Trump has said he wants to start taking away citizenship from legal immigrants. Both men claim America is a Christian nation, and eschew diversity as a value.

Do you still think American democracy is secure, and this political moment will pass without lasting damage to our democratic norms?

Barabak: I’ll start with some differentiation.

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I agree that Trump is sowing seeds or, more specifically, enacting policies and programs, that will germinate and do damage for many years to come.

Alienating our allies, terrorizing communities with his prejudicial anti-immigrant policies — which go far beyond a reasonable tightening of border security — starving science and other research programs. The list is a long and depressing one, as you suggest.

But I do believe — cue the trumpets and cherubs — there is nothing beyond the power of voters to fix.

To quote, well, me, there is no organism on the planet more sensitive to heat and light than a politician. We’ve already seen an anti-Trump backlash in a series of elections held this year, in red and blue state alike. A strong repudiation in the 2026 midterm election will do more than all the editorial tut-tutting and protest marches combined. (Not that either are bad things.)

A poll worker at Los Angeles' Union Station.

A stressed-out seeming poll worker in a polling station at Los Angeles’ Union Station.

(Eric Thayer / Los Angeles Times)

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The best way to preserve our democracy and uphold America’s values is for unhappy citizens to register their dissent via the ballot box. And to address at least one of your concerns, I’m not too worried about Trump somehow nullifying the results, given legal checks and the decentralization of our election system.

Installing lawmakers in Congress with a mandate to hold Trump to account would be a good start toward repairing at least some of the damage he’s wrought. And if it turns into a Republican rout, it’ll be quite something to watch the president’s onetime allies run for the hills as fast as their weak knees allow.

Chabria: OMG! It’s a holiday miracle. We agree!

I think the midterms will be messy, but I don’t think this will be an election where Trump, or anyone, outright tries to undo overall results.

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Although I do think the groundwork will be laid to sow further doubt in our election integrity ahead of 2028, and we will see bogus claims of fraud and lawsuits.

So the midterms very well could be a reset if Democrats take control of something, anything. We would likely not see past damage repaired, but may see enough opposition to slow the pace of whatever is happening now, and offer transparency and oversight.

But the 2026 election only matters if people vote, which historically is not something a great number of people do in midterms. At this point, there are few people out there who haven’t heard about the stakes in November, but that still doesn’t translate to folks — lazy, busy, distracted — weighing in.

If proposed restrictions on mail-in ballots or voter identification take effect, even just in some states, that will also change the outcomes.

But there is hope, always hope.

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Barabak: On that note, let’s recognize a few of the many good things that happened in 2025.

MacKenzie Scott donated $700 million to more than a dozen historically Black colleges and universities, showing that not all tech billionaires are selfish and venal.

The Dodgers won their second championship and, while this San Francisco Giants fan was not pleased, their seven-game thriller against the Toronto Blue Jays was a World Series for the ages.

And the strength and resilience shown by survivors of January’s SoCal firestorm has been something to behold.

Any others, beside your demonstrating dinos, who deserve commendation?

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Pope Leo XIV waves after delivering the annual Christmas blessing.

Pope Leo XIV waves after delivering the Christmas Day blessing from the main balcony of St. Peter’s Basilica at the Vatican.

(Gregorio Borgia / Associated Press)

Chabria: Though I’m not Catholic, I have been surprisingly inspired by Pope Leo XIV.

So I’ll leave us with a bit of his advice for the future: “Be agents of communion, capable of breaking down the logic of division and polarization, of individualism and egocentrism.”

Many of us are tired, and suffering from Trump fatigue. Regardless, to put it in nonpapal terms, it may be a dumpster — but we’re all in it together.

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Barabak: I’d like to end, as we do each year, with a thank you to our readers.

Anita and I wouldn’t be here — which would greatly please some folks — but for you. (And a special nod to the paid subscribers out there. You help keep the lights on.)

Here’s wishing each and all a happy, healthy and prosperous new year.

We’ll see you again in 2026.

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The biggest losers of 2025: Who fell flat as the year closed

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The biggest losers of 2025: Who fell flat as the year closed

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2025 didn’t just expose Democratic divisions — it created a short list of political losers whose missteps are already shaping the battlefield for 2026. From establishment leaders squeezed by a restless progressive base to national figures who burned precious time, this past year has left behind a series of cautionary tales for a party out of power.

MODERATE DEMOCRATS PUSH BACK AS PROGRESSIVES MOVE TO OUST JEFFRIES, CLARK OVER TRUMP STRATEGY

Senate Minority Leader Chuck Schumer, D-N.Y., right, and House Minority Leader Hakeem Jeffries, D-N.Y., walk speak to members of the media outside the West Wing at the White House in Washington, Monday, Sept. 29, 2025, in Washington. (AP Photo/Evan Vucci)

Establishment and old-school Democrats

The loudest, most visible Democratic figures haven’t just voiced opposition to the Trump administration — they’ve also made it clear they expect a new version of the party to emerge going forward. From Mayor-elect Zohran Mamdani in New York City promising expansive government program increases to Rep. Alexandria Ocasio-Cortez’s hint that she could beat Vice President J.D. Vance in a bid for the presidency, progressives can easily say they had some of the most visible momentum in 2025.

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And that’s bad news for old-school Democrats. 

As recently as last month, both House Minority Leader Hakeem Jeffries, D-N.Y., and House Whip Katherine Clark, D-Mass., faced primary challenges from their progressive base. These challengers cited dissatisfaction with their resistance against the administration. It’s unclear if those calls are disproportionately loud in a moment where Democrats find themselves out of power. But many moderate Democrats told Fox News Digital they don’t think it’s helping win over the electorate’s political middle.

Should progressives continue to crowd out the picture in 2026, more establishment Democrats may find it increasingly difficult to ignore pressure from their far-left flank as the nation heads into the midterms.

GOP SEIZES ON DEM CIVIL WAR AS PROGRESSIVES JUMP INTO KEY 2026 SENATE RACES: ‘THEY’RE IN SHAMBLES’

California Gov. Gavin Newsom speaks during a campaign event in support of Proposition 50 in San Francisco, Monday, Nov. 3, 2025.  (Gabrielle Lurie/San Francisco Chronicle via Getty Images)

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Gavin Newsom

California Gov. Gavin Newsom is running out of time to prove why he could be something more than a party messaging figure. In the past year, he’s pigeonholed himself into exactly that role. 

In 2025, Newsom cemented himself as one of the key Democratic foils to Trump’s agenda. And on that front, there’s little question he capitalized on the attention.

Most notably, Newsom pushed through a redistricting effort meant to squeeze five Republicans out of office after Texas advanced a similar plan earlier this year. While the plan received mixed reviews — even from Democrats in the state who were wary of fighting fire with fire — it has certainly advanced Newsom’s national status.

But like every would-be Trump foil, Newsom finds himself somewhat reliant on Trump for his next move. Should Newsom begin to position himself for a 2028 bid for the White House, he won’t have that luxury around forever, and he only has one more year as California’s governor. 

Newsom burned precious time in 2025 to show voters in California and across the country what kind of executive he could be. 

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DEMOCRATIC HEAVYWEIGHTS HARRIS, NEWSOM TURN HEADS, FUEL 2028 SPECULATION

Former President Joe Biden talks to reporters on the South Lawn of the White House, Monday, Sept. 2, 2024, in Washington, D.C. (AP Photo/Mark Schiefelbein)

Joe Biden

On several key issues, former President Joe Biden’s legacy has already grown old in 2025. 

It took just weeks for the Trump administration to dismantle the claim that Biden was doing everything he could to stop illegal border crossings from pouring into the United States. With a few key executive orders, Trump brought the country to one of its lowest levels of border encounters ever.

And while that’s the most notable entry, the list of double-takes doesn’t end there.

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An autopen investigation in the House of Representatives revealed Biden had delegated an unprecedented amount of authority to his aides. Moreover, a book put out by Jake Tapper and Alex Thompson took a deep look at just how hard his inner circle had worked to maintain the president’s image amid concerns about his age and cognitive ability. 

Taken together, Biden’s administration just one year removed has plunged Democrats into questions of where to go next and provided Republicans with a wealth of evidence to make the case Democrats weren’t as transparent about the country’s problems as they could have been. 

‘ROCK STAR’ NEWSOM STEALS THE SHOW AT DNC SUMMIT AS DEMOCRATS HUNT FOR 2028 CONTENDER TO TAKE ON TRUMP

Senate Majority Leader Chuck Schumer gives a thumbs up as he walks out of the Senate Chamber after speaking on the floor of the Senate on Dec. 20, 2024. (Kent Nishimura/Getty Images)

Chuck Schumer

Few political figures have had as politically damaging a year in 2025 as the Senate minority leader, Chuck Schumer, D-N.Y.

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He received most of the blame for a disastrous 43-day government shutdown that largely left Democrats empty-handed. While Schumer himself didn’t vote with the eight Democrats who eventually supported a Republican plan to end the shutdown, he received calls to step aside in the aftermath for failing to keep Senate Democrats on the same page.

According to many Republicans, the political calculus for Schumer during the shutdown was more about putting up a good enough fight to appease the progressive side of the Democratic base. 

But Schumer also failed to do that too.

During the shutdown, the New York City mayoral race had come to its final stretch with little word from the Senate Minority Leader. When it became clear the self-proclaimed socialist Zohran Mamdani would capture the party’s nomination, Schumer tried to dodge questions about whether he would support his bid. That reluctance never went away and questions about the relationship between the two Democrats only intensified. 

Just days removed from the election, Schumer continued to give non-answers about Mamdani. 

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Now at the close of 2025, Schumer has left questions unanswered about whether he can still effectively lead the party and whether he represents the party’s future. 

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