Jul 14, 2019 - Politics & Policy

2020 Democrats divided over rule shielding Trump from indictment

Democratic presidential hopefuls on the debate stage

Democratic presidential hopefuls on the debate stage. Photo: Saul Loeb/AFP via Getty Images

The leaders of the Democratic presidential field are divided about whether to ax a decades-old rule barring the indictment of a sitting president.

Why it matters: The candidates are grappling with the same issues facing Democrats in Congress — how to hold President Trump accountable despite the precedent their actions will set.

State of play:

  • Would change the rule: Sens. Elizabeth Warren, Cory Booker, Amy Klobuchar and Kirsten Gillibrand, as well as former Secretary Julián Castro, said that, if elected, they would direct the Justice Department to withdraw the decades-old guidance that former Special Counsel Robert Mueller cited when explaining his thinking on his decision against charging Trump.
  • Would review the rule: Former Vice President Joe Biden and Sen. Kamala Harris.
  • Vague statements: Former Rep. Beto O'Rourke and Mayor Pete Buttigieg issued vague statements about the policy that fell short of calling for its rescission. Both emphasized that "no one is above the law."
  • No response: Sen. Bernie Sanders.
Visual: Lazaro Gamio/Axios
Visual: Lazaro Gamio/Axios

Context: In 1973, in the heat of the Watergate scandal, the Justice Department's Office of Legal Counsel (OLC) issued an internal memo saying a sitting president cannot be indicted. In 2000, former President Bill Clinton's DOJ reaffirmed that finding.

  • The memo cited constitutional concerns and said impeachment was the appropriate way to remove a sitting president who committed crimes.
  • In May of 2019, Robert Mueller cited the OLC guidance during a press conference following the release of his report. He said that charging Trump with a crime was "not an option," despite stating that if his team "had confidence that the president clearly did not commit a crime, we would have said so."
  • This led several congressional Democrats to ramp up their calls for impeachment, while others went so far as to consider possible legislation that would nullify the policy.

The other side: Ian Prior, a former DOJ spokesman under Trump, told Axios that "it would be completely improper for a president to order DOJ to change an OLC opinion if the case law doesn’t support that."

  • "You had a Republican administration and a Democratic administration look at the issue and both came to the same conclusion. Any reexamination or change would be blatantly political as opposed to actual concern for getting the law right."
  • "It sounds noble and grandiose currently, but the realities of it both legally and practically are frankly dangerous for the DOJ regardless of who is president."
  • A Trump administration official made a similar point, telling Axios that this has been a long-standing, bipartisan policy across the department for nearly 50 years, and that there is currently a system in place to hold a sitting president accountable: impeachment.

The White House and Justice Department declined to comment.

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