WASHINGTON — When Joe Biden was running for the White House in 2019, he sharply criticized the Justice Department’s long-standing view that presidents who commit crimes are immune from indictment while in office and promised to have it reconsider that position.
But more than two years into his presidency — and now facing an investigation into whether he or his team mishandled classified documents when he left the Obama administration — Biden has yet to order that review, according to people familiar with the matter.
A White House spokesperson declined to comment.
Biden made his pledge a few months after special counsel Robert Mueller completed the investigation into Russian interference in the 2016 election. The Justice Department’s position on presidential immunity had complicated Mueller’s consideration of whether various efforts by President Donald Trump to impede the inquiry constituted criminal obstruction.
Biden was among a litany of critics who forcefully questioned the reasoning behind the department’s stance, laid out in 1973 and 2000 memos. The New York Times asked about those memos, from the Nixon and Clinton eras, in surveying presidential candidates on executive power four years ago.
Specifically, the Times asked the contenders whether they agreed with the department’s position and, if not, whether they would instruct it to rescind those memos. Writing that it is a “core principle that no one is above the law — especially the president,” Biden expressed deep skepticism of the department’s rationale.
“The opinions that the Department of Justice has issued in the past, immunizing the president from accountability for criminal conduct for as long as he is in office, have been called into serious question by leading constitutional scholars,” he wrote. “These rulings also communicate to the public the un-American, false notion that remaining in the Oval Office is a ‘stay-out-of-jail’ pass.”
Biden vowed that if elected, he would instruct the department to revisit them.
“I will promptly direct the attorney general to order a comprehensive review of these opinions,” he wrote, “and if it is determined that they are in error and a misreading of our constitutional law, to revise or withdraw them.”
But after he took office in 2021, a chaotic period after Trump had sought to cling to power, that promise fell through the cracks, people familiar with the matter said, speaking on the condition of anonymity to discuss the sensitive issue.
The issue has since become much more fraught because a special counsel, Robert Hur, is now investigating whether Biden improperly handled classified documents. That means those memos — which apply to Hur — are shielding Biden from even the possibility, however remote, of indictment.
The memos were written by the department’s Office of Legal Counsel, whose interpretations of the law bind the executive branch. Jack Goldsmith, a Harvard Law School professor who led that office under the George W. Bush administration, said that the office was very unlikely to independently reconsider its memos on presidential immunity.
“They are disinclined to revisit old precedents unless they have to,” Goldsmith said.
Indeed, in recent months, top Justice Department officials have testified as much in hearings before the Senate Judiciary Committee.
Sen. Sheldon Whitehouse, D-R.I., who sits on the panel, has urged the Office of Legal Counsel to rescind its memos concluding that aides to presidents are “absolutely immune” to being forced to show up in response to congressional subpoenas because judges — including Ketanji Brown Jackson, who is now a Supreme Court justice — have rejected that claim.
At a subcommittee hearing in October, Christopher Schroeder, the assistant attorney general who currently runs the office, told Whitehouse that it did not “spontaneously” reconsider a legal policy opinion unless it was implicated in a question it had been asked.
And last week, Attorney General Merrick Garland told Whitehouse, “My understanding of the long-standing process at OLC is not to reevaluate old opinions unless they are now relevant for a current controversy.” He added that “we have to allocate our resources to cases, which are active cases.”
The Constitution does not say that presidents cannot be indicted while in office. But during President Richard Nixon’s Watergate scandal, and again after President Bill Clinton’s scandal with Monica Lewinsky, politically appointed lawyers at the office said that prosecutors could not charge presidents with crimes.
The office’s reasoning is that the Constitution implicitly immunizes sitting presidents because being charged with a crime would undermine their ability to carry out their constitutional functions given the subsequent distraction and stigma.
Many legal scholars and other specialists have disagreed. Among other reasons, the Supreme Court ruled in 1997 that sitting presidents can be sued, seemingly undercutting the notion that the Constitution cannot allow a sitting president to be entangled in court proceedings.
In 1998, the office of Kenneth Starr, the independent counsel who investigated Clinton, concluded in a memo that the Justice Department’s Watergate-era stance was wrong. (His office also produced a draft indictment of Clinton, but Starr ultimately delivered a report to Congress, which impeached but acquitted Clinton.)
More recently, during and after the Russian interference investigation, Bob Bauer, who served as White House counsel to President Barack Obama and who is now Biden’s personal lawyer, has repeatedly denounced the memos, portraying the office’s reasoning as weak and unsound.
The Times surveyed the 2020 presidential candidates a few months after Mueller turned in his final report about the investigation into the Trump campaign’s ties to Russia and whether Trump obstructed justice. Despite laying out a variety of episodes in his report that raised obstruction concerns, Mueller rendered no judgment about whether Trump had committed obstruction.
Mueller explained that he was bound by the Office of Legal Counsel’s position. While his report did not exonerate Trump of obstruction, he wrote, he did not determine whether Trump should be charged after leaving office because it would not be fair to accuse someone of a crime without a speedy trial.
Mueller’s restraint generated widespread confusion and gave Trump’s attorney general, William Barr, an opening to step in to proclaim Trump cleared of obstruction.
Against that backdrop, most of the contenders for the Democratic Party’s nomination found fault with the office’s reasoning in the candidate survey. Some also said they would simply order the memos rescinded, while others — in a nod to the norm of Justice Department independence — said that, like Biden, they would direct officials there to conduct a fresh analysis.
Notably, Sen. Kamala Harris, who is now vice president, also scorned the Justice Department’s reasoning, although her answer did not indicate whether she would direct the department to address it.
“It is a fundamental tenet of our democratic system of government that no person — not even the president — is above the law,” Harris wrote. “As such, I do not believe that sitting presidents are immune from criminal indictment and trial.”
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