Dems eye repeal of Justice rule barring presidential indictments

House Democrats are weighing legislation to scrap the executive guideline that bars the Justice Department from indicting a sitting president.

The informal rule is decades old but has come under heavy new scrutiny since Robert Mueller cited it explicitly as the reason he declined to recommend — or even consider — bringing obstruction charges against President Trump during the course of his 22-month investigation into Russian interference in the 2016 elections.

{mosads}In response to the special counsel’s report, Democrats are piecing together a package of legislation focused largely on shielding elections from foreign influence, including proposals to bar candidates from accepting foreign help of any kind, while making it mandatory that campaigns alert the FBI when such offers are extended.

But some lawmakers want to press further, eying legislation to nullify the Department of Justice’s (DOJ) long-standing determination that presidents cannot be charged with federal crimes while they remain in office.

“It’s definitely on the menu,” said Rep. Gerry Connolly (D-Va.), a member of the House Oversight and Reform Committee. “I’m in favor of expanding enforcement tools and accountability tools, and that’s definitely one of them.”

Rep. Hakeem Jeffries (N.Y.), chairman of the House Democratic Caucus, is also signaling his support. While he has not been involved in talks about specific proposals, Jeffries said, “It strikes me as a reasonable thing to consider.”

“It’s fair to say that one of the options we should consider is revisiting that Department of Justice rule so you don’t have a rogue and lawless president immunized from criminal prosecution,” he said.

It’s unclear how or when the proposal might surface. Connolly said it could appear as part of a larger spending package or as an authorization bill out of the House Judiciary Committee. “But I guarantee you it will be a topic of discussion,” he said.

At issue is a Justice Department policy stretching back 46 years, when former President Nixon was coming under increasing fire surrounding a Watergate scandal that would eventually lead to his impeachment and resignation. In that 1973 memorandum, the DOJ’s Office of Legal Counsel (OLC) resolved that a sitting president cannot be subject to prosecution for federal crimes.

The rationale hinged on bandwidth. The president’s unique responsibilities, the authors determined, “have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution.” With that in mind, the OLC concluded, the only way to remove a sitting president is through impeachment.

The DOJ revisited the question in 2000, following the impeachment of former President Clinton, finding that “the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.”

Mueller leaned heavily on that policy last month in outlining his findings during a brief appearance at the DOJ, where he made clear the agency’s guidelines precluded his team from recommending charges against Trump related to the obstruction allegations it had investigated.

“The special counsel’s office is part of the Department of Justice, and, by regulation, it was bound by that department policy,” he said. “Charging the president with a crime was therefore not an option we could consider.”

Democrats were quick to punch back, arguing that no one — not even the president — is immune to the nation’s laws. 

Speaker Nancy Pelosi (D-Calif.) hammered the DOJ policy, expressing “the deepest disappointment in the Department of Justice holding the president above the law.” It’s a sentiment that’s virtually unanimous in her liberal-leaning caucus, which is conducting investigations of its own — and scrambling for ways to hold Trump to account for allegations of wrongdoing.

“Quoting the president, ‘I could shoot somebody, and my followers wouldn’t leave me.’ Does that mean the president could get away with murder?” asked Rep. Mike Quigley (D-Ill.), a member of the House Intelligence Committee. “It’s clear the Founding Fathers didn’t want anybody to be above the law. They had just ousted a king who flaunted that.”

Quigley said legislation to invalidate the DOJ policy is “a great idea.”

Such a bill has little chance of being considered in the Senate, which is controlled by Trump’s Republican allies. But some Democrats see it as a viable messaging tool heading into the 2020 elections.

“If I were a Republican member of the Senate, I wouldn’t want to have to explain why the president is not subject to the laws of the United States,” said Rep. Dan Kildee (D-Mich.).

The issue has made its way to the presidential primary trail, where Sen. Elizabeth Warren (D-Mass.) has proposed a slate of Mueller-based reforms, including enactment of a new law “clarifying Congress’s intent that the Department of Justice can indict the president of the United States.”

Warren’s idea is catching on with Democrats in the Capitol, who have grown increasingly frustrated with the administration’s stonewalling of their investigations.

“If you believe that no one is above the law, then she is right,” said Rep. Barbara Lee (D-Calif.). “It needs to happen.”

Not all Democrats, however, are so eager to jump on board. Rep. Maxine Waters (D-Calif.) questioned the effectiveness of such a law since it would require officials within the president’s own Justice Department to prosecute their boss.

“That’s why you have impeachment,” she said. “Because when the president is unfit — and it doesn’t have to be criminal — when the Congress decides that he’s not fit to be president, then that’s what impeachment is for. That’s what we’re supposed to do.”

Rep. Ro Khanna (D-Calif.) is also approaching the idea skeptically, warning of “a situation like Bill Clinton’s, [where] there was an overzealous prosecutor.” Khanna said Democrats should first conduct hearings to examine the advantages and drawbacks of such a change.

“There’s an old saying that bad facts make bad law,” he said. “And I’d be careful of making sweeping legal decisions based on Trump’s conduct.”

Still, there appear to be no divisions among the Democrats when it comes to the idea that the Constitution provides no license for presidents to flout the law with impunity. One proposal, introduced last month by Reps. Jerrold Nadler (D-N.Y.), Ted Deutch (D-Fla.) and Eric Swalwell (D-Calif.), drills that point home by pausing the statute of limitations for offenses committed by sitting presidents until they exit the White House. And that may just be the start.

Trump has challenged enough conventions, many Democrats say, that Congress will be forced to enshrine new laws that were previously thought unnecessary — including the voiding of the OLC guideline — even if it’s after he’s gone.

“There will come a point when we have a better political climate in the Senate and a different president, and we’re going to want to take stock of what we’ve gone through in this presidency,” said Rep. Jared Huffman (D-Calif.).

“A whole bunch of norms are going to need to be codified, institutions are going to need to be bolstered, and policies like that are going to have to be modernized,” he said.