While a decades-old internal Justice Department guideline protects a sitting president from being indicted by the federal government, some congressional Democrats appear to be weighing legislation to repeal this rule.
The informal rule has come under heavy criticism in recent weeks after special counsel Robert Mueller cited it as a reason for not bringing any obstruction charges against President Donald Trump.
“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,” The Hill reported Saturday.
But that’s not all.
Some Democrats also want to use the legislative process to nullify the long-standing rule that says sitting presidents can’t be federally indicted.
“It’s definitely on the menu,” Virginia Democrat Rep. Gerry Connolly, who’s on the Oversight and Reform Committee, told The Hill.
“I’m in favor of expanding enforcement tools and accountability tools, and that’s definitely one of them,” he said.
New York Democrat Rep. Hakeem Jeffries echoed that sentiment, calling such legislation a “reasonable thing to do.”
“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,” Jeffries, chair of the House Democratic Caucus, told The Hill.
The Hill noted it’s unclear how the measure could be introduced, whether it be in a spending bill “or as an authorization bill out of the House Judiciary Committee.”
Regardless, Connolly said “it will be a topic of discussion.”
But some Democrats aren’t so sure it’s such a good idea.
Democrat Rep. Maxine Waters of California, for instance, said such a proposal might not be as effective as Democrats hope, suggesting officials within Trump’s own Justice Department would be hesitant to charge him with a crime.
“That’s why we have impeachment,” Waters told The Hill. “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.”
The DOJ policy in question comes from a 1973 memorandum from the DOJ’s Office of Legal Counsel, written while then-President Richard Nixon was mired in the Watergate scandal
“A President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution,” the document reads.
In 2000, after then-President Bill Clinton was impeached, the DOJ noted that “the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.”
Last month, Mueller cited this rule in explaining why he did not charge Trump with a crime.
“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,” Mueller added.
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