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 MuellerRobert (Bob) Swan MuellerSchiff: Trump acquittal in Senate trial would not signal a 'failure' Jeffries blasts Trump for attack on Thunberg at impeachment hearing Live coverage: House Judiciary to vote on impeachment after surprise delay MORE cited it explicitly as the reason he declined to recommend — or even consider — bringing obstruction charges against President TrumpDonald John TrumpTrump's newest Russia adviser, Andrew Peek, leaves post: report Hawley expects McConnell's final impeachment resolution to give White House defense ability to motion to dismiss Trump rips New York City sea wall: 'Costly, foolish' and 'environmentally unfriendly idea' MORE during the course of his 22-month investigation into Russian interference in the 2016 elections.

ADVERTISEMENT

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 ConnollyGerald (Gerry) Edward ConnollyTrump, Democrats set for brawl on Iran war powers Overnight Defense: Iran crisis eases as Trump says Tehran 'standing down' | Dems unconvinced on evidence behind Soleimani strike | House sets Thursday vote on Iran war powers Democrats 'utterly unpersuaded' by evidence behind Soleimani strike MORE (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 JeffriesHakeem Sekou JeffriesSunday shows preview: Lawmakers gear up for Senate impeachment trial The Hill's Morning Report - Dems to lay out impeachment case to senators next week Seven things to know about the Trump trial MORE (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 PelosiNancy PelosiREAD: House impeachment managers' trial brief Desperate Democrats badmouth economy even as it booms Pelosi offers message to Trump on Bill Maher show: 'You are impeached forever' MORE (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 QuigleyMichael (Mike) Bruce QuigleyTransgender detainees need protection — a letter from lawmakers doesn't provide it Lawmakers to call on ICE to release all transgender detainees House votes to impeach Trump MORE (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 KildeeDaniel (Dan) Timothy KildeePelosi digs in on impeachment rules fight Pelosi faces decision on articles of impeachment Trump shocks, earns GOP rebukes with Dingell remarks MORE (D-Mich.).

The issue has made its way to the presidential primary trail, where Sen. Elizabeth WarrenElizabeth Ann WarrenThe Memo: Sanders-Warren battle could reshape Democratic primary Environmental activists interrupt Buttigieg in New Hampshire Pence to visit Iowa days before caucuses MORE (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 LeeBarbara Jean LeeSteyer calls for cuts to defense spending House to vote on Iran war powers bills sought by progressives Khanna: Timing of Iran bill being weighed against getting bigger majority MORE (D-Calif.). “It needs to happen.”

Not all Democrats, however, are so eager to jump on board. Rep. Maxine WatersMaxine Moore WatersGearing up for a chaotic year on K Street Maxine Waters: Republicans 'shielding' Trump 'going to be responsible for dragging us to war' Green says House shouldn't hold impeachment articles indefinitely MORE (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 KhannaRohit (Ro) KhannaRep. Ro Khanna: You can't claim you're resisting President Trump and hand the Pentagon a blank check Sanders campaign co-chair calls for progressive unity amid senators' fallout The Hill's Morning Report — President Trump on trial MORE (D-Calif.) is also approaching the idea skeptically, warning of “a situation like Bill ClintonWilliam (Bill) Jefferson ClintonTrump lawyers attack House impeachment as 'brazen and unlawful' effort to overturn 2016 results Trump chooses high-profile but controversial legal team The Hill's 12:30 Report: Trump beefs up impeachment defense with Dershowitz, Starr MORE'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 NadlerJerrold (Jerry) Lewis NadlerMcConnell locks in schedule for start of impeachment trial Pelosi: Trump's impeachment 'cannot be erased' House to vote Wednesday on sending articles of impeachment to Senate MORE (D-N.Y.), Ted DeutchTheodore (Ted) Eliot DeutchBipartisan lawmakers condemn Iran, dispute State Department on number of protesters killed Bipartisan lawmakers introduce amendment affirming US commitment to military aid to Israel Ethics sends memo to lawmakers on SCIF etiquette MORE (D-Fla.) and Eric SwalwellEric Michael SwalwellMartha McSally fundraises off 'liberal hack' remark to CNN reporter Enes Kanter sees political stardom — after NBA and WWE Swalwell pens op-ed comparing Trump impeachment to XYZ Affair MORE (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 HuffmanJared William HuffmanDemocrats reach cusp of impeachment Democrats gear up for high-stakes Judiciary hearing Pelosi heading to Madrid for UN climate change convention MORE (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.