Sen. Elizabeth Warren (D-MA) wants Congress to pass a law making it legal to indict a sitting president, in the wake of the troubling allegations against President Donald Trump outlined in special counsel Robert Mueller’s final report.
“If Donald Trump were anyone other than the President of the United States right now, he would be in handcuffs and indicted,” the 2020 candidate wrote in a Medium post Friday morning, citing numerous accusations against the president outlined in Mueller’s 400-plus page report, which was made public last month following a two-year investigation.
Current Justice Department (DOJ) policy prevents a sitting president from being charged with a crime, an opinion authored by the Office of Legal Counsel (OLC).
In the wake of Mueller’s investigation, which found at least 10 instances in which Trump may have committed obstruction of justice, many are questioning whether the rule — which is binding, but not equivalent to Supreme Court rulings, as The Washington Post noted — needs to be re-evaluated.
“When Special Counsel Robert Mueller’s report was released on April 18, I sat down and read it,” Warren wrote Friday. ” … And when I got to page 448, three things were clear to me. First, a hostile foreign government attacked our 2016 election to help candidate Donald Trump get elected. Second, candidate Donald Trump welcomed that help. Third, when the federal government tried to investigate, now-President Donald Trump did everything he could to delay, distract, and otherwise obstruct that investigation.”
Quoting Mueller, who said in a rare press conference Wednesday that “charging the president with a crime was … not an option we could consider” under current DOJ policy, Warren added, “Mueller’s statement made clear what those of us who have read his report already knew: He’s referring President Trump for impeachment, and it’s up to Congress to act. … But impeachment isn’t supposed to be the only way that a President can be held accountable for committing a crime.”
Warren’s proposed solution for getting around current DOJ policy: Change the rules.
“Congress should make it clear that Presidents can be indicted for criminal activity, including obstruction of justice,” she wrote. “And when I’m President, I’ll appoint Justice Department officials who will reverse flawed policies so no President is shielded from criminal accountability.”
Warren’s proposed plan includes three prongs. First, pass a law clarifying Congress’ intent that DOJ officials can indict the president if necessary; second, change current obstruction of justice statutes to allow for that indictment if “a president abuses the powers of the office”; and third, appoint an assistant attorney general to oversee OLC and reverse current policy on the matter.
On the last point, Warren was especially critical, singling out Attorney General William Barr, who has been accused of protecting Trump rather than acting as an independent party by offering misleading summaries of Mueller’s findings on multiple occasions, and covering up Mueller’s reasoning for not bringing charges against the president.
“Attorney General Bill Barr has disgraced himself by acting like Trump’s personal defense attorney,” she wrote. “… The Attorney General must represent the people, not the President.”
If elected, Warren said she would “nominate an OLC head who will reverse the Watergate-era rule that a President cannot be indicted” for a crime.
“No matter what he may think, Donald Trump is not a King. No President is. And our democracy only works if everyone can be held accountable. These changes will make sure that’s the case for generations to come,” she added.
The question of whether a sitting president can be indicted goes back to the early 1970s, when OLC initially reviewed the issue in a DOJ memorandum, determining that the logical course of action would be to wait to charge them until after they were no longer in office. At the time, OLC also weighed the idea of suspending the statute of limitations on any crimes committed to ensure the window for prosecution had not passed by the time the president was out of office.
OLC also revisited the issue in 2000, as Vox notes, and in 1997, the question came up once more, during 1997’s Clinton v. Jones. The Supreme Court in that case ruled that a sitting president was subject to private civil lawsuits, barring those that may interfere with their duties under the constitution.
As Warren and others consider changes to current DOJ policy, Congress is discussing its next steps. Already, several House Democrats and one Republican congressman have called for impeachment proceedings against Trump to begin, though Democratic leaders have held off on any concrete decisions thus far.
Warren is among those pushing for a strong response.
“… I came out in favor of impeachment after reading all 448 pages of Mueller’s report,” she wrote Friday. “This is not about politics — it’s our constitutional duty as members of Congress. It’s a matter of principle.”