President Joe Biden told reporters in 2019 that if he became president, he would require the Justice Department to revisit the topic of presidential immunity, but he has failed to live up to his word two years into his presidency.
Biden said he disagreed with previous Justice Department opinions that a president could not be indicted while in office, claiming that a president is “not above the law.”
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During President Richard Nixon’s Watergate scandal and again after President Bill Clinton’s scandal with Monica Lewinsky, lawyers at the Justice Department’s Office of Legal Counsel determined in 1973 and 2000 that prosecutors could not charge presidents with crimes while in office. But the Constitution itself does not speak to that notion.
“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,” Biden told the New York Times in 2019. “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 added that if he were elected, he would tell the department to perform a comprehensive review of the opinions that were issued during the Nixon and Clinton eras.
“If it is determined that they are in error and a misreading of our constitutional law, revise or withdraw them,” he said.
His statement came shortly after special counsel Robert Mueller completed his investigation into Russian interference in the 2016 election. Mueller had rendered “no judgment” on whether then-President Donald Trump had committed obstruction of justice crimes during Mueller’s inquiry.
Since Biden has not ordered the review since taking office, the opinion could shield him from being indicted in a current investigation into whether Biden improperly handled classified documents while he was vice president.
Vice President Kamala Harris, who was a senator at the time, also disagreed with the memos on presidential immunity in 2019.
“It is a fundamental tenet of our democratic system of government that no person — not even the president — is above the law,” Harris told the New York Times. “As such, I do not believe that sitting presidents are immune from criminal indictment and trial.”
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Last week, Attorney General Merrick Garland told Sen. Sheldon Whitehouse (D-RI) that the Office of Legal Counsel does not reevaluate previous opinions unless it is important in a current matter.
“We have to allocate our resources to cases, which are active cases,” Garland said during a hearing of the Senate Judiciary Committee.
