Sen. Elizabeth Warren’s announcement that she would upend Justice Department policies against indicting sitting presidents seems likely to become a rallying cry for the 2020 White House hopefuls.
After Special Counsel Robert S. Mueller III publicly announced he was prevented in part by a 1973 memo from even considering whether to indict President Donald Trump on charges related to obstruction of justice, the Massachusetts Democrat released a campaign proposal that involves changing the practice.
Specifically, she is declaring that the assistant attorney general responsible for the Office of Legal Counsel in her administration would throw out the 1973 memo, to which Mueller believed he was bound.
Warren said in a statement that, “I pledge to nominate an OLC head who will reverse the Watergate-era rule that a President cannot be indicted for criminal behavior.”
The memorandum in question was issued in the midst of the Watergate scandal, meant that “charging the president with a crime was therefore not an option we could consider,” Mueller said Wednesday.
“The Department of Justice’s Office of Legal Counsel is in charge of writing opinions that govern the conduct of the executive branch, including opinions about the Constitution. But Donald Trump has used the OLC as a rubber stamp for whatever he wants to do,” Warren said Friday.
Any of the Democrats running for president in 2020 could take that executive action to reverse the interpretation without needing approval from Congress, making it somewhat low-hanging fruit as the debate about a potential Trump impeachment inquiry continues.
But Warren wants to go further, also saying that there would be legislative proposals for specifying that a sitting president can be charged with violations of the federal criminal statutes for actions in office, amending the criminal code.
“If Congress does so, one of the strongest arguments against indictment disappears: that the Constitution gives Congress the sole authority to decide when to interfere with the President’s duties, and that a criminal indictment would forcibly take that power away from Congress,” Warren said. “It’ll also remove any statutory ambiguity that remains.”
Warren was quick to call for impeachment proceedings against Trump after reading the redacted version of the report from the special counsel’s office.
The other piece of the proposal outlined by Warren Friday would involve amending the law so that, in effect, a future Justice Department could not re-impose the Watergate restrictions on indictments of occupants of the Oval Office.
Michael Macagone contributed to this report.