WASHINGTON — When Joseph R. Biden Jr. ran for the White House in 2019, he sharply criticized the Justice Department’s long-standing view that presidents who commit crimes are immune from prosecution while in office and vowed to reconsider. that position.
But more than two years into his presidency, and now facing an investigation into whether he or his team mishandled classified documents when he left the Obama administration, Biden has yet to order such a review, according to people familiar with the matter.
A White House spokesman declined to comment.
Biden made his promise a few months after special counsel Robert S. Mueller III completed the investigation into Russian interference in the 2016 election. The Justice Department’s position on presidential immunity had complicated Mueller’s consideration of whether various efforts of President Donald J. Trump to impede the investigation constituted criminal obstruction.
Mr. Biden was among a litany of critics who strongly questioned the reasoning behind the department’s stance, laid out in 1973 other 2000 notes The New York Times asked about those memos, from the Nixon and Clinton eras, when polling presidential candidates on executive power four years ago.
Specifically, The Times asked the contenders if they agreed with the department’s position, and if not, if they would instruct it to republish those memos. Writing that it is a “core tenet that no one is above the law, especially the president,” Mr. Biden expressed deep skepticism about the department’s logic.
“Opinions that the Department of Justice has issued in the past, immunizing the president from liability for criminal conduct while in office, have been seriously challenged by leading constitutional scholars,” he wrote. “These rulings also communicate to the public the false and un-American notion that staying in the Oval Office is a ‘stay out of jail’ pass.”
Mr. Biden promised that, if elected, he would direct the department to review them.
“I will immediately direct the attorney general to order a thorough review of these opinions,” he wrote, “and if they are found to be in error and a misreading of our constitutional law, to review or withdraw them.”
- FCC Selection Withdrawals: Gigi Sohn, one of President Biden’s nominees to the Federal Communications Commission, withdrew from consideration, saying she had faced “relentless, dishonest and cruel attacks.”
- The president’s health A lesion removed from Biden’s chest last month was a common skin cancer and no further treatment was needed, his doctor said.
- Cyber Security Strategy: The Biden administration issued a new strategy that called for more mandates to the companies that control most of the nation’s digital infrastructure and an expanded government role to disrupt hackers.
- Medal of Honor: The President awarded the Medal of Honor to Colonel Paris Davis, one of the first black Special Forces officers to be nominated, and later ignored, for the honor.
But after he took office in 2021, a chaotic period after Trump tried to cling to power, that promise faded, said people familiar with the matter, who spoke on condition of anonymity to discuss the sensitive issue.
Since then, the issue has become much more tense because a special counsel, Robert Hur, is now investigating whether Mr. Biden mishandled classified documents. That means those memos, which apply to Hur, are shielding Biden from even the remote possibility of impeachment.
The memos were written by the department’s Office of Legal Counsel, whose interpretations of the law bind the executive branch. Jack L. Goldsmith, a Harvard Law School professor who led that office under the George W. Bush administration, said it was highly unlikely the office would independently reconsider its memos on presidential immunity.
“They are not willing to review old precedents unless they have to,” Goldsmith said.
In fact, in recent months, top Justice Department officials have proven both in hearings before the Senate Judiciary Committee.
Senator Sheldon Whitehouse, a Rhode Island Democrat on the panel, has urged the Office of Legal Counsel to renew its grades concluding that aides to presidents are “absolutely immune” from being forced to appear in response to congressional subpoenas because justices, including Ketanji Brown Jackson, who is now a Supreme Court justice, have He rejected that claim.
At a subcommittee hearing in October, Christopher Schroeder, the assistant attorney general who currently heads the office, told Whitehouse that he would not “spontaneously” reconsider a legal policy opinion unless it was implicated in a question put to him.
And last week, Attorney General Merrick B. Garland told Mr. Whitehouse: “I understand that the long-standing process at the OLC is not to re-evaluate past opinions unless they are now relevant to a current controversy.” He added that “we have to allocate our resources to the cases, which are active cases.”
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The Constitution does not say that presidents cannot be impeached while in office. But during President Richard M. Nixon’s Watergate scandal, and again after President Bill Clinton’s scandal with Monica Lewinsky, politically appointed lawyers in the office said prosecutors couldn’t charge presidents with crimes.
The office’s reasoning is that the Constitution implicitly immunizes sitting presidents because being charged with a crime would undermine their ability to carry out their constitutional duties given the ensuing distraction and stigma.
Many legal scholars and other specialists disagree. Among other reasons, the Supreme Court ruled in 1997 that sitting presidents can be sued, apparently undermining the idea that the Constitution cannot allow a sitting president to be embroiled in legal proceedings.
In 1998, the office of Kenneth Starr, the independent attorney who investigated Clinton, concluded in a memo that the Watergate-era Justice Department position was incorrect. (His office also produced a draft indictment against Clinton, but Starr eventually delivered a report to Congress, which indicted Clinton but cleared him.)
More recently, during and after the Russian interference investigation, Bob Bauer, who served as White House counsel to President Barack Obama and who is now Biden’s personal attorney, has repeatedly denounced the memos, portraying the office’s reasoning as weak and unsound.
The Times polled the 2020 presidential candidates a few months after Mueller delivered his final report on the investigation into the Trump campaign’s ties to Russia and whether Trump obstructed justice. Despite laying out a variety of episodes in his report that raised concerns of obstruction, Mueller did not pass judgment on whether Trump had engaged in obstruction.
Mr. Mueller explained that he was bound by the position of the Office of Legal Counsel. While his report did not clear Trump of obstruction, he wrote, he did not determine whether Trump should be charged after leaving office because it would not be fair to charge someone with a crime without a speedy trial.
Mueller’s restraint created widespread confusion and gave Trump’s attorney general, William P. Barr, an opportunity to intervene and proclaim that Trump was clear of obstruction.
Against that backdrop, most contenders for the Democratic Party nomination found fault with the office’s reasoning in the candidate poll. Some also said they would simply order the memos rescinded, while others, in a nod to the Justice Department’s rule of independence, said they, like Biden, would order officials there to conduct a new analysis.
Notably, Sen. Kamala Harris, who is now vice president, also dismissed the Justice Department’s reasoning, though her response did not indicate whether she would direct the department to address it.
“It is a fundamental tenet of our democratic system of government that no person, not even the president, is above the law,” Ms. Harris wrote. “As such, I do not believe that incumbent presidents are immune from criminal prosecution and trial.”