A coalition of progressive groups asked the Department of Justice (DOJ) on Thursday to explain its internal policies on the question of whether presidents can be charged with a crime.
Twelve advocacy and watchdog organizations sent a letter to Attorney General Merrick Garland calling on him to clarify the DOJ’s position as the House committee investigating the Jan. 6, 2021, Capitol attack builds its case that Trump broke the law to undermine the 2020 election results.
The groups said they are concerned that the department’s longstanding legal positions may be constraining federal law enforcement from seriously considering the possibility of charging Trump with a crime despite growing evidence that could support prosecuting him under the same criminal statutes the DOJ has used against hundreds of Jan. 6 rioters.
“If the Justice Department believes that presidents of the United States are exempt from 18 U.S.C. § 1512(c)(2) or from any other criminal law based on a ‘clear statement rule,’ it must tell the public and Congress, to give Congress the opportunity to close this indefensible loophole,” the letter reads, citing the criminal statute for obstruction of an official proceeding.
“If our fears are groundless, and the Justice Department believes that former presidents are subject to the same criminal laws as every other citizen, it is entirely appropriate to reassure the public of that fact.”
Groups that signed the letter included the Project on Government Oversight, Citizens for Responsibility and Ethics in Washington, the Constitutional Accountability Center, Public Citizen and the Revolving Door Project.
A spokesman for the Justice Department did not immediately respond when asked to comment on the letter.
Despite some signs that the DOJ’s Jan. 6 investigation has moved closer to Trump, it’s unclear whether the department’s leadership is seriously considering taking the unprecedented step of charging a former president with a crime.
The groups behind Thursday’s letter said they’re concerned binding legal memos from the DOJ’s Office of Legal Counsel (OLC) going back decades might be seen as roadblocks for investigators.
They asked Garland to specifically explain how a guideline known as the “clear statement rule” might apply. The rule, articulated in several OLC memos since the 1990s, holds that the department must interpret criminal laws as “not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.”
The OLC, which issues legal opinions that are binding on the entire executive branch, often shields its memos from the public. Government transparency advocates say the opaque office is allowed to essentially create secret laws with little oversight.
In 2019, then-special counsel Robert Mueller said his office understood that it was bound by OLC opinions holding that a sitting president could not be charged with a crime.
The president and the attorney general have the authority to override OLC opinions, but it remains largely unclear which of the office’s memos remain in effect today or whether the department’s leadership sees any of them as an impediment to investigating or prosecuting Trump.
“To the extent that nonpublic Justice Department memoranda related to this subject exist, we strongly urge you to make such memoranda available to Congress and the public,” the coalition of progressive groups wrote Thursday.