Ask Jordan: Why didn’t Garland rescind the DOJ policy on prosecuting sitting presidents?

“From a legal standpoint, why didn’t Merrick Garland rescind the DOJ policy barring prosecution of a sitting president, which seems to be treated as if it were a law enacted by Congress?”— Bobbie

Hi Bobbie,

The short answer is twofold: Rescinding the policy 1) would have been out of character for the Justice Departmentunder Garland, then the attorney general; and 2) it wouldn’t have likely made a practical difference anyway.

You’re correct that the policy has been treated as if it’s a law. Really, it has been treated even more powerfully than that.

The DOJ’s long-standing viewis that prosecuting a sitting president is unconstitutional. That is, according to the department, it violates principles inherent in the separation of powersamong the branches of government, as laid out in the Constitution.

In a 2000 memorandumduring Democrat Bill Clinton’s presidency, the DOJ’s powerful Office of Legal Counselrecalled that during Republican Richard Nixon’s presidency in 1973, the department concluded that prosecuting a sitting president would “unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.” The 2000 memo’s analysis maintained that same conclusion.

I mention that background for two reasons.

First, to show how, in the hypothetical scenario you raise, the Garland-led DOJ would have ditched a long-held, bipartisan policy. Such a stark move would have been out of step with his relatively conservative tenure as attorney general during the Biden administration.

Second, and perhaps more important for practical purposes, the policy’s constitutional underpinnings suggest that ditching it wouldn’t make a difference.

In the immediate sense, it wouldn’t have mattered because the DOJ could have reversed the policy reversal once Donald Trump returned to office. Policy or no policy, the Trump DOJwas never going to prosecute Trump.

And perhaps most crucially: No matter the department’s stance, the Supreme Court would likely block any attempt to prosecute a sitting president.

The court’s 2024 presidential immunity rulingissued the summer before Trump’s White House return, dealt with the criminal immunity of former (not sitting) presidents. But while granting substantial protection to former executives, the high court seemed to take the immunity of sitting presidents as a given. In a footnote to Trump v. United States, the court quoted then-special counsel Jack Smith’s brief to the justicesin which Smith said the department “has long recognized” that “the separation of powers precludes the criminal prosecution of a sitting President.”

To be clear, if the court that granted then-former President Trump broad immunitywere pressed to decide whether sitting presidents are also immune, the reason that it would likely find such protection wouldn’t merely be that the DOJ had long recognized it (though the court would probably at least note the seismic policy shift). Rather, it’s because the reason underlying that recognition — stemming from the president’s unique role in our constitutional system — is one that the Roberts Courtwould naturally arrive at on its own, no matter the DOJ’s view.

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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.