The top Democrat on the House Intelligence Committee said Wednesday that the Justice Department needs to reconsider its longstanding position that a sitting president cannot be indicted.
In a CNN interview Wednesday, Rep. Adam Schiff of California, said that the Watergate-era policy might mean that a president would be above the law.
“I think the Justice Department needs to re-examine that Office of Legal Counsel opinion, that you cannot indict a sitting president, under circumstances in which the failure to do so may mean that person escapes justice,” said Mr. Schiff, who likely will become the chairman of the key panel next month.
“I don’t think that the Justice Department ought to take the position and it’s certainly not one that would be required in any way by the Constitution — that a president merely by being in office can be above the law … by waiting out the statute of limitations,” Mr. Schiff said in his appearance on “The Situation Room with Wolf Blitzer.”
Not only does the Office of Legal Counsel position date from the Nixon administration, when a presidential impeachment and trial seemed imminent, it also was reaffirmed during the Clinton administration, when the president actually was impeached.
“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” the 2000 reaffirmation stated.
Though the policy governs Justice Department practices, it obviously has never been tested in an actual legal case.
Special counsel Robert Mueller has indicted several people around President Trump, and federal prosecutors in New York secured a guilty plea from former Trump fixer Michael Cohen for paying hush money to women claiming affairs with Mr. Trump and implied by their statements to the court that they were gathering evidence against the president.
Mr. Schiff told CNN it’s “very likely” that Mr. Mueller will follow the Justice policy. In May, Trump attorney Rudolph W. Giuliani told CNN that the special counsel told the Trump team it had concurred with the Justice guidelines.