They told me if Republicans voted for Trump we’d end up with a president who pressured the Justice Department to go after his political enemies.
And they were right.
“Probably best @POTUS leave this to the AG,” tweeted David Axelrod with polite understatement after witnessing this spectacle. Probably, David.
Q: What's your message to people who defy congressional subpoenas on the January 6 committee?
POTUS: I hope that the committee goes after them and holds them accountable.
Q: Should they be prosecuted by the Justice Department?
POTUS: I do, yes. pic.twitter.com/R7EZUz6BLl
— CSPAN (@cspan) October 15, 2021
That sound you’re hearing this afternoon is groaning from the January 6 committee, the DOJ, the White House — everyone, basically, after digesting Biden’s comments.
“Our Justice Department is going to operate independently on those issues, how to respond to any of that,” said President Norms to CNN last December about how his administration would approach criminal prosecutions. “I am not going to be telling them what they have to do and don’t have to do. I am not going to be saying, go prosecute, A, B, or C.” If you strain, you can make the argument that Biden didn’t “tell” the DOJ to charge Steve Bannon or anyone else in the clip above. He gave his opinion, not a direct order.
But how is the Justice Department supposed to proceed now that their boss has taken a position on this issue? They’re in a no-win situation.
So much for that pledge to return to an independent Department of Justice.
What's the U.S. Attorney supposed to do now? His boss is sending him a message about a particular prosecution. Discretion gone. https://t.co/49NLSJG5mA
— Gabriel Malor (@gabrielmalor) October 15, 2021
If they don’t charge Bannon, they’ll make Biden look like a chump. If they do charge him, they’ll look like they’re doing the president’s bidding.
Usually not a good development when the DOJ has to issue a formal statement reminding the president and the country that criminal indictments are pursued on the merits, not on the order of a political superior:
After President Biden told reporters he thinks DOJ should prosecute those who defy Jan. 6 congressional subpoenas, a DOJ spox said: “The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop.”
— Katherine Faulders (@KFaulders) October 15, 2021
Also usually not a good sign when the White House press secretary has to issue a statement on Friday night cleaning up a mess her boss just left on the carpet:
As @potus has said many times, January 6th was one of the darkest days in our democracy. He supports the work of the committee and the independent role of the Department of Justice to make any decisions about prosecutions.
— Jen Psaki (@PressSec) October 16, 2021
Psaki’s been at pains during press briefings to say that the DOJ won’t be pressured by the White House on how to handle the defiance of January 6 subpoenas. “That would be up to the Department of Justice, and it would be their purview to determine. They’re an independent agency,” she told reporters last week. It took Biden 20 seconds to torch that message in his exchange with the media yesterday.
Now all of his allies are jammed. Once the committee and the House vote this week to recommend criminal contempt for Bannon, Merrick Garland will have to decide whether to take the case to trial knowing that Biden just made it easier for Republicans to argue that he’s nothing more than the legal muscle in a partisan witch hunt. Meanwhile, the committee, which has labored to present its investigation as an impartial bipartisan response to a national crisis, has been saddled with the political baggage of having the head of the Democratic Party publicly calling for jailing its targets.
The only beneficiaries of Biden’s comments are Bannon, who gets to pit himself politically against the president, and Trump. If he lands back in the White House in 2025, he’ll find this precedent useful when he inevitably starts leaning on the Justice Department to pursue his own political enemies. (Again.) “Biden did it too!”