We’ve come a long way from the midterm campaign, when Nancy Pelosi didn’t even want to breathe anything about removing Donald Trump from office. Later today Pelosi will take the gavel as House Speaker, but she sat down first with NBC’s Savannah Guthrie to discuss Democratic priorities in the next session. She also made clear that she disagreed with nearly fifty years of assessments at the Department of Justice on whether a sitting president can be indicted … although Pelosi seems confused on what “sitting” means:
— Savannah Guthrie (@SavannahGuthrie) January 3, 2019
There seems to be confusion on both ends of this conversation. Pelosi gave a non-sequitur response to Guthrie’s question about indicting a sitting president. Pelosi then responds that a president can be indicted once out of office, a point which literally no one disputes. (It’s why Gerald Ford pardoned Richard Nixon after the latter’s resignation.) Guthrie then presses Pelosi a couple of times about the possibility of Robert Mueller indicting a president who’s still in office but then says there’s no law determining the question, to which Pelosi agrees and says it’s an open question.
Except that there is law, and it’s not an open question. The 1973 opinion from the Office of Legal Counsel that a sitting president cannot be indicted — most recently affirmed during Bill Clinton’s administration — has the force of policy. The law governing the special counsel only give Mueller the authority of a US Attorney, an office which is subject to those policies and OLC findings. Furthermore, the statute explicitly states that a special counsel has to abide by DoJ policies and regulations, and only an Attorney General can waive that requirement:
§ 600.7 Conduct and accountability.
(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.
So there is in fact a law preventing Mueller from indicting Trump while in office. Don’t expect William Barr to issue Mueller a waiver on it, either. The appropriate remedy for dealing with a president who has broken the law in a significant manner is impeachment, not indictment. What does Pelosi plan to do now that she can control an impeachment process? Wait and see, of course:
Is @NancyPelosi willing to rule out impeachment?
“We have to wait and see what happens with the Mueller report. We shouldn’t be impeaching for a political reason, and we shouldn’t avoid impeachment for a political reason.” -Pelosi pic.twitter.com/J5e53528Ui
— TODAY (@TODAYshow) January 3, 2019
Why rush? It would be simpler for Pelosi if Mueller could indict Trump, but even her caucus won’t act without knowing for sure what Mueller will — or more importantly, won’t — produce. For now, it’s better and safer for her to have Trump twisting in the wind and Republicans on defense. That will give Pelosi room to push hard on legislative priorities in the first few weeks, and they may even try working with Trump on a project or two:
Democrats will start the year focusing on areas of agreement. In the coming weeks, lawmakers and aides say, the House will pass a series of anti-corruption and campaign finance proposals. Then they’ll turn to health care proposals aimed at bolstering Obamacare and protecting people with pre-existing medical conditions — a central campaign promise that led to Democrats’ 40-seat romp on Election Day.
Early in the spring, House Democrats will also vote on a series of gun proposals that will expand background checks. A caucus split could rear its head then, as some Democrats push for more aggressive language banning certain types of assault weapons.
Even as the party veers left, some House Democrats also say they hope to work with Trump on a massive infrastructure bill and legislation lowering prescription drug prices — two rare areas of accord with the Republican president who often defies his party’s traditional policy stances.
“We have a zillion other issues where we disagree with President Trump, where Democrats can have free rein to criticize him or disagree with him,” said Transportation Chairman Pete Peter DeFazio (D-Ore.). “We don’t need to disagree over the long-term delayed investment in our national infrastructure, which is an embarrassment.”
If Pelosi takes up impeachment first, everything else will get derailed. She can’t afford to waste the time on an impeachment that will go nowhere in the Senate, producing a failed attack that might pre-empt any action possible after Mueller’s report gets filed. Politically speaking, it might be best for Pelosi to hold onto Mueller’s report and use it in the 2020 cycle, the best version of “wait and see” for her purposes.