The month before he was sworn into office, President Biden vowed to keep a significant distance between himself and any actions the Justice Department might take under his watch.
“I’m not going to be telling them what they have to do and don’t have to do,” he said in a CNN interview in December 2020. “I’m not going to be saying, ‘Go prosecute A, B or C.’ I’m not going to be telling them. That’s not the role. It’s not my Justice Department, it’s the people’s Justice Department.”
The comments encapsulated a core aspect of Biden’s run for office: his promise to restore confidence in American institutions after the chaotic tenure of President Donald Trump, who often showed little compunction about employing the levers of government for his own ends.
That notion — the ironclad separation of law and politics — will now be tested like rarely before in American history.
Trump, who is Biden’s predecessor and also his leading 2024 opponent, has now been indicted and charged with crimes that Biden’s own Justice Department is prosecuting. Anything the president says that is critical of Trump will probably be seized upon by Republicans as evidence that he is trying to influence the legal case. Any appearance he makes with his own attorney general, Merrick Garland, will face intense scrutiny and could fuel further attacks.
“President Biden has to keep a moat between himself and the Justice Department,” said Douglas Brinkley, an author and presidential historian. “You definitely don’t want to see Biden and Merrick Garland whisper together. They barely can be seen at a public event together now. They certainly can’t be in huddle mode. That’s a strange scenario in itself.”
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Even before Trump’s indictment for allegedly mishandling classified documents became public Thursday night, Biden was asked by a reporter how he could persuade Americans to trust the independence and fairness of his Justice Department when it is repeatedly attacked by Trump.
Biden nodded toward an answer he is likely to continue giving. “Because you notice I have never once — not one single time — suggested to the Justice Department what they should do or not do, relative to bringing a charge or not bringing a charge,” he said at the close of a news conference with British Prime Minister Rishi Sunak. “I’m honest.”
On Friday, Biden largely shrugged off shouted questions about Trump as he traveled to North Carolina for several events. The White House, asked for comment on the indictment, referred questions to the Justice Department, which also was not commenting.
“We are just not going to comment on this case and would refer you to the DOJ, which runs its criminal investigations independently,” Olivia Dalton, the White House principal deputy press secretary, said Friday.
“I just don’t have any comment,” she reiterated at least seven times. Dalton did confirm that Biden and other senior White House aides had no advance knowledge of the indictment and found out about it from news reports.
“I have no comment,” Biden repeated, while touring machinery used for job training at Nash Community College in Rocky Mount, N.C.
Asked later if he’d spoken to his attorney general, Biden responded: “I’ve not spoken to him at all, and I’m not going to speak with him. And I have no comment on that.”
To complicate the politics further, the president faces his own investigation by special counsel Robert Hur, who is looking into allegations that Biden, too, improperly handled classified documents. The cases are different — Biden’s seems to involve far fewer documents, and unlike Trump, he appears to have fully cooperated with investigators — but Trump has repeatedly cited Biden’s case, suggesting without evidence that it is more serious than his own.
If Biden is cleared — as Trump’s vice president, Mike Pence, was last week, after accidentally taking a small batch of classified documents and voluntarily giving them back — Trump’s supporters are likely to claim a double standard.
In addition, Biden’s son Hunter is currently under federal investigation and faces potential tax and gun charges. Prosecutors are expected to resolve that case soon by filing charges, closing the case or reaching a plea deal, any of which could bring political complications to the White House.
The U.S. attorney overseeing that case, David C. Weiss, was appointed by Trump, and Biden has not moved to replace him, presumably to avoid any appearance that he is interfering in his son’s case.
In the short term, Biden may be able to avoid weighing in on the case and will no doubt attempt to keep it at arm’s length in the coming weeks. But the case will unfold at the same time as the turbulent presidential campaign, probably forcing Trump’s case to the forefront and potentially making it hard for Biden to ignore.
And the president is hardly known as the most disciplined speaker, as even his close aides acknowledge.
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“It sets our country up for a bizarre moment, with a sitting president trying to put an ex-president in jail,” Brinkley said. “It’s super tricky. … It is a very fine dance that Biden has to do. He has to use all his finesse and make sure he doesn’t get trapped into attacking Trump in an unsavory manner about the Miami case. He makes one screw-up with that, and it blows up big.”
John Dean, former White House counsel for President Richard M. Nixon, whose congressional testimony against the president during Watergate hastened Nixon’s resignation, said that Biden so far has been “very, very savvy” by distancing himself from the investigation.
“As president, he’s in a delicate position,” Dean said. “Because this happened — because his predecessor compromised so much national security information by waltzing off with it at the end of his presidency.”
Dean said that Biden probably has to weigh the national security implications more than any legal or political fallout, meaning he could be more directly involved in international diplomacy.
“It’s the national security, not the political implications, that could involve Biden,” he said. “A lot of diplomacy has to be going on, and it could escalate to his level to assure foreign governments that, ‘Yes we can handle our national security information.’”
During his campaign, Biden often vowed to ensure the Justice Department’s independence if he won, in large part to differentiate himself from Trump. Biden reiterated that message when he announced Garland as his pick for attorney general — a move that came on Jan. 7, 2021, the day after the insurrection at the U.S. Capitol.
“We need to restore the honor, the integrity, the independence of the DOJ of this nation that has been so badly damaged,” Biden said at the time. “I want to be clear to those who lead this department who you will serve: You won’t work for me. You are not the president’s or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation.”
Still, Biden has on occasion commented on legal or criminal matters in ways that his Republican critics, and even some legal observers, have called inappropriate.
In October 2021, Biden said that he hoped a congressional committee, dealing with former Trump aides who threatened to defy their subpoenas, “goes after them and holds them accountable criminally.” Asked if he believed that the Justice Department should prosecute those who do not comply, he said, “I do, yes.”
About an hour later, the Justice Department released a statement reiterating its independence, and Biden later admitted, “The way I said it was not appropriate.”
Biden has also defended his son Hunter amid the years-long federal criminal investigation. “My son has done nothing wrong. I trust him. I have faith in him,” the president told MSNBC in May.
That comment drew concern from a number of legal experts.
“However understandable it might be for a father to express confidence in a son, and however rowdy House Republicans are acting toward Hunter, this is a very serious violation of the norm,” Jack Goldsmith, a Harvard Law School professor and former assistant attorney general, wrote on Lawfare. “It is hard for me to believe that Biden’s comment will actually impact what the prosecutors decide to do; if anything, it will make exonerating Hunter harder. But that does not make the statement any less bad.”
As for the Trump charges, Republicans, without evidence, wasted little time before lambasting the Justice Department for an ostensible double standard.
“Merrick Garland’s DOJ: One standard of ‘justice’ for Republicans, parents, and traditional Catholics. Another for Democrats,” tweeted Rep. Jim Jordan (R-Ohio), who chairs the House Judiciary Committee. Sen. Marsha Blackburn (R-Tenn.) added: “Where are the investigations against the Clintons and the Bidens? What about fairness? Two tiers of justice at work.”
Historians contacted for this article struggled to find parallels to the treacherous landscape facing Biden. No former president has been charged with federal crimes before, after all — let alone one who is seeking to regain the White House.
Some historians mentioned Jefferson Davis, the president of the Confederacy, who was arrested on May 10, 1865, accused of treason and planning the assassination of Abraham Lincoln, and imprisoned for two years at Fort Monroe in Virginia. He was indicted but never tried, and later released on bail.
But that situation is hardly comparable. “It is a very difficult situation,” said presidential historian Robert Dallek. “The question would be, if Trump were convicted, would Biden pardon him? And if he remembered the Ford example, he wouldn’t do it.”
A month after Nixon resigned from office in 1974, his successor Gerald Ford pardoned him, saying that a trial would inflame passions and prevent the country from healing and moving past the Watergate scandal. While Ford’s action has been judged more favorably with the passage of time, it undercut his political standing and contributed to his loss two years later to Jimmy Carter.
“Warren G. Harding could have been indicted and tried, but of course he conveniently died before they could go after him,” Dallek said. “The scandals that were haunting his administration — he at least had the good sense to say, ‘It’s not my enemies, it’s my … friends making my life difficult.’”