Former President Donald Trump, now running for president again in 2024, plans to expand a Nixon-era policy memo that limits the Department of Justice’s (DOJ) ability to charge a sitting president with a crime to include former presidents if he wins in November, sources with knowledge of his discussions have said.
Doing so would help Trump avoid future criminal charges should he become president again.
That DOJ memo, written by the department’s Office of Legal Counsel (OLC) in 1973, does not technically have the force of law. However, it is so ingrained in the department’s thinking that it has been cited multiple times since, including by special counsel Robert Mueller during the Russia election interference investigation to explain why no charges were brought against Trump.
Trump has demanded multiple times over the past several months that the policy be applied now to shield him from the dozens of criminal charges he faces, including those relating to his efforts to overturn the 2020 presidential election, which he lost to President Joe Biden. Trump claims that presidents, including ex-presidents, need to have such immunity recognized beyond their tenure, even in situations where they “cross the line.”
“Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end,” Trump said in a recent Truth Social post.
No other president besides Trump has ever been indicted after serving in office. But if he’s elected president again, Trump may direct the OLC to extend the memo to protect ex-presidents, too.
According to two sources speaking to Rolling Stone, Trump and his political and legal advisers have discussed for several months the idea of expanding the scope of the memo. The sources noted that they themselves have also discussed presidential immunity with Trump.
If Trump is elected this fall, he will almost certainly use the presidency to drop all federal charges against him. The Rolling Stone report suggests that he will also seek to ensure that he won’t be held accountable after leaving office.
Trump’s demands for “absolute immunity” both during and after a president exits office are hypocritical, according to a report from Citizens for Responsibility and Ethics in Washington (CREW). The organization showcased multiple instances of Trump, prior to becoming president and during his time in the White House, suggesting that his presidential predecessors be charged with crimes, including treason.
Legal experts have been critical of Trump’s demands for immunity long after departing from the Oval Office.
“What Trump wants is immunity from being scrutinized at all. Like an emperor who decrees that none shall be allowed to gaze directly upon him, Trump wants all his actions to be immune from accountability,” said former federal prosecutor Shan Wu in an op-ed for The Daily Beast last week, prior to the Rolling Stone report.
[Trump] wants to say the quiet part out loud by making it the law of the land that he cannot be prosecuted. This is the kind of dark American future Donald J. Trump seeks to keep himself out of jail.