President Biden's latest flip-flop
Dishonors pledge to reexamine presidential immunity from criminal prosecution
Professional politicians are earmarked by professed principles indistinguishable from restricted railroad tickets, good for this day and train only.
Senator and later Secretary of State John Kerry was famously for the Iraq war, voting for limitless presidential discretion to attack in 2002, before becoming a stentorian critic of President George W. Bush for exercising the discretion Kerry voted to give him.
President Joe Biden is made of the same intellectually opportunistic stuff. Today’s New York Times reports that the President has reneged on his campaign promise to re-visit twin opinions by the Justice Department’s Office of Legal Counsel in 1973 and 2000 concluding that a sitting president is constitutionally shielded from criminal prosecution. The opinions collide with the Thomas Paine, voice of the American Revolution, touting the rule of law as king and the king not being law.
As a presidential candidate in 2019, Mr. Biden told the New York Times:
“The opinions the Department of Justice has issued in the past, immunizing the president from accountability for criminal conduct for as long as he is in office, have been called into question by leading constitutional scholars…These rulings also communicate to the public the un-American, false notion that remaining in the Oval Office is a ‘stay-out-of-jail’ pass.”
If elected:
“I will promptly direct the attorney general to order a comprehensive review of these opinions and if it is determined that they are in error and a misreading of our constitutional law, to revise or withdraw them.”
President Biden predictably dishonored his promise. The aging OLC opinions remain undisturbed and unreviewed. The Justice Department has voiced no inclination to act on its own without a presidential directive.
Rationing OLC’s time is not the issue. I worked as special assistant to the OLC assistant attorney general for two years. I have read the two presidential immunity opinions. I believe their reasoning is flawed, and are contradicted by the United States Supreme Court pronouncement in United States v. Lee (1882): “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” A superseding OLC opinion reversing the 1973 and 2000 conclusions could be meticulously researched and written in three weeks. The constitutional question is not virgin territory.
Politicians are about power not principle. Thus, in 2007, then Senator Biden, seeking the Democratic Party presidential nomination, shouted from the rooftops that he would lead the charge to impeach and remove President Bush if he attacked Iran without a declaration of war as constitutionally required by the Declare War Clause. Mr. Biden touted his constitutional credentials by pointing to his long years as chairman of the Senate Judiciary and Foreign Relations Committees and teacher of separation of powers.
But as Vice President under President Barack Obama, Biden was silent as a lamb over the President’s unconstitutional, disastrous war against Libya in 2011, which turned the county into a wilderness convulsed by rival, malevolent, militias; and, Obama’s attack on Syria in 2015, where United States forces remain to this very day.
President Biden has also flip-flopped on the war power disowning everything he said in 2007. Biden has repeatedly stated that he will go to war against Russia if it encroaches upon even an inch on NATO territory and against China if it attacks Taiwan, leaving Congress as spectators like extras in a Cecile B. DeMille cinematic extravaganza.
President Biden’s immigration policies diverge little from President Trump’s that Biden denounced as a candidate, but sans the overt racism, vulgarities, and monumental lies that earmarked Trump’s White House.
Congress predictably is AWOL on the presidential immunity question. It could enact a law or at least pass a resolution explicitly rejecting criminal immunity for incumbent presidents, which would influence an ultimate Supreme Court decision if it comes. Members have turned their offices into sinecures requiring pro forma work with rewarding pay and status.
It may seem redundant to persist in assailing the alarming deficiencies and deformities of the ruling class. But truth needs repetition, especially when obscured or ignored by the mainstream media. And if the living turn a deaf ear, the truth may enlighten posterity.