President Joe Biden has refrained from criticizing former President Donald Trump over his federal indictment, and he has instructed the Democratic National Committee, his re-election campaign and his White House staff to maintain the same code of silence. That’s got some Democratic operatives and pundits anxious about giving Trump too much space to control the narrative. But in this situation, Biden’s cautious instincts are right, and his reticence now doesn’t rule out the possibility of hitting Trump over his legal woes in the future.
Biden is legally allowed to comment on Trump's federal indictment, but he has declined to do so in order to underscore the prosecutors’ independence from the White House. Especially in light of the approaching 2024 election, Biden doesn’t want to risk making it appear that he gave orders to federal prosecutors, or that he aimed to have his most likely political opponent investigated, indicted or convicted.
Especially in light of the approaching 2024 election, Biden doesn’t want to risk making it appear that he gave orders to federal prosecutors.
But Biden’s restraint hasn’t prevented Republicans from accusing him of doing exactly that. Trump and leading Republicans have accused federal prosecutors of pursuing Trump as part of a political witch hunt. Still, I think there’s something to be gained from Biden — and his allies — maintaining a relatively quiet position for now. It is important for Democrats, independents and the tiny slice of Republicans who aren’t lost in the right-wing echo chamber to see a president and his party draw a clear line of separation between political activity and criminal investigations. It can only serve to give people more faith in the outcome of those investigations and prosecutions, and help defend the principle of an independent Justice Department.
At the moment it’s not clear that there’s any need for Biden or his allies to say much. Despite Trump’s attorney responding to the 37 felony counts against his client Tuesday by saying, “We most certainly enter a plea of not guilty,” the constant drip of news tied to the indictments and ongoing federal and state criminal investigations of Trump are already doing the work of making Trump appear corrupt and not very bright.
As indictments are unsealed, the damning-looking information is getting out there. Photos of Trump storing classified documents in bathrooms are going viral, and transcripts of Trump openly admitting to keeping documents he shouldn't have are spreading like wildfire across social media. Every day there’s a new report of a Trump lawyer quitting or a new Trump ally cooperating with an investigation. On top of the news, many media outlets are doing the work of analyzing and commenting on what's troubling about these revelations, and how they reflect on Trump's character.
And recently, there are signs that Republicans are also willing to take the federal indictment seriously. Some contenders for the 2024 presidential race, including former Vice President Mike Pence, former United Nations Ambassador and South Carolina Gov. Nikki Haley, Sen. Tim Scott of South Carolina and others have begun to pivot away from unconditionally siding with Trump against the prosecutors and admitting that the charges against Trump should be taken seriously. It’s possible that more of the 2024 Republican field will smell blood in the water and start taking Trump to task for his endless cycle of legal troubles. If so, these candidates will implicitly validate the criminal justice system that they denounced so stridently earlier.
Due to these two factors — the Trump-sure-looks-like-an-idiot news cycle and Republican fissures on the indictments — there seems to be no obvious harm in Biden waiting to see how things play out without his or his allies’ commentary. Particularly in the early stages of the indictment news cycle, it’s not a bad thing for the public to see Biden approach the matter dispassionately. With Trump promising to aggressively weaponize the Justice Department against Biden if the former president enters the White House again, Biden is serving as an important foil.
None of this forecloses the possibility that Biden or other Democrats could strategically strike out at Trump over his indictment in the future if it seems necessary — that is, if it appears that Trump's narrative is beginning to define perception of the indictment beyond his core supporters, who already believe everything he says.
At a time when even a significant share of Democrats believe that politics have played a role in Trump's indictments, it’s good for the country if Democrats take a wait-and-see approach before using the indictments as political fodder.