WASHINGTON — So far this week, President Joe Biden has announced new steps to conserve land and water. He met with the cast of “Ted Lasso” to discuss mental health and released a 500-page report on the economy.
Missing was any acknowledgment of the drama that has transfixed much of Washington: the possible criminal indictment of his past and potentially future rival, Donald Trump.
There's no blueprint for what a sitting president should do when a predecessor is charged with a crime — something that's never happened in the nation's history. Biden's approach, for now, has been to keep silent and avoid a scrum that threatens to pull him in, Democratic strategists and people close to the White House said.
A Trump indictment could create a thorny set of temptations and pitfalls for a sitting president on the cusp of a re-election campaign. Democrats close to Biden see Trump as a heavy favorite to be the Republican nominee in 2024 — and a flawed candidate they want to face in a general election.
A go-to move for campaigns on any level is to amplify rivals’ troubles — a temptation to talk endlessly about the legal problems plaguing Trump. But Biden needs to be reticent given his position, legal experts cautioned. He appointed Merrick Garland, the attorney general who will ultimately decide whether to prosecute Trump in a separate federal investigation stemming from his handling of classified documents and his efforts to reverse the 2020 election results.
Any comment Biden makes about Trump’s mounting legal troubles could be construed as an attempt to influence Garland.
“If Mr. Trump is indicted by a state grand jury, Mr. Biden would be wise not to comment on that criminal case, in part because there is an ongoing federal investigation being conducted by a special counsel within the Justice Department,” said NBC News legal analyst Chuck Rosenberg, a former U.S. attorney in Virginia.
Overtly trying to capitalize on Trump’s predicament might also backfire politically, pushing Biden's critics to try to make more noise about the legal inquiry he faces around classified documents.
What's more, by speaking out Biden risks feeding Trump’s narrative that the investigations are a backhanded attempt to undermine his presidential bid, Democrats say. Before the indictment, Trump sent out fundraising emails making that argument.
“It would be smart for Democrats to let this unfold and not politicize it too much,” said Lis Smith, a Democratic strategist and adviser to Pete Buttigieg’s 2020 presidential campaign. “If they do jump all over it, it gives Donald Trump and the Republicans an opportunity to say this is a witch hunt.”
A Biden adviser argued the election is too far away to gauge the impact of a Trump indictment. Biden’s focus will be economic issues, bolstering his budget proposals and criticizing those of conservative Republicans he says are endangering Social Security and Medicare.
Yet the White House is monitoring potential protests that might arise from an indictment. Privately, White House officials have voiced relief that Trump’s weekend calls for protests largely fizzled out.
John Kirby, a Biden national security spokesman, said at a news briefing this week that “we’re constantly monitoring this — as you would think we should, particularly in the wake of what happened on January 6th.”
Normally, when candidates get indicted it's a safe assumption that they'll have tougher routes to victory. Some political pundits have argued that Trump — who has repeatedly seemed deft at defying political gravity — could be the exception. But several Biden allies said they don’t expect that Biden would enjoy a political windfall beyond an uptick in small-dollar donations.
An indictment wouldn't be likely to change anyone's mind about Trump, given his notoriety and how views about him have hardened in both directions, they said.
NBC News polling suggests that no matter what the provocation, Trump’s favorability ratings barely budge. After the FBI’s search for classified documents at Trump’s Mar-a-Lago home in Florida in August, for example, his overall rating remained basically the same — in the mid-30s.
“The people who believe that he’s lawless believe he’s lawless whether he’s indicted or not,” said Amanda Loveday, a former aide to Rep. Jim Clyburn, D.-S.C., and an adviser to Unite the Country, a group promoting Biden’s policy agenda. “The people who don’t think he’s lawless don’t think he’s lawless even if he gets indicted. Trump is one of those really special politicians who you believe what you want to believe about him, whether it’s fact or fiction.”
Biden has yet to make his candidacy official, even if those closest to him continue to hint that it's inevitable he will run. But until he says the magic words, there will always be speculation that he could opt to step aside — a discussion that could intensify if Trump’s candidacy looks irreparably damaged.
At age 80, Biden has faced skepticism inside his party. An Associated Press-NORC Center for Public Affairs Research poll last month found that only 37% of Democrats wanted him to run for another term.
One event that pushed Biden to run in 2020 was the white supremacist march in Charlottesville, Virginia, in 2017. Trump said afterward that there were “very fine people” on both sides of that notorious event, words that Biden said motivated him to be a counterforce.
But even with his initial motivation gone, that may not mean Biden is ready to retire.
Carolyn Maloney, a former Democratic congresswoman from New York, was among those who seemed dubious about a Biden re-election campaign. Before she lost her congressional seat last year, she said she didn’t believe Biden would run again.
Asked now whether Trump’s baggage might spur Biden to exit the race, Maloney, who is 77, said he has earned another term. “He’s cooking with gas, man! I’ve never seen a record like this,” she said.
She said that having met many people living productive lives in the face of advancing age, “you’ve got to realize that there is a change in the health of Americans. Americans are living longer.”
“If you look at Biden,” she added, “he’s too busy to die.”