President Joe Biden was hardly veiled in describing his predecessor during a conversation with Democratic donors in Maine last week.
“If you just take what he said, on the record … some would say it’s just flat seditious,” the president said in a barn in Freeport.
Such a statement is hardly surprising from a president whose own White House tenure began under the shadow of former President Donald Trump’s attempts to cling to power. He’s previously declared that Trump and his allies held “a dagger at the throat of America” through lies and violence following Trump’s election loss.
But the timing of his comment Friday night – coming just as special counsel Jack Smith was nearing an indictment related to Trump’s attempts to overturn the 2020 election results – was noteworthy, given how ardently Biden has worked to separate himself from the Justice Department’s work.
Unlike the cases involving hush money paid to an adult film actress or hoarding classified documents at Mar-a-Lago, it’s impossible to separate Biden from the crimes Trump was accused of committing in the indictment returned Tuesday. It was Biden’s election Trump sought to overturn. And Biden himself has already pinned blame on Trump for fomenting the crowds that stormed the Capitol on January 6, 2021.
For Biden, Trump’s third indictment is undoubtedly the most personal. What began as an attempt to deny Biden the presidency is now headed to federal court, and the accountability Biden once said was “necessary” for the insurrection is moving ahead.
There is little question Biden will now say virtually nothing about the indictment, which was made public as the president and his wife were driving to dinner at the white clapboard Matt’s Fish Camp along the Delaware coast. He doesn’t want to provide Trump pretext for claiming political persecution and believes deeply that sitting presidents should not comment on ongoing legal matters.
The White House declined to comment on Trump’s indictment Tuesday, referring questions to the Department of Justice.
“We would refer you to the Justice Department, which conducts its criminal investigations independently,” White House spokesman Ian Sams said.
The White House learned of the indictment through media reports, a White House official said, as was the case with past indictments.
Senior administration officials insist the White House’s silence on the matter is less founded in strategy than in a respect for the independence of the Justice Department and an adherence to norms regarding open federal investigations and prosecutions that nearly every other White House has followed.
After Trump was indicted in June, Biden was repeatedly pressed for comment on the historic first federal indictment of a former president. At every turn, he declined to weigh in, a relatively rare sign of message discipline for the president, which reflected how seriously he has taken upholding the independence of the Trump investigations in particular.
While Biden has spoken passionately about the events of January 6 and efforts to spread lies about the 2020 election, aides note that Biden has never publicly weighed in on any individual investigation or prosecution tied to those events.
Still, Biden has a long history of publicly criticizing Trump for the events of that day and the effort to undo the Democrat’s 2020 win. In private, Biden has been more forceful in his view that Trump should be held responsible for his actions, including telling advisers early in his term that his predecessor should be prosecuted, according to a person familiar with the matter.
In the past, some inside the White House – including Biden himself – have voiced private frustrations at Attorney General Merrick Garland’s deliberative pace in carrying out investigations into Trump, according to people familiar with the matter. There is nothing to indicate anyone inside the White House ever made those views known to Garland directly.
Last month, Biden acknowledged some foreign leaders question why it’s taken so long for Trump to face a legal reckoning, even as he remained deferential to the process underway at the Justice Department.
“The answer is yes,” he told MSNBC’s Nicolle Wallace when she asked him in June whether his fellow leaders “want to know why the foot soldiers of the insurrection have been charged and prosecuted, but not the leader.”
Still, he was careful to separate himself from the legal process – a strategy he’s honed over the past several months as Trump’s indictments pile up.
“I have faith the Justice Department will move in a direction that is consistent with the law. And so, it may take time,” he said. “I have not spoken about it, and I don’t think I should.”
Some Biden advisers privately say they would love to speak out on Trump’s legal issues, believing the findings only highlight the former president’s continued risk to the country. And first lady Dr. Jill Biden has voiced surprise during conversations with donors that more Republicans aren’t abandoning Trump following his indictments.
Yet Biden’s political aides have determined that the risks of commenting outweigh the rewards, believing that seizing on Trump’s indictment for political gain would only fuel Republican efforts to cast the indictments as politically motivated, rather than the action of an independent Justice Department.
The Biden campaign also intends to stay out of the fray, sticking to its strategy from the previous indictment not to comment or fundraise off of Trump’s prosecution.
Ahead of Trump’s indictment Tuesday, a Biden campaign official said the campaign once again did not intend to fundraise off a Trump indictment, determining that the risks of fundraising off the indictment – which would feed Republican attacks of a politicized prosecution – outweighed the potential benefits.
“It’s so important that we restore the integrity of the Department of Justice and ensure that they are an independent entity and agency and that they continue to do their job in these most critical moments,” Biden campaign manager Julie Chavez Rodriguez told CNN in June of the decision not to fundraise off Trump’s first federal indictment. “And so for us that separation, that independence is core and it’s not something that we will second guess or deliberate.”
How closely Biden can hew to that pledge when it comes to the latest indictment remains to be seen. Unlike the classified documents case, which Biden does not regularly reference in public, the threat to democracy is central to his reelection argument.
The opening frames of the video announcing his 2024 campaign were of rioters on January 6. And in comments to voters and donors alike, Biden has repeatedly warned of what it might mean should Trump return.
“Ask any of your compatriots – whether they’re left, right, or center – what they think about not me, but about if the other guy comes back,” Biden said right after his “seditious” remark last week in Maine.
Speaking earlier in his term, Biden was clear in his belief that the perpetrators of January 6 must be held to account.
“No matter where it goes,” Biden said when asked if that included his predecessor. “Those responsible should be held accountable.”
Polls show concerns about democracy remain at the forefront, two-and-a-half years after January 6. While the economy consistently sits at the top of voters’ lists of issues, concerns over democracy and the electoral process have been ranking higher in surveys since the 2020 election.
A New York Times/Siena poll released this week showed 53% of voters feel Trump “went so far that he threatened American democracy” following the 2020 election. And 51% said they believed Trump “has committed serious federal crimes.”
Yet in a sign of the headwinds Biden continues to face, the poll also showed Biden remains deadlocked with his predecessor – in spite of Trump’s legal predicament.