Harris, a former California attorney general and San Francisco district attorney, added that “the president is not above the law.”
Last month, in his only public remarks since concluding his investigation, special counsel Robert S. Mueller III said that his office could neither clear nor accuse Trump of obstructing justice, noting that the Constitution “requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
The Mueller team also stated in its report that prosecutors are prevented from accusing the commander in chief of a crime because of DOJ guidance prohibiting the indictment of a sitting president.
The NPR interview does not mark the first time Harris has tackled the question of whether the Department of Justice should pursue charges against Trump after he leaves office. Asked by an attendee at a recent campaign event in South Carolina, Harris responded that she would have to consider prosecuting Trump after his presidency.
Harris told NPR that she has “seen prosecution of cases on much less evidence” than what the Mueller team’s investigation has unearthed about Trump’s actions.
But asked about the prospect of Trump going on trial and serving jail time as a former president, Harris demurred.
“Well, the facts and the evidence will take the process where it leads,” she said. “But I have read the Mueller report. I do believe that we should believe Bob Mueller when he tells us essentially that the only reason an indictment was not returned is because of a memo in the Department of Justice that suggests you cannot indict a sitting president.”
As the head of the executive branch, a president could order his or her attorney general to launch an investigation, though to do so for a particular person — in this case, a political rival — in a closed case would be politically perilous.
The closest parallel might be Attorney General Eric Holder’s investigation during the Obama administration of alleged CIA interrogation abuses, some of which resulted in the deaths of prisoners. That inquiry raised the prospect that intelligence officials might be punished for national security policy in the George W. Bush administration after Bush had left office.
During the 2016 campaign, Trump suggested he would appoint a special prosecutor to investigate and potentially imprison his political opponent, Hillary Clinton, under similar circumstances.
Attorney General Loretta E. Lynch, a Democrat, had declined to prosecute Clinton for her use of a private email server while she was secretary of state, even though the FBI found evidence that many of Clinton’s opponents thought amounted to a crime. Trump was widely criticized for the move. Michael Mukasey, a Trump supporter who believed a case could have been brought against Clinton, said such a move would “be like a banana republic.”
Historically, presidents have ordered the Justice Department to pursue cases that involve industries or business practices. For instance, in 1999, President Bill Clinton announced in a State of the Union speech that the Justice Department would launch a lawsuit against tobacco firms — though that involved civil, not criminal penalties.
Matt Zapotosky, Devlin Barrett and Chelsea Janes contributed to this report.