Another Donald Trump legal problem has been met by another vow of silence from President Joe Biden and those who work for him.
At this point, no one should expect anything different.
The decision by the White House and Biden’s campaign to not comment on his predecessor’s growing criminal trouble — this time connected to the Jan. 6 insurrection — is rooted in the president’s promise to avoid appearances of interfering with the Department of Justice’s work.
But it also hints at what is likely to become a broader Biden campaign strategy: There will be plenty of other people who will do that work for him. And if the 2024 conversation is about Trump, the best option for Biden is to simply get off the stage.
Biden advisers have watched the nonstop news coverage of the target letter sent from special counsel Jack Smith to Trump this week advising the former president that charges may be coming soon connected to his efforts to overturn the 2020 election and stay in power. That media frenzy echoed the blanket coverage that followed Trump’s two previous indictments — one in New York on his business dealings, the other over his handling of classified documents after leaving office. Biden allies believe that the press’ focus on the story line will only accelerate in the months ahead, as court dates approach and, perhaps, more indictments are unsealed.
It’s easy to imagine — as Biden aides have been privately discussing — that Trump spends part of his 2024 campaign having to shuttle from one court date to the next, standing trial in multiple cases, spawning negative headline after negative headline. And while Trump will surely play the victim to fire up his base, Biden’s aides believe his time as a repeated criminal defendant will almost certainly turn off the independent and swing voters who often decide elections.
If Trump’s campaign shows signs of collapsing under the weight of the myriad criminal proceedings, the Biden team feels its best approach may just be to stand back and not engage.
“It’s not just that he could be flying around the country during the campaign going from trial to trial, what if he wins?” asked the Rev. Al Sharpton, the civil rights leader and Biden ally. “Do we really want a president who is trying to deal with an international crisis while also in the defendant box? Even some Republicans may not want to vote for that possibility.”
Biden declared at the start of his presidency that he would not discuss DOJ investigations, particularly those about the former president, believing that a firewall needed to be reestablished between the White House and the attorney general’s probes. He has remained tightlipped during Trump’s previous two indictments and has said nothing this week about the new target letter.
The silence extends beyond Biden, whom to this point has been explicit: The entities that the White House controls, which includes the reelection campaign and the Democratic National Committee, are not to publicly discuss any of the criminal investigations into Trump.
The DNC specifically has advised members of Congress seeking guidance on what to say that they should not comment on the Trump probes if they are speaking publicly in their role as Biden campaign surrogates. And when the Biden campaign put out a statement on Trump this week — the first time it formally attacked him since the president’s reelection launch — it was on the topic of job creation, not Jan. 6.
As the president’s advisers chart a court for the campaign to come, they are aware that continued silence about the charges facing Trump would deprive Biden’s reelection effort of a potent political weapon. Some Democrats have argued that Biden would also miss a chance to underscore an important national moment, particularly since charges of election interference and inciting the Jan. 6 riot make up much of Biden’s long-standing case that Trump poses a unique threat to American democracy.
But there are also clear benefits to staying quiet.
The Republicans have made clear that they intend to defend Trump with allegations that the Department of Justice is deliberately conducting a political prosecution of Biden’s top GOP rival. Any attacks about Trump’s legal trouble would risk fueling that perception, many political strategists feel.
“Last time, there were independents and even some Republicans went for Biden because they are sick of Trump,” said Susan Del Percio, a longtime Republican strategist who opposes Trump. “They might not even really love Biden but they’d probably break his way again — why risk turning them off by piling on?”
Additionally, Biden aides believe that most voters have already made up their minds about the conduct from Trump that has spawned the criminal charges and likely wouldn’t be persuaded otherwise. The president also intends to continue to make a fierce defense of democracy part of his re-election message and will continue to do that, aides said, even if Trump is charged for election interference or if another Republican becomes the nominee.
Steering clear of specific discussion of the crimes would also allow Biden to do what aides feel is his best strategy: focus on his work governing and sell the accomplishments he has. Both men appear poised to head into the general election with high negatives. The president’s aides believe that, like in 2020, they should work on upping their numbers and let Trump dominate the news cycle.
There are some side-benefits that Biden’s team sees in such an approach. It would allow the president’s own vulnerabilities, namely his age, be a secondary storyline and remind voters of their fatigue with the former president. Biden campaign staffers also believe they have plenty of other avenues from which to attack Trump, including abortion rights, guns and his handling of the economy.
“When it comes to investigations and crimes, Donald Trump is like a dumpster fire. No one needs to bring a match,” said Jesse Ferguson, a Democratic strategist who worked on Hillary Clinton’s 2016 campaign. “Donald Trump’s legal problems aren’t an issue of Democrats vs. Republicans, it’s an issue of laws v. crimes. That’s the most effective frame and the accurate frame.”
While Biden has framed his stance of silence as in line with longstanding tradition, it is not uncommon for presidents to occasionally weigh in on ongoing criminal investigations. Biden has done so himself at times — including before the verdict was announced in the 2021 trial of the white Minneapolis police officer who killed George Floyd.
The decision to be silent could be revisited next year. Though the president will likely not ever directly comment on the legal matters, other top Democrats and surrogates could take up the argument — especially if Biden dips behind Trump in the polls late in the race. Outside groups aligned with Biden could also advertise on the issue. And, even now, some GOP-aligned anti-Trump groups are running ads that question the toll the trials will have on his electability.
The White House and Biden’s re-election campaign declined to comment.
But those close to Biden also acknowledge a particular sensitivity at the moment on matters related to the Department of Justice, which had been investigating his son. Hunter Biden recently took a plea deal on tax-related charges, which whipped up howls of anger from Republicans who claimed the president’s son had received preferential treatment. Moreover, the investigation into Biden’s handling of classified documents after his stint as vice president remains open.