Keep Factually independent
Whether you agree or disagree with our analysis, these conversations matter for democracy. We don't take money from political groups - even a $5 donation helps us keep it that way.
What is the role of the Department of Justice in investigating presidential crimes?
Executive summary
The Justice Department enforces federal criminal law and can open investigations into presidents — including impaneling grand juries and appointing special counsels — but DOJ policy and some legal opinions hold that a sitting president cannot be criminally indicted, leaving removal and punishment for official acts to Congress [1] [2] [3]. DOJ has both investigated and brought charges connected to presidential conduct (special counsels, grand juries, indictments of associates), though whether to charge a sitting president has been governed by a long-standing DOJ policy and disputed legal views [4] [5] [2].
1. The DOJ’s formal mission and tools: law enforcement, grand juries, and special counsels
The Department of Justice’s mission is to enforce federal law and ensure the “fair and impartial administration of justice,” and it uses investigative tools — the FBI, U.S. attorneys, federal grand juries, search warrants, and prosecutors — to investigate alleged federal crimes; those same mechanisms are used when allegations involve the president or people around the president [1] [4]. In high-profile matters tied to presidents, DOJ has historically impaneled federal grand juries and appointed special counsels to provide an appearance of independence while investigating complex political figures [4].
2. The DOJ’s policy on indicting a sitting president
The Justice Department long-followed a policy, grounded in Office of Legal Counsel (OLC) opinions and DOJ practice, that a sitting president is not amenable to indictment because prosecution would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions” [3] [5]. That policy does not necessarily bar DOJ from investigating a sitting president or gathering evidence while in office; legal scholars note investigation and evidence-gathering remain possible even if indictment is seen as impermissible while the president is serving [3] [2].
3. Investigation vs. prosecution: meaningful distinction and practical consequences
Legal commentators highlight a crucial distinction: DOJ can investigate a sitting president, interview witnesses, impanel grand juries, and prepare cases, but DOJ’s internal policy historically counseled against bringing criminal charges against a sitting president [2] [4]. This means evidence can be developed while the president is in office, but prosecutors may delay charging until after the president leaves office — a practical reality that can affect statute-of-limitations calculations and political consequences [2] [6].
4. Political oversight: impeachment and the Senate’s remedial role
Because of DOJ’s policy stance and constitutional separation of powers, many legal voices argue that the Senate — via impeachment and conviction — is the constitutional forum for punishing official presidential misconduct while the president is in office, even as DOJ may investigate related criminal conduct [5]. That division of remedies creates competing avenues of accountability: Congress addresses removal for official acts; DOJ addresses criminal accountability, typically for former officials or non-impeachment matters [5].
5. Recent practice and controversies: investigations, dismissals, and political pressure
Contemporary DOJ actions have illustrated tensions: DOJ investigations into attempts to overturn elections used grand juries and a special counsel, producing indictments, but reports note that cases involving an elected president were affected by DOJ policy after electoral changes; sources report a dismissal tied to the DOJ’s policy against prosecuting sitting presidents in at least one complex post-2020 matter [4]. Separately, critics and watchdog groups argue presidents can attempt to use DOJ as a political tool — for example by directing investigations at political opponents — and warn this risks “weaponizing” the department [7] [8].
6. Diverging legal views and unresolved questions
The Supreme Court has not squarely decided whether a sitting president can be criminally indicted, so DOJ’s position remains based on OLC opinions and internal policy rather than definitive case law [5]. Legal scholars acknowledge disagreement: many accept prosecution of former presidents, but there is less consensus about indicting a sitting president; some argue DOJ can investigate fully but must defer charging, while others press for clearer judicial resolution [2] [5].
7. What reporting does not say / limits of current sources
Available sources do not provide a definitive Supreme Court ruling overturning DOJ policy, nor do they supply an exhaustive accounting of internal DOJ deliberations in every presidential-era investigation; specific internal rationales for particular charging or non-charging decisions are often withheld or contested in reporting [3] [9]. Where DOJ has declined to prosecute or to disclose memos explaining decisions, watchdog groups say those decisions have sometimes been hidden from public view [9].
Bottom line: DOJ is the federal law-enforcement body that can investigate presidents, use grand juries and special counsels, and prosecute former presidents, but longstanding DOJ policy and unsettled law limit or counsel against indicting a sitting president — which shifts immediate remedial power for official misconduct toward Congress and leaves several legal and political questions unresolved [1] [3] [2].