I see this error often. DOJ policy is not “precedent.” It does not bind any court. It is a directive from the top of an agency to the subordinate staff of that agency. It tells you what they can be expected to do. It binds them through employment, not force of precedent.
There is no legal equivalent to “stare decisis” for DOJ policy. A policy change would go through the same channels as any agency decision (completely unlike judicial precedent). As would a policy exception or modification.
IOW, a prior policy against indicting a sitting president is open to be completely thrown out and replaced, modified, made exception to, or even violated. The punishment for violating it would be losing one’s job. It would not make an indictment null and void.
Now, the actual judicial precedents are the cases cited by DOJ as support for the policy. But as others have analyzed in great depth, those cases tend to point the other way. No court has ruled that a sitting president can or cannot be indicted for a crime.
And there are other judicial precedents to keep in mind. The normal acts of a POTUS in office are non-justiciable as political questions, so it’s right to be concerned about things like “let’s indict him for the border slave camps.” But that’s not at issue here.
We have crimes that would be crimes if committed by a non-office holder - election tampering, campaign finance fraud, receiving stolen goods and using them for one’s benefit. DOJ prior policy doesn’t make those acts legal when done by a POTUS. In our system, it cannot.
