How Mueller Can Publish His Russia Connection Evidence

This article first appeared on Just Security.

Legal experts debate whether special counsel Robert Mueller has the authority to indict or prosecute a sitting President.

Missing from any public discussion is a middle-ground option that is not necessarily precluded by any Justice Department legal opinion, and that was strongly endorsed by the Watergate special prosecutor’s legal team.

What’s the option? Presentment.

Grand juries have historically had the power not only to indict but also to issue presentments, which were more like reports of wrongdoing without a criminal charge.

The Fifth Amendment of the Constitution contemplates this practice in its opening words:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

Watergate special prosecutor Leon Jaworski’s legal team strongly recommended that if he thought it was either unconstitutional or imprudent to indict or prosecute a sitting president, he could nevertheless seek a presentment by the grand jury.

RTS1AANJ Robert Mueller at the U.S. Senate Judiciary Committee hearing on Capitol Hill in Washington, DC, U.S. on June 19, 2013. Larry Downing/reuters

Jaworski’s lawyers concluded that presentment was not just a constitutionally available option, but that Jaworski was compelled to pursue it if the other options were closed. They wrote:

If we conclude that indictment of the President is constitutionally barred or is inappropriate, then we and the Grand Jury can and must fulfill our responsibilities to the public and to the law by recommending a Grand Jury presentment setting out in detail the most important evidence and the Grand Jury’s conclusions that the President has violated certain criminal statutes and would have been indicted were he not President.

There appears to be no question of the propriety or legality of such a course….

So, the question is, if Mueller has sufficient evidence of criminal wrongdoing by President Trump, should he ask a grand jury to declare “that the President has violated certain criminal statutes and would have been indicted were he not President.”

Our main goal here is to identify this option, to describe how it might perform different functions, and to suggest risks and costs to going down this path.

Presentment has fallen into general disuse in federal proceedings compared to its greater prevalence in the mid-to-late twentieth century. Whether a presentment can be made public is also now tightly controlled by the discretion of the presiding judge.

That said, congressional interest in impeachment could provide a special reason for presentment and for conveying the grand jury’s decision to Congress.

The Watergate special prosecutor legal team highlighted that the precedent for using grand jury presentment to inform potential impeachment proceedings dated back to the early 1800s.

In the case of Richard Nixon, the Court of Appeals for the D.C. Circuit affirmed Judge Sirica’s order transmitting a presentment report from the grand jury to the House Judiciary Committee.

Ordinarily, Federal Rule of Criminal Procedure 6(e) imposes secrecy on any “matter occurring before the grand jury” with a few exceptions. Judge Sirica found that Rule 6(e) aimed to do no more than codify the “traditional practice of secrecy” of the grand jury, a practice which the judge found to be narrow but not inconsistent with the disclosure to Congress for purposes of impeachment. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).

Other federal courts have also held that courts have the inherent authority to order disclosure of grand jury materials even outside of the constraints and exceptions of Rule 6(e). (For more on this topic, see our earlier analysis at Just Security .)

What about other options for making a grand jury’s presentment public with no connection to an impeachment proceeding?

The U.S. Attorney’s Manual notes that the question whether a regular grand jury can issue a public report is “difficult and complex,” and cites a Fifth Circuit decision in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975).

In Briggs , the court disallowed the naming of unindicted co-conspirators in an indictment by a federal grand jury. The case, however, involved balancing a host of different factors in that specific context.

The Briggs court emphasized that the situation involved private individuals rather than public officeholders, and said that the federal prosecutors “suggest[ed] nothing that rises to the dignity of a substantial interest” on their side. The Jaworski legal team’s memo sets forth reasoning for why the government has a substantial if not imperative interest in seeking presentment for a president engaged in criminal wrongdoing, especially if it involves the obstruction of justice.

Other courts have also distinguished Briggs , for example, in a case where there was an “important countervailing public interest,” and in another case where the individual “simply cannot be indicted and tried.”

An independent question is whether there would be value to Mueller in obtaining a presentment under seal (in secret).

There may be a benefit in getting a grand jury at Time 1 (when Trump is in office) to agree that Trump has violated certain criminal statutes and would have been indicted were he not President and then pass that information to a subsequent grand jury (at Time 2) when Trump is no longer in office and is clearly not immune from indictment.

The second grand jury may feel more comfortable or emboldened to support an indictment knowing what the prior grand jury did. What’s more it might be the same grand jury seated at both times, and getting it on board for presentment may make the subsequent task easier.

On the other hand, federal prosecutors are often cautious and like to maintain control of the case, and the downside risks here may outweigh rewards. Those risks include a leak of the grand jury’s presentment (and the special counsel’s office being blamed).

Any reward is minimized by the fact that the second grand jury can get all the material from the first grand jury and would have to consider the issues afresh in any case.

Mueller may also not want to run the risk of the first grand jury rejecting the presentment option, especially since he won’t obtain a concrete or immediate benefit from presentment if it remains under seal. That said, if the grand jury has by then indicted several co-conspirators, the likelihood increases that the grand jury will also accept presentment for Donald Trump.

Finally, the federal criminal system is not the only arena in which presentment takes place. Presentment is widely available across different states where the options for making presentment reports public may be broader too. If state attorneys general pursue Trump for financial crimes, they may also face the similar question whether a sitting president is immune from indictment or prosecution.

If they believe he is immune, presentment may be seen as a way forward.

For more on this topic, see Goodman and Whiting’s How Mueller Can Make the Grand Jury Report Public or Hand it to Congress.”

Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).

Alex Whiting served for ten years as a federal prosecutor at the Department of Justice and the U.S. Attorney's office in Boston, and eight years as an international criminal prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague.

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