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.
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….
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.
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 coconspirators, 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.