Why you should care
Because sometimes obscure legal doctrines are just waiting for their moment to shine.
Based on OZY’s hit podcast The Thread, which delves into surprising connections in history, The Mueller Thread weaves together the strands linking the sprawling investigations around President Donald Trump.
On Feb. 12, 1974, an explosive memo came across the desk of Watergate special prosecutor Leon Jaworski. Members of Jaworski’s own team, led by assistant special prosecutor George T. Frampton, were worried that their boss was going to let President Richard Nixon off the hook too easily. And so they took the unsolicited step of making their own case for indicting a sitting president of the United States.
But being good lawyers, and knowing their boss would likely balk at a straight-up indictment, the memo also offered Jaworski a more palatable alternative. “There appears to be no question of the propriety or legality of such a course,” some of the nation’s top lawyers concluded about an obscure but well-established legal procedure known as “presentment.” And today, with a formal indictment of the president in Robert Mueller’s probe also looking unlikely (even as President Donald Trump appears to be implicated in crimes), that same arcane legal doctrine could well cross the special counsel’s desk.
Historically, grand juries have the power not only to indict but also to issue presentments.
Even before Jaworski received the memo, tensions were high on the special prosecutor’s team in early 1974. They had substantial evidence placing Nixon at the center of an effort to obstruct justice to cover up the Watergate burglary. But Jaworski was hesitant to indict a sitting president on criminal charges … very hesitant. Among other things, the burly Texas lawyer was worried that issuing an indictment would lead to a public and political firestorm, not to mention endless legal challenges from the White House that would make it harder to prosecute the other Watergate co-conspirators.
Jaworski’s growing hesitation on the biggest decision of his life made others on his team take action, including Frampton, a whip-smart former managing editor of the Harvard Law Review. Frampton, 29, who had just played a major role in drafting the Supreme Court’s landmark opinion protecting abortion in Roe v. Wade as a clerk for Justice Harry Blackmun (Blackmun was not one of the court’s strongest opinion writers), turned his pen to another historic document: a memo to Jaworski making the case for the indictment of Nixon, or something like it. The memo concluded that there was no legal bar to indicting a sitting president, it would be no less disruptive than impeachment proceedings and any political considerations should be left to Congress, not the special prosecutor’s office.
The memo focused on the unique and constitutionally sanctioned role of the grand jury. Historically, grand juries have the power not only to indict but also to issue presentments, something more akin to a report of wrongdoing without a criminal charge. In other words, the grand jury could lay out the case against Nixon and formally declare, for example, that if he were not the president, it would have indicted him. The Fifth Amendment of the Constitution itself enshrines this presentment power: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
The memo also drew attention to the specific role being played by the Watergate grand jury, a group of men and women who had spent almost two years of their lives on the case, and carried a weighty responsibility. “For us or the grand jury to shirk from an appropriate expression of our honest assessment of the president’s guilt,” the memo argued, “would not only be a departure from our responsibilities but a dangerous precedent damaging to the rule of law.” Jaworski’s team recommended he indict the president, but argued that if Jaworski thought indictment was imprudent, then he was nonetheless compelled to at least seek a presentment by the grand jurors to let them — and the special prosecutors — fulfill their duties in the case. The presentment then could be referred to Congress for use in impeachment.
So if Mueller determines he has sufficient evidence of criminal wrongdoing by Trump but doesn’t want to indict a sitting president, should he not ask the grand jury to make a similar presentment? The process has been used even less in the decades since Watergate, but impeachment of a president would provide a pretty good reason to allow the grand jury to share its determination about criminality, something with precedent going back to the early 19th century, as the memo writers point out. Therefore, in the Trump-Russia case, the grand jury — if so guided by Mueller — could issue a presentment about the president’s guilt, a statement that could be attached to the Mueller Report when it is given to the attorney general and/or shared with Congress directly.
Ultimately, the decision comes down to Mueller, as it once did to Jaworski. After receiving Frampton and company’s memo, Jaworski felt enraged, not enlightened, viewing his team’s unprompted effort to influence the investigation as an insurrection. In the end, Jaworski decided that the best option, with impeachment proceedings likely to begin anyway, was to provide the famous “road map” of the grand jury’s finding to Congress and to merely ask the grand jury to vote to authorize naming Nixon as an un-indicted co-conspirator at a later date — a punt that would get the fact on the record but in a way that wouldn’t be viewed as political or interfere with impeachment. Heeding Jaworski’s recommendation, and weighing the evidence against the president, the 19 grand jurors voted unanimously to do so.
Read more: The road maps to the special counsel’s report.