As Special Counsel Robert Mueller and his staff go about their work, the media is rife with “what-ifs.” Among them — what if, as the great weight of legal commentary (including this writer) concludes, a sitting President cannot be charged with a criminal offense: could and, if so, should the President be named as an unindicted co-conspirator if there is probable cause to support charging him in an indictment? I think the answer to both questions is “no.” Mueller should proceed cautiously, scrupulously adhering to DOJ guidelines in order to avoid the perception that his goal is to drive the President from office.

The Fifth Amendment makes grand jury indictment a prerequisite for federal felony prosecutions. A grand jury indictment is a formal accusation that gives the defendant notice of charges against him so he can begin preparing his defense. Naming a person as an unindicted co-conspirator leaves the named person without an opportunity to rebut the accusation at trial, thereby transforming the grand jury from an institution that protects the individual from the state to an institution that can destroy an individual’s reputation without an opportunity to confront the evidence against him.

The Fifth Circuit Court of Appeals decision U.S. v. Briggs (514 F.2d 794 1975) provides the most thorough critique of the practice. A federal grand jury in Florida named three individuals as unindicted coconspirators in a plot to violently disrupt the 1972 Republican convention. The Briggs court held that the grand jury exceeded its authority and violated the named individuals’ due process rights. It observed that “the courts have struck down with strong language efforts by grand juries to accuse persons of crime while affording them no forum in which to vindicate themselves.” What’s more, it cited with approval the following passage from a Florida Supreme Court decision:

“The medieval practice of subjecting a person suspected of crime to the rack and other forms of torture is universally condemned; and we see little difference in subjecting a person to the torture of public condemnation, loss of reputation, and blacklisting in their chosen profession, in the manner here attempted by the grand jury. The person so condemned is just as defenseless as the medieval prisoner and the victim of the lynch mob …”

The U.S. Department of Justice apparently agrees (and Special Counsel Mueller is bound by DOJ rules). According to the U.S. Attorneys’ Manual (9-11.130):

“In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. … Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with ‘another person or persons known.’ In any indictment where an allegation that the defendant conspired with ‘another person or persons known’ is insufficient, some other generic reference should be used, such as ‘Employee 1’ or ‘Company 2.’ The use of non-generic descriptors, like a person’s actual initials, is usually an unnecessarily-specific description and should not be used.”

This establishes a strong presumption against naming unindicted co-conspirators. However, the Manual’s use of the words “absence of some significant justification” and “ordinarily” leaves the door open a crack. And federal prosecutors have often taken cases through the door. The most famous, of course, is the Watergate grand jury’s naming of President Richard Nixon as an unindicted co-conspirator in a conspiracy to cover up the Watergate burglary. Special Prosecutor Leon Jaworski apparently justified this procedure as necessary to enable the prosecution to introduce Nixon’s out-of-court statements at the Watergate defendants’ trial. That is the same justification that federal prosecutors usually use. However, it is unpersuasive because the co-conspirator exception to the hearsay rule does not require inclusion of the out-of-court declarant in the indictment (either as an indicted or unindicted co-conspirator). What’s more, it bears reminding that Special Counsel Mueller is bound by current DOJ rules. Special Prosecutor Jaworksi was not.

This brings us to President Donald Trump. Assuming that Special Counsel Mueller concludes that a President cannot be indicted while still in office, is there a significant justification for naming Trump an unindicted co-conspirator that overcomes the presumption against the practice? It is not possible to answer this question confidently without knowing what facts the Special Counsel would have in front of him (what crime? what conspiracy? what role the President played?). To introduce the President’s hearsay statements at the other defendants’ trial(s) is not a significant justification. For purposes of the hearsay exception, Trump’s co-conspirator status could be established at their trial(s) and Trump himself could be called as a witness. However, if the Special Counsel concludes that there is a significant justification for referring in the indictment to the President’s role in the conspiracy, the U.S. Attorneys’ Manual states a preference for generic identification, such as “other high ranking members of the Trump campaign.” In that case, the defendants would likely ask for a bill of particulars, claiming the need to know more specifically with whom they are alleged to have conspired. The President’s identity would have to be disclosed to the defense. It would then become public at trial, if not beforehand. However, if the defendants pled guilty, there would be no prosecutorial justification for publicizing the Special Counsel’s belief that the President had acted criminally.

The Special Counsel should adhere strictly to the U.S. Attorneys’ Manual and avoid the misuse of the grand jury that the Briggs court criticized. The Special Counsel’s job is to prosecute any crimes relating to collusion with Russians to interfere with the 2016 election. Impeachment is the constitutionally prescribed procedure for charging a sitting president with high crimes and misdemeanors.

[Editor’s note: Watch this space for more on this topic by Alex Whiting and Ryan Goodman]