Given the position of the Office of Legal Counsel that a sitting president cannot be prosecuted, there has been some talk (including by me) about the possibility of indicting President Trump now but keeping the indictment under seal until he is no longer in office.
I’ve read the portion of the Mueller Report about obstruction. Under the same set of facts, and the same evidence, my view is that anyone other than the President would have been charged with obstruction already. There’s not a question in my mind.
The question, then, is whether DOJ could (or should) indict President Trump now but keep it under seal. That way, it doesn’t improperly affect the upcoming election and to comport with OLC’s legal opinion.
Is that the best option? Maybe.
Filing Indictments Under Seal
Let’s start with the basics. The government cannot charge you with a crime and not tell you about it. That’s an integral part of our justice system.
You have a right to defend against criminal charges and a right to a speedy trial once you are charged. If you don’t know the allegations against you, then you can’t defend against them. If you don’t know that you have been indicted, then you can’t demand a speedy trial.
Federal Criminal Rule 6 covers grand jury proceedings and defines what must be kept confidential (i.e., what is included within “grand jury secrecy”).
Rule 6(e)(4) permits sealed indictments. Here’s what it says:
(4) Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons.
Although Rule 6(e)(4) on its face permits sealed indictments only when there are reasons for secrecy related to the defendant’s custodial status, many courts permit sealing for any “legitimate prosecutorial need.” (See United States v. Lakin, 875 F.2d 168, 170 (8th Cir. 1989) (listing cases).)
Sealed indictments are used in white-collar cases quite frequently. For example, if one defendant is cooperating with the government, then he may be indicted for the offenses in his plea agreement. But the indictment will be kept under seal until his cooperation is finished, or at least until the government wants to make the case public.
If a cooperating defendant is providing information about on-going crimes, then the government wants to keep an indictment under seal until it is ready to charge the other defendant or defendants. A public indictment by the cooperator may tip off the other defendants about the investigation, thus preventing the government from uncovering all the evidence of the on-going crimes.
(You may be wondering about entrapment if the government knows someone is committing a crime and lets it happen, hoping to gather incriminating evidence. That’s the subject of another post. In sum, though, that’s not entrapment.)
The Trump Dilemma: Sealing Solves Some Problems
Sealing an indictment against President Trump would potentially resolve a few problems.
First, it would permit an indictment to be brought within the applicable statute of limitations. Most federal crimes have a five-year statute of limitations. An indictment – under seal or not – stops the statute from running.
Second, it would keep the criminal prosecution on hold until President Trump leaves office and thus avoids the problem identified in the OLC memorandum that “[t]he indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
But Does this Solution Create Other Problems?
Indicting President Trump but placing the indictment under seal could create other problems.
As described in this article, an indictment under seal for a long time (a year or two) could potentially violate President Trump’s speedy trial rights under the Sixth Amendment.
In theory, if the indictment were improperly sealed, then President Trump could argue that the government violated Rule 6(e)(4). He’d have to show how that violation actually harmed him to obtain dismissal of it.
Showing prejudice is nearly impossible for most defendants, because a proper indictment by a grand jury will mean that the sealing was not prejudicial.
The President, however, is not like most defendants. The OLC memorandum may prevent him from being indicted at all while he’s President. So, an improperly-sealed indictment used to avoid this problem may be viewed as violative of Rule 6(e)(4).
Also, keeping an indictment sealed beyond the statute of limitations—particularly if it were for a long time—may cause a court to think twice about whether the indictment was properly obtained. This result would likely only come into play if President Trump were to win a second term and an indictment for obstruction into the Russian investigation would have to remain under seal for longer—maybe even five years.
All in all, sealing an indictment against President Trump may not solve all the problems. You can bet that if he is indicted under seal, his challenge will go all the way to the Supreme Court unless a newly elected President chooses the “Gerald Ford solution” of pardoning him so that the country can move forward.