President Donald Trump has been hinting that he might try to fire Robert Mueller, the special counsel investigating possible criminal wrongdoing related to Russian election interference and matters related to it, such as the firing of former FBI director James Comey. As he put it last Monday when asked about his plans for Mueller, “We’ll see what happens. Many people have said, ‘you should fire him.’”
Although Trump claims he can fire Mueller directly, many legal scholars disagree. They contend that a special counsel can only be subject to firing for a valid legal reason by the attorney general, and since Jeff Sessions has recused himself from the investigation, Mueller’s fate would fall to Deputy Attorney General Rod Rosenstein. But even on this understanding, Trump might pressure Rosenstein into sacking Mueller by threatening to fire Rosenstein himself. Or he might simply replace Rosenstein with a more compliant supervising attorney. If Mueller is removed and his investigation thwarted, the public might never learn what misconduct, if any, was uncovered by the special counsel’s probe.
Fortunately, while he retains his position, Mueller has a powerful tool at his disposal: The “sealed” or secret indictment. If Mueller indeed determines that he has a strong case against Trump, a secret indictment returned by a grand jury will help protect the integrity of his investigation even if he is fired, while also avoiding the risk of provoking Trump to try to further impede the probe.
Sealed indictments are routinely employed by federal prosecutors in sensitive investigations, particularly when a public indictment might have a negative effect on an ongoing investigation. To carry out this strategy, Mueller would a request that the already empaneled grand jury—the one considering matters related to Russian interference in the election—issue criminal charges against Trump himself. If the grand jury were to find probable cause for the charges to proceed, whatever they may be, a magistrate judge would then decide whether the indictment could remain secret. If the judge were to determine that it can, the charges would then remain hidden from public view until the criminal defendant is taken into custody or released on bail.
If Trump were to fire Mueller, an already filed sealed indictment would outlast Mueller’s tenure. A sealed indictment can only be dismissed by a judge, meaning Trump cannot rid himself of a legal headache simply by terminating the special counsel. A sealed indictment would also ensure that the statute of limitations for crimes Trump might be charged with will not expire. This leaves open the possibility of Trump being tried in the future.
Some might object that using a sealed, rather than public indictment seems counterintuitive: After all, isn’t the point of indicting Trump to expose his potentially criminal acts? If Mueller sought a public indictment, it would also preserve the case against Trump. It too would have to be dismissed by a judge in the event of Mueller’s firing, and it retains the advantage of ensuring the statute of limitations on many crimes would not run out. Moreover, public indictments have the benefit of immediate transparency, of letting the American people know immediately what their chief executive is accused of doing, rather than making the people wait until the indictment is unsealed.
But as Mueller weighs his options, he might conclude that such a public indictment now would only further provoke Trump’s ire. The negative effects the president could create for the investigation and the public turmoil a public indictment could spawn might persuade Mueller to pursue a sealed indictment instead. Doing so would allow Mueller to avoid tumultuous consequences for now. And in fact, the objective of transparency that a public indictment seemingly serves could actually be undermined by such an action, if it provokes steps that curtail the investigation. For example, Trump might threaten to fire any public official who cooperates with the investigation or disparage private citizens who cooperate. With a sealed indictment, we can be confident that transparency will ultimately be served when it is unsealed and the charges and evidence come to light.
In making his case to a judge for the seal, Mueller could cite the potential negative consequences to his investigation that would come from a public indictment. As the Seventh Circuit Court of Appeals put it, the “power to seal an indictment is broad; sealing an indictment is generally permitted when it is in the public interest or serves a legitimate law-enforcement purpose.” This case, dealing with the president and his potential to thwart a federal investigation, qualifies, if Mueller can show that a public indictment would impede his investigation.
Neither a sealed nor a public indictment guarantees a conviction or even that the indictment will remain in place. If Mueller is fired and replaced by a new special counsel, the new prosecutor could argue that the original charges were unfounded. Still, the ultimate decision would again rest with an independent judge, not with an executive branch employee whose job security relies on the whims of the president. A new prosecutor would also have to actively request the charges be withdrawn. These checks could be disregarded, but they might also be enough to preserve the indictment if Mueller were to be fired.
Of course, only Mueller and his team know if they have a strong enough criminal case against the president to merit an indictment—sealed or otherwise. If they do, with Trump’s threats to fire Mueller looming, there is significant advantage to moving forward soon.
Any indictment of Trump—sealed or otherwise—would raise the deeper constitutional question of whether a sitting president can be indicted at all. The Supreme Court has not decided that issue definitively, but the precedent in Clinton v. Jones suggests that its answer should be “yes.” When Paula Jones sued then-President Bill Clinton for events that occurred while he was governor of Arkansas, Clinton’s attorneys argued that he could not be subject to legal proceedings because the process would imperil the functioning of the executive branch. The Supreme Court rejected that argument, reaffirming that not even the president is above the law. The Jones case was about a civil, not a criminal, matter. But that case demonstrated our constitutional commitment to the rule of law, not of people. That fundamental principle should hold true in both civil and criminal matters. Ken Starr’s office of independent counsel agreed, concluding that a president could be indicted in office for a criminal offense, drawing on the basic principle that presidents are not above the law and that they can manage their affairs even if they are indicted.
Still, the president will argue that he is immune from prosecution. In his defense he can cite Office of Legal Counsel (OLC) memos from the Nixon and Clinton administrations. But those memos defended a broad view of presidential immunity inconsistent with Jones and an earlier Supreme Court case, US v. Nixon, that forced Nixon to comply with a special prosecutor’s subpoena.
Moreover, the memos relied on flawed arguments. They contended that the executive branch would be debilitated by a sitting president who was indicted or forced to stand trial. But the Jones case went forward without the executive branch collapsing. In Trump’s case, the executive branch is already in disarray and facing numerous investigations; it’s not clear the administration would perform noticeably worse if Trump had just one more legal matter to address.
The memo from the Clinton-era OLC also discusses how the indictment of a sitting president would harm the dignity of the office. But what really tarnishes the dignity of the office are crimes committed by a president, a reality exacerbated by granting a president immunity from prosecution. The harm is even worse in cases where the statute of limitations might run out, precluding an indictment even once Trump left office, regardless of whether new incriminating evidence is found. The statute of limitations for obstruction of justice, for instance, is five years, which could expire by the time Trump is out of office if he were elected for a second term.
Mueller could avoid these challenges to his prosecutorial authority by taking a step short of requesting an indictment from the grand jury. He could issue a sealed report to be handed to the attorney general’s office or members of Congress, consistent with the special counsel’s reporting obligations. But this option might be too weak, as it risks leaving any decisions to take action to a future attorney general who could be completely under Trump’s sway, or to a congressional body that might act based more on politics than on their own constitutional duty.
Considering the situation, a sealed or public indictment gives Mueller or a future special counsel the widest array of options. It allows for the route that Starr took, pursuing a criminal case first and then turning the information gathered from the investigation to Congress for use in impeachment proceedings. It also allows a future prosecutor to ensure that justice can eventually be served: Even if the trial were delayed until the president was no longer in office—avoiding the constitutional question about trying a sitting president—Trump would still be held accountable for any potential crimes.
Some might think that all this talk is meaningless, since any indictment sought by Mueller would be stopped by Rosenstein, who legally must sign off on such an indictment. But Rosenstein is supposed to defer to the special counsel. If Rosenstein wanted to stop Mueller, he could claim that the Clinton and Nixon OLC memos remain Justice Department policy and that Mueller is bound by them. But it is more likely that Rosenstein does have the authority to reject the findings of the memos and to support a decision to indict the president. Indeed, Walter Dellinger III, a former head of the Office of Legal Counsel, recently argued publicly for why, despite the memos, the president can in fact be indicted while in office. With the threat looming that Trump will fire Rosenstein and replace him with a crony, the pressure is on to seek an indictment now.
It will take a savvy prosecutor to give meaning to the principle that no one—not even a president—is above the law. A sealed indictment is one strong way to help in that pursuit.