Since the August 8 seizure of documents at Mar-a-Lago, lawyers wonder whether and when the former president will be indicted. Based on what we know (and Attorney General Merrick Garland may know more), any fair-minded citizen might say that the evidence from the search is overwhelming. Recent photos of unsecured, highly classified documents have only strengthened the case. Undeniably, after leaving office, Donald Trump took criminal possession of government documents, ranging from the lowest degree of secrecy to the highest. If you or I did it, we would be rightfully residing in federal prison.
Garland reportedly spent weeks mulling over the search warrant. It might take months to decide whether to indict, even without the complication of the presiding judge’s decision to appoint a special master to investigate privilege claims. A stickler for Justice Department rules, Garland is unlikely to charge Trump before the election, since those rules all but forbid prosecutors from engaging in actions that could interfere with elections. Garland, a former federal appellate judge, will likely pay heed to a cautionary note by Harvard Law School’s Noah Feldman: “A prosecution could backfire in numerous ways, including by giving Trump greater incentive to run for office and win in order to fend off the prosecution or its consequences.”
But Trump needs no incentive to run again. It’s too lucrative not to, and, as Henry Kissinger once quipped, “power is the ultimate aphrodisiac.”
There is a particular risk of backfire if Garland indicts Trump for obstruction, and he would probably have to bring the case in south Florida, where the obstruction occurred. There would be a risk of MAGA nullifiers being on the jury, and it would just take one vote for a hung jury.
So Garland has a dilemma: Indict or don’t indict. Risk losing or decline to prosecute and let Trump walk away. In concluding that “Donald Trump Is Not Above the Law” and should be indicted, The New York Times acknowledged last month, “Pursuing prosecution of Mr. Trump could further entrench support for him and play into the conspiracy theories he has sought to stoke. It could inflame the bitter partisan divide, even to the point of civil unrest. If viewed as illegitimate, a trial could also further undermine confidence in the rule of law, whatever the eventual outcome.”
As a former federal prosecutor, I would indict Trump. The facts and the law in Trump’s case are compelling. The rule of law binds us together and is at the core of our democracy. Or, as the Times added, “America is not sustained by a set of principles; it is sustained by resolute action to defend those principles.”
But Garland has a third choice that has received little attention. It could conceivably get him where he wants to go—a “presentment” or report filed by the grand jury with the federal court. Here, prosecutors could lay out the evidence the grand jury has gathered of Trump’s criminality but hold off on an indictment.
The grand jury report is an institution we inherited from the English. It likely dates to 1166 and antedates the grand jury itself. It is mentioned in the Fifth Amendment. The report is presented to the court by the grand jury without any bill of indictment. A presentment may charge individuals with crimes. Meanwhile, the investigation could continue and be followed later by criminal charges in an indictment.
The American colonies adopted the grand jury’s ability to render reports on matters of public concern. In 1688, a New York grand jury urged that liquor be sold only by innkeepers. Subsequently, colonial grand juries reported on highway repair. New Jersey grand juries reported on matters of public concern through the 1680s. In Virginia, grand juries expressed their opinions on colonial administration. Federal courts followed suit.
In the 20th century, New York courts noted that a grand jury investigation might reveal “inefficiency, carelessness or neglect [that] may require correction and yet not justify indictment.” The operative word is yet.
Once a grand jury has determined that it has the evidence to condemn individual conduct as criminal, it must call the person condemned and his lawyers to render an explanation. The refusal to appear or to testify may give rise to an adverse inference.
It is famously said that a prosecutor could convince a grand jury to indict a ham sandwich. But, in rendering a report, a grand jury can appear more independent and impartial. The investigation is conducted under a cloak of grand jury secrecy, and, since the grand jury is an arm of the court, if it gets out of hand, the presiding judge can readily intervene.
Where there is a presentment finding illegality on the part of an individual or critical of his conduct, the person aggrieved can go to the media with denials and countercharges. Trump knows how to do that. And he has more latitude in the court of public opinion, where he is not bound by the rules of evidence or judicial intervention, than in a court of law.
Critics of the presentment argue that the practice leads to condemnation with no opportunity for exoneration—but so is naming an unindicted co-conspirator or someone in an indictment that is later dismissed.
As Judge Learned Hand said, “Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.”
What would an indictment add to the mix? The trial of a former president would be unlike anything in American history. If Trump were convicted, his supporters would claim that Joe Biden and the radical left had framed him. If he were acquitted, they’d argue that he had received a healing benediction, just as he did after the Mueller report. A Trump conviction would not make America whole, nor would his acquittal. But a detailed grand jury report of his involvement in the events of January 6 and his mishandling of classified documents after that, and a grand jury’s setting out the federal crimes he may have committed, would be damning and leave his political fate to the American people, who inevitably are the custodians of his place in history.