Imagine if special counsel Robert Mueller finds sufficient evidence to charge President Donald Trump, but his hands are tied because he or the Department of Justice concludes that they cannot indict a sitting president? Could Mueller instead identify President Trump by name as an “unindicted co-conspirator” when bringing charges against other individuals? The stakes are enormously high. Such action would have some of the same reverberations across the country as a criminal indictment of the president.

A facile answer would rely simply on the fact that the special prosecutor in Watergate did just that. The Watergate grand jury named President Richard M. Nixon as an unindicted co-conspirator when it issued indictments of others.

Since Watergate, however, the Department of Justice has developed guidance for criminal prosecutions that places a presumption against naming individuals as unindicted co-conspirators. The U.S. Attorneys’ Office Manual states:



The rationale behind this rule is that it is generally unfair for the government to tag people with the marker of criminality without giving them an opportunity to defend themselves in court.

That said, the prohibition expressed in the U.S. attorneys’ manual is not categorical. The manual says it applies “in the absence of some significant justification” and that federal prosecutors “generally” should not identify unindicted conspirators in the indictment. And later the manual says, “Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment.”

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If there were ever a need to make an exception to the presumption against identifying an unindicted co-conspirator, Mueller’s investigation could be it. Simply put, a case in which two conditions exist—a person is immune from prosecution but there’s a strong public interest in knowing about their actions—can provide ample justification.

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