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I found an article from 9/98 in the Washington Post, which appears to be some congressional hearing:
SEN. ASHCROFT: That may well be for murder. But I'm talking about serious state offenses. There are a lot of serious state offenses that aren't covered in the federal codes. And I'm not arguing that they should be. But it seems to me that to reference only the federal statutes, makes it a little bit difficult to really think clearly about whether or not the statutes are relevant in this setting.
Mr. Rient, as an alternative to indictment, grand juries have traditionally had the power to issue presentments, or reports. What's the justification for issuing a presentment, rather than an indictment, and what role have presentments played historically?
MR. RIENT: Senator, I didn't catch the last part of the question. But as to the first part, the justification for issuing a presentment would really boil down to the proposition that it does not subject the subject of the presentment to the requirements of a trial, and the possibility of a punishment, in the event of a conviction. I mean, the presentment is simply a bald charge, or set of charges by the grand jury that certain things happened, and that in this case, if one were talking about the president, that the president participated in activities that the grand jury considers to have been criminal.
But it doesn't require that the mechanism of the criminal justice process then spring into action with an arraignment, and a setting of trial date, and motions, and trial, and all of the rest of that. It's just out there, the accusation.
And some have argued that that is, in a sense, unfair, because it doesn't allow the object of the presentment an opportunity to be publicly vindicated, and that might well be so, with respect to ordinary citizens, who don't share the access to the public media that a president does. But I think that in the case if a presentment were issued against a sitting president, it would be quite extraordinary that the president would not find it in his power to be able to respond quite effectively, even though it weren't in the context of a trial in a courtroom, which he probably would prefer to avoid in any event.
SEN. ASHCROFT: Is it your view that if there is no authority -- for instance, say that Professor Teurkheimer is correct, there's no capacity to indict a sitting president. Is it your view that it's inappropriate for an independent prosecutor to expend the resources and develop the case against a sitting president, if there is no potential for prosecution?
MR. RIENT: I'm not sure I would agree with that, Senator. The problem is that when you start a federal investigation, or a criminal investigation, federal or stat for that matter, you're not always clear about who is going to be involved in the thing. And even in this investigation by the special counsel, there have been suggestions, I think, that there may have been criminal acts committed by others than the president. And certainly the investigation should be allowed to continue, with respect to determining whether or not that is so.
SEN. ASHCROFT: Mr. Cox, I believe you addressed the so-called inferior officer argument. Is it your understanding that if you're going to categorize the independent counsel as an inferior officer, by virtue of the fact that he was not confirmed by the Senate of the United States, that that inferior officer would be inferior to other officers who might be subject to impeachment, who indeed were confirmed by the Senate of the United States?
MR. COX: Yes, Senator. He certainly would be, in the constitutional sense, inferior, and so, for example, you could imagine a situation in which an independent counsel, properly invoked under the independent counsel statute, uncovers a crime committed by the secretary of a cabinet agency, someone who has been confirmed, someone who, in that sense, is his constitutional superior, as a principal officer of the United States, and there would be no constitutional problem with that.
And indeed, again, that goes back to the very reason why Congress has seen fit to enact the independent counsel statute. It is to have these types of prosecutions brought against people who are prominent in the government, and who do tend to be, though are not exclusively, principal officers.
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