Mueller and Barr: The Memorandum that Saved Trump
By
Gordon Duff, Senior Editor -
April 1, 2019
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Best friends for 30 years, Mueller and Barr, the CoverUp Twins
By Gordon Duff, Senior Editor
Reading the memorandum today, full aware after stupidly failing to look into the 40 year partnership between Mueller and Barr, it is important that prettymuch everyone know how America was “set up” over RussiaGate and how complicit Trump and his cronies were is staging the whole thing, like a DC version of Sandy Hook.
Very much like a DC version of Sandy Hook, if you get what I am not saying…
MEMORANDUM 8 June 2018
To: Deputy Attorney General Rod Rosenstein Assistant Attorney General Steve Engel
From: Bill Barr
Mueller’s “Obstruction” Theory
I am writing as a former official deeply concerned with the institutions of the Presidency and the Department of Justice. I realize that I am in the dark about many facts, but I hope my views may be useful.
It appears Mueller’s team is investigating a possible case of “obstruction” by the President predicated substantially on his expression of hope that the Comey could eventually “let.. .go” of its investigation of Flynn and his action in firing Comey. In pursuit of this obstruction theory, it appears that Mueller’s team is demanding that the President submit to interrogation about these incidents, using the threat of subpoenas to coerce his submission.
Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction. Apart from whether Mueller a strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.
As things stand, obstruction laws do not criminalize just any act that can influence a “proceeding.” Rather they are concerned with acts intended to have a particular kind of impact. A “proceeding” is a formalized process for finding the truth. In general, obstruction laws are meant to protect proceedings from actions designed subvert the integrity of their truth-finding function through compromising the honesty of decision-makers (e.g., judge, jury) or impairing the integrity or availability ofevidence — testimonial, documentary, or physical. Thus, obstruction laws prohibit a range of “bad acts” — such as tampering with a witness or juror; or destroying, altering, or falsifying evidence — all of which are inherently wrongful because, by their very nature, they are directed at depriving the proceeding of honest decision-makers or access to full and accurate evidence. In general, then, the actus reus of an obstruction offense is the inherently subversive “bad act” of impairing the integrity of a decision-maker or evidence. The requisite mens rea is simply intending the wrongful impairment that inexorably flows from the act.
Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding does not involve commission of any of these inherently wrongful, subversive acts.
The President, as far as I know, is not being accused of engaging in any wrongful act of evidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution. It appears Mueller is relying on 18 U.S.C. 51512, which generally prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is relevant here because, unlike other obstruction statutes, it does not require that a proceeding be actually “pending” at the time of an obstruction, but only that a defendant have in mind an anticipated proceeding. Because there were seemingly no relevant proceedings pending when the President allegedly engaged in the alleged obstruction, I believe that Mueller’s team is considering the “residual clause” in Section 1512 — subsection (c)(2) —as the potential basis for an obstruction case. Subsection (c) reads:
(c) Whoever corruptly– (I) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. [emphasis added].
As I understand the theory, Mueller proposes to give clause (c)(2), which previously has been exclusively confined to acts of evidence impairment, a new unbounded interpretation. First, by reading clause (c)(2) in isolation, and glossing over key terms, he construes the clause as a freestanding, all-encompassing provision prohibiting any act influencing a proceeding if done With an improper motive. Second, in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way — for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power — a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.
If embraced by the Department, this theory would have potentially disastrous implications, not just for the Presidency, but for the Executive branch as a whole and for the Department in particular. While Mueller’s focus is the President’s discretionary actions, his theory would apply to all exercises of prosecutorial discretion by the President’s subordinates, from the Attorney General down to the most junior line prosecutor. Simply by giving direction on a case, or class of cases, an official opens himself to the charge that he has acted with an “improper” motive and thus becomes subject to a criminal investigation. Moreover, the challenge to Comey’s removal shows that not just prosecutorial decisions are at issue. Any personnel or management decisions taken by an official charged with supervising and conducting litigation and enforcement matters in the Executive branch can become grist for the criminal mill based solely on the official’s subjective state of mind. All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. Attorney — could be cast as a crime of obstruction.
It is inconceivable to me that the Department could accept Mueller’s interpretation of It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President. I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a
debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.
As elaborated on below, Mueller’s theory should be rejected for the following reasons:
First; the sweeping interpretation being proposed for 1512’s residual clause is contrary to the statute’s plain meaning and would directly contravene the Department’s longstanding and consistent position that generally-worded statutes like 1512 cannot be applied to the President’s exercise of his constitutional powers in the absence of a “clear statement” in the statute that such an application was intended.
Second, Mueller’s premise that, whenever an investigation touches on the President’s own conduct, it is inherently “corrupt” under 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President’s supervisory authority. Moreover, such a limitation cannot be reconciled with the Department’s longstanding position that the “conflict of interest” laws do not, and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise.
Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article Il of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.
Fourth, even if one were to indulge Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion. Because the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the President about obstruction until has enough evidence to establish collusion.
- The Statute’s Plain Meaning, and “the Clear Statement” Rule Long Adhered To By the Department, Preclude Its Application to Facially-Lawful Exercises of the President’s Constitutional Discretion.
The unbounded construction Mueller would give *1512 ‘s residual clause is contrary to the provision’s text, structure, and legislative history. By its terms, 51512 focuses exclusively on actions that subvert the truth-finding function of a proceeding by impairing the availability or integrity of evidence — testimonial, documentary, or physical. Thus, 51512 proscribes a litany of specifically-defined acts of obstruction, including killing a witness, threatening a witness to prevent or alter testimony, destroying or altering documentary or physical evidence, and harassing a witness to hinder testimony. All of these enumerated acts are “obstructive” in precisely the same way — they interfere with a proceeding’s ability to gather complete and reliable evidence.
The question here is whether the phrase — “or corruptly otherwise obstructs” — in clause (c)(2) is divorced from the litany of the specific prohibitions in 1512, and is thus a free-standing, all-encompassing prohibition reaching any act that influences a proceeding, or whether the clause’ s prohibition against “otherwise” obstructing is somehow tied to, and limited by, the character of all the other forms of obstruction listed in the statute. I think it is clear that use of the word “otherwise” in the residual clause expressly links the clause to the forms of obstruction specifically defined elsewhere in the provision. Unless it serves that pumose, the word “otherwise” does no work at all and is mere surplusage. Mueller’s interpretation of the residual clause as covering any and all acts that influence a proceeding reads the word “otherwise” out of the statute altogether. But any proper interpretation of the clause must give effect to the word “otherwise;” it must do some work.
As the Supreme Court has suggested, Begay v. United States, 553 U.S. 137, 142-143 (2008), when Congress enumerates various specific acts constituting a crime and then follows that enumeration with a residual clause, introduced with the words “or otherwise,” then the more general action referred to immediately after the word “otherwise” is most naturally understood to cover acts that cause a similar kind of result as the preceding listed examples, but cause those results in a different manner. In other words, the specific examples enumerated prior to the residual clause are typically read as refining or limiting in some way the broader catch-all tenn used in the residual clause. See also Yates v. United States, 135 S.Ct. 1074, 1085-87 (2015). As the Begay Court observed, if Congress meant the residual clause to be so all-encompassing that it subsumes all the preceding enumerated examples, “it is hard to see why it would have needed to include the examples at all.” 553 U.S. at 142; see McDonnellv. United States, 136 s.ct. 2355, 2369 (2016). An example suffices to make the point: If a statute prohibits “slapping, punching, kicking, biting, gouging eyes, or otherwise hurting” another person, the word “hurting” in the residual clause would naturally be understood as referring to the same kind of physical injury inflicted by the enumerated acts, but inflicted in a different way — i.e., pulling hair. It normally would not be understood as referring to any kind of “hurting,” such as hurting another’s feelings, or hurting another’s economic interests.
Consequently, under the statute’s plain language and structure, the most natural and plausible reading of is that it covers acts that have the same kind of obstructive impact as the listed forms of obstruction — i.e., impairing the availability or integrity of evidence — but cause this impairment in a different way than the enumerated actions do. Under this construction, then, the “catch all” language in clause (c)(2) encompasses any conduct, even if not specifically described in 1512, that is directed at undermining a proceeding’s truth-finding function through actions impairing the integrity and availability of evidence. Indeed, this is how the residual clause has been applied. From a quick review of the cases, it appears all the cases have involved attempts to interfere with, or render false, the evidence that would become available to a proceeding. Even the more esoteric applications of clause (c)(2) have been directed against attempts to prevent the flow of evidence to a proceeding. E.g., United States v. Volpendesto, 746 F.3d 273 (7th Cir. tips from corrupt cops to evade surveillance); United States v. Phillips, 583 F.3d 1261 (10th Cir. 2009)(disclosing identity of undercover agent to subject of grand jury drug investigation). As far as I can tell, no case has ever treated as an “obstruction” an official’s exercise of prosecutorial discretion or an official’s management or personnel actions collaterally affecting a proceeding.
Further, reading the residual clause as an all-encompassing proscription cannot be reconciled either with the other subsections of S 1512, or with the other obstruction provisions in Title 18 that must be read in pari passu with those in 1512. Given Mueller’s sweeping interpretation, clause (c)(2) would render all the specific terms in clause (c)(l) surplusage; moreover, it would swallow up all the specific prohibitions in the remainder of S 1512 — subsections (a), (b), and (d). More than that, it would subsume virtually all other obstruction provisions in Title 18. For example, it would supervene the omnibus clause in 1503, applicable to pending judicial proceedings, as well as the omnibus clause in 1505, applicable to pending proceedings before agencies and Congress. Construing the residual clause in 1512(c)(2) as supplanting these provisions would eliminate the restrictions Congress built into those provisions — i.e., the requirement that a proceeding be “pending” — and would supplant the lower penalties in those provisions with the substantially higher penalties in 1512(c). It is not too much of an exaggeration to say that, if S 1512(c)(2) can be read as broadly as being proposed, then virtually all Federal obstruction law could be reduced to this single clause.
Needless to say, it is highly implausible that such a revolution in obstruction law was intended, or would have gone uncommented upon, when (c)(2) was enacted. On the contrary, the legislative history makes plain that Congress had a more focused purpose when it enacted (c)(2). That subsection was enacted in 2002 as part of the Sarbanes-Oxley Act. That statute was prompted by Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen, had systematically destroyed potentially incriminating documents. Subsection (c) was added to Section 1512 explicitly as a “loophole” closer meant to address the fact that the existing section 1512(b) covers document destruction only where a defendant has induced another person to do it and does not address document destruction carried out by a defendant directly.
As reported to the Senate, the Corporate Fraud Accountability Act was expressly designed to “clarify and close loopholes in the existing criminal laws relating to the destruction or fabrication of evidence and the preservation of financial and audit records.” S. Rep. No. 107-146, at 14-15. Section 1512(c) did not exist as part of the original proposal. See S. 2010, 107th Cong. (2002). Instead, it was later introduced as an amendment by Senator Trent Lott in July 2002. 148 Cong. Rec. S6542 (daily ed. July 10, 2002). Senator Lott explained that, by adding new 1512(c), his proposed amendment:
would enact stronger laws against document shredding. Current law prohibits obstruction ofjustice by a defendant acting alone, but only if a proceeding is pending and a subpoena has been issued for the evidence that has been destroyed or altered …. [T]his section would allow the Government to charge obstruction against individuals who acted alone, even if the tampering took place prior to the issuance of a grand jury subpoena. I think this is something we need to make clear so we do not have a repeat of what we saw with the Enron matter earlier this year.
Id. at S6545 (statement of Sen. Lott) (emphasis supplied). Senator Offin Hatch, in support of Senator Lott’s amendment, explained that it would “close [] [the] loophole” created by the available obstruction statutes and hold criminally liable a person who, acting alone, destroys documents. Id. at S6550 (statement of Sen. Hatch). The legislative history thus confirms that 1512(c) was not intended as a sweeping provision supplanting wide swathes of obstruction law, but rather as a targeted gap-filler designed to strengthen prohibitions on the impairment of evidence.
Not only is an all-encompassing reading of contrary to the language and manifest purpose ofthe statute, but it is precluded by a fundamental canon of statutory construction applicable to statutes of this sort. Statutes must be construed with reference to the constitutional framework within which they operate. E.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Reading 1512(c)(2) broadly to criminalize the President’s facially-lawful exercises of his removal authority and his prosecutorial discretion, based on probing his subjective state of mind for evidence of an “improper” motive, would obviously intrude deeply into core areas of the President’s constitutional powers. It is well-settled that statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a
possible conflict with the President’s constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). OLC has long rigorously enforced this “clear statement’S rule to limit the reach of broadly worded statutes so as to prevent undue intrusion into the President’s exercise of his Constitutional discretion.
As OLC has explained, the “clear statement” rule has two sources. First, it arises from the long-recognized “cardinal principle” of statut01Y interpretation that statutes be construed to avoid raising serious constitutional questions. Second, the rule exists to protect the “usual constitutional balance” between the branches contemplated by the Framers by “requir[ing] an express statement by Congress before assuming it intended” to impinge upon Presidential authority. Franklin, 505 U.S. at 801; see, e.g., Application of 28 U.S.C. 5458 to Presidential Appointments of Federal Judges, 19 op. O.L.C. 350 (1995).
This clear statement rule has been applied frequently by the Supreme Court as well as the Executive branch with respect to statutes that might otherwise, if one were to ignore the constitutional context, be susceptible of an application that would affect the President’s constitutional prerogatives. For instance, in Franklin the Court was called upon to determine whether the Administrative Procedure Act (“APA”), 5 U.S.C 701-706, authorized “abuse of discretion” review of final actions by the President. Even though the statute defined reviewable action in a way that facially could include the President, and did not list the President among the express exceptions to the APA, Justice O’Connor wrote for the Court:
[t]he President is not [expressly] excluded from the APA’s purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.
505 U.S. at 800-01. To amplify, she continued, “[a]s the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements. ” Id. at 801.
Similarly, in Public Citizen v. United States Dep’t of Justice, 491 U.S. 440 (1989), the Court held that the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2, does not apply to the judicial recommendation panels of the American Bar Association because interpreting the statute as applying to them would raise serious constitutional questions relating to the President’s constitutional appointment power. By its terms, FACA applied to any advisory committee used by an agency “in the interest of obtaining advice or recommendations for the President.” 5 U.S.C. app. 3(2(c). While acknowledging that a “straightforward reading” of the statute’s language would seem to require its application to the ABA committee, Public Citizen, 491 U.S. at 453, the Court held that such a reading was precluded by the “cardinal principle” that a statute be interpreted to avoid serious constitutional question.” Id. at 465-67. Notably, the majority stated, “[o]ur reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of government,” and “[t]hat construing FACA to apply to the Justice Department’s consultations with the ABA Committee would present formidable constitutional difficulties is undeniable.” Id. at 466.
The Office of Legal Counsel has consistently “adhered to a plain statement rule: statutes that do not expressly apply to the President must be construed as not applying to the President, where applying the statute to the President would pose a significant question regarding the President’s constitutional prerogatives.” E.g, The Constitutional Separation of Powers Between the President and Congress, op. O.L.C. 124, 178 (1996); Application of 28 U.S.C. ‘458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350 (1995).
The Department has applied this principle to broadly-worded criminal statutes, like the one at issue here. Thus, in a closely analogous context, the Department has long held that the conflictof-interest statute, 18 U.S.C 208, does not apply to the President. That statute prohibits any “officer or employee of the executive branch” from “participat[ing] personally and substantially” in any particular matter in which he or she has a personal financial interest. Id In the leading opinion on the matter, then-Deputy Attorney General Laurence Silberman determined that the legislative history disclosed no intention to cover the President and doing so would raise “serious questions as to the constitutionality” of the statute, because the effect of applying the statute to the President would “disempower” the President from performing his constitutionally-prescribed functions as to certain matters . See Memorandum for Richard T. Burress, Office of the President, from Laurence H Silberman, Deputy Attorney General, Re: Conflict ofInterest Problems Arising out of the President’s Nomination ofNelson A. Rockefeller to be Vice President under the TwentyFifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974).
Similarly, OLC opined that the Anti-Lobbying Act, 18 U.S.C. 1913, does not apply fully against the President. See Constraints Imposed by 18 U.S. C. 1913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-06 (1989). The Anti-Lobbying Act prohibits any appropriated funds from being “used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress.” 18 U.S.C. 1913. The statute provided an exception for communications by executive branch officers and employees if the communication was made pursuant to a request by a member of Congress or was a request to Congress for legislation or appropriations. OLC concluded that applying the Act as broadly as its terms would otherwise allow would raise serious constitutional questions as an infringement of the President’s Recommendations Clause power.
In addition to the “clear statement” rule, other canons of statutory construction preclude giving the residual clause in S the unbounded scope proposed by Mueller’s obstruction theory. As elaborated on in the ensuing section, to read the residual clause as extending beyond evidence impairment, and to apply it to any that “corruptly” affects a proceeding, would raise serious Due Process issues. Once divorced from the concrete standard of evidence impairment, the residual clause defines neither the crime’s actus reus (what conduct amounts to obstruction) nor its mens rea (what state of mind is “corrupt”) “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” or “in a manner that does not encourage arbitrary and discriminatory enforcement.” See e.g. McDonnell v. United States, 136 S.Ct. at 2373. This vagueness defect becomes even more pronounced when the statute is applied to a wide range of public officials whose normal duties involve the exercise of prosecutorial discretion and the conduct and management of official proceedings. The “cardinal rule” that a statute be interpreted to avoid serious constitutional questions mandates rejection of the sweeping interpretation of the residual clause proposed by Mueller.
Even if the statute’s plain meaning, fortified by the “clear statement” rule, were not dispositive, the fact that 1512 is a criminal statute dictates a narrower reading than Mueller’s allencompassing interpretation. Even if the scope of 1512(c)(2) were ambiguous, under the “rule of lenity,” that ambiguity must be resolved against the Government’s broader reading. See, e.g., United States v. Granderson, 511 U.S. 39, 54 (1994) (“In these circumstances where text,
structure, and history fail to establish that the Government’s position is unambiguously correct we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.”)
In sum, the sweeping construction of residual clause posited by Mueller’s obstruction theory is novel and extravagant. It is contrary to the statute’s plain language, structure, and legislative history. Such a broad reading would contravene the “clear statement” rule of statutory construction, which the Department has rigorously adhered to in interpreting statutes, like this one, that would otherwise intrude on Executive authority. By it terms, 1512 is intended to protect the truth-finding function of a proceeding by prohibiting acts that would impair the availability or integrity of evidence. The cases applying the fresidual clause” have fallen within this scope. The clause has never before been applied to facially-lawful discretionary acts of Executive branch official. Mueller’s overly-aggressive use of the obstruction laws should not be embraced by the Department and cannot support interrogation of the President to evaluate his subjective state of mind.
Il. Applying to Review Facially-Lawful Exercises of the President’s Removal Authority and Prosecutorial Discretion Would Impermissibly Infringe on the President’s Constitutional Authority and the Functioning of the Executive Branch.
This case implicates at least two broad discretionary powers vested by the Constitution exclusively in the President. First, in removing Comey as director of the FBI there is no question that the President was exercising one of his core authorities under the Constitution. Because the President has Constitutional responsibility for seeing that the laws are faithfully executed, it is settled that he has “illimitable” discretion to remove principal officers carrying out his Executive functions. See Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138, 3152 (2010); Myers v. United states, 272 U.s. 52 (1926). Similarly, in commenting to Comey about Flynn’s situation — to the extent it is taken as the President having placed his thumb on the scale in favor of lenity — the President was plainly within his plenary discretion over the prosecution function. The Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President. The President’s discretion in these areas has long been considered “absolute,” and his decisions exercising this discretion are presumed to be regular and are generally deemed non-reviewable. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Nixon, 418 U.S. 683, 693 (1974); see generally S. Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521 (2005)
The central problem with Mueller’s interpretation of is that, instead of applying the statute to inherently wrongful acts of evidence impairment, he would now define the actus reus of obstruction as any act, including facially lawful acts, that influence a proceeding. However, the Constitution vests plenary authority over law enforcement proceedings in the President, and therefore one of the President’s core constitutional authorities is precisely to make decisions “influencing” proceedings. In addition, the Constitution vests other discretionary powers in the President that can have a collateral influence on proceedings — including the power of appointment, removal, and pardon. The crux of Mueller’s position is that, whenever the President exercises any of these discretionary powers and thereby “influences” a proceeding, he has completed the actus reus of the crime of obstruction. To establish guilt, all that remains is evaluation of the President’s state of mind to divine whether he acted with a “corrupt” motive.
Construed in this manner, would violate Article Il of the Constitution in at least two respects:
First, Mueller’s premise appears to be that, when a proceeding is looking into the President’s own conduct, it would be “corrupt” within the meaning of for the President to attempt to influence that proceeding. In other words, Mueller seems to be claiming that the obstruction statute effectively walls off the President from exercising Constitutional powers over cases in which his own conduct is being scrutinized. This premise is clearly wrong constitutionally. Nor can it be
reconciled with the Department’s longstanding position that the “conflict of interest” laws do not,
and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise. Under the Constitution, the President’s authority over law enforcement matters is necessarily all-encompassing, and Congress may not exscind certain matters from the scope of his responsibilities. The Framers’ plan contemplates that the President’s law enforcement powers
extend to all matters, including those in which he had a personal stake, and that the proper mechanism for policing the President’s faithful exercise of that discretion is the political process — that is, the People, acting either directly, or through their elected representatives in Congress.
Second, quite apart from this misbegotten effort to “disempower” the President from acting on matters in which he has an interest, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on the President’s subjective motive, would violate Article Il of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch. The prospect of criminal liability based solely on the official’s state of mind, coupled with the indefinite standards of “improper motive” and “obstruction,” would cast a pall over a wide range of Executive decision-making, chill the exercise of discretion, and expose to intrusive and free-ranging examination of the President’s (and his subordinate’s) subjective state of mind in exercising that discretion.
- Section May Not “Disempower” the Presidentfrom Exercising His Law Enforcement Authority Over a Particular Class ofMatters.
As discussed further below, a fatal flaw in Mueller’s interpretation of is that, while defining obstruction solely as acting “corruptly,” Mueller offers no definition of what “corruptly” means. It appears, however, that Mueller has in mind particular circumstances that he feels may give rise to possible “corruptness” in the current matter. His tacit premise appears to be that, when an investigation is looking into the President’s own conduct, it would be “corrupt” for the President to attempt to influence that investigation.
On a superficial level, this outlook is unsurprising: at first blush it accords with the old Roman maxim that a man should not be the judge in his own case and, because “conflict-ofinterest” laws apply to all the President’s subordinates, DOJ prosecutors are steeped in the notion that it is illegal for an official to touch a case in which he has a personal stake. But constitutionally,
as applied to the President, this mindset is entirely misconceived: there is no legal prohibition — as opposed a political constraint against the President’s acting on a matter in which he has a personal stake.
The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct. On the contrary, the Constitution’s grant of law enforcement power to the President is plenary. Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such, he is the sole repository of all Executive powers conferred by the Constitution. Thus, the full measure of law enforcement authority is placed in the President’s hands, and no limit is placed on the kinds of cases subject to his control and supervision. While the President has subordinates –the Attorney General and DOJ lawyers who exercise prosecutorial discretion on his behalf, they are merely “his hand,” Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) — the discretion they exercise is the President’s discretion, and their decisions are legitimate precisely because they remain under his supervision, and he is still responsible and politically accountable for them.
Nor does any statute purport to restrict the President’s authority over matters in which he has an interest. On the contrary, in 1974, the Department concluded that the conflict-of interestlaws cannot be construed as applying to the President, expressing “serious doubt as to the constitutionality” of a statute that sought “to disempower” the President from acting over particular matters. Letter to Honorable Howard W. Cannon from Acting Attorney General Laurence H. Silberman, dated September 20, 1974; and Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of Interest Problems Arising out of the President’s Nomination ofNelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974). As far as I am aware, this is the only instance in which it has previously been suggested that a statute places a class of law enforcement cases “off limits” to the President’s supervision based on his personal interest in the matters. The Department rejected that suggestion on the ground that Congress could not “disempower” the President from exercising his supervisory authority over such matters. For all the same reasons, Congress could not make it a crime for the President to exercise supervisory authority over cases in which his own conduct might be at issue.
The illimitable nature ofthe President’s law enforcement discretion stems not just from the Constitution’s plenary grant of those powers to the President, but also from the “unitary” character of the Executive branch itself. Because the President alone constitutes the Executive branch, the President cannot “recuse” himself. Just as Congress could not en masse recuse itself, leaving no source of the Legislative power, the President cannot take a holiday from his responsibilities. It is in the very nature of discretionary power that ultimate authority for making the choice must be vested in some final decision-maker. At the end of the day, there frilly must be a desk at which “the buck stops.” In the Executive, final responsibility must rest with the President. Thus, the President, “though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it.” Free Enterprise Fund v. Public Co. Acctg. Oversight Bd., 130 S. ct. 3138, 3154 (2010) (quoting Clinton v. Jones, 520 U.s. 681, 712-713 (1997) (Breyer, J., concurring in judgment)) (emphasis added).
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