https://www.wsj.com/public/resources/documents/BarrMueller.pdf
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MEMORANDUM 8 June 2018 To: Deputy Attorney General Rod RosensteinAssistant Attorney General Steve Engel From: Bill Barr Re: Mueller’s “Obstruction” Theory I am writing as a former official deeply concerned with the institutions of the Presidencyand the Department of Justice. I realize that I am in the dark about many facts, but I hope myviews may be useful. It appears Mueller’s team is investigating a possible case of “obstruction” by the Presidentpredicated substantially on his expression of hope that the Comey could eventually “let…go” ofits investigation of Flynn and his action in firing Comey. In pursuit of this obstruction theory, itappears that Mueller’s team is demanding that the President submit to interrogation about theseincidents, using the threat of subpoenas to coerce his submission. Mueller should not be permitted to demand that the President submit to interrogation aboutalleged 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 ona novel and legally insupportable reading of the law. Moreover, in my view, if credited by theDepartment, it would have grave consequences far beyond the immediate confines of this case andwould do lasting damage to the Presidency and to the administration of law within the Executivebranch. 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 meantto protect proceedings from actions designed subvert the integrity of their truth-finding functionthrough compromising the honesty of decision-makers (e.g., judge, jury) or impairing the integrityor availability of evidence – testimonial, documentary, or physical. Thus, obstruction laws prohibita range of “bad acts” – such as tampering with a witness or juror; or destroying, altering, orfalsifying evidence – all of which are inherently wrongful because, by their very nature, they aredirected at depriving the proceeding of honest decision-makers or access to full and accurateevidence. 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 issimply intending the wrongful impairment that inexorably flows from the act. Obviously, the President and any other official can commit obstruction in this classic senseof sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowinglydestroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits
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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 Nixonand Clinton in their respective impeachments were all such “bad acts” involving the impairmentof evidence. Enforcing these laws against the President in no way infringes on the President’splenary power over law enforcement because exercising this discretion – such as his completeauthority to start or stop a law enforcement proceeding — does not involve commission of any ofthese inherently wrongful, subversive acts. The President, as far as I know, is not being accused of engaging in any wrongful act ofevidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstructionlaws so as to reach facially-lawful actions taken by the President in exercising the discretion vestedin him by the Constitution. It appears Mueller is relying on 18 U.S.C. $1512, which generallyprohibits acts undermining the integrity of evidence or preventing its production. Section 1512 isrelevant here because, unlike other obstruction statutes, it does not require that a proceeding beactually “pending” at the time of an obstruction, but only that a defendant have in mind ananticipated proceeding. Because there were seemingly no relevant proceedings pending when thePresident allegedly engaged in the alleged obstruction, I believe that Mueller’s team is consideringthe “residual clause” in Section 1512 – subsection (c)(2) – as the potential basis for an obstructioncase. Subsection (c) reads: (c) Whoever corruptly– (1) alters, destroys, mutilates, orconceals a record, document, or other object, or attempts to do so, with theintent to impair the object’s integrity or availability for use in an officialproceeding; or (2) otherwise obstructs, influences, or impedes any officialproceeding, 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 hasbeen 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 free-standing, all-encompassing provision prohibiting any act influencing a proceeding if done with animproper motive. Second, in a further unprecedented step, Mueller would apply this sweepingprohibition to facially-lawful acts taken by public officials exercising of their discretionary powersif those acts influence a proceeding. Thus, under this theory, simply by exercising hisConstitutional discretion in a facially-lawful way – for example, by removing or appointing anofficial; 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 thesubject of a criminal grand jury investigation, probing whether the President acted with animproper 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 inparticular. While Mueller’s focus is the President’s discretionary actions, his theory would applyto all exercises of prosecutorial discretion by the President’s subordinates, from the AttorneyGeneral down to the most junior line prosecutor. Simply by giving direction on a case, or class of
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cases, an official opens himself to the charge that he has acted with an “improper” motive and thusbecomes subject to a criminal investigation. Moreover, the challenge to Comey’s removal showsthat not just prosecutorial decisions are at issue. Any personnel or management decisions taken byan official charged with supervising and conducting litigation and enforcement matters in theExecutive branch can become grist for the criminal mill based solely on the official’s subjectivestate of mind. All that is needed is a claim that a supervisor is acting with an improper purposeand any act arguably constraining a case – such as removing a U.S. Attorney — could be cast as acrime of obstruction. It is inconceivable to me that the Department could accept Mueller’s interpretation of$1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis forinterrogating the President. I know you will agree that, if a DOJ investigation is going to take downa democratically-elected President, it is imperative to the health of our system and to our nationalcohesion that any claim of wrongdoing is solidly based on evidence of a real crime – not adebatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contestedareas 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 thestatute’s plain meaning and would directly contravene the Department’s longstanding andconsistent position that generally-worded statutes like § 1512 cannot be applied to the President’sexercise of his constitutional powers in the absence of a “clear statement in the statute that suchan application was intended. Second, Mueller’s premise that, whenever an investigation touches on the President’s ownconduct, it is inherently “corrupt” under 1512 for the President to influence that matter isinsupportable. In granting plenary law enforcement powers to the President, the Constitutionplaces no such limit on the President’s supervisory authority. Moreover, such a limitation cannotbe reconciled with the Department’s longstanding position that the “conflict of interest” laws donot, 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 tosupervise. Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solelyon subjective motive, would violate Article II of the Constitution by impermissibly burdening theexercise of core discretionary powers within the Executive branch. Fourth, even if one were to indulge Mueller’s obstruction theory, in the particular circumstanceshere, 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. Becausethe obstruction claim is entirely dependent on first finding collusion, Mueller should not bepermitted to interrogate the President about obstruction until has enough evidence to establishcollusion.
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I. The Statute’s Plain Meaning, and “the Clear Statement” Rule Long Adhered To By theDepartment, Preclude Its Application to Facially-Lawful Exercises of the President’sConstitutional Discretion. The unbounded construction Mueller would give $1512’s residual clause is contrary to theprovision’s text, structure, and legislative history. By its terms, $1512 focuses exclusively onactions that subvert the truth-finding function of a proceeding by impairing the availability orintegrity of evidence – testimonial, documentary, or physical. Thus, $1512 proscribes a litany ofspecifically-defined acts of obstruction, including killing a witness, threatening a witness toprevent or alter testimony, destroying or altering documentary or physical evidence, and harassinga witness to hinder testimony. All of these enumerated acts are “obstructive” in precisely the sameway – 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 g 1512, and is thus a free-standing,all-encompassing prohibition reaching any act that influences a proceeding, or whether the clause’sprohibition against “otherwise” obstructing is somehow tied to, and limited by, the character of allthe 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 definedelsewhere in the provision. Unless it serves that purpose, the word “otherwise” does no work at alland is mere surplusage. Mueller’s interpretation of the residual clause as covering any and all actsthat influence a proceeding reads the word “otherwise” out of the statute altogether. But any properinterpretation 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 thatenumeration with a residual clause, introduced with the words “or otherwise,” then the moregeneral action referred to immediately after the word “otherwise” is most naturally understood tocover acts that cause a similar kind of result as the preceding listed examples, but cause thoseresults in a different manner. In other words, the specific examples enumerated prior to the residualclause are typically read as refining or limiting in some way the broader catch-all term used in theresidual clause. See also Yates v. United States, 135 S.Ct. 1074, 1085-87 (2015). As the BegayCourt observed, if Congress meant the residual clause to be so all-encompassing that it subsumesall the preceding enumerated examples, “it is hard to see why it would have needed to include theexamples at all.” 553 U.S. at 142; see McDonnell v. 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 clausewould naturally be understood as referring to the same kind of physical injury inflicted by theenumerated acts, but inflicted in a different way – i.e., pulling hair. It normally would not beunderstood as referring to any kind of “hurting,” such as hurting another’s feelings, or hurtinganother’s economic interests. Consequently, under the statute’s plain language and structure, the most natural andplausible reading of 1512(c)(2) is that it covers acts that have the same kind of obstructive impactas the listed forms of obstruction – i.e., impairing the availability or integrity of evidence – butcause this impairment in a different way than the enumerated actions do. Under this construction,
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then, the “catch all” language in clause (c)(2) encompasses any conduct, even if not specificallydescribed in 1512, that is directed at undermining a proceeding’s truth-finding function throughactions impairing the integrity and availability of evidence. Indeed, this is how the residual clausehas been applied. From a quick review of the cases, it appears all the cases have involved attemptsto interfere with, or render false, the evidence that would become available to a proceeding. Eventhe more esoteric applications of clause (c)(2) have been directed against attempts to prevent theflow of evidence to a proceeding. E.g., United States v. Volpendesto, 746 F.3d 273 (7th Cir.2014)(soliciting tips from corrupt cops to evade surveillance); United States v. Phillips, 583 F.3d1261 (10th Cir. 2009)(disclosing identity of undercover agent to subject of grand jury druginvestigation). As far as I can tell, no case has ever treated as an “obstruction” an official’s exerciseof prosecutorial discretion or an official’s management or personnel actions collaterally affectinga proceeding. Further, reading the residual clause as an all-encompassing proscription cannot be reconciled eitherwith the other subsections of $ 1512, or with the other obstruction provisions in Title 18 that mustbe 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)(1) surplusage; moreover, it would swallow up allthe specific prohibitions in the remainder of § 1512 — subsections (a), (b), and (d). More than that,it would subsume virtually all other obstruction provisions in Title 18. For example, it wouldsupervene the omnibus clause in § 1503, applicable to pending judicial proceedings, as well as theomnibus 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 therestrictions 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 substantiallyhigher penalties in § 1512(c). It is not too much of an exaggeration to say that, if § 1512(c)(2) canbe read as broadly as being proposed, then virtually all Federal obstruction law could be reducedto this single clause. Needless to say, it is highly implausible that such a revolution in obstruction law was intended, orwould have gone uncommented upon, when (c)(2) was enacted. On the contrary, the legislativehistory makes plain that Congress had a more focused purpose when it enacted (c)(2). Thatsubsection was enacted in 2002 as part of the Sarbanes-Oxley Act. That statute was prompted byEnron’s massive accounting fraud and revelations that the company’s outside auditor, ArthurAndersen, had systematically destroyed potentially incriminating documents. Subsection (C) wasadded to Section 1512 explicitly as a “loophole” closer meant to address the fact that the existingsection 1512(b) covers document destruction only where a defendant has induced another personto 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 fabricationof 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), hisproposed amendment:
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would enact stronger laws against document shredding. Current law prohibitsobstruction of justice by a defendant acting alone, but only if a proceeding ispending and a subpoena has been issued for the evidence that has beendestroyed or altered … [T]his section would allow the Government to chargeobstruction against individuals who acted alone, even if the tampering tookplace prior to the issuance of a grand jury subpoena. I think this is somethingwe need to make clear so we do not have a repeat of what we saw with theEnron matter earlier this year. Id. at S6545 (statement of Sen. Lott) (emphasis supplied). Senator Orrin Hatch, in support ofSenator Lott’s amendment, explained that it would”close [] [the] loophole” created by the availableobstruction 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 notintended as a sweeping provision supplanting wide swathes of obstruction law, but rather as atargeted gap-filler designed to strengthen prohibitions on the impairment of evidence. Not only is an all-encompassing reading of $ 1512(c)(2) contrary to the language andmanifest purpose of the statute, but it is precluded by a fundamental canon of statutory constructionapplicable to statutes of this sort. Statutes must be construed with reference to the constitutionalframework 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 hisremoval authority and his prosecutorial discretion, based on probing his subjective state of mindfor evidence of an “improper” motive, would obviously intrude deeply into core areas of thePresident’s constitutional powers. It is well-settled that statutes that do not expressly apply to thePresident must be construed as not applying to the President if such application would involve apossible 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 statementsrule to limit the reach of broadly worded statutes so as to prevent undue intrusion into thePresident’s exercise of his Constitutional discretion. As OLC has explained, the “clear statement” rule has two sources. First, it arises from thelong-recognized “cardinal principles of statutory interpretation that statutes be construed to avoidraising serious constitutional questions. Second, the rule exists to protect the “usual constitutionalbalance” between the branches contemplated by the Framers by “requir[ing] an express statementby Congress before assuming it intended” to impinge upon Presidential authority. Franklin, 505U.S. at 801; see, e.g., Application of 28 U.S.C. $458 to Presidential Appointments of FederalJudges, 19 Op. O.L.C. 350 (1995). This clear statement rule has been applied frequently by the Supreme Court as well as theExecutive branch with respect to statutes that might otherwise, if one were to ignore theconstitutional context, be susceptible of an application that would affect the President’sconstitutional prerogatives. For instance, in Franklin the Court was called upon to determinewhether the Administrative Procedure Act (“APA”), 5 U.S.C $$ 701-706, authorized “abuse ofdiscretion” review of final actions by the President. Even though the statute defined reviewableaction in a way that facially could include the President, and did not list the President among theexpress exceptions to the APA, Justice O’Connor wrote for the Court:
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[t]he President is not [expressly] excluded from the APA’s purview, but he isnot explicitly included, either. Out of respect for the separation of powers andthe unique constitutional position of the President, we find that textual silenceis not enough to subject the President to the provisions of the APA. We wouldrequire an express statement by Congress before assuming it intended thePresident’s performance of his statutory duties to be reviewed for abuse ofdiscretion. 505 U.S. at 800-01. To amplify, she continued, “[a]s the APA does not expressly allow review ofthe President’s actions, we must presume that his actions are not subject to its requirements.” Id. at801. Similarly, in Public Citizen v. United States Dep’t of Justice, 491 U.S. 440 (1989), theCourt held that the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. $ 2, does not applyto the judicial recommendation panels of the American Bar Association because interpreting thestatute as applying to them would raise serious constitutional questions relating to the President’sconstitutional appointment power. By its terms, FACA applied to any advisory committee used byan 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 languagewould seem to require its application to the ABA committee, Public Citizen, 491 U.S. at 453, theCourt held that such a reading was precluded by the “cardinal principle” that a statute be interpretedto avoid serious constitutional question.” Id. at 465-67. Notably, the majority stated, “[o]urreluctance to decide constitutional issues is especially great where, as here, they concern therelative powers of coordinate branches of government,” and “[t]hat construing FACA to apply tothe Justice Department’s consultations with the ABA Committee would present formidableconstitutional difficulties is undeniable.” Id. at 466. The Office of Legal Counsel has consistently “adhered to a plain statement rule: statutesthat do not expressly apply to the President must be construed as not applying to thePresident, where applying the statute to the President would pose a significant questionregarding the President’s constitutional prerogatives.” E.g, The Constitutional Separationof 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 oneat issue here. Thus, in a closely analogous context, the Department has long held that the conflict-of-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 leadingopinion on the matter, then-Deputy Attorney General Laurence Silberman determined that thelegislative history disclosed no intention to cover the President and doing so would raise “seriousquestions as to the constitutionality” of the statute, because the effect of applying the statute to thePresident would “disempower” the President from performing his constitutionally-prescribedfunctions as to certain matters . See Memorandum for Richard T. Burress, Office of the President,
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from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of Interest Problems Arisingout of the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth 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 fullyagainst 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 mannera Member of Congress.” 18 U.S.C. § 1913. The statute provided an exception for communicationsby executive branch officers and employees if the communication was made pursuant to a requestby a member of Congress or was a request to Congress for legislation or appropriations. OLCconcluded that applying the Act as broadly as its terms would otherwise allow would raise seriousconstitutional questions as an infringement of the President’s Recommendations Clause power. In addition to the “clear statement” rule, other canons of statutory construction precludegiving the residual clause in $1512(c)(2) the unbounded scope proposed by Mueller’s obstructiontheory. As elaborated on in the ensuing section, to read the residual clause as extending beyondevidence impairment, and to apply it to any that “corruptly” affects a proceeding, would raiseserious 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 peoplecan understand what conduct is prohibited,” or in a manner that does not encourage arbitrary anddiscriminatory enforcement.” See e.g. McDonnell v. United States, 136 S.Ct. at 2373. Thisvagueness defect becomes even more pronounced when the statute is applied to a wide range ofpublic officials whose normal duties involve the exercise of prosecutorial discretion and theconduct and management of official proceedings. The “cardinal rule” that a statute be interpretedto avoid serious constitutional questions mandates rejection of the sweeping interpretation of theresidual clause proposed by Mueller. Even if the statute’s plain meaning, fortified by the “clear statement” rule, were notdispositive, the fact that § 1512 is a criminal statute dictates a narrower reading than Mueller’s all-encompassing interpretation. Even if the scope of $ 1512(c)(2) were ambiguous, under the “ruleof 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 § 1512(c)’s residual clause posited by Mueller’sobstruction 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 ofstatutory 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 intendedto protect the truth-finding function of a proceeding by prohibiting acts that would impair theavailability or integrity of evidence. The cases applying the “residual clause” have fallen withinthis scope. The clause has never before been applied to facially-lawful discretionary acts of
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Executive branch official. Mueller’s overly-aggressive use of the obstruction laws should not beembraced by the Department and cannot support interrogation of the President to evaluate hissubjective state of mind. II. Applying $1512(c)(2) to Review Facially-Lawful Exercises of the President’s RemovalAuthority and Prosecutorial Discretion Would Impermissibly Infringe on the President’sConstitutional Authority and the Functioning of the Executive Branch. This case implicates at least two broad discretionary powers vested by the Constitutionexclusively in the President. First, in removing Comey as director of the FBI there is no questionthat the President was exercising one of his core authorities under the Constitution. Because thePresident has Constitutional responsibility for seeing that the laws are faithfully executed, it issettled that he has “illimitable” discretion to remove principal officers carrying out his Executivefunctions. 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 toComey about Flynn’s situation – to the extent it is taken as the President having placed his thumbon the scale in favor of lenity – the President was plainly within his plenary discretion over theprosecution function. The Constitution vests all Federal law enforcement power, and henceprosecutorial discretion, in the President. The President’s discretion in these areas has long beenconsidered “absolute,” and his decisions exercising this discretion are presumed to be regular andare 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 ChiefProsecutor, 73 Geo. Wash. L. Rev. 521 (2005) The central problem with Mueller’s interpretation of $1512(c)(2) is that, instead ofapplying the statute to inherently wrongful acts of evidence impairment, he would now define theactus 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 thePresident, and therefore one of the President’s core constitutional authorities is precisely to makedecisions “influencing” proceedings. In addition, the Constitution vests other discretionary powersin the President that can have a collateral influence on proceedings – including the power ofappointment, removal, and pardon. The crux of Mueller’s position is that, whenever the Presidentexercises any of these discretionary powers and thereby “influences” a proceeding, he hascompleted the actus reus of the crime of obstruction. To establish guilt, all that remains isevaluation of the President’s state of mind to divine whether he acted with a “corrupt” motive. Construed in this manner, $1512(c)(2) would violate Article II of the Constitution in atleast two respects: First, Mueller’s premise appears to be that, when a proceeding is looking into the President’s ownconduct, it would be “corrupt” within the meaning of $1512(c)(2) for the President to attempt toinfluence that proceeding. In other words, Mueller seems to be claiming that the obstruction statuteeffectively walls off the President from exercising Constitutional powers over cases in which hisown conduct is being scrutinized. This premise is clearly wrong constitutionally. Nor can it be
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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” thePresident from supervising a class of cases that the Constitution grants him the authority tosupervise. Under the Constitution, the President’s authority over law enforcement matters isnecessarily all-encompassing, and Congress may not exscind certain matters from the scope of hisresponsibilities. The Framers’ plan contemplates that the President’s law enforcement powersextend to all matters, including those in which he had a personal stake, and that the propermechanism 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 onmatters in which he has an interest, defining facially-lawful exercises of Executive discretion aspotential crimes, based solely on the President’s subjective motive, would violate Article II of theConstitution by impermissibly burdening the exercise of core discretionary powers within theExecutive 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 pallover a wide range of Executive decision-making, chill the exercise of discretion, and expose tointrusive and free-ranging examination of the President’s (and his subordinate’s) subjective stateof mind in exercising that discretion. A. Section 1512(c)(2) May Not “Disempower” the President from Exercising His LawEnforcement Authority Over a Particular Class of Matters. As discussed further below, a fatal flaw in Mueller’s interpretation of $1512(c)(2) 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 hefeels may give rise to possible “corruptness” in the current matter. His tacit premise appears to bethat, when an investigation is looking into the President’s own conduct, it would be “corrupt” forthe President to attempt to influence that investigation. On a superficial level, this outlook is unsurprising: at first blush it accords with the oldRoman maxim that a man should not be the judge in his own case and, because “conflict-of-interest” laws apply to all the President’s subordinates, DOJ prosecutors are steeped in the notionthat 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 – asopposed a political constraint — against the President’s acting on a matter in which he has apersonal stake. The Constitution itself places no limit on the President’s authority to act on matters whichconcern him or his own conduct. On the contrary, the Constitution’s grant of law enforcementpower to the President is plenary. Constitutionally, it is wrong to conceive of the President assimply the highest officer within the Executive branch hierarchy. He alone is the Executivebranch. 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 limitis placed on the kinds of cases subject to his control and supervision. While the President hassubordinates –the Attorney General and DOJ lawyers — who exercise prosecutorial discretion on
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his behalf, they are merely “his hand,” Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) – thediscretion they exercise is the President’s discretion, and their decisions are legitimate preciselybecause 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 hehas an interest. On the contrary, in 1974, the Department concluded that the conflict-of interest-laws cannot be construed as applying to the President, expressing “serious doubt as to theconstitutionality” of a statute that sought“to disempower” the President from acting over particularmatters. 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 thePresident, from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of InterestProblems Arising out of the President’s Nomination of Nelson A. Rockefeller to be Vice Presidentunder the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974). As far as I amaware, this is the only instance in which it has previously been suggested that a statute places aclass of law enforcement cases “off limits” to the President’s supervision based on his personalinterest in the matters. The Department rejected that suggestion on the ground that Congress couldnot “disempower” the President from exercising his supervisory authority over such matters. Forall the same reasons, Congress could not make it a crime for the President to exercise supervisoryauthority over cases in which his own conduct might be at issue. The illimitable nature of the President’s law enforcement discretion stems not just from theConstitution’s plenary grant of those powers to the President, but also from the “unitary” characterof the Executive branch itself. Because the President alone constitutes the Executive branch, thePresident cannot “recuse” himself. Just as Congress could not en masse recuse itself, leaving nosource of the Legislative power, the President cannot take a holiday from his responsibilities. It isin the very nature of discretionary power that ultimate authority for making the choice must bevested in some final decision-maker. At the end of the day, there truly must be a desk at which“the buck stops.” In the Executive, final responsibility must rest with the President. Thus, thePresident, “though able to delegate duties to others, cannot delegate ultimate responsibility or theactive 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). In framing a Constitution that entrusts broad discretion to the President, the Framers chosethe means they thought best to police the exercise of that discretion. The Framers’ idea was that,by placing all discretionary law enforcement authority in the hands of a single “Chief Magistrate”elected by all the People, and by making him politically accountable for all exercises of thatdiscretion by himself or his agents, they were providing the best way of ensuring the “faithfulexercise” of these powers. Every four years the people as a whole make a solemn national decisionas to the person whom they trust to make these prudential judgments. In the interim, the people’srepresentatives stand watch and have the tools to oversee, discipline, and, if they deem appropriate,remove the President from office. Thus, under the Framers’ plan, the determination whether thePresident is making decisions based on “improper” motives or whether he is “faithfully”discharging his responsibilities is left to the People, through the election process, and the Congress,through the Impeachment process.
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The Framers’ idea of political accountability has proven remarkably successful, far moreso than the disastrous experimentation with an “independent counsel statute, which both partiesagreed to purge from our system. By and large, fear of political retribution has ensured that, whenconfronted with serious allegations of misconduct within an Administration, Presidents have feltit necessary to take practical steps to assure the people that matters will be pursued with integrity.But the measures that Presidents have adopted are voluntary, dictated by political prudence, andadapted to the situation; they are not legally compelled. Moreover, Congress has usually beenquick to respond to allegations of wrongdoing in the Executive and has shown itself more thanwilling to conduct investigations into such allegations. The fact that President is answerable forany abuses of discretion and is ultimately subject to the judgment of Congress through theimpeachment process means that the President is not the judge in his own cause. See Nixon v.Harlow, 457 U.S. 731, 757-58 n.41 (1982)(“ The remedy of impeachment demonstrates that thePresident remains accountable under law for his misdeeds in office.”) Mueller’s core premise — that the President acts “corruptly” if he attempts to influence aproceeding in which his own conduct is being scrutinized – is untenable. Because the Constitution,and the Department’s own rulings, envision that the President may exercise his supervisoryauthority over cases dealing with his own interests, the President transgresses no legal limitationwhen he does so. For that reason, the President’s exercise of supervisory authority over such a casedoes not amount to “corruption.” It may be in some cases politically unwise; but it is not a crime.Moreover, it cannot be presumed that any decision the President reaches in a case in which he isinterested is “improperly” affected by that personal interest. Implicit in the Constitution’s grant ofauthority over such cases, and in the Department’s position that the President cannot be”disempowered” from acting in such cases, is the recognition that Presidents have the capacity todecide such matters based on the public’s long-term interest. In today’s world, Presidents are frequently accused of wrongdoing. Let us say that anoutgoing administration – say, an incumbent U.S. Attorney — launches a “investigation” of anincoming President. The new President knows it is bogus, is being conducted by politicalopponents, and is damaging his ability to establish his new Administration and to address urgentmatters on behalf of the Nation. It would neither be “corrupt” nor a crime for the new Presidentto terminate the matter and leave any further investigation to Congress. There is no legal principlethat would insulate the matter from the President’s supervisory authority and mandate that hepassively submit while a bogus investigation runs its course. At the end of the day, I believe Mueller’s team would have to concede that a President doesnot act “corruptly” simply by acting on – even terminating – a matter that relates to his ownconduct. But I suspect they would take the only logical fallback position from that – namely, thatit would be “corrupt” if the President had actually engaged in unlawful conduct and then blockedan investigation to “cover up” the wrongdoing. In other words, the notion would be that, if aninvestigation was bogus, the President ultimately had legitimate grounds for exercising hissupervisory powers to stop the matter. Conversely, if the President had really engaged inwrongdoing, a decision to stop the case would have been a corrupt cover up. But, in the latter case,the predicate for finding any corruption would be first finding that the President had engaged inthe wrongdoing he was allegedly trying to cover up. Under the particular circumstances here, the
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issue of obstruction only becomes ripe after the alleged collusion by the President or his campaignis established first. While the distinct crime of obstruction can frequently be committed even if theunderlying crime under investigation is never established, that is true only where the obstructionis an act that is wrongful in itself — such as threatening a witness, or destroying evidence. But here,the only basis for ascribing “wrongfulness” (i.e., an improper motive) to the President’s actions isthe claim that he was attempting to block the uncovering of wrongdoing by himself or hiscampaign. Until Mueller can show that there was unlawful collusion, he cannot show that thePresident had an improper “cover up” motive. For reasons discussed below, I do not subscribe to this notion. But here it is largely anacademic question. Either the President and his campaign engaged in illegal collusion or they didnot. If they did, then the issue of “obstruction” is a sideshow. However, if they did not, then thecover up theory is untenable. And, at a practical level, in the absence of some wrongful act ofevidence destruction, the Department would have no business pursuing the President where itcannot show any collusion. Mueller should get on with the task at hand and reach a conclusion oncollusion. In the meantime, pursuing a novel obstruction theory against the President is not onlypremature but – because it forces resolution of numerous constitutional issues – grosslyirresponsible. B. Using Obstruction Laws to Review the President’s Motives for Making Facially-Lawful Discretionary Decisions Impermissibly Infringes on the President’sConstitutional Powers. The crux of Mueller’s claim here is that, when the President performs a facially-lawfuldiscretionary action that influences a proceeding, he may be criminally investigated to determinewhether he acted with an improper motive. It is hard to imagine a more invasive encroachment onExecutive authority. e ar tution Vests Discretion in the President To Decide whether To Prosecute Cases orTo Remove Principal Executive Officers, and Those Decisions are Not Reviewable. The authority to decide whether or not to bring prosecutions, as well as the authority toappoint and remove principal Executive officers, and to grant pardons, are quintessentiallyExecutive in character and among the discretionary powers vested exclusively in the President bythe Constitution. When the President exercises these discretionary powers, it is presumed he doesso lawfully, and his decisions are generally non-reviewable. The principle of non-reviewability inheres in the very reason for vesting these powers inthe President in the first place. In governing any society certain choices must be made that cannotbe determined by tidy legal standards but require prudential judgment. The imperative is that theremust be some ultimate decision-maker who has the final, authoritative say — at whose desk the“buck” truly does stop. Any system whereby other officials, not empowered to make the decisionthemselves, are permitted to review the “final” decision for “improper motives” is antithetical bothto the exercise of discretion and its finality. And, even if review can censor a particular choice, itleaves unaddressed the fact that a choice still remains to be made, and the reviewers have no powerto make it. The prospect of review itself undermines discretion. Wayte v. United States, 470 U. S.
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598, 607-608 (1985); cf. Franklin v. Massachusetts, 505 U.S. at 801. But any regime that proposesto review and punish decision-makers for improper motives” ends up doing more harm than goodby chilling the exercise of discretion, “dampen[ing] the ardor of all but the most resolute … in theunflinching discharge of their duties.” Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir.1949)(Learned Hand). In the end, the prospect of punishment chills the exercise of discretion overa far broader range of decisions than the supposedly improper decision being remedied.McDonnell, 136 S.Ct. at 2373. For these reasons, the law has erected an array of protections designed to prevent, or strictlylimit, review of the exercise of the Executive discretionary powers. See, e.g., Nixon v. Fitzgerald,457 US 731,749 (1982) (the President’s unique discretionary powers require that he have absoluteimmunity from civil suit for his official acts). An especially strong set of rules has been put inplace to insulate those who exercise prosecutorial discretion from second-guessing and thepossibility of punishment. See, e.g., Imbler v. Pachtman, 424 U. S. 409 (1976); Yaselli v. Goff, 275U. S. 503 (1927), aff’g 12 F. 2d 396 (2d Cir. 1926). Thus, “it is entirely clear that the refusal toprosecute cannot be the subject of judicial review.” See, e.g., ICC v. Brotherhood of LocomotiveEngineers, 482 U.S. 270, 283 (1987); United States v. Cox, 342 F.2d 167, 171-72 (5th Cir. 1965)(The U.S. Attorney’s decision not to prosecute even where there is probable cause is “a matter ofexecutive discretion which cannot be coerced or reviewed by the courts.”); see also Heckler v.Chaney, 470 U.S. 821, 831 (1985). Even when there is a prosecutorial decision to proceed with a case, the law generallyprecludes review or, in the narrow circumstances where review is permitted, limits the extent towhich the decision-makers’ subjective motivations may be examined. Thus, a prosecutor’sdecision to bring a case is generally protected from civil liability by absolute immunity, even ifthe prosecutor had a malicious motive. Yaselli v. Goff, 275 U. S. 503 (1927), aff’g 12 F. 2d 396 (2dCir. 1926). Even where some review is permitted, absent a claim of selective prosecution based onan impermissible classification, a court ordinarily will not look into the prosecutor’s realmotivations for bringing the case as long as probable cause existed to support prosecution. SeeBordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Further, even when there is a claim of selectiveprosecution based on an impermissible classification, courts do not permit the probing of theprosecutor’s subjective state of mind until the plaintiff has first produced objective evidence thatthe policy under which he has been prosecuted had a discriminatory effect. United States v.Armstrong, 517 U.S. 456 (1996). The same considerations undergird the Department’s currentposition in Hawaii v. Trump, where the Solicitor General is arguing that, in reviewing thePresident’s travel ban, a court may not look into the President’s subjective motivations when thegovernment has stated a facially legitimate basis for the decision. (SG’s Merits Brief at 61). In short, the President’s exercise of its Constitutional discretion is not subject to review for”improper motivations” by lesser officials or by the courts. The judiciary has no authority “toenquire how the executive, or executive officers, perform duties in which they have a discretion.Questions, in their nature political, or which are, by the constitution and laws, submitted to theexecutive, can never be made” in the courts. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 170(1803).
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2. Threatening criminal liability for facially-lawful exercises of discretion, based solely on thesubjective motive, would impermissibly burden the exercise of core Constitutional powers withinthe Executive branch.. Mueller is effectively proposing to use the criminal obstruction law as a means ofreviewing discretionary acts taken by the President when those acts influence a proceeding.Mueller gets to this point in three steps. First, instead of confining $1512(c)(2) to inherentlywrongful acts of evidence impairment, he would now define the actus reus of obstruction as anyact that influences a proceeding. Second, he would include within that category the officialdiscretionary actions taken by the President or other public officials carrying out theirConstitutional duties, including their authority to control all law enforcement matters. The neteffect of this is that, once the President or any subordinate takes any action that influences aproceeding, he has completed the actus reus of the crime of obstruction. To establish guilt, all thatremains is evaluation of the President’s or official’s subjective state of mind to divine whether heacted with an improper motive. Wielding $1512(c)(2) in this way preempts the Framers’ plan of political accountabilityand violate Article II of the Constitution by impermissibly burdening the exercise of the corediscretionary powers within the Executive branch. The prospect of criminal prosecution basedsolely on the President’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 theexercise of discretion, and expose to intrusive and free-ranging examination the President’s (or hissubordinate’s) subjective state of mind in exercising that discretion Any system that threatens to punish discretionary actions based on subjective motivationnaturally has a substantial chilling effect on the exercise of discretion. But Mueller’s proposedregime would mount an especially onerous and unprecedented intrusion on Executive authority.The sanction that is being threatened for improperly-motivated actions is the most severe possible- personal criminal liability. Inevitably, the prospect of being accused of criminal conduct, andpossibly being investigated for such, would cause officials “to shrink” from making potentiallycontroversial decisions and sap the vigor with which they perform their duties. McDonnell v.United States, 136 S.Ct. at 2372-73. Further, the chilling effect is especially powerful where, as here, liability turns solely onthe official’s subjective state of mind. Because charges of official misconduct based on impropermotive are “easy to allege and hard to disprove,” Hartman v. Moore, 547 U.S. 250, 257-58 (2006),Mueller’s regime substantially increases the likelihood of meritless claims, accompanied by theall the risks of defending against them. Moreover, the review contemplated here would be far moreintrusive since it does not turn on an objective standard – such as the presence in the record of areasonable basis for the decision – but rather requires probing to determine the President’s actualsubjective state of mind in reaching a decision. As the Supreme Court has observed, Harlow v.Fitzgerald, 457 U.S. 800, 816-17 (1982), even when faced only with civil liability, such an inquiryis especially disruptive: [I]t now is clear that substantial costs attend the litigation of the subjectivegood faith of government officials. Not only are there the general costs of
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subjecting officials to the risks of trial — distraction of officials from theirgovernmental duties, inhibition of discretionary action, and deterrence of ablepeople from public service. There are special costs to “subjective” inquiriesof this kind. … [T]he judgments surrounding discretionary action almostinevitably are influenced by the decisionmaker’s experiences, values, andemotions. These variables …frame a background in which there often is noclear end to the relevant evidence. Judicial inquiry into subjective motivationtherefore may entail broad-ranging discovery …. Inquiries of this kind canbe peculiarly disruptive of effective government. Moreover, the encroachment on the Executive function is especially broad due to the widerange of actors and actions potentially covered. Because Mueller defines the actus reus ofobstruction as any act that influences a proceeding, he is including not just exercises ofprosecutorial discretion directly deciding whether a case will proceed or not, but also exercises ofany other Presidential power that might collaterally affect a proceeding, such as a removal,appointment, or grant of pardon. And, while Mueller’s immediate target is the President’s exerciseof his discretionary powers, his obstruction theory reaches all exercises of prosecutorial discretionby the President’s subordinates, from the Attorney General, down the most junior line prosecutor.It also necessarily applies to all personnel, management, and operational decision by those whoare responsible for supervising and conducting litigation and enforcement matters — civil, criminalor administrative — on the President’s behalf. A fatal flaw with Mueller’s regime – and one that greatly exacerbates its chilling effect –is that, while Mueller would criminalize any act“corruptly” influencing a proceeding, Mueller canoffer no definition of “corruptly.” What is the circumstance that would make an attempt by thePresident to influence a proceeding “corrupt?” Mueller would construe “corruptly” as referring toone’s purpose in seeking to influence a proceeding. But Mueller provides no standard fordetermining what motives are legal and what motives are illegal. Is an attempt to influence aproceeding based on political motivations corrupt?” Is an attempt based on self-interest? Basedon personal career considerations? Based on partisan considerations? On friendship or personalaffinity? Due process requires that the elements of a crime be defined “with sufficient definitenessthat ordinary people can understand what conduct is prohibited,” or “in a manner that does notencourage arbitrary and discriminatory enforcement.” See McDonnell, 136 S.Ct. at 2373. This,Mueller’s construction of $1512(c)(2) utterly fails to do. It is worth pausing on the word “corruptly,” because courts have evinced a lot of confusionover it. It is an adverb, modifying the verbs “influence,” “impede,” etc. But few courts havedeigned to analyze its precise adverbial mission. Does it refer to “how” the influence isaccomplished – i.e., the means used to influence? Or does it refer to the ultimate purpose behindthe attempt to influence? As an original matter, I think it was clearly used to described the meansused to influence. As the D.C. Circuit persuasively suggested, the word was likely used in its 19thcentury transitive sense, connoting the turning (or corrupting) of something from good and fit forits purpose into something bad and unfit for its purpose – hence, “corrupting” a magistrate; or“corrupting” evidence. United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991). Understoodthis way, the ideas behind the obstruction laws come more clearly into focus. The thing that is
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corrupt is the means being used to influence the proceeding. They are inherently wrong becausethey involve the corruption of decision-makers or evidence. The culpable intent does not relate tothe actor’s ultimate motive for using the corrupt means. The culpable state of mind is merely theintent that the corrupt means bring about their immediate purpose, which is to sabotage theproceeding’s truth-finding function. The actor’s ultimate purpose is irrelevant because the means,and their immediate purpose, are dishonest and malign. Further, if the actor uses lawful means ofinfluencing a proceeding – such as asserting an evidentiary privilege, or bringing public opinionpressure to bear on the prosecutors — then his ultimate motives are likewise irrelevant. See ArthurAnderson, 544 U.S. at 703-707. Even if the actor is guilty of a crime and his only reason for actingis to escape justice, his use of lawful means to impede or influence a proceeding are perfectlylegitimate. Courts have gotten themselves into a box whenever they have suggested that “corruptly”is not confined to the use of wrongful means, but can also refer to someone’s ultimate motive forusing lawful means to influence a proceeding. The problem, however, is that, as the courts haveconsistently recognized, there is nothing inherently wrong with attempting to influence or impedea proceeding. Both the guilty and innocent have the right to use lawful means to do that. What isthe motive that would make the use of lawful means to influence a proceeding “corrupt?” Courtshave been thrown back on listing “synonyms” like “depraved, wicked, or bad.” But that begs thequestion. What is depraved – the means or the motive? If the latter, what makes the motivedepraved if the means are within one’s legal rights? Fortunately for the courts, the cases invariablyinvolve evidence impairment, and so, after stumbling around, they get to a workable conclusion.Congress has also taken this route. Poindexter struck down the omnibus clause of $1505 on thegrounds that, as the sole definition of obstruction, the word “corruptly” was unconstitutionallyvague. 951 F.2d at 377-86. Tellingly, when Congress sought to “clarify” the meaning of”corruptly” in the wake of Poindexter, it settled on even more vague language – “acting with animproper motive” – and then proceeded to qualify this definition further by adding, “includingmaking a false or misleading statement, or withholding, concealing, altering, or destroying adocument or other information.” 18 U.S.C. $1515(b). The fact that Congress could not define”corruptly” except through a laundry list of acts of evidence impairment strongly confirms that, inthe obstruction context, the word has no intrinsic meaning apart from its transitive sense ofcompromising the honesty of a decision-maker or impairing evidence. At the end of the day then, as long as $1512 is read as it was intended to be read – i.e., asprohibiting actions designed to sabotage a proceeding’s access to complete and accurate evidence– the term “corruptly” derives meaning from that context. But once the word “corruptly” isderacinated from that context, it becomes essentially meaningless as a standard. While Mueller’sfailure to define “corruptly” would be a Due Process violation in itself, his application of that”shapeless” prohibition on public officials engaged in the discharge of their duties impermissiblyencroach on the Executive function by “cast[ing] the pall of potential prosecution” over a broadrange of lawful exercises of Executive discretion. McDonnell, 136 S.Ct. at 2373-74. The chilling effect is magnified still further because Mueller’s approach fails to define thekind of impact an action must have to be considered an “obstruction.” Asobstruction is tied to evidence impairment, the nature of the actions being prohibited is discernable.But once taken out of this context, how does one differentiate between an unobjectionable
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“influence” and an illegal “obstruction?” The actions being alleged as obstructions in this caseillustrate the point. Assuming arguendo that the President had motives such that, under Mueller’stheory, any direct order by him to terminate the investigation would be considered an obstruction,what action short of that would be impermissible? The removal of Comey is presumably beinginvestigated as “obstructive” due to some collateral impact it could have on a proceeding. Butremoving an agency head does not have the natural and foreseeable consequence of obstructingany proceeding being handled by that agency. How does one gauge whether the collateral effectsof one’s actions could impermissibly affect a proceeding? The same problem exists regarding the President’s comments about Flynn. Even if thePresident’s motives were such that, under Mueller’s theory, he could not have ordered terminationof an investigation, to what extent do comments short of that constitute obstruction? On their face,the President’s comments to Comey about Flynn seem unobjectionable. He made the accurateobservation that Flynn’s call with the Russian Ambassador was perfectly proper and made thepoint that Flynn, who had now suffered public humiliation from losing his job, was a good man.Based on this, he expressed the “hope” that Comey could “see his way clear” to let the matter go.The formulation that Comey “see his way clear,” explicitly leaves the decision with Comey. Mostnormal subordinates would not have found these comments obstructive. Would a superior’squestioning the legal merit of a case be obstructive? Would pointing out some consequences ofthe subordinate’s position be obstructive? Is something really an “obstruction” if it merely ispressure acting upon a prosecutor’s psyche? Is the obstructiveness of pressure gauged objectivelyor by how a subordinate subjectively apprehends it? The practical implications of Mueller’s approach, especially in light of its “shapeless”concept of obstruction, are astounding. DOJ lawyers are always making decisions that invite theallegation that they are improperly concluding or constraining an investigation. And theseallegations are frequently accompanied by a claim that the official is acting based on somenefarious motive. Under the theory now being advanced, any claim that an exercise ofprosecutorial discretion was improperly motived could legitimately be presented as a potentialcriminal obstruction. The claim would be made that, unless the subjective motivations of thedecision maker are thoroughly explored through a grand jury investigation, the putative “impropermotive” could not be ruled out. In an increasingly partisan environment, these concerns are by no means trivial. Fordecades, the Department has been routinely attacked both for its failure to pursue certain mattersand for its decisions to move forward on others. Especially when a house of Congress is held byan opposing party, the Department is almost constantly being accused of deliberately scuttlingenforcement in a particular class of cases, usually involving the environmental laws. There areclaims that cases are not being brought, or are being brought, to appease an Administration’spolitical constituency, or that the Department is failing to investigate a matter in order to cover upits own wrongdoing, or to protect the Administration. Department is bombarded with requests toname a special counsel to pursue this or that matter, and it is frequently claimed that his reluctanceto do so is based on an improper motive. When a supervisor intervenes in a case, directing a courseof action different from the one preferred by the subordinate, not infrequently there is a tendencyfor the subordinate to ascribe some nefarious motive. And when personnel changes are made – as
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for example, removing a U.S. Attorney – there are sometimes claims that the move was intendedto truncate some investigation. While these controversies have heretofore been waged largely on the field of political combat,Mueller’s sweeping obstruction theory would now open the way for the “criminalization” of thesedisputes. Predictably, challenges to the Department’s decisions will be accompanied by claims thatthe Attorney General, or other supervisory officials, are “obstructing” justice because theirdirections are improperly motivated. Whenever the slightest colorable claim of a possible”improper motive” is advanced, there will be calls for a criminal investigation into possible“obstruction.” The prospect of being accused of criminal conduct, and possibly being investigatedfor such, would inevitably cause officials “to shrink” from making potentially controversial decisions.
