The Mueller Report: Presented with Related Materials by The Washington Post

by The Washington Post

Comey testified that he deliberately caused his memorandum documenting the February 14, 2017 meeting to be leaked to the New York Times in response to a tweet from the President, sent on May 12, 2017, that stated “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!,” and because he thought sharing the memorandum with a reporter “might prompt the appointment of a special counsel.” Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong.

The President’s personal counsel has written to this Office to advance statutory and constitutional defenses to the potential application of the obstruction-of-justice statutes to the President’s conduct.

The President’s personal counsel has written to this Office to advance statutory and constitutional defenses to the potential application of the obstruction-of-justice statutes to the President’s conduct.2355 As a statutory matter, the President’s counsel has argued that a core obstruction-of-justice statute, 18 U.S.C. § 1512(c)(2), does not cover the President’s actions.2356 As a constitutional matter, the President’s counsel argued that the President cannot obstruct justice by exercising his constitutional authority to close Department of Justice investigations or terminate the FBI Director.2357 Under that view, any statute that restricts the President’s exercise of those powers would impermissibly intrude on the President’s constitutional role. The President’s counsel has conceded that the President may be subject to criminal laws that do not directly involve exercises of his Article II authority, such as laws prohibiting bribing witnesses or suborning perjury.2358 But counsel has made a categorical argument that “the President’s exercise of his constitutional authority here to terminate an FBI Director and to close investigations cannot constitutionally constitute obstruction of justice.”2359

Courts also seek to construe statutes to avoid due process vagueness concerns.

Vagueness doctrine requires that a statute define a crime “with sufficient definiteness that ordinary people can understand what conduct is prohibited” and “in a manner that does not encourage arbitrary and discriminatory enforcement.”

The majority opinion in Aguilar did not address the defendant’s vagueness challenge to the word “corruptly,” 515 U.S. at 600 n. 1, but Justice Scalia’s separate opinion did reach that issue and would have rejected the challenge, id. at 616-617 (Scalia, J., joined by Kennedy and Thomas, JJ., concurring in part and dissenting in part).

Justice Scalia added that “in the context of obstructing jury proceedings, any claim of ignorance of wrongdoing is incredible.” Id. at 617. Lower courts have also rejected vagueness challenges to the word “corruptly.”

This well-established intent standard precludes the need to limit the obstruction statutes to only certain kinds of inherently wrongful conduct.2366

This well-established intent standard precludes the need to limit the obstruction statutes to only certain kinds of inherently wrongful conduct. 2366 Footnote 2366. In United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), the court of appeals found the term “corruptly” in 18 U.S.C. § 1505 vague as applied to a person who provided false information to Congress. After suggesting that the word “corruptly” was vague on its face, 951 F.2d at 378, the court concluded that the statute did not clearly apply to corrupt conduct by the person himself and the “core” conduct to which Section 1505 could constitutionally be applied was one person influencing another person to violate a legal duty. Id. at 379-386. Congress later enacted a provision overturning that result by providing that “[a]s used in [S]ection 1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including by making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” 18 U.S.C. § 1515(b). Other courts have declined to follow Poindexter either by limiting it to Section 1505 and the specific conduct at issue in that case, see Brenson, 104 F.3d at 1280-1281; reading it as narrowly limited to certain types of conduct, see United States v. Morrison, 98 F.3d 619, 629-630 (D.C. Cir. 1996); or by noting that it predated Arthur Andersen’s interpretation of the term “corruptly,” see Edwards, 869 F.3d at 501-502.

In sum, in light of the breadth of Section 1512(c)(2) and the other obstruction statutes, an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.

The President’s counsel has argued that “the President’s exercise of his constitutional authority . . . to terminate an FBI Director and to close investigations . . . cannot constitutionally constitute obstruction of justice.”

Applying the Court’s framework for analysis, we concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice.

The President’s counsel has argued that “the President’s exercise of his constitutional authority . . . to terminate an FBI Director and to close investigations . . . cannot constitutionally constitute obstruction of justice.” 2369 As noted above, no Department of Justice position or Supreme Court precedent directly resolved this issue. We did not find counsel’s contention, however, to accord with our reading of the Supreme Court authority addressing separation-of-powers issues. Applying the Court’s framework for analysis, we concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice. The limited effect on presidential power that results from that restriction would not impermissibly undermine the President’s ability to perform his Article II functions. Footnote 2369. 6/ 23/ 17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n. 1.

“The principle that general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role.”

This “clear statement rule,” id., has its source in two principles: statutes should be construed to avoid serious constitutional questions, and Congress should not be assumed to have altered the constitutional separation of powers without clear assurance that it intended that result.

Before addressing Article II issues directly, we consider one threshold statutory-construction principle that is unique to the presidency: “The principle that general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role.” OLC, Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 352 (1995). This “clear statement rule,” id., has its source in two principles: statutes should be construed to avoid serious constitutional questions, and Congress should not be assumed to have altered the constitutional separation of powers without clear assurance that it intended that result. OLC, The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 178 (1996).

But OLC has also recognized that this clear-statement rule “does not apply with respect to a statute that raises no separation of powers questions were it to be applied to the President,” such as the federal bribery statute,

OLC noted constitutional provisions that forbid increases in the President’s compensation while in office, “which is what a bribe would function to do,” id. (citing U.S. CONST. ART. II, § 1, cl. 7), and the express constitutional power of “Congress to impeach [and convict] a President for, inter alia, bribery,”

It is not obvious how a clear-statement rule would apply to an omnibus provision like Section 1512(c)(2) to exclude corruptly motivated obstructive acts only when carried out in the President’s conduct of office.

When a proposed construction “would thus function as an extra-textual limit on [a statute’s] compass,” thereby preventing the statute “from applying to a host of cases falling within its clear terms,” Loughrin, 573 U.S. at 357, it is doubtful that the construction would reflect Congress’s intent.

“Even when a branch does not arrogate power to itself, . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.”

The “separation of powers does not mean,” however, “that the branches ‘ought to have no partial agency in, or no controul over the acts of each other.’

The “separation of powers does not mean,” however, “that the branches ‘ought to have no partial agency in, or no controul over the acts of each other.’ ” Clinton v. Jones, 520 U.S. 681, 703 (1997) (quoting James Madison, The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis omitted)). In this context, a balancing test applies to assess separation-of-powers issues. Applying that test here, we concluded that Congress can validly make obstruction-of-justice statutes applicable to corruptly motivated official acts of the President without impermissibly undermining his Article II functions.

the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment.

The direct effect on the President’s freedom of action would correspondingly be a limited one. A preclusion of “corrupt” official action is not a major intrusion on Article II powers. For example, the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such personal purposes furthers, rather than hinders, the impartial and evenhanded administration of the law.

the Constitution does not mandate that the President have unfettered authority to direct investigations or prosecutions, with no limits whatsoever, in order to carry out his Article II functions.

Applying the obstruction statutes to the President’s official conduct would involve determining as a factual matter whether he engaged in an obstructive act, whether the act had a nexus to official proceedings, and whether he was motivated by corrupt intent. But applying those standards to the President’s official conduct should not hinder his ability to perform his Article II duties. Cf Nixon v. Fitzgerald, 457 U.S. at 752–753 & n.32 (taking into account chilling effect on the President in adopting a constitutional rule of presidential immunity from private civil damages action based on official duties).

Under OLC’s opinion that a sitting President is entitled to immunity from indictment, only a successor Administration would be able to prosecute a former President. But that consideration does not suggest that a President would have any basis for fearing abusive investigations or prosecutions after leaving office.

the offense of bribery turns on the corrupt intent to receive a thing of value in return for being influenced in official action.

In any event, probing the President’s intent in a criminal matter is unquestionably constitutional in at least one context: the offense of bribery turns on the corrupt intent to receive a thing of value in return for being influenced in official action. 18 U.S.C. § 201( b)( 2). There can be no serious argument against the President’s potential criminal liability for bribery offenses, notwithstanding the need to ascertain his purpose and intent. See U.S. Const. Art. I, § 3; Art. IT, § 4; see also Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 357 n.l 1 (“ Application of § 201 [to the President] raises no separation of powers issue, let alone a serious one.”).

The Court adopted that construction in light of the similar interpretation given to “other obstruction provisions,” id. (citing Aguilar and Arthur Andersen), as well as considerations of context, legislative history, structure of the criminal tax laws, fair warning, and lenity.

2366. In United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), the court of appeals found the term “corruptly” in 18 U.S.C. § 1505 vague as applied to a person who provided false information to Congress. After suggesting that the word “corruptly” was vague on its face, 951 F.2d at 378, the court concluded that the statute did not clearly apply to corrupt conduct by the person himself and the “core” conduct to which Section 1505 could constitutionally be applied was one person influencing another person to violate a legal duty. Id. at 379-386. Congress later enacted a provision overturning that result by providing that “[a]s used in [S]ection 1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including by making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” 18 U.S.C. § 1515(b). Other courts have declined to follow Poindexter either by limiting it to Section 1505 and the specific conduct at issue in that case, see Brenson, 104 F.3d at 1280-1281; reading it as narrowly limited to certain types of conduct, see United States v. Morrison, 98 F.3d 619, 629-630 (D.C. Cir. 1996); or by noting that it predated Arthur Andersen’s interpretation of the term “corruptly,” see Edwards, 869 F.3d at 501-502.

Similar institutional safeguards protect Department of Justice officers and line prosecutors against unfounded investigations into prosecutorial acts. Prosecutors are generally barred from participating in matters implicating their personal interests, see 28 C.F.R. § 45.2, and are instructed not to be influenced by their “own professional or personal circumstances,” Justice Manual § 9-27.260, so prosecutors would not frequently be in a position to take action that could be perceived as corrupt and personally motivated.

while this report does not conclude that the President committed a crime, it also does not exonerate him.

“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” —The Mueller Report Kindle Edition (The Washington Post, April 19, 2019)

The written responses, we informed counsel, “demonstrate the inadequacy of the written format, as we have had no opportunity to ask followup questions that would ensure complete answers and potentially refresh your client’s recollection or clarify the extent or nature of his lack of recollection.”

During the course of the investigation, the Office periodically identified evidence of potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction established by the Acting Attorney General. After consultation with the Office of the Deputy Attorney General, the Office referred that evidence to appropriate law enforcement authorities, principally other components of the Department of Justice and the FBI.

In three cases prosecuted by the Special Counsel’s Office, the defendants have completed or are about to complete their terms of imprisonment. Because no further proceedings are likely in any case, responsibility for them has not been transferred to any other office or component.