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

by The Washington Post

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.1072 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.1073 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.1074 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.1075 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.”1076 In analyzing counsel’s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.