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

by The Washington Post

The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President’s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s...

Soon after he fired Comey, however, the President became aware that investigators were conducting an obstruction-of-justice inquiry into his own conduct. That awareness marked a significant change in the President’s conduct and the start of a second phase of action. The President launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation. For instance, the President attempted to remove the Special Counsel; he sought to have Attorney General Sessions unrecuse himself and limit the investigation; he sought to prevent public disclosure of information about the June 9, 2016 meeting between Russians and campaign officials; and he used public forums to attack potential witnesses who might offer adverse information and to praise witnesses who declined to cooperate with the government. Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence.

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.

for the constitutional arguments, we recognized that the Department of Justice and the courts have not definitively resolved these constitutional issues. We therefore analyzed the President’s position through the framework of Supreme Court precedent addressing the separation of powers. Under that framework, we concluded, Article II of the Constitution does not categorically and permanently immunize the President from potential liability for the conduct that we investigated. Rather, our analysis led us to conclude that the obstruction-of-justice statutes can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.

The obstruction-of-justice statute most readily applicable to our investigation is 18 U.S.C. § 1512(c)(2). Section 1512(c) provides: (c) Whoever corruptly— (1) 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,

should be read to cover only acts that would impair the availability or integrity of evidence because that is subsection (c)(1)’s focus, strong arguments weigh against that proposed limitation. The text of Section 1512(c)(2) confirms that its sweep is not tethered to Section 1512(c)(1); courts have so interpreted it; its history does not counsel otherwise; and no principle of statutory construction dictates a contrary view. On its face, therefore, Section 1512(c)(2) applies to all corrupt means of obstructing a proceeding, pending or contemplated—including by improper exercises of official power. In addition, other statutory provisions that are potentially applicable to certain conduct we investigated broadly prohibit obstruction of proceedings that are pending before courts, grand juries, and Congress. See 18 U.S.C. §§ 1503, 1505. Congress has also specifically prohibited witness tampering. See 18 U.S.C. § 1512(b).

First, the text of Section 1512(c)(2) is unqualified: it reaches acts that “obstruct[], influence[], or impede[] any official proceeding” when committed “corruptly.” Nothing in Section 1512(c)(2)’s text limits the provision to acts that would impair the integrity or availability of evidence for use in an official proceeding. In contrast, Section 1512(c)(1) explicitly includes the requirement that the defendant act “with the intent to impair the object’s integrity or availability for use in an official proceeding,” a requirement that Congress also included in two other sections of Section 1512. See 18 U.S.C. §§ 1512(a)(2)(B)(ii) (use of physical force with intent to cause a person to destroy an object “with intent to impair the integrity or availability of the object for use in an official proceeding”); 1512(b)(2)(B) (use of intimidation, threats, corrupt persuasion, or misleading conduct with intent to cause a person to destroy an object “with intent to impair the integrity or availability of the object for use in an official proceeding”). But no comparable intent or conduct element focused on evidence impairment appears in Section 1512(c)(2). The intent element in Section 1512(c)(2) comes from the word “corruptly.” See, e.g., United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (“The intent element is important because the word ‘corruptly’ is what serves to separate criminal and innocent acts of obstruction.”) (internal quotation marks omitted). And the conduct e...

delineates a complete crime with different elements from Section 1512(c)(1)—and each subsection of Section 1512(c) contains its own “attempt” prohibition, underscoring that they are independent prohibitions.

thereby covering the “myriad means that human ingenuity might devise to permit a person to avoid the jurisdiction of a court”);

applies to corrupt acts—including by public officials—that frustrate the commencement or conduct of a proceeding, and not just to acts that make evidence unavailable or impair its integrity.

593, 599 (1995). “The omnibus clause is essentially a catch-all provision which generally prohibits conduct that interferes with the due administration of justice.”

“Given the straightforward statutory command” in Section 1512(c)(2), “there is no reason to resort to legislative history.” United States v. Gonzales, 520 U.S. 1, 6 (1997). In any event, the legislative history of Section 1512(c)(2) is not a reason to impose extratextual limitations on its reach.

That title indicates that Congress intended the two clauses to have independent effect. Section 1512(c) was added as a floor amendment in the Senate and explained as closing a certain “loophole” with respect to “document shredding.”

[T]he purpose of preventing an obstruction of or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice.

Id. at 18. The report gave examples of conduct “actually prosecuted under the current residual clause [in 18 U.S.C. § 1503], which would probably not be covered in this series [of provisions] without a residual clause.” Id. One prominent example was “[a] conspiracy to cover up the Watergate burglary and its aftermath by having the Central Intelligence Agency seek to interfere with an ongoing FBI investigation of the burglary.”

broadly covers a wide variety of obstructive conduct, but also that such language reaches the improper use of governmental processes to obstruct justice—specifically, the Watergate cover-up orchestrated by White House officials including the President himself.

“Acting ‘corruptly’ within the meaning of § 1512(c)(2) means acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct” the relevant proceeding.

Finally, the rule of lenity does not justify treating Section 1512(c)(2) as a prohibition on evidence impairment, as opposed to an omnibus clause. The rule of lenity is an interpretive principle that resolves ambiguity in criminal laws in favor of the less-severe construction.

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 has broad discretion to direct criminal investigations. The Constitution vests the “executive Power” in the President and enjoins him to “take Care that the Laws be faithfully executed.” U.S. CONST. ART II, §§ 1, 3. Those powers and duties form the foundation of prosecutorial discretion. See

with Congress’s Article I power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions. Usually, those constitutional powers function in harmony, with the President enforcing the criminal laws under Article II to protect against corrupt obstructive acts. But when the President’s official actions come into conflict with the prohibitions in the obstruction statutes, any constitutional tension is reconciled through separation-of-powers analysis.

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.”1086 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.

Under the Supreme Court’s balancing test for analyzing separation-of-powers issues, the first task is to assess the degree to which applying obstruction-of-justice statutes to presidential actions affects the President’s ability to carry out his Article II responsibilities. Administrator of General Services, 433 U.S. at 443. As discussed above, applying obstruction-of-justice statutes to presidential conduct that does not involve the President’s conduct of office—such as influencing the testimony of witnesses—is constitutionally unproblematic. The President has no more right than other citizens to impede official proceedings by corruptly influencing witness testimony. The conduct would be equally improper whether effectuated through direct efforts to produce false testimony or suppress the truth, or through the actual, threatened, or promised use of official powers to achieve the same result.

Yet the obstruction-of-justice statutes do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct only when it is taken with the “corrupt” intent to obstruct justice. The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests.

Nor must the President have unfettered authority to remove all Executive Branch officials involved in the execution of the laws. The Constitution establishes that Congress has legislative authority to structure the Executive Branch by authorizing Congress to create executive departments and officer positions and to specify how inferior officers are appointed. E.g., U.S. CONST., ART. I, § 8, cl. 18 (Necessary and Proper Clause); ART. II, § 2, cl. 1 (Opinions Clause); ART. II, § 2, cl. 2 (Appointments Clause); see Free Enterprise Fund, 561 U.S. at 499. While the President’s removal power is an important means of ensuring that officers faithfully execute the law, Congress has a recognized authority to place certain limits on removal. Id. at 493-495.

The President’s removal powers are at their zenith with respect to principal officers—that is, officers who must be appointed by the President and who report to him directly. See Free Enterprise Fund, 561 U.S. at 493, 500. The President’s “exclusive and illimitable power of removal” of those principal officers furthers “the President’s ability to ensure that the laws are faithfully executed.” Id. at 493, 498 (internal quotation marks omitted); Myers, 272 U.S. at 627. Thus, “there are some ‘purely executive’ officials who must be removable by the President at will if he is able to accomplish his constitutional role.” Morrison, 487 U.S. at 690; Myers, 272 U.S. at 134 (the President’s “cabinet officers must do his will,” and “[t]he moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay”);

light of those constitutional precedents, it may be that the obstruction statutes could not be constitutionally applied to limit the removal of a cabinet officer such as the Attorney General. See 5 U.S.C. § 101; 28 U.S.C. § 503. In that context, at least absent circumstances showing that the President was clearly attempting to thwart accountability for personal conduct while evading ordinary political checks and balances, even the highly limited regulation imposed by the obstruction statutes could possibly intrude too deeply on the President’s freedom to select and supervise the members of his cabinet.

Where the Constitution permits Congress to impose a good-cause limitation on the removal of an Executive Branch officer, the Constitution should equally permit Congress to bar removal for the corrupt purpose of obstructing justice. Limiting the range of permissible reasons for removal to exclude a “corrupt” purpose imposes a lesser restraint on the President than requiring an affirmative showing of good cause. It follows that for such inferior officers, Congress may constitutionally restrict the President’s removal authority if that authority was exercised for the corrupt purpose of obstructing justice. And even if a particular inferior officer’s position might be of such importance to the execution of the laws that the President must have at-will removal authority, the obstruction-of-justice statutes could still be constitutionally applied to forbid removal for a corrupt reason.1088 A narrow and discrete limitation on removal that precluded corrupt action would leave ample room for all other considerations, including disagreement over policy or loss of confidence in the officer’s judgment or commitment. A corrupt-purpose prohibition therefore would not undermine the President’s ability to perform his Article II functions. Accordingly, because the separation-of-powers question is “whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty,” Morrison, 487 U.S. at 691, a restriction on removing an inferio...

Here, Congress enacted the obstruction-of-justice statutes to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials. Those objectives are within Congress’s authority and serve strong governmental interests.

Congress clearly has authority to protect its own legislative functions against corrupt efforts designed to impede legitimate fact-gathering and lawmaking efforts. See Watkins v. United States, 354 U.S. 178, 187, 206-207 (1957); Chapman v. United States,

ii. The Article III courts have an equally strong interest in being protected against obstructive acts, whatever their source. As the Supreme Court explained in United States v. Nixon, a “primary constitutional duty of the Judicial Branch” is “to do justice in criminal prosecutions.” 418 U.S. at 707; accord Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 384 (2004). In Nixon, the Court rejected the President’s claim of absolute executive privilege because “the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” 407 U.S. at 712. As Nixon illustrates, the need to safeguard judicial integrity is a compelling constitutional interest. See id. at 709 (noting that the denial of full disclosure of the facts surrounding relevant presidential communications threatens “[t]he very integrity of the judicial system and public confidence in the system”).

“[T]he whole theory of [the grand jury’s] function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people,” United States v. Williams, 504 U.S. 36, 47 (1992), “pledged to indict no one because of prejudice and to free no one because of special favor.” Costello v. United States, 350 U.S. 359, 362 (1956). If the grand jury were not protected against corrupt interference from all persons, its function as an independent charging body would be thwarted. And an impartial grand jury investigation to determine whether probable cause exists to indict is vital to the criminal justice process.

In the case of the obstruction-of-justice statutes, our assessment of the weighing of interests leads us to conclude that Congress has the authority to impose the limited restrictions contained in those statutes on the President’s official conduct to protect the integrity of important functions of other branches of government.

general ban on corrupt action does not unduly intrude on the President’s responsibility to “take Care that the Laws be faithfully executed.” U.S. CONST. ART II, §§ 3.1090 To the contrary, the concept of “faithful execution” connotes the use of power in the interest of the public, not in the office holder’s personal interests.

And immunizing the President from the generally applicable criminal prohibition against corrupt obstruction of official proceedings would seriously impair Congress’s power to enact laws “to promote objectives within [its] constitutional authority,” Administrator of General Services, 433 U.S. at 425—i.e., protecting the integrity of its own proceedings and the proceedings of Article III courts and grand juries. Accordingly, based on the analysis above, we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.1091

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). Several safeguards would prevent a chilling effect: the existence of settled legal standards, the presumption of regularity in prosecutorial actions, and the existence of evidentiary limitations on probing the President’s motives. And historical experience confirms that no impermissible chill should exist.

As an initial matter, the term “corruptly” sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an “improper advantage for [him]self or someone else, inconsistent with official duty and the rights of others.” BALLENTINE’S LAW DICTIONARY 276 (3d ed. 1969); see United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015); Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). That standard parallels the President’s constitutional obligation to ensure the faithful execution of the laws. And virtually everything that the President does in the routine conduct of office will have a clear governmental purpose and will not be contrary to his official duty. Accordingly, the President has no reason to be chilled in those actions because, in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive.

That point is illustrated by examples of conduct that would and would not satisfy the stringent corrupt-motive standard. Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding that directly and adversely affected the President’s financial interests for the purpose of protecting those interests. In those examples, official power is being used for the purpose of protecting the President’s personal interests. In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings. For instance, the President’s decision to curtail a law-enforcement investigation to avoid international friction would not implicate the obstruction-of-justice statutes. The criminal law does not seek to regulate the consideration of such politic...

In the rare cases in which a substantial and credible basis justifies conducting an investigation of the President, the process of examining his motivations to determine whether he acted for a corrupt purpose need not have a chilling effect.

Ascertaining the President’s motivations would turn on any explanation he provided to justify his actions, the advice he received, the circumstances surrounding the actions, and the regularity or irregularity of the process he employed to make decisions. But grand juries and courts would not have automatic access to confidential presidential communications on those matters; rather, they could be presented in official proceedings only on a showing of sufficient need. Nixon, 418 U.S. at 712; In re Sealed Case, 121 F.3d 729, 754, 756-757 (D.C. Cir. 1997); see also Administrator of General Services, 433 U.S. at 448-449 (former President can invoke presidential communications privilege, although successor’s failure to support the claim “detracts from [its] weight”).

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. II, § 4; see...

Finally, history provides no reason to believe that any asserted chilling effect justifies exempting the President from the obstruction laws. As a historical matter, Presidents have very seldom been the subjects of grand jury investigations. And it is rarer still for circumstances to raise even the possibility of a corrupt personal motive for arguably obstructive action through the President’s use of official power. Accordingly, the President’s conduct of office should not be chilled based on hypothetical concerns about the possible application of a corrupt-motive standard in this context. * * * In sum, contrary to the position taken by the President’s counsel, we concluded that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882); see also Clinton v. Jones, 520 U.S. at 697; United States v. Nixon, supra.

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.

have no recollection of learning at the time that Donald Trump, Jr., Paul Manafort, or Jared Kushner was considering participating in a meeting in June 2016 concerning potentially negative information about Hillary Clinton. Nor do I recall learning during the campaign that the June 9, 2016 meeting had taken place, that the referenced emails existed, or that Donald J. Trump, Jr., had other communications with Emin Agalarov or Robert Goldstone between June 3, 2016 and June 9, 2016. Response to Question I, Part (d) I have no independent recollection of what portion of these four days in June of 2016 I spent in Trump Tower. This was one of many busy months during a fast-paced campaign, as the primary season was ending and we were preparing for the general election campaign. I am now aware that my Campaign’s calendar indicates that I was in New York City from June 6 – 9, 2016. Calendars kept in my Trump Tower office reflect that I had various calls and meetings scheduled for each of these days. While those calls and meetings may or may not actually have taken place, they do indicate that I was in Trump Tower during a portion of each of these working days, and I have no reason to doubt that I was. When I was in New York City, I stayed at my Trump Tower apartment. My Trump Organization desk calendar also reflects that I was outside Trump Tower during portions of these days. The June 7, 2016 calendar indicates I was scheduled to leave Trump Tower in the early evening for Westchest...

Through the decades, Mueller has often said that what matters even more than the content of one’s work is “how we do it,” as he put it in a commencement address in 2013. “You are only as good as your word. You can be smart, aggressive, articulate and indeed persuasive, but if you are not honest, your reputation will suffer, and once lost, a good reputation can never be regained.”

He touted his ties to power. In the mid-1970s, seeking to buy New York’s World Trade Center, Trump had lunch with Peter C. Goldmark Jr., the head of New York’s Port Authority, which owned the twin towers. “You wouldn’t last in your job very long if Governor [Hugh] Carey decided you weren’t doing the right thing,” Trump said, according to Goldmark. “You should know I have a lot of weight in Albany.” Goldmark said he ended the discussion after that. Trump denied Goldmark’s account, saying, “I really don’t talk that way.” Trump’s knack for drawing attention sometimes embarrassed or persuaded the powers that were to cede to his demands. When city politicians who opposed granting Trump a tax incentive called a news conference outside the shuttered Commodore Hotel, Trump showed up and threatened to abandon the project if the city didn’t give him tax relief. Trump had prepared for the event by directing his workers to replace the clean boards that covered the once-grand building’s windows with dirty scrap wood, accentuating the decrepit state of the midtown eyesore. The dramatic flourish had the desired effect. Trump got the exemption. He beat the system.