The Mueller Report: The Comprehensive Findings of the Special Counsel

by Robert S. Mueller III

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.

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,

Under OLC’s analysis, Congress can permissibly criminalize certain obstructive conduct by the President, such as suborning perjury, intimidating witnesses, or fabricating evidence, because those prohibitions raise no separation-of-powers questions.

No statutory term could easily bear that specialized meaning. For example, the word “corruptly” has a well-established meaning that does not exclude exercises of official power for corrupt ends. Indeed, an established definition states that “corruptly” means action with an intent to secure an improper advantage “inconsistent with official duty and the rights of others.” BALLENTINE’S LAW DICTIONARY 276 (3d ed. 1969) (emphasis added). And it would be contrary to ordinary rules of statutory construction to adopt an unconventional meaning of a statutory term only when applied to the President.

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.

For example, although the President’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-148(1872), Congress has the authority to prohibit the corrupt use of “anything of value” to influence the testimony of another person in a judicial, congressional, or agency proceeding, 18 U.S.C. § 201(b)(3)—which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all. The offer of a pardon would precede the act of pardoning and thus be within Congress’s power to regulate even if the pardon itself is not. Just as the Speech or Debate Clause, U.S. CONST. ART. I, § 6, c1.1, absolutely protects legislative acts, but not a legislator’s “taking or agreeing to take money for a promise to act in a certain way ... for it is taking the bribe, not performance of the illicit compact, that is a criminal act,” United States v. Brewster, 408 U.S. 501, 526 (1972) (emphasis omitted), the promise of a pardon to corruptly influence testimony would not be a constitutionally immunized act. The application of obstruction statutes to such promises therefore would raise no serious separation-of-powers issue.

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.

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 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. See 1 Samuel Johnson, A Dictionary of the English Language 763 (1755) (“faithfully” def. 3: “[w]ith strict adherence to duty and allegiance”). 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.

What this says.

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

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.

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. There are “obvious political checks” against initiating a baseless investigation or prosecution of a former President.

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.

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.

Beginning in December 2017, this Office sought for more than a year to interview the President on topics relevant to both Russian-election interference and obstruction-of-justice. We advised counsel that the President was a “subject” of the investigation under the definition of the Justice Manual—”a person whose conduct is within the scope of the grand jury’s investigation.” Justice Manual § 9-11.151 (2018). We also advised counsel that “[a]n interview with the President is vital to our investigation” and that this Office had “carefully considered the constitutional and other arguments raised by . .. counsel, and they d[id] not provide us with reason to forgo seeking an interview.”1 We additionally stated that “it is in the interest of the Presidency and the public for an interview to take place” and offered “numerous accommodations to aid the President’s preparation and avoid surprise.”2 After extensive discussions with the Department of Justice about the Special Counsel’s objective of securing the President’s testimony, these accommodations included the submissions of written questions to the President on certain Russia-related topics.3

We noted, among other things, that the President stated on more than 30 occasions that he “does not ‘recall’ or ‘remember’ or have an ‘independent recollection’“ of information called for by the questions.6 Other answers were “incomplete or imprecise.”7 The written responses, we informed counsel, “demonstrate the inadequacy of the written format, as we have had no opportunity to ask follow-up questions that would ensure complete answers and potentially refresh your client’s recollection or clarify the extent or nature of his lack of recollection.”8 We again requested an in-person interview, limited to certain topics, advising the President’s counsel that “[t]his is the President’s opportunity to voluntarily provide us with information for us to evaluate in the context of all of the evidence we have gathered.”9 The President declined.10

we determined that the substantial quantity of information we had obtained from other sources allowed us to draw relevant factual conclusions on intent and credibility, which are often inferred from circumstantial evidence and assessed without direct testimony from the subject of the investigation.