The Special Counsel’s Constitutional Analysis: Clearing up the Clear Statement Rule

Shortly after the special counsel’s report was released, I wrote three posts on Lawfare criticizing Robert Mueller’s constitutional analysis. First, I noted that Mueller’s application of the clear statement rule was not consistent with a 1995 Office of Legal Counsel (OLC) opinion. Second, I observed that Mueller failed to articulate a theory why the “corrupt” intent requirement of the obstruction statute “aligns with the President’s constitutional duty to faithfully execute the laws.” Third, I argued that the clear statement rule is especially appropriate because applying the general obstruction statute to the president could—in fact did—“chill his performance of Article II duties.” Ultimately, I concluded that Mueller could be correct as a matter of law—I remain skeptical—but he failed to provide the necessary analysis to justify Volume II of his report.

Recently, Benjamin Wittes, Andrew Kent, Marty Lederman and others have begun to do the work that Mueller did not. On the other side, Jack Goldsmith has largely agreed with my analysis. This debate, frankly, should have been developed in the report itself. A thorough report would have considered competing authorities and carefully reached a conclusion about tough constitutional questions. But Mueller did not follow that path. Accordingly, his work must stand by itself. It cannot be bootstrapped after the fact based on the consideration of very smart scholars. Indeed, these defenses have relied on assumptions and unstated premises that may or may not have been relied upon by the special counsel.

Yet, this debate is still worth having. I agree with Wittes: “[T]he only way we get answers is to ventilate such matters.” In this post I will respond to some of these defenses and provide some clarity on the clear statement rule.

Is the Clear Statement Rule an “Established Canon”?

Lederman suggests that the clear statement rule, as articulated in the 1995 OLC opinion, may not really exist as an “established canon” within the executive branch. Or, at a minimum, he explains, no court has ever applied that species of constitutional avoidance. He may be right about the former point: It is often very difficult to reconcile different executive branch opinions issued at different times in different contexts based on specific factual circumstances. On the latter point, Lederman is certainly correct. For example, there was no indication in the Clinton v. Jones litigation that the clear statement rule should apply to the Federal Rules of Civil Procedure. Nor did Franklin v. Massachusetts set out the specific clear statement rule that Barr proposed in his 2018 letter. Indeed, the 1995 OLC opinion by Walter Dellinger gave a generous reading to Franklin v. Massachusetts, which Dellinger read as recognizing a “well-settled principle that statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.” Dellinger did precisely what I would expect an executive branch lawyer to do: read Supreme Court precedent to provide a charitable accounting of presidential power.

Whether or not Dellinger was correct, as a theoretical matter, is largely irrelevant. Mueller, as an employee within the executive branch, was not in a position to disagree. And he seemed to assume that the clear statement rule, as the OLC explained it in 1995, should control his analysis. He favorably cited the opinion and referred to this doctrine as a “threshold statutory-construction principle that is unique to the presidency.” Yet Mueller did not apply that rule in the manner the OLC would have. I agree with Goldsmith’s observation about Mueller’s statutory analysis: “This part of the report reads like a brief written adversely to the president (which of course would never happen in any other context). It is not remotely a detached account of the law or a faithful rendition of the OLC precedents that were binding here.”

With respect to this element of the report, Mueller acted as if he were an independent counsel—like Kenneth Starr was—rather than an executive branch employee. Indeed, Mueller’s letter to Barr, which the special counsel certainly knew would become public, expressed concern about “congressional and public questions.” Mueller’s report was “confidential,” and the regulations did not require Barr to release the report at all. Mueller, unlike Starr, was not charged with making an impeachment referral to Congress. But Mueller was able to, in Goldsmith’s words, make “damning insinuations about the criminality of the president’s behavior without taking an ‘investigative or prosecutorial step.’” And his decision not to take a prosecutorial step, Goldsmith observed, denied the attorney general the opportunity to “review the step, identify its faulty legal basis and determine that ‘it should not be pursued.’” I don’t think that Mueller’s decision to avoid making a prosecutorial decision was motivated by an effort to shield his legal analysis from OLC overruling, but this effect was a foreseeable consequence of his decision.

Going forward, I fully expect Barr to request an opinion from the OLC concerning the applicability of the clear statement rule to 18 U.S.C. § 1512(c)(2), the general prohibition on obstruction of justice. And I expect that opinion will advance arguments similar to those Goldsmith and I developed. Accordingly, there is much value in belaboring the question of whether Mueller got the clear statement rule right as a matter of executive branch practice. That practice will soon be settled, unless the next administration decides to reverse course. (I see that step as very unlikely.) And, to be clear, were Congress to consider impeaching the president, it would not be restricted by the fact that the obstruction statute did not name the president. Congress, when drafting articles of impeachment, does not need to identify a violation of any federal criminal statute. Additionally, the very nature of drafting an article of impeachment would clarify that the president, and the president alone, violated the law.

Were Past Presidential Investigations Restricted by the Clear Statement rule?

Wittes writes that executive branch investigations into the presidency since Watergate have not seemed inhibited by the application of the clear statement rule. For example, President Clinton perjured himself under oath during a grand jury investigation. And, Wittes points out, “Starr concluded that Clinton obstructed justice.” Here, the independent counsel “specifically framed [that violation] in the language of the criminal law”—that is, Clinton lied to his staff about his relationship with Monica Lewinsky as a means to impede the investigation. Next, Wittes draws an analogy between obstruction of justice and perjury. “Both perjury and obstruction,” he writes, “are criminal laws of general applicability whose terms do not explicitly apply to the president.” There is no evidence that Starr found himself restricted by the clear statement rule. Therefore, the argument goes, the clear statement also should not control the obstruction statute.

Wittes also recalls that Leon Jaworski indicted Nixon’s top aides for “conspiracy to obstruct Justice.” This example is somewhat less helpful than the Starr incident, because the indictment was not against the president himself. But Wittes accurately points out that Nixon was an “unindicted co-conspirator in that case.” Once again, there is no evidence that Jaworski found himself restricted by the clear statement rule. Finally, Iran-Contra Independent Counsel Lawrence Walsh considered whether President George H.W. Bush obstructed justice by withholding his daily diary from investigators.

As a threshold matter, it is important to remember that there are several obstruction of justice statutes in the U.S. Code. In the executive summary to Volume II, Mueller identifies four provisions that “could apply here.” First, 18 U.S.C. § 1503 makes it a crime to “influence, intimidate, or impede any grand or petit juror” or other court officers. Second, 18 U.S.C. § 1505 prohibits the destruction of evidence and other materials subject to an investigation. Third, 18 U.S.C. § 1512(b)(3) makes it a crime to persuade another person to prevent the communication to a law enforcement officer of information relating to a possible crime. Fourth, 18 U.S.C. § 1512(c)(2) makes it a crime to “corruptly ... obstruct[], influence[], or impede[] any official proceeding.” Ultimately, Mueller’s statutory analysis relied only on this final provision, which he described as a “broad, independent, and unqualified prohibition on obstruction of justice.” Mueller notes that this provision is not limited to acts that “would impair the availability or integrity of evidence.”

As a general matter, I do not think the clear statement rule would apply to the 18 U.S.C. §§ 1503, 1505 and 1512(b)(3). Each of these statutes is predicated on overt and facially criminal acts, such as intimidating a witness, destroying evidence or telling another person to lie to a federal officer. Under the rubric of footnote 11 of the 1995 OLC opinion, applying each of these statutes to the president would not raise any “separation of powers question[s], let alone . .. serious one[s].” For example, President Trump’s conduct with respect to Paul Manafort and Michael Cohen could amount to witness tampering and may violate § 1512(b)(3). And Mueller, for reasons I do not fully understand, failed to apply this specific statute to Trump’s conduct. Mueller’s analysis must be judged by the four corners of the report and not based on what alternative theories he could have pursued.

Mueller wrote that § 1512(c)(2), the catchall statute, criminalizes “improper exercises of official power.” The clear statement rule, if it applies at all, would apply only to this final provision. It is certainly possible that, as applied, certain presidential conduct could be prosecuted under § 1512(c)(2) without affecting Article II powers. But the clear statement rule is a facial avoidance canon; as-applied challenges are not relevant. And for reasons I’ve explained before, applying § 1512(c)(2) raises significant separation of powers examples.

Let’s revisit the examples Wittes offered. First, Jaworski indicted the aides for violating 18 U.S.C. § 1503. That is, they impeded the grand jury investigation by “making cash payments and offers of other benefits to and for the benefit of the defendants” to “conceal[] and caus[e] to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of the activities which were the subject of the investigation and trial.” This act was not merely the “improper exercise of official power.” The aides were bribing witnesses so that they would lie to impede an investigation. There were other allegations that Nixon passed on information he learned from his supervision of the investigation to his aides “in order to protect their interests and those of his other aides and the President himself.” Here, too, the supervision of the investigation—an exercise of constitutional authority—would not be problematic; the subsequent decision to give that information to his aides to impede the investigation would be a criminal act, perhaps a violation of § 1512(b).

Second, Wittes observed that “[t]he Iran-Contra final report does not specify what precise legal theory Walsh took toward obstruction by the president.” Presumably, Walsh could have relied on 18 U.S.C. § 1505, which prohibits the concealment of evidence needed for an investigation.

Third, the Starr Report concluded that “[r]ather than lie to the grand jury himself, the President lied about his relationship with Ms. Lewinsky to senior aides, and those aides then conveyed the President’s false story to the grand jury” (p. 197). In a footnote, Starr cited 18 U.S.C. § 1503 and 18 U.S.C. § 1512(b)(1), which makes it a crime to “persuade[] another person ... to influence, delay, or prevent the testimony of any person in an official proceeding.” (This provision is closely related to 18 U.S.C. § 1512(b)(3), discussed above.)

Neither Jaworski, Walsh, nor Starr considered whether the president violated the open-ended § 1512(c)(2). Indeed, because of the overt criminal acts in the Nixon and Clinton investigations, there was no need to use this “broad, independent, and unqualified prohibition on obstruction of justice.” I do not think these incidents resolve whether in fact the clear statement rule should be applied to § 1512(c)(2).

How Corrupt Must “Corrupt” Be?

What would happen if the president took a potentially obstructive act with mixed motives: That is, he was motivated to promote both the general welfare and his personal welfare. I previously offered the following not-so-hypothetical hypothetical:

The president decides to remove the FBI director for several reasons. First, he determined that the director mismanaged a previous investigation. Second, he may be concerned that the investigation into the president’s administration is placing a “cloud” over his ability to manage foreign affairs. Third, he may worry that the investigation will make it difficult for him to obtain honest advice from his advisers. Fourth, he is afraid the director will find damaging information about him, which he wants to keep a secret. The last motivation is probably corrupt. The first one is not. The middle two are closer calls.

Wittes responded with another hypothetical: “Can you think of a case of unambiguously corrupt presidential interference, with the statutes’ criminal intent element wholly satisfied, that you think Article II nonetheless authorizes?” Lederman offered a different response to the mixed-motives issue: “[I]t’s inconceivable that any Attorney General would ever seek charges unless there were evidence beyond a reasonable doubt that a former President’s ‘corrupt’ motives were a necessary, i.e., a ‘but for,’ cause of his or her actions.” Lederman added, “I don’t read Mueller to be suggesting that prosecution would be proper otherwise.”

To be perfectly frank, I do not know what the correct answer is here. There is zero case law on point about how corrupt the president’s intent must be to transform a mostly legitimate exercise of presidential powers to a mostly corrupt exercise in self-dealing. “But for” is a famously pliable standard. For example, Barr testified that Mueller “emphatically was not saying that but for the OLC opinion he would have found obstruction.” (I still don’t know what that statement means.)

Moreover, it isn’t apparent that Mueller relied on the assumptions that Wittes or Lederman advanced. Mueller wrote, “The President retains broad latitude to supervise investigations and remove officials, circumscribed in this context only by the requirement that he not act for corrupt personal purposes.” He does not adopt an “unambiguously corrupt” standard. Nor does he adopt a “but for” standard. He leaves the question open. And this unresolved standard could chill the president when he is deciding whether to exercise his powers or not. I previously observed:

Ex ante, there is no way for the president to know what would happen in the case of a mixed-motives removal. Moreover, these resolutions, many years later, would not mitigate the present-day chilling effect the investigation has on the executive branch’s ability to function. This chill is the factor that Nixon v. Fitzgerald worried about. Once again, the clear statement rule obviates these problems.

Maybe there is another safeguard: prosecutorial discretion. Wittes observed that “no sensible prosecutor would bring a case in which there were a plausible argument that the president acted for a legitimate Article II reason.” Likewise, Lederman wrote, “[I]t’s almost inconceivable that any Attorney General would ever approve prosecuting a president on the basis of such conduct, even after his term in office, at least absent unequivocal evidence that the president would not have taken the actions but for a corrupt, i.e., self-serving, motive.” I am not so optimistic. Chief Justice Roberts’s observation about prosecutorial discretion in U.S. v. Stevens (2010) is on point: “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

If there was some judicial precedent adopting the “unambiguously corrupt” or “but for” standard, I would be willing to reconsider the application of the clear statement rule. But in the absence of any such precedent, an executive branch lawyer like Mueller should have exercised far more caution.

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In my writings on the Mueller report, I have taken care to avoid saying that the analysis is wrong as a matter of law. My refrain has been consistent: Mueller failed to establish the necessary constitutional theories to justify the bulk of Volume II. This perfunctory analysis stands in stark contrast with his meticulous approach for finding facts. Ultimately, maybe Mueller is right. Maybe he’s not. But “maybe” is not good enough for an executive branch lawyer who drafted what was supposed to be a careful parsing of criminal law, not an impeachment referral.