Someone on Twitter recently asked: “What is your most [fire emoji] take that absolutely infuriates people and you know deep down in your heart is 100% true”? I was inclined to respond: “The statutory interpretation analysis in the Mueller report is one-sided and weak.” I instead decided to try to explain why I believe this, knowing full well that it will infuriate the vast majority of legal elites who are convinced that the only things preventing President Trump from going to trial today are the Office of Legal Counsel’s ruling that a sitting president cannot be indicted and Attorney General William Barr’s “lack of inner strength.”
Before I explain what I see as the legal flaws in Special Counsel Robert Mueller’s report, I want to stipulate that Trump did some very bad (not to mention stupid) things in response to press reports about his and his team’s involvement in the Russian interference in the 2016 presidential election, and to the unfolding investigation of that interference. This was especially true, to my mind, of his efforts to cover up both the June 2016 Trump Tower meeting and his attempt to have White House Counsel Don McGahn fire Mueller; his reaching out to former administration officials under indictment to offer them suggestive guidance, support and assurances; and his efforts to influence Michael Cohen’s 2017 congressional testimony. In combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option.
What I am not sure of is that Trump committed a crime. Indeed, I am pretty sure that many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written. (It is pretty settled in practice that an official can be impeached for behavior that does not rise to the level of criminality under the U.S. Code.)
To commit a crime, Trump had to violate a provision of the U.S. Code that applied to him. There are many obstruction of justice statutes. Generalizing a bit, they make it a crime for “whoever” commits an obstructive act, with a nexus to an official proceeding, and with a corrupt intent. One might think that “whoever” includes Trump. But two high hurdles must be overcome before reaching that conclusion. First is the constitutionally based clear statement rule that determines whether the obstruction statutes, despite their broad general language, actually apply to the president. And second, if the statutes are properly read to apply the president, one must do constitutional “balancing” to determine if Congress has the power to so burden the president.
The Mueller report addressed both issues. I focus here on the first: the clear statement rule. To my amazement, the great lawyers who wrote the report botched the analysis and exposed the president to much more potential criminal liability than a proper analysis would allow. Showing why I think this requires me to dive into some legal weeds.
I. The Clear Statement Rule
The leading Supreme Court decision on the presidential clear statement rule is Franklin v. Massachusetts (1992). The court reasoned that “[o]ut of respect for the separation of powers and the unique constitutional position of the president,” the term “agency” in the Administrative Procedure Act (APA) did not apply to the president—even though the express exceptions to the term did not include the president. The Supreme Court cited “respect for the separation of powers and the unique constitutional position of the President” as a basis for requiring “an express statement by Congress” to subject presidential decisions to the APA’s abuse of discretion standard. Another decision is Public Citizen v. Department of Justice (1989), where the Supreme Court applied the clear statement rule (among other tools) to determine that the president and Justice Department did not “utilize” the American Bar Association under the Federal Advisory Committee Act when it sought its advice on judicial nominations. The court said that reading “utilized” to apply to the executive’s relationship with the ABA would raise serious questions about whether the statute “infringed unduly on the President's Article II power to nominate federal judges.” The court added: “we are loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils.”
In a much-cited 1995 opinion by Walter Dellinger, OLC described the presidential clear statement rule as follows: “[G]eneral 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.” Please read this sentence carefully. It says that general statutes—i.e., ones like the obstruction statutes that do not specifically regulate the president—“must” (not may) be read as “not applying to the president” if they do not “expressly” apply, where (i.e., if) application of the statute would “arguably” (not definitely, arguably) “limit” the president’s constitutional role. Dellinger also says: “[S]tatutes 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” (emphasis added). Other OLC opinions contain similarly broad formulations of the clear statement rule.
OLC (or, in one case, the deputy attorney general) has relied on the clear statement rule in at least the four opinions listed below in the Appendix to this piece, though there are probably more. (OLC’s 1996 opus on separation of powers also expressed the rule in broad terms.) In every one of these four opinions, the Justice Department applied a version of the clear statement rule to conclude that a generally worded statute did not apply to the president. One of these opinions, a 1974 effort by Laurence Silberman, applied an early formulation of the clear statement rule to construe criminal laws (concerning conflicts of interest) not to apply to the president. (Two other OLC opinions, one written by William Barr in 1989, the other by Ted Olson in 1984, applied the different but related constitutional avoidance canon to read a criminal statute to exclude the president.)
The presidential clear statement rule flows from two constitutional principles, as OLC explained in its 1996 opinion: “[S]tatutes 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.” The rule forces Congress to engage in focused deliberation and express action before it burdens presidential powers, and prevents courts from applying statutes to burden the presidency absent evidence that Congress actually deliberated on the issue and applied the statute to the president.
The clear statement rule is not beyond criticism, and, indeed, it has many critics. This is perhaps why so many commentators who have analyzed the application of the obstruction statutes to the president have elided or downplayed the rule. But if one is following the law, one cannot do this. And if one is a special counsel, one is required to follow the law as the executive branch has long understood it, which the Mueller report acknowledges. This is why the report accepts the clear statement rule’s basis in Supreme Court and OLC opinions, and purports to apply it.
II. The Mueller Report and the Clear Statement Rule
One might think the clear statement rule precludes application of the obstruction statutes to the president, full stop, since the obstruction statutes do not expressly apply to the president. But matters are more complex.
Silberman’s 1974 opinion applied the clear statement rule to conclude that the conflict of interest statute did not apply to the president and vice president. The opinion noted that it would be “strange for Congress to subject the President and the Vice President to possible criminal prosecution without naming them explicitly on that basis of such converted issues as those discussed above.” And then it said: “This is not a situation like the bribery statute (18 U.S.C. 201), where from the nature of the offense charged, no one, however exalted his position, should safely feel that he is above the law.” The 1995 Dellinger opinion provided an explanation for this statement. It said that the bribery statute as applied to the president “raises no separation of powers questions were it to be applied to the President” because the Constitution “confers no power in the President to receive bribes.” The opinion explained that the Constitution specifically contemplates impeachment for “bribery,” and “specifically forbids any increase in the President’s compensation for his service while he is in office, which is what a bribe would function to do.”
Based on this prior Justice Department discussion of the bribery statute, the Mueller report concludes that the clear statement rule does not apply to the obstruction statutes with respect to some presidential acts. Its reasoning in total (with my emphasis added):
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. The Constitution does not authorize the President to engage in such conduct, and those actions would transgress the President’s duty to “take Care that the Laws be faithfully executed.” In view of those clearly permissible applications of the obstruction statutes to the President, Franklin’s holding that the President is entirely excluded from a statute absent a clear statement would not apply in this context.
As Josh Blackman has noted, there are problems in this terse application of the exception to the clear statement rule to reach such an important legal conclusion in such an important context. Unlike bribery, obstruction of justice is neither prohibited in the Constitution nor expressly mentioned in the impeachment context as a ground for reprobation. The president thus might not lack power in the obstruction context as he does in the bribery context. In addition, one might not apply the logic of the bribery exception to obstruction since it is generally much harder to disentangle exercises of presidential law enforcement and removal from obstruction than it is to disentangle executive powers from bribery. These are issues the report should have addressed but didn’t.
But let’s accept the report’s application of the exception to the clear statement rule for the moment, for there is a different and larger problem. Even applying the exception, the obstruction statutes still don’t apply to much and probably most of Trump’s conduct.
As the excerpt above shows, the Mueller report invokes the exception to the clear statement rule to conclude that the President is not “entirely excluded from a statute absent a clear statement” (my emphasis). The exception should mean that the obstruction statutes apply, at most, to presidential actions that raise no separation of powers problems. In this light, one might think (as the report says) that it is appropriate to apply a “more limited application of a clear-statement rule to exclude from the obstruction statutes only certain acts by the President—for example, removing prosecutors or ending investigations for corrupt reasons,” both of which concern presidential action under Article II. (A simpler way of saying this is that one might think the exception to the clear statement rule applies only to actions that fall within the exception.) Under the clear statement rule, any application of the obstruction statutes that would arguably limit or possibly conflict with the president’s constitutional prerogatives still must be excluded from the statutes, even if other non-Article II actions are not excluded.
In response to this, the Mueller report makes an argument that I have never seen in Supreme Court or OLC jurisprudence on the presidential clear statement rule. The report acknowledges that Article II gives the president removal authority and “broad discretion to direct criminal investigations.” And yet despite the clear statement rule, the report declines to exclude actions that would burden these Article II authorities from the obstruction statutes’ scope. The report reasons that excluding the burdened Article II actions “would be difficult to implement as a matter of statutory interpretation” since the relevant terms in the corruption statutes could not “easily bear that specialized meaning.”
This argument makes no sense. The fact that the clear statement rule might not exclude the president’s non-Article II behavior should have no impact on the otherwise normal operation of the rule to exclude presidential action burdened by Article II. And it wouldn’t be any more difficult to exclude burdened Article II action from the statutes’ scope in this context than in any other context where the clear statement rule applies. Neither the Supreme Court nor OLC has ever said that the clear statement rule’s exclusion of the president from a statute’s scope must be easy to square with the statutory term. In Public Citizen, the court applied the canon even though the justices admitted that it did violence to the “common sense” and “plain language” of the term “utilize.”
The Justice Department has invoked the clear statement rule several times to exclude the president from a statute even though the exclusion was difficult or impossible to make consistent with statutory text. It ruled that an unqualified general nepotism-related prohibition on the appointment of federal judges did not apply to the president, that a consumer report notice requirement that applies to any “person” did not apply to the president, that the criminal conflict-of-interest statute, which applies to an “officer or employee of the executive branch,” did not apply to the president, and that an unqualified prohibition on closing executive branch offices to memorialize deceased former U.S. officials did not apply to the president. The whole point of the presidential clear statement rule is that it excludes the president from a generally worded statutory term that would otherwise apply to him, without any need to make the term “easily bear that specialized meaning.”
The Mueller report takes a different view. It gives Public Citizen the back of its hand with a hard-to-understand “cf.” citation. And it doesn’t consider in this context the many relevant OLC opinions that are supposed to be binding under the special counsel regulations. Instead, the report relies on Supreme Court opinions that have nothing to do with the president or the presidential clear statement rule to conclude that criminal statutes are not subject to “case-by-case exceptions” or “extra-textual limit.” It also cites a similarly inapt court of appeals opinion for the proposition that the obstruction statutes “have been given a broad and all-inclusive meaning.” And it relies on a plurality opinion in United States v. Santos, a case about the application of the money laundering statute to a lottery operator, to conclude that “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.” But of course that is precisely what the ordinary clear statement rule of statutory construction for presidential action demands. The report says that “no established principle of interpretation would exclude the presidential conduct we have investigated,” where “presidential conduct” means affected Article II conduct in addition to non-Article II conduct. Yet the affected Article II conduct is exactly what the presidential clear statement rule excludes.
In this part of the analysis, the Mueller report simply rejects the presidential clear statement rule and the important constitutional principles behind it on the basis of other canons of construction in cases that have nothing to do with the president. No Supreme Court decision has ever done this. And no executive branch lawyer has ever done this, or ever would in any other context. The report goes very far beyond the exception to the clear statement rule, since it leverages the exception to insist that all presidential action, including action that raises Article II problems, must be included within the statute. (If all presidential actions must be either in or out of the statute, surely the stakes of the presidential clear statement rule counsel that they all be excluded.) 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.
Based on the flawed premise that the obstruction statutes apply to all of Trump’s actions, even ones that involve and burden exercises of Article II powers, the report moves to the indeterminate separation of powers balancing test and concludes that the obstruction statutes do not unduly burden the exercise of presidential powers. But with a proper application of the canon in the first place, the report never should have reached constitutional balancing.
Respect for the clear statement rule requires Congress in the first instance to specify the precise circumstances when a statute regulates the president, including whether and to what degree it sought to limit or burden the president’s Article II prerogatives. Having Congress weigh in first makes for a much more nuanced and informed balancing of interests. (Compare, for example, Morrison v. Olson, where the Supreme Court concluded that Congress’s express, precise and limited intrusion on presidential authority was not unduly burdensome.) This is one of the main points of the clear statement rule: Courts and executive branch lawyers should not reach and resolve hard separation of powers questions until they know for sure that Congress has thought carefully about where to draw the lines of acceptable conduct in areas that implicate the president’s constitutional role. But Congress did not in the obstruction statutes expressly seek to regulate the president. Until it does so clearly, the law as understood by the executive branch demands the conclusion that the statutes do not apply to presidential actions that arguably limit the president’s constitutional role.
I want to be clear about what I am saying and what I am not saying. My main point is that, under the clear statement rule, the obstruction statutes do not apply to Trump’s conduct to the extent that they would arguably limit or possibly conflict with his Article II prerogatives. This is a claim about the proper construction of the obstruction statutes as they apply to the president. I have not addressed whether Congress has the constitutional power to regulate the president’s Article II powers with a clear statement, and thus have not claimed that the president is constitutionally immune from anything. Nor am I saying anything about whether the president’s acts related to Article II would or wouldn’t implicate the obstruction statutes if Congress made them plainly applicable. I only claim that, as a matter of statutory interpretation, Trump cannot violate the obstruction statutes as currently drafted for any applications of the statutes that arguably limit his constitutional prerogatives.
Perhaps the clearest example of what should not be covered by the obstruction statutes is Trump’s firing of FBI Director James Comey. As the Mueller report notes, Trump’s intent in that firing is unclear. But under the above analysis, it doesn’t matter. Congress has not clearly applied the obstruction of justice statute to limit the president’s removal power (again, cf. Morrison), so the statute does not apply to an exercise of that power. This conclusion might inform whether the special counsel’s obstruction investigation was properly predicated at the outset. The report on page 11 of Volume II lists six factors that in combination with “analysis of applicable statutory and constitutional principles” appeared to have led the special counsel to open the obstruction of justice investigation. Five of these factors seem to relate to an exercise of Article II power, and the sixth, Trump’s statement about the June 2016 Trump Tower meeting, by itself doesn’t seem to constitute obstruction. If the clear statement rule were properly applied, it is not obvious how the obstruction investigation was properly predicated by relevant facts at the beginning. (This problem may have been hard to see at the outset of the investigation.)
As an example of what might in theory still be covered by the obstruction statutes under the exception to the clear statement rule, consider Trump’s various actions, in public and private, to influence at least two witnesses in the special counsel’s investigation: Michael Flynn and Paul Manafort. Most and probably all of these efforts seem not to involve the exercise of an Article II power. If so, application of the obstruction statutes to these facts would not burden a presidential prerogative and the statutes thus apply to these actions if their elements are satisfied. (Given the constitutional stakes, doubts about whether the president’s Article II powers are burdened by an application of the statute should probably be resolved in the president’s favor.)
My conclusion that Trump can do bad things in connection with his exercise of Article II power and not even theoretically commit a crime under the obstruction statutes as currently written might seem weird to the point of bizarre to some. But Congress by statute defines what is criminal and what isn’t, and rules of statutory interpretation determine the scope of Congress’s criminal prohibition, including exclusions for the president absent a clear statement to the contrary. Under the clear statement rule, the responsibility to rectify any weirdness in the current arrangement thus lies with Congress, which would need to sort out the very hard questions of when and how the obstruction statutes can and should burden presidential power, and when not. In the meantime, the remedies for a president who wields Article II power like Trump are impeachment, censure or elections.
A candid analysis of the clear statement rule would have acknowledged and grappled with the many analytical difficulties I have touched on. But the Mueller report did not do that. It suppressed standard legal doctrine and engaged in novel legal moves in order to hold open the possibility that all 10 of the events he analyzed might have been crimes. It is not clear why the authors of the report did this. One can speculate, though it is only speculation, that it may have had something to do with not wanting to give Trump’s actions a pass and thereby, after two hard years of work, “exonerate” Trump.
Given the unprecedented abuse Trump heaped on Mueller and his team, and Trump’s wildly aberrant behavior, this would have been an understandable reaction. But it still would have been a mistake. Avoiding exoneration of Trump was not within the special counsel’s charge under the regulations—and especially not at the cost of screwing up the law governing the presidency for future presidents. “The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant,” said Justice Robert Jackson (emphasis added). That is what seems to have happened here.
It would have been so much better for the special counsel to conclude that Trump’s Article II acts arguably limited by the obstruction statutes were not covered by those statutes, and thus to lay out relevant facts only for his non-Article II actions. That would have resulted in a shorter and less damning discussion of possible obstruction of justice, but it still would have been pretty damning. It would have also allowed Congress and the American people to decide the issue in a less controversial posture, it would have left executive branch precedents where they were, and it would have been more compliant with the special counsel regulations.
I expect that the statutory interpretation elements of the Mueller report, especially its gutting of the presidential clear statement rule, will lead the Justice Department to issue an opinion invalidating at least that aspect of the legal analysis in the report. One underappreciated consequence of the special counsel’s unusual decision not to make “a traditional prosecution or declination” was that it allowed him to make damning insinuations about the criminality of the president’s behavior without taking an “investigative or prosecutorial step” which, under Section 600.7 of the special counsel regulations, would have permitted the attorney general to review the step, identify its faulty legal basis and determine that “it should not be pursued.” The special counsel had a duty under Section 600.7(a) to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.” It will be interesting to learn, if we do, how thoroughly Mueller consulted with OLC, and what the exchanges reveal.
I fear that the end result of all this will be to splinter and damage the Justice Department and further politicize it in the public eye, with who-knows-what bad consequences. The special counsel should have played it straight and allowed Congress and the American people to decide how to hold Trump accountable on the basis of the facts that were relevant to applicable law.
Appendix: OLC Opinions Applying the Presidential Clear Statement Rule
Memorandum for Jack Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges (1995)
Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of Interest Problems Arising out of the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution (1974)
Memorandum for Egil Krogh, Staff Assistant to the Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Closing of Government Offices in Memory of Former President Eisenhower (1969)