Executive Power

The Special Counsel’s Constitutional Analysis: Chilling Effects

By Josh Blackman
Tuesday, April 30, 2019, 2:33 PM

Special Counsel Robert Mueller’s report found that the federal obstruction of justice statutes can apply to the president, even though the statute did not expressly state that it applies to the president. Robert Mueller chose not to apply the avoidance canon known as the “clear statement” rule. Previously, I have argued that his decision was inconsistent with precedent from the Office of Legal Counsel (OLC). Mueller also found the obstruction statute can generally apply to the president because “a ‘corrupt’ official action does not diminish the President's ability to exercise Article II powers.” I have also argued that Mueller failed to support his sweeping new theory of the Take Care Clause.

Here, I address the final component of the special counsel’s constitutional analysis: whether applying the obstruction statutes to the president would “chill his performance of Article II duties.” The special counsel answers no. But Mueller’s own two-year investigation, which severely disrupted the functioning of the executive branch, demonstrates that the answer is yes. And this chilling effect reaffirms why the clear statement rule provides an optimal way to resolve these issues.

Mueller’s analysis on this question starts with Nixon v. Fitzgerald. This case afforded the president absolute immunity from civil damages for actions taken in his official capacity. Other federal officials—from “governors” to “cabinet officers”—receive only qualified immunity. Yet the Supreme Court recognized that the “President’s unique status under the Constitution distinguishes him from other executive officials.” In light of “the singular importance of the president’s duties,” any “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” The president, and only the president, can “make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.”

Fitzgerald identified one of “the most persuasive reasons” to afford the president absolute immunity: “the prospect that damages liability may render an official unduly cautious in the discharge of his official duties.” Justice Lewis Powell’s majority opinion favorably cited an old chestnut from Judge Learned Hand: “The justification for ... [denying recovery] is that it is impossible to know whether the claim is well founded until the case has been tried, and to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute ....”

The case does not directly address whether the obstruction statute should apply to the president. But this precedent does help to explain why applying obstruction principles to the president’s official conduct would, in Mueller’s words, “hinder his ability to perform his Article II duties.” The special counsel acknowledged that Fitzgerald took “into account [the] chilling effect on the President in adopting a constitutional rule of presidential immunity from private civil damages action based on official duties.”

The special counsel believed that four “safeguards would prevent [the] chilling effect” described in Fitzgerald.” (I will consider them out of order.) First, Mueller cited “the existence of settled legal standards.”  Here, the report develops the argument I discussed previously: the “corrupt” intent element of the obstruction statute is “align[ed]” with the duty of faith execution. While Mueller argued that this standard is “settled,” it is not. Indeed, the special counsel whipped together a new constitutional theory without an adequate justification. This first “standard” provides no safeguard.

Mueller identified a second safeguard: “the existence of evidentiary limitations on probing the President’s motives.” As a threshold matter, the special counsel suggested that there is “at least one context” in which it is “unquestionably constitutional” to “prob[e] the President’s intent in a criminal matter”: that of bribery. Here, Mueller relies, once again on the 1995 OLC opinion, which suggested that the president could violate the federal bribery statute. Critically, Mueller contends, for the president to run afoul of the law, the prosecutor must “ascertain his purpose and intent.” I agree with the special counsel here. Indeed, Trump v. Hawaii lends further credence to the proposition that the courts can ascertain the president’s purpose and intent, based on both public and private statements.

Beyond the context of bribery, Mueller writes, “[a]scertaining the President’s motivations would turn on” four factors: (1) “any explanation he provided to justify his actions,” (2) “the advice he received,” (3) “the circumstances surrounding the actions,” and (4) “the regularity or irregularity of the process he employed to make decisions.” The report does not suggest how it identified these four factors. Indeed, the third factor is so expansive as to dilute all the others.

Mueller’s third safeguard is “the presumption of regularity in prosecutorial actions,” which, he argues, would prevent [the] chilling effect” described in Fitzgerald. And fourth, Mueller observes that “historical experience confirms that no impermissible chill should exist.” He notes that “Presidents have very seldom been the subjects of grand jury investigations.” Several commentators on Lawfare, and elsewhere, have suggested that the “presumption of regularity” should not be afforded to President Trump. I do not think that Mueller invoked the presumption in that fashion, but I doubt this safeguard would be particularly effective for President Trump.

These four safeguards, in theory at least, would minimize chilling effects on the executive branch. And, according to Mueller’s theory, “corrupt” actions are not constitutionally sanctioned; any chilling of corrupt actions, the argument goes, would be a feature, not a bug. In practice, however, these safeguards fail to prevent significant chilling within the executive branch. Specifically, much of Mueller’s framework turns on whether the president is ultimately prosecuted for violating the statute after his time in office. Yet, the report glosses over the chilling effect that the investigation into those crimes has on the executive branch. And it is the investigation itself, not just the prosecution, that could have a chilling effect on the president’s Article II functions. Look no further than Mueller’s two-year investigation into the Trump White House.

Historically, presidents have been able to consult with their advisers, even on actions that may plainly violate the law. The Constitution empowers each president to obtain “the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Presidents have even sometimes ordered their subordinates to take actions that are patently illegal. In those cases, the advisers could shoot down the awful idea, threaten to resign, or ignore it and hope that the president does, too. Often that process may ultimately yield a middle ground that all parties can accept.

The existence of the investigation about the president, though, alters those dynamics. What were once quickly abandoned ideas can now become the predicate for criminal liability. Daniel Hemel and Eric Posner observed that the “shadow cast by the special counsel” and the “specter of legal liability ... contributed to defiance from within the White House” by the president’s top advisors. They were right. White House attorneys were chilled by a fear that the president’s actions, generally lawful, could be deemed obstructive. The president, who has the duty to take care that the laws are faithfully executed, lost part of his ability to supervise the executive branch and receive candid advice from his subordinates. White House lawyers should always counsel the president not to take illegal actions. But the mere existence of the investigation into the president for obstruction eliminates the usual give-and-take within the White House about those actions.

Investigating the president for obstruction has another unintended, chilling consequence. In Morrison v. Olson, the Supreme Court upheld the independent counsel’s for-cause removal protection, because it would not “impermissibly interfere with the President’s authority under Article II.” Mueller’s theory has the effect of imposing additional constraints on the president’s ability to remove officers, beyond those considered in Morrison. Specifically, the president can only exercise the removal power with good cause and with a non-corrupt intent. In other words, the removal power—which derives from the Take Care Clause—is now glossed by a mens rea requirement. Without question, the officer would be removed, even if the president does so with a corrupt intent; but now the president could be liable for a criminal offense. And that specter of liability has the precise chilling effect that Fitzgerald warned about. Would a president be willing to fire an officer if he could be indicted for that act once out of office?

 

Mueller would likely respond that removing an officer for “good cause” would, by definition, be done with a non-corrupt intent. Consider the following diagram that illustrates Mueller’s perspective: all removals made with “corrupt” intent are, per se, not removals with “good cause.”

 

That argument has the same intuitive appeal as Mueller’s earlier argument: that an action taken with a “corrupt” intent is, by definition, not a faithful execution of the law. Neither of these per se rules are self-evident. There may be removals made with a corrupt intent that are still with good cause.

Or a removal may be motivated by both a corrupt intent and a non-corrupt intent.

These situations can play out in many different ways. Mueller’s binary approach fails to account for the variability of actual executive-branch practice.

I’ve argued previously that Mueller failed to support the proposition that the federal obstruction statute overlaps entirely with the Take Care Clause. And absolutely nothing in Morrison suggests that a removal made with both good and bad motivations should be able to inhibit the president’s powers. Once again, the special counsel is relying on unstated theories of constitutional law that are not supported by any precedent.

Consider a 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.

In theory, at least, a case involving such mixed motives would be submitted to the jury to resolve. If the prosecutor cannot persuade a jury that the president acted based on the fourth motivation, then the president would be acquitted. That potential resolution, years later, would remain in doubt until the jury finished its deliberations. Indeed, there is no judicial precedent on point with respect to the Take Care Clause or the removal power.

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.

Finally, the special counsel downplays the extent to which his theory of obstruction inverts the separation of powers. He writes that “[w]here 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.” This analysis gets it exactly backwards.  Mueller’s theory has an even greater impact on the functioning of the executive branch than the for-cause removal provision at issue in Morrison v. Olson. I do not think the removal protections in the current regulations run afoul of Morrison. Rather, the question is whether Mueller’s theory would “chill [the President’s] performance of Article II duties.” In effect, this double-insulation on the removal power would inhibit the performance of these duties.

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Over the past two years, the president’s lawyers often publicly decried any effort to subpoena the president as a perjury trap.They implicitly feared that the president, who maintains a loose relationship with the truth, would lie under oath. Mueller never in fact issued a subpoena, but his investigation laid another type of trap: call it an obstruction trap.

Once the initial decision was made to appoint a special counsel, in this case by Acting Attorney General Rod Rosenstein, the trap was sprung. I do not think Mueller set out to deliberately trap the president. Rather, this endgame was a necessary consequence of the special counsel’s investigation. Anything the president did with respect to that investigation could be deemed obstruction of justice, even if those actions were motivated, in part, or almost in whole, by a good cause. Mueller’s investigation thus had a far greater impact on the president’s ability to manage his executive branch than the specter of monetary damages at issue in Nixon v. Fitzgerald. Mueller’s ability to investigate how the president interacted with his staff turned the executive branch upside down.

This inversion of the separation of powers reaffirms, once again, how risky Mueller’s constitutional theory was. The OLC observed that when the application of a statute to the president would pose “separation of powers questions,” the clear statement rule is appropriate. The “separation of powers questions” that result from Mueller’s theory of obstruction manifold. His decision not to apply the clear statement rule was plain error.

My criticism of Mueller, though, is tempered. He was appointed for one purpose, and his legal theories were developed in pursuit of that one purpose. I do not fault him; he did his job. Like the independent counsel in Morrison v. Olson, Mueller was “appointed essentially to accomplish a single task.”  Or, as Justice Antonin Scalia observed in that case, Mueller was appointed to “investigat[e] ... a particular individual.” And that single task is largely the problem. Justice Scalia queried, “Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute?” This criticism—not the president’s frequent tweets about “13 angry Democrats”—explains the problem with the current situation. My criticism, then, is not of Mueller, but of the current system. It remains at odds with the separation of powers, even after the expiration of the Ethics in Government Act.

Going forward, Congress has the responsibility to expressly articulate how the federal criminal laws should control the president’s exercises of his constitutional authority. Congress can do so through articles of impeachment, or through the enactment of new federal laws. But the executive branch should hesitate before applying broadly worded criminal laws to novel theories of presidential prosecution.