Special Counsel Robert Mueller’s report found that the federal obstruction of justice statutes can apply to the president, even though the statutes do not state this expressly. Robert Mueller chose not to apply the avoidance canon known as the “clear statement” rule. In a recent Lawfare post, I argued that this decision was inconsistent with precedent from the Office of Legal Counsel (OLC).
Yet, Mueller did engage in a different, if subtler, form of as-applied constitutional avoidance. He concluded the obstruction statutes can generally apply to the president because “a ‘corrupt’ official action does not diminish the President’s ability to exercise Article II powers.” This argument is premised on a novel theory of the Take Care Clause that no court of record has even hinted at. Mueller may be right about this theory in many, if not most cases. But he should have exercised far more caution in advancing this sweeping constitutional argument. That lack of caution reaffirms, once again, how far he departed from OLC’s limited discussion of the President’s amenability to the criminal law. A 1995 OLC opinion hints only that the president could violate the federal bribery statute And that lack of caution reaffirms why the clear statement rule was the optimal way to resolve this issue.
Mueller writes that the federal obstruction statutes share three common elements: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. Justice Antonin Scalia’s partial dissent in U.S. v. Aguilar stated that “the term ‘corruptly’ in criminal laws has a long-standing and well-accepted meaning.” The term “denotes ‘[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others....” Mueller’s report adopts Justice Scalia’s conception of “corruptly.” This analysis hints at something of a saving construction, with three parts.
First, the special counsel writes that “the term ‘corruptly’ sets a demanding standard.” The government would have to make “a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” The emphasized portion reflects Justice Scalia’s “long-standing” definition of “corruptly” from Aguilar. Second, Mueller reasons that “[a] general ban on corrupt action does not unduly intrude on the President’s responsibility to ‘take Care that the Laws be faithfully executed.’” In other words, a “corrupt” action that is “inconsistent with official duty” is by necessity an action the president lacks the power to take. Mueller writes that the “standard” Justice Scalia identified in Aguilar “parallels the President’s constitutional obligation to ensure the faithful execution of the laws” (emphasis added). (Elsewhere, Mueller writes that this standard “aligns with the President’s constitutional duty to faithfully execute the laws.”) Specifically, Mueller observes that “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.” Therefore, third, “the President has no reason to be chilled in those [official] actions because, in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive.”
This saving construction, which is developed at several junctures of the report, can be reduced to a three-part syllogism: (1) It is inconsistent with the official duties of the president to take official actions that are not faithful executions of the law; (2) acting with a “corrupt personal motive” is “parallel” to, or “aligns with,” taking actions that are not faithful executions of the law; and (3) therefore, Article II does not prevent Congress from criminalizing “corrupt” actions, such as obstruction of justice, because those actions are inconsistent with the official duties of the president.
The first element is fairly obvious. It derives straight from the text of the Take Care Clause, which provides that the president “shall take Care that the Laws be faithfully executed.” The third element is also true, if in fact a “corrupt” action is “inconsistent with the official duty”: if the Constitution does not give the president the power to do X, then Congress can pass a statute that prevents the president from doing X.
The entire syllogism, then, turns on the second element: Are actions taken with a “corrupt personal motive” “parallel” to, or “align[ed] with,” unfaithful executions of the law? Consider the following diagram, which illustrates Mueller’s perspective: all actions that are taken with a “corrupt” intent are also “unfaithful executions.” Congress could only criminalize actions in the black circle. Congress could not criminalize actions taken in the white circle.
But this model need not be correct. There may be actions, taken with corrupt intent, to obstruct a current or envisioned judicial proceeding, that are still faithful executions of the law.
I discussed such situations on Lawfare in 2017. Consider a hypothetical based on a slightly modified version of the facts in the Mueller report. The president concludes that the special counsel’s investigation into his campaign placed a “cloud” over his ability to negotiate foreign affairs with Russia and other countries. In other words, the investigation itself is frustrating his ability to faithfully execute the laws. The president also recognizes that removing the special counsel would suppress investigations into possible criminal activities from the campaign, and that he would personally benefit from putting the kibosh on the investigation. What should the president do in that circumstances? Let the special counsel continue to hamper his foreign affairs, to avoid the risk of committing obstruction? Or remove the special counsel to improve foreign relations, knowing that such an action could give rise to an obstruction investigation, and perhaps an indictment?
Mueller’s theory of the case would expose the president to that sort of dilemma. Virtually all other governmental officials who face such a conflict could step aside or recuse and allow someone else to make that decision. Not so for the president. The Constitution empowers one person, and one person alone, to take these actions.
Alternatively, there may be actions taken with a corrupt intent that straddle the line between faithful and unfaithful executions of the law. For example, the president doesn’t really think that removing the special counsel would lift the “cloud” over foreign affairs, but he is willing to take the chance.
There is little precedent to decide these questions one way, or the other. The Constitution does not require the president to make such a difficult choice. The clear statement rule, again, obviates that dilemma.
How does Mueller explain why Justice Scalia’s discussion of the obstruction statute “aligns with,” or is “parallel” to, the Take Care Clause? Mueller offered a single citation to a popular 18th century dictionary: "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')."
I am very familiar with this definition. In 2015—long before President Trump’s election was even conceivable—I surveyed founding-era dictionaries to develop the original understanding the Take Care Clause. I turned to these primary sources because the Supreme Court has said strikingly little about this provision. Mueller cites several of the leading Supreme Court’s precedents, including Myers v. U.S., U.S. v. Armstrong, Bowsher v. Synar, Morrison v. Olson, and Free Enterprise Fund v. PCAOB. Yet none of these cases supports the conclusion that “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.” Mueller, like me, turned to some form of originalist analysis to shed light on this seldom-interpreted constitutional provision.
As an academic exercise, it is both necessary and proper to develop constitutional theories based on primary sources. And, in such academic exercises, the author should be candid that his theory is tentative and cannot be supported by any judicial precedent. For example, in my article, I offered analyses of several aspects of the clause: what sort of duty does “shall” impose; what does it means to act with “care;” what does it mean to “execute;” and what does it mean to “execute” “the laws” “faithfully.” I also studied the common law history of faithful execution, and similar provisions in state constitutions. Even with that background, I still acknowledge that the meaning is not self-evident, and the absence of judicial authority makes the task even more fraught.
Mueller did not exercise that caution. He drew important conclusions about a particularly enigmatic provision of the Constitution, citing solely a dictionary definition of a single word in the clause. There is work that could have supported his theory, but he didn't even acknowledge it. Ultimately, only a thin reed supports his broad conclusion.
Regrettably, the Mueller report is not a mere academic exercise. Mueller made significant allegations about the culpability of the president, based on threadbare constitutional analysis. The Take Care Clause is not a general good governance provision. It is not a constitutionalized version of the obstruction of justice statute. The Take Care Clause is not a Rorschach test that prohibits whatever you want it to prohibit. The Take Care Clause has a meaning, and Mueller did not do the work to ascertain its meaning.
Moreover, the Take Care Clause is a poor candidate to assess whether actions that the president takes himself are unconstitutional. This provision concerns the president’s supervisory powers—that “the laws be faithfully executed” by subordinates. Peter Straus has observed that the “passive voice of the Take Care Clause ... confirms that the President is not the one whose direct action is contemplated.” Strauss is not alone—other academics have made closely similar points. Jack Goldsmith and John Manning wrote that the Take Care Clause, “[p]hrased in a passive voice . . . seems to impose upon the President some sort of duty to exercise unspecified means to get those who execute the law, whoever they may be, to act with some sort of fidelity that the clause does not define.” Mueller makes no effort to explain how a provision concerning the president’s supervisory duties restricts personal “corrupt” actions he takes outside his supervisory role—that is, actions he takes independently of anyone else in the executive branch For example, at least one of the alleged obstructive acts concerned instructions Trump gave to Corey Lewandowski who was not even a government official. The Take Care Clause has no relevance in that situation.
The Oaths Clause is a far better candidate to assess whether the president himself violates the law. It provides: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” That provision also refers faithful execution. Yet, the special counsel did not even mention it—and for good reason. While the Supreme Court has said very little about the Take Care Clause, there are no opinions, as far as I know, about the Oath Clause.
Were the OLC asked to opine on the interplay between the obstruction statute and Article II, a published opinion would have carefully parsed the history of the Take Care Clause. If the solicitor general addressed this issue before the Supreme Court, his brief would at least acknowledge competing interpretations of the Clause, and explain why one side was better than the other. But Mueller’s constitutional analysis was neither thorough nor balanced. He reached a conclusion without any reasoning and did not even acknowledge contrary authorities. This constitutional omission is even more glaring in light of the rigorous approach the special counsel used for his statutory analysis.
Two decades ago, Independent Counsel Ken Starr solicited a legal analysis about whether the sitting President could be indicted. At the time, the OLC had not yet opined on the issue. Professor Ronald Rotunda produced a 56-page detailed memorandum that answered this question in the affirmative. Agree or disagree with Rotunda’s analysis, there was no doubt about the basis of his reasoning. We do not know whether he developed such a document in-house or contracted with academics to develop this analysis. (There would not have been a shortage of volunteers.) But his published work does not reflect the analysis necessary to carry the burden needed to establish this new constitutional rule. Mueller only cited a single dictionary. As a result, his thin analysis must stand on its own.
The clear statement rule provides the optimal way to resolve the question of whether the obstruction statute should apply to the president. To apply Mueller’s as-applied “corruption” saving construction, the special counsel had to make broad assumptions about the meaning of one of the Constitution’s most enigmatic provisions. He failed to support his reasoning—and in the process, developed a sweeping theory of constitutional law. As I will examine, under Mueller’s strained interpretation, the obstruction statute unduly chills the president in the performance of his Article II duties.