In a January 2018 memorandum, President Trump’s attorneys told Special Counsel Robert Mueller that without exception, “the President’s lawful exercise of his constitutional power ... cannot constitute obstruction of justice.” Full stop. The president’s lawyers have been making it for months, and we have all known that. What is novel about the memorandum is that it provides relatively detailed insight into why the president’s lawyers have concluded that the obstruction-of-justice statutes cannot apply to the president with respect to L’Affaire Russe. Specifically, integrating law and the specific evidence in the case, the memorandum sketches out why the president’s decision to fire James Comey, for example, cannot constitute an obstruction of justice, whether or not of Trump’s intent is considered. On this point, and a few others I will lay out in this post, there is far more to be said for the much-derided document than some commentators have recognized.
The memorandum begins by noting that as “Mr. Comey himself has acknowledged, a President can fire an FBI Director at any time and for any reason.” No one disagrees with this claim. Rather, critics contend that even if the termination was proper, a “corrupt” intent that gave rise to the termination could have constituted obstruction of justice. Charlie Savage notes that this argument evades a “novel legal question.” The Supreme Court, Savage writes, has upheld certain limits on the president’s ability to fire certain officers, but has not considered “whether statutes outlawing obstruction of justice implicitly constitute such a [permissible] limit on when a president can fire an F.B.I. director.” The obstruction statutes differs from these other laws in one important respect: They do not expressly put limitations on the president’s power. In contrast, the independent-counsel statute at issue in Morrison v. Olson, and the Tenure in Office Act at issue in President Andrew Johnson’s impeachment, both purported to control the president’s sole power over removal. Both of these statutes, unquestionably, were designed to restrict the president’s authority. By their very terms, the removal power is one that only the president can exercise. The obstruction-of-justice statutes (and there are several relevant provisions, not only the one identified in the memorandum) makes no reference at all to the president. Instead, it is a generic provision that sweeps in a wide range of conduct. The president’s attorneys reached a similar conclusion about the applicability of the obstruction statutes to the president: “Of course, the President of the United States is not above the law, but just as obvious and equally as true is the fact that the President should not be subjected to strained readings and forced applications of clearly irrelevant statutes.”
Without question, the president is not “above the law.” The far more important question, as I explained in an Associated Press interview, is what “law” applies to the president? The law applies to the president differently than it does everyone else. Actions that are within the law for the president, are above the law for everyone else. Only the president can issue a pardon, for example, supervise the entire executive branch, remove officers of the United States, negotiate foreign relations, and exercise a host of other powers vested by the Constitution. Congress’s general power to control federal officials—including by imposing criminal penalties for obstruction—is constrained when it comes to the president. In a related context, as the Supreme Court recognized in Zivotofsky v. Kerry, the president is under no obligation to comply with a statute that infringes on his executive powers.
Historically, the courts have also recognized that the legal process does not apply in the same fashion to the president, as it does to other government officials. Again, the president is not above the law (as the dissenters in Nixon v. Fitzgerald charged), but the law applies differently to the president. In light of what I’ve referred to as the “Presidential Avoidance Canon,” there is therefore good reason to hesitate before applying statutes to the presidency unless Congress makes clear that it intended to apply it to the presidency. This principle is especially true when the statute at issue could result in the president being punished for an exercise of his core constitutional powers.
But what if I’m wrong about this canon, and Congress did intend to apply the obstruction-of-justice statutes to all federal officials, including the president. Or what if it doesn’t matter what Congress intended? Did President Trump have an improper, or “corrupt,” motivation? And why can’t the president—like anyone else—obstruct justice under the statute if he takes an otherwise lawful step specifically intended to obstruct a proceeding?
These questions presume that the president acts with only a single motivation. However, as I discussed in Part Three of my series on obstruction and the presidency, government officials generally act with mixed motivations. And this fact should inform any analysis concerning obstruction of justice. Professors Daniel Hemel and Eric Posner posited that “[i]f the president would have taken the challenged action for national security reasons or in executing his responsibility to take care that the laws are faithfully executed, then that fact should immunize him from obstruction liability,” even if other, improper motives are provable. They add, “[t]he application of the obstruction statutes to the president should not prevent him from carrying out his constitutional role.”
I want to add—because Hemel and Posner do not make this claim—a somewhat different claim here: Even tenuous defenses should be accepted in cases where doing so would prevent applying a general obstruction statute in such a way as to restrict the president’s core executive powers. A review akin to rational basis review is appropriate in certain cases that implicate national security, where it may not even be feasible for the president to give the true reason why an action is taken. For example, President Eisenhower approved of a coverup concerning the U-2 spy plane that was shot down by the Soviet Union. He later admitted that this lie was his “greatest regret” as president, and he paid a political price for it. There are similar examples involving other presidents. Indeed, the memorandum speaks to this issue: It notes that “[a] short, separate, classified response addressing this subject” would be provided concerning President Trump’s meeting with Russian Foreign Minister Sergey Lavrov. Charlie Savage observed that “a more expansive response could not be made in this letter without compromising classified information.”
The resolution of such matters is for the political process—such as through congressional oversight or impeachment—and not for the judiciary to resolve. Even in the absence of an engaged Congress, the media has picked up the slack: Much of what has been leaked about the Mueller investigation has merely been confirmation of stories already reported by the New York Times the Washington Post, and other sources. There are many good reasons why a court should not be able to demand every conceivable reason why the president did what he did. A single, valid good reason ought to be enough in cases implicating foreign policy. (This position is similar to the position I’ve long advocated in the travel ban cases; it would not apply to domestic matters.) A recent article in the New York Times concerning the president and obstruction alludes to this point. “An honest and innocent president could still conclude that an investigation like [the Mueller probe] was so without merit and so damaging to foreign policy,” Peter Baker posits, “that it should be ended, not out of self-interest.” My colleague Jack Goldsmith added, “[e]veryone is assuming that when Trump makes these now commonplace threats, he is acting with corrupt intent, and maybe he is,” Goldsmith added. “But that has to be proved, probably over a very high bar. I am not exactly sure at this point what the corrupt intent is.” Because of the president’s unique role in our constitutional order, for purposes of judicial proceedings, the bar must be very, very high.
But, even if you disagree with me that a tenuous defense is sufficient, the memorandum sketches out what I think is a plausible claim to justify Comey’s termination. And it does so by highlighting a point I have been making for some time: The president’s exact words cannot be taken literally out of context. As the Times summarized, the president is often “misunderstood because of his meandering, stream-of-consciousness speaking style.” That puts it mildly. Trying to parse Trump’s precise phrasing is virtually impossible. Consider a recent exemplar, in which he contradicted himself in back-to-back sentences.
Here are consecutive sentences. pic.twitter.com/nomv40RPb4
— Daniel Dale (@ddale8) June 1, 2018
I considered tweeting in response, “District court in Hawaii finds President’s justification pretextual, issues global injunction to halt meeting with North Korea.” I decided not to tweet this for the same reason I no longer write April Fool’s jokes: Some people may think the satire is reality.
This attribute of Trump’s communication style does not make him immune from, for example, a perjury charge. But it should give Mueller pause before pursuing an obstruction charge which is premised on an unprecedented construction of statutes that do not expressly reach the president, based on a hyper-technical parsing of the remarks of an incoherent president. This fact is especially true if we only have Comey’s own notes, rather than a full transcript of the exchange. (For similar reasons, I have faulted courts that have taken Trump’s comments completely out of context, in the travel ban litigation.) If the entire case hinges on how Trump used the phrase “I hope you can see your way clear to letting this go, to letting Flynn go,” then the case rests on gossamer threads. Likewise, Trump’s interview with Lester Holt on NBC News can be understood in many different ways, depending on which parts you focus on. And so on. Such shaky evidence provides a tenuous footing for what will be a daunting legal battle. And if Mueller has any doubts about this premise, he should read carefully how the Supreme Court treats Trump and his statements in the soon-to-be decided travel ban case. This difficulty, however, should not stop Mueller’s investigation against other associates in Trump’s orbit, who cannot raise such defenses. But it should give him pause about proceeding against the president on obstruction based on anything like what’s in the current public record—and specifically, in the absence of evidence that the Trump took any allegedly obstructive action that isn’t plausibly within the ambit of his Article II responsibilities.
No doubt, for some, these justifications are still inadequate. For example, Jane Chong wrote on Lawfare, “Trump cannot offer the shambling semblance of an Article II excuse for what is, on its face, deeply problematic conduct—like firing Comey.” Perhaps in an impeachment proceeding, Congress can dismiss the president’s rationale as falling short of a “shambling semblance” of reason. But a court, applying the presumption of regularity in an obstruction of justice-related proceeding, could not.
Another point on which the memorandum is persuasive is where it addresses, indirectly at least, the costs inflicted by the special counsel. The attorneys explain that “the Special Counsel’s inquiry has been and remains a considerable burden for the President and his Office, has endangered the safety and security of our country, and has interfered with the President’s ability to both govern domestically and conduct foreign affairs.” Whether justified or not, Mueller’s investigation has unquestionably burdened the president’s ability to govern, domestically, and especially abroad. A recent episode illustrates this dynamic with clarity. On May 22, President Trump and President Moon Jae In of South Korea addressed the press from the Oval Office concerning the planned meeting with North Korea.
Question: Do you have confidence in Deputy Attorney General Rod Rosenstein?— The Lead CNN (@TheLeadCNN) May 22, 2018
President Trump: Excuse me, I have the President of South Korea here, okay? He doesn’t want to hear these questions. pic.twitter.com/kw5MjB15Ae
Most of the questions concerned, naturally, the on-again-off-again summit with North Korea. But then a reporter asked, “Mr. President, do you have confidence in Rod Rosenstein?” Trump became visibly irritated: “Excuse me, I have the President of South Korea here, okay. He doesn’t want to hear these questions, if you don’t mind.” The world is facing issues far more pressing than the Russia saga. Because of the special counsel’s investigation, which has taken more than a year, the president has faced a range of distractions. Indeed, when he is meeting with a foreign head of state to discuss a matter of the highest order—denuclearization—the president is being peppered with questions about whether he trusts employees within his own executive branch.
The president has raised this concern in other contexts. In May, he tweeted a quotation from his former attorney, John Dowd, who said that the Mueller probe is “screwing with the work of the President of the United States.” Trump added, “With North Korea, China, the Middle East and so much more, there is not much time to be thinking about this.”
“This isn’t some game. You are screwing with the work of the president of the United States.” John Dowd, March 2018. With North Korea, China, the Middle East and so much more, there is not much time to be thinking about this, especially since there was no Russian “Collusion.”— Donald J. Trump (@realDonaldTrump) May 2, 2018
In April, he tweeted that “[m]uch of the bad blood with Russia is caused by the Fake & Corrupt Russia Investigation.”
Much of the bad blood with Russia is caused by the Fake & Corrupt Russia Investigation, headed up by the all Democrat loyalists, or people that worked for Obama. Mueller is most conflicted of all (except Rosenstein who signed FISA & Comey letter). No Collusion, so they go crazy!— Donald J. Trump (@realDonaldTrump) April 11, 2018
As I noted last week, I continue to find Trump’s attacks on his own government absolutely inappropriate. Yet buried in his vitriol is a broader constitutional argument: the special counsel investigation about Russia is frustrating his ability to pursue foreign relations with that nation. There is nothing constitutionally problematic about Mueller’s appointment, but as his investigation gets closer to the president on matters within core Article II responsibilities, it begins to inflict more and more costs on the separation of powers. All special counsel investigations—whether the prosecutors are appointed pursuant to the now-lapsed independent counsel statute or executive-branch regulations—frustrate the president’s ability to pursue his agenda. This concern, however, is heightened where the focus of the investigation is the conduct of a foreign nation.
Others in the administration have echoed this concern. White House Chief of Staff John Kelly, for example, said that the special counsel has “embarrassed” the president. “When world leaders come ... and you know the first couple of minutes of every conversation might revolve around” addressing the Mueller probe. The memorandum closes with an important point that I have reiterated throughout my writings on the Trump presidency: These questions should not be considered solely through the lens of Trump’s norm-breaking behavior, but instead with a broader vision about the office of the presidency. The attorneys write that, “[t]his inquiry, and the precedents set herein, will also impact the Office of the President of the United States of America in perpetuity.” Without question, this is true.
As with the travel ban and other matters, the “perpetuity” factor will likely undergird any judicial challenge arising from Mueller’s investigation. Concerns about Russian collusion, or James Comey, or Michael Flynn, or Sally Yates, will remain subsidiary. Were these claims to arise in an impeachment proceeding, the analysis would be very different. But if the judiciary is asked to intervene to force the President to testify, I am doubtful that the special counsel would prevail in the end.