Criminal Justice & the Rule of Law

The Mueller Report’s Weak Statutory Interpretation Analysis: Part II

Jack Goldsmith
Thursday, May 23, 2019, 10:08 AM

I argued earlier this month that Special Counsel Robert Mueller’s report misapplied the presidential clear statement rule and improperly exposed many of President Trump’s actions in response to the Russia investigation to potential criminal liability.

FBI Director Robert S. Mueller speaks during a ceremony honoring Giovanni Falcone at FBI Headquarters. (Source: FBI)

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I argued earlier this month that Special Counsel Robert Mueller’s report misapplied the presidential clear statement rule and improperly exposed many of President Trump’s actions in response to the Russia investigation to potential criminal liability. The argument drew disagreement from Benjamin Wittes, Andrew Kent and Marty Lederman, which in turn provoked a response by Josh Blackman, who holds views similar to mine.

Here I offer my final thoughts on this issue. I am more convinced than ever that the Mueller report misapplied the governing clear statement rule. The analysis is lengthy, so I will state my main conclusions here:

  • None of the critics defends the report’s actual reasoning, which is pretty obviously flawed.
  • There are reasons to question the presidential clear statement rule, but under governing law, it applies here. This explains why the Mueller report, unlike some of my critics, embraces the rule without qualification.
  • Prior investigations of presidents do not provide precedents on which, under governing law, the report could rely. This explains why the Mueller report did not mention those investigations.
  • The exception to the presidential clear statement rule, and the analogy between obstruction of justice and bribery, cannot be leveraged to permit application of the obstruction statutes to most of the 10 events described in Volume II of the Mueller report.
  • The hoary hypotheticals about the clear statement rule are exaggerated. They should be addressed to Congress, which, consistent with the purposes of the rule, should in the first instance do the hard work of figuring out which Article II activities should be burdened by possible criminal liability.
  • The Mueller report’s legal analysis around the clear statement rule, which no one defends, was likely a second-order consequence of the special counsel regulations’ insistence on legal control by the attorney general. I suspect that a tense back and forth between Mueller and the Justice Department on governing law preceded the report, and explains its odd statutory interpretation analysis.

I. Mueller’s Analysis

My argument is that the Mueller report misapplied the clear statement rule to expose Trump to much more potential criminal liability under the obstruction of justice statutes than a proper analysis would allow. Interested readers should consult my extended original analysis, but here it is in a nutshell.

The clear statement rule, in the formulation by the Office of Legal Counsel (OLC), holds 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.” OLC in dicta has stated an exception to this rule for the bribery statute, which it reasoned “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.” I suggested, following Blackman, that Mueller was too quick to apply this exception to the very different obstruction statutes.

The bigger problem in the report’s analysis is that the exception should at most expose Trump to criminal liability only for actions that “raise[] no separation of powers questions.” But application of the obstruction statutes to many and probably most of the events the report describes in Volume II does raise serious separation of powers questions. Such application would clearly burden the president’s power to control investigations or fire subordinate executive officials. There is no dispute about this. The Mueller report explicitly acknowledged that it is applying the obstruction statutes to burden Article II powers. That was the explicit premise of its constitutional balancing analysis.

The Mueller report’s error—and I think it is a big one—was to leverage the exception to the clear statement rule for actions that don’t implicate separation of powers and extend it to actions that do implicate separation of powers, thereby applying the obstruction statutes to burden the president’s Article II activities even in the absence of a plain statement. The report did this based on cases involving crimes by private citizens that conclude that criminal statutes cannot be subject to “case-by-case exceptions” or “extra-textual limit.” The report says 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 as I noted in my original post, “that is precisely what the ordinary clear statement rule of statutory construction for presidential action demands.” The report in effect rejects the presidential clear statement rule under the guise of purporting to apply it.

Neither Wittes nor Lederman nor Kent defends this central element of Mueller’s argument for the application of the obstruction statutes to the president’s Article II activities. Indeed, Wittes agrees that the Mueller report’s argument for leveraging the exception to the clear statement rule to apply the obstruction statutes to Trump’s Article II behavior—the argument that I criticized—is “weak.” Instead of defending what the Mueller report actually argued, all three of my critics support the report’s conclusions with arguments that the report did not make. Mueller had famously great lawyers on his team, so one should wonder why the arguments made by Wittes, Lederman and Kent did not make it into the report. I offer thoughts on that question below.

II. Why the Clear Statement Rule Governs Here

As I noted in my original post: “The clear statement rule is not beyond criticism, and, indeed, it has many critics.” Lederman and Kent are two such critics. Lederman says the rule has a weak foundation in Supreme Court precedent and is not always faithfully applied by OLC. Kent garners additional arguments, mostly based on what OLC did not say in certain opinions. He concludes that it “makes good sense to exempt federal criminal statutes from the application of this clear statement rule.”

One problem with these criticisms of the clear statement rule for purposes of assessing the Mueller report’s legal analysis is that the Mueller report disagrees with them. The report asserts without qualification that the clear statement rule, which it described as a “requirement,” applies to the obstruction statutes. It maintains without qualification that “the Supreme Court has applied that clear-statement rule in several cases.” It also notes that the Department of Justice “has relied on this clear-statement principle to interpret certain statutes as not applying to the President at all, similar to the approach taken in Franklin.” The report doesn’t hem and haw about the legitimacy of the clear statement rule. It accepts the rule in the broad formulation set out by OLC chief Walter Dellinger in the 1995 OLC memo. And then it purports to apply the rule in a way that I criticize, and that none of the critics defend.

It is important to understand why the Mueller report didn’t seek to water down or discard the clear statement rule. A big problem with the discredited independent counsel (under the 1978 Ethics in Government Act) was inadequate supervision and control of major prosecutorial decisions by the independent counsel. One of the main aims of the special counsel regulations that replaced the independent counsel statute was to centralize legal control and accountability in the attorney general. The regulations established that the special counsel was “free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought,” but it ensured that “ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General” (all my emphasis).

To serve this aim, the regulations require the special counsel to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice” and to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.” To enforce this structure, the attorney general can “request that the Special Counsel provide an explanation for any investigative or prosecutorial step” and can, with notice to Congress, “conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

Some have questioned whether OLC interpretations of the law are included within “the rules, regulations, procedures, practices and policies of the Department of Justice” with which the special counsel must comply. The Mueller report, however, did not question this. On his own, or through direction from the Department of Justice, the special counsel interpreted the regulations to require him to abide by OLC decisions in his law enforcement decisions. This is why the report followed OLC’s interpretation of Article II to forbid indictment of the president. As the report explained (my emphasis): “Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.” The same law and regulation required the special counsel to “accept,” and not question, OLC’s formulation of the clear statement rule as it applied to presidential action. Which is what he did. (OLC’s authority to interpret law for the executive branch derives from the attorney general’s authority to do so. Abiding by OLC decisions in effect centers legal accountability in the attorney general, who can at any point reverse OLC.)

For these reasons, Kent’s and Lederman’s criticisms of the clear statement rule as found in the OLC opinions that discuss the rule have no place in assessing what the special counsel did. The same goes for the supposed inconsistent application by OLC of the clear statement rule. I am not so sure that OLC has applied the rule inconsistently. But in any event, Mueller, either on his own or at the direction of OLC or the (acting) attorney general, determined that he was bound by the clear statement rule as articulated in OLC opinions. One may think the clear statement rule is stupid, or weaker than OLC thinks, or a misapplication of Supreme Court precedent. But under governing law as specified by the special counsel regulations, it applies in its robust form to Trump’s actions, as the Mueller report concluded.

III. What About Past Independent Counsels and Prosecutors?

By contrast with Lederman and Kent, Wittes accepts that the special counsel is bound by Justice Department law and practice. But he argues that “OLC’s general discussion of this rule is not the only relevant body of executive branch work on the subject.” There is another body of law, Wittes maintains, albeit one that the Mueller report did not consider. This is the law that emerges from past investigations of the president. And this body of law, Wittes says, did not take the view that “the presidential plain statement rule prevents application of the obstruction statutes to presidential action.”

Wittes cites three episodes. First, Watergate Special Prosecutor Leon Jaworski concluded that many of President Nixon’s actions, including ones that look like supervision of the Watergate investigation (and thus an exercise of Article II power), constituted obstruction of justice. The second episode concerns Iran-Contra Independent Counsel Lawrence Walsh. This example is more equivocal since (as Wittes notes) Walsh concluded that the facts did not support indictment of Ronald Reagan or George H.W. Bush. Walsh did, however, investigate Bush for possible obstruction of justice charges for his pardon of Caspar Weinberger (an exercise of an Article II power) without any suggestion that there might be a legal problem with doing so. Third is the investigation of Bill Clinton by Independent Counsel Ken Starr. This case, Wittes acknowledges, is the most remote from the perspective of Justice Department practice since Starr did not make conclusions about Clinton’s criminality under the U.S. Code and most if not all of Clinton’s actions were not exercises of Article II power. But it is also fair to conclude from context, as Wittes says, that Starr’s office “never considered the possibility that the obstruction statutes may not apply to presidential conduct if application would burden Article II prerogatives.”

These are interesting episodes that at first glance seem at least relevant to the legal analysis in the Mueller report. One must ask, therefore, why the report did not mention them. The special counsel was, after all, obliged to comply with the “practices and policies” of the Justice Department. And Mueller and his team obviously knew about these episodes.

I think there are several reasons why the Mueller report failed to mention these episodes—reasons that explain why they are probably legally irrelevant to the special counsel’s task. (Wittes acknowledges some of these reasons in his post.)

First, only in the Watergate case did the prosecutor actually apply law to fact in a way that can fairly be said to constitute a “precedent.” The Watergate memorandum shows no awareness of an Article II issue or a canon of construction related to presidential power. Indeed, it treated the president like a private citizen and raised no concerns about burdening Article II. So while it might stand as a precedent of sorts in practice, it in no way elucidates the relationship between the obstruction statutes and Article II. (Compare the Mueller report, which did show this awareness and did do such an analysis.)

Second, the presidential clear statement rule was not established when Jaworski wrote. It first appeared in the Supreme Court in Franklin v. Massachusetts in 1992 and did not fully emerge in OLC opinions until Dellinger’s opinion in 1995. There were precursors in OLC, to be sure. The only one that predated Jaworski, and thus the only one he might have drawn on, was a 1969 opinion by OLC head William Rehnquist. But Rehnquist simply stated, without analysis of Article II or anything else: “Generally, statutes which refer to ‘officers’ or ‘officials’ of the United States are construed not to include the President unless there is a specific indication that Congress intended to cover the Chief Executive.” That analysis by its terms does not apply to the obstruction statutes. Several months after Jaworski’s analysis of Nixon, an opinion by Deputy Attorney General Laurence Silberman stated that “[i]t would be strange for Congress to subject the President … to possible criminal prosecutions without naming them explicitly on that basis of such converted issues as those discussed above.” Silberman grounded that conclusion not in a presidential canon informed by Article II but, rather, in the canon that “calls for strict construction of a criminal statute.” So one reason that Jaworski (and Walsh in Iran-Contra) might not have applied the clear statement rule is that there was no such established rule.

Third, I am pretty sure that the legal judgments of Jaworski and the independent counsels under the 1978 act should not be treated as precedents, and certainly not akin to OLC opinions, for purposes of ascertaining the department’s views on the law. The basic reason is that these offices were more independent of the Justice Department than Mueller and did not have authority to interpret the law on behalf of the department. They were not bound as Mueller was by Justice Department views of the law, and their legal interpretations are not practices that any attorney general, as best I can tell, ever officially credited. Past investigators of the president made prosecutorial decisions akin to a U.S. attorney, but their legal decisions were subject to less attorney general scrutiny than even a typical U.S. attorney’s decision.

The Watergate Special Prosecutor’s Office was (like the current Special Counsel’s Office) set up by Justice Department regulation. But the Watergate prosecutor had much more independence from the department than does Mueller. The regulations gave Archibald Cox and then Leon Jaworski “full authority” to make every manner of investigatory and prosecutorial decision. They further specified that the special prosecutor “the greatest degree of independence that is consistent with the Attorney General’s statutory accountability for all matters falling within the jurisdiction of the Department of Justice.” In contrast to the current regulations, the Watergate regulations specified that the attorney general “will not countermand or interfere with the Special Prosecutor’s decisions or actions.” Also in contrast to the current regulations, the special prosecutor had no duty to inform or consult with the attorney general about any of these matters. Jaworski was exercising the power of the Justice Department by delegation from the attorney general, but he was otherwise close to a free agent.

The independent counsel under the Ethics in Government Act was also more independent than Mueller from the Justice Department, but in a different way than the Watergate prosecutor. That office’s jurisdiction was determined by Congress, not the Justice Department (although apparently some independent counsels, like Walsh, had a concurrent appointment by the department). For matters within its jurisdiction, the independent counsel had “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.” The independent counsel had a duty to “comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws,” except to the extent that doing so would “be inconsistent with the purposes” of the act. (It is unclear what this means exactly—would OLC opinions be included in a written policy respecting enforcement of the criminal law, and how broad is the “purposes” exception?) With an exception that did not concern legal decisions made about prosecutions, independent counsels also had no duty to consult with the Justice Department.

I don’t want to make too much of these differences, but I think they matter. The precedential force of past investigations of the president with respect to obstruction of justice is already doubtful, for the two reasons noted above: (1) Only Watergate really established anything that looks like a precedent; and (2) all of the investigations except for Starr’s investigation of Clinton predated Franklin and the 1995 OLC opinion. The third reason is that it is not clear that the views expressed by prosecutors who previously investigated the president should count as reflecting the views of the attorney general and, thus, of the department. This is especially so, for reasons noted above, of the Watergate precedent. The special prosecutor has a kind of canonical status in the public mind and among legal elites. But Jaworski’s independent legal analysis—which predated the presidential clear statement rule—might not have reflected, and might not reflect, the views of the Justice Department.

I suspect that some combination of the reasons above explain why the Mueller report did not mention the past investigations, much less rely on them as precedents contrary to the presidential clear statement rule. Whether the special counsel reached this conclusion on his own, or whether he was directed to reach this conclusion by OLC or the acting attorney general, I do not know. (I have some speculations below.) The important point for now is that Mueller was bound to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” and he determined that this meant following the presidential clear statement rule and not mentioning, must less crediting, any precedents established by past presidential investigations by the Justice Department. This is a remarkable conclusion. But for reasons offered above, it is consistent with both past executive branch practice and OLC opinions, and with the special counsel regulations, which center legal accountability in the attorney general.

IV. The Exception to the Presidential Clear Statement Rule

My critics’ best argument draws an analogy between bribery and obstruction of justice. (Mueller drew this analogy as well, but he made a different argument that no one defends.) For space reasons, I will address only Wittes’s formulation of the argument here.

In an opinion about why the conflict of interest statute did not apply to the vice president, Silberman stated, without additional reasoning, that the conflict of interest statute “did not present a situation like the bribery statute ... where from the nature of the offense charged, no one, however exalted his position, should safely feel that he is above the law.” A decade later, in an opinion interpreting an anti-nepotism statute, Dellinger explained the Silberman line as follows: “Application of [the bribery statute] raises no separation of powers question, let alone a serious one.” Dellinger reasoned that the “Constitution confers no power in the President to receive bribes,” since it “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,” and since “the Constitution expressly authorizes Congress to impeach the President for, inter alia, bribery.”

Wittes argues that obstruction of justice should be treated like bribery for two reasons: (1) Obstruction of justice, like bribery, is an impeachable offense; and (2) the Take Care Clause and presidential oath clauses, which in different ways require the president to abide by the laws and Constitution, imply that “corrupt obstruction of lawful investigations, even if the obstructive acts are otherwise valid exercises of Article II powers, violates the obligation of faithful execution of the law.” Wittes proposes from this analysis the following formulation of the law of the executive branch:

Application of obstruction statutes to the president raises no separation of powers question, let alone a serious one. The Constitution confers no power in the president to obstruct justice; in fact, it specifically requires him to swear to faithfully execute his office and to preserve, protect and defend the Constitution, and it requires him as well to take care that the laws are faithfully executed. Moreover, the Constitution expressly authorizes Congress to impeach the president for high crimes and misdemeanors, which past practice of both the executive branch and the Congress has taken to include obstruction of justice.

Wittes concludes that this is “not different in substance” from what Mueller wrote.

I don’t think this argument is right, and, more importantly, I think it is very different in substance from what Mueller wrote.

First, for reasons explained at length by Blackman, and that I will not repeat here, obstruction of justice is very different from bribery. The Constitution just does not forbid obstruction of justice in the way it does bribery, and obstruction of justice much more than bribery implicates the president’s core Article II powers.

Second, and to my mind more salient, Wittes appears to beg the relevant question when he says that “obstruction of lawful investigations, even if the obstructive acts are otherwise valid exercises of Article II powers, violates the obligation of faithful execution of the law.” The question here is whether and when the obstruction of justice statutes apply to the president. We cannot know what laws (i.e., statutes) the president must abide by, or whether he is failing to carry out his constitutional obligation to enforce these laws, until we know what the statutes require, independent of his general constitutional obligation. One thus cannot insert a prohibition on “obstructive acts” into the constitutional obligation until one knows through some independent means that the obstruction statutes apply to the president.

Third, and all that said, the test that Wittes ends up with seems very close to the one I proposed previously for the proper application of the clear statement rule, namely, that absent a clear congressional statement to the contrary, the obstruction statute does not apply to presidential action except in those cases where it clearly does not burden Article II. This is how I read this statement by Wittes: “My submission similarly is that all truly corrupt obstructions of justice are outside of the president’s Article II power, that there is literally not a single hypothetical that anyone can generate of a truly corrupt interference with a judicial proceeding or criminal probe that is, despite its corruption, a legitimate exercise of presidential power.” And it is also how I read the implication of this challenge: “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?” (All emphasis in the original.)

These statements are hard to assess because Wittes (like Mueller) nowhere tells us what “corrupt intent” means as applied to the president, other than to tell us that the burden of proof for the prosecutor might be high. But the central point is that most of the 10 instances of potential obstruction described by the Mueller report do not come close to what Wittes calls “unambiguously corrupt presidential interference.” Most of them involve exercises of Article II power to remove subordinates or supervise investigations that are not unambiguously corrupt presidential interference. This is easiest to see with Trump’s firing of FBI Director James Comey and his efforts to get officials to state publicly that he was not under investigation.

Remember that we are talking here about how to read the obstruction of justice statutes as applied to the president. On Wittes’s formulation, as soon as an ambiguity arises in whether the president was exercising an Article II power, the obstruction statutes should not apply. In other words, as Dellinger put it, with my emphasis added, “[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,” and “general 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.” Under the clear statement rule, in order to protect core presidential prerogatives, ambiguities and uncertainties in a statute’s application must be resolved in favor of the president, at least absent a clear statement by Congress.

Fourth, and finally, there is another way that Wittes’s analysis is very “different in substance” from the one in the Mueller report. Wittes reads the obstruction statutes to conclude: “Application of obstruction statutes to the president raises no separation of powers question, let alone a serious one.” But this was definitely not the Mueller report’s conclusion. The report does think the obstruction statutes as applied to Trump’s actions raise a separation of powers question. As I explained in my previous post, the special counsel’s reading of the obstruction statutes to (in the report’s words) “impose[] a limitation on the exercise of Article II powers” is why the report had to proceed to a constitutional balancing analysis. Put another way, Wittes reads the obstruction statutes to raise no separation of powers question, but the report argues that the application of the obstruction statutes does raise separation of powers questions, which is why he has to do constitutional balancing. Their analyses and conclusions are very different.

V. Hoary Hypotheticals

A lot of my critics’ arguments focus on the supposedly unacceptable implications of my view. Some of Nixon’s bad acts might not have been crimes. Presidents can lie to juries without committing perjury if they think it serves a foreign policy goal. And the like. This consequence neither surprises nor bothers me nearly as much as my critics.

First, the incredulity over the hoary hypotheticals implicitly assumes that the looming applicability of criminal law is what keeps presidents from committing bad acts. This assumption is misplaced. Much more relevant and salient are norms, public embarrassment and criticism; the professional commitments of executive branch officials; congressional oversight and sanction (including censure and impeachment); and elections. To be sure, Trump is oblivious to norms and public embarrassment, which is one of the reasons he has engaged in such stupid, harmful actions. My point is simply that if I am right that the criminal law does not apply to Article II actions by the president absent a clear statement from Congress, I doubt we will see markedly different actions by presidents. I do think it is important, by the way, that the criminal law applies to presidential subordinates. The fear of criminal law appears to be at least part of what led many executive branch officials not to carry out many of Trump’s demands concerning the investigation.

Second, a lot of the incredulity over hoary hypotheticals is based on the assumption that it is settled that prior presidential investigations established that the obstruction statutes and other criminal laws apply to the president even in the absence a plain statement. As I have explained, that simply isn’t true.

Third, to repeat something I said in my last post: “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.” Putting the point another way: Nothing in my argument prevents Congress from specifying under what conditions the president’s Article II powers should be limited by criminal law. As the reliance by Mueller and my critics on “corrupt intent” without further specification reveals, it is actually quite hard to specify concrete instances in which an Article II action constitutes obstruction of justice, especially in cases of mixed motives. (This is a point Blackman emphasizes in his most recent piece.) Whatever may be true of other statutes, there are many genuinely very hard questions about how to reconcile the obstruction statutes with the president’s core Article II powers and responsibilities. The enormous uncertainty about the “corrupt intent” standard as applied to Article II action is precisely why the clear statement rule demands that Congress specify the application before the statute can be deemed to have these consequences.

VI. Speculation About What Lies Behind Mueller’s Weak Analysis

I end where I began: Why didn’t my critics’ imaginative arguments make their way into the Mueller report? The answer, I think, has to do with the special counsel’s duty under the regulations to consult with the Justice Department about its practices and policies and abide by them, and the regulations’ insistence that the attorney general and not the special counsel has control over governing law. What follows is pure speculation, but it is speculation that makes sense of several odd aspects of the Mueller report.

The regulations contemplate that the special counsel “shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.” I suspect that either OLC or the acting attorney general advised the special counsel that (1) OLC’s position on the nonindictability of the president controlled; (2) the clear statement rule as articulated by OLC controlled; and (3) the Watergate precedent was not relevant, either because it predated the clear statement rule or because it did not (for reasons stated above) reflect the views of the department. As I have explained, I believe that all three of these positions are plausible ones for the department to take.

More speculation: Stuck with the robust plain statement rule, but very much wanting to lay out in the report all of the rich facts uncovered about the president’s behavior in reaction to the Russia investigation, Mueller’s lawyers made the least bad argument they could come up with for the application of the obstruction statutes to all of the president’s behavior. This is the argument that I criticized as weak and that none of my critics defend. This is the only reason I can think of that would have led Mueller’s legal team to make such a poor argument, and to have not even considered some of my critics’ points, especially Wittes’s point about past practice of presidential investigations.

Yet more speculation: The attorney general likely did not, prior to reading the Mueller report, know about the special counsel’s weak argument for defeating the clear statement rule and exposing all of the president’s actions, including Article II actions, to possible criminal violation. If Attorney General Barr had seen this argument, I suspect, he would have done everything in his power to reverse it. Mueller knew this because of Barr’s views, as laid out in his memo as a private citizen.

Final speculation: One reason for Mueller’s decision not to make a traditional prosecutorial decision was that it prevented Barr from having a procedural context in which to exercise his power under the regulations to overrule Mueller’s legal analysis. As I stated in my last post: “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.’”

I don’t know, obviously, if any of this speculation is right. But I cannot think of other reasons why the talented lawyers in the special counsel’s office would include at the center of the legal analysis in Volume II a transparently weak argument—so weak that it has no defenders.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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