Published by The Lawfare Institute
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On Dec. 3, the House Intelligence Committee released its impeachment inquiry report detailing President Trump’s conduct regarding Ukraine. One half of the report deals with the president’s obstruction of Congress throughout the inquiry. The committee frames this as a potential basis for another article of impeachment. But the obstructive conduct laid out in the report raises another question too: Does it violate criminal statutes?
The White House refused to cooperate in the inquiry, blocking witness testimony and document turnover. Key individuals who refused to comply with the inquiry include Vice President Mike Pence, Secretary of State Mike Pompeo, Acting White House Chief of Staff Mick Mulvaney, former National Security Adviser John Bolton, Energy Secretary Rick Perry, Acting Director of the Office of Management and Budget Russell Vought, and Rudy Giuliani. Other White House officials who have also refused to testify include National Security Council lawyers John Eisenberg and Michael Ellis; Mulvaney adviser Robert Blair; and Brian McCormack, the associate director for natural resources, energy, and science at the Office of Management and Budget. Additionally, as specified in the report, the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense and the Department of Energy failed to produce any documents in response to “71 specific, individualized requests or demands for records in their possession, custody, or control.”
The refusal to cooperate is a matter of stated policy. On Oct. 8, White House Counsel Pat Cipollone wrote a letter in response to a House subpoena informing the leaders of the inquiry that President Trump and members of his administration would not participate in the inquiry “under any circumstances.” Cipollone argued that the inquiry is unconstitutional and violates due process, and that it is seeking to invalidate the 2016 election and influence the 2020 election.
But witnesses can refuse to comply with a congressional subpoena only if they have a valid privilege protecting their testimony. Cipollone’s letter did not assert any privilege. And without one, the refusal to engage the committee has a small problem: two federal obstruction of justice statutes.
First, 18 U.S.C. § 1505, provides that “[w]hoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress” shall face criminal consequences. Second, 18 U.S.C. § 1512(c)(2) broadly prohibits corruptly obstructing, influencing or impeding any “official proceeding”—defined to include a proceeding before Congress.
By their terms, these statutes seem to cover both the White House’s conduct and the conduct of the witnesses who are not showing up. And the congressional inquiry committees agree that the conduct is obstructive. The House adopted a resolution guiding the impeachment inquiry, which provided that if the president blocked witnesses from testifying or refused to produce documents, “the chair shall have the discretion to impose appropriate remedies, including by denying specific requests by the President or his counsel under these procedures to call or question witnesses.” The House Intelligence Committee then devoted half of its report to detailing the obstructive conduct, listing all the ways in which executive officials refused to comply with the inquiry.
But the refusal to cooperate, in the minds of legislators, seems to be more about a possible additional basis for impeachment—an idea some Democrats have raised—not a matter of criminal law. The House report notes that witness intimidation is a federal crime but does not make this point with respect to the obstruction statutes. Given the text of the two laws in question, it is worth asking why people seem so unafraid of vulnerability under them, even in flouting their apparent terms so openly.
One reason may be that the current Justice Department is most unlikely to contemplate an obstruction case against anyone for stiffing a congressional committee in the context of the impeachment investigation.
But there’s another reason: The statutes are a little less clear than they may seem. Despite the plain reading of the statutes and their seeming application, the White House and the individuals who have refused to testify or produce documents would have potentially powerful defenses against an obstruction charge. Two defenses, in particular, would potentially impede prosecutions for the obstruction of the congressional inquiry—and Cipollone’s letter may provide additional legal cover for officials who have declined to cooperate.
The first defense would be that the obstruction statutes do not apply to the president at all. If this sounds familiar, that’s because the idea that the White House’s conduct might violate the obstruction statutes is contemplated in the Mueller report at length. And on Lawfare, as well, commentators have extensively discussed two aspects of this question.
First, Jack Goldsmith has argued that such application requires a statutory “clear statement” that such statutes apply. The argument comes from a 1995 Office of Legal Counsel (OLC) opinion by Walter Dellinger: “[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” and “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 has relied on the clear statement rule at least four times, and the Supreme Court has cited it in cases where separation of powers was implicated. Construing the obstruction statutes to apply to the president would, under this argument, alter the constitutional separation of powers balance without a clear indication that Congress intended to do so and would violate the interpretive canon that statutes should be construed to avoid constitutional issues.
Mueller took a different view: Responding to the possibility that the clear statement rule might bar prosecution of the president, Mueller argued that the obstruction statutes do not raise separation of powers concerns. He said the Constitution does not authorize the president to engage in obstructive conduct and that doing so would violate the Take Care Clause. In this view, application of the obstruction statutes to presidential action does not infringe on the president’s Article II prerogatives.
In response to Goldsmith, Benjamin Wittes argued first that Goldsmith’s argument would lead to an absurd conclusion: If the clear statement rule applied to the perjury statute, which also doesn’t by its terms apply to the president, the president could lie to a grand jury, which would have “come as a surprise to Bill Clinton.” In fact, Clinton’s defense lawyers never raised the clear statement rule argument.
Wittes also notes that none of the prior special prosecutors in matters that potentially touched presidential obstruction—Leon Jaworski, Lawrence Walsh and Kenneth Starr—apparently thought that the clear statement rule hindered the application of the obstruction statutes to the president, even when the matters concerned the presidents’ Article II powers. Indeed, Wittes writes, “Special Prosecutor Leon Jaworski indicted the president’s top aides for a conspiracy to obstruct justice. He named Nixon as an unindicted co-conspirator in that case.” Wittes acknowledges that two of these investigations occurred before OLC’s 1995 articulation of the clear statement rule, and the prosecutors never wrote a memo specifically addressing this question.
The second issue is whether separation of powers principles are violated when the obstruction statutes are applied to the president when the alleged conduct implicates his Article II functions. Mueller argued that they are not. And his argument rests in part on an interpretation of the Take Care Clause as an affirmative obligation. This interpretation is similar to that of Andrew Kent, Jed Shugerman and Ethan Leib in their article “Faithful Execution and Article II,” in which they argue that this clause imposes a “duty of fidelity” on the president. Mueller’s argument is that an obstructive offense necessarily is also a violation of the faithful execution obligation in the Constitution. Kent, Justin Florence and Ben Berwick further defend Mueller’s analysis on Lawfare, looking at constitutional text, history, precedent and structure that supported this view of the president’s faithful execution duties.
Josh Blackman offers an opposing view, arguing that the Take Care Clause argument was novel and no court had ever condoned anything similar. He further argues that there may be actions that are conducted with corrupt intent but that are still faithful executions of the law. Blackman posits the following hypothetical: “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.” Moreover, there may be actions taken with corrupt intent that “straddle the line between faithful and unfaithful executions of the law.” There is not much precedent to decide this question, and Blackman says that Mueller did not exercise the proper caution before doing so. He concludes by tying his analysis to the clear statement rule and arguing that applying this construction resolves the question.
All of which is a long way of saying that there is continuing debate regarding whether a president can be charged under the obstruction statutes, despite the apparent application of their prohibitions to the facts at hand in the impeachment inquiry. This very ambiguity might inhibit a prosecutor from going after Trump on this point. But this does not answer the question of whether individuals who are not the president—such as Giuliani, Mulvaney, Pompeo and Cipollone—could have a problem.
That brings us to the second defense: corrupt intent. To understand whether the obstruction statutes would apply here, it is useful to revisit some of the debate around Mueller’s analysis. There are three common elements among all of the obstruction statutes: an obstructive act with a nexus between the obstructive act and an official proceeding committed, and a corrupt intent on the part of the perpetrator. This third element presents a difficulty in this case. Trump, the White House counsel and any officials who have refused to testify or produce documents might argue that they did not have the requisite corrupt intent for their conduct to fall under the obstruction statutes. The president might contend he was simply protecting executive prerogatives, and lower officials might argue, given the Cipollone letter, that they were merely honoring the formal position of the executive branch in good faith.
Mueller’s report said that corrupt intent requires the individual to act knowingly or intentionally and with an improper motive. According to a dictionary the report cites, corrupt intent is shown when the individual has “an intent to obtain an ‘improper advantage for [him]self or someone else, inconsistent with official duty and the rights of others.’” Justice Antonin Scalia characterized this definition as the “longstanding and well-accepted meaning” of “corruptly” in United States v. Aguilar. The provision for obtaining an improper advantage for “someone else” would theoretically encompass a senior official who might otherwise argue that his acts did not reach the criminal threshold.
While this might intuitively describe precisely the way the president is acting—along with those who are stiffing Congress to protect Trump—Trump and the others might plausibly argue that the refusal to cooperate was not done with an intent to obtain any improper advantage. They would cite the Cipollone letter’s concerns that the impeachment inquiry is “constitutionally invalid and violates basic due process rights and the separation of powers.”
While others have argued that these arguments lack merit and that, as Gregg Nunziata put it, the “White House has asserted a unilateral right to assess the merits of a Congressional investigation,” in any criminal case, the prosecutor would bear the burden of proving this motive element beyond a reasonable doubt. Whatever the merits of Cipollone’s assertions, they provide cover for Secretary Pompeo and others who are refusing to comply to say that they were doing so because they sided with Cipollone, not because they were attempting to obtain an improper advantage.
In short, the current Justice Department would probably not contemplate prosecuting officials who are refusing to comply with the inquiry at the president’s request. And if the administration changes in 2020 and a different attorney general decides to consider obstruction charges, officials would have considerable defenses. This seems to be why the executive officials in question, along with Giuliani, do not appear concerned about obstruction, notwithstanding the text of the statutes. The bigger threat to them is a contempt citation that a later administration might seek to prosecute. For Trump, the bigger threat is another article of impeachment.
But don’t conclude from this that the apparent scope of the criminal obstruction statutes with respect to congressional investigation is a nullity. The litigation currently taking place over privilege claims and witnesses who have refused cooperation could well serve to clarify that a witness facing a subpoena doesn’t get to just ignore it. If that happens and the law clarifies in Congress’s favor, it will be much harder in the future than it is today to argue that thumbing one’s nose at Congress is a good-faith understanding of the law—rather than a corrupt exercise that violates the statutes. Depending on how the courts handle the Don McGahn and other cases now pending (see the latest in Mazars and Deutsche Bank), the obstruction statutes could spring to life and loom much larger for future witnesses than they do for witnesses now.