What Obstruction Law Applies to the President?

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.