At Lawfare, Josh Blackman has an interesting analysis of the federal obstruction of justice statute as it relates to the Mueller report.  I think we have the same basic approach and conclusions although my analysis is a little different.

In this brief post I won’t say anything specific about the Mueller report or the current President.  Rather, my goal is to sketch an outline of the relationship between the statute and the constitutional office of the President.  There are, I think, two basic points.

(1) As a general matter of the obstruction of justice statute applies to the President.    It is written broadly to apply to everyone.  The U.S. Constitution does not create a presidency that is above the law (in fact, the original design was a President personally constrained by law, in contrast to the English monarch).  So there is no general constitutional problem with laws applying to the President.  Moreover, specifically on the obstruction issue, the President has the duty to take care that the laws be faithfully executed (Art. II, Sec. 3).  A statutory obligation not to interfere with due enforcement of law parallels the President’s constitutional obligation.

As a result, the President violates the obstruction statute by, for example, destroying or hiding evidence, lying or directing others to lie to investigators, and similar actions.  Whether the President can be prosecuted for these actions while in office is a separate question.  But as to violations, the President seems no more above the law with respect to obstruction than he is above other laws such as those against murder, bribery, etc.  Nothing in the Constitution’s text or background suggests otherwise.

(2) However, the President is the chief law enforcement officer of the United States.  Article II, Section 1 vests the President with “the executive Power,” and whatever else executive power may mean, its core meaning embraces law execution.  While federal law execution is typically done by presidential agents in the Department of Justice, those agents act as extensions of the President and in the service of the President’s executive power.  (Whether Congress can insulate some law enforcement from the President’s complete oversight is a separate question; my view is that it cannot, under the Constitution’s original meaning, for the reasons stated by Justice Scalia’s dissent in Morrison v. Olson.  But there is currently no statute of the type that was at issue in Morrison).

A core component of law enforcement power is the power of prosecutorial discretion, or the power not to pursue an investigation or prosecution.  This power can be exercised on at least three grounds: (1) that there is not enough evidence of a violation; (2) that the violation was inadvertent, technical, or otherwise undeserving of punishment; or (3) that the prosecution would be detrimental to the public interest.  (There may be others but these are the important ones for the present discussion).

Suppose, for example, that the Secretary of State is alleged to have mishandled classified information in violation of federal law.  The President might nonetheless decide not to pursue an investigation or prosecution based on a conclusion that (1) the Secretary did not actually mishandle classified information; (2) the Secretary did mishandle classified information but it was an accidental, incidental violation that didn’t cause material harm; or (3) the Secretary did mishandle classified information but the investigation/prosecution would damage the national interest by, for example, threatening national security or resulting in undue political divisiveness.  In any of these situations the President, as the chief law enforcement officer, could direct that investigations and prosecutions be discontinued (and could fire any agents who disagreed).

In blocking the prosecution of the hypothetical Secretary, the President is not obstructing justice.  Rather, the administration of justice (that is, the exercise of the executive power of law enforcement) includes the power to decline to prosecute.  (If it were otherwise, prosecutors would routinely be engaging in obstruction of justice.)  The obstruction of justice statute, drafted against the background of the traditional power of prosecutorial discretion and the President’s constitutional role of chief law enforcement officer, surely does not mean otherwise.

Of course, prosecutors (including the chief prosecutor, the President), might fail to investigate or prosecute for inappropriate reasons.  If a prosecutor takes a bribe in return for halting a prosecution, that is a wrongful act.  If a prosecutor fails to bring a prosecution solely because it would implicate family or friends (or himself), that is a wrongful act.  Prosecutorial discretion is not a power to halt prosecution for any reason; it is the power to halt prosecution in the interests of justice, for preservation of prosecutorial resources, or to prevent broader harms to the public interest.

But the range of reasons for exercising prosecutorial discretion leave prosecutors (including the President) with very broad authority to limit or discontinue investigations and prosecutions.  Absent proof of a bribe or some other direct evidence of wrongful motive, a prosecutor will typically be able plausibly to assert an appropriate ground for the exercise of discretion.  Thus other than in a very unusual case, a prosecutor’s decision not to pursue an allegation (and to direct subordinates not to do so) isn’t an obstruction of justice; it’s the ordinary course of law enforcement.  And the fact that we might disagree with the prosecutor’s decision doesn’t make it otherwise.

A final thought: one might say that the matter is different if the investigation/prosecution is of the President himself or his close associates.  But I do not see a constitutional basis for this distinction.  The President holds the executive power with respect to all prosecutions, including of himself and his associates, while he is in office.  The President might choose to recuse himself, but that does not appear to be a constitutional obligation.  And the President might easily conclude that such a prosecution should be discontinued for appropriate reasons (including, for example, that the alleged offense did not occur).  This does not mean the President is above the law.  The President’s decision not to pursue an allegation is not binding on the next President.  And it is not binding on Congress; if Congress concludes that the President has misused his constitutional authority, Congress may pursue impeachment.

In sum, the obstruction of justice statute constrains the President in some ways.  But it does not prevent the President from using the constitutional power of prosecutorial discretion to limit or discontinue investigations and prosecutions.  Such actions are part of the President’s executive power – constrained not by statute but by Congress’ power of impeachment and the electorate’s power to choose a different chief executive.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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