I had not intended to write anything specific about the Mueller investigation beyond my general sketch of the constitutional aspects of the President and obstruction of justice.  But I think some important commentary is misunderstanding – or glossing over – a fundamental point about the President’s role (e.g., here from Quinta Jurecic at Lawfare).  So here are some specifics.

It is not sufficient to say that a President’s attempts to influence (or “interfere with”) an investigation or prosecution amount to obstruction of justice.  This is the tone of a good bit of commentary regarding the current President: that is, that the only substantial question in the case of the Mueller report is whether the President in fact tried to influence investigations or prosecutions.  But that is entirely the wrong way to look at it.  The key question is whether the President failed to act in his understanding of the public interest in influencing the investigations or prosecutions.

To sum up what I wrote before, the President is the nation’s chief prosecutor, by Article II, Section 1 of the Constitution.  Other federal prosecutors and investigators are his agents and instruments as a constitutional matter, although the executive branch may choose to impose some administrative separation.  (Again, I leave aside the question whether Congress can alter that arrangement by statute, per Morrison v. Olson, because Congress has not done so here).  That means that when the President “influences” an investigation or prosecution, he acts in his role as chief prosecutor.

That does make him beyond the obstruction of justice statutes.  The President has a constitutional duty of faithful execution of his office and a constitutional duty to take care that the laws are faithfully executed.  I read this language to mean that he can indeed obstruct justice, within the meaning of the statutes, when he acts against his duty of faithful execution.  Thus when a President takes bribes, destroys evidence or threatens witnesses, we may be confident he is acting against the public interest and thus contrary to his duty of faithful execution.

But it is an entirely different matter when the President seeks to influence or direct – or even discontinue – an investigation or prosecution in his role as chief prosecutor.  There are many reasons a prosecutor might do so in the public interest.  Making that decision is the essence of prosecutorial discretion.

As a result, the fact (if it is a fact) that the President sought to influence or discontinue investigations or prosecutions is not, standing alone, evidence of obstruction of justice.  Without more, it is merely evidence that he exercised his role as chief prosecutor to supervise prosecutions (prosecutions mostly left to his subordinates, but nonetheless subject to his constitutional oversight).  There needs also to be evidence that in doing so he was not acting in what he believed to be the public interest.  And absent bribe-taking, evidence destruction or the like, it is unlikely that such a case can be made.

Consider, for example, one of the claims against President Trump: that he asked then-FBI Director Comey to go easy on Michael Flynn in the prosecution for lying to the FBI.  As chief prosecutor, the President had constitutional authority over the Flynn matter.  Asking (or even ordering) Comey to go easy on Flynn is simply part of that authority.  The President could have ordered Comey to shut down the prosecution altogether, and fired him if he refused.  (For that matter, the President could have ended the whole matter by pardoning Flynn).  The idea that the much lesser act of suggesting leniency amounts to obstruction of justice misunderstands the President’s role and authority.

Of course, if the President asked Comey to go easy on Flynn for reasons not in the public interest, that would be a different matter.  But there’s no evidence of this.  It’s entirely plausible that the President thought Flynn’s supposed wrongdoing was debatable or inconsequential and that Flynn’s previous service should count in his favor.  That would be sufficient to support a request for leniency.

The same analysis applies to Mueller’s investigation of Russian collusion.  As a constitutional matter the President had authority over it.  As chief prosecutor he could decide to influence it or discontinue it (or to dismiss Mueller and find a replacement).  The President chose largely to allow Mueller to proceed independently and to cooperate with him.  But the President could decide that the investigation was not in the public interest or that Mueller was not the right man for the job. Again, this would not be obstruction of justice; it would be acting in his constitutional role – so long as the President understood himself to be acting in the public interest.

To be sure, it’s possible that the President did not believe himself to be acting in the public interest to the extent he sought to influence or curtail Mueller’s investigation.  (I leave aside factual questions of whether such attempts occurred).  Such a conclusion is somewhat more plausible than in the case of the Flynn prosecution, because the investigation potentially implicated the President himself.  But that is hardly decisive.  Especially because Mueller ultimately could not demonstrate any collusion, it’s very likely that the President considered the investigation a pointless hindrance to the performance of his official duties.  The question is not whether the President acted in ways that benefited himself; the question is whether he acted in ways he believed harmed the public interest.  It is only the latter that would take the case from the constitutional exercise of prosecutorial discretion to the violation of the duty of faithful execution.

I don’t think any of this analysis is inconsistent with what the Mueller report actually says (I confess to not having read all of it), although it may be contrary to some of its implications.  The report emphasizes that the question is whether the President acted “corruptly” or contrary to his duty of faithful execution.  I understand that to be parallel to my assessment.  But that would seem to require more proof of a bad motive than the report supplies.  The President’s disagreement with the investigation is not evidence of a corrupt motive; it’s evidence that he understood the public interest differently from his critics.

Two final points:  First, the Mueller report argues that its assessment of how the obstruction statutes interact with the president’s constitutional powers should not unduly chill the exercise of the President’s Article II powers.  I agree.  But only if the President’s actions to direct prosecutions and investigations (including of himself) are not assumed to be done from corrupt motives.  The burden should be on those claiming wrongdoing to prove it.

And second: The likely response to my assessment is that it puts the President in charge of investigating himself and thus effectively insulates him from investigation.  To that there are in turn two responses.  One is that it is the Constitution’s design, even if not an ideal one.  The second is Justice Scalia’s response in his Morrison dissent.  The President faces political constraints.  It is no accident that President Trump let the Mueller investigation proceed largely (if not entirely) unchecked despite his disagreement with it.  And in any event, Congress has the final say by invoking (or not invoking) the impeachment process.  That is the Constitution’s solution.

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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