p. 159 – 178

“[The White House] counsel has made a categorical argument that ‘the President’s exercise of his constitutional authority here to terminate an FBI Director and to close investigations cannot constitutionally constitute obstruction of justice.'”

“…our analysis led us to conclude that the obstruction-of-justice statutes can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.”

“As a statutory matter , the President’s counsel has argued that a core obstruction-of-justice statute, 18 U.S.C. ยง 1512( c )(2), does not cover the President ‘s actions.”

Special Counsel’s interpretation: “1512( c )(2) applies to all corrupt means of obstructing a proceeding, pending or contemplated including by improper exercises of official power.”

“Courts have not limited Section 1512( c )(2) to conduct that impairs evidence, but instead have read it to cover obstructive acts in any form.”

“Regardless whether Section 1512( c )(2) covers all corrupt acts that obstruct, influence, or impede pending or contemplated proceedings, other statutes would apply to such conduct in pending proceedings, provided that the remaining statutory elements are satisfied.”

“In sum, in light of the breadth of Section 1512( c )(2) and the other obstruction statutes, an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.”

“Although the President has broad authority under Article II, that authority coexists with Congress’s Article I power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions. Usually, those constitutional powers function in harmon , with the President enforcing the criminal laws under Article II to protect against corrupt obstructive acts. But when the President’s official actions come into conflict with the prohibitions in the obstruction statutes, any constitutional tension is reconciled through separation -of-powers analysis.”

“The President’s counsel has argued that ‘the President’s exercise of his constitutional authority… to terminate an FBI Director and to close investigations… cannot constitutionally constitute obstruction of justice.’ Applying the Court’s framework for analysis, we concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice. The limited effect on presidential power that results from that restriction would not impermissibly undermine the President’s ability to perform his Article II functions.”

“…applying obstruction-of-justice statutes to presidential conduct that does not involve the President’s conduct of office-such as influencing the testimony of witnesses-is constitutionally unproblematic.”

“The President’s action in curtailing criminal investigations or prosecutions, or discharging law enforcement officials, raises different questions.”

“The direct effect on the President’s freedom of action would correspondingly be a limited one. A preclusion of ‘corrupt’ official action is not a major intrusion on Article II powers. For example, the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability , or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such personal purposes furthers, rather than hinders, the impartial and even handed administration of the law. And the Constitution does not mandate that the President have unfettered authority to direct investigations or prosecutions , with no limits whatsoever, in order to carry out his Article II functions.”

“While the President’s removal power is an important means of ensuring that officers faithfully execute the law, Congress has a recognized authority to place certain limits on removal.”

In terms of a president’s ability to perform Article II functions being undermined, “A corrupt purpose prohibition… would not undermine the President’ s ability to perform his Article II functions.”

“Accordingly, because the separation-of-powers question is ‘whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty,’…a restriction on removing an inferior officer for a corrupt reason-a reason grounded in achieving personal rather than official ends-does not seriously hinder the President’s performance of his duties. The President retains broad latitude to supervise investigations and remove officials, circumscribed in this context only by the requirement that he not act for corrupt personal purposes.”

“Where a law imposes a burden on the President’s performance of Article II functions, separation-of -powers analysis considers whether the statutory measure ‘is justified by an overriding need to promote objectives within the constitutional authority of Congress.’ … Here, Congress enacted the obstruction-of -justice statutes to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials. Those objectives are within Congress ‘s authority and serve strong governmental interests.”

“Congress has Article I authority to define generally applicable criminal law and apply it to all persons-including the President.”

“In Nixon, the Court rejected the President’s claim of absolute executive privilege because ‘the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.’ As Nixon illustrates, the need to safeguard judicial integrity is a compelling constitutional interest.”

“In the case of the obstruction-of-justice statutes, our assessment of the weighing of interests leads us to conclude that Congress has the authority to impose the limited restrictions contained in those statutes on the President ‘s official conduct to protect the integrity of important functions of other branches of government.”

“A general ban on corrupt action doe s not unduly intrude on the President ‘s responsibility to ‘take Care that the Laws be faithfully executed.’ To the contrary,t he concept of ‘faithful execution’connotes the use of power in the interest of the public, not in the office holder’s personal interests.”

“And immunizing the President from the generally applicable criminal prohibition against corrupt obstruction of official proceedings would seriously impair Congress’s power to enact laws ‘to promote objectives within [its] constitutional authority,’ Administrator of General Services, protecting the integrity of its own proceedings and the proceedings of Article III courts and grand juries.”

“Accordingly, based on the analysis above, we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.”

Leave a Reply

Your email address will not be published. Required fields are marked *