Thursday, April 18, 2019

Mueller Affirms that President is Not Above the Law, Even for Official Actions

Among its many findings and conclusions, Special Counsel Robert Mueller's report concluded that the Constitution does not prohibit the application of federal obstruction-of-justice laws to the president, even when the president is executing Article II authorities (by terminating FBI Director Comey or by closing an investigation (as an act of prosecutorial discretion)).

In other words: The president is not above the law, or at least this kind of law, simply by virtue of acting as the president.

The conclusion is at odds with claims in a June 23, 2017, letter from President Trump's personal attorney to the the Special Counsel's Office.

The report does not make "a traditional prosecutorial judgment," however, citing "difficult issues that would need to be resolved." These "difficult issues" probably include the hotly disputed question whether a sitting president can be prosecuted. If so, the report may provide an at-least-theoretical path for post-presidential prosecution of Trump.

Using separation-of-powers analysis, Mueller's report, vol. 2, starting at page 168, balances (1) the effect of obstruction-of-justice statutes on the president's ability to perform his Article II responsibilities, (2) whether the obstruction-of-justice statutes are justified by "an overriding need to promote objectives within the constitutional authority of Congress," and (3) "whether the separation-of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article II functions."

As to (1), the report says that obstruction-of-justice statutes applied to the president won't "seriously hinder the President's performance of his duties." That's because these statutes "do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct only when it is taken with the 'corrupt' intent to obstruct justice." "The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests."

As to (2), the report says that Congress acts well within its powers when it outlaws obstruction of justice in order "to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials."

As to (3), the report says that "[a] general ban on corrupt action does not unduly intrude on the President's responsibility to 'take Care that the Laws be faithfully executed," because "the concept of 'faithful execution' connotes the use of power in the interest of the public, not in the office holder's personal interests."

In sum, contrary to the position taken by the President's counsel, we conclude that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction of justice statutes would not impermissibly burden the President's performance of his Article II functions to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person--including the President--accords with the fundamental principle of our government that "[n]o [person] in this country is so high that he is above the law.

https://lawprofessors.typepad.com/conlaw/2019/04/mueller-affirms-that-president-is-not-above-the-law-even-for-official-actions.html

Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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