Dowd was disgusted by all of it. Even before Mueller’s report was issued, he dismissed the entire investigation as a “terrible waste of time” and “one of the greatest frauds this country’s ever seen.”157 He said he was shocked that Mueller hadn’t had the backbone to tell his boss, Deputy AG Rod Rosenstein, that “this is nonsense . . . we are being used by a cabal in the FBI to get even.”158 At the very least, the special counsel could have issued an interim report a year earlier, stating that no “collusion” had been found. It would not have prevented Mueller from pursuing his quixotic quest for obstruction of justice, which, in the end, he decided not to decide. It was yet another colossal waste of time.
Mueller’s Flawed Obstruction Theory
Once Mueller found that there had been no unlawful “collusion,” he should have ended his investigation a year earlier. Why? Because obstruction of justice requires proof that a person has a corrupt or improper motive to interfere in a legal proceeding. But where that person has acted lawfully, there is no credible motive to obstruct an investigation into the lawful act. People are not motivated to cover up noncrimes. They have nothing to hide. Yes, it is legally possible to bring an obstruction case without an underlying crime, but it is exceedingly difficult to prove the required motive. For this reason, obstruction prosecutions in the absence of a predicate offense are quite rare.
There is, however, a more compelling reason the special counsel should never have considered obstruction against the president. Mueller’s legal theory was fundamentally and egregiously flawed. In crafting Article II of the Constitution, the Framers granted to the president certain “plenary” powers.159 They are absolute and unconditional. They are also discretionary. That is, the president may exercise them for any reason. Those reasons cannot be questioned, and they are not subject to review by anyone except voters every four years. Such powers include the authority to appoint, remove, and pardon individuals.
The president is also empowered to direct federal investigations and prosecutions under the “take care” clause of the Constitution to see that “the laws be faithfully executed.”160 This is an elemental duty. The president is the nation’s top law enforcement official. To argue that he may not participate in or even direct decisions at the Department of Justice and the FBI is to disempower one of the president’s core constitutional responsibilities. As former Harvard Law School professor Alan Dershowitz observed, “Presidents—from Adams to Jefferson to Lincoln to Roosevelt to Kennedy—played active roles in deciding who to investigate and prosecute.”161
In addition, the “vesting clause” of the Constitution vests all enforcement power in the president.162 This means he can direct, supervise, or influence legal proceedings. He is empowered to decide whether to initiate investigations and prosecutions or halt them, even if he has a personal interest in the outcome. This is appropriately referred to as “prosecutorial discretion,” and the ultimate authority resides in the chief executive.163 This power is accepted as absolute and has long been considered so by federal courts.164 It may be unwise for a president to end an investigation or halt a prosecution. However, that is a political calculation, not a legal one. When a president exercises that power, he is not committing a crime. It is illimitable and not subject to a charge of improper motives or obstruction. It is presumed that he is acting lawfully. His decisions and subjective state of mind are not reviewable. In all of the instances in which Trump exercised these constitutional powers, Mueller had no right to question or investigate the president’s motives. A special counsel, who is an inferior officer in the executive branch, cannot disempower what the Constitution has granted to the president.
To illustrate this, let’s examine the firing of FBI director James Comey. This is what triggered immediate and enduring accusations of an attempt by Trump to obstruct the Bureau’s investigation. Within days a special counsel was appointed. There is no question that Trump was authorized to fire the director under the “appointments clause” of Article II of the Constitution. It was a lawful act. He can appoint and terminate federal officials in the executive branch of government. They report to him and serve at his pleasure. (This principle was affirmed by the Justice Department years before Trump became president when it wrote, “The FBI Director is removable at the will of the President . . . no statute purports to restrict the President’s power to remove the Director.”)165 Exercising this power cannot itself constitute obstruction of justice.
Comey also acknowledged this when, after his firing, he wrote to his colleagues that “a president can fire an FBI Director for any reason, or for no reason at all. [author’s italics]”166 Even if Trump’s motive was improper—and the evidence shows that it was not—it would still not constitute obstruction of justice. Barr explained this during his congressional hearing when he admonished the special counsel for “trying to determine the subjective intent of a facially lawful act.”167 The attorney general was correct. The president’s subjective intent was immaterial. A lawful act performed under constitutional powers cannot, by definition, be an obstructive act. Alan Dershowitz made the same argument when he wrote, “An improper motive cannot convert a lawful act into a crime.”168
Whether we like it or not, presidents make constitutionally authorized decisions, such as the power to appoint, fire, or pardon, for reasons that are not always pure. Sometimes they are driven by self-interest. Dershowitz drew an important comparison with President George H. W. Bush’s pardon of former secretary of defense Caspar Weinberger and other individuals during the Iran-Contra scandal in 1992. That had the effect of ending a troublesome investigation. Though the special counsel at the time claimed it was a “cover-up” of his probe, he did not accuse Bush of obstruction of justice because “the act of pardoning itself was authorized by the Constitution.”169 So, too, is the act of firing an executive branch officer. Motive is irrelevant when executing constitutional duties.
These unfettered powers granted to the president in the Constitution do not contain a limiting clause or a caveat that requires proof that the reason is not self-serving or otherwise improper. History abounds with examples. President Gerald Ford pardoned his disgraced predecessor, Richard Nixon, for the express purpose of halting proceedings that would have led to a criminal trial.170 Ford was clearly interfering in the judicial process, but it was not obstruction of justice because the Constitution gave him that right. Did President Bill Clinton have an improper intent when he pardoned his own brother, Roger Clinton? What about his pardon of fugitive financier Marc Rich in 2001?171 Was it granted because Rich’s ex-wife was a close friend of the president and had contributed generously to the Clintons? The answer to both questions is “Probably,” but under the law the pardons were not obstruction of justice because they were constitutionally lawful acts. A president is allowed to exercise his pardon and firing powers, even if he has a personal stake in the result or if questions about his own conduct are raised. If it were otherwise, an eternal array of special counsels could investigate an endless number of presidential decisions in search of hidden and subjective motives. The chilling effect on the chief executive would be debilitating.
These constitutional principles should have prevented Mueller from an obstruction investigation, but he pursued it anyway. That created for him a serious dilemma. In composing his report, how could he credibly convert Trump’s lawful act under the Constitution into something that would resemble unlawful obstruction? Mueller’s rationale, albeit a weak one, is buried deep in his report on page 333 in an extended discussion entitled “Constitutional Defenses.” Here the special counsel argued that there are no Supreme Court cases that “directly resolved this issue. [author’s italics]”172 He then reasoned that, in the absence thereof, he was perfectly free to reach his own legal denouement. No, he was not.
Notice the use of the word “directly.” That was dexterous sleight of hand. It is true that the nation’s highest court has never specifically and narrowly ruled that an Article II firing by the president
can or cannot constitute obstruction of justice. However, the Supreme Court has twice ruled broadly that general criminal statutes do not apply to the president when he is exercising his constitutional discretionary powers, unless a statute expressly says so.173 Obstruction is a general statute. Nowhere in the collection of obstruction laws does it expressly state that they apply to the president when executing an Article II function or prerogative. Hence, they do not apply to the president. The Supreme Court has referred to this as the “clear statement rule.”174 It means that the president’s constitutionally conferred powers cannot be restricted or nullified by general statutes passed by Congress, such as those defining obstruction of justice, that do not contain a clear statement specifying that they apply to the president.
Understand what Mueller and his team of partisans seem to have done here. They spent numerous pages in their report writing around those adverse Supreme Court decisions. Lawyers are highly adept at creative composition. They revel in the challenge. Mueller and his prosecutors must have spent weeks and months trying to devise ways to bend and twist their report to circumvent those high court decisions, which threatened to ruin their suggestion that Trump might have obstructed justice. It’s no wonder that it took them twenty-two months to conjure up such imaginative legal reasoning. Yet they paid no heed to what the Supreme Court had said nor to the opinion of their own Office of Legal Counsel (OLC) at the DOJ, which had written:
The Supreme Court and this Office have adhered to a plain statement rule: statutes that do not expressly apply to the President must be construed as not applying to the President, where applying the statute to the President would pose a significant question regarding the President’s constitutional prerogatives.175
The correct application of the law meant that Comey’s firing could not be obstruction of justice since the president had been exercising his constitutional prerogative, regardless of his motive.
None of this is to imply that a president can never obstruct justice. He most certainly can if he acts “corruptly” outside his constitutional powers. On that, both Mueller and the president’s lawyers agreed.176 It would clearly be obstruction of justice if, for example, a president were to suborn perjury, intimidate witnesses, fabricate or conceal evidence, destroy subpoenaed documents, lie to the FBI or Congress, or (as Nixon did) pay “hush money to witnesses in a criminal case.”177 All of these actions would be substantially beyond the bounds of a president’s constitutional authority under Article II. However, that was not what Mueller and his team of prosecutors were investigating.
Some have argued that Mueller did not charge the president with obstruction because he was following another settled, but controversial, opinion of the Office of Legal Counsel at the DOJ that was first issued in 1973 and later updated. It provides that “The indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions. [author’s italics]”178 Was that the reason for Mueller’s indecision? Though it is true that his report made reference to the OLC opinion, he never said explicitly that it had prevented him from bringing an obstruction charge.179 Then came his nine-minute news conference on May 29, 2019, which only compounded the confusion. He told the gathered media that his nondecision decision on obstruction had been “informed” by the OLC opinion.180 “Informed” is a wonderfully elastic, vague, and ambiguous word. It can mean just about anything.
If Mueller was insinuating that he could not render a decision because of the OLC opinion, that was not what he told the attorney general and others during a meeting on March 5, 2019. Here is what Barr told senators during his May 1 testimony:
We were frankly surprised that they were not going to reach a decision on obstruction and we asked them a lot about the reasoning behind this. Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying that but for the OLC opinion, he would have found obstruction.181
Barr said there were others in the meeting who had heard Mueller say the same thing—that the OLC opinion had played no role in the special counsel’s decision making or lack thereof. The attorney general repeated that in his news conference the day the special counsel report was released to the public:
We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that was not his position.182
Yet when Mueller stood before television cameras and reporters, he told a strangely different tale. He seemed to argue that he could not have accused the president of obstruction because he had been handcuffed by the OLC opinion. Why, then, had he also informed Barr that a special counsel can abandon the opinion if the facts merit it?183 And why would the OLC opinion have deterred Mueller at all? It had not stopped him from making a decision on “collusion.” It therefore follows that it should not have stopped him from rendering a decision on obstruction. His reasoning made no sense. Equally incomprehensible was his statement that “if we had had confidence that the president clearly did not commit a crime, we would have said so.”184 That was immediately contradicted by his statement “We concluded that we would not reach a determination one way or the other about whether the president committed a crime.”185 Which was it? Law professor Jonathan Turley called Mueller’s reasoning “conflicted and, at points, unintelligible.”186
Above all else, Mueller could have arrived at an obstruction decision without the need to either indict or prosecute. This was what independent counsel Kenneth Starr had done when he investigated President Bill Clinton. In his report, Starr had identified eleven criminal offenses, including obstruction of justice, that had allegedly been committed by Clinton and were supported by the evidence collected.187 Starr knew—as Mueller surely knew—that the OLC opinion says nothing about drawing a legal conclusion that there is, or is not, sufficient evidence to support an obstruction offense. Starr stated that Clinton had lied and obstructed justice:
The Office of Independent Counsel (OIC) hereby submits substantial and credible information that President Clinton obstructed justice . . . the President lied under oath to the grand jury and obstructed justice.188
There was nothing improper about Starr’s legal findings. They did not in any way contravene the OLC opinion. Starr did what he was supposed to do—he found there was a basis for possible criminal charges and said so. Mueller surely knew of the Starr-Clinton precedent since he had been working for the Department of Justice at the time. The special counsel was stunningly mistaken when he asserted at his news conference that the OLC “opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”189 Mueller was obviously alluding to impeachment. However, as Professor Turley observed, “that is not actually what it [the OLC opinion] says.”190 The opinion addresses indictments and prosecutions, not legal conclusions. Mueller was informed of that fact by the attorney general and deputy attorney general.191 Yet he ignored it. Even when he was instructed to reach a conclusion, he refused.
Two days after Mueller’s news conference, Barr reinforced the point when he told CBS News, “He could have reached a conclusion. The [OLC] opinion says you cannot indict a president while he is in office, but he could have reached a decision whether it was criminal activity.”192 In fact, Barr made his own decision “without regard to, and not based on” the OLC opinion, as he specifically stated in a letter announcing that the president had not obstructed justice.193 As for Mueller’s cryptic reference to impeachment, Barr seemed to scold the special counsel: “The Department of Justice doesn’t use our powers of investigating crimes as an adjunct to Congress . . . we are not an extension of Congress’s investigative powers.”194 If impeachment was Mueller’s goal, as it seems to have been, he abused his position and wasted taxpayer resources, not to mention tens of millions of do
llars.
Take a look again at the language Mueller used in his carefully worded conclusion. It is actually a compound sentence conjoining two very separate conclusions. He wrote, “While this report does not conclude that the President committed a crime, it does not exonerate him.” The second half of that sentence is an independent clause that is wholly irrelevant. You can toss it out because prosecutors don’t exonerate. It was a gratuitous remark tagged onto the main conclusion that “this report does not conclude that the President committed a crime.” If Mueller thought he had sufficient evidence that Trump had committed a crime, he could have said so without reservation or limitation. Adherence to the OLC opinion would not have precluded it. He might easily have stated, “This report concludes that there is sufficient evidence to support an obstruction offense against the President.” Such a declaration is neither an indictment nor a prosecution. It simply draws a legal conclusion derived from the evidence. It would conform to the OLC opinion. Any decision to indict or prosecute would then be made by the attorney general. Barr would have been faced with three choices: he could overrule the OLC opinion and proceed against the president, he could defer legal action until Trump leaves office, or he could disagree with Mueller’s conclusion and refuse to indict. But the special counsel didn’t do that.
Mueller was well aware of the OLC opinion when he accepted the position of special counsel. If he thought he was barred from making a decision, why did he agree to take the job in the first place? The answer is obvious: he intended all along to decide the matter of obstruction. But when the evidence did not support it, he invented an excuse to avoid rendering the decision he had been hired to make. As he gathered facts and interviewed witnesses, he realized that evidence of obstruction was legally deficient. The president’s constitutionally authorized decisions were not, by force of law, obstructive. Beyond that, there were plausible and legitimate explanations for Trump’s actions.
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