A Constitutional Recap of the Mueller Report
This episode sheds constitutional light on the Mueller report, focusing on the question of obstruction. We explore what Special Counsel Robert Mueller did and did not conclude about obstruction, explain the “corrupt intent” requirement for an obstruction charge, and grapple with the constitutional question as to whether the president can commit obstruction. Our guests also address the question: in the aftermath of the Mueller report, what should Congress do, and what are the lessons for future Attorneys General in similar situations? Mary McCord, senior litigator at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, and Josh Blackman, associate professor of law at the South Texas College of Law in Houston, join host Jeffrey Rosen.
Mary McCord is senior litigator at the Institute for Constitutional Advocacy and Protection and a Visiting Professor of Law at Georgetown University Law Center. McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017, and also worked for nearly twenty years at the U.S. Attorney’s Office for the District of Columbia.
Josh Blackman is an associate professor of law at the South Texas College of Law in Houston who specializes in constitutional law. He is the author of two books on the Affordable Care Act and has twice testified before the House Judiciary Committee on executive power and the Constitution. He is an adjunct scholar at the Cato Institute, the founder and president of the Harlan Institute, and blogs at JoshBlackman.com.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Obstruction of justice statute (18 U.S. Code Chapter 73)
- The Mueller report
- “A Sitting President’s Amenability to Indictment and Criminal Prosecution” - Office of Legal Counsel guidelines
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Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President, and CEO of the National Constitution Center. Welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress, to increase awareness and understanding of the Constitution among the American people.
On today's episode, we shed needed constitutional light on the Mueller Report. We focus mainly on the question of obstruction of justice. Does the special counsel's findings establish obstruction? Can the president be guilty of obstruction? And what are the statutory and constitutional defenses?
Joining us, to unpack these crucial questions, are two of America's constitutional scholars, experts on obstruction of justice, and the Constitution, and friends of the We the People Podcast.
Mary McCord is Senior Litigator at the Institute for Constitutional Advocacy and Protection, and a visiting Professor of Law at Georgetown University Law Center. She was Acting Assistant Attorney General for National Security at the US Department of Justice from 2016 to 2017, and also worked at the US Attorney's Office for the District of Columbia.
Mary, thank you so much for joining.
Mary McCord: [00:01:14] Thank you. It's great to be here.
Jeffrey Rosen: [00:01:15] And Josh Blackman is an Associate Professor of Law at the South Texas College of Law in Houston. He is author of two critically acclaimed books on Obamacare and has twice testified before the House Judiciary Committee on executive power in the Constitution. He is an adjunct scholar at the Cato Institute, the founder and President of the Harlan Institute, and blogs at joshblackman.com.
Josh, it is great to have you back on the show.
Josh Blackman: [00:01:39] It's great to be back, Jeff. Thank you.
Jeffrey Rosen: [00:01:41] Mary, let's dive in with the question of what the Mueller Report says about obstruction of justice. There are a bunch of different alleged incidents.
Take us through what the legal elements of obstruction are, what state of mind you have to prove in order to establish it, and maybe choose one or two examples from the Mueller Report, and describe what Mueller did and didn't conclude about obstruction.
Mary McCord: [00:02:07] Sure. So, obstruction of justice, there are a number of different statutes in the federal criminal code that apply to different types of obstructive conduct. From tampering with witnesses, destroying documents, and other direct influences on documentary evidence and witnesses.
Then there are more general catch-all provisions that apply to other types of obstructive conduct that interferes with the due administration of justice.
But in common to all of these statutes, are really three elements. One is that there is an obstructive act. This is something that is done by the person who seeks to obstruct, that could have as it's result, an actual impact on the administration of justice.
Second is, a nexus between this obstructive act and an actual effect on a preceding, either an actual ongoing preceding or a contemplated and expected preceding.
By nexus, I mean a link. The Supreme Court has interpreted this somewhat narrowly, to mean that an impact, an effect, an obstructive effect on the preceding, is something that would be a natural and probable consequence of the obstructive act. So, it can't be so attenuated, for example, that you really can't draw that link.
And then the third thing, importantly, and goes directly to your question is, it must be done with corrupt intent. That means wrongful intent, knowingly wrongful intent. Intent to obstruct, not by accident.
And so, this comes into play a lot, and I'm sure we'll get to this later in the podcast, when you're talking about the president exercising authorities that are granted to him by the Constitution that he could do lawfully, such as fire the FBI Director, might look very different when they're done with this corrupt intent to actually obstruct a preceding.
And without judging whether that's established in this report or not, as just a way to show how it is possible, at least under the theories advocated by the Mueller Report, to have there be an obstructive act, an obstruction of justice even when undertaking something that's within your authority to do.
What you couldn't have is someone taking a lawful act, doing a lawful act that ends up having the effect of obstructing justice, even when there was no intent for it to do so, no corrupt intent. It just sort of happened, but it wasn't the plan of the person who engaged in the act.
In the Mueller Report, the special counsel look at 10 different event scenarios, first set forth the facts and applied the analysis to these 10 different event scenarios. Those start with the conduct of the president toward talking with Director Comey about maybe looking the other way, and not pursuing any kind of investigation or charges against Michael Flynn.
They include different scenarios of the president's termination of Comey, his efforts to get the Attorney General, Jeff Sessions, who had recused himself from the Russian investigation, the president's efforts to get Jeff Sessions to un-recuse himself, in order to protect the president, and use his many different methods of doing this.
They go through efforts of the president to influence statements made to the public and to the press, with respect to the Trump Tower meeting in June of 2016.
And finally, well I shouldn't say finally because there's 10 of these. Through efforts to have Don McGahn denied that the president had ordered Don McGahn to have the special counsel removed.
And then, finally, his conduct toward people like Michael Flynn, Paul Manafort, Michael Cohen, and someone else who is redacted from this report because of an ongoing investigation.
They span a great variety of scenarios, but almost all related to his efforts to try to remove the special counsel, have the attorney general remove the special counsel, or take control of the Russian investigation, and have some sort of impact, obstructive impact on the Russian investigation.
For each one of these, I will say, there is at least one area, and this is the area with preventing disclosure of real factual evidence about the Trump Tower meeting. This is the only area that I saw where the special counsel really does seem to suggest the evidence would be insufficient to prove all three of those problems that I mentioned, obstructive act, nexus to a preceding or anticipated preceding, and corrupt intent.
That's primarily because the president was not suggesting, according to the facts and every time I'm stating something, I'm stating the facts that are in this report. According to the facts from this report, the president's conduct there was not directed toward preventing the information about the meeting to get to Congress. It was reported to Mr. Mueller. It was about preventing them for getting out to the American people through the press.
And so, I think the Mueller chain rightly said, “Well, you can't obstruct the press. That's not a crime.” And so, there wouldn't be sufficient evidence there. For all the other scenarios, the special counsel will indicate with respect to each of those elements either that there was some evidence, evidence, or substantial evidence, and a few other descriptive terms, with respect to each element.
And so, the reader can kind of get a pretty good sense when reading the report about which of the particular scenarios the Mueller team thought were most likely to actually meet the element of obstruction of justice.
One in particular that stands out is, the efforts to have Don McGahn, the former White House Counsel, deny that the president had ordered him to have the special counsel removed. That's one that there's substantial evidence, according to the Mueller Report, of each of the three elements.
Jeffrey Rosen: [00:08:51] So, Josh lets set aside the constitutional defenses for a moment. I just want to ask this basic question. Take the example that Mary ended with, the president asking Don McGahn to deny that the president had asked him to remove his special counsel.
Just running through the elements, had he fired the special counsel that would have had an obstructive effect on an ongoing or contemplated preceding, there was a nexus between the act and the contemplated preceding. What is the non-corrupt intent that could be alleged?
The defenders of the president have noted a desire to avoid the fact that the investigation would take up a lot of his time or maybe to focus on foreign policy and avoid embarrassment.
If this were an ordinary defendant and not the president, would those two alternative explanations count as non-corrupt intent or is the mere desire to interfere with the investigation by attempting to fire the Special Prosecutor, enough in an ordinary obstruction investigation to establish corrupt intent?
Josh Blackman: [00:09:54] Well, thanks again for having me, Jeff. Let's pretend this is not President Trump. Let's pretend its Governor Trump. And Governor Trump wanted to fire his Attorney General, the State Attorney General he appointed. And he asked his deputy to perhaps fire him or to have them removed, and the deputy said, “I refuse to do it. If you make me do this, I'll resign.”
And then, if the governor had said, “Okay, fine. Now I need you to lie about what I told you to do.” I think in the normal course of things, that would probably be an obstruction of justice, a query whether Trump was asking his advice-giving an order. I think there's a little bit of fact ambiguity here, but we'll just assume it for the moment.
Okay, now let's substitute Governor Trump for President Trump, and I think that the analysis changes a bit. The Constitution gives one person and one person alone certain powers. Jeff, if I give you a pardon, it has no effect. If I signed a treaty, it has no effect. If I nominate a judge, lord help us, it has no effect.
The president does, by virtue of his office, I think he has certain privileges that come along with this. One of these derives from the Take Care Clause, which says the president must take care that the laws are faithfully executed.
This is not the president's personal duty. This is a responsibility to ensure those below him are faithfully executing the laws of the land. This provision has been derived to give the present supervisory powers, to supervise the executive branch.
The question then becomes, does the presidents powers to supervise the executive branch come from the Constitution? If they do, then a mere statute cannot override them.
This is probably bleeding into your next question, but I'll jump the gun just a tad. Robert Mueller suggested that if the president acts with a corrupt intent, then that's an action the Constitution does not give him the power to take, that is the requirement to faithfully execute the laws is inconsistent with a corrupt intent.
That might be true. It might not be. I don't know. That's a theory of constitutional law that no court has ever addressed. But I think the more simple question, is that Mueller hasn't established why the obstruction statute would apply to the president in the first place.
I'll start with the simple principle, called the clear statement rule. There's an aspect of executive branch practice and court, judicial practice, that unless the statute expressively applies to the president, the courts simple assume Congress didn't intend to restrict the president's power, unless context indicates otherwise.
Applying the obstruction statute to the president raises a number of constitutional questions, which Mueller, I don't think gave the attention they deserve. Specifically, how do you reconcile the president's constitutional duty to supervise executive branch, with the sort of actions you've taken about instructing his subordinates?
Does a mere corrupt intent mean that the president is now disempowered from taking that action? Maybe yes. Maybe no. No court has ever addressed this. I think these are very tough constitutional questions to grapple with.
Jeffrey Rosen: [00:13:11] I do want to delve in a very important argument you've just made, that the obstruction statute may not apply to the president.
Before we do that, I do want to take another beat on the factual question. Mary, Josh said that if President Trump had been Governor Trump, he thinks that this might indeed have been a relatively easy case of obstruction.
I just want to see whether or not you agree about that? If President Trump tried get McGahn to fire the special counsel because he was afraid that the counsel's investigation would embarrass him, or would take up his time, or even would make him look bad in the eyes of Russia, would that qualify as corrupt intent under ordinary obstruction statutes, or is there an alternative non-corrupt motive that he could invoke in his defense?
Mary McCord: [00:14:02] If the question is whether even though his intent is to obstruct an ongoing investigation - because, of course, at the time, we're talking about his efforts to have Don McGahn fire the special counsel, and then his efforts to have Don McGahn lie about firing the special counsel to the special counsel - there's no question, or seems to be little question, that those were efforts to obstruct that investigation.
And so, if the question is, is there some sort of higher intent that even if you're obstructing, but if you're obstructing for some higher-purpose, would that make it be okay?
I'm not aware of any case, certainly that supports that. I suppose in an extreme example, you would always have the defense of duress, like I was choosing between two evils. Some terrible war was going to result if I didn't thwart the special counsel investigation, and so I had to pick between two bad options. Therefore, I went with obstruction.
I could imagine that's something that a person could litigate in a very extreme example. I don't think any of the hypotheticals you just suggested, about being concerned that this was going to interfere with his credibility on the world stage, his ability to conduct foreign policy, his ability to govern domestically and be respected. None of those, I think, would rise to that level of duress that would provide a defense to the actual corrupted intent to obstruct the preceding.
Jeffrey Rosen: [00:15:39] Just to establish where we are at this point, Josh, do you agree with Mary, that if it were Governor Trump rather than President Trump, there would be a strong case for obstruction of justice, when it came to the attempted firing of the special counsel through Don McGahn? And is it your position that the reason the president shouldn't be impeached and shouldn't be indicted after leaving office, is because the obstruction statutes don't apply to the president in the exercise of his Article II duties? To what degree does this turn on our accepting your position, which is that of the attorney general, in rejecting the constitutional analysis of the special counsel who came to the opposite conclusion?
Josh Blackman: [00:16:17] Well, Jeff, there were several parts of that question. I'll try to take them one at a time. First, is there enough to charge Governor Trump, based on the evidence in the Mueller Report? Probably.
Is there enough to convict? I think I would be very careful to determine whether in fact the president was asking for advice, like, “Can I fire him?” Or was this an order to fire him?
I think lots of presidents ask their White House Counsels to do really stupid things all the time. Right? I think lots of governors ask their deputies to do really stupid things all the time. It's very often the case that the deputy talks them off the ledge and says, “No, this is stupid.”
If we were to start criminalizing every instance where a government official wants to do something stupid and is talked out of it, I think that would have a serious chilling effect on government. But I'll stipulate to the fact that I think, if the facts are exactly as he suggests, then I think this criminal act could lead to an indictment. I don't know about a conviction, but at least could lead to an indictment after the fact.
Okay. So, now the next part of your question, asks then about the constitutional element. I think we need to think very carefully about the president's defenses. The president has certain defenses that no one else has in the world. Specifically, he has powers over foreign policy and powers over the supervision of the executive branch.
I want to focus on a different obstructive incident, not the McGahn one, but the initial decision to fire James Comey. Shortly after Comey was fired, the FBI Director, the White House released some statements saying that the FBI investigation into his campaign was putting a cloud over his administration, and was hampering his ability to engage in foreign affairs with Russia and other countries.
Even when Trump was interviewed on various affairs, various interviews, he said, “This FBI investigation is hampering my ability to govern foreign policy.” I can give you incident after incident where the president is trying to talk to foreign leaders, and all the press wants to talk about is Russia, and inclusion, everything else.
I think there is an argument, that if the president determines that one the reasons why he wants to fire Comey is to improve his foreign affairs, that's one justification. Let's say he has another justification because he doesn't want special counsel to go after his own people that might be corrupt.
What do we do when you have mixed motives? You have one corrupt intent and one intent that's compelled by the Constitution. We don't have any case law telling us how to handle mixed motives for constitutional defense, in the executive power context. That's a fairly novel scheme.
I would like Mueller to at least address those points, which is why I think it's enough to make the allegation. It's not very difficult to indict. It's a fairly low bar to indict someone. But the conviction, I don't think can be appropriate in this case, assuming the president is now out of office. Assuming the statute of limitation doesn't run.
Jeffrey Rosen: [00:19:19] Mary, did the Attorney General, William Barr say in his March 24th letter to Congress, that his conclusion that the charges did not rise to the level of indictable offenses was not reliant on his theory that the president was immune from the obstruction statutes? And to what degree does the president's defense hinge on his alleged immunity from the obstruction statute?
Mary McCord: [00:19:48] In his four-page letter, Attorney General Barr does not really address the statutory or constitutional defenses that he had put in his 19-page unsolicited letter to the deputy attorney general, who was at that time the Acting Attorney General Rod Rosenstein, from the previous year, before he became the attorney general.
He instead, basically in brief form because it's a short letter, said that he along with Rod Rosenstein had been involved, of course, in supervising the investigation since very close to its inception and certainly since the special counsel was appointed because it was Rod Rosenstein who appointed him. That he and Rod had concluded that the evidence was not sufficient to establish each of the elements beyond a reasonable doubt.
In this press conference last Thursday morning, Mr. Barr claimed that although he disagreed with Mr. Mueller on some of the legal theories, and I think partly that is a reference to his own theories about whether statutorily or as a matter of constitutional law the president could be indicted or found guilty of a crime of obstruction of justice. But Attorney General Barr said at that press conference that even though he disagreed with Mueller on some of those points, he had made his conclusion based on accepting those legal theories and applying the three elements to the facts, and found that they were insufficient.
Jeffrey Rosen: [00:21:30] Josh, is that a surprising conclusion, given your opposite conclusion, that the facts at least for some of the elements did arguably rise to the level of obstruction, at least enough for indictment?
How do you imagine that the attorney general on the facts reached the opposite conclusion?
Josh Blackman: [00:21:48] It's difficult for me to comment on Barr's justification. I watched the same speech that Mary did, and then I read the Mueller Report. In a number of instances, the evidence did seem to suggest that, where there's a Governor Trump, an indictment would be proper.
I really don't know how Barr reached the conclusions he did. What I will offer is that, prosecutorial discretion is something that's very specific.
There may have been other factors beyond the constitutional defenses they raised, that entered into Mueller's thinking. But we don't have a full accounting of his thinking. He will testify before Congress, and maybe he will give some more insights into his approach.
I think at a minimum, Mueller should, if he disagrees with ... I'm sorry. Barr should, if he disagrees with Mueller's theory, should establish DOJ policy for the future. Maybe ask OLC, the office of legal counsel for an opinion stating that the obstruction statute can apply to the president. That would prevent these sorts of things from going forward in the future.
But based on the facts presented in the Mueller Report, and putting aside the constitutional defenses, I don't know how to explain the age easy decision, beyond other prosecutorial discretion factors that are not based on the facts themselves.
Jeffrey Rosen: [00:23:21] The converse question to you, if the facts are as relatively strong or substantial as you suggested, why didn't Mueller reach a conclusion? And was his reluctance to reach a conclusion reflecting his belief that because the president can't be indicted while he's in office, it wasn't appropriate for him to reach a conclusion one way or another? Or is there some other explanation.
Mary McCord: [00:23:44] No. I think it's pretty clear from page one of the introduction to volume two of the report, which is the volume that goes through and explains the obstruction of justice investigation.
Mr. Mueller makes it clear that because of The Office of Legal Counsel opinion, that concluded the indictment or criminal prosecution of a sitting president would impermissibility undermine the capacity of the executive branch to perform it's constitutionally assigned functions in violation of the separation of powers, that, that was the motivating reason behind the special counsel not reaching a conclusion about the whether the president's actions met all of the elements of the crime of obstruction of justice.
He says specifically, given his role as an attorney in the Department of Justice, he accepted the OLC's legal conclusion, for the purposes of exercising prosecutorial jurisdiction. He does not use the word discretion. He uses the word jurisdiction. Which to the lawyers listening means, do I have the authority to prosecute in this area?
He read the OLC opinion properly, I believe. It's proper reading of that opinion. But he can't return an indictment, and therefore, he then went on to say, “Because we can not return indictment under other justice department guidelines, it is inappropriate then to say publicly that someone has committed a crime, when you're not able to indict them, and not able to have the crime adjudicated in a court of law, in a neutral forum, with a neutral judge, where the person accused of the crime has the opportunity to put on evidence in his own defense. Et cetera.”
Based on those DOJ guidelines and prudential considerations of fairness, given that he wasn't able to return an indictment, he was also not going to reach a conclusion about whether a crime had taken place.
He does go on, however to be clear that, he also thought it was important to put all the evidence in this one place, in this one report, all the facts known and accumulated by his team, so that it could be persevered while memories were fresh and documentary materials were available. Certainly, this means this is all available for use, either by a future prosecutor because the OLC's opinion only applies while the president is a sitting president. It provides no prohibition on charging a no longer sitting president with a crime, even based on crimes that occurred previously. And it also provides all the fact out there, certainly for Congress to take any action that Congress would think appropriate.
Jeffrey Rosen: [00:26:47] So, Josh, we have at this point in the really interesting discussion, some consensus by both of you, if it were governor not President Trump, there'd be at least a substantial case for obstruction on some of the charges. That Mueller did not reach a conclusion because of his fear that the president could not be indicted, and therefore, it wasn't appropriate for him to make a recommendation. We're not quite sure why the attorney general reached the opposite conclusion.
What should Congress do next? Should it first establish a finding about whether an ordinary defendant, like Governor Trump could be indicted, or whether the president could be indicted after leaving office, and then consider the constitutional defenses? And after the president leaves office, could and should a future prosecutor consider these facts, inhibited by the constitutional defenses?
Josh Blackman: [00:27:40] Well, there are two issues here, right? What should Congress do and what should a future attorney general do.
Let's start with Congress. Congress has tools at its disposal. The House of Representatives can initiate impeachment precedings and impeachment investigation. That could lead to the drafting of articles of impeachment, and which they can vote on articles of impeachment.
To be perfectly frank, we didn't need a 500 page Mueller Report to file articles of impeachment. Almost every act mentioned in the report, was done in public, in plain view. There were a couple of things that we didn't know about, which weren't too significant. But the bulk of it, we knew what happened. There wasn't any surprise.
So in theory at least, Congress could have initiated impeachment articles in 2017 or at least when the house flipped over last year. I pause here to note, it's not entirely clear to me if Congress can impeach the president for taking action that the constitution gives him the power to take.
I'll use a very famous example, that I'm sure your listeners are familiar with, which is impeachment of Andrew Johnson, going back to the 1860s. At the time, Congress had an act of a statute that said that President Johnson couldn't fire the secretary of war, who was a Lincoln holdover. Without getting the consent of the Senate, there was basically a restraint on the president's removal power.
Johnson fired the guy anyway. That was a key reason why the articles of impeachments were filed against President Johnson. The argument was that he violated what's called a Tenure of Office Act, which imposed this restriction on removal.
Let's put aside the final verdict, we know history tells us that Johnson was acquitted by a single vote, the profound courage. But if indeed the president had the power to remove secretary of war, then he didn't violate the Constitution, the statute is preempted, and he did nothing wrong.
If Congress could impose that restriction on the president, then indeed he violated the law, and he was impeachable. Who was right, Johnson or the Republicans in Congress?
History tells us that the Supreme Court later held that Johnson was right, that he had the power to fire the guy. Now, I don't think the Supreme Court precedences were binding for the Senate. I think the Senate sits as a court. They have a trial. I think members of the Senate can reach their own constitutional judgements.
But what I would pause at that, if the president has a constitutional defense against indictment, he would also have a constitutional defenses against impeachment. I think that defense applies to some of the charges in the Muller Report but not others.
So, I think Congress would still have to contend with these constitutional defenses, at least for some of the accounts, regardless of what happens for indictment.
Now, the second thing you asked about, Jeff was, could a future attorney general decide to indict the president?
Here the statute of limitations play as an important role. A lot of this obstructive conduct or alleged obstructive conduct, occurred in 2017. I believe the statute of limitation is five years, which runs out in 2022.
So, if President Trump loses reelection, the next president could decide to charge the president with a crime. There's no prohibition of indicting a former sitting president. It don't think there's any separation of powers problem there. He's out of office. You still have the constitutional defenses, but they could indict him.
Now, if President Trump is reelected, which you know there's a possibility, we don't know, then the five-year statue would run out. There may be some way to toll the statute of limitations equitably. I'm not confident that any prosecutor would risk this. I think there's a serious cost to indicting a former president. It's very Latin-America-ish.
But a lot, I think turns, on whether Trump wins reelection.
Jeffrey Rosen: [00:31:40] So, Mary it sounds like a lot does turn on the constitutional defenses, as Josh persuasively says. The Supreme Court later found that the claim that President Johnson violated the Tenure of Office Act was inconsistent with the Constitution. So, what do you make of the constitutional defense that Josh and the attorney general have laid out? Namely that the president cannot be liable for obstruction, when he exercises one of his Article II powers?
Mary McCord: [00:32:08] Well, I guess I'm persuaded by the analysis of the Mueller team on the constitutional defenses that, there's not any offense to separation of powers when Congress legislates a crime, that is applied to the president, that only applies to corrupt conduct. His Article II authority does not and should not extend to conduct that while he has the authority to take a particular action, such as firing the special counsel or ...
Well, actually, that raises a different question about whether special counsel is an inferior officer, so let's put that aside and say firing the attorney general.
Clearly, he has the authority under the Constitution of firing the attorney general. But when done for corrupt purposes, under the analysis of Mueller, and this is simplified somewhat, to apply a criminal statute to that corrupt obstruction of justice, assuming for a minute, he was doing it in order to obstruct justice. Let's just assume that for a minute. That wouldn't violate separation of powers principals because this done for this corrupt intent is not protected essentially, by his Article II powers.
So, that analysis is the analysis that is applied in the report to discuss the application of the obstruction statutes to the president, if it weren't barred by the OLC opinion from being indicted, and also to provide the analysis for why it was okay to go forward in undertaking investigation of the president, sort of for the same reasons.
The Mueller Report doesn't get into whether those same constitutional defenses would apply to impeachment precedings. I haven't, frankly, spent the time to think that fully through myself. But I will note, the Mueller Report does include an interesting footnote on page 172 ... Or no, I'm not sure that was the right page. Wrong page. On page 178, that does explain the differences between the impeachment power and the criminal law. They serve different interests.
The special counsel says, “A possibly remedy through impeachment for abuses of power would not substitute for potential criminal liability after a president leaves office. Impeachment would remove a president from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law.”
And so, a lot of people have been sort of questioning why that footnote was there, and whether that was some sort of signal by the special counsel of what he was hoping or thought should happen. I take it really more at face value, that these are two separate types of precedings, both with different goals and both serving different purposes, and he's just pointing that out in a footnote in his discussion of the constitutional issues.
Jeffrey Rosen: [00:35:28] Thank you for calling our attention to that interesting footnote.
Josh, might Congress reach a different conclusion than you and the attorney general, on the question of whether the president has a constitutional defense against being indicted for obstruction, I guess where in your explainer hat can you tell us how unsettled a theory is this? Not that the court nor the Justice Department has ruled on it before, so, is it fair to say it's a novel theory that people are disagreeing about, and might Congress make up its own mind? And should it address this constitutional defense in the course of forthcoming hearing?
Josh Blackman: [00:36:06] Oh, Jeff. I hope it does. Far too many students of constitutional law see the Supreme Court as the only entity that can interpret the Constitution. This is flatly false. All three branches take an oath to the Constitution and they have an obligation to interpret it.
The question is this, does an act with a corrupt intent, by definition violate the president's duty to faithful execution? That's Mueller's argument. He didn't make the case. He had maybe one or two sentences explaining why that's the case with no argument.
If you're going to be lodging an allegation this sort against the president, I want pages upon pages of history, text, and structure explaining why this is the case. Mueller just whiffed on it. It's for that reason that I don't hold that aspect of the report in very high esteem.
But Congress can make that decision. If Congress puts an article of impeachment, that we think can act with a corrupt intent as a violation of the president's faithful duties to execute, that's a judgment I will give a lot of respect to. Members of the Senate sit as a court. It's a trial. They find questions of law and questions of fact. The chief justice presides.
I think it will be very powerful for the Senate to actually make a decision on the meaning of the Take Care Clause. Hell, Jeff, I would rather the Senate make that decision, than a court make a decision in a criminal prosecution.
Now, here's the kicker. I think the Supreme Court can go one way, and the second go the other way. They are not bound by each other. There's an obligation for the Senate to follow John Roberts lead in the Take Care Clause. They can reach a different conclusion. I think they'll have a beautiful testament to the power of the Constitution outside the courts.
Jeffrey Rosen: [00:37:47] Mary, House Democrats face a tough political decision, about whether or not to impeach, given the unlikelihood that the Senate will convict.
Do you think it would be useful exercise in public education, for the House and/or the Senate to hold hearings about the president's alleged constitutional defenses, whether or not the members think the president is immune from prosecution for obstructive acts?
If you were scripting out what the hearings in the House and Senate should look like, what questions should both houses address?
Mary McCord: [00:38:22] Well, first I'll say I agree with Josh, that Congress is not bound by the Supreme Court's interpretation about what defenses might apply to the criminal law, and when they're looking at possible grounds for impeachment, they can do things very differently.
In terms of whether I think that Congress should convene hearings, I think they should but I don't know that I would say the hearing should be specifically on this constitutional question. I mean, I think they should first ... And again, they can use a lot of the work that Mueller's already done. I think they should at least focus on the factual scenarios in the Mueller Report, other if they think appropriate, and try to hear more and hear more in a public setting, about the various elements of the way they would view obstruction in a way that might support impeachment.
I don't think they should do this necessarily by drawing up articles right now, although, they certainly could if they wished. I think they should come into this doing their job as a separate independent branch of government looking at, taking as a starting point what Mueller's done, asking what other additional questions they think they need to ask, in order to better understand the president's conduct, and whether they think that conduct is such, that under their own interpretation of impeachable offenses and the Take Care Clause is just, recognize whether that's something that they think they should go forward, in terms of articles impeachment on.
At that point, of course, they would have to make some decisions about some of the constitutional issues. Again, I come back to agreement with Josh, that they're not bound by anything. Of course, this case at this point, is not going to get up to the Supreme Court for decision on the criminal law anyway, given the OLC opinion, and given where things stand with respect to Attorney General Barr's own legal conclusions.
Congress would be making these determinations in the first instance, using its own constitutionally granted authorities.
Jeffrey Rosen: [00:40:41] Josh, I hear Mary saying that perhaps the congressional hearings should follow a script, something like this podcast, namely first, the members should ask, “Do the facts support obstruction?” And second should ask, “Are there constitutional defenses or not?”
Do you agree with that script? Would it be useful to have those hearings? If in the end the House concluded, either for constitutional or political reasons not to bring articles of impeachment, even though let's say it did conclude that the fact supported and obstruction claim and there were not valid constitutional defenses, is there any other remedy? Will the law be served or not by doing nothing?
Josh Blackman: [00:41:20] Oh, Jeff. You know what I'm going to say, don't you? What comes first, the facts or the Constitution? The Constitution comes first, of course.
In fact, I think Mueller's volume two was backward. He put the constitutional analysis on the last 12 pages. He should have put it first. If the statute doesn't apply to the president, there's no sense discussing whether he violated the statute.
Similarly, if the president had power to do X and you can't impeach him for doing X, then why have a factual investigation. Now, my love of the Constitution, is perhaps a bit too pure. I think in all likelihood if there is indeed Senate and Congressional precedings, they follow along the lines that Mary and you suggested.
But as a legal matter, you first challenge the indictment, you first challenge, is the legal charge valid, before you actually have the trial. I think that's how it happened in most context. You first say, does the statute apply? Can you quash the indictment, so to speak? And then, you go on to the facts of sufficiency and guilt beyond a reasonable doubt, whatever the standard is for the Senate.
Jeffrey Rosen: [00:42:20] So, Mary. I've learned a tremendous amount from this discussion so far, but it is a technical, wonky, and rigorous discussion, even for the three of us, and we study the Constitution for a living. We're lucky enough to do that.
Is it plausible to ask Congress to have a similar kind of discussion? And if in the end they did conclude that even though they didn't agree with Josh in the attorney general's constitutional defense, they didn't think that articles of impeachment were warranted. Would the rule of law be served?
Mary McCord: [00:43:00] Well, I think there is value to public hearings, that are available to the entire American public to listen to, watch, make their own assessments based on witness testimony and documents presented, that allow them to reach their own conclusions, even if Congress ultimately doesn't take action to impeach.
I mean, it's important to remember this is a president who has stated his intention to run for reelection in just two years. And so, it's important for the American people, the voters to make some assessments about whether this is a president that they think is trustworthy and worthy of holding the title of the highest officer of the land.
The actions in this report, not just volume two by the way, but very much also volume one, which I know is sort of beyond the scope of today's podcast discussion, but whether that's the sort of president that they want to reelect.
Average people and other speaking I've done since this report came out to ... And I think a lot of people look at 448 pages and think that's too daunting. But people should read the executive summary, as both part one and part two. That's not too heavy of a lift. That will give them some very valuable information that they can't get just from cable news. And hopefully, podcasts like this, give people a little bit more in-depth analysis.
But I guess to get back to your actual question, I think there's value in this, even if Congress doesn't ultimately decide to draw up articles of impeachment, or even if it does, if the summit doesn't convict. You know, it's a very political process. It's worth a whole 'nother podcast discussion about the pros and cons of that. But there's certainly value in our system, to having hearings and having this out in the open for the public to make their own assessments. They don't have to Mueller's word for it.
Jeffrey Rosen: [00:45:06] There's certainly value in having a discussion like this. I'm so grateful to you and to our We The People listeners, for taking the time to puzzle through these really hard factual and constitutional questions, and make up your own mind.
This is the time for closing arguments, where each of you can appeal to our listers, both to describe what you think about the facts on the law and also, give them some extra homework or reading, so they can further educate themselves, if you like.
Josh, the first one is to you. Tell us why, although you think that for an ordinary defendant, the facts alleged by Mueller report in light, rise to the level of obstruction, you believe that the President of the United States is constitutionally immune for impeachment for the exercise of his Article II responsibilities.
Josh Blackman: [00:45:54] Well, I think my claim is a bit more modest. I think immune is too broad. In other words, I think it has to be an as-applied basis. I think there might be some instances where the president's conduct could rise the level of impeachable offense. The most obvious example is bribery or treason.
Those are specifically numerated instances, where something taken into present sufficient capacity could be subject to removal.
I think once you go beyond bribery and treason, it gets a lot more fuzzy. I think that the Senate would have to make specific constitutional findings, about why a specific exercise is or is not supported by the Take Care Clause.
Again, I'm not saying Mueller is wrong, in all regard. I'll be very clear about that. I think he didn't do his homework. He didn't do the work needed to get to the conclusion he drew.
I find the attorney general's memo, the unsolicited one, quite persuasive. I think the other side now needs to rebut that and not simply say, “Rule out Mueller.” There has to be some analysis to move to the next stage.
Jeffrey Rosen: [00:46:56] Mary, last word is to you. Having argued that the facts might support an obstruction finding, especially for and ordinary defendant, maybe squarely tell us why you are unpersuaded by the attorney generals memo and why you believe that the president can indeed be indicted or impeached for obstructive conduct, even if he's carrying out his Article II responsibilities?
Mary McCord: [00:47:19] Well, I guess I would call attention to a couple of things we haven't really focused on too much, since this is the last parting shot that people might have gleaned from the attorney general's memo, from before he was the attorney general.
In addition to making an argument that because it's within the president's constitutional authority, for example, to fire the attorney general, it couldn't possibly be obstruction. Again, we have discussed this a little bit. I think that certainly, the articles of authority does not protect him from corruptly taking actions, even if they are ordinary within his executive authority. Some things, like firing, are also very different than other parts of obstructive acts, that are revealed in the scenarios.
There's two other things we haven't focused a lot on, that Attorney General Barr had also mentioned in his original memo. One is the suggestion that you can't commit the crime of obstruction of justice if you did not actually commit the underlying crime that was being investigated.
That's just completely contrary to law. There's good reason for that. That's because a person could be investigated for something that they didn't do, but they so don't want to rely on the system, and to actually propounding their own defenses, and maybe talking to the investigators, and showing why they didn't commit the crime.
Instead, they attempt to obstruct justice illegally. And the obstruction, you know the classic coverup is worse than the crime saying, that has been ruled out many times in our history, that's really true.
Now, it may be a relevant factor, whether the underlying crime was committed, as to whether when you assessing someones intent and whether the intent is corrupt. But it's certainly, there's no free pass to obstruct justice, if you know you didn't commit the underlying crime.
I would then, again, call listeners attention to part one of the report. And even though Mr. Muller concludes that there was no crime of conspiracy with the Russian government, between the Russian government and Trump campaign officials, or the president himself, with respect to the Russian election interference at first, there is a whole lot that that raises a lot of question about the president with respect to those effort, and his welcoming attitude, and desirous attitude towards the Russians continuing those efforts.
And then finally, there is a point that AG Barr has made, suggesting that because so many of the president's obstructive acts, if you will. I know he didn't call them that, but the acts that are the basis for the obstruction investigation, were done very publicly. That should also be a significant factor in assessing his corrupt intent.
While I won't deny that it's a factor because normally we tend to think of people who want to engage in corrupt behavior doing it secretly, it's very much the (inaudible) around this president to do things very, very publicly, including things that I think, myself at least and certainly many people, would think are improper and sometimes illegal.
And so, in the case of this president and the way he engages in public statements, excoriating other people, dangling pardons, et cetera, I'm not sure that there's much that can be gleaned from the fact that his acts are, for the most part public. I'm not sure that tells us very much about his intent, other than he thought that the entire investigation was a witch hunt, and he wanted to make sure everyone listening to him would agree with him.
Jeffrey Rosen: [00:51:19] Thank you so much, Mary McCord and Josh Blackman, for a rigorous, non-partisan, and truly illuminating discussion of obstruction of justice, the president, and the Constitution. Mary, Josh, thank you so much for joining.
Mary McCord: [00:51:35] Thank you.
Josh Blackman: [00:51:36] Thanks, Jeff.
Jeffrey Rosen: [00:51:37] Today's show was engineered by (Kevin Kilburn) and produced by Jackie McDermott. Research was provided by Lana Ulrich and Ben Roebuck.
The suggested homework of the week, read the Mueller Report We the People listeners. Read the obstruction section, section two. If after reading the elements you conclude on the facts that the president was or was not guilty of obstruction and on the law that he does or doesn't have a constitutional defense, write me and tell me why.
This was a really tough complicated discussion this week, but deeply important. It's your civic duty to reach a conclusion on your own. If you take the time to do it, I would love to hear about it, [email protected]
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On behalf of The National Constitution Center, I'm Jeffrey Rosen.