An interesting new paper, by Daniel Hemel and our former co-blogger Eric Posner. Here’s the introduction:
Can a president be held criminally liable for obstruction of justice? That question took on new urgency in the wake of President Donald Trump’s firing of FBI director James Comey in May 2017. While the president cited Deputy Attorney General Rod Rosenstein’s determination that Comey had mishandled the investigation into Hillary Clinton’s disclosure of classified emails, Trump later admitted in an interview that he “was going to fire [Comey] regardless of the recommendation.” Because Trump had also signaled to Comey that he was unhappy with the FBI’s investigation of former National Security Advisor Michael Flynn, speculation arose that Trump had fired Comey to punish him for failing to drop the investigation of Flynn. This in turn sparked allegations that Trump had committed the crime of obstruction of justice, which consists of interference with investigations, prosecutions, and other law enforcement actions with “corrupt” intent.
President Trump was not the first president to be accused of obstruction of justice. The first article of impeachment against President Richard Nixon, which was adopted by the House Judiciary Committee in 1974, accused him of obstructing the investigation into the Watergate burglary by interfering with an FBI investigation. The article also mentioned interference with the investigation by the Watergate special prosecutor, whose firing was ordered by Nixon. After President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been charged for crimes related to the Iran-Contra scandal, Bush was accused of obstructing the investigation into Bush’s own role in the scandal. The House impeached President Bill Clinton in 1998, based in part on obstruction of justice. The allegations against Clinton included charges that he had lied and withheld evidence in a civil action and lied to a grand jury.
These examples show that the possibility that the president could commit the crime of obstruction of justice is not a theoretical curiosity or a question specific to the unusual Trump administration. But the claim that the president can commit such a crime faces a powerful objection rooted in the Constitution. Obstruction of justice laws are normally applied to private citizens — people who bribe jurors, hide evidence from the police, or lie to investigators. The president is the head of the executive branch and therefore also the head of federal law enforcement. He can fire the FBI director, the attorney general, or any other principal officer in the executive branch who fails to maintain his confidence. If President Trump can fire an FBI director merely for displeasing him, why can’t he fire an FBI director who pursues an investigation that the president wants shut down?
The president’s control over law enforcement is sometimes regarded as a near-sacred principle in our constitutional system. In Justice Scalia’s words, “Governmental investigation and prosecution of crimes is a quintessentially executive function.” The principle can be given several justifications.
First, as Justice Scalia notes, presidential control over law enforcement limits the risk of legislative tyranny: if Congress passes bad laws, the president can weaken their effect by refusing to enforce them or enforcing them only in limited cases.
Second, the president is the only individual who is held responsible for the general operation of the national government. Given limited budgets, someone needs to decide on enforcement priorities, which means blocking some types of enforcement while authorizing others. That someone is, as a matter of custom and design, the president, whose synoptic vision and electoral accountability to the national public make him well qualified to perform that function.
But the principle of presidential control comes into conflict with other constitutional values. The first is the idea that no person is above the law. There is serious discomfort with the idea that the president can commit a crime and then call off the investigation of it. What if he murdered his valet?
The second — and, we think, the more serious problem, as a practical matter — is that the president might use his control of law enforcement to hamper political opposition. It is obvious enough that it would be wrong for the president to order spurious investigations of his political opponents in order to harass them. But it would seem to follow that the president should not call off serious investigations of his political aides and allies (and of himself) in order to protect them (and himself) from legal jeopardy. If he could, then he or his aides could engage in criminal activity in order to harass their political opponents — as the Watergate burglary, a spy operation against the Democratic National Committee, illustrates — without fear of legal liability.
The founders recognized this conundrum and sought to address it by granting Congress the impeachment power. Congress was not supposed to impeach a president merely because of political disagreement. Impeachment was supposed to be based on “Treason, Bribery, or other high Crimes and Misdemeanors” — in Alexander Hamilton’s words, it was to “proceed from … the abuse or violation of some public trust.” The Senate was supposed to act in a “judicial” manner when it convened as a court to try impeachments. As such, it would develop a set of precedents that would guide impeachment proceedings going forward.
More than two and a quarter centuries have elapsed without the Senate determining whether presidential obstruction of justice is a high crime or misdemeanor that might warrant removal from office. President Nixon resigned before he could be impeached. The Senate split 50-50 on the obstruction of justice charge against President Clinton. Moreover, questions of impeachability and indictability are distinct — obstruction by the president might be a “high crime or misdemeanor” in the Senate but not a punishable offense in federal court. The latter question likewise remains open: President Ford’s pardon preempted the possibility that Nixon might stand trial on charges of obstructing justice while in the White House. For his part, President Clinton agreed to a five-year suspension of his law license and a $250,000 fine in order to avert criminal prosecution on obstruction and other charges.
In this article, we argue that the crime of obstruction of justice does apply to the president, but it applies in a special way because of the president’s role as head of the executive branch. As defined by statute and precedent, the crime of obstruction occurs when an individual “corruptly” endeavors to impede or influence an investigation or other proceeding, and the word “corruptly” is understood to mean “with an improper purpose.” When the president impedes or influences an investigation with a proper purpose, he does not commit the crime of obstruction. The critical question, then, is when it is proper for the president to intervene.
Article II of the Constitution suggests an answer to that question. It vests the president with “executive power”; obligates him to “take care that the laws be faithfully executed,” and gives some other roles and functions like that of commander-in-chief. When these authorities empower him to achieve certain goals, he is allowed to drop or block prosecutions and other enforcement actions that interfere with those goals. For example, if the president intervenes in an investigation because he thinks that national security demands it, he acts properly and not corruptly. Likewise, if the president decides in good faith that a particular investigation or class of investigations represents a poor use of scarce enforcement resources, he may block it (or them) without committing obstruction of justice. But if the president interferes with an investigation because he worries that it might bring to light criminal activity by himself, his family, or his top aides — and not for reasons related to national security or faithful execution of federal law — then he acts corruptly, and thus criminally. The Constitution does not authorize the president to employ his office for personal or partisan advantage, and intervening in an investigation for that purpose is not a proper use of presidential power.
In Part I, we provide background on the crime of obstruction of justice and on the president’s authority over law enforcement. We propose a test for presidential obstruction of justice that balances competing constitutional values in a workable way. The test resembles ethical and legal guidelines that control lower-level law enforcement officials who face conflicts of interest. While the application of the obstruction statutes to the president presents questions that are in some sense sui generis, these questions are in other respects analogous to the challenges that federal prosecutors routinely face.
In Part II, we address a range of complications and counterarguments. First, we address the problem of mixed motives. Does a president obstruct justice if he stops an investigation for both personal reasons and reasons of the public interest? We argue that he does if the personal reason is a but-for cause of the action.
Second, we consider the argument that a crime of presidential obstruction of justice is inconsistent with the pardon power. According to this argument, since the president may pardon someone before that person has been convicted of a crime, and such a pardon could be made to halt an investigation, he cannot coherently be found criminally liable for obstructing justice. We reject this argument. Even if the pardon power is plenary (and we note several objections to that view), halting an investigation and pardoning a person are different actions, with different political costs, so there is no inconsistency between criminalizing obstruction of justice and allowing pardons. Further, we argue that if a president pardons someone in order to obstruct justice, the president may be guilty of a crime even though the pardon itself is valid in the sense of releasing the pardoned person from criminal liability.
Third, we briefly address the argument that all talk of presidential obstruction of justice is idle because the president cannot be convicted of a crime while in office. The problem with this view is that impeachment is at least partly based on criminal activity, so it may matter whether obstruction of justice is a crime. Moreover, it is possible that the president can be convicted of a crime while in office; and even if he cannot, he can be convicted after he leaves office of a crime that he committed while in office.
Finally, we discuss and reject the argument that the canon of constitutional avoidance cuts against applying the obstruction of justice statutes to the president. While the avoidance canon weighs in favor of interpreting statutes so that they do not raise difficult constitutional questions, it applies only in cases of ambiguity. There is nothing in the text or the legislative history of the obstruction statutes that suggests the president might be excluded. Thus the avoidance canon offers no exit option.
I’m not sure this is right (at least as applied to obstruction claims based on ordering investigations dropped, rather than to obstruction claims based on lies to investigators, threats of illegal reprisal and the like): I’m skeptical of any analysis that requires the courts to disentangle personal and public interest motives in these sorts of cases, especially given that — as Federalist No. 51 recognized — politicians will rarely be free from “personal motives,” and indeed our political system aims to harness those personal motives rather than forbidding them. Still, I thought this was an important article, by a noted scholar, and I thought I’d pass it along, as I’d be glad to pass along any article on the other side of the issue.