MEMORANDUM 8 June 2018

To: Deputy Attorney General Rod Rosenstein
Assistant Attorney General Steve Engel
From: Bill Barr

Re: Mueller?s ?Obstruction? Theory

 

I am writing as a former official deeply concerned with the institutions of the Presidency
and the Department of Justice. I realize that I am in the dark about many facts, but I hope my
views may be useful.

It appears Mueller?s team is investigating a possible case of ?obstruction? by the President
predicated substantially on his expression of hope that the Comey could eventually ?let. . . go? of
its investigation of and his action in ?ring Comey. In pursuit of this obstruction theory, it
appears that Mueller?s team is demanding that the President submit to interrogation about these
incidents, using the threat of subpoenas to coerce his submission.

Mueller should not be permitted to demand that the President submit to interrogation about
alleged obstruction. Apart from whether Mueller a strong enough factual basis for doing so,
Mueller?s obstruction theory is fatally misconceived. As I understand it, his theory is premised on
a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the
Department, it would have grave consequences far beyond the immediate confines of this case and
would do lasting damage to the Presidency and to the administration of law within the Executive
branch.

As things stand, obstruction laws do not criminalize just any act that can in?uence a
?proceeding.? Rather they are concerned with acts intended to have a particular kind of impact. A
?proceeding? is a formalized process for finding the truth. In general, obstruction laws are meant
to protect proceedings from actions designed subvert the integrity of their truth?finding function
through compromising the honesty of decision~makers (6.3., judge, jury) or impairing the integrity
or availability of evidence testimonial, documentary, or physical. Thus, obstruction laws prohibit
a range of ?bad acts? such as tampering with a witness or juror; or destroying, altering, or
falsifying evidence all of which are inherently wrongful because, by their very nature, they are
directed at depriving the proceeding of honest decision-makers or access to full and accurate
evidence. In general, then, the aortas rear of an obstruction offense is the inherently subversive
?bad act? of impairing the integrity of a decision-maker or evidence. The requisite mans rec is
simply intending the wrongful impairment that inexorably flows from the act.

Obviously, the President and any other official can commit obstruction in this classic sense
of sabotaging a proceeding?s truth~?nding function. Thus, for example, if a President knowingly
destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits

any act deliberately impairing the integrity or availability of evidence, then he, like anyone else,
commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon
and Clinton in their respective impeachments were all such ?bad acts? involving the impairment
of evidence. Enforcing these laws against the President in no way infringes on the President?s
plenary power over law enforcement because exercising this discretion such as his complete
authority to start or stop a law enforcement proceeding -- does not involve commission of any of
these inherently wrongful, subversive acts.

The President, as far as I know, is not being accused of engaging in any wrongful act of
evidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstruction
laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested
in him by the Constitution. It appears Mueller is relying on 18 U.S.C. ?1512, which generally
prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is
relevant here because, unlike other obstruction statutes, it "does not require that a proceeding be
actually ?pending? at the time of an obstruction, but only that a defendant have in mind an
anticipated proceeding. Because there were seemingly no relevant proceedings pending when the
President allegedly engaged in the alleged obstruction, Ibelieve that Mueller?s team is considering
the ?residual clause? in Section 1512 subsection as the potential basis for an obstruction
case. Subsection reads:

Whoever alters, destroys, mutilates, or
conceals a record, document, or other object, or attempts to do so, with the
intent to impair the object?s integrity or availability for use in an of?cial
proceeding; or (2) otherwise obstructs, in?uences, or impedes any of?cial
proceeding, or attempts to do so [is guilty of the crime of obstruction].
[emphasis added].

As I understand the theory, Mueller proposes to give clause which previously has
been exclusively con?ned to acts of evidence impairment, a new unbounded interpretation. First,
by reading clause in isolation, and glossing over key terms, he construes the clause as a free-
standing, aIl-encompassing provision prohibiting any act in?uencing a proceeding if done with an
improper motive. Second, in a further unprecedented step, Mueller would apply this sweeping
prohibition to facially-lawful acts taken by public of?cials exercising of their discretionary powers
if these acts in?uence a proceeding. Thus, under this theory, simply by exercising his
Constitutional discretion in a facially-lawful way for example, by removing or appointing an
of?cial; using his prosecutorial discretion to give direction on a case; or using his pardoning power
a President can be accused of committing a crime based solely on his subjective state of mind.
As a result, any discretionary act by a President that in?uences a proceeding can become the
subject of a criminal grand jury investigation, probing whether the President acted with an
improper motive.

If embraced by the Department, this theory would have potentially disastrous implications,
not just for the Presidency, but for the Executive branch as a whole and for the Department in
particular. While Mueller?s focus is the President?s discretionary actions, his theory would apply
to at! exercises ofprosecniorini discretion by the President?s subordinates, from the Attorney
General down to the most junior line prosecutor. Simply by giving direction on a case, or class of

cases, an of?cial opens himself to the charge that he has acted with an ?improper? motive and thus
becomes subject to a criminal investigation. Moreover, the challenge to Comey?s removal shows
that not just prosecutorial decisions are at issue. Any personnel or management decisions taken by
an of?cial charged with supervising and conducting litigation and enforcement matters in the
Executive branch can become grist for the criminal mill based solely on the of?cial?s subjective
state of mind. All that is needed is a claim that a supervisor is acting with an improper purpose
and any act arguably constraining a case such as removing a U.S. Attorney could be cast as a
crime of obstruction.

It is inconceivable to me that the Department could accept Mueller?s interpretation of
?1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for
interrogating the President. I know you will agree that, if a investigation is going to take down
a democratically-elected President, it is imperative to the health of our system and to our national
cohesion that any claim of wrongdoing is solidly based on evidence of a real crime not a
debatable one. It is time to travel wellnworn paths; not to veer into novel, unsettled or contested
areas of the law; and not to indulge the fancies by overly-zealous prosecutors.

As elaborated on below, Mueller?s theory should be rejected for the following reasons:

First, the sweeping interpretation being proposed for 1512?s residual clause is contrary to the
statute?s plain meaning and would directly contravene the Department?s longstanding and
consistent position that generally-worded statutes like 1512 cannot be applied to the President?s
exercise of his constitutional powers in the absence of a ?clear statement? in the statute that such
an application was intended.

Second, Mueller?s premise that, whenever an investigation touches on the President?s own
conduct, it is inherently ?corrupt? under 1512 for the President to influence that matter is
insupportable. In granting plenary law enforcement powers to the President, the Constitution
places no such limit on the President?s supervisory authority. Moreover, such a limitation cannot
be reconciled with the Department?s longstanding position that the ?con?ict of interest? laws do
not, and cannot, apply to the President, since to apply them would impermissibly ?disempower?
the President from supervising a class of cases that the Constitution grants him the authority to
supervise.

Third, de?ning facially-lawful exercises of Executive discretion as potential crimes, based solely
on subjective motive, would violate Article II of the Constitution by impermissibly burdening the
exercise of core discretionary powers within the Executive branch.

Fourth, even if one were to indulge Mueller?s obstruction theory, in the particular circumstances
here, the President?s motive in removing Comey and commenting on could not have been
?corrupt? unless the President and his campaign were actually guilty of illegal collusion. Because
the obstruction claim is entirely dependent on ?rst ?nding collusion, Mueller should not be
permitted to interrogate the President about obstruction until has enough evidence to establish
collusion.

I. The Statute?s Plain Meaning, and ?the Clear Statement? Rule Long Adhered To By the
Department, Preclude Its Application to Facially-Lawful Exercises of the President?s
Constitutional Discretion.

The unbounded construction Mueller would give ?1512?s residual clause is contrary to the
provision?s text, structure, and legislative history. By its terms, ?1512 focuses exclusively on
actions that subvert the truth-?nding function of a proceeding by impairing the availability or
integrity of evidence testimonial, documentary, or physical. Thus, ?1512 prescribes a litany of
speci?cally-de?ned acts of obstruction, including killing a witness, threatening a witness to
prevent or alter testimony, destroying or altering documentary or physical evidence, and harassing
a witness to hinder testimony. All of these enumerated acts are ?obstructive? in precisely the same
way - they interfere with a proceeding?s ability to gather complete and reliable evidence.

The question here is whether the phrase ?or corruptly otherwise obstructs? in clause
is divorced from the litany of the speci?c prohibitions in 1512, and is thus a free-standing,
all-encompassing prohibition reaching any act that in?uences a proceeding, or whether the clause?s
prohibition against ?otherwise? obstructing is somehow tied to, and limited by, the character of all
the other forms of obstruction listed in the statute. I think it is clear that use of the word ?otherwise?
in the residual clause expressly links the clause to the forms of obstruction speci?cally de?ned
elsewhere in the provision. Unless it serves that purpose, the word ?otherwise? does no work at all
and is mere surplusage. Mueller?s interpretation of the residual clause as covering any and all acts
that in?uence a proceeding reads the word ?otherwise? out of the statute altogether. But any proper
interpretation of the clause must give effect to the word ?otherwise;? it must do some work.

As the Supreme Court has suggested, Begay v. United States, 553 US. 13?, 142-143
(2008), when Congress enumerates various specific acts constituting a crime and then follows that
enumeration with a residual clause, introduced with the words ?or otherwise,? then the more
general action referred to immediately after the word ?otherwise? is most naturally understood to
cover acts that cause a simiiar kind of result as the preceding listed examples, but cause those
results in a manner. In other words, the speci?c examples enumerated prior to the residual
clause are typically read as re?ning or limiting in some way the broader catch-all term used in the
residual clause. See also Yates v. United States, 135 1024, 1085-87r (2015). As the Begay
Court observed, if Congress meant the residual clause to be so all-encompassing that it subsumes
all the preceding enumerated examples, ?it is hard to see why it would have needed to include the
examples at all.? 553 US. at 142; see McDonnell v. United States, 136 2355, 2369 (2016).
An example suf?ces to make the point: If a statute prohibits ?slapping, punching, kicking, biting,
gouging eyes, or otherwise hurting? another person, the word ?hurting? in the residual clause
would naturally be understood as referring to the same kind of physical injury in?icted by the
enumerated acts, but in?icted in a different way i. a, pulling hair. It normally would not be
understood as referring to any kind of ?hurting,? such as hurting another?s feelings, or hurting
another?s economic interests.

Consequently, under the statute?s plain language and structure, the most natural and
plausible reading of 1512(c)(2) is that it covers acts that have the same kind of obstructive impact
as the listed forms of obstruction ie, impairing the availability or integrity of evidence but
cause this impairment in a different way than the enumerated actions do. Under this construction,

then, the ?catch all? language in clause encompasses any conduct, even if not specifically
described in 1512, that is directed at undermining a proceeding?s truth-?nding function through
actions impairing the integrity and availability of evidence. Indeed, this is how the residual clause
has been applied. From a quick review of the cases, it appears all the cases have involved attempts
to interfere with, or render false, the evidence that would become available to a proceeding. Even
the more esoteric applications of clause have been directed against attempts to prevent the
?ow of evidence to a proceeding. Eg, United States v. Volpendesto, 7?46 F.3d 273 ('7th Cir.
2014)(soliciting tips from corrupt cops to evade surveillance); United States v. Phillips, 583 F.3d
1261 (10"1 Cir. 2009)(disclosing identity of undercover agent to subject of grand jury drug
investigation). As far as I can tell, no case has ever treated as an ?obstruction? an official?s exercise
of prosecutori a1 discretion or an of?cial?s management or personnel actions collaterally affecting
a proceeding.

Further, reading the residual clause as an all-encompassing prescription cannot be reconciled either
with the other subsections of 1512, or with the other obstruction provisions in Title 18 that must
be read in part posse with those in 1512. Given Mueller?s sweeping interpretation, clause 
would render all the speci?c terms in clause surplusage; moreover, it would swallow up all
the speci?c prohibitions in the remainder of 1512 subsections and More than that,
it would subsume virtually all other obstruction provisions in Title 18. For example, it would
supervene the omnibus clause in 1503, applicable to pending judicial proceedings, as well as the
omnibus clause in 1505, applicable to pending proceedings before agencies and Congress.
Construing the residual clause in 1512(c)(2) as supplanting these provisions would eliminate the
restrictions Congress built into those provisions -- the requirement that a proceeding be
?pending? and would supplant the lower penalties in those provisions with the substantially
higher penalties in 1512(c). It is not too much of an exaggeration to say that, if 1512(c)(2) can
be read as broadly as being proposed, then virtually all Federal obstruction law could be reduced
to this single clause.

Needless to say, it is highly implausible that such a revolution in obstruction law was intended, or
would have gone uncommented upon, when was enacted. On the contrary, the legislative
history makes plain that Congress had a more focused purpose when it enacted That
subsection was enacted in 2002 as part of the Sarbanes-Oxley Act. That statute was prompted by
Enron's massive accounting fraud and revelations that the company's outside auditor, Arthur
Andersen, had systematically destroyed potentially incriminating documents. Subsection was
added to Section 1512 explicitly as a ?loophole? closer meant to address the fact that the existing
section 1512(b) covers document destruction only where a defendant has induced another person
to do it and does not address document destruction carried out by a defendant directly.

As reported to the Senate, the Corporate Fraud Accountability Act was expressly designed to
?clarify and close loopholes in the existing criminal laws relating to the destruction or fabrication
of evidence and the preservation of financial and audit records.? S. Rep. No. 107-146, at 14-15.
Section 1512(c) did not exist as part of the original proposal. See S. 2010, 107th Cong. (2002).
Instead, it was later introduced as an amendment by Senator Trent Lott in July 2002. 148 Cong.
Rec. S6542 (daily ed. July 10, 2002). Senator Lott explained that, by adding new 1512(c), his
proposed amendment:

would enact stronger laws against document shredding. Current law prohibits
obstruction of justice by a defendant acting alone, but only if a proceeding is
pending and a subpoena has been issued for the evidence that has been
destroyed or altered .. .. [T]his section would allow the Government to charge
obstruction against individuals who acted alone, even if the tampering took
place prior to the issuance of a grand jury subpoena. I think this is something
we need to make clear so we do not have a repeat of what we saw with the
Enron matter earlier this year.

Id. at 36545 (statement of Sen. Lott) (emphasis supplied). Senator Orrin Hatch, in support of
Senator Lott's amendment, explained that it would ?close [the] loophole? created by the available
obstruction statutes and hold criminally liable a person who, acting alone, destroys documents. Id.
at $6550 (statement of Sen. Hatch). The legislative history thus con?rms that 1512(c) was not
intended as a sweeping provision supplanting wide swathes of obstruction law, but rather as a
targeted gap-?ller designed to strengthen prohibitions on the impairment of evidence.

Not only is an all-encompassing reading of 1512(c)(2) contrary to the language and
manifest purpose of the statute, but it is precluded by a fundamental canon of statutory construction
applicable to statutes of this sort. Statutes must be construed with reference to the constitutional
framework within which they operate. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
Reading 1512(c)(2) broadly to criminalize the President?s facially-lawful exercises of his
removal authority and his prosecutorial discretion, based on probing his subjective state of mind
for evidence of an ?improper? motive, would obviously intrude deeply into core areas of the
President?s constitutional powers. It is well-settled that statutes that do not expressly apply to the
President must be construed as not applying to the President if such application would involve a
possible con?ict with the President's constitutional prerogatives. See, Franklin v.
Massachusetts, 505 US. 788, 801 (1992). OLC has long rigorously enforced this ?clear statement?
rule to limit the reach of broadly worded statutes so as to prevent undue intrusion into the
President?s exercise of his Constitutional discretion. 

As OLC has explained, the ?clear statement? rule has two sources. First, it arises from the
long-recognized "cardinal principle" of statutory interpretation that statutes be construed to avoid
raising serious constitutional questions. Second, the rule exists to protect the ?usual constitutional
balance? between the branches contemplated by the Framers by "requir[ing] an express statement
by Congress before assuming it intended" to impinge upon Presidential authority. Franklin, 505
US. at 801; see, Application of 28 USC. ?458 to Presidential Appointments of Federal
Judges, 19 Up. O.L.C. 350 (1995).

This clear statement rule has been applied frequently by the Supreme Court as well as the
Executive branch with respect to statutes that might otherwise, if one were to ignore the
constitutional context, be susceptible of an application that would affect the President's
constitutional prerogatives. For instance, in Franklin the Court was called upon to determine
whether the Administrative Procedure Act 5 U.S.C 701-706, authorized "abuse of
discretion" review of ?nal actions by the President. Even though the statute de?ned reviewable
action in a way that facially could include the President, and did not list the President among the
express exceptions to the APA, Justice O'Connor wrote for the Court:

[t]he President is not [expressly] excluded from the purview, but he is
not explicitly included, either. Out of respect for the separation of powers and
the unique constitutional position of the President, we ?nd that textual silence
is not enough to subject the President to the provisions of the APA. We would
require an express statement by Congress before assuming it intended the
President's performance of his statutory duties to be reviewed for abuse of
discretion.

505 U.S. at 800-01. To amplify, she continued, the APA does not expressly allow review of
the President?s actions, we must presume that his actions are not subject to its requirements."1d. at
801.

Similarly, in Public Citizen v. United States Dept of Justice, 491 U.S. 440 (1989), the
Court held that the Federal Advisory Committee Act 5 U.S.C. app. 2, does not apply
to the judicial recommendation panels of the American Bar Association because interpreting the
statute as applying to them would raise serious constitutional questions relating to the President's
constitutional appointment power. By its terms, FACA applied to any advisory committee used by
an agency ?in the interest of obtaining advice or recommendations for the President." 5 U.S.C.
app. While acknowledging that a "straightforward reading" of the statute?s language
would seem to require its application to the ABA committee, Public Citizen, 491 US. at 453, the
Court held that such a reading was precluded by the "cardinal principle" that a statute be interpreted
to avoid serious constitutional question.? Id. at 46567. Notably, the majority stated, "[o]ur
reluctance to decide constitutional issues is especially great where, as here, they concern the
relative powers of coordinate branches of government, and "[t]hat construing FACA to apply to
the Justice Department's consultations with the ABA Committee would present formidable
constitutional dif?culties is undeniable." Id. at 466.

The Of?ce of Legal Counsel has consistently ?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." Eg, The Constitutional Separation
of Powers Between the President and Congress, Op. 0.L.C. 124, 178 (1996);
Application of 28 US. C. 39458 to Presidential Appointments of Federal Judges, 19 Up.
O.L.C. 350 (1995).

The Department has applied this principle to broadly-worded criminal statutes, like the one
at issue here. Thus, in a closely analogous context, the Department has long held that the con?ict-
of?interest statute, 18 U.S.C 208, does not apply to the President. That statute prohibits any
"officer or employee of the executive branch" from "participat[ing] personally and substantially"
in any particular matter in which he or she has a personal financial interest. Id. In the leading
opinion on the matter, then~Deputy Attorney General Laurence Silberman determined that the
legislative history disclosed no intention to cover the President and doing so would raise "serious
questions as to the constitutionality" of the statute, because the effect of applying the statute to the
President would ?disempower? the President from performing his constitutionally-prescribed
functions as to certain matters . See Memorandum for Richard T. Barress, O??ice ofthe President,

from Laurence H. Siibermon, Deputy Attorney General, Re: Con?ict of Interest Problem Arising
out ofthe President 's Nomination of Nelson A. Rockefeiier to be Vice President under the Twenty?
Fi?h Amendment to the Constitution at 2, 5 (Aug. 28, 1974).

Similarly, OLC opined that the Anti-Lobbying Act, 18 U.S.C. 1913, does not apply fully
against the President. See Constraints Imposed by 18 1913 on Lobbying E?orts, l3 Op.
O.L.C. 300, 304-06 (1989). The Anti-Lobbying Act prohibits any appropriated funds from being
"used directly or indirectly to pay for any personal service, advertisement, telegram, telephone,
letter, printed or written matter, or other device, intended or designed to in?uence in any manner
a Member of Congress.? 18 U.S.C. 1913. The statute provided an exception for communications
by executive branch of?cers and employees if the communication was made pursuant to a request
by a member of Congress or was a request to Congress for legislation or appropriations. OLC
concluded that applying the Act as broadly as its terms would otherwise allow would raise serious
constitutional questions as an infringement of the President's Recommendations Clause power.

In addition to the ?clear statement? rule, other canons of statutory construction preclude
giving the residual clause in ?1512(c)(2) the unbounded scope proposed by Mueller?s obstruction
theory. As elaborated on in the ensuing section, to read the residual clause as extending beyond
evidence impairment, and to apply it to any that ?corruptly? affects a proceeding, would raise
serious Due Process issues. Once divorced from the concrete standard of evidence impairment,
the residual clause de?nes neither the crime?s octns tens (what conduct amounts to obstruction)
nor its mens rear (what state of mind is ?corrupt?) ?with suf?cient de?niteness that ordinary people
can understand what conduct is prohibited,? or ?in a manner that does not encourage arbitrary and
discriminatory enforcement.? See eg. McDonneti v. United States, 136 at 2373. This
vagueness defect becomes even more pronounced when the statute is applied to a wide range of
public of?cials whose normal duties involve the exercise of prosecutorial ?discretion and the
conduct and management of official proceedings. The ?cardinal rule? that a statute be interpreted
to avoid serious constitutional questions mandates rejection of the sweeping interpretation of the
residual clause proposed by Mueller.

Even if the statute?s plain meaning, forti?ed by the ?clear statement? rule, were not
dispositive, the fact that 1512 is a criminal statute dictates a narrower reading than Mueller?s all?-
encompassing interpretation. Even if the scope of 1512(c)(2) were ambiguous, under the ?rule
of lenity,? that ambiguity must be resolved against the Government?s broader reading. See, 
United States v. Gronderson, 511 US. 39, 54 (1994) (?In these circumstances - where text,
structure, and history fail to establish that the Government's position is unambiguously correct --
we apply the rule of lenity and resolve the ambiguity in [the defendant's] favor.?)

In sum, the sweeping construction of residual clause posited by Mueller?s
obstruction theory is novel and extravagant. It is contrary to the statute?s plain language, structure,
and legislative history. Such a broad reading would contravene the ?clear statement? rule of
statutory construction, which the Department has rigorously adhered to in interpreting statutes,
like this one, that would otherwise intrude on Executive authority. By it terms, 1512 is intended
to protect the truth-finding function of a proceeding by prohibiting acts that would impair the
availability or integrity of evidence. The cases applying the ?residual clause? have fallen within
this scope. The clause has never before been applied to facially-lawful discretionary acts of

Executive branch official. Mueller?s overly-aggressive use of the obstruction laws should not be
embraced by the Department and cannot support interrogation of the President to evaluate his
subjective state of mind.

II. Applying ?1512(c)(2) to Review Facially-Lawful Exercises of the President?s Removal
Authority and Prosecutorial Discretion Would lmpermissihly Infringe on the President?s
Constitutional Authority and the Functioning of the Executive Branch.

This case implicates at least two broad discretionary powers vested by the Constitution
exclusively in the President. First, in removing Comey as director of the FBI there is no question
that the President was exercising one of his core authorities under the Constitution. Because the
President has Constitutional responsibility for seeing that the laws are faithfully executed, it is
settled that he has ?illimitable? discretion to remove principal officers carrying out his Executive
functions. See Free Enterprise and v. Public Company Accounting Oversight Board, 130 
3138, 3152 (2010); Myers 12. United States, 272 US. 52 (1926). Similarly, in commenting to
Comey about situation to the extent it is taken as the President having placed his thumb
on the scale in favor of lenity the President was plainly within his plenary discretion over the
prosecution function. The Constitution vests all Federal enforcement power, and hence
prosecutorial discretion, in the President. The President?s discretion in these areas has long been
considered ?absolute," and his decisions exercising this discretion are presumed to be regular and
are generally deemed non?reviewable. See, United States v. 517 US. 456, 464
(1996); United States v. Nixon, 418 U.S. 683, 693 (1974); see generosity S. Prakash, The Chief
Prosecutor, 73 Geo. Wash. L. Rev. 521 (2005)

The central problem with Mueller?s interpretation of ?1512(c)(2) is that, instead of
applying the statute to inherently wrongful acts of evidence impairment, he would now de?ne the
coins recs of obstruction as any act, including facially lawful acts, that in?uence a proceeding.
However, the Constitution vests plenary authority over law enforcement proceedings in the
President, and therefore one of the President?s core constitutional authorities is precisely to make
decisions ?influencing? proceedings. In addition, the Constitution vests other discretionary powers
in the President that can have a collateral influence on proceedings including the power of
appointment, removal, and pardon. The crux of Mueller?s position is that, whenever the President
exercises any of these discretionary powers and thereby ?in?uences? a proceeding, he has
completed the notes rests of the crime of obstruction. To establish guilt, all that remains is
evaluation of the President?s state of mind to divine whether he acted with a ?corrupt? motive.

Construed in this manner, ?1512(c)(2) would violate Article II of the Constitution in at
least two respects:

First, Mueller?s premise appears to be that, when a proceeding is looking into the President?s own
conduct, it would be ?corrupt? within the meaning of ?1512(c)(2) for the President to attempt to
influence that proceeding. In other words, Mueller seems to be claiming that the obstruction statute
effectively walls off the President from exercising Constitutional powers over cases in which his
own conduct is being scrutinized. This premise is clearly wrong constitutionally. Nor can it be

reconciled with the Department?s longstanding position that the ?conflict of interest? laws do not,
and cannot, apply to the President, since to apply them would impermissibly ?disempower? the
President from supervising a class of cases that the Constitution grants him the authority to
supervise. Under the Constitution, the President?s authority over law enforcement matters is
necessarily all?encompassing, and Congress may not exscind certain matters from the scope of his
responsibilities. The Framers? plan contemplates that the President?s law enforcement powers
extend to all matters, including those in which he had a personal stake, and that the proper
mechanism for policing the President?s faithful exercise of that discretion is the political process
that is, the People, acting either directly, or through their elected representatives in Congress.

Second, quite apart from this misbegotten effort to ?disempower? the President from acting on
matters in which he has an interest, de?ning facially-lawful exercises of Executive discretion as
potential crimes, based solely on the President?s subjective motive, would violate Article II of the
Constitution by impermissibly burdening the exercise of core discretionary powers within the
Executive branch. The prospect of criminal liability based solely on the of?cial?s state of mind,
coupled with the inde?nite standards of ?improper motive? and ?obstruction,? would cast a pail
over a wide range of Executive decision-making, chill the exercise of discretion, and expose to
intrusive and freemranging examination of the President?s (and his subordinate?s) subjective state
of mind in exercising that discretion.

A. Section 1512(e)(2) May Not ?Disempower? the President from Exercising His Low
Enforcement Authority Over a Particular Class ofMorters.

As discussed further below, a fatal flaw in Mueller?s interpretation of ?1512(c)(2) is that,
while de?ning obstruction solely as acting ?corruptly,? Mueller offers no de?nition of what
?corruptly? means. It appears, however, that Mueller has in mind particular circumstances that he
feels may give rise to possible ?corruptness? in the current matter. His tacit premise appears to be
that, when an investigation is looking into the President?s own conduct, it would be ?corrupt? for
the President to attempt to in?uence that investigation.

On a super?cial level, this outlook is unsurprising: at ?rst blush it accords with the old
Roman maxim that a man should not be the judge in his own case and, because ?con?ict-of?
interest? laws apply to all the President?s subordinates, DOJ prosecutors are steeped in the notion
that it is illegal for an of?cial to touch a case in which he has a personal stake. But constitutionally,
as applied to the President, this mindset is entirely misconceived: there is no (ego! prohibition as
opposed a political constraint -- against the President?s acting on a matter in which he has a
personal stake.

The Constitution itself places no limit on the President?s authority to act on matters which
concern him or his own conduct. On the contrary, the Constitution?s grant of law enforcement
power to the President is plenary. Constitutionally, it is wrong to conceive of the President as
simply the highest of?cer within the Executive branch hierarchy. He alone is the Executive
branch. As such, he is the sole repository of of! Executive powers conferred by the Constitution.
Thus, the hill measure of law enforcement authority is placed in the President?s hands, and no limit
is placed on the kinds of cases subject to his control and supervision. While the President has
subordinates --the Attorney General and DOJ lawyers who exercise prosecutorial discretion on

his behalf, they are merely ?his hand,? Ponzi v. Fessenden, 258 US. 254, 262 (1922) the
discretion they exercise is the President?s discretion, and their decisions are legitimate precisely
because they remain under his supervision, and he is still responsible and politically accountable
for them.

Nor does any statute purport to restrict the President?s authority over matters in which he
has an interest. On the contrary, in 1974, the Department concluded that the con?ict-of interest-
laws cannot be construed as applying to the President, expressing ?serious doubt as to the
constitutionality? of a statute that sought ?to disempower? the President from acting over particular
matters. Letter to Honorable Howard W. Cannon from Acting Attorney General Laurence H.
Silberman, dated September 20, 1974; and Memorandum for Richard T. Burress, Office of the
President, from Laurence H. Silberman, Deputy Attorney General, Re: Con?ict of Interest
Problems Arising out of the Preside-nth Nomination of Nelson A. Rockefeller to he Vice President
under the Twenty-FWh Amendment to the Constitution at 2,35 (Aug. 28, 1974). As far as I am
aware, this is the only instance in which it has previously been suggested that a statute places a
class of law enforcement cases ?off limits? to the President?s supervision based on his personal
interest in the matters. The Department rejected that suggestion on the ground that Congress could
not ?disempower? the President from exercising his supervisory authority over such matters. For
all the same reasons, Congress could not make it a crime for the President to exercise supervisory
authority over cases in which his own conduct might be at issue.

The illimitable nature of the President?s law enforcement discretion stems not just from the
Constitution?s plenary grant of those powers to the President, but also from the ?unitary? character
of the Executive branch itself. Because the President alone constitutes the Executive branch, the
President cannot ?recuse? himself. Just as Congress could not en masse recuse itself, leaving no
source of the Legislative power, the President cannot take a holiday from his responsibilities. It is
in the very nature of discretionary power that ultimate authority for making the choice must be
vested in some final decision-maker. At the end of the day, there truly must be a desk at which
?the buck steps.? In the Executive, ?nal responsibility must rest with the President. Thus, the
President, ?though able to delegate duties to others, cannot delegate ultimate responsibility or the
active obligation to supervise that goes with it.? Free Enterprise Fund v. Public Co. Acctg.
Oversight 3d,, 130 S. Ct. 3138, 3154 (2010) (quoting Clinton v. Jones, 520 U.S. 631, 7124713
(1997) (Breyer, ., concurring in judgment)) (emphasis added).

In framing a Constitution that entrusts broad discretion to the President, the Framers chose
the means they thought best to police the exercise of that discretion. The Framers? idea was that,
by placing all discretionary law enforcement authority in the hands of a single ?Chief Magistrate?
elected by all the People, and by making him politically accountable for all exercises of that
discretion by himself or his agents, they were providing the best way of ensuring the ?faithful
exercise? of these powers. Every four years the people as a whole make a solemn national decision
as to the person whom they trust to make these prudential judgments. In the interim, the people?s
representatives stand watch and have the tools to oversee, discipline, and, if they deem appropriate,
remove the President from office. Thus, under the Framers? plan, the determination whether the
President is making decisions based on ?improper? motives or whether he is ?faithfully?
discharging his responsibilities is left to the People, through the election process, and the Congress,
through the Impeachment process.

The Framers? idea of political accountability has proven remarkably successful, far more
so than the disastrous experimentation with an ?independent? counsel statute, which both parties
agreed to purge from our system. By and large, fear of political retribution has ensured that, when
confronted with serious allegations of misconduct within an Administration, Presidents have felt
it necessary to take practical steps to assure the people that matters will be pursued with integrity.
But the measures that Presidents have adopted are voluntary, dictated by political prudence, and
adapted to the situation; they are not legally compelled. Moreover, Congress has usually been
quick to respond to allegations of wrongdoing in the Executive and has shown itself more than
willing to conduct investigations into such allegations. The fact that President is answerable for
any abuses of discretion and is ultimately subject to the judgment of Congress through the
impeachment process means that the President is not the judge in his own cause. See Nixon v.
Hariow, 457 US. 731, 757-58 n.41 (1982)(? The remedy of impeachment demonstrates that the
President remains accountable under law for his misdeeds in of?ce?)

Mueller?s core premise that the President acts ?corruptly? if he attempts to in?uence a
proceeding in which his own conduct is being scrutinized is untenable. Because the Constitution,
and the Department?s own rulings, envision that the President may exercise his supervisory
authority over cases dealing with his own interests, the President transgresses no legal limitation
when he does so. For that reason, the President?s exercise of supervisory authority over such a case
does not amount to ?corruption.? It may be in some cases politically unwise; but it is not a crime.
Moreover, it cannot be presumed that any decision the President reaches in a case in which he is
interested is ?improperly? affected by that personal interest. Implicit in the Constitution?s grant of
authority over such cases, and in the Department?s position that the President cannot be
?disempowered? from acting in such cases, is the recognition that Presidents have the capacity to
decide such matters based on the public?s long?term interest.

In today?s world, Presidents are frequently accused of wrongdoing. Let us say that an
outgoing administration say, an incumbent U.S. Attorney launches a ?investigation? of an
incoming President. The new President knows it is bogus, is being conducted by political
opponents, and is damaging his ability to establish his new Administration and to address urgent
matters on behalf of the Nation. It would neither be ?corrupt? nor a crime for the new President
to terminate the matter and leave any further investigation to Congress. There is no legal principle
that would insulate the matter from the President?s supervisory authority and mandate that he
passively submit while a bogus investigation runs its course.

At the end of the day, I believe Mueller?s team would have to concede that a President does
not act ?corruptly? simply by acting on even terminating a matter that relates to his own
conduct. But I suspect they would take the only logical fallback position from that namely, that
it would be ?corrupt? if the President had actually engaged in unlawful conduct and then blocked
an investigation to ?cover up? the wrongdoing. In other words, the notion would be that, if an
investigation was bogus, the President ultimately had legitimate grounds for exercising his
supervisory powers to stop the matter. Conversely, if the President had really engaged in
wrongdoing, a decision to stop the case would have been a corrupt cover up. But, in the latter case,
the predicate for ?nding any corruption would be first ?nding that the President had engaged in
the wrongdoing he was allegedly trying to cover up. Under the particular circumstances here, the

issue of obstruction only becomes ripe after the alleged collusion by the President or his campaign
is established first. While the distinct crime of obstruction can frequently be committed even if the
underlying crime under investigation is never established, that is true only where the obstruction
is an act that is wrongful in itself such as threatening a witness, or destroying evidence. But here,
the only basis for ascribing ?Wrongfulness? an improper motive) to the President?s actions is
the claim that he was attempting to block the uncovering of wrongdoing by himself or his
campaign. Until Mueller can show that there was unlawful collusion, he cannot show that the
President had an improper ?cover up? motive.

For reasons discussed below, I do not subscribe to this notion. But here it is largely an
academic question. Either the President and his campaign engaged in illegal collusion or they did
not. If they did, then the issue of ?obstruction? is a sideshow. However, if they did not, then the
cover up theory is untenable. And, at a practical level, in the absence of some wrongful act of
evidence destruction, the Department would have no business pursuing the President where it
cannot show any collusion. Mueller should get on with the task at hand and reach a conclusion on
collusion. In the meantime, pursuing a novel obstruction theory against the President is not only
premature but because it forces resolution of numerous constitutional issues grossly
irresponsible.

B. Using Obstruction Laws to Review the President?s Motives for Making 
Lawful Discretionary Decisions Impermissibiy Infringes on the President ?5
Constitutional Powers.

The crux of Mueller?s claim here is that, when the President performs a facially-lawful
discretionary action that in?uences a proceeding, he may be criminally investigated to determine
whether he acted with an improper motive. It is hard to imagine a more invasive encroachment on
Executive authority.

1. The Constitution Vests Discretion in the President To Decide Whether To Prosecute Cases or
To Remove Principal Executive O?icers, and Those Decisions are Not Reviewabie.

The authority to decide whether or not to bring prosecutions, as well as the authority to
appoint and remove principal Executive of?cers, and to grant pardons, are quintessentially
Executive in character and among the discretionary powers vested exciusively in the President by
the Constitution. When the President exercises these discretionary powers, it is presumed he does
so lawfully, and his decisions are generally non-reviewable.

The principle of non-reviewability inheres in the very reason for vesting these powers in
the President in the ?rst place. In governing any society certain choices must he made that cannot
be determined by tidy legal standards but require prudential judgment. The imperative is that there
must be some ultimate decisionenaker who has the ?nal, authoritative say -- at whose desk the
?buck? truly does stop. Any system whereby other of?cials, not empowered to make the decision
themselves, are permitted to review the ??nal? decision for ?improper motives? is antithetical both
to the exercise of discretion and its ?nality. And, even if review can censor a particular choice, it
leaves unaddressed the fact that a choice still remains to be made, and the reviewers have no power
to make it. The prospect of review itself undermines discretion. Wayte v. United States, 470 U. S.

598, 607- 608 (1985); of Franklin v. Massachusetts, 505 US. at 801. But any regime that proposes
to review and punish decision-makers for ?improper motives? ends up doing more harm than good
by chilling the exercise of discretion, ?dampen[ing] the ardor of all but the most resolute the
unflinching discharge of their duties.? Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir.
1949)(Learned Hand). In the end, the prospect of punishment chills the exercise of discretion over
a far broader range of decisions than the supposedly improper decision being remedied.
McDonneli, 136 at 2373.

For these reasons, the law has erected an array of protections designed to prevent, or strictly
limit, review of the exercise of the Executive discretionary powers. See, e. g, Nixon v. Fitzgerald,
457 US 731,749 (1982) (the President?s unique discretionary powers require that he have absolute
immunity from civil suit for his of?cial acts). An especially strong set of rules has been put in
place to insulate those who exercise prosecutoria] discretion from second-guessing and the
possibility of punishment. See. e. g, Imbier v. Pachonan, 424 U. S. 409 (1976); v. Go?; 275
U. S. 503 (1927), a??g 12 F. 2d 396 (2d Cir. 1926). Thus, ?it is entirely clear that the refusal to
prosecute cannot be the subject of judicial review.? See, ICC v. Brotherhood of Locomotive
Engineers, 482 U.S. 270, 283 (1987); United States v. Cox, 342 F.2d 167, 171-72 (5th Cir. 1965)
(The Attorney?s decision not to prosecute even where there is probable cause is ?a matter of
executive discretion which cannot be coerced or reviewed by the courts"); see also Heckler v.
Chaney, 470 US. 821, 831 (1985).

Even when there is a prosecutorial decision to proceed with a case, the law generally
precludes review or, in the narrow circumstances where review is permitted, limits the extent to
which the decision-makers? subjective motivations may be examined. Thus, a prosecutor?s
decision to bring a case is generally protected from civil liability by absolute immunity, even if
the prosecutor had a malicious motive. v. Golf} 275 U. S. 503 (1927), a??g 12 F. 2d 396 (2d
Cir. 1926). Even where some review is permitted, absent a claim of selective prosecution based on
an impermissible classification, a court ordinarily will not look into the prosecutor?s real
motivations for bringing the case as long as probable cause existed to support prosecution. See
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Further, even when there is a claim of selective
prosecution based on an impermissible classi?cation, courts do not permit the probing of the
prosecutor?s subjective state of mind until the plaintiff has ?rst produced objective evidence that
the policy under which he has been prosecuted had a discriminatory effect. United States v.
517 US. 456 (1996). The same considerations undergird the Department?s current
position in Hawaii v. Tramp, where the Solicitor General is arguing that, in reviewing the
President?s travel ban, a court may not look into the President?s subjective motivations when the
government has stated a facially legitimate basis for the decision. (SG ?s Merits Brief at 61).

In short, the President?s exercise of its Constitutional discretion is not subject to review for
?improper motivations? by lesser of?cials or by the courts. The judiciary has no authority ?to
enquire how the executive, or executive of?cers, perform duties in which they have a discretion.
Questions, in their nature political, or which are, by the constitution and laws, submitted to the
executive, can never be made? in the courts. Marbary v. Madison, 1 Cronoh (5 US.) 1' 3 7, 170
(I803).

2. Threatening criminal liability for faciaiiy-iawfui exercises of discretion, based soieiy on the
subjective motive, would impermissibty burden the exercise of core Constitutional Jpowers within
the Executive branch.

Mueller is effectively proposing to use the criminal obstruction law as a means of
reviewing discretionary acts taken by the President when those acts in?uence a proceeding.
Mueller gets to this point in three steps. First, instead of confining ?1512(c)(2) to inherently
wrongful acts of evidence impairment, he would now de?ne the actas recs of obstruction as any
act that in?uences a proceeding. Second, he would include within that category the of?cial
discretionary actions taken by the President or other public of?cials carrying out their
Constitutional duties, including their authority to control all law enforcement matters. The net
effect of this is that, once the President or any subordinate takes any action that in?uences a
proceeding, he has completed the aetus rens of the crime of obstruction. To establish guilt, all that
remains is evaluation of the President?s or of?cial?s subjective state of mind to divine whether he
acted with an improper motive.

Wielding ?1512(c)(2) in this way preempts the Framers? plan of political accountability
and violate Article II of the Constitution by impermissibly hardening the exercise of the core
discretionary powers within the Executive branch. The prospect of criminal prosecution based
solely on the President?s state of mind, coupled with the inde?nite standards of ?improper motive?
and ?obstruction,? would cast a pall over a wide range of Executive decision-making, chill the
exercise of discretion, and expose to intrusive and ?'eeuranging examination the President's (or his
subordinate?s) subjective state of mind in exercising that discretion

Any system that threatens to punish discretionary actions based on subjective motivation
naturally has a substantial chilling effect on the exercise of discretion. But Mueller?s proposed
regime would mount an especially onerous and unprecedented intrusion on Executive authority.
The sanction that is being threatened for improperly-motivated actions is the most severe possible
personal criminal liability. Inevitably, the prospect of being accused of criminal conduct, and
possibly being investigated for such, would cause of?cials ?to shrink? from making potentially
controversial decisions and sap the vigor with which they perform their duties. McDonnell v.
United States, 136 at 2372-73.

Further, the-chilling effect is especially powerful where, as here, liability turns solely on
the of?cial?s subjective state of mind. Because charges of of?cial misconduct based on improper
motive are ?easy to allege and hard to disprove,? Hartman v. Moore, 54? U.S. 250, 257-58 (2006),
Mueller?s regime substantially increases the likelihood of men'tless claims, accompanied by the
all the risks of defending against them. Moreover, the review contemplated here would be far more
intrusive since it does not turn on an objective standard such as the presence in the record of a
reasonable basis for the decision but rather requires probing to determine the President?s actual
subjective state of mind in reaching a decision. As the Supreme Court has observed, Hartow v.
Fitzgerald, 45? U.S. 800, 816-17 (1932), even when faced only with civil liability, such an inquiry
is especially disruptive:

[I]t now is clear that substantial costs attend the litigation of the subjective
good faith of government of?cials. Not only are there the general costs of

subjecting of?cials to the risks of trial distraction of officials from their
governmental duties, inhibition of discretionary action, and deterrence of able
people from public service. There are special costs to "subjective" inquiries
of this kind. judgments surrounding discretionary action almost
inevitably are in?uenced by the decisionmaker's experiences, values, and
emotions. These variables a background in which there often is no
clear end to the relevant evidence. Judicial inquiry into subjective motivation
therefore may entail broad-ranging discovery Inquiries of this kind can
be peculiarly disruptive of effective government.

Moreover, the encroachment on the Executive function is especially broad due to the wide
range of actors and actions potentially covered. Because Mueller de?nes the actas rears of
obstruction as any act that in?uences a proceeding, he is including not just exercises of
prosecutorial discretion directly deciding whether a case will proceed or not, but also exercises of
any other Presidential power that might collaterally affect a proceeding, such as a removal,
appointment, or grant of pardon. And, while Mueller?s immediate target is the President?s exercise
of his discretionary powers, his obstruction theory reaches all exercises of prosecutorial discretion
by the President?s subordinates, from the Attorney General, down the most junior line prosecutor.
It also necessarily applies to all personnel, management, and operational decision by those who
are responsible for supervising and conducting litigation and enforcement matters -- civil, criminal
or administrative on the President?s behalf.

A fatal ?aw with Mueller?s regime - and one that greatly exacerbates its chilling effect --
is that, while Mueller would criminalize any act ?corruptly? in?uencing a proceeding, Mueller can
offer no de?nition of ?corruptly.? What is the circumstance that would make an attempt by the
President to in?uence a proceeding ?corrupt?? Mueller would construe ?corruptly? as referring to
one?s purpose in seeking to in?uence a proceeding. But Mueller provides no standard for
determining what motives are legal and what motives are illegal. Is an attempt to in?uence a
proceeding based on political motivations ?corrupt.? Is an attempt based on self-interest? Based
on personal career considerations? Based on partisan considerations? On friendship or personal
af?nity? Due process requires that the elements of a crime be de?ned "with suf?cient de?niteness
that ordinary people can understand what conduct is prohibited," or "in a manner that does not
encourage arbitrary and discriminatory enforcement." See McDonneH, 136 at 2373. This,
Mueller?s construction of ?1512(c)(2) utterly fails to do.

It is worth pausing on the word ?corruptly,? because courts have evinced a lot of confusion
over it. -It is an adverb, modifying the verbs ?in?uence,? ?impede,? etc. But few courts have
deigned to analyze its precise adverbial mission. Does it refer to ?how? the in?uence is
accomplished tie, the means used to in?uence? Or does it refer to the ultimate purpose behind
the attempt to in?uence? As an original matter, I think it was clearly used to described the means
used to in?uence. As the D.C. Circuit persuasively suggested, the word was likely used in its 19??
century transitive sense, connoting the turning (or corrupting) of something from good and fit for
its purpose into something bad and un?t for its purpose hence, ?corrupting? a magistrate; or
?corrupting? evidence. United States v. Poindexter, 951 F.2d 369 (DC. Cir.1991). Understood
this way, the ideas behind the obstruction laws come more clearly into focus. The thing that is

corrupt is the means being used to in?uence the proceeding. They are inherently wrong because
they involve the corruption of decision-makers or evidence. The culpable intent does not relate to
the actor?s ultimate motive for using the corrupt means. The culpable state of mind is merely the
intent that the corrupt means bring about their immediate purpose, which is to sabotage the
proceeding?s truth-?nding function. The actor?s ultimate purpose is irrelevant because the means,
and their immediate purpose, are dishonest and malign. Further, if the actor uses lawful means of
influencing a proceeding such as asserting an evidentiary privilege, or bringing public opinion
pressure to bear on the prosecutors then his ultimate motives are likewise irrelevant. See Arthur
Auden-ion, 544 US. at 703-707. Even if the actor is guilty of a crime and his only reason for acting
is to escape justice, his use of lawful means to impede or in?uence a proceeding are perfectly
legitimate.

Courts have gotten themselves into a box whenever they have suggested that ?corruptly?
is not con?ned to the use of wrongful means, but can also refer to someone?s ultimate motive for
using lawful means to in?uence a proceeding. The problem, however, is that, as the courts have
consistently recognized, there is nothing inherently wrong with attempting to in?uence or impede
a proceeding. Both the guilty and innocent have the right to use lawful means to do that. What is
the motive that would make the use of lawful means to influence a proceeding ?corrupt?? Courts
have been thrown back on listing ?synonyms? like ?depraved, wicked, or bad.? But that begs the
question. What is depraved the means or the motive? If the latter, what makes the motive
depraved if the means are within one?s legal rights? Fortunately for the courts, the cases invariably
involve evidence impairment, and so, after stumbling around, they get to a workable conclusion.
Congress has also taken this route. Poindexrer struck down the omnibus clause of ?1505 on the
grounds that, as the sole definition of obstruction, the word ?corruptly? was unconstitutionally
vague. 951 F.2d at 377-86. Tellingly, when Congress sought to ?clarify? the meaning of
?corruptly? in the wake of Poindexi?er, it settled on even more vague language ?acting with an
improper motive" and then proceeded to qualify this definition further by adding, ?including
making a false or misleading statement, or withholding, concealing, altering, or destroying a
document or other information." 18 U.S.C. ?1515(b). The fact that Congress could not de?ne
?corruptly? except through a laundry list of acts of evidence impairment strongly confirms that, in
the obstruction context, the word has no intrinsic meaning apart from its transitive sense of
compromising the honesty of a decision-maker or impairing evidence.

At the end of the day then, as long as ?1512 is read as it was intended to be read 122., as
prohibiting actions designed to sabotage a proceeding?s access to complete and accurate evidence
-- the term ?corruptly? derives meaning from that context. But once the word ?corruptly? is
deracinated from that context, it becomes essentially meaningless as a standard. While Mueller?s
failure to define ?corruptly? would be a Due Process violation in itself, his application of that
?shapeless? prohibition on public of?cials engaged in the discharge of their duties impermissibly
encroach on the Executive function by ?cast[ing] the pull of potential prosecution? over a broad
range of lawful exercises of Executive discretion. McDonnell, 136 at 2373-74.

The chilling effect is magni?ed still further because Mueller?s approach fails to de?ne the
kind of impact an action must have to be considered an ?obstruction." As long as the concept of
obstruction is tied to evidence impairment, the nature of the actions being prohibited is discemable.
But once taken out of this context, how does one differentiate between an unobj actionable

?influence? and an illegal ?obstruction?? The actions being alleged as obstructions in this case
illustrate the point. Assuming arguendo that the President had motives such that, under Mueller?s
theory, any direct order by him to terminate the investigation would be considered an obstruction,
what action short of that would be impermissible? The removal of Comey is presumably being
investigated as ?obstructive? due to some coliateral impact it could have on a proceeding. But
removing an agency head does not have the natural and foreseeable consequence of obstructing
any proceeding being handled by that agency. How does one gauge whether the collateral effects
of one?s actions could impermissibly affect a proceeding?

The same problem exists regarding the President?s comments about Even if the
President?s motives were such that, under Mueller?s theory, he could not have ordered termination
of an investigation, to what extent do comments short of that constitute obstruction? On their face,
the President?s comments to Comey about seem unobjectionable. He made the accurate
observation that call with the Russian Ambassador was perfectly proper and made the
point that who had now suffered public humiliation from losing his job, was a good man.
Based on this, he expressed the ?hope? that Comey could ?see his way clear? to let the matter go.
The formulation that Comey ?see his way clear,? explicitly leaves the decision with Comey. Most
normal subordinates would not have found these comments obstructive. Would a superior?s
questioning the legal merit of a case be obstructive? Would pointing out some consequences of
the subordinate?s position be obstructive? Is something really an ?obstruction? if it merely is
pressure acting upon a prosecutor?s Is the ohstructiveness of pressure gauged objectively
or by how a subordinate subjectively apprehends it?

The practical implications of Mueller?s approach, especially in light of its ?shapeless?
concept of obstruction, are astounding. lawyers are always making decisions that invite the
allegation that they are improperly concluding or constraining an investigation. And these
allegations are frequently accompanied by a claim that the of?cial is acting based on some
nefarious motive. Under the theory now being advanced, any claim that an exercise of
prosecutorial discretion was improperly motived could legitimately be presented as a potential
criminal obstruction. The claim would be made that, unless the subjective motivations of the
decision maker are thoroughly explored through a grand jury investigation, the putative ?improper
motive? could not be ruled out.

In an increasingly partisan environment, these concerns are by no means trivial. For
decades, the Department has been routinely attacked both for its failure to pursue certain matters
and for its decisions to move forward on others. Especially when a house of Congress is held by
an opposing party, the Department is almost constantly being accused of deliberately scuttling
enforcement in a particular class of cases, usually involving the environmental laws. There are
claims that cases are not being brought, or are being brought, to appease an Administration?s
political constituency, or that the Department is failing to investigate a matter in order to cover up
its own wrongdoing, or to protect the Administration. Department is bombarded with requests to
name a special counsel to pursue this or that matter, and it is frequently claimed that his reluctance
to do so is based on an improper motive. When a supervisor intervenes in a case, directing a course
of action different from the one preferred by the subordinate, not infrequently there is a tendency
for the subordinate to ascribe some nefarious motive. And when personnel changes are made as

for example, removing a U.S. Attorney there are sometimes claims that the move was intended
to truncate some investigation.

While these controversies have heretofore been waged largely on the ?eld of political combat,
Mueller?s sweeping obstruction theory would now open the way for the ?criminalization? of these
disputes. Predictably, challenges to the Department?s decisions will be accompanied by claims that
the Attorney General, or other supervisory of?cials, are ?obstructing? justice because their
directions are improperly motivated. Whenever the slightest colorable claim of a possible
?improper motive? is advanced, there will be calls for a criminal investigation into possible
?obstruction.? The prospect of being accused of criminal conduct, and possibly being investigated
for such, would inevitably cause of?cials ?to shrink? from making potentially controversial
decisions.