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Mueller Whiffed on a Crucial Legal Question

April 19, 2019 in Economics

By Josh Blackman

Josh Blackman

The special counsel’s report spans more than 400 pages.
However, only 12 pages are dedicated to a critical question: Can
the federal obstruction of justice statute apply to the president?
Robert Mueller treated this question—which is separate from
whether a sitting president can be indicted—in an
underwhelming fashion.

Attorney General Barr stated in his press conference Thursday that he
“disagreed with some of the special counsel’s legal
theories.” I can speculate about one such theory: Mueller
failed to do the necessary work to show that the precedents of the
Supreme Court, and the Justice Department, support the application
of the obstruction statute in this context.

Can the federal
obstruction of justice statute apply to the president?

Mueller could have avoided the entire second volume of his
report—which spends 182 pages summarizing his obstruction of
justice investigation—if he had simply concluded that the
obstruction statute does not apply to the president. There is no
reason to detail whether the president violated a federal law, if
the federal law does not apply to the president.

The Supreme Court has historically been hesitant to resolve
disputes between Congress and the president, and its justices have
suggested that general statutes should not limit the
president’s power unless Congress expressly indicated an
intent to do so. Mueller declined to exercise this caution. Why?
First, he reasoned, the Office of Legal Counsel has suggested that
applying the federal bribery statute to the president “raises
no separation of powers questions.” Second, Mueller reasoned
that the prohibition on obstruction was indistinguishable from the
prohibition on bribery. Therefore the obstruction statute could be
applied to the president.

This analogy between bribery and obstruction, which supports
much of Mueller’s analysis, falters. Accepting a bribe is an
impeachable offense that cannot in any situation be considered a
lawful exercise of presidential authority. An obstruction charge is
very different. For example, Mueller implies that Trump’s removal
of James Comey as the FBI director, with a corrupt intent, could
constitute obstruction of justice. The president’s lawyers
countered that the termination was a lawful exercise of
presidential authority. Applying the obstruction statute to the
president raises separation of powers questions that the bribery
statute does not. Mueller should have taken this more restrained,
and correct, approach.

is a constitutional law professor at the South Texas
College of Law Houston, and an adjunct scholar at the Cato
Institute. …read more

Source: OP-EDS

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