Professor Andrew Kent wrote an article for Lawfare that takes a detailed look at obstruction of justice statutes.
An important debate is happening at Lawfare and elsewhere about Special Counsel Robert Mueller’s application of the obstruction of justice statutes to conduct by President Trump. Jack Goldsmith argues that Mueller’s analysis of the obstruction statutes does not stand up to close scrutiny. Benjamin Wittes argues that it does.
By way of background, the obstruction of justice statutes do not expressly state that they apply to the president. The most relevant statute, 18 U.S.C. § 1512(c), applies to “[w]hoever” corruptly interferes with an ongoing proceeding. The Mueller report concluded that this statute applied to Trump’s actions, and marshalled significant evidence that it was violated several times by the president.
Goldsmith, William Barr (while a private citizen) and others have made the argument that statutes like § 1512, which do not expressly apply to the president, must be construed as not constraining the president if such application would involve a possible conflict with the president’s constitutional prerogatives. They trace this clear statement rule primarily to a 1992 Supreme Court case—Franklin v. Massachusetts, which concluded that the president is not an “agency” under the Administrative Procedure Act (APA)—and several opinions by the Department of Justice Office of Legal Counsel (OLC), including one issued in 1995. The purpose of this clear statement rule is to protect the constitutional prerogatives of the presidency.