Professor Andrew Kent co-wrote a piece for Lawfare on Trump’s constitutional defense to obstruction of justice.
There are two related issues here that can usefully be considered separately. The first, which has been debated extensively at Lawfare, is whether Mueller erred when he declined to apply a clear statement rule to the obstruction of justice statutes. Jack Goldsmith and others have argued that this rule should have been applied to Trump’s actions that involved uses of Article II powers. Applying this rule to the relevant obstruction statute, 18 U.S.C. § 1512(c), they argue, would exempt Trump’s actions because the statute does not clearly state that it covers presidents; the statute’s text instead covers corruptly motivated obstructive acts by “[w]hoever” commits them.
A second issue, which has also received attention at Lawfare from Benjamin Wittes, Quinta Jurecic and others, is constitutional: Are separation of powers principles violated by the application of the obstruction statutes to presidential action facially within Article II authorities? In that case, criminal liability would turn on proving the presence of a corrupt intent for taking an otherwise lawful action. The Mueller report considered this question in some detail and answered in the negative. This conclusion and its supporting analysis have likewise been criticized on various grounds.
But as we explain below, Mueller’s take on the second, constitutional question is consistent with the text, history, structure and principles of the Constitution, as well as the Supreme Court’s case law on the subject. We have only sketched an argument here; full development of it would take much more time and space.