(Written with Daniel Hemel.)
We argued in a prior post that a President who fires the FBI Director in order to halt the investigation of the President’s former aide can—under certain circumstances—be guilty of obstruction of justice. Motive matters. If the President wants to halt the investigation because the former aide has offered him a bribe, the President would be acting “corruptly”—and thus criminally. But we can also imagine circumstances in which the President’s intervention in an investigation would be a legitimate exercise of executive power. Drawing the line between criminal obstruction and prosecutorial discretion is not an easy task. But it is also clear that criminal obstruction statutes can apply to executive branch officials who wield prosecutorial power—as illustrated by the indictment and conviction of Nixon Attorney General John Mitchell on obstruction charges.
Imagine that the President wants to halt the investigation because he knows that the former aide, while working on behalf of the President’s campaign, helped a hostile power influence the outcome of the U.S. general election. The President seeks to stop the FBI’s probe in order to prevent this information from coming to light. If the information does come to light, the aide and possibly the President himself could be found guilty of a serious crime. This seems like textbook obstruction of justice: intervening in an investigation—and thereby impeding the “due and proper administration of the law”—based on a motive that is fundamentally corrupt.
Now imagine instead that the President wants to halt the investigation because he knows that during the interregnum between the general election and the President’s inauguration, the former aide—acting on the President-elect’s behalf—sought to open a secret backchannel with a historical adversary. The negotiations were aimed at achieving a comprehensive Middle Eastern peace accord, or a new nuclear nonproliferation pact, or the release of U.S. hostages. Moreover, the President believes that it would diminish the prospects for diplomatic success if the existence of these talks came to light prematurely. Here, we think it’s clear that the President’s intervention does not constitute obstruction: the President should have the power to suspend an investigation when he believes the national interest demands it.
A natural test for obstruction might thus be a case in which the President seeks to immunize himself from conviction of some (underlying) crime. But this seems too narrow. Consider some intermediate cases, where the president halts an investigation into possible collusion between his former aide and a foreign power because:
— (1) The investigation might reveal unflattering facts about the President, top aides, or his family;
— (2) The investigation might distract attention from the President’s domestic policy agenda; and/or
— (3) The investigation might impose financial, professional, and emotional costs on the former aide, a man whom the President regards highly.
These are all harder cases. We think a reasonable approach would be to say that a President commits obstruction of justice when he seeks to stop an investigation that he believes may bring to light evidence of criminal activity by himself, his family members, or his top aides, and possibly merely embarrassing information as well (scenario 1, and, we think, scenario 3). But it should be a defense if the President can show that he acted consistently with his constitutional role as the faithful executor of federal laws and as commander in chief. A President who stops an investigation because of urgent national security priorities would not be criminally liable.
Consider now scenario (2): the President stops the investigation because it might prove to be a distraction that prevents him from passing health care legislation or comprehensive tax reform. We think this would indeed amount to obstruction. The President’s constitutional role is to “take Care that the Laws be faithfully executed,” not to enforce the laws selectively so as to maximize his probability of political victory.
This analysis assumes that the President acts on a single motive for intervening in an investigation. But what if the President acts for multiple reasons—one that would constitute obstruction and one that would not? Imagine, for example, that the President fires the FBI Director because (1) he wants to cover up evidence of wrongdoing by his own campaign, but also (2) thinks that the FBI Director mishandled a high-profile probe of the President’s election opponent and sullied the bureau’s reputation along the way. Does the fact that the President had at least one “good” motive inoculate him from criminal liability?
The problem of mixed motives in obstruction-of-justice cases is not unique to the presidential context. Courts have long wrestled with the same question as applied to non-presidential defendants. We know of no case holding that any ounce of proper purpose requires acquittal (though the Trump administration takes the analogous position that the existence of any legitimate reason for the President’s travel ban excuses concurrent discriminatory motives for the policy). A “primary purpose” test, which can be found in other areas of the criminal law, might serve here.