Meta-Obstruction of Justice

(Written with Daniel Hemel.)

Can a President be guilty of obstruction of justice for firing a special counsel who is investigating whether the President committed obstruction of justice?

The question might not be hypothetical. A friend of the President, Newsmax Media CEO Christopher Ruddy, told PBS NewsHour Monday evening that Trump is “perhaps considering terminating the special counsel.” Ruddy reportedly reiterated that view in a text message to the Washington Post.

As a constitutional matter, Trump would probably have to direct the Deputy Attorney General, Rod Rosenstein, to do the firing. If Rosenstein refused, then President Trump could fire Rosenstein. Ultimately, he could almost certainly find someone at the Justice Department (or elsewhere in his Cabinet) who would issue the order to terminate Mueller, though this might require a few more firings along the way.

But that still leaves the question: Would firing the special counsel amount to criminal obstruction? (Or perhaps “meta-obstruction”: the obstruction of an obstruction investigation?) A similar question arose during Watergate, when the House charged Nixon with obstruction of justice because (among other misdeeds) he fired special prosecutor Archibald Cox, who was initially retained to investigate “offenses arising out of the 1972 election,” which ultimately would include obstruction of justice.

The legal analysis of meta-obstruction isn’t all that different from the analysis of obstruction plain vanilla. Firing a special counsel who is himself investigating obstruction allegations would likely satisfy the actus reus element: “influenc[ing], obstruct[ing], or imped[ing] . . . the due and proper administration of the law under which a[] pending proceeding is being had before a[] department or agency of the United States.” There might be some question as to whether a special counsel investigation counts as a pending proceeding before a federal department or agency, though at least for impeachability purposes, the precedent from both the Nixon and Clinton episodes indicates that the House considers the obstruction of a special prosecutor or independent counsel inquiry to be a high crime or misdemeanor.

But as we have argued in the context of plain-vanilla obstruction, obstruction’s mens rea element is much harder to nail down. The statutory question is whether the President acted “corruptly,” i.e., “with an improper purpose.” We have also argued that a President acts with an improper purpose if he seeks to shut down an investigation that he believes might bring to light evidence of criminal conduct, or possibly merely embarrassing behavior, by himself, his family members, or his close political associates, unless he can show that he acted consistently with his constitutional role as the faithful executor of federal laws and as commander-in-chief.

How does this apply to meta-obstruction? A first question would be whether the President believes that the special counsel’s investigation might turn up evidence of criminal conduct. So to get even more meta: If the President believes that he himself might have committed obstruction, then intervening in the special counsel’s investigation of his own obstruction would also probably be obstruction. But whether the President committed plain-vanilla obstruction depends on his motives for interfering with the initial investigation into ties between his aides and the Russian government. So we arrive at a question of meta-mens rea: if the President intervened in the initial FBI probe for corrupt reasons, then his intervention in the obstruction investigation would likely be corrupt as well.

The President might defend himself from allegations of meta-obstruction by arguing that he fired the special counsel for entirely proper reasons. He might argue that Mueller is compromised by his reported friendship with former FBI Director James Comey, or motivated by partisan interest. He could also possibly argue that the investigation has undermined his ability to govern—which sounds self-serving but remember that this concern motivated abandonment of the independent counsel statute. One can imagine an argument that the president should not be allowed to shut down an investigation of a primary crime (hotel burglary, electoral manipulation) but should be allowed to shut down an investigation into obstruction of justice, just because the latter law is dangerously ambiguous and gives zealous prosecutors too much discretion.