Note:This is the first part of a series of articles breaking down Volume II of the Mueller Report. Subsequent articles will break down each individual instance of potential obstruction of justice as presented within the Mueller Report. Sign up for the newsletter to receive updates on this series.
Another Democrat has signed on to impeachment this time Missouri Rep. Lacy Clay (D). As more Democrats like Clay file for articles of impeachment against Trump, the fury of the Left is only ramping up. The Missouri Rep stated, “Impeachment is the only constitutionally available remedy that would directly address President Trump’s blatant and repeated attempts to obstruct justice.”
While there is a small chance of impeachment being successful in the House of Representatives, there is zero percent chance Trump would be removed from office by the Senate. Impeachment is nothing more than a political proceeding that ends with a trial in the Senate. On the other hand only 51% of the House is needed to impeach, whereas 66% of the Senate is needed to actually remove a sitting president. Upon the findings of the trial, a president is either convicted and removed from office or the president is acquitted and remains. A failure to convict in the Senate would actually hurt the Democrat controlled House. With Democrats in full attack mode, filing articles of impeachment every year Trump has been in office, an understanding of his alleged impeachable offenses is required.
What are the accusations?
Trump has been accused of obstructing justice, and while it is one thing for politicians and political pundits to yell from the rooftops that Trump obstructed justice, it is another thing to actually prove Trump obstructed justice. The latest article of impeachment accuses Trump of obstructing justice by “requesting that the Director of the FBI curtail the investigation” of General Flynn and “making a determination to terminate” FBI director Comey.
Talking heads keep saying that Mueller specifically documented that Trump obstructed justice. However, that is simply untrue. In the report Mueller clearly states that “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.” Mueller Report, Volume 2, Pg. 8. Mueller’s report continues “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” Simply put, Muller hedged his bet on obstruction of justice. Mueller did not exonerate Trump, but Mueller specifically stated that there are difficult decisions that would need to be resolved.
So what exactly are the difficult decisions that would need to be resolved? Mueller lays them out. However, no one seems to discuss them. Most likely because they require a level of understanding of the law and statutes or because it is not such a cut-and-dry case for obstruction of justice as people would lead the public to believe.
What is Obstruction of Justice?
In order for obstruction of justice to have occurred, there must be (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. Mueller Report, Volume 2, Pg. 9. What the heck does this all mean? Simply put, using Trump’s situation as the example, Trump must have committed an act that directly obstructed a government investigation with the intent to obstruct the investigation. The term corruptly is very important and is defined as “knowingly and dishonestly” or “with an improper motive.” And to be honest, if Trump were not President of the United States, he probably could have been indicted on obstruction of justice. So clearly that means he should be impeached and would have been indicted but for him being President and the Department of Justice guidelines, right? WRONG!
Why Mueller's mandate was never to find obstruction.
The Mueller Report focuses on specific instances of potential obstruction, acts, and firings. However, Mueller only briefly brushed the topic of Constitutional power, most likely because in a traditional prosecution, it would be the defense attorney’s job to present the case that there was not obstruction of justice. Mueller specifically leaves out most of the constitutional defenses and powers that should have been examined, and would have been examined under a normal prosecution. Why were these defenses left out? Because it is never the prosecution’s job to exonerate a suspect. So while Mueller specially says it does not exonerate the President, it is simply because it was not the job of the Special Counsel to exonerate the President, much less exonerate the President on constitutional issues that have never been adjudicated and decided before. The reason being, constitutionally, to say a President obstructed justice by exercising his Constitutional power would be the death of our Constitution. This is the reason why Mueller stated the decision to prosecute presented difficult issues that would have to be resolved first.
Where the Constitution is on this topic.
The difficult issues are Constitutional issues: whether the President has unitary control of the Executive Branch, to put a fine point on it. Constitutionally, the President can start and stop an investigation as he deems fit, and the President can fire people under his control as he wishes. These are the President’s Constitutional Powers granted to him in Article 2 of the United States Constitution. Not only are these items enumerated in the Constitution, they are also well established by the Framers of the Constitution.
The President of the United States is to execute the laws of the United States, and the Framers spoke at great length upon the issue of whose power it was to prosecute a crime. In the Federalists Papers, the Framers saw the separation of the powers to prosecute from the power to legislate as essential to preserving individual liberty. The United States Supreme Court has ruled on this in Buckley v. Valeo. The Court stated that Congress may not mandate the prosecution of violators of a law, and that it is the President’s prosecutorial discretion and pardon powers operate as an independent protection for individual citizens against the enforcement of laws Congress has passed. James Madison wrote extensively on the separation of the branches and why this was needed:
“When the legislative and executive powers are united in the same person
or body, there can be no liberty, because apprehensions may arise lest the
same monarch or senate should enact tyrannical laws to execute them in a
tyrannical manner. Again: where the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary
control, foe the judge would then be the legislator. Were it joined to the
executive power, the judge might behave with all the violence of an oppressor.”
Furthermore, Chief Justice John Marshall himself weighed in on this topic:
“The Executive’s exclusive authority to prosecute violations of the law gives
rise to the corollary that neither the Judicial nor Legislative Branches may
directly interfere with the prosecutorial discretion of the Executive by directing
the Executive Branch to prosecute individuals. The President may direct that the
criminal be prosecuted no further. This is the exercise of an indubitable and a constitutional power.”
In summary, the Framers specifically laid out that the President has the power to start and stop prosecutions as he deems fit. It is his—and his alone—Constitutional Power. A President cannot obstruct justice when it is his power to enforce justice. However, there are instances where a president can obstruct justice during an investigation by the Department of Justice, such as bribing people, committing perjury, and paying people for favorable testimony. However, Trump has not done any of these acts according to Mueller. Bill Clinton and Richard Nixon, on the other hand, did commit these acts of obstruction.
The President also has full authority over those within his branch of government. He can fire officers as he wishes. Chief Justice John Marshall addressed this in the landmark case Marbury v. Madison. The Court stated the president is vested with certain important political powers: he is authorized to appoint certain officers, and their acts are his acts, and these officers are to conform precisely to the will of the president. Most importantly, the Court stated these officers are removable at the will of the president. This power dates back to George Washington who removed at least seventeen Officers within the Executive Branch. It is believed more were removed, but records at the time did not keep track of inferior officers. The Supreme Court has directly ruled on the president’s authority to fire officer as he wishes in Bowsher v. Synar. The Court stated the President has the power to remove an official engaged in any executive function. Any attempt by Congress to reserve itself the power to remove an officer charged with the execution of the laws is a violation of the Constitution. The structure of the Constitution does not permit Congress to execute the laws. Even Mueller stated that the President has authority to remove officers in the Executive.
Accordingly, a sitting President cannot, constitutionally, obstruct justice by directing the Department of Justice or the FBI to start or stop an investigation, because the DOJ and FBI are under the President’s control within the Executive. It is the President’s constitutional power to control investigations, so when Trump asked Comey “I hope you can see your way clear to letting this go, to letting Flynn go,” the President has full authority to do such. And when the President fired FBI Director James Comey, he was fully in his authority to do such. Trump could have fired him for the way he tied his shoes, for who he was investigating, or for why he was investigating—it is literally the president’s power to do such.
Note:This is the first part of a series of articles breaking down Volume II of the Mueller Report. Subsequent articles will break down each individual instance of potential obstruction of justice as presented within the Mueller Report.