Revisiting the Mueller Report in Light of Trump v. United States

Chief Justice Roberts's majority decision in Trump v. United States undermines key aspects of Mueller's framework.

In May 2017, President Trump fired FBI Director James Comey. That decision triggered Acting Attorney General Rod Rosenstein's appointment of Robert Mueller as Special Counsel. That investigation would span the bulk of Trump's term. Although Trump was ultimately not indicted, Mueller released a 400-page report that identified a series of what could have been indictable offenses, but for DOJ policy which prohibited the indictment of a sitting President.

Many of the constitutional issues that Mueller grappled with were unsettled when his report was written.Nixon v. Fitzgerald spoke to civil presidential immunity, but the Supreme Court had never addressed presidential criminal immunity. Seven years later,  Chief Justice Roberts's majority decision in Trump v. United States has undermined key aspects of Mueller's framework. Indeed, with the benefit of hindsight, I do not even think Rosenstein's decision to appoint Mueller in the first place would have been proper. Firing Comey was a "core" exercise of Article II powers that could not be criminalized by a generally-applicable obstruction statute.  I alluded to this point in my post about why the Chief Justice wrote such a sweeping opinion. Here, I will compare and contrast Mueller on Trump, and Roberts on Trump.

First, Chief Justice Roberts explains that the President's exercise of the removal power is a "core" power, which Congress cannot criminalize.

Some of the President's other constitutional powers also fit that description. "The President's power to remove—and thus supervise—those who wield executive power on his behalf," for instance, "follows from the text of Article II." Seila Law LLC v. Consumer Financial Protection Bureau (2020). We have thus held that Congress lacks authority to control the President's "unrestricted power of removal" with respect to "executive officers of the United States whom he has appointed." Myers v. United States (1926); see Youngstown (Jackson, J., concurring) (citing the President's "exclusive power of removal in executive agencies" as an example of "conclusive and preclusive" constitutional authority); cf. Seila Law (noting only "two exceptions to the President's unrestricted removal power").

And that robust removal power is at its apex with regard to prosecutorial decisions:

Investigative and prosecutorial decisionmaking is "the special province of the Executive Branch," Heckler v. Chaney (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump's threatened removal of the Acting Attorney General likewise implicates "conclusive and preclusive" Presidential authority. As we have explained, the President's power to remove "executive officers of the United States whom he has appointed" may not be regulated by Congress or reviewed by the courts. Myers. The President's "management of the Executive Branch" requires him to have "unrestricted power to remove the most important of his subordinates"—such as the Attorney General—"in their most important duties." Fitzgerald.

This passage would seem to negate any potential criminal liability for Trump's firing of James Comey, and his threats to fire Acting Attorney General Rod Rosenstein as a means to thwart the Mueller investigation. Full stop. If Chief Justice Roberts is correct, Mueller should have never been appointed in the first instance. Moreover, Mueller would have no claim that the threatened-firing of Rosenstein is a form of "obstruction." I think Fischer provides more support for that conclusion.

Second, the Court finds that the President's seeking of advice and counsel from his principal officers are also part of his "core" powers:

Certain allegations—such as those involving Trump's discussions with the Acting Attorney General—are readily categorized in light of the nature of the President's official relationship to the office held by that individual. . . .

The indictment's allegations that the requested investigations were "sham[s]" or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Robert Mueller spent countless hours interviewing the President's advisors, including people at the Department of Justice and the White House Counsel's Office. Those interrogations severely compromised the President's ability to seek advise from his administration. The lawyers all feared that they might be indicted!

And to what end? Mueller was trying to probe what Trump told them, what Trump asked them, and what Trump's intentions were. But this passage by the Court suggests that these conversations could not form the basis of criminal liability. Merely seeking advice from advisors, including principal officers, is "absolutely immune." Indeed, the Opinions Clause gives the President the power to request opinions from his "Principal Officers." (This provision made an appearance in Trump v. New York.) Mueller should have never interrogated the President's advisors, and attempted to impose criminal liability on the basis of the President's requests for advice.

Third, the Court embraces a clear-statement rule with regard to the presidency. Specifically, the Court attributes the clear-statement rule to the Department of Justice, and then agrees with that attribution.

For instance, the Government does not dispute that Congress may not criminalize Presidential conduct within the President's "conclusive and preclusive" constitutional authority. See Tr. of Oral Arg. 133 ("[C]ore powers . . . can't be regulated at all, like the pardon power and veto."); see also id., at 84–85. And it too accords protection to Presidential conduct if subjecting that conduct to generally applicable laws would "raise serious constitutional questions regarding the President's authority" or cause a "possible conflict with the President's constitutional prerogatives." Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 351–352 (1995); see Brief for United States 26–29; Tr. of Oral Arg. 78. Indeed, the Executive Branch has long held that view. The Office of Legal Counsel has recognized, for instance, that a federal statute generally prohibiting appointments to " 'any office or duty in any court' " of persons within certain degrees of consanguinity to the judges of such courts would, if applied to the President, infringe his power to appoint federal judges, thereby raising a serious constitutional question. 19 Op. OLC, at 350 (quoting 28 U. S. C. §458); see id., at 350–352. So it viewed such a statute as not applying to the President. Likewise, it has narrowly construed a criminal prohibition on grassroots lobbying to avoid the constitutional issues that would otherwise arise, reasoning that the statute should not "be construed to prohibit the President or executive branch agencies from engaging in a general open dialogue with the public on the Administration's programs and policies." Constraints Imposed by 18 U. S. C. §1913 on Lobbying Efforts, 13 Op. OLC 300, 304 (1989); see id., at 304–306.

During the Mueller investigation, there were non-stop debates about whether such a "clear statement" rule actually exists. No backing down now. I think the Court has settled this issue. OLC opinions will cite this passage for generations to come. And were there any doubt, see Footnote 3 of Justice Barrett's concurrence:

[1] FN3: The Court has sometimes applied an avoidance canon when interpreting a statute that would interfere with the President's prerogatives. See, e.g., Franklin v. Massachusetts (1992); Public Citizen v. Dept. of Justice (1989); Sale v. Haitian Centers Council, Inc. (1993). The Office of Legal Counsel has advocated for a clear-statement rule if applying a statute would "raise serious constitutional questions relating to the President's constitutional authority." In my view, neither canon applies in this circumstance. Courts should instead determine the statute's ordinary meaning and, if it covers the alleged official acts, assess whether prosecution would intrude on the President's constitutional authority.

Barrett disagrees with the majority's application of this "avoidance canon." But Roberts has five solid votes for the clear statement rule. (In another post, I will try to tease out where Barrett and the majority actually agree–there is not much overlap.) During oral argument in Trump v. United States, Justice Kavanaugh cited the importance of the clear statement rule. Indeed, this disagreement echoes disputes over the major questions doctrine. In Biden v. Nebraska, Justice Barrett rejected the validity of substantive cannons altogether. By contrast, in West Virginia v. EPA, Justice Gorsuch conceptualized the major questions doctrine as a clear statement rule, in service of the non-delegation doctrine. I've made this point before, but I think Barrett is alone on this point, and the rest of the Court is comfortable with clear statement rules.

The Court states that even a "generally applicable" statute cannot criminalize the President's constitutional powers:

It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power.

And in dissent, Justice Jackson regrets the application of this canon:

The majority's new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society.

The clear statement Rule, and the presidential avoidance cannon, prevail.

Fourth, the Court is quite emphatic that it is not proper to probe the President's subjective motivations:

In dividing official from unofficial conduct, courts may not inquire into the President's motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, "[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government" if "[i]n exercising the functions of his office," the President was "under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry." Fitzgerald. We thus rejected such inquiries in Fitzgerald.

This holding is entirely consistent with Trump v. Hawaii, where the Court refused to probe Donald Trump's subjective motivations with respect to the travel ban. By contrast, all of the lower courts were giddy to treat every single tweet as if it was a psychological profile.

Back to the Mueller report. The Special Counsel spent page-after-page trying to determine whether Donald Trump was motivated by some sort of "corrupt" intentions, which would take his actions outside the protections of the Take Care Clause. Yes, remember the Take Care Clause? There was even a blog by that name. (It's been awfully silent of late.) The argument went that when the President has a "corrupt" intent, he is not "faithfully" executing the law, therefore those actions can be criminalized. The Court emphatically rejects that analysis. Roberts explains:

The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to "take Care that the Laws be faithfully executed." Art. II, §3.

And the President's motivations behind those prosecutions are not subject to judicial review. Indeed, Roberts extends this conception of the Take Care Clause to an area where there are no specific federal laws for the President to enforce, such as the counting of electoral votes:

On Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President's duty to "take Care that the Laws be faithfully executed" plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3.

Again, Congress passes election laws, but the President has no particular role to enforce them. Yet the President's actions still fall under the aegis of the Take Care Clause.

This capacious conception of the Take Care Clause conflicts with much of the scholarship that germinated during the first Trump administration. Again, as proof of how broadly the majority reads the Take Care Clause power, consider Justice Barrett's Footnote 1:

Consistent with our separation of powers precedent, I agree with theCourt that the supervision and removal of appointed, high ranking Justice Department officials falls within the President's core executive power. See Seila Law LLC v. Consumer Financial Protection Bureau (2020). I do not understand the Court to hold that all exercises of the Take Care power fall within the core executive power. Cf. (SOTOMAYOR, J., dissenting). I agree with the dissent that the Constitution does not justify such an expansive view.

As if often said, it is a bad practice to look to a dissent as an indication of what the majority means. And Barrett's opinion, though styled as "concurring in part," is mostly a dissent from the majority's robust conception of presidential powers.

With the benefit of hindsight, Mueller's work to ascertain the President's intents were inconsistent with how Chief Justice Roberts conceives of presidential immunity. Again, the basis of the Mueller investigation runs head-long into the Court's decision.

Finally, the difficulty of defining "corrupt" in Fischer provides further proof of how tenuous Mueller's entire case was.

If you've read this far, here is a bonus fifth point. The Court includes in the "core" category for absolute immunity the President's powers concerning foreign policy:

He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration.

Justice Sotomayor, in dissent, rejects this category, since the foreign removal powers are not squarely defined in the text of Article II:

For instance, its opinion lists some examples of the "core" constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power.  However, the majority does not—and likely cannot—supply any useful or administrable definition of the scope of that "core." For what it's worth, the Constitution's text is no help either; Article II does not contain a Core Powers Clause.⁶ So the actual metes and bounds of the "core" Presidential powers are really anyone's guess.

⁶ Some of the powers the majority designates as "core" powers are, at best, implied from indefinite constitutional language. See, e.g., Seila Law (KAGAN, J.) ("Nowhere does the text sayanything about the President's power to remove subordinate officials at will"); Zivotofsky v. Kerry (2015) ("[T]he Constitution doesnot use the term 'recognition,' either in Article II or elsewhere"); id., at 63 (ROBERTS, C. J., dissenting) (calling the "asserted textual bases" for an exclusive Presidential recognition power "tenuous").

Why does this matter? The basis of President Trump's first impeachment concerned his conversation with Ukrainian President Zelenskyy. Remember the whistleblower? (After several years of the war between Russia and Ukraine, I think people forgot that the Ukraine issue was simmering even during the Trump years.) During the first impeachment proceedings, Seth Barrett Tillman and I wrote about how exercises of the President's core powers over foreign policy were not subject to impeachment–even where the President is charged with having "improper" motivations:

First, consider the public motivation. Trump's request would directly promote foreign and domestic policy interests: Ukraine would investigate possible corruption regarding an American citizen. The U.S. government does not commit bribery when it attempts to change the official behavior of a foreign government by offering to grant or withhold American funds, within the zone of discretion provided by statute. Likewise, the U.S. government does not commit bribery by promising continuity or change in American policy when it attempts to change the official behavior of a foreign government. All such offers have always been characterized as diplomacy. These sorts of communications with foreign powers, by their very nature, involve incentives, threats, and explicit quid pro quo exchanges. In our constitutional order, the president has the unique authority to set those priorities. People may agree or disagree with those policy objectives. And those policy objections are registered in elections. . . .

For the same reason, Trump's political opponents cannot deny the president the full scope and powers of his elected position merely by asserting in a conclusory fashion that the president is conflicted and that he might derive a personal benefit. We write might because whether the president would, in fact, receive a personal benefit would still be up to the voters. That distinction highlights why the allegations against Trump do not fit within the common understanding of bribery, for example, receiving a discrete personal benefit, such as a suitcase full of money. At most, Trump sought a change in a foreign government's policy, and any benefit or injury flows to the political community as a whole.

The Senate, sitting as a court of impeachment, is not bound by the decisions of the United States Supreme Court. But were Chief Justice Roberts's understanding of Article II to prevail, the President could not be impeached and removed for exercising his core constitutional authorities.

This post, I hope, demonstrates, how the Chief Justice's sweeping opinion seems to be a direct response to the Lawfare waged against Trump since his inauguration.

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After all that has happened since 2005, we forget that a primary reason that President Bush selected John Roberts for the Supreme Court because of Roberts's strong views on Article II and the unitary executive. Perhaps that mode of thinking has fallen out of favor, but Roberts was groomed in the Reagan and H.W. Bush administration to understand the importance of the presidency in the separation of powers. That Article-II-centric perspective was also evident in Loper Bright. For all of Roberts's conservative apostasies over the years, he was not going to throw away his shot on presidential criminal immunity.