Mueller Report Page 380 of 448

Text Translation

Finally, 18 U.S.C. § 1512(b)(3) criminalizes tampering with witnesses to prevent the
communication of information about a crime to law enforcement. The nexus inquiry articulated
in Aguilar—that an individual has “knowledge that his actions are likely to affect the judicial
proceeding,” 515 US. at 599—does not apply to Section 1512(b)(3). See United States v. Byrne,
435 F.3d 16, 24-25 (1 st Cir. 2006). The nexus inquiry turns instead on the actor’s intent to prevent
communications to a federal law enforcement official. See Fowler v. United States, 563 US. 668,
673-678 (2011).

In sum, in light of the breadth of Section 1512(c)(2) and the other obstruction statutes, an

argument that the conduct at issue in this investigation falls outside the scope of the obstruction ~

laws lacks merit.

B. Constitutional Defenses to Applying Obstruction-Of-Justice Statutes to
Presidential Conduct

The President has broad discretion to direct criminal investigations. The Constitution vests
the “executive Power” in the President and enjoins him to “take Care that the Laws be faithfully
executed.” U.S. CONST. ART II, §§ 1, 3. Those powers and duties form the foundation of
prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (Attorney
General and United States Attorneys “have this latitude because they are designated by statute as
the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that
the Laws be faithfully executed”). The President also has authority to appoint officers of the
United States and to remove those whom he has appointed. U.S. CONST. ART 11, § 2, e1. 2 (granting
authority to the President to appoint all officers with the advice and consent of the Senate, but
providing that Congress may vest the appointment of inferior officers in the President alone, the
heads of departments, or the courts of law); see also Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477, 492~493, 509 (2010) (describing removal authority as
flowing from the President’s “responsibility to take care that the laws be faithfully executed”).

Although the President has broad authority under Article II, that authority coexists with
Congress’s Article I power to enact laws that protect congressional proceedings, federal
investigations, the courts, and grand juries against corrupt efforts to undermine their functions.
Usually, those constitutional powers function in harmony, with the President enforcing the
criminal laws under Article II to protect against corrupt obstructive acts. But when the President’s
official actions come into conflict with the prohibitions in the obstruction statutes, any
constitutional tension is reconciled through separation-of-powers analysis.

Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence,
obstruct, or impede the due and proper administration of the law under which any pending
proceeding is being had before any department or agency of the United States, or the due
and proper exercise of the power of inquiry under which any inquiry or investigation is
being bad by either House, or any committee of either House or any joint committee of the
Congress.

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