Mueller Report Page 381 of 448

Text Translation

The President’s counsel has argued that “the President’s exercise of his constitutional
authority . . . to terminate an FBI Director and to close investigations . . . cannot constitutionally
constitute obstruction of jrustice.”1°36 As noted above, no Department of Justice position or
Supreme Court precedent directly resolved this issue. We did not find counsel’s contention,
however, to accord with our reading of the Supreme Court authority addressing separation-of—
powers issues. Applying the Court’s framework for analysis, we concluded that Congress can
validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt
intent to obstruct justice. The limited effect on presidential power that results from that restriction
would not impermissibly undermine the President’s ability to perform his Article II functions.

1. The Reguirement of a Clear Statement to Apply Statutes to Presidential
Conduct Does Not Limit the Obstruction Statutes

Before addressing Article II issues directly, we consider one threshold statutory-
construction principle that is unique to the presidency: “The principle that general statutes must
be read as not applying to the President if they do not expressly apply where application would
arguably limit the President’s constitutional role.” OLC, Application of 28 U.S.C. § 458 to
Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 352 (1995). This “clear
statement rule,” id, has its source in two principles: statutes should be construed to avoid serious
constitutional questions, and Congress should not be assumed to have altered the constitutional
separation of powers without clear assurance that it intended that result. OLC, The Constitutional

Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 178 (1996).

The Supreme Court has applied that clear-statement rule in several cases. In one leading
case, the Court construed the Administrative Procedure Act, 5 U.S.C. § 701 et seq., not to apply
to judicial review of presidential action. Franklin v. Massachusetts, 505 US. 788, 800-801 (1992).
The Court explained that it “would require an express statement by Congress before assuming it
intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.”
Id. at 801. In another case, the Court interpreted the word “utilized” in the Federal Advisory
Committee Act (FACA), 5 U.S.C. App., to apply only to the use of advisory committees
established directly or indirectly by the government, thereby excluding the American Bar
Association’s advice to the Department of Justice about federal judicial candidates. Public Citizen
v. United States Department of Justice, 491 US. 440, 455, 462-467 (1989). The Court explained
that a broader interpretation of the term “utilized” in FACA would raise serious questions whether
the statute “infringed unduly on the President’s Article 11 power to nominate federal judges and
violated the doctrine of separation of powers.” Id. at 466-467. Another case found that an
established canon of statutory construction applied with “special force” to provisions that would
impinge on the President’s foreign-affairs powers if construed broadly. Sale v. Haitian Centers
Council, 509 US. 155, 188 (1993) (applying the presumption against extraterritorial application
to construe the Refugee Act of 1980 as not governing in an overseas context where it could affect
“foreign and military affairs for which the President has unique responsibility”). See Application

1086 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n. 1.






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