Mueller Report Page 382 of 448

Text Translation

of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 353-354
(discussing Franklin, Public Citizen, and Sale).

The Department of Justice has relied on this clear-statement principle to interpret certain
statutes as not applying to the President at all, similar to the approach taken in Franklin. See, e.g.,
Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman,
Deputy Attorney General, Re: Conflict of Interest Problems Arising out of the President ’s
Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to
the Constitution, at 2, 5 (Aug. 28, 1974) (criminal conflict-of-interest statute, 18 U.S.C. § 208,
does not apply to the President). Other OLC opinions interpret statutory text not to apply to certain
presidential or executive actions because of constitutional concerns. See Application of 28 US. C.
§ 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 350-357 (consanguinity
limitations on court appointments, 28 U.S.C. § 458, found inapplicable to “presidential
appointments of judges to the federal judiciary”); Constraints Imposed by 18 U.S.C. § 1913 on
Lobbying Efi’orts, 13 Op. O.L.C. 300, 304-306 (1989) (limitation on the use of appropriated funds
for certain lobbying programs found inapplicable to certain communications by the President and
executive officials).

But OLC has also recognized that this clear-statement rule “does not apply with respect to
a statute that raises no separation of powers questions were it to be applied to the President,” such
as the federal bribery statute, 18 U.S.C. § 201. Application of 28 U.S.C. § 458 to Presidential
Appointments of Federal Judges, 19 Op. O.L.C. at 357 n.11. OLC explained that “[a]pplication
of § 201 raises no separation of powers question, let alone a serious one,” because [t]he
Constitution confers no power in the President to receive bribes.” Id. In support of that conclusion,
OLC noted constitutional provisions that forbid increases in the President’s compensation while
in office, “which is what a bribe would function to do,” id. (citing U.S. CONST. ART. II, § 1, cl. 7),
and the express constitutional power of “Congress to impeach [and convict] a President for, inter
alia, bribery,” id. (citing U.S. CONST. ART 11, § 4).

Under OLC’s analysis, Congress can permissibly criminalize certain obstructive conduct
by the President, such as suborning perjury, intimidating witnesses, or fabricating evidence,
because those prohibitions raise no separationuof-powers questions. See Application of 28 US. C.
59 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 357 11.11. The
Constitution does not authorize the President to engage in such conduct, and those actions would
transgress the President’s duty to “take Care that the Laws be faithfully executed.” U.S. CONST.
ART ll, §§ 3. In View of those clearly permissible applications of the obstruction statutes to the
President, Franklin’s holding that the President is entirely excluded from a statute absent a clear
statement would not apply in this context.

A more limited application of a clear-statement rule to exclude from the obstruction statutes
only certain acts by the President—“for example, removing prosecutors or ending investigations
for corrupt reasons—would be difficult to implement as a matter of statutory interpretation. It is
not obvious how a clear-statement rule would apply to an omnibus provision like Section
1512(c)(2) to exclude corruptly motivated obstructive acts only when carried out in the President’s
conduct of office. No statutory term could easily bear that specialized meaning. For example, the
word “corruptly” has a well-established meaning that does not exclude exercises of official power
for corrupt ends. Indeed, an established definition states that “corruptly” means action with an

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