Mueller Report Page 385 of 448

Text Translation

authority to recognize foreign nations is exclusive. Id. at 2083, 2094. See also Public Citizen 491
U.S. at 485-486 (Kennedy, J., concurring in the judgment) (citing the power to grant pardons under
U.S. CONST., ART. 11, § 2, cl. 1, and the Presentment Clauses for legislation, U.S. CONST., ART. 1,
§ 7, C15. 2, 3, as examples of exclusive presidential powers by virtue of constitutional text).

But even when a power is exclusive, “Congress’ powers, and its central role in making
laws, give it substantial authority regarding many of the policy determinations that precede and
follow” the President’s act. Zivotafsky, 135 S. Ct. at 2087. For example, although the President’s
power to grant pardons is exclusive and not subject to congressional regulation, see United States
v. Klein, 80 US. (13 Wall.) 128, 147—148 (1872), Congress has the authority to prohibit the corrupt
use of “anything of value” to influence the testimony of another person in a judicial, congressional,
or agency proceeding, 18 U.S.C. § 201(b)(3)—which would include the offer or promise of a
pardon to induce‘a person to testify falsely or not to testify at all. The offer of a pardon would
precede the act of pardoning and thus be within Congress’s power to regulate even if the pardon
itself is not. Just as the Speech or Debate Clause, U.S. CONST. ART. I, § 6, (11.1, absolutely protects
legislative acts, but not a legislator’s “taking or agreeing to take money for a promise to act in a
certain way . . . for it is taking the bribe, not performance of the illicit compact, that is a criminal
act,” United States v. Brewster, 408 U.S. 501, 526 (1972) (emphasis omitted), the promise of a
pardon to corruptly influence testimony would not be a constitutionally immunized act. The
application of obstruction statutes to such promises therefore would raise no serious separation-
of-powers issue.

b. The Effect of 0bstructi0n-0f-Justice Statutes 0n the President’s
Capacity to Perform His Article II Responsibilities is Limited

Under the Supreme Court’s balancing test for analyzing scparation-of—powers issues, the
first task is to assess the degree to which applying obstruction-of-justice statutes to presidential
actions affects the President’s ability to carry out his Article II responsibilities. Administrator of
General Services, 433 US. at 443. As discussed above, applying obstruction-of-justice statutes
to presidential conduct that does not involve the President’s conduct of officem—such as influencing
the testimony of witnesses—is constitutionally unproblematic. The President has no more right
than other citizens to impede official proceedings by corruptly influencing witness testimony. The
conduct would be equally improper whether effectuated through direct efforts to produce false
testimony or suppress the truth, or through the actual, threatened, or promised use of official
powers to achieve the same result.

The President’s action in curtailing criminal investigations or prosecutions, or discharging
law enforcement officials, raises different questions. Each type of action involves the exercise of
executive discretion in furtherance of the President’s duty to “take Care that the Laws be faithfully
executed.” U.S. CONST., ART. 11, § 3. Congress may not supplant the President’s exercise of
executive power to supervise prosecutions or to remove officers who occupy law enforcement
positions. See Bowsher v. Synar, 478 US. 714, 726—727 (1986) (“Congress cannot reserve for
itself the power of removal of an officer charged with the execution of the laws except by
impeachment. .[Because t]he structure of the Constitution does not permit Congress to execute
the laws, . [t]his kind of congressional control over the execution of the laws . is
constitutionally impermissible”). Yet the obstruction-of- -justice statutes do not aggrandize, power
in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct

inn

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