Mueller Report Page 386 of 448

Text Translation

only when it is taken with the “corrupt” intent to obstruct justice. The obstruction statutes thus
would restrict presidential action only by prohibiting the President from acting to obstruct official
proceedings for the improper purpose of protecting his own interests. See Volume II, Section
llI.A.3, supra.

The direct effect on the President’s freedom of action would correspondingly be a limited
one. A preclusion of “corrupt” official action is not a major intrusion on Article II powers. For
example, the proper supervision of criminal law does not demand freedom for the President to act
with the intention of shielding himself from criminal punishment, avoiding financial liability, or
preventing personal embarrassment. To the contrary, a statute that prohibits official action
undertaken for such personal purposes furthers, rather than hinders, the impartial and evenhanded
administration of the law. And the Constitution does not mandate that the President have
unfettered authority to direct investigations or prosecutions, with no limits whatsoever, in order to
carry out his Article II functions. See Heckler v. Chaney, 470 US. 821, 833 (1985) (“Congress
may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive
priorities, or by otherwise circumscribing an agency‘s power to discriminate among issues or cases
it will pursue”); United States v. Nixon, 418 US. at 707 (“[t]o read the Art. 11 powers of the
President as providing an absolute privilege [to withhold confidential communications from a
criminal trial]. . . would upset the constitutional balance of ‘a workable government" and gravely
impair the role of the courts under Art. 111”).

Nor must the President have unfettered authority to remove all Executive Branch officials
involved in the execution of the laws. The Constitution establishes that Congress has legislative
authority to structure the Executive Branch by authorizing Congress to create executive
departments and officer positions and to specify how inferior officers are appointed. E. g., U.S.
CONST., ART. 1, § 8, cl. 18 (Necessary and Proper Clause); ART. 11, § 2, cl. 1 (Opinions Clause);
ART. 11, § 2, cl. 2 (Appointments Clause); see Free Enterprise Fund, 561 US. at 499. While the
President’s removal power is an important means of ensuring that officers faithfully execute the
law, Congress has a recognized authority to place certain limits on removal. Id. at 493-495.

The President’s removal powers are at their zenith with respect to principal officersmthat
is, officers who must be appointed by the President and who report to him directly. See Free
Enterprise Fund, 561 US. at 493, 500. The President’s “exclusive and illimitable power of
removal” of those principal officers furthers “the President’s ability to ensure that the laws are
faithfully executed.” Id. at 493, 498 (internal quotation marks omitted); Myers, 272 US. at 627.
Thus, “there are some ‘purely executive’ officials who must be removable by the President at will
if he is able to accomplish his constitutional role.” Morrison, 487 US. at 690; Myers, 272 US. at
134 (the President’s “cabinet officers must do his will,” and “[t]he moment that he loses confidence
in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to
remove him without delay”); of Humphrey’s Executor v. United States, 295 US. 602 (1935)
(Congress has the power to create independent agencies headed by principal officers removable
only for good cause). In light of those constitutional precedents, it may be that the obstruction
statutes could not be constitutionally applied to limit the removal of a cabinet officer such as the
Attorney General. See 5 U.S.C. § 101; 28 U.S.C. § 503. In that context, at least absent
circumstances showing that the President was clearly attempting to thwart accountability for
personal conduct while evading ordinary political checks and balances, even the highly limited

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