Mueller Report Page 387 of 448

Text Translation

regulation imposed by the obstruction statutes could possibly intrude too deeply on the President’s
freedom to select and supervise the members of his cabinet.

The removal of inferior officers, in contrast, need not necessarily be at will for the President
to fulfill his constitutionally assigned role in managing the Executive Branch. “[l]nferior officers
are officers whose work is directed and supervised at some level by other officers appointed by
the President with the Senate’s consent.” Free Enterprise Fund, 561 US. at 510 (quoting Edmond
v. United States, 520 US. 651, 663 (1997)) (internal quotation marks omitted). The Supreme
Court has long recognized Congress’s authority to place foo-cause limitations on the President’s
removal of “inferior Officers” whose appointment may be vested in the head of a department. U.S.
CONST. ART. II, § 2, cl. 2. See United States v. Perkins, 116 US. 483, 485 (1886) (“The
constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads
of departments] implies authority to limit, restrict, and regulate the removal by such laws as
Congress may enact in relation to the officers so appointed”) (quoting lower court decision);
Morrison, 487 US. at 689 n. 27 (citing Perkins); accord id. at 723-724 & n.4 (Scalia, J., dissenting)
(recognizing that Perkins is “established” law); see also Free Enterprise Fund, 561 US. at 493»
495 (citing Perkins and Morrison). The category of inferior officers includes both the FBI Director
and the Special Counsel, each of whom reports to the Attorney General. See 28 U.S.C. §§ 509,
515(a), 531; 28 C.F.R. Part 600. Their work is thus “directed and supervised” by a presidentially-
appointed, Senate-confirmed officer. See In re: Grand Jury Investigation, m F.3d _, 2019 WL
921692, at *3-*4 (DC. Cir. Feb. 26, 2019) (holding that the Special Counsel is an “inferior officer”
for constitutional purposes). V

Where the Constitution permits Congress to impose a good-cause limitation on the removal
of an Executive Branch officer, the Constitution should equally permit Congress to bar removal
for the corrupt purpose of obstructing justice. Limiting the range of permissible reasons for
removal to exclude a “corrupt” purpose imposes a lesser restraint on the President than requiring
an affirmative showing of good cause. It follows that for such inferior officers, Congress may
constitutionally restrict the President’s removal authority if that authority was exercised for the
corrupt purpose of obstructingjustice. And even if a particular inferior officer’s position might be
of such importance to the execution of the laws that the President must have at-will removal
authority, the obstruction-of-justice statutes could still be constitutionally applied to forbid
removal for a corrupt reason.1088 A narrow and discrete limitation on removal that precluded
corrupt action would leave ample room for all other considerations, including disagreement over
policy or loss of confidence in the officer’s judgment or commitment. A corrupt—purpose
prohibition therefore would not undermine the President’s ability to perform his Article 11
functions. Accordingly, because the separation-of-powers question is “whether the removal
restrictions are of such a nature that they impede the President’s ability to perform his
constitutional duty,” Morrison, 487 U.S. at 691, a restriction on removing an inferior officer for a

'0“ Although the FBI director is an inferior officer, he is appointed by the President and removable
by him at will, see 28 U.S.C. § 532 note, and it is not clear that Congress could constitutionally provide the
FBI director with good-cause tenure protection. See OLC, Constitutionality of Legislation Extending the
Term of the FBI Director, 201 1 WL 2566125, at *3 (O.L.C. June 20, 201 l) (“tenure protection for an officer
with the FBI Director’s broad investigative, administrative, and policymaking responsibilities would raise
a serious constitutional question whether Congress had ‘impede[d] the President’s ability to perform his
constitutional duty’ to take care that the laws be faithfully executed”) (quoting Morrison, 487 US. at 691).

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