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These considerations distinguish the Supreme Court’s holding in Nixon v. Fitzgerald that,
in part because inquiries into the President’s motives would be “highly intrusive,” the President is
absolutely immune from private civil damages actions based on his official conduct. 457 U.S. at
756—757. As Fitzgerald recognized, “there is a lesser public interest in actions for civil damages
than, for example, in criminal prosecutions.” Fitzgerald, 457 U.S. at 754 n.37; see Cheney, 542
U.S. at 384. And private actions are not subject to the institutional protections of an action under
the supervision of the Attorney General and subject to a presumption of regularity. Armstrong,
517 U.S. at 464.
c. In the rare cases in which a substantial and credible basis justifies conducting an
investigation of the President, the process of examining his motivations to determine whether he
acted for a corrupt purpose need not have a chilling effect. Asccrtaining the President’s
motivations would turn on any explanation he provided to justify his actions, the advice he
received, the circumstances surrounding the actions, and the regularity or irregularity of the
process he employed to make decisions. But grand juries and courts would not have automatic
access to confidential presidential communications on those matters; rather, they could be
presented in official proceedings only on a showing of sufficient need. Nixon, 418 U.S. at 712; In
re Sealed Case, 121, F.3d 729, 754, 756-757 (DC. Cir. 1997); see also Administrator of General
Services, 433 U.S. at 448-449 (former President can invoke presidential communications privilege,
although successor’s failure to support the claim “detracts from [its] weight”).
in any event, probing the President’s intent in a criminal matter is unquestionably
constitutional in at least one context: the offense of bribery turns on the corrupt intent to receive
a thing of value in return for being influenced in official action. 18 U.S.C. § 201(b)(2). There can
be no serious argument against the President’s potential criminal liability for bribery offenses,
notwithstanding the need to ascertain his purpose and intent. See U.S. CONST. ART. 1, § 3; ART. II,
§ 4; see also Application of 28 U.S. C. § 458 to Presidential Appointments of Federal Judges, 19
Op. O.L.C. at 357 n.11 (“Application of § 201[to the President] raises no separation of powers
issue, let alone a serious one”).
(1. Finally, history provides no reason to believe that any asserted chilling effect justifies
exempting the President from the obstruction laws. As a historical matter, Presidents have very
seldom been the subjects of grand jury investigations. And it is rarer still for circumstances to
raise even the possibility of a corrupt personal motive for arguably obstructive action through the
President’s use of official power. Accordingly, the President’s conduct of office should not be
chilled based on hypothetical concerns about the possible application of a corrupt-motive standard
in this context.
In sum, contrary to the position taken by the President’s counsel, we concluded that, in
light of the Supreme Court precedent governing separation-of~powers issues, we had a valid basis
for investigating the conduct at issue in this report. In our view, the application of the obstruction
statutes would not impermissibly burden the President’s performance of his Article II function to
supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the
protection of the criminal justice system from corrupt acts by any person—including the
President—accords with the fundamental principle of our government that “[n]o [person] in this