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Thursday, June 08, 2017

Constitutional Powers and Crimes

For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation.  The possible crime here is obstruction of justice.  And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution.  Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation. 

Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive. 

It is well established that government actors can be convicted for inappropriately exercising their governmental powers.  Any government official who performs an official act in exchange for money, for example, has committed bribery, even if it would have been perfectly legal for her to have taken the same official act under other circumstances.

Unlike bribery, an obstruction of justice charge doesn’t require a separate criminal act; there is no quid pro quo.  And so some might think that, because Presidents are allowed to make non-prosecution decisions for any reason, the simple decision not to prosecution can’t be criminal, no matter what the reason.  But this argument goes too far. 

In a number of situations, the courts have recognized that otherwise unlimited discretion can’t be exercised for certain, forbidden reasons.  That is why, for example, the courts are willing to reverse sentences in discretionary sentencing systems if the sentence is based on race or national origin.  The Supreme Court has also repeatedly said that executive decisions whether to prosecute cannot be made for discriminatory reasons, even if charges are otherwise supported by probable cause.

Now, one might respond that obstruction of justice is different than these other examples because it is a legislative limit on executive power, rather than a constitutional limit.  But I’m not sure that’s a particularly good response.  For one thing, no one disputes that Congress has the most obvious constraint on executive power to prosecute: the power to define crimes.  For another, obstruction of justice is one of many laws that place limits on what the President may or may not do.  Bribery is also a legislative limitation, rather than a constitutional limitation.  Maybe there is some clever constitutional argument to be made about limits on Congress’s ability to restrict the executive’s prosecutorial power.  But obstruction of justice isn’t that sort of limit; it is a generally applicable law that forbids all individuals from taking certain actions for certain reasons.

In short, the simple fact that the Constitution assigns a particular power to an individual does not mean that power is unlimited.  To be clear, I am not saying that a sitting President can be prosecuted (though I may offer thoughts on another day on the weaknesses of that OLC memo on the topic).  Nor am I making a statutory claim about whether this President has obstructed justice.  I am simply saying that otherwise unfettered discretion may not be exercised for particular reasons, which leads me to conclude that a sitting President, like any other individual, can obstruct justice.

Posted by Carissa Byrne Hessick on June 8, 2017 at 09:33 AM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink


From an originalist standpoint, did the crimes of bribery and obstruction of justice exist at the founding? I imagine that bribery was a crime and so one might think that the ratifiers of the constitution would have understood bribery prosecutions of federal officeholders to be possible if they were asked. Maybe they would be less comfortable with the extremely broad and nebulous standard that defines obstruction of justice.

Posted by: Jr | Jun 8, 2017 4:28:34 PM

This post starts off talking about whether it can ever be a crime for a President to end an investigation. But it concludes with the proposition that a sitting President can obstruct justice. While both questions are interesting, they are not the same. It is perfectly plausible that it is possible for a President to be able to be guilty of obstruction by, for example, lying about whether particular evidence of a crime exists, while it would also true that ordering an investigation closed would not be obstruction. This would be not because the President has unique powers, but that the President is not uniquely circumscribed in his law enforcement discretion. In other words just as it is (I assume) not obstruction for a DA to decide not to prosecute someone because the DA (or AUSA) feels that the suspect has suffered enough, the president, who is the chief prosecutor, can also decline to prosecute. This concept may be called prosecutorial discretion. (Recall DACA and DAPA were premised on this concept.)

Along the way, this post misconstrues the crime of bribery as prohibiting officers from taking official action due to being given money. The statute does not in fact prohibit or criminalize any official action for any reason; it prohibits giving or receiving something of value in exchange for taking certain actions. The crime of bribery is completed once the thing of value is given. The actual performing of the official action is not even an element of the crime. Since taking money from people is not included in the powers the Constitution assigns to the executive branch, the bribery statute sheds no light on the question of obstruction.

My main point is that declining to prosecute is not obstruction of justice, it is prosecutorial discretion. This is true whether done by a AUSA, the AG, or the President. Whether Congress could mandate the prosecution of anyone who commits a crime is an interesting question. I think Congress did that in the case of aliens who are here unlawfully, although the previous administration seemed to believe that it wasn't bound by that. But Congress did not explicitly mandate that everyone who violates 1001 must be prosecuted so there is no question here.

Posted by: biff | Jun 8, 2017 5:21:27 PM

Thanks, Carissa. I've been thinking many of the same things, and wanting very much to demand that Vermeule (or Dersh himself) provide us with some citation, any citation, in support of their claims. Hopefully your remarks will prompt that, which will allow for more direct engagement with whatever the real argument is (if one exists).

If anyone is thinking of responding, let me further add that a natural implication of the Dersh claim is that state laws that would authorize prosecution of a governor under similar circumstances (say, Governor Pardoner offers to pardon a cooperating witness in exchange for her keeping quiet her damaging testimony about governor) would be unconstitutional under state separation of powers principles. And, perhaps, federal prosecutions would raise 10th Am. issues. Do Dersh defenders care to defend that result, as well?

Posted by: BDG | Jun 9, 2017 9:17:26 AM

Take a look at Prof. Brian Kalt's article in New York Magazine on May 21, 2017. Prof. Kalt has also written extensively on the subject of self-pardons.


As an aside, Deputy SG Michael Dreeben is going to assisting Special Counsel Mueller in his investigation. Dreeben is brilliant and perhaps the number one authority in America on the intersection of criminal law and the Constitution. He also is the number one authority in the SG's Office on the subject of obstruction of justice. I suspect he will answers to Carissa's important questions.

Posted by: legalnerd | Jun 9, 2017 1:03:33 PM


Posted by: Joe | Jun 9, 2017 3:58:37 PM

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