 Section 20 of Report on the Investigation into Russian Interference in the 2016 Presidential Election. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Jennifer Fornier, Marshall, Virginia. Report on the Investigation into Russian Interference in the 2016 Presidential Election. By Robert Mueller. Section 20. Legal Defenses to the Application of Obstruction of Justice Statutes to the President The President's personal counsel has written to this office to advance statutory and constitutional defenses to the potential application of the obstruction of justice statutes to the President's conduct. As a statutory matter, the President's counsel has argued that a core obstruction of justice statute, Title 18, United States Code, Section 1512, subsection C2, does not cover the President's actions. As a constitutional matter, the President's counsel argued that the President cannot obstruct justice by exercising his constitutional authority to close Department of Justice investigations or terminate the FBI director. Under that view, any statute that restricts the President's exercise of those powers would impermissibly intrude on the President's constitutional role. The President's counsel has conceded that the President may be subject to criminal laws that do not directly involve exercises of his Article II authority, such as laws prohibiting bribing witnesses or suborning perjury. That counsel has made a categorical argument that the President's exercise of his constitutional authority here to terminate an FBI director and to close investigations cannot constitutionally constitute obstruction of justice. In analyzing counsel's statutory arguments, we concluded that the President's proposed interpretation of Section 1512 C2 is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction. As for the constitutional arguments, we recognized that the Department of Justice and the courts have not definitively resolved these constitutional issues. We therefore analyzed the President's position through the framework of Supreme Court precedent addressing the separation of powers. Under that framework, we concluded, Article II of the Constitution does not categorically and permanently immunize the President from potential liability for the conduct that we investigated. Rather, our analysis led us to conclude that the obstruction of justice statutes can validly prohibit a President's corrupt efforts to use his official powers to curtail, end, or interfere with an investigation. A. Statutory defenses to the application of obstruction of justice provisions to the conduct under investigation. The obstruction of justice statute most readily applicable to our investigation is 18 U.S.C. Section 1512 C provides C. Whoever corruptly, one, alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding, or to otherwise obstructs, influences, or impedes any official proceeding or attempts to do so, shall be fined under this title or imprisoned not more than twenty years or both. The Department of Justice has taken the position that Section 1512 C.2 states a broad, independent, and unqualified prohibition on obstruction of justice. While defendants have argued that Subsection C.2 should be read to cover only acts that would impair the availability or integrity of evidence, because that is Subsection C.1's focus, strong arguments weigh against that proposed limitation. The text of Section 1512 C.2 confirms that its sweep is not tethered to Section 1512 C.1. Courts have so interpreted it. Its history does not counsel otherwise, and no principle of statutory construction dictates a contrary view. On its face, therefore, Section 1512 C.2 applies to all corrupt means of obstructing a proceeding, pending or contemplated, including by improper exercises of official power. In addition, other statutory provisions that are potentially applicable to certain conduct we investigated broadly prohibit obstruction of proceedings that are pending before courts, grand juries, and Congress. See 18 USC, Sections 1503 and 1505. This has also specifically prohibited witness tampering. See 18 U.S. Code, Section 1512 B. 1. The text of Section 1512 C.2 prohibits a broad range of obstructive acts. Several textural features of Section 1512 C.2 support the conclusion that the provision broadly prohibits corrupt means of obstructing justice and is not limited by the more specific prohibitions in Section 1512 C.1, which focus on evidence impairment. First, the text of Section 1512 C.2 is unqualified. It reaches acts that, quote, obstruct, influence, or impede any official proceeding. When committed, quote, corruptly, end quote. Nothing in Section 1512 C.2's text limits the provision to acts that would impair the integrity or availability of evidence for use in an official proceeding. In contrast, Section 1512 C.1 explicitly includes the requirement that the defendant act with the intent to impair the object's integrity or availability for use in an official proceeding. A requirement that Congress also included into other sections of Section 1512. See 18 U.S. Code, Sections 1512 A.2 B. 2, use a physical force with intent to cause a person to destroy an object, with intent to impair the integrity or availability of the object for use in an official proceeding. 1512 B. 2 B. Use of intimidation, threats, corrupt persuasion, or misleading conduct with intent to cause a person to destroy an object, with intent to impair the integrity or availability of the object for use in an official proceeding. But no comparable intent or conduct element focused on evidence impairment appears in Section 1512 C.2. The intent element in Section 1512 C.2 comes from the word corruptly. See E.G. United States v. McGibbons, 656 F3707 at 711, 7th Circuit, 2011. The intent element is important because the word corruptly is what serves to separate criminal and innocent acts of obstruction. And the conduct element in Section 1512 C.2 is obstructing, influencing, or impeding a proceeding. Congress is presumed to have acted intentionally in the disparate inclusion and exclusion of evidence impairment language. See Lohgren v. United States, 573 U.S. 351 at 358, 2014. When Congress includes particular language in one section of a statute, but omits it in another, let alone in the very next provision, this court presumes that Congress intended a difference in meaning. Quoting Russell Lohg v. United States, 464 U.S. 16 at 23, 1983. Accord Digital Reality Trust, Inc. v. Summers, 138 Supreme Court, 767 at 777, 2018. The structure of Section 1512 supports the conclusion that Section 1512 C.2 defines an independent offense. Section 1512 C.2 delineates a complete crime with different elements from Section 1512 C.1, and each subsection of Section 1512 C contains its own attempt prohibition, underscoring that they are independent prohibitions. The two subsections of Section 1512 C are connected by the conjunction OR, indicating that each provides an alternative basis for criminal liability. See Lohgren, 573 U.S. at 357. Ordinary use of OR is almost always disjunctive, that is, the words it connects are to be given separate meanings. In Lohgren, for example, the Supreme Court relied on the use of the word OR to hold that adjacent and overlapping subsections of the bank fraud statute, 18 U.S.C. Section 1344, state distinct offenses, and that subsection 1344 C, therefore, should not be interpreted to contain an additional element specified only in Subsection 1344 I. ID. See also Shaw v. United States, 137 Supreme Court 462 at 465-469, 2016, recognizing that the subsections of the bank fraud statute overlap substantially, but identifying distinct circumstances covered by each. And here, as in Lohgren, Section 1512 C's two clauses have separate numbers, line breaks before, between, and after them, and equivalent indentation, thus placing the clauses visually on an equal footing and indicating that they have separate meanings. 573 U.S. at 359. Third. The introductory word otherwise, in Section 1512 C2, signals that the provision covers obstructive acts that are different from those listed in Section 1512 C1. See Black's Law Dictionary, 1101, 6th Edition, 1990. Otherwise means in a different manner, in another way, or in other ways. See also, e.g., American Heritage College Dictionary Online, 1. In another way, differently, 2. Under other circumstances. See also, Gooch v. United States, 297 U.S. 124 at 128, 1936, characterizing otherwise as a broad term, and holding that a statutory prohibition on kidnapping, for ransom or reward or otherwise, is not limited by the words ransom and reward to kidnappings for pecuniary benefits. Colossus v. United States, 368 F3190 at 200, 2nd Circuit, 2004. Is screwing otherwise, in 28 U.S. Code, Section 2466 1C, to reach beyond the specific examples listed in prior subsections, thereby covering the myriad means that human ingenuity might devise to permit a person to avoid the jurisdiction of a court. C.F. Begay v. United States, 553 U.S. 137 at 144, 2006, recognizing that otherwise is defined to mean in a different way or manner, and holding that the word otherwise introducing the residual clause in the Armed Career Criminal Act, 18 U.S. Code, Section 924 E2B2, but need not necessarily refer to a crime that is similar to the listed examples in some respects, but different in others. The purpose of the word otherwise, in Section 1512 C2, is therefore to clarify that the provision covers obstructive acts other than the destruction of physical evidence with the intent to impair its integrity or availability, which is the conduct addressed in Section 1512 C1. The word otherwise does not signal that Section 1512 C2 has less breadth in covering obstructive conduct than the language of the provision implies. 2. Judicial decisions support a broad reading of Section 1512 C2. Subsections have not limited Section 1512 C2 to conduct that impairs evidence, but instead have read it to cover obstructive acts in any form. As one court explained, this expansive subsection operates as a catch-all to cover otherwise obstructive behavior that might not constitute a more specific offense like document destruction, which is listed in C1. United States v. Valpedesto, 746 F3 273 at 286, 7th Circuit, 2014. For example, in United States v. Ring, 628 F SUP II, 195, District Court for the District of Columbia, 2009, the court rejected the argument that Section 1512 C2's reference to conduct that otherwise obstructs, influences, or impedes any official proceeding, is limited to conduct that is similar to the type of conduct prescribed by subsection C1, namely conduct that impairs the integrity or availability of records, documents, or other objects for use in an official proceeding, id at 224. The court explained that the meaning of Section 1512 C2 is plain on its face, id. And courts have upheld convictions under Section 1512 C2 that did not involve evidence impairment, but instead resulted from conduct that more broadly thwarted arrests or investigations. C. E. G. United States v. Martinez, 862 F3 223 at 238, 2nd Circuit, 2017. Police officers tipped off suspects about issuance of arrest warrants before outstanding warrants could be executed, thereby potentially interfering with an ongoing grand jury proceeding. United States v. Arinsfield, 698 F3 1310 at 1324 through 1326, 10th Circuit, 2012. Officer disclosed existence of an undercover investigation to its target. United States v. Phillips, 583 F3 1261 at 1265, 10th Circuit, 2009. State disclosed identity of an undercover officer, thus preventing him from making controlled purchases from methamphetamine dealers. These cases illustrate that Section 1512 C2 applies to corrupt acts, including by public officials that frustrate the commencement or conduct of a proceeding and not just to acts that make evidence unavailable or impair its integrity. Section 1512 C2's breadth is reinforced by the similarity of its language to the omnibus clause of 18 U.S. Code, Section 1503, which covers anyone who corruptly obstructs or impedes or endeavors to influence, obstruct or impede the due administration of justice. That clause of Section 1503 follows two more specific clauses that protect jurors, judges, and court officers. The omnibus clause has nevertheless been construed to be far more general in scope than the earlier clauses of the statute. United States v. Aguilar, 515 U.S. 593 at 599, 1995. The omnibus clause is essentially a catch-all provision which generally prohibits conduct that interferes with the due administration of justice. United States v. Branson, 104 F. 3rd, 1267 at 1275, 11th Circuit, 1997. Courts have accordingly given it a non-restrictive reading. United States v. Kumar, 617 F. 3rd, 612 at 620, 2nd Circuit, 2010. United States v. Howard, 569 F. 2nd, 1331 at 1333, 5th Circuit, 1917. As one court has explained, the omnibus clause prohibits acts that are similar in result rather than manner to the conduct described in the first part of the statute. United States v. Howard, 569 F. 2nd, 1331 at 1333, 5th Circuit, 1978. While the specific clauses forbid certain means of obstructing justice, the omnibus clause aims at obstruction of justice itself, regardless of the means used to reach that result. Id. Collecting Cases. Given the similarity of section 1512c2 to section 1503's omnibus clause, Congress would have expected section 1512c2 to cover acts that produced a similar result to the evidence-imperiment provisions, i.e., the result of obstructing justice, rather than covering only acts that were similar in manner. Read this way, section 1512c2 serves a distinct function in the federal obstruction of justice statutes. It captures corrupt conduct other than document destruction that has the natural tendency to obstruct contemplated as well as pending proceedings. Section 1512c2 overlaps with other obstruction statutes, but it does not render them superfluous. Section 1503, for example, which covers pending grand jury and judicial proceedings, and section 1505, which covers pending administrative and congressional proceedings, reach endeavors to influence, obstruct, or impede the proceedings. A broader test for in-co-et violations than section 1512c2's attempt standard, which requires a substantial step towards a completed offense. See United States v. Sampson, 898 F3rd 287, at 302, 2nd Circuit, 2018. Efforts to witness tamper that rise to the level of an endeavor yet fall short of an attempt cannot be prosecuted under section 1512. United States v. Leisure, 844 F2nd, 1347, at 1366 through 1367, 8th Circuit, 1988. Collecting cases recognizing the difference between the endeavor and attempt standards. And 18 U.S. Code, section 1519, which prohibits destruction of documents or records in contemplation of an investigation or proceeding, does not require the nexus showing under Aguilar, which section 1512c2 demands. See E.G. United States v. Yielding, 657 F3rd, 688, at 712, 8th Circuit, 2011. The requisite knowledge and intent under section 1519 can be present even if the accused lacks knowledge that he is likely to succeed in obstructing the matter. United States v. Gray, 642 F3rd, 371, at 376 through 377, 2nd Circuit, 2011. In enacting section 1519, Congress rejected any requirement that the government prove a link between a defendant's conduct and an imminent or pending official proceeding. The existence of even substantial overlap is not uncommon in criminal statutes. Logren, 573 U.S. at 359, note 4. C. Shaw, 137 Supreme Court, at 458 through 469. Aguilar, 515 U.S. at 616. Justice Scalia dissenting. The fact that there is now some overlap between section 1503 and section 1512 is no more intolerable than the fact that there is some overlap between the omnibus clause of section 1503 and the other provisions of 1503 itself. But given that sections 1503, 1505, and 1519 each reach conduct that section 1512c2 does not, the overlap provides no reason to give section 1512c2 an artificially limited construction. C. Shaw, 137 Supreme Court, at 469. 3. The legislative history of section 1512c2 does not justify narrowing its text. Given the straightforward statutory command in section 1512c2, there is no reason to resort to legislative history. United States v. Gonzales, 520 U.S. 1, at 6, 1997. In any event, the legislative history of section 1512c2 is not a reason to impose extra-textual limitations on its reach. Congress enacted section 1512c2 as part of the Sarbanes-Oxley Act of 2002, Public Law No. 107-204, Title 9, section 1102, Vol. 116, U.S. Statutes at Large, page 807. The relevant section of the statute was entitled, Tampering with a Record, or Otherwise Impeding an Official Proceeding, 116 Stat. 807, emphasis added. That title indicates that Congress intended the two clauses to have independent effect. Section 1512c was added as a floor amendment in the Senate and explained as closing a certain loophole with respect to document shredding. C. 148, Congressional Record, S. 6545, July 10, 2002. Senator Lott. Id at S. 6549-S6550, Senator Hatch. But those explanations do not limit the enacted text. C. Pitston Cole Group v. Seben, 488 U.S. 105, at 115, 1988. It is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history. C. Also, Encino Motor Cars, LLC v. Navarro, 138, Supreme Court, 1134, at 1143, 2018. Even if Congress did not foresee all the applications of the statute, that is no reason not to give the statutory text a fair reading. The floor statements thus cannot detract from the meaning of the enacted text. C. Barnhart v. Sigmund Cole Company, 534 U.S. 438, at 457, 2002. Floor statements from two senators cannot amend the clear and unambiguous language of a statute. We see no reason to give greater weight to the views of two senators than to the collective votes of both houses which are memorialized in the unambiguous statutory text. That principle has particular force where one of the proponents of the amendment to Section 1512 introduced his remarks as only briefly elaborating on some of the specific provisions contained in this bill. 148 Congressional Record, S. 6550, Senator Hatch. Indeed, the language Congress used in Section 1512c.2, prohibiting corruptly obstructing, influencing, or impeding any official proceeding, or attempting to do so, parallels a provision that Congress considered years earlier in a bill designed to strengthen protections against witness tampering and obstruction of justice. While the earlier provision is not a direct antecedent of Section 1512c.2, Congress's understanding of the broad scope of the earlier provision is instructive, recognizing that the proper administration of justice may be impeded or thwarted by a variety of corrupt methods limited only by the imagination of the criminally inclined. Senate Report No. 532, 97th Congress, 2nd Session, 17-18, 1982. Congress considered a bill that would have amended Section 1512 by making it a crime inter alia when a person corruptly influences, obstructs, or impedes the enforcement and prosecution of federal law, administration of a law under which an official proceeding is being or may be conducted, or the exercise of a federal legislative power of inquiry, id at 17-19, quoting S. 2420. The Senate Committee explained that the purpose of preventing an obstruction of or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice. id at 18. The report gave examples of conduct actually prosecuted under the current residual clause in 18 U.S. Code Section 1503, which would probably not be covered in this series of provisions without a residual clause. id. One prominent example was a conspiracy to cover up the Watergate burglary and its aftermath by having the Central Intelligence Agency seek to interfere with an ongoing FBI investigation of the burglary. id, citing United States v. Haldeman, 559 F. 2 31, D.C. Circuit, 1976. The report therefore indicates a congressional awareness not only that residual clause language resembling Section 1512C2 broadly covers a wide variety of obstructive conduct, but also that such language reaches the improper use of governmental processes to obstruct justice. Specifically, the Watergate cover-up orchestrated by White House officials including the President himself, C. Haldeman, 559 F. 3rd at 51, 86-87, 120-129, and 162. 4. General principles of statutory construction do not suggest that Section 1512C2 is inapplicable to the conduct in this investigation. The requirement of fair warning in criminal law, the interest in avoiding due process concerns in potentially vague statutes, and the rule of lenity do not justify narrowing the reach of Section 1512C2's text. A. As with other criminal laws, the Supreme Court has exercised restraint in interpreting obstruction of justice provisions, both out of respect for Congress's role in defining crimes and in the interest of providing individuals with fair warning of what a criminal statute prohibits. Maranello v. United States, 138 C. 1101 at 1106, 2018. Arthur Anderson, 544 U.S. at 703. Aguilar, 515 U.S. at 599-602. In several obstruction cases, the Court has imposed a nexus test that requires that the wrongful conduct targeted by the provision be sufficiently connected to an official proceeding to ensure the requisite culpability. Maranello, 138 C. 1109, Arthur Anderson, 544 U.S. at 707-708. Aguilar, 515 U.S. at 600-602. Section 1512C2 has been interpreted to require a similar nexus. C, for example, United States v. Young, 916, F3rd, 368 at 386, 4th Circuit, 2019. United States v. Petruc, 781, F3rd, 538 at 445, 8th Circuit, 2015. United States v. Phillips, 583, F3rd, 1261 at 1264, 10th Circuit, 2009. United States v. Reich, 479, F3rd, 179 at 186, 2nd Circuit, 2007. To satisfy the nexus requirement, the government must show, as an objective matter, that a defendant acted in a manner that is likely to obstruct justice, such that the statute excludes defendants who have an evil purpose, but use means that would only unnaturally and improbably be successful. Aguilar, 515 U.S. at 601-602. C, id at 599. The endeavor must have the natural and probable effect of interfering with the due administration of justice. The government must also show, as a subjective matter, that the actor contemplated a particular foreseeable proceeding. Petruc, 781, F3rd, at 445. Those requirements alleviate fair warning concerns by ensuring that obstructive conduct has a close enough connection to existing or future proceedings to implicate the dangers targeted by the obstruction laws and that the individual actually has the obstructive result in mind. B. Courts also seek to construe statutes to avoid due process vagueness concerns. C, for example, MacDonald v. United States, 136, Supreme Court, 2355, at 2373, 2016. Skilling v. United States, 561, U.S. 358, at 368, also 402-404, 2010. Vagueness doctrine requires that a statute define a crime with sufficient definiteness that ordinary people can understand what conduct is prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement. And at 402-403. The obstruction statute's requirement of acting corruptly satisfies that test. Acting corruptly within the meaning of section 1512c2 means acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede, or obstruct the relevant proceeding. United States v. Gordon, 710f3, 1124, at 1151, 10th Circuit, 2013. The majority opinion in Aguilar did not address the defendant's vagueness challenge to the word corruptly. 515 U.S., at 600, note 1. But Justice Scalia's separate opinion did reach that issue and would have rejected the challenge. United at 616-617, Justice Scalia joined by Justices Kennedy and Thomas, concurring in part and dissenting in part. Statutory language need not be colloquial, Justice Scalia explained, and the term corruptly, in criminal laws, has a long-standing and well-accepted meaning. It denotes an act done with an intent to give some advantage inconsistent with official duty and the rights of others. Id at 616. Internal quotation marks omitted, citing lower court authority and legal dictionaries. Justice Scalia added that, in the context of obstructing jury proceedings, any claim of ignorance of wrongdoing is incredible. Id at 617. Lower courts have also rejected vagueness challenges to the word corruptly. See, for example, United States v. Edwards, 869 F. 3rd, 490, at 501-502, 7th Circuit, 2017. United States v. Branson, 104 F. 3rd, 1267, at 1280-1281, 11th Circuit, 1997. United States v. Howard, 569 F. 2nd, 1331, at 1336, note 9. 5th Circuit, 1978. This well-established intent standard precludes the need to limit the obstruction statutes to only certain kinds of inherently wrongful conduct. See. Finally, the rule of lenity does not justify treating Section 1512c2 as a prohibition on evidence impairment as opposed to an omnibus clause. The rule of lenity is an interpretive principle that resolves ambiguity in criminal laws in favor of the less severe construction. Cleveland v. United States, 531 U.S. 12, at 25, 2000. As the court has repeatedly emphasized, however, the rule of lenity applies only if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the court must simply guess as to what Congress intended. Abramsky v. United States, 573 U.S. 169, at 188, note 10, 2014. The rule has been cited, for example, in adopting a narrow meaning of tangible object in an obstruction statute when the prohibition's title, history, and list of prohibited acts indicated a focus on destruction of records. See Yates v. United States, 135, Supreme Court, 1074, at 1088, 2015, plurality opinion, interpreting tangible object in the phrase record, document, or tangible object, in 18 U.S. Code, Section 1519, to mean an item capable of recording or preserving information. Here, as discussed above, the text, structure, and history of Section 1512c.2 leaves no grievous ambiguity about the statute's meaning. Section 1512c.2 defines a structurally independent general prohibition on obstruction of official proceedings. 5. Other obstruction statutes might apply to the conduct in this investigation. Regardless whether Section 1512c.2 covers all corrupt acts that obstruct, influence, or impede pending or contemplated proceedings, other statutes would apply to such conduct in pending proceedings, provided that the remaining statutory elements are satisfied. As discussed above, the Omnibus Clause in 18 U.S. Code, Section 1503a, applies generally to obstruction of pending judicial and grand proceedings. See Aguilar 515 U.S. at 598, noting that the clause is far more general in scope than preceding provisions. Section 1503a's protections extend to witness tampering and to other obstructive conduct that has a nexus to pending proceedings. Section 1503a covers witness-related obstructive conduct, and cabining prior circuit authority. And Section 1505 broadly criminalizes obstructive conduct aimed at pending agency and congressional proceedings. See, for example, United States v. Rainey, 757, F3rd 234, at 241 through 247, 5th Circuit 2014. Finally, 18 U.S. Code, Section 1512b3, criminalizes tampering with witnesses to prevent the communication of information about a crime to law enforcement. The nexus inquiry articulated in Aguilar, that an individual has knowledge that his actions are likely to affect the judicial proceeding, 515 U.S. at 599, does not apply to Section 1512b3. See United States v. Bern, 435, F3rd 16, at 24 through 25, 1st Circuit 2006. The nexus inquiry turns instead on the actor's intent to prevent communications to a federal law enforcement official. See Fowler v. United States, 563 U.S. 668, at 673 through 678, 2011. In sum, in light of the breadth of Section 1512c2 and the other obstruction statutes and argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws, lacks merit. Section 21 of report on the investigation into Russian interference in the 2016 presidential election. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Lynn Jarrow. Report on the investigation into Russian interference in the 2016 presidential election by Robert Mueller. Legal defenses to the application of obstruction of justice statutes to the president. Section B. Constitutional defenses to applying obstruction of justice statutes to the presidential conduct. The president has broad discretion to direct criminal investigations. The Constitution vests the executive power in the president and enjoins him to take care that the laws be faithfully executed. U.S. Constitution, Article 2, Section 1, paragraph 3. Those powers and duties form the foundation of prosecutorial discretion. See United States v. Armstrong, U.S. 517, 1996. Attorney General and United States Attorneys have this latitude because they are designated by statute as the president's delegates to help him discharge his constitutional responsibility to take care that the laws be faithfully executed. President also has authority to appoint officers of the United States and to remove those whom he has appointed. U.S. Constitution, Article 2, Section 2, clause 2, granting authority to the president to appoint all officers with the advice and consent of the Senate, but providing the Congress may vest the appointment of inferior officers in the president alone, the heads of departments, or the courts of law. See also Free Enterprise Fund v. Public Company Accounting Oversight Board, U.S. 561, 2010, describing removal authority as flowing from the president's responsibility to take care that the laws be faithfully executed. Although the president has broad authority under Article 2, that authority coexists with Congress's Article 1 power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions. Usually those constitutional powers function in harmony with the president enforcing the criminal laws under Article 2 to protect against corrupt obstructive acts, but when the president's official actions come into conflict with the prohibitions in the obstruction statutes, any constitutional tension is reconciled through separation of powers analysis. The president's counsel has argued that the president's exercise of his constitutional authority to terminate an FBI director and to close investigations cannot constitutionally constitute obstruction of justice. As noted above, no department of justice position or Supreme Court precedent directly resolved this issue. We did not find counsel's contention, however, to accord with our reading of the Supreme Court authority addressing separation of powers issues. Applying the court's framework for analysis, we concluded that Congress can validly regulate the president's exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice. The limited effect on presidential power that results from that restriction would not impermissibly undermine the president's ability to perform his Article 2 functions. 1. The requirement of a clear statement to apply statutes to presidential conduct does not limit the obstruction statutes. Before addressing Article 2 issues directly, we consider one threshold statutory construction principle that is unique to the presidency. The principle that general statutes must be read as not applying to the president If they do not expressly apply, where application would arguably limit the president's constitutional role, Office of Legal Counsel, application of U.S. Code, Title 28, to presidential appointments of federal judges, opinions of the Office of Legal Counsel, Volume 19, 1995. This clear statement rule has its source in two principles. 1. Congress should be construed to avoid serious constitutional questions, and Congress should not be assumed to have altered the constitutional separation of powers without clear assurance that it intended that result. Office of Legal Counsel, the constitutional separation of powers between the president and Congress, opinions of the Office of Legal Counsel, Volume 20, 1996. The Supreme Court has applied that clear statement rule in several cases. In one leading case, the Court construed the Administrative Procedure Act, U.S. Code, Title 5, Section 701, not to apply to judicial review of presidential action. Franklin v. Massachusetts, U.S. 505, 1992. The Court explained that it would require an express statement by Congress before assuming it intended the president's performance of his statutory duties to be reviewed for abuse of discretion. In another case, the Court interpreted the word utilized in the Federal Advisory Committee Act, FACA, United States Code, Title 5, to apply only to the use of advisory committees established directly or indirectly by the government, thereby excluding the American Bar Association's advice to the Department of Justice about federal judicial candidates. Public Citizen v. United States Department of Justice, U.S. 491, 1989. The Court explained that a broader interpretation of the term utilized in FACA would raise serious questions whether the statute infringed unduly on the president's Article II power to nominate federal judges and violated the doctrine of separation of powers. Another case found that an established canon of statutory construction applied with special force to provisions that would impinge on the president's foreign affairs powers if construed broadly, Sale v. Haitian Center's Council, U.S. 155, 1993, applying the presumption against extraterritorial application to construe the Refugee Act of 1980 as not governing in an overseas context where it could affect foreign and military affairs for which the president has unique responsibility. The Department of Justice has relied on this clear statement principle to interpret certain statutes as not applying to the president at all, similar to the approach taken in Franklin. See Memorandum for Richard T. Burris, Office of the President, from Lawrence H. Silverman, Deputy Attorney General Ray, Conflict of Interest Problems arising out of the president's nomination of Nelson A. Rockefeller to be Vice President under the 25th Amendment to the Constitution, August 28, 1974, Criminal Conflict of Interest Statute, United States Code, Title 18, Section 208, does not apply to the president. Other OLC opinions interpret statutory text not to apply to certain presidential or executive actions because of constitutional concerns. See, Application of, United States Code, Title 28, Section 458, to Presidential Appointments of Federal Judges, Opinions of the Office of Legal Counsel, Volume 19, Consanglitity Limitations on Court Appointments, United States Code, Title 28, Section 458, found inapplicable to Presidential Appointments of Judges to the Federal Judiciary. Constraints imposed by United States Code, Title 18, Section 1913 on Lobbying Efforts, Opinions of the Office of Legal Counsel, Volume 13, 1989, Limitation on the Use of Appropriated Funds for Certain Lobbying Programs, Found inapplicable to Certain Communications by the President and Executive Officials. But OLC has also recognized that this clear statement rule does not apply with respect to a statute that raises no separation of powers questions were it to be applied to the president, such as the Federal Bribery Statute, United States Code, Title 18, Section 201, Application of, United States Code, Title 28, Section 458, to Presidential Appointments of Federal Judges, Opinions of the Office of Legal Counsel, Volume 19. OLC explained that, Application of Section 201 raises no separation of powers question, not alone a serious one, because the Constitution confers no power in the president to receive bribes. In support of that conclusion, OLC noted constitutional provisions that forbid increases in the president's compensation while in office, which is what a bribe would function to do. Citing U.S. Constitution, Article 2, Section 1 Clause 7, and the express constitutional power of Congress to impeach and convict a president for inter alia, bribery, citing U.S. Constitution, Article 2, Section 4. Under OLC's analysis, Congress can permissively criminalize certain obstructive conduct by the president, such as suborning perjury, intimidating witnesses, or fabricating evidence, because those prohibitions raise no separation of powers questions. C. Application of United States Code, Title 28, Section 458, to Presidential Appointments of Federal Judges, Opinions of the Office of Legal Counsel, Volume 19. The Constitution does not authorize the president to engage in such conduct, and those actions would transgress the president's duty to take care that the laws be faithfully executed. U.S. Constitution, Article 2, Section 3. In view of the clearly permissible applications of the obstruction statutes to the president, Franklin's holding that the president is entirely excluded from a statute absent a clear statement would not apply in this context. A more limited application of a clear statement rule to exclude from the obstruction statutes only certain acts by the president, for example, removing prosecutors or ending investigations for corrupt reasons, would be difficult to implement as a matter of statutory interpretation. It is not obvious how a clear statement rule would apply to an omnibus provision, like Section 1512, C. 2, to exclude corruptly motivated obstructive acts only when carried out in the president's conduct of office. No statutory term could easily bear that specialized meaning. For example, the word corruptly has a well-established meaning that does not exclude exercises of official power for corrupt ends. Indeed, an established definition states that corruptly means action with an intent to secure an improper advantage inconsistent with official duty and the rights of others. Valentine's Law Dictionary, Page 276, Third Edition, 1969, and it would be contrary to ordinary rules of statutory construction to adopt an unconventional meaning of a statutory term only when applied to the president. The United States v. Santos, United States 553, 2008, plurality opinion of Scalia J, rejecting proposal to give the same word in the same statutory provision different meanings in different factual contexts. Public citizen, United States 491, giving the term utilized in the FACA a uniform meaning to avoid constitutional questions. Nor could such an exclusion draw on a separate and established background interpretive presumption such as a presumption against extraterritoriality applied in sale. The principle that courts will construe a statute to avoid serious constitutional questions is not a license for the judiciary to rewrite language enacted by the legislature. Salinas v. United States, United States 522, 1997, it is one thing to acknowledge and accept well-defined or even newly enunciated generally applicable background principles of assumed legislative intent. It is quite another to espouse the broad proposition that criminal statutes do not have to be read as broadly as they are written, but are subject to case-by-case exceptions. Brogan v. United States, US 522, 1998, when a proposed construction would thus function as an extra-textual limit on a statute's compass, thereby preventing the statute from applying to a host of cases falling within its clear terms, Lowren, US 573, it is doubtful that the construction would reflect the Congress's intent. That is particularly so with respect to obstruction statutes which have been given a broad and all-inclusive meaning, rainy, discussing sections 1503 and 1505. Accordingly, since no established principle of interpretation would exclude the presidential conduct we have investigated from statutes such as sections 1503, 1505, 1512b, and 1512c2, we proceed to examine the separation of powers issues that could be raised as an Article II defense to the application of those statutes. 2. Separation of powers principles support the conclusion that Congress may validly prohibit corrupt, obstructive acts carried out through the President's official powers. When Congress imposes a limitation on the exercise of Article II powers, the limitations validity depends on whether the measure disrupts the balance between the coordinate branches. Nixon v. Administrator of General Services, United States 433, 1977. Even when a branch does not irrigate power to itself, the separation of powers doctrine requires that a branch not impair an other in the performance of its constitutional duties. Loving v. United States, United States 517, 1996. The separation of powers does not mean, however, that the branches ought to have no partial agency in or no control over the acts of each other. Clinton v. Jones, United States 520, 1997. Quoting James Madison, the Federalist No. 47. In this context, a balancing test applies to assess separation of powers issues. Applying that test here, we concluded that Congress can validly make obstruction of justice statutes applicable to corruptly motivated official acts of the President without impermissibly undermining his Article II functions. A. The Supreme Court's separation of powers balancing test applies in this context. A congressionally imposed limitation on presidential action is assessed to determine the extent to which it prevents the executive branch from accomplishing its constitutionally assigned functions and if the potential for disruption is present. Whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. Under of General Services, United States 433, C. Nixon v. Fitzgerald, United States 457, 1982, United States v. Nixon, United States 418, 1974. That balancing test applies to a congressional regulation of presidential power through the obstruction of justice laws. And an Article II power has not been explicitly assigned by the text of the Constitution to be within the sole province of the President, but rather was thought to be encompassed within the general grant to the President of the Executive Power. The Court has balanced competing constitutional considerations. Public Citizen, United States 491, Kennedy Jay, concurring in the judgment joined by Rehnquist, C.J., and O'Connor, J. As Justice Kennedy noted in Public Citizen, the Court has applied a balancing test to restrictions on the President's power to remove executive officers, a power that is not conferred by any explicit provision in the text of the Constitution, as is the appointment power, but rather is inferred to be a necessary part of the grant of the Executive Power. Citing Morrison v. Olsen, United States 487, 1988, and Myers v. United States, United States 272, 1926, consistent with that statement Morrison sustained a good cause limitation on the removal of an inferior officer with defined prosecutorial responsibilities after determining that the limitation did not impermissibly undermine the President's ability to perform his Article II functions. The Court has also evaluated other general executive power claims through a balancing test. For example, the Court evaluated the President's claim of an absolute privilege for presidential communications about his official acts by balancing that interest against the judicial branch's need for evidence in a criminal case. United States v. Nixon, Supra, recognizing a qualified constitutional privilege for presidential communications on official matters. The Court has also upheld a law that provided for archival access to presidential records despite a claim of absolute presidential privilege over the records. Administrator of General Services, United States 433. The analysis in those cases supports applying a balancing test to assess the constitutionality of applying the obstruction of justice statutes to presidential exercises of executive power. Only in a few instances has the Court applied a different framework. When the President's power is both exclusive and conclusive on the issue, Congress is precluded from regulating its exercise. Zivotovsky v. Kerry, Supreme Court 135, 2015. In Zivotovsky, for example, the Court followed Justice Jackson's familiar tripartite framework in Youngstown Sheet & Tube Company v. Sawyer, U.S. 343, 1952, Jackson J. Concurring, and held that the President's authority to recognize foreign nations is exclusive. He also public citizen, United States 491. Kennedy J. Concurring in the Judgment, citing the power to grant pardons under U.S. Constitution Article 2, Section 2 Clause 1, and the Presentment Clause for Legislation, U.S. Constitution Article 1, Section 7, Clause 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 its substantial authority regarding many of the policy determinations that precede and follow the President's Act. Zivotovsky, for example, although the President's power to grant pardons is exclusive and not subject to congressional regulation, C. United States v. Klein, United States 80, 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. United States Code, Title 18, Section 201b3, 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. Constitution Article 1, Section 6, Clause 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, United States 408, 1972, 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 effective obstruction of justice statutes on the President's capacity to perform his article to responsibilities is limited. Under the Supreme Court's balancing test for analyzing separation 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 to responsibilities, Administrator of General Services, U.S. 433, as discussed above. Applying obstruction of justice statutes to presidential conduct that does not involve the President's conduct of office, 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 we faithfully executed. Congress may not supplant the President's exercise of executive power to supervise prosecutions or to remove officers who occupy law enforcement positions. Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws, except by impeachment, because the structure of the Constitution does not permit Congress to execute the laws. This 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 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. 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 even-handed 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. 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, U.S. 418. To read the Article II powers of the President as providing an absolute privilege to withhold confidential information from a criminal trial would upset the constitutional balance of a workable government and gravely impair the role of the courts under Article III. 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. For example, U.S. Constitution, Article I, Section 8, Clause 18, Necessary and Proper Clause. Article II, Section 2, Clause 1, Opinions Clause. Article II, Section 2, Clause 2, Appointments Clause. See Free Enterprise Fund, United States 561. 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. The President's removal powers are at their zenith with respect to principal officers, that is, officers who must be appointed by the President and who report to him directly. See Free Enterprise Fund, U.S. 561. 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. Thus, there are some purely executive officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. The President's cabinet officers must do his will and the moment that he leases confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay. 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 United States Code Title 5, Section 101, United States Code Title 28, Section 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 regulation imposed by the obstruction statutes could possibly intrude too deeply on the President's freedom to select and supervise 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. In inferior officers are officers whose work is directed and supervised at some level by other officers appointed by the President with a Senate's consent, Free Enterprise Fund, US 561, quoting Edmund v. United States, US 5, 20, 1997. The Supreme Court has long recognized Congress's authority to place for cause limitations on the President's removal of inferior officers whose appointment may be vested in the head of a department. US Constitution Article 2, Section 2, Clause 2, see United States v. Perkins, US 116, 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, US 487, citing Perkins, Scalia J. dissenting, recognizing that Perkins is established law, see also Free Enterprise Fund, US 561, 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 United States Code Title 28, Section 509. Their work is thus directed and supervised by a presidentially appointed Senate-confirmed officer, see Inray Grand Jury Investigation, DC Circuit Court, February 26, 2019, holding that the Special Counsel is an inferior officer for constitutional purposes. 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 obstructing justice, 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. A narrow and discreet 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 2 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, US 487, a restriction on removing an inferior officer for a corrupt reason, a reason grounded in achieving personal rather than official ends, does not seriously hinder the president's performance of his duties. The president retains broad latitude to supervise investigations and remove officials circumscribed in his context only by the requirement that he not act for corrupt personal purposes. C. Congress has power to protect congressional, grand jury, and judicial proceedings against corrupt acts from any source. Where a law imposes a burden on the president's performance of Article 2 functions, separation of powers analysis considers whether the statutory measure is justified by an overriding need to promote objectives within the constitutional authority of Congress, Administrator of General Services, US 433. Here, Congress enacted the obstruction of justice statutes to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials. Those objectives are within Congress's authority and serve strong governmental interests. 1. Congress has Article 1 authority to define generally applicable criminal law and apply it to all persons, including the president. Congress clearly has authority to protect its own legislative functions against corrupt efforts designed to impede legitimate fact-gathering and law-making efforts. C. Watkins v. United States, US 354, 1957, Chapman v. United States, D.C. Appeals Court 5, 1895. Congress also has authority to establish a system of federal courts, which includes the power to protect the judiciary against obstructive acts. C. US Constitution, Article 1, Section 8, Clause 9, 18. The Congress shall have the power to constitute tribunals inferior to the Supreme Court and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. The long lineage of the obstruction of justice statutes, which can be traced to at least 1831, attests to the necessity for that protection. C. an Act Declaratory of the Law Concerning Contempts of Court, Statute, Section 4, 1831. Making it a crime if any person or persons shall corruptly endeavor to influence, intimidate, or impede any juror, witness, or officer in any court of the United States, in the discharge of his duty, or shall corruptly obstruct or impede or endeavor to obstruct or impede the due administration of justice therein. 2. The Articles 3 Courts have an equally strong interest in being protected against obstructive acts, whatever their source. As the Supreme Court explained in United States v. Nixon, a primary constitutional duty of the judicial branch is to do justice in criminal prosecutions. In Nixon, the court rejected the President's claim of absolute executive privilege because the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. As Nixon illustrates, the need to safeguard judicial integrity is a compelling constitutional interest, noting that the denial of full disclosure of the facts surrounding relevant presidential communications threatens the very integrity of the judicial system and public confidence in the system. 3. Finally, the grand jury cannot achieve its constitutional purpose absent protection from corrupt acts. Serious federal criminal charges generally reach the Articles 3 Courts based on an indictment issued by a grand jury, Kubaldic v. United States, U.S. 309, 1940. The Constitution itself makes the grand jury a part of the judicial process, and the grand jury's function is enshrined in the Fifth Amendment, U.S. Constitution, Amendment 5. No person shall be held to answer for a serious crime, unless on a presentment or indictment of a grand jury. The whole theory of the grand jury's function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the government and the people. United States v. Williams, U.S. 504, 1992, pledged to indict no one because of prejudice and to free no one because of special favor, Costello v. United States, U.S. 350, 1956. If the grand jury were not protected against corrupt interference from all persons, its function as an independent charging body would be thwarted, and in a partial grand jury investigation to determine whether probable cause exists to indict is vital to the criminal justice process. The final step in the constitutional balancing process is to assess whether the separation of powers doctrine permits Congress to take action within its constitutional authority, notwithstanding the potential impact on Article II functions. C. Administrator of General Services, U.S. 433, C. also Morrison, U.S. 487, United States v. Nixon, U.S. 418. In the case of the obstruction of justice statutes, our assessment of the weighing of interest leads us to conclude that Congress has the authority to impose limited restrictions contained in those statutes on the President's official conduct to protect the integrity of important functions of other branches of government. A general ban on corrupt action does not unduly intrude on the President's responsibility to take care that the laws be faithfully executed. U.S. Constitution, Article II, Section III. To the contrary, the concept of faithful execution connotes the use of power in the interest of the public, not in the office holder's personal interests. C. I. Samuel Johnson, a dictionary of the English language 1755, Page 763, faithfully, Definition III, with strict adherence to duty and allegiance, and immunizing the President from the generally applicable criminal prohibition against corrupt obstruction of official proceedings would seriously impair Congress's power to enact laws to promote objectives within its constitutional authority, Administrator of General Services, U.S. 433, i.e., protecting the integrity of its own proceedings and the proceedings of Article III courts and grand juries. Accordingly, based on the analysis above, we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise valid Article II powers. III. Assertaining whether the President violated the obstruction statutes would not chill his performance of his Article II duties. Applying the obstruction statutes to the President's official conduct would involve determining as a factual matter whether he engaged in an obstructive act, whether the act had a nexus to official proceedings, and whether he was motivated by corrupt intent. But applying those standards to the President's official conduct should not hinder his ability to perform his Article II duties. Nixon v. Fitzgerald, U.S. 457, taking into account chilling effect on the President in adopting a constitutional role of presidential immunity from private civil damages action based on official duties. Several safeguards would prevent a chilling effect, the existence of settled legal standards, the presumption of regularity in prosecutorial actions, and the existence of evidentiary limitations on probing the President's motives, and historical experience confirms that no impermissible chill should exist. A. As an initial matter, the term corruptly sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others. Valentine's Law Dictionary, 3rd edition, 1969, page 276. C. United States v. Pasha, D.C. Circuit Court, 2015, Aguilar, U.S. 515, Scalia J. concurring in part and dissenting in part. That standard parallels the President's constitutional obligation to ensure the faithful execution of the laws, and virtually everything that the President does in the routine conduct of office will have a clear governmental purpose and will not be contrary to his official duty. Accordingly, the President has no reason to be chilled in those actions because, in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive. That point is illustrated by examples of conduct that would and would not satisfy the stringent corrupt motive standard. Director Indirect actioned by the President to end a criminal investigation into his own or his family member's conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So, too, would action to halt an enforcement proceeding that directly and adversely affected the President's financial interests for the purpose of protecting those interests. In those examples, official power is being used for the purpose of protecting the President's personal interests. In contrast, the President's actions to serve political or policy interests would not qualify as corrupt. The President's role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law enforcement actions and proceedings. For instance, the President's decision to curtail a law enforcement investigation to avoid international friction would not implicate the obstruction of justice statutes. The criminal law does not seek to regulate the consideration of such political or policy factors in the conduct of government. And when legitimate interests animate the President's conduct, those interests will almost invariably be readily identifiable based on objective factors. Because the President's conduct in those instances will obviously fall outside the zone of obstruction law, no chilling concern should arise. B. There is also no reason to believe that investigations, let alone prosecutions, would occur except in highly unusual circumstances when a credible factual basis exists to believe that obstruction occurred. Prosecutorial action enjoys a presumption of regularity. Absent clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties. Armstrong, U.S. 517, quoting United States v. Chemical Foundation, Inc., United States 272, 1926. The presumption of prosecutorial regularity would provide even greater protection to the President than exists in routine cases given the prominence and sensitivity of any matter involving the President, and the likelihood that such matters will be subject to thorough and careful review at the most senior levels of the Department of Justice. Under OLC's opinion that a sitting President is entitled to immunity from indictment, only a successor administration would be able to prosecute a former President. But that consideration does not suggest that a President would have any basis for fearing abusive investigations or prosecutions after leaving office. There are obvious political checks against initiating a baseless investigation or prosecution of a former President, C. Administrator of General Services, U.S. 433, considering political checks in separation of powers analysis, and the Attorney General holds the power to conduct the criminal litigation of the United States government, U.S. V. Nixon, U.S. 418, citing U.S. Code Title 28, Section 516, which provides a strong institutional safeguard against politicized investigations or prosecutions. 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. U.S. 457, as Fitzgerald recognized, there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions. Fitzgerald, United States 457, C. Cheney, United States 542, 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, U.S. 517, 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. Assertaining 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, U.S. 418, In Ray, sealed case. DC Circuit, 1997, C. Also, Administrator of General Services, United States 433. Former President can invoke presidential communications privilege, although successors 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. United States Code Title 18, Section 201, Subsection 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. C. U.S. Constitution, Article 1, Section 3, Article 2, Section 4. See also application of United States Code, Title 28, Section 458, to presidential appointments of federal judges. Opinions of the Office of Legal Counsel, Volume 19. Application of Section 201 to the President raises no separation of powers issue, let alone a serious one. D. Finally, history provides no reason to believe that any asserted chilling effect justifies exempting the President from the obstruction of 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 to 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 President 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 a fundamental principle of our government that no person in this country is so high that he is above the law. Section 22 of Report on the Investigation into Russian Interference in the 2016 Presidential Election. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kathleen Nelson. Report on the Investigation into Russian Interference in the 2016 Presidential Election by Robert Mueller. Section 22. 4. Conclusion. Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President's conduct. The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him. Section 22. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Report on the Investigation into Russian Interference in the 2016 Presidential Election by Robert Mueller. Appendix A. Order appointing special counsel. Office of the Deputy Attorney General. Washington, D.C. 20530. Order number 3915-2017. Appointment of special counsel to investigate Russian interference with the 2016 Presidential Election and related matters. By virtue of the authority vested in me as Acting Attorney General, including Title 28, United States Code Sections 509, 510, and 515. In order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian Government's efforts to interfere in the 2016 Presidential Election, I hereby order as follows. A. Robert S. Mueller III. Is appointed to serve as special counsel for the United States Department of Justice. B. The special counsel is authorized to conduct the investigation confirmed by then FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including 1. Any links and or coordination between the Russian Government and individuals associated with the campaign of President Donald Trump. And 2. Any matters that arose or may arise directly from the investigation. And 3. Any other matters within the scope of Title 28, Code of Federal Regulations, Section 600.4, Subsection A. C. If the special counsel believes it is necessary and appropriate, the special counsel is authorized to prosecute federal crimes arising from the investigation of these matters. D. Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the special counsel. May 17, 2017. Rod J. Rosenstein. Acting Attorney General. End of Section 23.