Professor Saikrishna Prakash Discusses Obstruction, Executive Power in Advance of Mueller Testimony

Former Special Counsel Robert Mueller ’73 is scheduled to testify Wednesday before Congress about his office’s report, and questions will likely revolve around obstruction and executive power. Professor Saikrishna Prakash of the University of Virginia School of Law, a constitutional law expert, offers a preview from his unique perspective of the issues at stake.

Prakash testified last month before the U.S. House Judiciary Committee on questions of presidential power in the Mueller report, which investigated Russian interference in the 2016 election and possible connections between President Donald Trump and his campaign affiliates. In his comments, Prakash challenged lawmakers’ assumptions on executive privilege, prosecuting presidents and impeachment.

Prakash is the James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law. His scholarship focuses on separation of powers, particularly executive powers, and he is the author of “Imperial from the Beginning: The Constitution of the Original Executive.”

What was your takeaway from the Mueller report?

Focusing on obstruction of justice (as defined in our laws), my view is that the investigation was misbegotten from the beginning. Firing James Comey was not an act that should have spawned an investigation about whether the president violated the federal obstruction of justice statutes.

What counts as obstruction of justice?

There are a number of provisions that speak to obstruction. Generally speaking, these statutes cover attempts to corruptly influence an investigation. Influence is enough and one doesn’t need obstruction as such. If the statutes apply to government officials, every official involved in an investigation (including members of the FBI, the U.S. attorney, the attorney general, etc.) has satisfied the actus reus [the conduct that is a constituent element of a crime] by taking acts with respect to the investigation. The only question is whether they did so for corrupt purposes: e.g., furthering their career, striking at a political opponent, to get in the news, etc.

Why do you suppose the statute does not apply to the president?

As I testified, I would not read the statute to apply to Comey’s official acts or Mueller’s. The statute was not meant to make every official involved in an investigation the subject of a potential obstruction inquiry. If the statute applies to the president, it applies to Mueller and Comey, and they are guilty of obstruction if they acted with a “corrupt” motive. If one is a suspicious sort, it is easy to see (or imagine) corrupt motives. E.g., I hate the president; I’m going to get him back for firing a friend, etc.

Moreover, there are particular constitutional reasons for not reading these generic obstruction statutes to apply to presidents. Applying them to presidents will chill exercises of the president’s constitutional power over prosecution. Absent a clear indication from Congress, I would not read a general criminal law — one nowhere mentioning the president — as if it meant to impinge upon the exercise of the president’s constitutional powers.

To be clear, I am not saying that obstruction statutes cannot be applied to the president. I am only saying that these generic statutes ought not to be read to apply to government officials, including the president. If Congress made clear, via amendments, that these statutes apply to presidents, the difficult constitutional question would be squarely presented, namely whether Congress can make certain exercises of presidential authority a crime.

If obstruction statutes do not apply to the president’s official acts, as you testified, can the president commit obstruction?

Presidents can commit obstruction in a more colloquial sense — namely, hindering an investigation — and they can commit obstruction in a loose impeachment sense. Nothing I said in my testimony should be construed as implying that all of the president’s actions were appropriate. Further, the House can impeach on the grounds that the president obstructed an investigation (or sought to) in a colloquial sense that goes beyond our federal laws. The House (and the Senate) can impeach for offenses that have nothing to do with violation of federal criminal laws.

You’ve argued against presidents invoking executive privilege in the face of congressional inquiries. Can you explain?

Executive privilege is the idea that presidents can maintain confidential communications from the prying eyes of litigants and members of Congress. The privilege exists to foster open and frank discussions within the executive.

Contrary to conventional wisdom, I don’t believe that the Constitution implicitly grants an executive privilege to the president. Far more important matters (like departments, salaries, personnel) are left to Congress. I would say that an executive privilege exists only when Congress authorizes its invocation. Because the president has no constitutional right to executive departments, armies, officers or salaries, I doubt he has a constitutional right to keep secrets.

The Justice Department’s Office of Legal Counsel has previously issued an opinion that a sitting president cannot be indicted. What do you think of this?

I believe that sitting presidents can be investigated, indicted, prosecuted and punished. Again, I would leave it to Congress to provide any presidential immunities, such as a temporary (or permanent) immunity from criminal prosecution.

In any event, nothing prevented Mr. Mueller from reaching a judgment about whether the president committed obstruction. No Justice Department opinion or practice barred prosecutors from saying whether they believed the president committed a crime. Saying that a sitting president cannot be indicted, as the department argues, in no way implies that a sitting president cannot be declared a scofflaw or criminal.

In your testimony you mentioned this and past presidents have committed impeachable offenses. What are some examples?

Going to war in Libya (Barack Obama); bailing out GM and Chrysler (George W. Bush and Obama); ignoring congressional laws regulating the military (Bush and Obama); ignoring the effective date of statutes (Obama); bombing Syria (Trump). I’m sure there are many more. Modern executives frequently break the law, or create new law, in a bid to satisfy their electoral base, to achieve policy goals and to secure reelection.