Rethinking Presidential Obstruction of Justice

Some, including Mr. Bauer and Professor Goldsmith, have argued that although the obstruction of justice statute should be amended to clearly apply to the President, the statute should only apply to a President in a limited number of circumstances, such as when the President obstructs justice for certain specific reasons, such as “affect[ing] the outcome of elections,” “protection of family members,” “self-protection.” But this approach leaves too many loopholes that a crafty future President might exploit. Instead, the law should be drafted and construed broadly, such that a President commits obstruction of justice whenever he corruptly obstructs an investigation with the goal of protecting or advancing the personal interests of himself or his associates. This would leave a corrupt President little wiggle room, while ensuring that legitimate instances of Presidential interference in law enforcement (such as stopping malicious prosecutions) cannot be construed as an attempt to obstruct justice.

But that broad approach to determining impermissible motivations does not resolve—and may further exacerbate—the challenge of mixed motives outlined above. Given that Presidents are political actors, they may always (or at least usually) have some sort of political motive for what they do—including the desire to be re-elected, and the associated desire to generate good press and avoid negative publicity or personal embarrassment. To say that a President commits a felony—obstruction of justice—if such a self-interested motivation played any role in the President’s attempt to end or impede an investigation would likely go too far. But it would be equally inappropriate to say that the existence of any legitimate motivation for the President’s action suffices to insulate the President from an obstruction charge. Instead, a President should be deemed to act with the requisite corrupt intent when he acts primarily to serve the interests of himself or his associates. Under this standard, which ought to be written explicitly into the statute, a President cannot be saved from an obstruction of justice charge just because he had some legitimate reason for interfering with law enforcement. Instead, a President’s decisions must be principally motivated by his concern for the well-being of the country—and if that is so, the fact that the President may also have taken into account considerations of personal or political advantage should not render the President’s conduct criminal. 

To be sure, determining the primary motive for a President’s decisions is a hard, fact-intensive, and potentially subjective inquiry. But it is not much different from the sorts of issues that judges and juries must address all the time in criminal cases. And given all the other reasons that prosecutors are likely to be reluctant to charge current or former presidents with obstruction of justice, chances are that charges would only be brought if the evidence of corrupt motivations is very strong.

While it may be tempting to just move on from the Trump presidency without addressing the deficiencies in the current legal framework, doing so would be a mistake. If the law is left unchanged, future Presidents may feel emboldened to test the limits and try to undermine federal investigations, perhaps going even further than Trump did. To ensure that the President is adequately covered by the law, while simultaneously allowing the President the latitude necessary to conduct proper oversight over federal law enforcement agencies, reform to the obstruction of justice statute ought to be a high priority.

1 thought on “Rethinking Presidential Obstruction of Justice

  1. Excellent post, Michael. You raise some very important questions, ones which we should continue to engage with even if President Trump is gone (at least for now). Trump’s interference in criminal investigations violated well-established norms of presidential non-involvement in DOJ. I wonder if there is a way to constitutionally formalize those norms. This potential solution would be orthogonal and hopefully complementary to the reform you propose.

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