By David B. Rivkin Jr. and Lee A. Casey
7 February 2018 in the Wall Street Journal
Democrats have attacked Attorney General-designate William Barr for a memo in which he argued against a legal theory some claim could support prosecuting President Trump for obstruction of justice. Mr. Barr argued that an exercise of the president’s constitutional authority—for instance, firing James Comey as director of the Federal Bureau of Investigation—cannot be construed as obstruction even if prosecutors believe he did so for improper reasons.
At his confirmation hearings, Mr. Barr rightly stood his ground. Critics should consider the implications of the motive-driven obstruction theory with respect not only to the president but also to the other branches of government. It has the potential to impair Congress, the judiciary and state governments as well.
The Constitution vests all executive power in the president, including decisions about high-level personnel, investigations, prosecutions and pardons. Human motives are rarely pure, and bad motives are often in the eye of the beholder. Presidents inevitably have self-interested objectives when exercising their authority—enhancing their political position, for example.
If the personal motivations behind every lawful official act could potentially be grounds for criminal charges, then presidents—and their subordinates, “from the Attorney General down to the most junior line prosecutor,” as Mr. Barr put it in his memo—might shirk supervisory authority over a wide variety of cases. Law enforcement would operate on an autopilot, with extreme harshness as the default approach. The result, as Hamilton put it in Federalist No. 70, would be “a feeble executive,” which “implies a feeble execution of the government” and produces “bad government.”
Nothing would stop prosecutors from applying such a theory to lawmakers and judges. Suppose a congressional committee investigates a matter also under investigation by the FBI. If prosecutors think the motive is political—and politics is Congress’s lifeblood—that could be considered obstruction.
Mr. Trump’s critics claim any presidential action to eliminate special counsel Robert Mueller’s funding would be obstruction, even if otherwise consistent with federal appropriations law. It would follow that congressional decisions to reduce or eliminate appropriations for public corruption investigations, which frequently target members of Congress, could also be prosecuted.
The Speech or Debate Clause, which protects lawmakers from prosecution for most of their official actions, would offer no shield. The argument would not be that the relevant members said or did the wrong thing, but that their motives were corrupt. Bribery is a crime, but under this theory lawmakers could be prosecuted for casting a vote without accepting any illicit payment, merely because it benefits their political allies or constituents. The dangerous reach of such arguments is why the Supreme Court has required evidence in corruption cases of an actual quid pro quo—an offer of an illicit payment or benefit in exchange for official action—not merely an improper motive.
Federal judges would likewise be vulnerable to prosecution based on their personal motivations in reaching decisions. The proper method of interpreting the Constitution is a matter of fierce legal and political debates, waged largely in judicial confirmation proceedings. Under the motive-based obstruction theory, a judge might face criminal charges because a prosecutor thinks his rulings were influenced by his political, ideological or religious beliefs. If an official’s motives can transform lawful actions into crimes, then presidents—or junior prosecutors—would be able to investigate judges whose decisions they dislike. The mere possibility would destroy judicial independence.
Nor is there any reason to limit the motive-based obstruction theory to the federal government. State governors, lawmakers and judges also have wide-ranging constitutional authority. Discerning their motivations would become a fair game for prosecutors.
Historical practice does not support obstruction charges based on an exercise of lawful constitutional powers. As the Supreme Court has said for centuries, and reaffirmed in National Labor Relations Board v. Noel Canning (2014), “the longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’ ” Novel assertions of governmental power must be viewed with considerable skepticism.
Preventing corruption doesn’t require the motive-driven obstruction theory. Prosecutors and other officials have plenty of existing tools to deal with corruption, including laws against bribery and nepotism as well as statutes governing conflicts of interest and recusal. These legal strictures are vigorously enforced at both federal and state levels.
If the motive-based obstruction theory prevails, criminal investigations of alleged obstruction by government officials at all levels, and in all institutions, would eventually become routine. That would impair the government’s ability to function and destroy the separation of powers by shifting vast authority to federal investigators and prosecutors and shielding them from political accountability.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.