//  1/14/19  //  Commentary

Last summer, President Trump’s nominee to be the next Attorney General of the United States, William Barr, submitted a seemingly unsolicited memorandum to the Department of Justice (hereinafter “The Barr Memo”). This memo responded to a theory of obstruction of justice that Barr hypothesized to be held by Special Counsel Robert Mueller.  Barr premised his memorandum’s conclusion (that “Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction”) on an extreme and unjustifiable understanding of presidential power.  That understanding, if adopted, would have alarming consequences for the Mueller investigation and far-reaching implications for all operations of the federal government.  

There is much to be said about these implications and about the circumstances that led Mr. Barr to issue his memorandum despite being “in the dark about many facts.” In this post, however, I will consider only a comparatively narrow issue: Barr’s use of the so-called clear statement rule regarding the application of statutes generally (and the obstruction statute in particular) to the President.  

According to Barr, “it is well-settled that statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.”  (emphasis in the original).  The Barr Memo discusses the two leading Supreme Court cases on point, Franklin v. Massachusetts, 505 U.S. 788 (1992) and Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989), and an internal Department of Justice opinion, issued by the Office of Legal Counsel, Application of 28 U.S.C. 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350 (1995).  

As the OLC opinion sets forth, the clear statement rule is founded on two principles: first it is a particular application of the avoidance canon and second it enforces the principle of separation of powers.  See 19 Op. O.L.C. at 351-52.  This points to two conditions for applying the clear statement rule:  (1) as with the avoidance canon generally, it must be the case that the statute can reasonably be read as not applying to the President and (2) there must be an actual, serious separation of powers concern with applying the statute to the President.  

The statute at issue in the 1995 opinion met both conditions.  As that opinion sets forth at great length, OLC would have interpreted section 458 as not applying to presidential appointments of Article III judges even without reference to the clear statement rule. The original statute enacted in 1887 covered only appointments made "by such court or judge" and so, by its terms, did not apply to presidential appointments.  When the provision was recodified as part of a comprehensive overhaul of the federal judiciary in 1911, the "by such court or judge language" was dropped, but the 1911 statute included a provision specifically stating, "[t]he provisions of this Act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest."  There was no indication that Congress meant to take the dramatic step of limiting the President's authority to nominate federal judges.  Moreover, such an interference with the President's exclusive constitutional authority to nominate federal judges would raise an obvious and significant constitutional concern. Cf. Public Citizen v. Dep't of Justice, 491 U.S. 440 (1989).  Thus, the predicates for invoking the clear statement rule were plainly satisfied.

The Supreme Court has been similarly attentive to these predicates.  In Public Citizen, Justice Brennan’s opinion for the Court concluded that the Federal Advisory Committees Act (FACA) was ambiguous not as to whether it applied to the President generally, but as to whether the President “utilized” the American Bar Association’s Standing Committee on the Federal Judiciary within the meaning of the statute.  He then used the clear statement rule to resolve the ambiguity in favor of the interpretation that avoided the constitutional question that would be raised if the ABA’s ratings of potential judicial nominees were subject to FACA’s open meeting and records requirements.  Justice Kennedy strongly disagreed on textualist grounds that FACA could plausibly be read as not covering the executive’s use of the ABA committee.  He (along with Justices O’Connor and Rehnquist) concurred on the ground that FACA’s application to the ABA committee would in fact be an unconstitutional infringement on the President’s nomination power. Both opinions take as a predicate for the application of the clear statement rule that there be available a reasonable reading of the statute that does not cover the President. The opinions disagree only on the question of whether such a reading was in fact available with respect to FACA.

Franklin v. Massachusetts is fully in accord. There the question was whether action by the President represents “final agency action” that is subject to the Administrative Procedure Act.  As a textual matter, it is far from obvious that the President is an “agency”; maybe, maybe not.  This is precisely the setting in which the clear statement rule tells us to resolve the ambiguity against applying the statute to the President if doing so would raise a real, as opposed to a speculative, separation-of-powers issue.  Applying the APA to final presidential actions without qualification would inevitably raise intractable separation-of-powers problems. 

As a final illustration, it may be helpful to consider a case where the Court did not apply the clear statement rule, Clinton v. Jones, 520 U.S. 681 (1997).  Paula Jones was allowed to bring a federal cause of action against President Bill Clinton even though the statute authorizing federal jurisdiction over the claim (28 USC 1331) does not specifically mention the President and even though the application of federal jurisdiction over the suit certainly implicated the President's ability to perform his constitutional role.  If the Court understood the clear statement rule in the way the Barr Memo does, one would have expected the Court to have concluded that it lacked subject matter jurisdiction over the suit (and so to have gone beyond the President’s relatively modest request for a temporary stay).  But, for reasons that condemn the Barr Memo’s approach, that would have been error, because it would have required the Court to ignore both predicates for the application of the rule.  First, there is no plausible reading of the text of the jurisdictional statute that exempts lawsuits against the President. Second, the Supreme Court unanimously allowed the suit to proceed because on balance they thought sensitive case management would enable the President to do his job through the litigation. Justice Stevens’s opinion for the Court clearly regards the President to have raised legitimate and well-founded constitutional concerns. That this was insufficient to move the Court to refrain from exercising jurisdiction (even temporarily) demonstrates just how significant the potential infringement must be to satisfy the predicate.

Applying the clear statement rule without these conditions would dangerous.  It is the rare statute that specifically mentions the President.  Without the limits on its application, then, the clear statement rule would tend to relieve the President from any obligation to follow the law.  It is a sort of magic wand that allows the lawyer wielding it to make laws (and legal constraints on the President) disappear.

The concern about the dangers that follow from applying the clear statement rule without careful attention to its predicates is not hypothetical.  That fault lies at the heart of the notorious Torture Memo.  The Anti-Torture Act does not specifically refer to the President. Rather, it applies generically to "[w]hoever outside the United States commits or attempts to commit torture ...."  18 USC 2340A. The Torture Memo applied the clear statement rule to justify the conclusion that the Act did not apply to the use of torture as an interrogation technique when ordered by the President.  "In order to respect the President's inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority."  See Standards of Conduct for Interrogations under 18 USC 2340-2340A (August 1, 2002), at 34.  That Memo, like the Barr Memo, failed to take account of the fact that there was no reasonable construction of the Anti-Torture Act that would exempt the President and there was no plausible basis for the claim that Congress lacked the power to prohibit the President from ordering the use of torture as an interrogation technique.

Properly understood, the clear statement rule has no application to the obstruction of justice statute.  There is no plausible reading of the statute's text or of congressional intent that excludes the President from its application.  Indeed, the Barr Memo does not claim that the President is categorically immune from the obstruction statute.  Instead, it deploys the clear statement rule to conclude that the statute applies when the President obstructs justice by engaging in manifestly "bad acts" (such as destruction of evidence) but not when the President uses a legitimate constitutional power:  "The central problem with Mueller's interpretation [of the obstruction statute] is that, instead of applying the statute to inherently wrongful acts of evidence impairment, he would now define the actus reus of obstruction as any act, including facially lawful acts, that influence a proceeding."  

The Barr Memo specifically asserts that a President may violate the obstruction statute by destroying evidence, because this is an inherently bad act and requires no inquiry into the President's motives -- as opposed to the exercise of facially legitimate authorities such as firing executive officers, which require an inquiry into the President's motives.  But this distinction between inherently bad acts and facially lawful acts simply does not hold up; what makes an act wrongful is nothing inherent to the act itself, it is the motive behind the act.  

To take a familiar illustration, Rosemary Woods did not commit obstruction of justice because she destroyed 18.5 minutes of Watergate tapes accidentally.  If she had done so on purpose -- if her motive had been different -- then she would have committed a crime. The point holds in the context of presidential action. The President is vested with vast powers under the Constitution and laws of the United States. The Barr Memo makes the point extravagantly, asserting that the President "is" the executive branch.  Under Barr's theory of presidential power, the President has the constitutional authority to superintend the executive branch, including the power to set forth standards and procedures for federal record keeping. (And on any reasonable understanding, the President has constitutional and statutory authority to prescribe such standards for the Executive Office of the President.)  When the President orders that documents be destroyed, this may simply be the facially lawful exercise of his powers of superintendence and record management or it may be illegal evidence destruction.  If the President is actually subject to the rule of law, there is no avoiding the problem of inquiring into motives behind the exercise of his statutory and constitutional powers. 

Issues of presidential power often arise in a context where there is little or no chance of litigation that would yield a judicial opinion, either because the matter is shrouded in secrecy or because there is no plaintiff with standing to litigate (consider, for example, the issues of torture and warrantless electronic surveillance).  The rule of law in this setting depends upon an Attorney General who is willing to hold the executive branch rigorously to account. 

The Memo that William Barr submitted, unsolicited, shows him to be eager to instead release the President from legal constraints. Furthermore, events of the last few days demonstrate just how important statutory interpretation is for effectuating the rule of law. The President has announced himself prepared to declare a state of emergency in order to unleash statutory authority to expend federal funds on a border wall. The legality of such action depends on the proper statutory understanding of what constitutes an emergency and on what powers follow from a state emergency.  

The Barr Memo strongly suggests that its author is inclined to interpret statutory limits as inapplicable to the President, rather than as inclined to accept and enforce the limits fairly expressed in those statutes. William Barr is the wrong man at the wrong time to serve as Attorney General of the United States.


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