At Lawfare, Josh Blackman: The Special Counsel’s Constitutional Analysis: Corrupt Intent and the Take Care Clause. From the introduction:
Special Counsel Robert Mueller’s report found that the federal obstruction of justice statutes can apply to the president, even though the statutes do not state this expressly. … [Mueller] concluded the obstruction statutes can generally apply to the president because “a ‘corrupt’ official action does not diminish the President’s ability to exercise Article II powers.” This argument is premised on a novel theory of the Take Care Clause that no court of record has even hinted at. Mueller may be right about this theory in many, if not most cases. But he should have exercised far more caution in advancing this sweeping constitutional argument. That lack of caution reaffirms, once again, how far he departed from OLC’s limited discussion of the President’s amenability to the criminal law. A 1995 OLC opinion hints only that the president could violate the federal bribery statute And that lack of caution reaffirms why the clear statement rule was the optimal way to resolve this issue.
…
[Mueller's argument], which is developed at several junctures of the report, can be reduced to a three-part syllogism: (1) It is inconsistent with the official duties of the president to take official actions that are not faithful executions of the law; (2) acting with a “corrupt personal motive” is “parallel” to, or “aligns with,” taking actions that are not faithful executions of the law; and (3) therefore, Article II does not prevent Congress from criminalizing “corrupt” actions, such as obstruction of justice, because those actions are inconsistent with the official duties of the president.
The first element is fairly obvious. It derives straight from the text of the Take Care Clause, which provides that the president “shall take Care that the Laws be faithfully executed.” The third element is also true, if in fact a “corrupt” action is “inconsistent with the official duty”: if the Constitution does not give the president the power to do X, then Congress can pass a statute that prevents the president from doing X.
The entire syllogism, then, turns on the second element: Are actions taken with a “corrupt personal motive” “parallel” to, or “align[ed] with,” unfaithful executions of the law?
Professor Blackman then suggests that the answer to this question is "no," or at least "not necessarily." (With graphs!).
From the core of the argument:
In 2015—long before President Trump’s election was even conceivable—I surveyed founding-era dictionaries to develop the original understanding the Take Care Clause. I turned to these primary sources because the Supreme Court has said strikingly little about this provision. Mueller cites several of the leading Supreme Court’s precedents, including Myers v. U.S., U.S. v. Armstrong, Bowsher v. Synar, Morrison v. Olson, and Free Enterprise Fund v. PCAOB. Yet none of these cases supports the conclusion that “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.” Mueller, like me, turned to some form of originalist analysis to shed light on this seldom-interpreted constitutional provision.
As an academic exercise, it is both necessary and proper to develop constitutional theories based on primary sources. And, in such academic exercises, the author should be candid that his theory is tentative and cannot be supported by any judicial precedent. For example, in my article, I offered analyses of several aspects of the clause: what sort of duty does “shall” impose; what does it means to act with “care;” what does it mean to “execute[];” and what does it mean to “execute[]” “the laws” “faithfully.” I also studied the common law history of faithful execution, and similar provisions in state constitutions. Even with that background, I still acknowledge that the meaning is not self-evident, and the absence of judicial authority makes the task even more fraught.
Mueller did not exercise that caution. He drew important conclusions about a particularly enigmatic provision of the Constitution, citing solely a dictionary definition of a single word in the clause. There is work that could have supported his theory, but he didn't even acknowledge it. Ultimately, only a thin reed supports his broad conclusion.
Professor Blackman has a second post as well: The Special Counsel’s Constitutional Analysis: Chilling Effects.
Posted at 6:25 AM