Robert Mueller's Take Care Clause

By Quinta Jurecic, Lawfare

29 April 19

hen it was finally unveiled, the structure of the Mueller report was consistent with what onlookers expected: As Attorney General William Barr promised, Special Counsel Robert Mueller put together one volume on possible conspiracy between the Trump team and the Russian government and another on obstruction. Tucked into the back of the obstruction volume was a small, 12-page section in which the special counsel’s office tackled the legal arguments made by President Trump’s attorneys in his defense.

Mueller’s legal analysis—examining the interaction between Article II and the obstruction statutes—is a rich text, and there’s plenty to debate about his conclusions. But here I’m interested less in whether Mueller’s legal reasoning is correct, and more in what that reasoning says about how the special counsel seems to understand both the presidency and this specific president. Of particular interest is the special counsel’s reliance on the Take Care Clause—an evocative portion of the Constitution to focus on in a report concerning a man who has shown little inclination to “take Care that the Laws be faithfully executed.”

Barr’s June 2018 memo to the president set out the argument that this section seems to counter: The president cannot obstruct justice by taking actions solely under his Article II authority. From the Mueller report, it appears that the president’s lawyers made a similar case over the course of several letters sent to the special counsel’s office. (Two of those letters have been published by the New York Times.) Mueller also addresses a statutory argument by the president’s team regarding the scope of 18 U.S.C. § 1512(c), the general obstruction statute—but the real attraction is the constitutional analysis.

The Take Care Clause plays a central role in Mueller’s constitutional argument. Jack Goldsmith and John Manning have studied the “protean” nature of the clause and the many contradictory interpretations that courts have adopted; here, Mueller’s analysis has some resemblance to the understanding set out by Andrew Kent, Ethan Leib and Jed Shugerman, who argue that the Take Care Clause imposes a “duty of fidelity” on the president. Mueller does adhere to well-established readings of the clause as empowering the president to exercise prosecutorial discretion and to remove officers. But he also reads it as constraining presidential action, writing 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.” The duty to “take care” can also be, as Kent, Leib and Shugerman write, a limitation on discretion.

The core of Mueller’s argument is that a presidential action taken with the “corrupt intent” necessary for an obstruction offense by definition violates the Take Care Clause. “‘Corruptly’ sets a demanding standard,” Mueller writes, and “[t]hat standard parallels the president’s constitutional obligation to ensure the faithful execution of the laws.” On this basis, Mueller is able to argue that “[a] general ban on corrupt action does not unduly intrude” on the president’s responsibilities: Congress’s constitutional interest in defining the law, and the interests of the judiciary and the grand jury in “being protected against obstructive acts,” weigh heavily against the relatively limited restriction on presidential actions imposed by the “requirement that he not act for corrupt personal purposes.”

What about the risk that applying the obstruction statutes to core Article II conduct will chill otherwise acceptable presidential behavior? Mueller is unconcerned—strikingly so, in fact, given the potentially hairy complications. His reasons why are equally striking. For one thing:

virtually everything the President does in the routine conduct of office will have a clear governmental purpose and will not be contrary to his official duty. Accordingly, the President has no reason to be chilled in those actions because, in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive.

Investigations of the president, he notes, are surpassingly rare. “And it is rarer still for circumstances to raise even the possibility of a corrupt personal motive for arguably obstructive action through the President’s use of official power.”

This last argument is a bit of an understatement, given the many unprecedented legal questions President Trump’s behavior has engendered over the course of the Russia investigation. But that’s just the point. By arguing that “virtually everything the President does” will not raise questions of obstruction, and underlining the unusualness of the current situation, Mueller locates Trump far, far outside the norm of presidential behavior. There isn’t a need to fret over the precise line where good-faith exercise of Article II authority blurs into corrupt intent, not only because Trump has so far overshot that line but because other presidents, past and future, by and large have been and will be of good enough faith to stay well within the acceptable boundaries. Trump is not doing what presidents do; he is not acting like a president is bound by the Constitution to act.

Compare this to another example of official action that could have been construed as obstruction—but that nobody understood as such. In 2010, the U.S. government arrested 10 Russian agents in what became known as “Operation Ghost Stories.” Shortly afterward, then-U.S. Attorney Preet Bharara, whose office was set to prosecute some of the cases, learned that the government was negotiating with the Kremlin for a spy swap. As the New York Times later reported, Bharara’s office was plunged into debate over whether it was “appropriate” for the U.S. Attorney’s Office for the Southern District of New York to acquiesce to the deal before even bringing an indictment. Bharara ultimately determined that the deal was “acceptable and just,” the Times wrote, and worked to obtain guilty pleas before the swap took place. But the Times also noted that his team debated “what would happen if the office were asked to dismiss a prosecution for less noble reasons.”

President Obama had authorized the swap. Could this be considered obstruction under Mueller’s framework? It was, after all, the use of Article II authority to influence an official proceeding by pushing Bharara’s office to speedily obtain guilty pleas. But the question is obviously absurd: There is no serious argument that Obama was acting on the basis of anything other than, as Mueller puts it, “a clear governmental purpose,” with “no credible basis for suspecting a corrupt personal motive.”

In the early days of the Trump presidency, Benjamin Wittes and I argued that the fundamental difference between Trump and normal presidents came down to the oath of office: Trump, we said, could not be trusted to uphold his, not the least because he had shown little to no ability to understand what it would mean to “faithfully execute the Office of President of the United States” and “preserve, protect and defend the Constitution.” While Mueller doesn’t point to the oath of office, it’s notable that Kent, Leib and Shugerman situate the Take Care Clause alongside the oath as “the twin commands of faithful execution,” emphasizing the president’s “duty of fidelity” to the law.

Wittes and I understood the presidential oath as the essential animating factor behind the presumption of regularity—the idea that, as the Supreme Court wrote in 1827, “[e]very public officer is presumed to act in obedience to his duty until the contrary is shown.” (In their own work on applying the obstruction statutes to Article II, Daniel Hemel and Eric Posner understand the demonstration of corrupt intent on the part of the president as an overcoming of the presumption of regularity, though they don’t rely on the Take Care Clause or the oath to reach this point.) To return to the Ghost Stories example, there was nothing about Obama’s actions in that case that overcame the presumption of regularity—in part, I would argue, because both the public and other officeholders, including Bharara, trusted Obama’s oath of office.

Mueller does use the notion of the presumption of regularity, though he applies it to the actions of prosecutors, not of the president. But the concept is a useful way of framing how Mueller’s legal reasoning contextualizes Trump’s actions. To locate Trump so far outside the norm and to argue that future presidents will likely not be hampered by the precedent set by Mueller’s reasoning is also to insist, in part, on reestablishing the presumption of regularity for the office of the presidency more broadly—if not for the current officeholder.

As long as future presidents honor their oaths, Mueller suggests, the center will hold. These presidents will not need to worry that their conduct could be construed as obstructive—because, unlike Trump, they will rigorously maintain the distinction between actions taken for the good of the public and actions taken for corrupt personal purposes.

This is a profoundly conservative position on Mueller’s part, in the apolitical sense of maintaining and caring for established institutions. In this, it’s of a piece with the general conservatism of Mueller’s approach: He chose to abide by the Office of Legal Counsel opinion barring the indictment of a sitting president and to color well inside the lines of what his mandate allowed, marking himself, as Paul Rosenzweig has written, as “at his core ... an institutionalist.”

The conservatism of Mueller’s Article II analysis is less obvious given that it does, in some ways, break new ground. But his focus on the Take Care Clause suggests that the problem undergirding the chaos of the past few years is rooted not in some failure of the constitutional structure but in the person of Donald Trump.

Yet in making the normative case that Trump’s presidency will remain an aberration, Mueller also seems to be making a prediction: He suggests that there will be no more presidents as particularly unsuited to the office as Trump, or at least that they will be few and far between. Specifically, he writes the obstruction statutes will not overly chill the president’s exercise of Article II duties because investigations of the president will be “rare” and occur only in “highly unusual circumstances.” But this will be true only if the majority of other presidents act in good faith rather than following Trump’s model.

In arguing that investigations of the president will remain rare, Mueller notes that “[p]rosecutorial action enjoys a presumption of regularity[.]” That is, law enforcement can be trusted not to embark on tendentious obstruction investigations into official presidential acts because law enforcement officials will occupy the same moral universe as the president. There is a mutual presumption of regularity: Law enforcement accepts the president’s oath, and the president accepts that law enforcement will understand when it is obviously absurd to begin an obstruction investigation into an action taken in good faith. Consider Bharara’s conclusion that the Ghost Stories spy swap was consistent with the interests of justice.

No one would accuse Mueller of being naive. Yet it seems very sanguine, under the administration of a man who derides former civil servants at his own Justice Department as traitors and “scum,” to imagine that the country could return to a place of mutual understanding between the president and law enforcement. (To say nothing of the public: In 2017, the Daily Caller published a piece falsely suggesting that the spy swap was orchestrated not for the good of the public but in connection with a Russian payoff to then-Secretary of State Hillary Clinton.) As an actor within a system founded on the presumption of regularity, perhaps Mueller has little choice but to assume that regularity on the part of the president. But the extent to which he’s bound by this assumption underlines the fragility of the system as a whole.

Writing about the oath of office, Wittes and I wondered whether Trump’s oathless administration was “the beginning of a profound institutional change to the presidency and our expectations of it.” Mueller’s answer is that it is not. The risk is that his view may be not just conservative, but overly optimistic as well.