, 20 tweets, 7 min read Read on Twitter
1/ AG Barr described that POTUS "the President was frustrated and angered." justice.gov/opa/speech/att…
2/ Here, the AG was not describing the President's emotions to defend him. Rather, he argued that the investigation placed a "cloud" over his ability to govern. And that "cloud" was a justification to remove him. See Part III of my @lawfareblog series:
3/ In other words, the AG was not discussing the President's feelings. He was describing why there were alternate rationales (that is, non-corrupt motives) for removing Comey.
4/ The President's state of mind is directly relevant to any obstruction charge. Barr said the President was motivated by an inability to govern (frustration), not a corrupt intent.
5/ See my general thoughts on presidential obstruction here
6/ It is an obstruction of justice to release a 500-page PDF that is not searchable
7/ The constitutional analysis begins on p. 169
8/ On p. 170-171, Mueller explains why the clear statement rule should not apply. Generally, courts will prefer statutory arguments to avoid difficult constitutional questions. Mueller did not engage in any sort of constitutional avoidance.
9/ Mueller finds that the obstruction statute could apply to the offer of a pardon to induce a person not to testify.
10/ Mueller acknowledges that "The President’s action in curtailing criminal investigations or prosecutions, or discharging law enforcement officials, raises different questions."
11/ Mueller says the application of the obstruction statute would have a "limited" effect
12/ Mueller suggests that obstruction statute could not be applied to removal of a "cabinet" official, but could be applied to an "inferior" officer, like the FBI Director and the Special Counsel. Indeed, he writes the obstruction statute is less onerous than for-cause removal
13/ I am doubtful the application of obstruction statute to the President is less onerous than a for-cause removal provision. POTUS could remove an officer with good cause, even if he also harbored a corrupt intent. The obstruction approach creates further complications for POTUS
14/ This assumption from Mueller--critical to the entire analysis--is extremely underdeveloped. I'll think about this provision some more.
15/ I agree with Mueller's ultimate conclusion--no blanket immunity. But his analysis leaves much to be desired.
16/ Next, Mueller finds that application of the obstruction statute would chill the performance of POTUS's Article II duties. He cites "several safeguards"
17/ I have a lecture now. Be back in an hr
18/ I am writing a short 2-paragraph piece for @politico that should run tonight. My proposed title: Mueller's underwhelming constitutional analysis. I was really hoping for more.
19/ I will also have a piece on @lawfareblog (probably tomorrow) about Mueller's "clear statement rule" analysis. Specifically, OLC precedent does not support the bridge he drew from bribery to obstruction
20/ I am quoted on @AP wire: wtop.com/government/201… "The evidence was sort of muddled."
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