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1/ .@benjaminwittes responds on @lawfareblog to @jacklgoldsmith and me with respect to Mueller's statutory analysis. Ben draws analogy between the obstruction statute and the perjury statute. lawfareblog.com/defense-muelle… 
2/ Ben notes that Starr accused Clinton of committing perjury, which had the effect of impeding the grand jury investigation. Bill Clinton was ultimately for perjury. washingtonpost.com/wp-srv/politic…
3/ Ben also cites Leon Jaworski's indictment of Nixon's top aides for "conspiracy to obstruct Justice."
4/ Jaworski indicted the aides for violating a specific obstruction statute, 18 U.S.C. 1503. That is, they impeded the grand jury investigation by "making cash payments and offers of other benefits to and for the benefit of the defendants."
fordlibrarymuseum.gov/museum/exhibit…
fordlibrarymuseum.gov/museum/exhibit…
5/ In contrast, Mueller's analysis was premised on 18 U.S.C. 1512(c)(2), the "broad, independent, and unqualified prohibition on obstruction of justice." Mueller notes that this provision is not limited to acts that "would impair the availability or integrity of evidence."
6/ Ben also explains that, with respect to the clear statement rule, there should be no difference between the federal bribery statute, and the federal obstruction statute (1512(c)(2)).
7/ Here is a summary: over the past three decades, various investigations of the executive branch have not applied the clear statement rule to the President with respect to specific instances of obstruction: perjury, bribery, & interfering with a grand jury investigation.
8/ Therefore, the argument goes, there is no reason to suggest that the clear statement rule applies to the general obstruction statute.
9/ I agree with Ben (and OLC) that the clear statement rule has no applicability to the bribery statute. I also agree that the clear statement rule does not apply to the perjury statute (Clinton), as well as to impeding a grand jury investigation with cash payments (Jaworski).
10/ I disagree with Ben with respect to the general obstruction statute, for the reasons OLC explained in FN 11 of its 1995 opinion. justice.gov/file/20126/dow…
11/ Applying the obstruction statute to the President, where there is no underlying crime, would raise a "serious" separation of powers question. See my analysis in Part II, with respect to the possible chilling effects. lawfareblog.com/special-counse…
12/ This analysis for obstruction differs from allegations of bribery, perjury, and I would add, witness tampering. Where there is such an overt criminal act, the risk of intruding onto Article II powers is far, far less.
13/ Ben asks, "Can you think of a case of unambiguously corrupt presidential interference, with the statutes’ criminal intent element wholly satisfied, that you think Article II nonetheless authorizes?"
14/ I offered one such hypothetical in Part III, that involves a "mixed motives" case lawfareblog.com/special-counse…
15/ My broader point is that OLC precedent, as well as general executive-branch practice, suggests that the clear statement rule should be applied to the general obstruction statute with respect to the President.
16/ I do not assert that courts would be compelled to apply the clear statement rule. Nor would Congress, in drafting in an article of impeachment, be so constrained. This argument only applies to Mueller, an executive branch employee, who is bound by OLC opinions.
17/ I close with my conclusion to Part I: Congress has the onus to craft a general obstruction statute that applies to the President, and that takes into consideration all of the relevant separation of powers concerns. @jacklgoldsmith made a similar point: lawfareblog.com/special-counse…
18/ @benjaminwittes asks for an "unambiguously corrupt obstructive act that ... Article II protects," as a means to exclude the mixed motives hypothetical
19/ If there was some judicial precedent that said the obstruction statute could only apply to POTUS if his corrupt was "unambiguously corrupt"--that is, there is no other possible legitimate motivation--then I do not think the clear statement rule would be applicable.
20/ So long as there is a chance that the mixed-motives case could give rise to an obstruction charge--and Mueller operated on that theory--then the possible chilling effects require the application of the clear statement rule.
