Prohibitions on Presidential Obstruction of Justice
18 U.S.C. § 1503
(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.
(b) The President or Vice President of the United States shall not cause, or attempt to cause, a criminal investigation or prosecution to be sought, instituted, or terminated, or influence in any way the conduct of such investigation or prosecution, with respect to
(1) Any candidate for public office or political party organization for the purpose of interfering with or affecting the result of an election;
(2) Any member of his or her immediate family, if
(A) the President or Vice President knows or has reason to know that such immediate family member is a target or subject of any such investigation, or
(B) such immediate family member is a defendant in any such prosecution; or
(3) Any investigation in which the President or Vice President has been notified or advised that he or she is a target or subject of such an investigation, or knows, or has reason to know, that he or she is a subject of the investigation.
The term “immediate family” means a President’s or Vice President’s father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.
(c) The punishment for an offense under this section is—
(1) in the case of a killing, the punishment provided in sections 1111 and 1112;
(2) in the case of an attempted killing, or a case in which the offense was committed against a petit juror and in which a class A or B felony was charged, imprisonment for not more than 20 years, a fine under this title, or both; and
(3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both.
Abuse of the Pardon Power
1. Bribery (18 U.S.C. § 201)
(a) For the purpose of this section—
(1) the term “public official” means the President and Vice President of the United States , Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;
(2) the term “person who has been selected to be a public official” means any person who has been nominated or appointed to be a public official, or has been officially informed that such person will be so nominated or appointed; and
(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit, including any pardon, commutation, or reprieve, or offer of any such pardon, commutation, or reprieve.
(b) Whoever—
(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—
(A) to influence any official act; or
(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person;
(3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom. For purposes of this subsection, a thing of value shall include a pardon, commutation, or reprieve, or offer of any such pardon, commutation, or reprieve.
2. Self-Pardons
Whereas Article II, Section 2 of the U.S. Constitution states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”;
Whereas Article II, Section 3 of the U.S. Constitution states that the President “shall take Care that the Laws be faithfully executed”;
Whereas Article II, Section 3 of the U.S. Constitution provides that a President impeached and convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” ;
Whereas the Justice Department’s Office of Legal Counsel concluded that to the extent that a President is immune from criminal indictment and prosecution while in office, such immunity is “temporary” and results only in “the delay, but not the forbearance, of any criminal trial.” Memorandum for the Attorney General (October 16, 2000) ;
Whereas the Justice Department’s Office of Legal Counsel correctly construed the pardon power in concluding that a President may not grant a pardon to himself or herself. Memorandum for the Deputy Attorney General, from the Office of Legal Counsel, Presidential or Legislative Pardon of the President (August 5, 1974) ;
Whereas, any pardon that a President bestows upon himself or herself is inconsistent with the Constitution’s text, structure, and purpose, and no such pardon has any force or effect in any federal criminal investigation or trial;
Now, Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled :
The President’s grant of a pardon to himself or herself shall not be accepted by any federal court of the United States nor deprive any such court of jurisdiction over any criminal or civil matter or operate to confer on the President any legal immunity from investigation or prosecution.
War Powers—Nuclear Force
SECTION 1. SHORT TITLE .
This Act may be cited as the “Nuclear Weapons Use Consultation Act of 2020”.
SEC. 2. FINDINGS AND DECLARATION OF POLICY .
(a) Findings . Congress finds the following:
(1) Consistent with section 2(c) of the War Powers Resolution (Public Law 93–148; 50 U.S.C. 1541), the President has the constitutional power to introduce “United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” pursuant to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
(2) The President’s constitutional power to defend against an attack upon the United States, its territories or possessions, or its armed forces, includes the power to direct the use of nuclear force in self-defense in extreme circumstances to defend the vital interests of the United States or its allies.
(3) Except where the President’s response to a national emergency created by attack upon the United States, its territories or possessions, or its armed forces, or where the President acts in the national self-defense in extreme circumstances to defend the vital interests of the United States or its allies, Congress has the sole power to declare war and authorize the use of nuclear force.
(b) declaration of policy. It is the policy of the United States that whenever the President is in receipt of intelligence indicating that the use of nuclear force may be required in self-defense in extreme circumstances to defend the vital interests of the United States, or its allies, the President shall notify and consult with the Congress as provided in this Resolution prior to directing any such use of force.
SEC. 3.
(a) Notification and Consultation. For purposes of this Resolution, the President shall notify and consult as provided by §2(b) of this Resolution with the Chairs and Ranking members of the congressional intelligence committees and with the congressional leadership. The term “congressional leadership” includes the following:
(1) The majority leader of the Senate.
(2) The minority leader of the Senate.
(3) The speaker of the House of Representatives.
(4) The minority leader of the House of Representatives.
Consultation shall include providing the intelligence committees and congressional leadership with intelligence findings and other material information that support the President’s determination that a nuclear response is required and consistent with the requirements of the Constitution and this Resolution.
(b) Consultation Procedures. Upon enactment of this Resolution, the Secretaries of Defense and Homeland Security shall establish in collaboration with the congressional intelligence committees and the congressional leadership procedures for consultation provided for under this Resolution, including but not limited to secure emergency communications protocols and facilities.
Special Counsel Regulations
E. PART 600—PROPOSED REVISIONS TO THE SPECIAL COUNSEL RULES
§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel, and so notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress , when he or she determines that credible information or allegations indicate that a criminal investigation of a person or matter is warranted and—
(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for an independent factual inquiry and for prosecution or declination recommendations .
(c) If the Attorney General determines after a review of credible information or allegations that a criminal investigation is not warranted or that it would not be in the public interest to make such appointment, the Attorney General shall notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress in writing to set forth in appropriate detail the legal and factual basis for this conclusion .
(d) In any case where the Attorney General determines that a counterintelligence investigation of the President is warranted, he or she shall appoint a Special Counsel.
(1) The Attorney General should make any such determination on the basis with due regard to presidential prerogatives to determine the national security interests of the United States.
(2) In making such a determination, the Attorney General shall consider the views of the Director of National Intelligence, the Director of the Federal Bureau of Investigation, and the Assistant Attorney General for National Security.
(3) In the event that, contrary to the advice of either the Director of the Federal Bureau of Investigation or the Director of National Intelligence, the Attorney General declines to open an investigation, he or she shall report this declination, along with the reasons therefore, to the congressional intelligence committees.
(e) Upon receipt of an Inspector General’s referral of credible evidence that the President, Vice President or senior officials of a prior administration may have committed federal criminal offenses in the conduct of a counterintelligence or related criminal investigation, the Attorney General shall appoint a Special Counsel.
§ 600.2 Alternatives available to the Attorney General.
When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials, and the Attorney General shall inform the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress of any such conclusion or action. This subparagraph does not apply to investigations of a current President and Vice President of the United States , or investigations of a President or Vice President who are the immediate predecessors of the current President and Vice President, or senior officials of such prior administration.
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§ 600.4 Jurisdiction.
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(b) Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere. If the Attorney General determines that such additional jurisdiction is not warranted, he or she shall so notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, of the Special Counsel’s initial conclusion and in appropriate detail the basis for the Attorney General’s such determination . The notification requirement set forth in this subsection does not apply where the Attorney General concludes that notification would compromise an ongoing investigation, but the Attorney General shall report this conclusion no later than the date that the Special Counsel’s transmits his or her Report to the Congress upon the conclusion of the investigation pursuant to §600.8(b)(3).
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§ 600.7 Conduct and accountability.
(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances would render compliance with required review and approval procedures by the designated Departmental component inappropriate or prejudicial to the performance of his or her duties, he or she shall consult directly with the Attorney General, who shall make the final determination .
(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department in the conduct of the investigation . However, the Attorney General may direct that the Special Counsel report to him or her periodically on the course of the investigation and that the Special Counsel provide an explanation for any investigative step. The Attorney General shall not direct the Special Counsel to omit or abandon pursuit of any investigative step except where any such step is plainly inconsistent with law or established Departmental practices. If the Attorney General concludes that a proposed investigative action by a Special Counsel should not be pursued, the Attorney General shall notify the Chair and Ranking Minority Member of the Judiciary Committees of each House of Congress .
(c) In making recommendations on prosecution or declination, the Special Counsel shall be guided in the legal analysis of the factual record by the best and most clearly established understanding of the law, and the Attorney General may direct that the Special Counsel consult with the Office of Legal Counsel on any legal question. The Special Counsel shall be bound by the Office of Legal Counsel’s opinion, but in the event that he or she disagrees with that opinion, the Special Counsel may refer the question to the Attorney General for a final determination .
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(e) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may only remove a Special Counsel for mis- conduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal and shall forward a copy to the Chair and Ranking Minority Member of the Judiciary Committees of each House of Congress .
(f) If the Special Counsel is removed from office, he or she shall provide the Attorney General and the Chair and Ranking Minority Member of the Judiciary Committees of each House of Congress with a Report on the status of the investigation through the date of the dismissal and such Report shall include a discussion of the material evidence obtained from investigation. The Report shall detail only such factual findings and a brief statement of their legal relevance or significance, but shall not include any conclusory discussion of whether the evidence tended to support prosecution or declination. Notwithstanding the dismissal of the Special Counsel, he or she shall have access to the investigative record for a period of not less than 30 days following notice of dismissal for purposes of preparing the Report provided for under this subparagraph .
§600.8 Notification and reports by the Special Counsel and Attorney General.
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(2) [T]he Special Counsel shall report to the Attorney General as required for various purposes under this Part. In addition, 90 days before the beginning of the fiscal year, the Special Counsel shall provide a budget request for the following year. The Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year. In the event that the Attorney General determines that the investigation shall not continue, he or she shall provide a notification to the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress with an explanation of this decision in appropriate detail .
(b) Conclusion of Investigation. (1) At the conclusion of the investigation, the Special Counsel shall provide the Attorney General with a confidential Report setting forth the material facts found in the investigation and the legal basis for the Special Counsel’s recommendations about prosecution or declination. The Attorney General shall review the Report and, within 14 days of its receipt, shall make the final determination of whether the matter should be prosecuted or declined and shall promptly notify the Special Counsel of that determination.
(2) The Attorney General shall provide the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress with a written notification of the receipt of the Special Counsel’s Report and the Attorney General’s final determination under subsection (b)(1) of this section, including the factual and legal basis for the such determination. The Attorney General shall provide this notification within seven days of this determination and notice to the Special Counsel and in no event later than three weeks from the date that the Special Counsel submits his or her conclusions to the Attorney General. This notification shall include a statement of any questions of law on which the Attorney General directed the Special Counsel to consult with the Office of Legal Counsel, the opinion rendered by that Office, and any final determination by the Attorney General.
(3) On the date that the Attorney General provides Congress with the notification provided for under subparagraph (2) of this section, the Special Counsel shall separately transmit to the Congress and to the public the fact finding contained in the Report to the Attorney General under subsection (b)(1) of this section. The Special Counsel’s Report under this subsection shall detail the Special Counsel’s factual findings, but it shall not include any discussion or legal analysis of whether the evidence tended to support prosecution or declination.
(c) In all Reports that the Special Counsel issues pursuant to this Part to the Congress and the public, the Special Counsel shall limit such Report to the matters within the approved scope of the investigation, shall avoid any disclosure that unduly harms privacy interest, and shall redact any and all material protected from disclosure under Section 6(e) of the Federal Rules of Criminal Procedure.
[REPEALED § 600.9 Notification and reports by the Attorney General]
Justice Department Rules Against Partisan Political Considerations
5 C.F.R. Part 3801 (Supplemental Standards of Ethical Conduct for Employees of the Department of Justice)
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Section 3801.17 Improper partisan political considerations.
In discharging their official responsibilities, employees should answer at all times to principles of fairness and justice, never to partisan politics. Partisan political considerations must play no role in law enforcement decisions of the Department.
5 C.F.R. Part 2635 (Standards of Ethical Conduct for Employees of the Executive Branch)
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Section 2635.702 Use of public office for private gain.
An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.
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(f) Improper partisan political purpose. An employee shall not use his public office for an improper partisan political purpose of influencing the outcome of a Federal, state, or local election to public office. Employees should be mindful at all times that the Code of Ethics in Government Service requires that they put loyalty to country above loyalty to party and that its prohibitions against unfairly “dispensing of special favors or privileges to anyone” and making of “private promises of any kind binding upon the duties of office” include any official actions, or commitment to take such actions, for an improper election-influencing purpose.
Example:
An official of a Department is participating in decisions about economic development grants to states and writes an email to colleagues setting out the partisan political considerations that he believes should affect those decisions. He notes the elected officials in those states who have campaigned, or offered to campaign for the president’s reelection, and the campaign fundraising assistance that some have provided. The email also highlights his concern about approving grants to one state whose governor has sharply criticized the president and is the Co-Chair of his opponent’s campaign. This employee’s reliance on partisan political considerations in the award of federal grant money violated the prohibition on the misuse of office for the improper purpose of influencing an election.
ACKNOWLEDGMENTS
Many people helped us to write this book.
We thank the Deans at Harvard and New York University law schools, John Manning and Trevor Morrison, and the Director of the Hoover Institution, Tom Gilligan, for their extraordinary support. We also thank the resourceful librarians at Harvard and NYU law schools for tracking down dozens of hard-to-find documents and other forms of indispensable help.
For research assistance, cite-checking, and other forms of assistance, we thank Jason Altabet, Marty Ascher, Rishabh Bhandari, Connor Burwell, Sam Cohen, Mary K. Cornett, Ben Daus-Haberle, Matthew Gluck, Luke Goveas, Claire Groden, Jacob Harcar, Alexander Khan, Katarina Krasulova, Matthew Morris, Ali Nayfeh, Ariana Newberry, Raymond Ngu, Samuel Patterson, Stephen Petraeus, Brett Raffish, Maddie Reddick, Jacob Richards, and Nathaniel Sobel. Other students, too numerous to mention, helped in other ways, for which we are appreciative.
For great discussions on parts of the book manuscript, we thank workshop participants at the American Enterprise Institute, Harvard Law School, New York University Law School, Stanford Law School, the University of Arizona Law School, the University of Chicago Law School, and the Antonin Scalia Law School. For comments and related help on various parts of the book, we thank Graham Allison, Ben Berwick, Andrew Coan, Justin Florence, Michael Glennon, Oona Hathaway, Daniel Hemel, Sarah Isgur, Paul Larkin, Nicholas Lehman, Bob Lenhard, Bob Litt, Melanie Marlowe, Greg Miller, Ben Miller-Gootnick, Lisa Monaco, Erica Newland, Jesse Panuccio, Kristy Parker, Rick Pildes, Eric Posner, Jeremy Rabkin, Dana Remus, Kathy Ruemmler, Kori Schake, Gary Schmitt, Ilya Shapiro, Don Simon, Brian Svoboda, Anne Tindall, Philip A. Wallach, Peter Wallison, Andrew Weissmann, and Adam White. So many others at various times engaged in productive discussions with us about reform issues that we cannot name them all—but we are grateful.
We give enormous thanks to the Lawfare team. Ben Wittes came up with the idea of publishing this book with Lawfare—an option that gave us a great deal of flexibility, including allowing us to work on the book until about a month before publication date. Ben also gave us outstanding comments on every chapter. David Priess gave us excellent comments too. With assistance from Hadley Baker, he also marshaled the book through a very compressed production schedule and helped on a huge array of other matters as well—always with encouragement and good cheer. Amy Marks did an extraordinary job copyediting the manuscript—once again on a very compressed schedule. And we are grateful to Quenby Moone for the great cover design.
Finally, we thank Anita Dunn and Leslie Williams for their support during the hard year of work it took to write this book, and we dedicate the book to them.