"It appears Mueller is relying on 18 U.S.C. § 1512, which generally
prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is
relevant here because, unlike other obstruction statutes, it does not require that a proceeding be
actually "pending" at the time of an obstruction, but only that a defendant have in mind an
anticipated proceeding. Because there were seemingly no relevant proceedings pending when the
President allegedly engaged in the alleged obstruction, I believe that Mueller's team is considering
the "residual clause" in Section 1512 - subsection ( c )(2) - as the potential basis for an obstruction
case. Subsection (c) reads:
(c) Whoever corruptly-- (1) alters, destroys, mutilates, or
conceals a record, document, or other object, or attempts to do so, with the
intent to impair the object's integrity or availability for use in an official
proceeding; or (2) otherwise obstructs, influences, or impedes any official
proceeding, or attempts to do so [is guilty of the crime of obstruction].
[emphasis added].
....
As elaborated on below, Mueller's theory should be rejected for the following reasons:
First, the sweeping interpretation being proposed for§ 1512's residual clause is contrary to the
statute's plain meaning and would directly contravene the Department's longstanding and
consistent position that generally-worded statutes like § 1512 cannot be applied to the President's
exercise of his constitutional powers in the absence of a "clear statement" in the statute that such
an application was intended.
Second, Mueller's premise that, whenever an investigation touches on the President's own
conduct, it is inherently "corrupt" under § 1512 for the President to influence that matter is
insupportable. In granting plenary law enforcement powers to the President, the Constitution
places no such limit on the President's supervisory authority. Moreover, such a limitation cannot
be reconciled with the Department's longstanding position that the "conflict of interest" laws do
not, and cannot, apply to the President, since to apply them would impermissibly "disempower"
the President from supervising a class of cases that the Constitution grants him the authority to
supervise.
Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely
on subjective motive, would violate Article II of the Constitution by impermissibly burdening the
exercise of core discretionary powers within the Executive branch.
Fourth, even if one were to indulge Mueller's obstruction theory, in the particular circumstances
here, the President's motive in removing Corney and commenting on Flynn could not have been
"corrupt'' unless the President and his campaign were actually guilty of illegal collusion. Because
the obstruction claim is entirely dependent on first finding collusion) Mueller should not be
permitted to interrogate the President about obstruction until has enough evidence to establish
collusion.