The Mueller Report’s Weak Statutory Interpretation Analysis: Part II

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Hoover Institute

The Mueller Report’s Weak Statutory Interpretation Analysis: Part II

By Jack Goldsmith

 Thursday, May 23, 2019, 10:08 AM

I argued earlier this month that Special Counsel Robert Mueller’s report misapplied the presidential clear statement rule and improperly exposed many of President Trump’s actions in response to the Russia investigation to potential criminal liability. The argument drew disagreement from Benjamin Wittes, Andrew Kent and Marty Lederman, which in turn provoked a response by Josh Blackman, who holds views similar to mine.

Here I offer my final thoughts on this issue. I am more convinced than ever that the Mueller report misapplied the governing clear statement rule. The analysis is lengthy, so I will state my main conclusions here:

• None of the critics defends the report’s actual reasoning, which is pretty obviously flawed.
• There are reasons to question the presidential clear statement rule, but under governing law, it applies here. This explains why the Mueller report, unlike some of my critics, embraces the rule without qualification.
• Prior investigations of presidents do not provide precedents on which, under governing law, the report could rely. This explains why the Mueller report did not mention those investigations.  

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The Mueller Report’s Weak Statutory Interpretation Analysis

Jack Goldsmith   Sat, May 11, 2019, 10:18 AM

The report’s misapplication of the presidential clear statement rule exposed Trump to greater potential criminal liability than a proper analysis would allow, and raises questions about whether the obstruction investigation was properly predicated at the outset. 

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THE RUSSIA CONNECTION

Thoughts on Barr and the Mueller Report

Jack Goldsmith   Sat, May 4, 2019, 2:50 PM

Sometimes Justice Department independence means standing up to the president. And sometimes it means taking unpopular positions in defense of the presidency.

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