## Facts

- A Special Counsel was appointed under 28 C.F.R. pt. 600 to investigate Russian election interference, related links to a presidential campaign, and related matters, including potential obstruction of justice.
- The Special Counsel completed the investigation and submitted a written report to the Attorney General under 28 C.F.R. § 600.8(c).
- The analyzed conduct involved actions by the sitting President in connection with the investigation and other official proceedings.
- The report accepted the Department of Justice Office of Legal Counsel (OLC) position that a sitting President is not subject to federal indictment or criminal prosecution while in office.
- The report therefore focused on preserving evidence, setting out relevant facts, and applying obstruction-of-justice legal standards, while addressing constitutional and separation-of-powers concerns.
- The report stated it was not reaching a traditional prosecutorial conclusion and also did not state that the President was clearly not guilty of obstruction.

## Issues

1. Whether the Special Counsel should make a traditional prosecutorial judgment about whether to charge a sitting President with obstruction of justice.
2. How DOJ/OLC’s view that a sitting President cannot be indicted or prosecuted affects investigatory and reporting decisions.
3. Whether generally applicable obstruction statutes can constitutionally apply to a President’s use of Article II authorities when the acts are allegedly undertaken for an improper purpose.
4. What institution is positioned to assess presidential wrongdoing when prosecution is unavailable during the President’s term.

## Decision

- The Special Counsel did not make a traditional prosecutorial decision on whether the President committed obstruction of justice because DOJ policy bars indictment or criminal prosecution of a sitting President.
- The report stated it could not conclude, after investigating, that the President clearly did not commit obstruction; it therefore did not “exonerate” the President.
- The report concluded that obstruction statutes are generally applicable and may reach presidential conduct when the government can prove the elements of the offense, including corrupt intent, consistent with separation-of-powers limits.
- The report indicated that Congress may evaluate the evidence and apply obstruction norms through its Article I authorities, including impeachment, and that criminal exposure may be possible after the President leaves office.

## Legal Principles

- DOJ/OLC policy treats a sitting President as not subject to federal indictment or criminal prosecution, shaping Executive Branch charging decisions during the President’s term.
- Obstruction offenses (including under 18 U.S.C. §§ 1503 and 1512) commonly require an obstructive act, a nexus to an official proceeding, and corrupt intent.
- The President is generally subject to statutes of general applicability; Article II powers do not categorically bar application of obstruction laws.
- Separation-of-powers concerns are addressed by focusing criminal obstruction analysis on acts undertaken with corrupt intent, distinguishing lawful supervision from conduct aimed at impairing proceedings for self-protective reasons.
- Where criminal prosecution is unavailable during a presidency, Congress is the institution equipped to assess misconduct and impose constitutional consequences; potential criminal liability is not necessarily foreclosed after the President leaves office.

## Conclusion

The report declined to render a conventional charging decision against a sitting President due to DOJ policy, but applied obstruction-law standards and concluded the evidence did not permit a clear statement that no obstruction occurred, while recognizing Congress’s constitutional role in evaluating and responding to presidential misconduct.


Report on the Investigation into Russian Interference in the 2016 Presidential Election, Vol. II (Dep’t of Just. Mar. 2019)