ET TU, TONY?:

Aguilar turned, in part, on the definition of "corruptly," and Scalia wrote that the word "has a long standing and well accepted meaning" in criminal law. Quoting from law dictionary and precedent, Scalia wrote that "corruptly" denotes an "act done with an intent to give some advantage inconsistent with official duty and the rights of others." (Emphasis mine.) Mueller then wrote:

That standard parallels the President's constitutional obligation to ensure the faithful execution of the laws. And virtually everything that the President does in the routine conduct of office will have a clear governmental purpose and will not be contrary to his official duty. 

Thus, only in truly exceptional cases will prosecutors be able to glean corrupt intent behind seemingly proper or "routine conduct of office." And the special counsel's decision to gauge Trump's intent will not chill the president's actions, because "in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive."

Of all the cases Mueller could cite to make this point, why the Scalia opinion in Aguilar? It is not actually an opinion for the court but rather a partial dissent, not a binding authority. But this citation serves two useful purposes. First, it clarifies that in federal criminal law, individuals, including government officials, can engage in obstruction when they commit a seemingly lawful act with illicit motive. After all, the law contemplates an individual having some "official duty" with which he acts inconsistently. If, for example, the president purports to exercise his Article II authority to terminate unsatisfactory subordinates, but actually fires an underlying to impede an investigation into his campaign, he may have acted "inconsistent with official duty" and therefore with the necessary corruption to obstruct justice.

Second, by bolstering his argument with wise words from Scalia, Mueller preemptively neutralized some inevitable criticism that his report failed to respect the presidency. Scalia was a proponent of the "unitary executive" theory, which endorses vast powers for the president. And the famed conservative jurist is a model for Trump's archconservative judicial nominees. Yet Scalia's Aguilar opinion seems to fortify Mueller's rationale for investigating Trump's ostensibly officials acts, forestalling complaints that the special counsel's obstruction probe chilled the president's freedom to govern.

In the end, Mueller concluded that he did not gather sufficient evidence to determine whether a "reasonable inference" could show that Trump fired Comey with corrupt intent. He did, however, write that a number of Trump's other actions, including his efforts to manipulate then-Attorney General Jeff Sessions, arguably qualified as obstructing justice.

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