only when it is taken with the “corrupt” intent to obstruct justice. The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests. See Volume II, Section III.A.3, supra.

The direct effect on the President’s freedom of action would correspondingly be a limited one. A preclusion of “corrupt” official action is not a major intrusion on Article II powers. For example, the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such personal purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. And the Constitution does not mandate that the President have unfettered authority to direct investigations or prosecutions, with no limits whatsoever, in order to carry out his Article II functions. See Heckler v. Chaney, 470 U.S. 821, 833 (1985) (“Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”); United States v. Nixon, 418 U.S. at 707 (“[t]o read the Art. II powers of the President as providing an absolute privilege [to withhold confidential communications from a criminal trial]. . . would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Art. III”).

Nor must the President have unfettered authority to remove all Executive Branch officials involved in the execution of the laws. The Constitution establishes that Congress has legislative authority to structure the Executive Branch by authorizing Congress to create executive departments and officer positions and to specify how inferior officers are appointed. E.g., U.S. CONST., ART. I, § 8, cl. 18 (Necessary and Proper Clause); ART. II, § 2, cl. 1 (Opinions Clause); ART. II, § 2, cl. 2 (Appointments Clause); see Free Enterprise Fund, 561 U.S. at 499. While the President’s removal power is an important means of ensuring that officers faithfully execute the law, Congress has a recognized authority to place certain limits on removal. Id. at 493-495.

The President’s removal powers are at their zenith with respect to principal officers—that is, officers who must be appointed by the President and who report to him directly. See Free Enterprise Fund, 561 U.S. at 493, 500. The President’s “exclusive and illimitable power of removal” of those principal officers furthers “the President’s ability to ensure that the laws are faithfully executed.” Id. at 493, 498 (internal quotation marks omitted); Myers, 272 U.S. at 627. Thus, “there are some ‘purely executive’ officials who must be removable by the President at will if he is able to accomplish his constitutional role.” Morrison, 487 U.S. at 690; Myers, 272 U.S. at 134 (the President’s “cabinet officers must do his will,” and “[t]he moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay”); cf. Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (Congress has the power to create independent agencies headed by principal officers removable only for good cause). In light of those constitutional precedents, it may be that the obstruction statutes could not be constitutionally applied to limit the removal of a cabinet officer such as the Attorney General. See 5 U.S.C. § 101; 28 U.S.C. § 503. In that context, at least absent circumstances showing that the President was clearly attempting to thwart accountability for personal conduct while evading ordinary political checks and balances, even the highly limited


regulation imposed by the obstruction statutes could possibly intrude too deeply on the President’s freedom to select and supervise the members of his cabinet.

The removal of inferior officers, in contrast, need not necessarily be at will for the President to fulfill his constitutionally assigned role in managing the Executive Branch. “[I]nferior officers are officers whose work is directed and supervised at some level by other officers appointed by the President with the Senate’s consent.” Free Enterprise Fund, 561 U.S. at 510 (quoting Edmond v. United States, 520 U.S. 651, 663 (1997)) (internal quotation marks omitted). The Supreme Court has long recognized Congress’s authority to place for-cause limitations on the President’s removal of “inferior Officers” whose appointment may be vested in the head of a department. U.S. CONST. ART. II, § 2, cl. 2. See United States v. Perkins, 116 U.S. 483, 485 (1886) (“The constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads of departments] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed”) (quoting lower court decision); Morrison, 487 U.S. at 689 n. 27 (citing Perkins); accord id. at 723-724 & n.4 (Scalia, J., dissenting) (recognizing that Perkins is “established” law); see also Free Enterprise Fund, 561 U.S. at 493- 495 (citing Perkins and Morrison). The category of inferior officers includes both the FBI Director and the Special Counsel, each of whom reports to the Attorney General. See 28 U.S.C. §§ 509, 515(a), 531; 28 C.F.R. Part 600. Their work is thus “directed and supervised” by a presidentiallyappointed, Senate-confirmed officer. See In re: Grand Jury Investigation, __ F.3d __, 2019 WL 921692, at *3-*4 (D.C. Cir. Feb. 26, 2019) (holding that the Special Counsel is an “inferior officer” for constitutional purposes).

1088 Although the FBI director is an inferior officer, he is appointed by the President and removable by him at will, see 28 U.S.C. § 532 note, and it is not clear that Congress could constitutionally provide the FBI director with good-cause tenure protection. See OLC, Constitutionality of Legislation Extending the Term of the FBI Director, 2011 WL 2566125, at *3 (O.L.C. June 20, 2011) (“tenure protection for an officer with the FBI Director’s broad investigative, administrative, and policymaking responsibilities would raise a serious constitutional question whether Congress had ‘impede[d] the President’s ability to perform his constitutional duty’ to take care that the laws be faithfully executed”) (quoting Morrison, 487 U.S. at 691).

Where the Constitution permits Congress to impose a good-cause limitation on the removal of an Executive Branch officer, the Constitution should equally permit Congress to bar removal for the corrupt purpose of obstructing justice. Limiting the range of permissible reasons for removal to exclude a “corrupt” purpose imposes a lesser restraint on the President than requiring an affirmative showing of good cause. It follows that for such inferior officers, Congress may constitutionally restrict the President’s removal authority if that authority was exercised for the corrupt purpose of obstructing justice. And even if a particular inferior officer’s position might be of such importance to the execution of the laws that the President must have at-will removal authority, the obstruction-of-justice statutes could still be constitutionally applied to forbid removal for a corrupt reason.1088 A narrow and discrete limitation on removal that precluded corrupt action would leave ample room for all other considerations, including disagreement over policy or loss of confidence in the officer’s judgment or commitment. A corrupt-purpose prohibition therefore would not undermine the President’s ability to perform his Article II functions. Accordingly, because the separation-of-powers question is “whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty,” Morrison, 487 U.S. at 691, a restriction on removing an inferior officer for