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The Mueller Report Summaries, Volume 2

summariesBMKmueller report, summaries, summary, trump, russia, obstruction of justice2 Comments
The Mueller Report Summaries, Volume 2

Introduction to Volume II

This second volume summarizes the obstruction-of-justice investigation of Trump. But first, a few considerations:

1) The Special Counsel didn’t make a traditional prosecutorial judgment because the prosecution or indictment of a sitting President would undermine the executive branch’s ability to function.

2) Although a sitting President may not be prosecuted, criminal investigations during a President’s term are totally okay. Also, a President does not have immunity after leaving office, and any individuals other than the President CAN be prosecuted.

3) The Special Counsel determined not to take an approach that could potentially result in a judgment that Trump committed crimes because even having a sealed accusation could imperil the President’s ability to govern. Also, this doesn’t allow for the President to clear his name before an impartial adjudicator.

4) I’m just going to retype this entire paragraph: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Executive Summary to Volume II

The Special Counsel investigated several key issues and events regarding the obstruction of justice, including: the Trump campaign’s response to reports about Russian support for Trump; conduct involving FBI Director Comey and Michael Flynn; Trump’s reaction to the continuing Russia investigation; Trump’s termination of Comey; the appointment of a Special Counsel and efforts to remove him; efforts to curtail the Special Counsel’s investigation; efforts to prevent public disclosure of evidence; further efforts to have the Attorney General take control of the investigation; efforts to have McGahn deny that Trump had ordered him to have the Special Counsel removed; conduct towards Flynn, Manafort, and [redacted]; conduct involving Michael Cohen; and other overarching factual issues.

The Special Counsel’s investigation was unlike your run-of-the-mill obstruction of justice investigation for a few reasons: 1) the investigation concerned the President, 2) Trump didn’t seem to be covering up a crime related to Russian election interference, and 3) many of Trump’s acts directed at witnesses took place in public, which is unusual.

There were two main parts of the obstruction investigation: First, those surrounding Trump’s interactions with (and firing of) Comey. Second, those surrounding Trump’s attacks on the Special Counsel, attempts to control it, and encouraging witnesses not to cooperate with the investigation.

Finally, Trump’s counsel raised possible defenses to prevent the Special Counsel from investigating obstruction of justice. However, the Special Counsel concluded, “none of those legal defenses provided a basis for declining to investigate the facts.” Obstruction of justice laws can apply to a President because no one person is above the law.

In conclusion, the Special Counsel found evidence of difficult issues that would need to be resolved before passing prosecutorial judgment. Thus, they’re not saying he committed a crime, but they’re also not exonerating him.

I. Background Legal and Evidentiary Principles

This section first lays out the groundwork for obstruction statutes. The three basic elements in common are: 1) an obstructive act, 2) a nexus between the obstructive act and an official proceeding, and 3) a corrupt intent.

For 1), this is any “effort to influence” a proceeding, however subtle. It’s also worth noting that an improper motive can turn otherwise lawful conduct into criminal conduct. For 2), there must be a proceeding or inquiry or investigation with which to connect the obstructive act — in this case, we’re looking at the FBI investigation and the Special Counsel’s investigation. For 3), “corruptly” can be defined as knowingly and dishonestly acting, which provides intent for obstruction of justice.

Two other elements of obstruction law include witness tampering (asking witness to lie, telling a false story as if it were true so a witness could testify to it, or urging a witness not to cooperate) and attempts and endeavors (when someone has the intent to commit a substantive offense and takes an overt act toward that goal).

The Special Counsel found “a substantial amount of evidence” relating to six potential obstruction of justice issues, all of which I’ve previously summarized in the first paragraph of the Executive Summary above. They also wanted to interview Trump, but after more than a year of discussion, he declined. Instead, he agreed to provide written answers to questions. However, Trump would only agree to answer questions regarding Russia, not on any obstruction topics. The Special Counsel could have subpoenaed him, but they chose not to because they had enough evidence to understand relevant events. Criminal intent can be inferred from circumstantial evidence, and often intent is determined without interviewing a subject. The same goes for obstruction of justice.

II. Factual Results of the Obstruction Investigation

This section summarizes the evidence the Special Counsel obtained. They’ll start by providing an overview of how Russia became a key issue in the 2016 election, then they’ll look at the key events previously outlined. Finally, they’ll analyze the evidence in reference to the three elements of obstruction of justice: an obstructive act, nexus to a proceeding, and intent.

A. The Campaign's Response to Reports About Russian Support for Trump

So, Russia. This is all old news if you read the summary to Volume I, but during the 2016 campaign, the media raised questions about connections between the Trump campaign and Russia — particularly after the WikiLeaks release of hacked emails. Trump denied any business involvement with Russia, even though those talks continued into June 2016.

By early 2016, Trump spoke about his close ties to Russia and his praise for Putin as a strong leader. The press was also covering stories of Trump campaign advisors and their ties to Russia: Michael Flynn, Carter Page, and Paul Manafort.

The day before the Democratic National Convention, WikiLeaks posted thousands of DNC documents. The Trump campaign reacted with enthusiasm. Many names and reaction quotes are redacted, including some of Trump’s comments. Trump had a phone call with [redacted], and after the call he told deputy campaign manager Rick Gates that more releases of damaging information would be coming.

Meanwhile, Trump publicly rejected the suggestion that Russia was seeking to help him. During a press conference in July 2016, he stated five times that he had nothing to do with Russia, even though the Trump Tower project was ongoing through June 2016. According to Michael Cohen, Trump refused to mention Trump Tower Moscow because it wasn’t a done deal and — this is a direct quote from Trump — “Why mention it if it is not a deal?”

That summer the Trump campaign also distanced themselves from Russian contacts. For example, foreign policy advisor J.D. Gordon declined an invitation to Russian Ambassador Sergey Kislyak’s home. In October 2016, when WikiLeaks released John Podesta’s emails, a government statement linked the hacking to “Russia’s senior-most officials” due to the hacking’s scope and sensitivity.

Two days after the election, Hope Hicks stated that no one from the campaign spoke with Russians. In December 2016, Trump refuted a CIA report which concluded that Russia interfered in the election to boost Trump’s chances of winning. Incoming Chief of Staff Reince Priebus went on Fox News Sunday to reiterate no one spoke with Russians and that “the whole thing is a spin job” perpetrated by the Democrats.

In early January 2017, Trump met with intelligence community leaders for a briefing on the election: Russia had intervened to harm Clinton and help Trump. Trump viewed this assessment as a way to delegitimize his win — people would think Russia helped him win rather than him doing so on his own.

B. The President's Conduct Concerning the Investigation of Michael Flynn

This section has to do with Flynn’s two phone calls with Kislyak in response to Obama’s Russian sanctions, as well as the FBI investigation and Trump’s conversation with Comey asking for his loyalty.

As discussed in Volume I, Flynn was in the Dominican Republic, and his deputy, K.T. McFarland, was in Mar-a-Lago when the sanctions took effect. McFarland told Flynn that incoming administrative officials didn’t want Russia to escalate the situation. Flynn then called Kislyak and passed along the message. The next day, Putin released a statement saying they wouldn’t escalate the situation. The intelligence community was surprised by Russia’s response, but when they analyzed the situation, they learned of Flynn’s discussion with Kislyak regarding sanctions.

On January 6, 2017, Trump met with intelligence community leaders for a briefing about the Russian election interference. Trump expressed then — and several times after — how highly he thought of Comey and that he (Trump) hoped Comey would remain FBI director. In the following weeks, three Congressional committees opened investigations to examine Russia’s interference in the election and whether the Trump campaign colluded with them.

On January 12, the Washington Post broke a story about Flynn’s call with Kislyak about sanctions. Priebus felt pressure from Trump to “kill the story,” so he got Flynn to get McFarland to call the Washington Post and say the story wasn’t true, even though she knew that was a lie. When pressed by incoming Trump officials, Flynn continued to deny he discussed sanctions with Kislyak. He told this lie to, among other people, Mike Pence and Sean Spicer, who then made public statements in support of Flynn. These statements worried Department of Justice officials because they knew the statements weren’t true. Additionally, DOJ officials were worried that Flynn could be compromised by Russia by using evidence of his talks with Kislyak as leverage to get Flynn to do whatever they wanted.

On January 24, four days after Trump’s inauguration, Flynn agreed to an interview with the FBI. Flynn lied about asking Kislyak to refrain from escalating the situation, as well as Kislyak’s follow-up call in which he said Russia didn’t escalate because of Flynn’s request.

Two days later, Acting Attorney General Sally Yates met with White House Counsel Don McGahn to express concern regarding Flynn’s potentially compromising position. Later that day, McGahn briefed Trump about the meeting. Trump said McGahn should work with Priebus and Bannon but not talk about it with other officials. That night, Trump had dinner with senior advisors and asked them what they thought of Comey. The consensus wasn’t positive. The next day, Trump invited Comey to dinner. Priebus, Bannon, and McGahn all warned Trump against this, but Trump insisted on dining with Comey alone.

Details of that dinner come from Comey’s contemporaneous memo, an interview with the Special Counsel, and Congressional testimony. Trump asked Comey whether he wanted to stay on as FBI director. He also brought up Flynn, saying, “the guy has serious judgment issues.” At the end of the dinner, Trump asked for loyalty. Comey responded that, “You will always get honesty from me.” Trump: “That’s what I want, honest loyalty.” After news of this request for loyalty became public, Trump and his advisors rejected the claim. However, “substantial evidence corroborates Comey’s account of the dinner.”

The week of February 6, Trump met with Flynn to get info on the conversations Flynn had with Kislyak. On February 9, the Washington Post reported that Flynn discussed sanctions with Kislyak the month before Trump took office. White House advisors looked at the info surrounding Flynn’s contacts with Kislyak. McGahn and Priebus recommended to Trump that Flynn should be fired. On February 13, Priebus told Flynn to resign, which Flynn did. Press Secretary Sean Spicer told the press that Flynn’s removal was based on a trust issue, not a legal one.

The day after Flynn’s resignation, Trump had lunch with Chris Christie. Trump was optimistic that, with Flynn gone, the investigation would soon be over. However, Christie said there is no way to make an investigation shorter, but a lot of ways to make it longer. Near the end of lunch, Trump asked Christie to call Comey and tell him “he’s part of the team.” Christie told investigators he had no intention of doing so, and that he didn’t make the call.

At 4pm that afternoon, Trump had a homeland security briefing with Comey, Sessions, and other officials. At the end of the meeting, Trump sent everyone out so he could talk to Comey alone. Trump asked Comey to drop any further investigations into Flynn because he (Flynn) “is a good guy.” After the meeting, Comey compiled his notes on the meeting. He also asked Sessions not to leave him alone with Trump again.

After Flynn’s resignation, the press continued to question Trump’s ties to Russia, as well as if Trump asked Flynn to discuss sanctions with Kislyak. In a press conference, Trump said that what Flynn did wasn’t wrong, that in fact Flynn “did something right.” Trump also reiterated not having any connection to Russia.

On February 22, 2017, Trump asked Priebus to tell McFarland to resign as Deputy National Security Advisor, but that she could become the ambassador to Singapore. Trump also asked Priebus to have McFarland draft an email confirming that Trump didn’t direct Flynn to call Kislyak and discuss sanctions. McFarland didn’t feel comfortable doing this, and the White House Counsel advised her against doing so. Later that evening, Priebus stopped by McFarland’s office and told her to forget he even mentioned the email request. Trump then asked Priebus to reach out to Flynn and let him know Trump still cared about him. Priebus thought this was so Flynn wouldn’t say anything bad about Trump.

Analysis of the above evidence: To consider Trump’s “I hope you can let this go” comment as obstruction, then the Special Counsel would first have to assess that Comey’s account is accurate and then determine whether Trump’s statement could shut down an inquiry.

Although Trump publicly disputed the story, substantial evidence corroborates Comey’s account, so the first part holds true. The next question is whether Trump’s request could impede or interfere with the FBI’s investigation into Flynn. The circumstances of the conversation show that Trump contacted Comey to close the investigation, so this is also true. Thus, we have an obstructive act. Check.

Next is proving a nexus to a proceeding. This is also true — it is reasonable to assume Trump knew that the Flynn investigation would lead to a grand jury investigation or prosecution. Check.

Finally, intent. Did Trump have a personal stake in the outcome of a Flynn investigation? For example, did Trump know Flynn lied to White House officials about his contact with Kislyak? That evidence is inconclusive. There’s also not enough evidence to establish that Trump would have a personal incentive to end the FBI inquiry into Flynn’s conduct. However, evidence DOES establish that Trump believed that firing Flynn would stop further investigations into Russian ties.

Also, the way Trump requested Comey’s “loyalty” is relevant to his intent — especially the fact that Trump always wanted to speak with Comey alone. Trump’s request to have McFarland write the email likewise highlights his concern about being associated with Flynn’s conduct. So even though the Special Counsel doesn’t give a full check mark here to complete the trifecta, the evidence definitely shows Trump doesn’t want to be investigated.

C. The President's Reaction to Public Confirmation of the FBI's Russia Investigation

This section is about Sessions’ recusal, Comey’s disclosure of the FBI Russian investigation, and Trump asking Comey and other intelligence officers to publicly state that he (Trump) didn’t haven any connections to Russian election-interference efforts.

In late February 2017, the DOJ began an internal analysis of whether Sessions should recuse himself from the Russian investigation. On March 1, the press reported about Sessions’ omission during his January confirmation hearing regarding his meetings with Kislyak. The next day, Trump called McGahn and urged him to contact Sessions and tell him not to recuse himself. McGahn reached out to Sessions, but Sessions replied that he would follow the rules of recusal. McGahn then contacted Sessions’ personal counsel, his chief of staff, and Mitch McConnell, as well as Sessions himself two more times. Sessions remembers that other White House officials also contacted him, too, all to try to convince him not to recuse. But that same day, Sessions announced his recusal. To him, the law made it very clear that he had to recuse himself.

The next day, Trump met with McGahn, Priebus, Bannon, and other advisors. Trump was upset and wished Roy Cohn was his attorney. Bannon noted that Trump was as mad as he’d ever seen him. That weekend, Sessions and McGahn went to Mar-a-Lago to meet with Trump. Trump pulled Sessions aside and asked him to unrecuse himself. Trump also wanted to call the Acting Attorney General (Dana Boente) to find out if he was being investigated.

On March 9, Comey briefed the “Gang of Eight” Congressional leaders about the FBI’s investigation of Russian interference. He was also scheduled to testify before a House intelligence committee a week and a half later. Boente, the Acting Attorney General, authorized Comey to confirm the existence of Russia’s investigation but not who was being investigated.

On March 20, Comey made an opening remark at the hearing saying as much, and he declined to answer questions regarding who or what specifically was being investigated. Trump was frustrated by Comey’s testimony. He suspected Comey was leaking info to the media and thought Comey was acting like “his own branch of government.” Trump didn’t like the idea that Comey’s testimony (and the resulting press coverage) suggested that he was under investigation. Here’s how bad things got: “Officials in the White House Counsel’s Office became so concerned that the President would fire Comey that they began drafting a memorandum that examined whether the President needed cause to terminate the FBI director.”

In the weeks after Comey’s testimony, Trump repeatedly asked intelligence community officials (including the Director of National Intelligence, the CIA director, and the director of the NSA) to publicly push back against suggestions that he had a connection to the Russian election-interference effort. To all of these men — and more! — Trump stated that the investigation interfered with his ability to conduct foreign relations. Trump also vented that nobody would publicly defend him.

On March 30, Trump called Comey to talk about the Russian investigation. He asked Comey what could be done to “lift the cloud.” After the call, Comey called Boente to say how uncomfortable he was with direct contact from Trump. About two weeks later, Trump again called Comey to ask if Comey made any progress on Trump’s request. Comey told Trump the traditional channel for such information would be to have White House counsel contact DOJ leadership. Later that day, Trump met with senior advisors, including McGahn and Priebus. Trump mentioned reaching out to Comey twice in two weeks. He knew McGhan wouldn’t be happy to hear this.

Analysis: While Trump’s requests to intelligence agency leaders were significant, none of the officials who received directives interpreted Trump’s comments as interference with the investigation. So the obstructive act element here isn’t super strong.

As for a nexus to a proceeding, Comey’s March 20 testimony would let Trump know that the FBI was investigating any links between the Trump campaign and Russian interference. So this is a yes.

Finally, Trump’s intent in trying to prevent Sessions’ recusal is relevant to understanding his other actions toward the investigation. There’s definitely evidence that Trump was focused on the investigation’s implication for his presidency. Again, the Special Counsel doesn’t really give a definitive ruling here, just that his actions are suspicious.

D. Events Leading Up To and Surrounding the Termination of FBI Director Comey

A week before Comey would testify before the Senate Judiciary Committee, Trump told McGahn that it would be the last straw if Comey didn’t publicly announce that Trump wasn’t under investigation. And indeed, at the May 3 testimony, Comey refused to answer questions about the investigation. Afterward, Trump met with McGahn and Sessions. He was very upset — mostly at Sessions. Sessions said he had no choice but to recuse. Bannon recalled that Trump brought up Sessions at least eight times in the next day and a half.

The weekend following Comey’s testimony, Trump was at his Bedminster, NJ resort. He had dinner with advisors — among them Kushner and Stephen Miller — and started dictating orders for a letter that would be used to announce Comey’s termination. Trump made it clear to Miller (who took on drafting duties) that the letter should open with a reference to Trump not being under investigation. Trump also didn’t want Miller saying anything about this to anyone back at the White House because he was worried about leaks. The final draft of the four-page letter was, according to Kushner, a reflection of the reasons why Trump wanted to fire Comey.

The following Monday, Trump had a meeting in the Oval Office with Miller, McGahn, and Priebus to tell them he was going to fire Comey and that his mind had been made up. That evening Trump met again with McGahn, Sessions, and newly confirmed Deputy Attorney General Rod Rosenstein. McGahn urged Trump to let Comey resign, but Trump wanted to fire him. Trump asked Rosenstein to draft a memo firing Comey and to include “the Russian stuff.”

On May 9, Sessions delivered a letter recommending Comey’s removal due to the mishandling of Clinton’s email investigation. Trump once again wanted language saying he wasn’t under investigation, but everyone objected. The White House counsel approved Sessions’ letter and asked that Trump’s original termination letter never see the light of day.

Later that evening, Trump was unhappy with the press coverage of Comey’s termination, so the White House Press Office asked the DOJ to put out a statement saying that it was Rosenstein’s idea to fire Comey. However, Rosenstein refused, saying he wouldn’t lie to the press; it wasn’t his idea. Late that night, Spicer held an unplanned press conference to tell reporters it was Rosenstein’s idea to terminate Comey.

The next day, Trump met with Kislyak in the Oval Office, telling him that Comey was gone and that “I’m not under investigation.” Trump also called the FBI’s Deputy Director, Andrew McCabe, to say that at least 80% of the FBI voted for him and that he had received hundreds of messages from FBI employees supporting Comey’s termination. That afternoon, Deputy Press Secretary Sarah Sanders told reporters that Rosenstein decided on his own to review Comey’s performance. She admitted to the Special Counsel that certain comments she made during this press conference were fabrications — “a slip of the tongue” or made “in the heat of the moment” that weren’t founded on anything.

That same day, Sessions and Rosenstein met with McGahn to express concern over the White House narrative that Rosenstein initiated the discussion to fire Comey. The next day, Trump sat down for an interview with Lester Holt, and he admitted that he was going to fire Comey regardless of a recommendation.

Analysis: Trump’s firing of Comey could be considered an obstructive act if doing so “had the natural and probable effect of interfering with or impeding the investigation,” which, if you’re firing the head of the organization running an investigation, is a pretty clear yes.

There’s also evidence indicating that Trump knew that Flynn was still under investigation and could potentially be prosecuted. Thus, we have a nexus to a proceeding.

Finally, substantial evidence shows the reason Trump fired Comey was because Comey wouldn’t publicly state that Trump was not personally under investigation. Any other reasons to fire Comey (i.e. his handling of Clinton’s emails) don’t hold up was well, because Trump was aware of those since his inauguration. There’s also evidence that Trump fired Comey to protect himself from an investigation into his campaign — not necessarily in regard to Russia, but out of a fear that an FBI investigation would uncover facts about Trump and his campaign that may be seen as criminal or concerning. Lastly, the fact that Trump and the White House pushed the narrative that they were acting based on a DOJ recommendation rather than Trump’s own whim could support an interpretation that he had concern about providing the real reason for Comey’s firing. All of this points in the direction of yes, there was intent.

E. The President's Efforts to Remove the Special Counsel

On May 17, 2017, Rosenstein appointed Robert Muller as Special Counsel, then called Sessions to let him know. When Sessions told Trump about the Special Counsel appointment, Trump “slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’” Trump once again got angry with Sessions for recusing and said Sessions should resign as Attorney General. Sessions agreed, then left. Hope Hicks saw Trump right after, and she said the only other time she had seen him that upset was when the Access Hollywood tape came out.

The next day, Sessions brought his resignation letter to Trump. Trump folded it up and put the letter in his pocket, then asked Sessions several times if he wanted to continue serving as Attorney General. Sessions eventually said he wanted to stay, so Trump didn’t accept Sessions’ resignation, even though he kept the resignation letter. Priebus and Bannon didn’t like Trump having the letter because he could try to use it to influence the DOJ. The following day, Trump left for a trip to the Middle East. On one of his flights, he showed Sessions’ resignation letter to a group of senior advisors. Trump didn’t return the letter for another 10 days.

In the days after the Special Counsel’s appointment, Trump told advisors that Mueller had conflicts of interest, including the fact that Mueller worked for a law firm that represented people affiliated with Trump, and that Mueller had disputed fees relating to his membership at a Trump golf course in Northern Virginia. However, Bannon, in particular, pushed back against this idea, claiming that these supposed conflicts of interest were “ridiculous and petty.”

Around this time, Trump reached out to McGahn to contact Rosenstein about these “conflicts,” but McGahn told Trump he (Trump) should talk to his personal counsel and not White House counsel. McGahn knew he could be called as a witness, so he didn’t want Trump to contact him with issues related to the investigation.

On June 8, Comey testified before Congress about his interactions with Trump. His testimony led to the press raising questions of obstruction of justice. The next day, the Special Counsel informed the White House that their investigators would start looking into this charge.

A few days later, on June 12, Christopher Ruddy, a friend of Trump’s, met with Priebus and Bannon. They told Ruddy that Trump was considering firing the Special Counsel without vetting the decision through administration officials. Later that day, Ruddy went on a TV interview and shared this news. The press picked it up and this became a big story.

The next day, Trump’s personal counsel contacted the Special Counsel to raise concerns over a conflict of interest. But that very same day Rosenstein testified before Congress to say he didn’t see any reason to fire the Special Counsel, including conflict of interest.

The following day, June 14, the Washington Post broke the news that the Special Counsel was investigating Trump for obstruction of justice. Cable news picked up the report. At 10:31pm, Trump called McGahn on McGahn’s personal cell phone. They spoke for 15 minutes. McGahn didn’t remember what they talked about, though they “might have discussed” that news.

The next two days, Trump issued a series of tweets criticizing the investigation. On Saturday, June 17, Trump called McGahn from Camp David and directed McGahn to remove the Special Counsel. McGahn was perturbed by the call and didn’t intend to do anything. He could tell this was a tipping point and wanted to hit the brakes. Trump called McGahn back later in the day to follow up, reiterating that “Mueller has to go.” To end the conversation, McGhan (who was feeling worn down by Trump’s request) said he would call Rosenstein.

But rather than calling Rosenstein, McGahn decided to resign. He drove to his office, packed his belongings, and submitted his resignation letter. He then called Priebus and Bannon to tell them he was intending to resign because Trump had asked him to “do crazy shit.” McGahn was purposefully vague so that no on else would know what Trump had asked him to do. Ultimately, Bannon convinced McGahn to stay since he hadn’t yet told Trump about his resignation plans.

Analysis: The main question is if an attempt to remove the Special Counsel could delay or otherwise impede the investigation. (Uh, yeah.) Substantial evidence supports the conclusion that Trump directed McGahn to call Rosenstein to remove the Special Counsel. The evidence shows Trump wanted to terminate the Special Counsel, so we have a yes for obstructive act.

Next, we have a big ol’ yes for nexus to a proceeding: “substantial evidence indicates that [Trump] knew his conduct was under investigation.”

Finally, there’s a yes for intent. Substantial evidence indicates that Trump’s attempt to remove the Special Counsel was linked to reports he was being investigated. What Trump most wanted to avoid was a criminal investigation into his own conduct becoming the subject of widespread media attention. There is also evidence that Trump knew he shouldn’t have made those calls to McGahn, further providing intent.

F. The President's Efforts to Curtail the Special Counsel Investigation

On June 19, two days after Trump ordered McGahn to remove the Special Counsel, he met in the Oval Office with his former campaign manager Corey Lewandowski. Lewandowski and Trump were very close. Trump lamented Sessions’ recusal, then told Lewandowski to deliver a message to Sessions. “Write this down,” Trump said, and this is what he dictated: “I know that I recused myself from certain things having to do with specific areas. But our POTUS… is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel because he hasn’t done anything wrong. I was on the campaign with him for nine months, there were no Russians involved with him. I know it for a fact because I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.”

Lewandowski said he’d pass along the message. He legitimately wanted to, things just didn’t work out logistically. Sessions had to cancel their meeting due to a last minute conflict. Shortly after, Lewandowski left DC without having conveyed the message to Sessions. So instead he called up Rick Dearborn, a senior White House official, and asked if Dearborn could pass a message to Sessions. Dearborn agreed without even knowing what the message was. Dearborn arranged a dinner with Sessions in late July to deliver the message.

Trump met with Lewandowski again on July 17. As he was leaving the meeting, Lewandowski ran into Dearborn outside the Oval Office and told him the message for Sessions. Dearborn felt uncomfortable being the messenger, so he later told Lewandowski he had handled the situation even though he hadn’t actually done so.

Hours after his meeting with Lewandowski, Trump gave an unplanned interview to the New York Times in which he criticized Sessions’ decision to recuse from the Russia investigation. Hope Hicks tried to stop parts of the interview, but Trump loved it and was happy how coverage of his interview was playing out.

Three days later, the Washington Post reported that Sessions had discussed campaign-related matters with Kislyak, contrary to what Sessions had said publicly. That evening, Priebus called Joey Hunt, Sessions’ chief of staff, to talk about whether Sessions might be fired or might resign. Hunt said Sessions had no intention of resigning.

The next day, July 22, Trump told Priebus to get Sessions to resign immediately. But Priebus didn’t feel this was right, so he called McGahn. McGahn told Priebus not to do it and that they should consult with their personal counsels. McGahn also said they might both have to resign rather than carry out the orders. Trump followed up with Priebus later in the day, and Priebus got Trump to agree to hold off until after the Sunday shows so the press wouldn’t focus on the firing. By the end of the weekend, Trump agreed not to ask Sessions to resign. But over the next several days, Trump tweeted about Sessions, calling him “beleaguered” and “VERY weak.” In light of this, “Sessions prepared another resignation letter, and for the rest of the year carried it with him in his pocket every time he went to the White House.”

Analysis: Trump’s directions indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into Trump and his campaign, which would obstruct the investigation and thus be an obstructive act.

Next, Trump was aware of a grand jury investigation by the Special Counsel, so yes to a nexus to an official proceeding.

Finally, Trump’s effort was to have Sessions limit the scope of the Special Counsel’s investigation so they’d only look at Russia (not Trump and his campaign’s conduct). Although the Special Counsel never flat-out says so, there is enough evidence to prove that yes, Trump had intent.

G. The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials

By mid-June 2017 (the same week Trump first asked Lewandowski to pass a message to Sessions), White House officials became aware of emails between Don Jr. and Robert Goldstone setting up the June 9, 2016 Trump Tower meeting. On or about June 22, 2017, Kushner tried to tell Trump about the emails, but Trump didn’t want to know about them and shut the conversation down. Hope Hicks read the emails and was concerned because they looked “really bad.” Trump became upset that more people were aware of these emails.

About a week later, Kushner, Hicks, and Ivanka met with Trump to suggest getting ahead of the story and for Don Jr. to release the emails as part of an interview with softball questions. However, Trump once again said he didn’t want to know anything about it.

On July 7, while Trump and Hicks were in Germany for the G20 Summit, Hicks learned that the New York Times was working on a story about the June 9 meeting. The next day, Hicks shared with Trump a draft statement for Don Jr. about the meeting, but Trump edited the statement so that there was no mention of getting dirt on Clinton. Don Jr. and Hicks texted afterwards to make an alteration: “we primarily discussed a program about the adoption of Russian children” so that it wouldn’t appear, in Don Jr.’s words, “as though I’m lying later when they inevitably leak something.” The statement Don Jr. provided the New York Times was remarkably similar to the one Trump dictated. Hicks still wanted to be transparent about the emails, but Trump once again said no. Before Trump’s flight back from the G20 landed, the New York Times published their story.

A couple days later, Don Jr. posted redacted images of the emails setting up the June 9 meeting. He did so because the Times was about to publish the content of the emails. The media also reported that Trump had been personally involved in preparing Don Jr.’s statement — a claim that Trump’s personal counsel publicly denied several times over the next few days.

On July 19, during the same interview in which he criticized Sessions, Trump also said, “most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians — I was just with a lot of people, they said… ‘Who wouldn’t have taken a meeting like that?’”

Analysis: Trump not letting Hicks (or anyone else) discuss the meeting emails would amount to obstruction only if Trump was seeking to withhold information or mislead investigators. However, there isn’t enough evidence to establish this fact. That said, the Special Counsel doesn’t know what Trump discussed with his personal lawyers at that time.

Yes, there was a proceeding, but again, the evidence doesn’t establish that Trump sought to prevent disclosure of the emails to the Special Counsel, only to the public.

As for intent, yes, Trump was involved in shaping Don Jr.’s statement, and yes he didn’t want the emails public, but there’s no evidence that he tried to prevent the Special Counsel from obtaining the emails.

H. The President’s Further Efforts to Have the Attorney General Take Over the Investigation

As some point in May 2017, Trump called Sessions at home to ask for a second time that Sessions reverse his recusal so that Sessions could then prosecute Clinton. In early July, Trump asked Staff Secretary Rob Porter to reach out to Associate Attorney General Rachel Brand to see if she was “on the team.” Brand was the next in line after Rosenstein, so she would supervise the Special Counsel’s investigation if both Sessions and Rosenstein were removed. Knowing this made Porter feel uncomfortable, so he didn’t contact Brand.

Later in 2017, Trump continued to urge Sessions to reverse his recusal. He also began tweeting that there was no investigation into Clinton. In January 2018, during a meeting in the White House residence, Trump said one of his biggest failings as President was that he hadn’t surrounded himself with good attorneys. For most of 2018, Trump continued to criticize Sessions in tweets and interviews. Trump’s tweets also encouraged Sessions to take action in the Russia investigation, despite his recusal. Finally, on November 8, 2018, the day after the midterm elections, Trump replaced Sessions.

Analysis: Sessions reversing his recusal would only be considered an obstructive act if those efforts would have an effect on the investigation (which… yes?). Also, the duration of Trump’s efforts (from March 2017 to August 2018) is relevant in assessing whether his efforts to have Sessions unrecuse qualify as obstructive acts.

As for a nexus to an official proceeding, the existence of grand juries was well known, but whether or not Trump’s actions could impact these proceedings hinges on much of the same evidence as above. So not exactly a strong overwhelming yes, but it seems to lean in that direction.

Finally, there is evidence that Trump wanted Sessions to assume control of the Russia investigation to restrict its scope. So, yes for intent.

I. The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel

On June 25, 2018, the New York Times reported about Trump’s June 2017 request for McGahn to fire the Special Counsel. Trump’s response: “Fake news, folks.” The next day, Trump’s personal counsel called McGahn’s personal counsel and said that Trump wanted McGahn to put out a statement denying that he had been asked by Trump to fire the Special Counsel. McGahn refused.

About a week later, Trump complained to Porter that the New York Times story was “bullshit.” Trump directed Porter to tell McGahn to create a record making clear that Trump didn’t ask McGahn to fire the Special Counsel. Trump called McGahn a “lying bastard.” Later that day, Porter spoke with McGahn to deliver Trump’s message. However, McGahn once again refused.

The next day, McGahn met with Trump and then-Chief of Staff John Kelly. Trump said he never told McGahn to “fire” Mueller and that McGahn needed to fix this by “do[ing] a correction.” McGahn said no. Trump then questioned why McGahn took notes: “What about those notes? Why did you take notes? Lawyers don’t take notes. I never had a lawyer who took notes.” McGahn responded that he keeps notes “because he is a ‘real lawyer’ and explained that notes create a record and are not a bad thing.” Kelly described the meeting as “a little tense.” After the meeting, McGahn told Kelly about what happened during his call with Trump in June 2017.

Analysis: This would be considered an obstructive act if it had the tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness. Substantial evidence supports McGahn’s account that Trump persisted in asking McGahn to repudiate facts that McGahn repeatedly said were accurate.

As for a nexus to an official proceeding: yes, the evidence indicates Trump’s awareness that his June 17, 2017 call to McGahn was relevant to the Special Counsel’s investigation. Moreover, Trump’s effort to have McGahn write a correction about ten days after the stories had come out (“well past the typical time to issue a correction”) indicates that Trump was trying to influence the investigation. So that’s a yes.

Finally, intent. Substantial evidence indicates Trump acted for the purpose of influencing McGahn’s account.

J. The President’s Conduct Toward Flynn, Manafort, [Redacted]

Following Flynn’s resignation in February 2017, Trump made public comments praising Flynn. By late November 2017, Flynn began to cooperate with the Special Counsel. As such, Flynn’s counsel told Trump’s personal counsel and White House counsel that Flynn could no longer have confidential communications with Trump. Trump’s counsel was upset to hear this, because this meant Flynn wouldn’t be able to tell Trump or anyone at the White House what was going on with the investigation.

On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement. The next day, in response to a question about whether Trump still stood behind Flynn, Trump said, “We’ll see what happens.”

On October 27, 2017, Manafort and former deputy campaign manager Rick Gates were indicted on multiple felony counts. In January 2018, Manafort told Gates that Trump’s personal counsel had said they should “sit tight” because they’d “be taken care of.” In private, Trump didn’t seem to like Manafort much, and Trump wanted to know whether Manafort was cooperating with the Special Counsel. But publicly, Trump made comments to the press or tweeted about how unfairly Manafort was being treated.

Immediately after Manafort’s bail was revoked, Rudy Giuliani (Trump’s personal lawyer) gave several interviews in which he hinted at a pardon for Manafort. Giuliani later rejected the idea that his comments could signal to defendants that they shouldn’t cooperate because a pardon might follow.

On July 31, 2018, Manafort’s criminal trial began in the Eastern District of Virginia. Five days later, the jury found Manafort guilty on eight felony counts. That same day, Cohen pleaded guilt to eight offenses. Trump tweeted praise for Manafort because “he refused to ‘break’ — make up stories in order to get a ‘deal.’” As for Cohen, Trump said flipping “almost ought to be outlawed.”

On September 14, 2018, Manafort pleaded guilty to charges in Washington DC and signed a plea agreement requiring him to cooperate with investigators. But a little over two months later, the Special Counsel disclosed that Manafort breached his plea agreement by lying about multiple subjects. As we established in Volume I, Paul Manafort lies like a motherfucker.

The third person’s section is completely redacted. I did some research, and this person is Roger Stone.

Analysis: Trump’s actions would qualify as obstruction of justice if they had the natural tendency to prevent particular witnesses from testifying truthfully, or otherwise delaying or preventing their testimony.

With regard to Flynn, the events could have the potential to affect Flynn’s decision to cooperate. With respect to Manafort, there is evidence that Trump’s actions had the potential to influence Manafort’s decision because Trump’s words suggested that a pardon was more likely if Manafort didn’t cooperate with the government. Trump’s comments also had the potential to influence the jury.

The nexus to an official proceeding is a big yes, as Flynn, Manafort, and Stone all had proceedings.

Intent is inconclusive with regard to Flynn, since we don’t know what Trump knew about or was involved in with Flynn’s counsel. As for Manafort, evidence indicates Trump intended to encourage Manafort not to cooperate with the government. Some evidence also supports the conclusion that Trump intended to influence the jury.

K. The President’s Conduct Involving Michael Cohen

Trump’s conduct with Cohen spans the full period of the Special Counsel’s investigation. As previously described, Cohen conducted negotiations for a Trump Tower Moscow project from September 2015 until at least June 2016. In the fall of 2015, Trump signed a Letter of Intent that specified highly lucrative terms for Trump. By January 2016, Cohen became frustrated with the way Felix Sater was handling negotiations, so Cohen reached out to Dmitry Peskov, Putin’s deputy chief of staff. Cohen spoke with Peskov’s personal assistant, and he told Trump he wished the Trump Organization had assistants who were as competent as the woman from the Kremlin.

Putin reached out to Sater, which renewed talks about the Trump Tower Moscow project. From January to April 2016, Cohen kept Trump in the loop. Trump told Cohen he’d be willing to travel to Russia if Cohen could “lock and load” the deal. During the summer of 2016, Trump continued to publicly claim he had nothing to do with Russia but would then privately check in with Cohen about the status of the project — behavior that Cohen found “interesting.”

During the 2016 campaign, the “party line” was that Trump didn’t have any personal, financial, or business connections to Russia. But in January 2017, as the media began to ask questions about the Trump Tower Moscow project, Cohen was worried that truthful answers would contradict the party line. To help stay on message, Cohen told the New York Times lines from a “script” he had developed with Trump to dismiss the idea of a substantive connection between Trump and Russia.

Cohen entered into a Joint Defense Agreement with Trump and others who were part of the Russia investigation. Trump’s personal counsel told Cohen that “the President loves you,” and that if he stayed on message, Trump had his back. In August 2017, Cohen started drafting a statement about Trump Tower Moscow to submit to Congress. The final version (which contained edits by members of the Joint Defense Agreement), contained several false statements about the project. A month before his Congressional testimony, Cohen publicly released his opening remarks. He did so to let other possible witnesses know what Cohen was saying so they could follow the same message.

The Special Counsel didn’t investigate Cohen’s payments to Stormy Daniels and other women. However, Trump’s and his personal counsel’s interactions with Cohen are relevant. In February 2018, Cohen released a statement saying that the payment wasn’t connected to Trump or the campaign. Trump had told him to say that Trump wasn’t knowledgeable of Cohen’s actions, even though this wasn’t true.

On April 9, FBI agents raided Cohen’s home, office, and hotel room. Later that day, Trump told reports Cohen was a good man and that the searches were “a real disgrace.” In the days after, Trump called Cohen to tell him to “stay strong.” Close friends of Trump also contacted Cohen to say, “the boss has your back.” Later in April, Trump tweeted in praise of Cohen and how he wouldn’t flip. Cohen felt supported by the White House and determined to stay on message so that he would either get a pardon or help shut down the investigation. Trump continued to publicly express his sympathy for not only Cohen but also Manafort and Flynn.

But then in July 2018, ABC News reported that Cohen was cooperating with the Special Counsel. Trump started tweeting about how Cohen was “making up stories” for a better deal. On September 17, the Special Counsel submitted written questions to Trump, including questions about the Trump Tower Moscow project. On November 20, 2018, Trump submitted responses that did not answer the Trump Tower Moscow questions directly.

On November 29, Cohen pleaded guilty to making false statements to Congress. Later that day, Trump spoke with reporters and called Cohen “weak.” He also said, “Even if [Cohen] was right, it doesn’t matter because I was allowed to do whatever I wanted during the campaign.” The Special Counsel twice asked Trump for more details about Cohen and the project, but Trump’s personal counsel refused, saying that Trump had “fully answered the questions at issue.”

Into 2019, Trump continued to imply that Cohen’s family members had committed crimes. Also, in January 2019, Giuliani gave press interviews confirming that talks of a Trump Tower Moscow project went well into October or November 2016. Giuliani later released a statement that said his words were hypothetical and not based on actual conversations he had with Trump.

Analysis: The Special Counsel looked at two issues: 1) whether Trump or others aided in Cohen’s false statements to Congress, and 2) whether Trump’s actions would prevent Cohen from providing truthful information to the government. For the first question, the available evidence doesn’t establish that Trump aided in Cohen’s false testimony. However, the Special Counsel doesn’t know what Trump discussed with his personal counsel. This precludes the Special Counsel from assessing what, if any, role Trump played. As for the second question, yes, the evidence supports an inference that Trump used inducement in an effort to get Cohen not to cooperate, then turned to attacks once Cohen began cooperating.

As for a nexus to an official proceeding, yes, Trump’s statements and tweets acknowledged the investigations.

Finally, intent. Yes, evidence indicates that Trump intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on Trump’s campaign.

L. Overarching Factual Issues

A couple general conclusions: 1) This is not a typical obstruction-of-justice prosecution for a few reasons. One, because the conduct involves the President. Two, because there doesn’t appear to be a crime being covered up (which isn’t a prerequisite for obstruction of justice, though it is unusual). Three, Trump’s acts directed toward witnesses occurred in public view.

2) It is important to view Trump’s pattern of conduct as a whole because it sheds light on his intent. The Special Counsel found multiple examples of Trump attempting to exert undue influence over law enforcement investigators. Although these efforts were mostly unsuccessful, that’s largely because the people who surrounded Trump refused to carry out his requests (for example, Comey not ending Flynn’s investigation, or McGahn not firing Mueller). Trump’s actions can be divided into two phases: the first was before he fired Comey and didn’t think he was under investigation, and the second was after he fired Comey, when he was aware that investigators were looking into his conduct.

III. Legal Defenses to the Application of Obstruction-of-Justice Statutes to the President

Trump’s personal counsel wrote to the Special Counsel to bring up statutory and constitutional defenses to Trump’s conduct. However, the Special Counsel concluded that the statutory arguments were contrary to the DOJ’s position and that the constitutional arguments (particularly Article II) do not categorically immunize the President.

Section 1512(c)(2) of 18 U.S.C. illustrates that corrupt acts merely have to frustrate the commencement or conduct of a proceeding, not consist of larger actions, such as destroying evidence. Therefore, section 1512(c)(2) captures corrupt conduct. A Supreme Court ruling stated that “acting ‘corruptly’ within the meaning of section 1512(c)(2) means acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede, or obstruct” a relevant proceeding. Quoting from the Mueller report directly, “In sum… an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.”

As for the Constitution, although the President has broad authority under Article II, Congress’ Article I power coexists to help prevent corruption. Thus, if the President’s actions come into conflict with obstruction statutes, then Congress can intervene. Congress has the right to criminalize certain obstructive conduct by the President.

The question is, if Congress were to impose a limitation of Article II powers, would that disrupt the balance of power among the branches of government? The Special Counsel looked into this, and they concluded that Congress making obstruction of justice statutes applicable to corruptly motivated acts of the President would NOT undermine that balance. For example, Congress could prohibit the offer of a pardon, even if Congress doesn’t have the power to regulate the pardon itself. This is because the President has no more right than other citizens to impede official proceedings by corruptly influencing witness testimony. The President isn’t shielded from criminal acts, and statutes that prohibit that kind of behavior only serve to strengthen — not hinder — the law.

Also, Congress has a recognized authority to place certain limits on the President’s power to remove Executive Branch officials. Although that authority might not apply to a removal of a cabinet member (i.e. Attorney General), it would apply toward “inferior officers” such as the FBI Director and the Special Counsel, especially if the removal was done for the corrupt purpose of obstructing justice. Congress doing so would not impede the President’s ability to perform his constitutional duty. Under Article I of the Constitution, Congress has the authority to define criminal law and apply it to everyone — including the President.

IV. Conclusion

The entirety of the Volume II conclusion is one paragraph. It reads: “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions abut the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Appendices

There are four appendices to the Mueller Report. Here are summaries of what each contains.

Appendix A

The signed letter by Acting Attorney General Rod Rosenstein appointing the Special Counsel to investigate Russian interference with the 2016 Presidential election and other related matters.

Appendix B

A glossary of names and descriptions of people or organizations referenced in the report. Three names and descriptions are entirely redacted.

Appendix C

The longest and most interesting appendix, this one contains the questions the Special Counsel submitted to Trump along with his written answers. Beginning in December 2017, the Special Counsel tried for over a year to interview Trump. They advised his counsel that an interview was vital to their investigation. They said it was in the interest of both Trump and the public for an interview to take place.

The Special Counsel received Trump’s written responses in late November 2018. In December, they informed Trump’s counsel that the responses were insufficient in several respects, including over 30 occasions that he “does not recall” or “remember” or “recollect” information, as well as incomplete or imprecise answers (even on topics — such as the Trump Tower Moscow project — that he made public comments about). They requested another interview, but Trump declined.

The Special Counsel considered a subpoena, but by that point they had made significant progress and produced substantial evidence which allowed them to draw relevant conclusions without direct testimony.

The Special Counsel submitted five questions, but each question had a minimum of seven parts, and each part contained at least one question. Question one has nine parts and is in regard to the June 9, 2016 meeting at Trump Tower. Trump said he has no recollection of learning at the time that the meeting was happening, but that doesn’t address when he did first learn about it. Trump also doesn’t recall if he saw or spoke with Manafort, Kushner, or Don Jr. from June 6-9, nor does he recall if any of them had contact with Russians after the meeting.

Question two has nine parts and is about the Russian hacking and release of DCCC and DNC documents. Again, Trump doesn’t recall being aware during the campaign of the release of those documents before they happened. Nor does he recall if anyone communicated with the Russians in regard to the release of material. The Special Counsel is really interested in Roger Stone’s contacts with WikiLeaks, though Trump has no recollection of discussing the topic with Stone.

Question three has seven parts and is about the Trump Tower Moscow project. Trump answered all seven parts at once, which is different than the other questions where he would address each part individually or in smaller chunks. Anyway, he said he signed the Letter of Intent as part of the Trump Organization’s efforts to expand into other markets around the world. Trump said his conversations with Cohen about the project were brief and “not memorable.” Trump also says, “I was not enthused about the proposal.” Then there’s a lot of not recalling, a vaguely remembering, and a “I have no current recollection,” which is an especially interesting line — did he at one point have a recollection?

Question four has seven parts and is about Russian contacts and other issues surrounding the campaign. The first four parts have to do with Manafort and what Trump knew when. Unfortunately, Trump doesn’t remember the specifics of what he knew at the time. Trump also doesn’t recall/has no recollection of being told of efforts by Russian officials to meet with members of his campaign.

The fifth and final question has eight parts and is about contacts with Russia during the transition period. Of the eight parts, Trump only answered the first, which was about an invitation he declined (though he doesn’t remember being asked) to the World Chess Championship gala. The other seven parts have to do with Flynn’s contacts with Kislyak, Kushner’s contacts with Gorkov, and Prince’s meeting with Dmitriev. Trump just straight-up ignored those questions, not even pulling a “I don’t recall.”

Appendix D

A list of the Special Counsel’s transferred, referred, and completed cases.