If you have been with me, my friend, through the entire series, just skip this paragraph – you know it by heart. If not, may I say that I am a voting, tax-paying citizen who loves to read and longs to know the truth about her government and its leaders? My goal has been to study the Mueller Report (and Volume Two does, indeed, require studying!) for the purpose of first informing myself and then informing the 97% of Americans who will not read the Report.
I created a “cheat sheet” at the beginning of our review of Volume Two because the material is dense and heavy and filled with legal concepts not easily acquired by plain folks like us. I will reproduce that cheat sheet here to get you started; I think a review of these key concepts is a good starting point for us all:
And now, back into the throes of the investigation, picking up Volume Two, an investigation of possible obstruction of justice, where we left off. Let us see whether we have the mental fortitude to get through the entire remaining portion in one go. Then we’ll be on to the Appendices, which will actually cover only the President’s written answers to statements followed by my personal interpretation. As promised, I will forewarn you when the personal interpretation and opinion are coming, so you may look away. Now let’s get back to the evidence and Mueller’s analysis.
The President’s efforts to prevent disclosure of emails about the June 9, 2016 meeting between Russians and senior campaign officials
Mueller overviews the incident like this: “By June 2017, the President became aware of emails setting up the June 9, 2016 meeting between senior campaign officials and Russians who offered derogatory information on Hillary Clinton as ‘part of Russia and its government’s support for Mr. Trump.’ On multiple occasions in late June and early July 2017, the President directed aides not to publicly disclose the emails, and he then dictated a statement about the meeting to be issued by Donald Trump Jr. describing the meeting as about adoption.” Emails about the meeting surfaced at the White House just as the President had begun pressuring Lewandowski to get Sessions to resign.
“As stated in Volume One… the ‘Crown Prosecutor of Russia’ had offered ‘to provide the Trump campaign with some official documents and information that would incriminate Hillary.’ …According to written answers by the President… [he] had no recollection of learning of the meeting or the emails setting it up…any… time before the election.” His campaign had been asked to produce to Congress all emails related to that meeting, but the President declined to be briefed about them by Jared Kushner.
Six days later, Hope Hicks, who had seen the emails and felt they could be very damaging, recommended to the President that they be “proactively” released to the press. “The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter. The President indicated that he did not think the emails would leak, but said they would leak If everyone had access to them.” Hicks tried several times to convince the President to let Donald Trump, Jr. release the emails, but he wouldn’t consider it. “The President believed they would not leak.”
The following week at the G2 Summit, Hicks advised the President the New York Times was preparing to report on the June 9, 2016 meeting, and he told her not to comment. “Hicks thought the President’s reaction was odd because he usually considered not responding to the press the ultimate sin.” On the return flight, when Hicks saw the statement Donald Trump, Jr., was prepared to release concerning the meeting and its purpose, she showed it to the President. “The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: ‘was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.’ Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much. The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption. [He had been told earlier that was the subject of the meeting.]
After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read: It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up.” Trump, Jr. wanted to add “primarily” so it would say we “primarily discussed a program…” His stated concern was “it appears I’m lying later when they inevitably leak something.”
“The statement did not mention the offer of derogatory information about Clinton or any discussion of the Magnitsky Act or U.S. sanctions, which were the principal subjects of the meeting, as described in Volume 1.” When Hicks discovered, moments later, that Priebus also knew about the email trail between Don Jr. and the Russians, she again implored the President to “get out in front of the story,” but he said, “You’ve given a statement. We’re done.” His attorney instructed her not to speak to the New York Times.
“The Times story also quoted a statement from Corallo on behalf of the President’s legal team suggesting that the meeting might have been a setup by individuals working with the firm that produced the Steele reporting. Corallo also worked with Circa News on a story published an hour later that questioned whether Democratic operatives had arranged the June 9 meeting to create the appearance of improper connections between Russia and Trump family members.”
When it became clear that the Times had the content of the emails and reported that the President had been personally involved in drafting the statement on Air Force One, “the President’s personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr.’s statement.” Some months later the President pointed out that the New York Times is not “a high tribunal of judges.” On July 9, 2017, the President, in an interview with the New York Times, criticized Jeff Sessions and then “addressed the June 9, 2016, meeting and said he ‘didn’t know anything about the meeting’ at the time. The President added, ‘As I’ve 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?’”
How does Mueller analyze this consideration?
Was an obstructive act committed? “Each of these efforts by the President … would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel… the evidence does not establish that the President took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the Special Counsel.” His conversations were related to “developing a press strategy.”
Was there a nexus to an official proceeding? The evidence, as noted above, does not support this.
Was there obstructive intent? The evidence does not support such an intent.
The President’s further efforts to have the Attorney General take over the investigation
“From summer 2017 through 2018, the President attempted to have Attorney General Sessions reverse his recusal, take control of the Special Counsel’s investigation, and order an investigation of Hillary Clinton… at some point after the May 17, 2017 appointment of the Special Counsel, Sessions recalled, the President called him at home and asked if Sessions would ‘unrecuse’ himself. According to Sessions, the President asked him to reverse his recusal so that Sessions could direct the Department of Justice to investigate and prosecute Hillary Clinton.”
In July 2017 the President asked Rob Porter whether he thought Associate Attorney General Rachal Brand was good, tough and ‘on the team’ and whether she would want to be Attorney General one day.” He asked Porter to sound her out about “taking responsibility for the investigation and being Attorney General.” Porter did not contact Brand. “In asking him to reach out to Brand, Porter understood the President to want to find someone to end the Russia investigation or fire the Special Counsel, although the President never said so explicitly.”
In October 2016 President Trump asked Sessions point-blank to investigate Clinton’s emails: “Don’t have to tell us; just take a look.” Two days later began a presidential tweet-storm that would last 10 days or more, referring to a “Comey fix” related to Clinton emails and “ANGER and UNITY over lack of investigation.” On December 6, 2017, in the presence of Rob Porter, the President said this to Jeff Sessions: “I don’t know if you could un-recuse yourself. You’d be a hero. Not telling you to do anything. Dershowitz says POTUS can get involved. Can order AG to investigate. I don’t want to get involved. I’m not going to get involved. I’m not going to do anything or direct you to do anything. I just want to be treated fairly.
“Over the next several months, the President continued to criticize Sessions in tweets and media interviews and on several occasions appeared to publicly encourage him to take action in the Russia investigation despite his recusal… On August 1, 2018, the President tweeted that ‘Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now’… [and a few days later] ’Come on, Jeff, you can do it. The country’s waiting.’ On November 7, the day after the mid-term elections, the President replaced Sessions with Sessions’ chief of staff as Acting Attorney General.”
Now for the analysis:
Was an obstructive act committed? “The inquiry would not turn on what Attorney General Sessions would actually do if unrecused, but on whether the efforts to reverse his recusal would naturally have had the effect of impeding the Russia investigation… The duration of the President’s efforts, which spanned from March 2017 to August 2018, and the fact that the President repeatedly criticized Sessions in public and in private for failing to tell the President that he would have to recuse is relevant to assessing whether the President’s efforts to have Sessions unrecuse could qualify as obstructive acts.”
Was there a nexus to an official proceeding? “As described above, by mid-June 2017, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge. In addition, in July 2017, a different grand jury supervised by the Special Counsel was empaneled in the District of Columbia, and the press reported on the existence of this grand jury in early August 2017. Whether the conduct towards the Attorney General would have a foreseeable impact on those proceedings turns on much of the same evidence discussed above with respect to the obstructive act element.”
Was there obstructive intent? Here Mueller quickly summarizes all of the evidence he has laid out in the section and then states: “A reasonable inference from those statements and the President’s actions is that the President believed that an unrecused Attorney General would play a protective role and could shield the President from the ongoing Russia investigation.”
The President orders McGahn to deny that the President tried to fire the Special Counsel
“In late January 2018, the media reported that in June 2017 the President had ordered McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn had refused, saying he would quit instead. After the story broke, the President, through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel.
“Each time he was approached, McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed. The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel. McGahn refused and insisted his memory of the President’s direction to remove the Special Counsel was accurate. In that same meeting, the President challenged McGahn for taking notes of his discussions with the President and asked why he had told Special Counsel investigators that he had been directed to have the Special Counsel removed.”
When this story first broke in the New York Times, the President responded: “Fake news, folks. Fake news. A typical New York Times fake story.” The next day the Washington Post reported the same story. “On January 26, 2018, the President’s personal counsel called McGahn’s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest. McGahn’s attorney [relayed] that McGahn would not make a statement.
“On February 4, 2018, Priebus appeared on Meet the Pressand said he had not heard the President say that he wanted the Special Counsel fired. After Priebus’s appearance, the President called Priebus and said he did a great job on Meet the Press. The President also told Priebus that the President had ‘never said any of those things about’ the Special Counsel.
The next day the President, referring to the Times article as “bullshit,” directed Rob Porter to have Don McGahn, whom he now called “a lying bastard,” write a letter for the record stating that the President had not sought to terminate the Special Counsel. “McGahn told Porter that the President had been insistent on firing the Special Counsel and that McGahn had planned to resign rather than carry out the order, although he had not personally told the President he intended to quit.” McGahn refused to write the letter.
The following day McGahn was summoned to the Oval Office and was told in advance by the President’s personal counsel that the President was going to be speaking with McGahn and “McGahn could not resign no matter what happened in the meeting.” The President and McGahn went ‘round and ‘round, with the former insisting he had never actually directed that the Special Counsel should be fired, and the latter insisting the President’s directives could be interpreted no other way. Kelly, who was present, later said the meeting was “a little tense.” At this point McGahn reminded the President that their conversations were not protected by attorney-client privilege, after which ensued a back-and-forth about whether lawyers should take notes. The President was not in favor of such and insisted Roy Cohn had never taken notes. McGahn reminded him that “I’m a real lawyer.”
“After the Oval Office meeting concluded, Kelly recalled McGahn telling him that McGahn and the President ‘did have that conversation’ about removing the Special Counsel.” Later the President’s personal counsel called McGahn to say the President was “fine” with him.
So, what of signs of obstruction of justice might we find? Here is Mueller’s analysis – this time pretty lengthy and all really important for us to read:
Was an obstructive act committed? The crux of the question is whether the President’s “repeated efforts” to get McGahn to deny ever being told to terminate the Special Counsel might have “had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a witness.” It appears that the President and McGahn simply had different recollections of the series of conversations about this topic. However, “substantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed, including the timing and context of the President’s directive; the manner in which McGahn reacted; and the fact that the President had been told the conflicts were insubstantial, were being considered by the Department of Justice, and should be raised with the President’s personal counsel rather than brought to McGahn. In addition, the President’s subsequent denials that he had told McGahn to have the Special Counsel removed were carefully worded…
“And when the President spoke with McGahn in the Oval Office, he focused on whether he had used the word ‘fire’ saying, ‘I never said to fire Mueller. I never said fire. Did I say the word?’ The President’s assertion in the Oval Office meeting that he had never directed McGahn to have the Special Counsel removed thus runs counter to the evidence… by the time of the Oval Office meeting the President was aware that McGahn did not think the story was false and did not want to issue a statement or create a written record denying facts that McGahn believed to be true. The President nevertheless persisted and asked McGahn torepudiate facts that McGahn had repeatedly said were accurate.”
Was there nexus to an official proceeding?“By January 2018, the Special Counsel’s… grand jury” investigation had returned “several indictments… On January 8, 2018, the Special Counsel’s Office provided the [President’s] counsel with a detailed list of topics for a possible interview with the President. The President knew that McGahn had… already been interviewed by Special Counsel investigators,” and he demonstrated “he knew that McGahn had told the Special Counsel’s Office about the President’s effort to remove the Special Counsel. The President challenged McGahn for disclosing that information and for taking notes that he viewed as creating unnecessary legal exposure. That evidence indicates the President’s… awareness that the June 17,2017, events were relevant to the Special Counsel’s investigation and any grand jury investigation that might grow out of it.” Would the President’s actions have “the natural tendency to affect such a proceeding or hinder, delay, or prevent the communication of information to investigators? …Because McGahn had repeatedly spoken to investigators and the obstruction inquiry was not complete, it was foreseeable that he would be interviewed again on obstruction-related topics… The President’s efforts to have McGahn write a letter ‘for our records’ approximately ten days after the stories had come out - well past the typical time to issue a correction for a news story - indicates the President was not focused solely on a press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it.”
Was there obstructive intent?“Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation… The President made repeated attempts to get McGahn to change his story… his counsel was sufficiently alarmed by the prospect of the President’s meeting with McGahn that he… said that McGahn could not resign… the President brought up the Special Counsel investigation in his Oval Office meeting with McGahn… The President’s statements reflect his understanding - and his displeasure – that those events would be part of an obstruction-of-justice inquiry.”
Okay, time for a stretch break. Let’s pause now and play a round of golf or make a sandwich or walk the dog. That’s enough for today. Next we will review the final two evidentiary considerations in the obstruction portion and then have a look at the important closing material Mueller puts at the end of Volume Two. Look for it in Here is your Mueller Report Part IID. I The last two considerations are fascinating and important, as is the discussion of the legal defense mounted by the President’s attorneys. I will see you in Part IID after you are refreshed.