Here is your Mueller Report - Part IIA
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As I explained in Part I, I read the Mueller report because I am a tax-paying, voting U.S. citizen, and I have a civic duty to know the truth. While I believe all Americans have that duty, I understand the vast majority will not read the 448-page report. For them I offer my own shorter report, as objective as I can possibly make it without sacrificing my personal “style.” I strongly recommend reading Here is your Mueller Report - Part I first, but that is not absolutely necessary. Part I covers Volume One of the Mueller Report. This article covers about one-fourth of Volume Two - and they are vastly different, those two volumes. Part IIB, Part IIC and Part IID will complete the review of Mueller’s Volume II, and Part III will cover the appendices, which include the written answers of President Trump.
Now let’s dig into Volume II, and please assume, in almost every case, that boldface, underlining or italics has been added by me for the purposes of emphasis and clarity. When I quote, you may assume I am quoting verbatim from the Mueller Report.
Volume Two is a careful analysis of actions by President Trump that might or might not be construed legally as obstruction of justice. This section is long and, to me, tedious, most likely because I have heard almost every single bit of this on the news, over and over, ad nauseum, for months. I suspect you would have the same reaction. That said, Mueller offers the evidence and its analysis in a disciplined and consistent way, including the following:
Background and evidentiary principles (I’ll explain this later, because I think it’s interesting, and I believe it’s important to know how each consideration is presented.)
Factual results of obstruction investigation
Campaign response about Russian support for Trump
President’s conduct concerning the investigation of Michael Flynn
President’s reaction after FBI publicly confirmed he was under investigation
Firing of James Comey: Events leading up to and surrounding
President’s efforts to remove the Special Counsel
President’s efforts to curtail the Special Counsel investigation
President’s efforts to prevent disclosures about June 9, 2016 Trump Tower meeting
President’s efforts to have Attorney General take over the special investigation
President’s order to McGahn to deny attempt to fire Special Counsel
President’s orders to Flynn, Manafort and _________(redacted)
President’s conduct toward Michael Cohen
Overarching factual issues
Legal defenses to the application of obstruction of justice statutes to the president (This is the section that required every bit of stamina I could muster: case after settled case, each referring to a particular statute, to establish precedent. Reading this stuff was painful; I did so only because I knew you, dear reader, would be holding me accountable.)
Conclusion: One paragraph – and oh, so important! You cannot imagine the sigh of relief I uttered when I realized I was coming to the end of the journey. I will present it verbatim below.
As I began summarizing the content of Volume Two, I quickly realized that even my best efforts at brevity and clarity would likely be overwhelmed by the intricacy of this important material. So I created this “cheat sheet” as a touchpoint to help you keep your place. Warning: Don’t just read the cheat sheet and think you understand the Mueller Report. Consider this your “Fit Bit” – it doesn’t take the place of the workout.
Terms Defined and Parameters Established
The Mueller team first reminds us of the position of the Office of Legal Counsel (“OLC” as we often hear it called) that a sitting president cannot be prosecuted. However, “it recognizes that a criminal investigation during the president’s term is permissible.” Mueller explains: “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes… Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”
I think these opening statements are really important and easily misconstrued by political bias. So, I’m going to try to restate that a little more simply (and you let me know if I’ve got it wrong): We decided that, since we would not be able to prosecute a sitting president, we would not go down a road that might result in a judgment that the President committed crimes. It seems unfair to accuse someone if no charges can be brought [and refuted, I would think]. So, Mueller’s team seems to have decided up front not to pursue the possibility of a finding of criminal charges against Donald Trump.
Now let’s consider Mueller’s next caveat. “… the possibility of the report’s public disclosure… counseled against potentially determining ‘that the person’s conduct constitutes a federal offense.’” To me that says that, since we knew we were not going to bring a criminal judgment against a sitting president, we didn’t even want to pursue an investigation that might cast a negative shadow on the president, should the report become public. Sounds pretty fair and kind to me. Do you think I have interpreted that correctly?
Mueller then sums up like this: “If we had confidence… that the President did not commit obstruction of justice, we would so state… we are unable to reach that judgment. The evidence we obtained… 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.”
I’m pressing this point because I believe powerful individuals who openly support President Trump, as well as media figures known to be loyal to him, have asserted that this report “exonerates President Trump.” Can we agree at the outset here that they are misstating the case? Essentially Mueller says that, if I could tell you he’s innocent, I sure would, but it’s impossible to determine that, so we are neither condemning nor exonerating this president of the crime of obstruction of justice.
Do you see now why Volume Two moves so slowly? Stay with me though, because it’s important, and I promise not to deliver anything I don’t think you really need to read. Mueller’s introduction goes on to say that “the overall pattern of the President’s conduct towards the investigation can shed light on the nature of the President’s acts and the inferences that can be drawn about his intent.”
Mueller then explains (and we’re still in the introduction, folks) that because DOJ had “not definitively resolved” the President’s constitutional defenses arising from his status as head of the Executive Branch, the investigation relied instead on the separation of powers precedent as established by the Supreme Court. Then he illustrates with an example: In the case of bribing a witness or suborning perjury, the President’s constitutional authority is not implicated. I think he means that bribing a witness or asking a witness to lie is not within the constitutional authority of the president and therefore could be charged as a crime (except that we already know Mueller has chosen not to go down that road due to the OLC limitation).
The report explains that “we concluded that Congress has authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice… the term ‘corruptly’ sets a demanding standard.” There follows a long explanation of the president’s freedom to perform his duties, the system of checks and balances and more. I found it perfectly sensible, but quite tedious; I’m going to spare you.
Finally the Executive Summary concludes: “we did not draw ultimate conclusions about the President’s conduct… 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… 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.” And so the Executive Summary doubles down on the introduction’s assertion that we are neither charging obstruction of justice nor exonerating the President of it.
As Mueller lays out the duties with which he has been tasked, he lists investigation of “perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses… we do not draw conclusions on the ultimate questions that govern a prosecutorial decision.” And there we have it for the third time!
What is Obstruction of Justice?
Mueller defines a lot of terms (which I love), but I want to focus now on his definition of the three requirements for “obstruction of justice.” He will use these three requirements to test every act of President Trump that was measured for possible obstruction. Here are the three requirements:
An obstructive act must have been committed, an act “producing an effect that prevents justice from being duly administered, regardless of the means employed.” The act can be “subtle or circuitous” or clever – it can even be a lawful act committed with an improper motive.
A nexus (connection) to a pending or contemplated official proceeding must be established: There must be a clear relationship in time, cause or logic between the obstructive act and the proceeding or inquiry to be obstructed. The subject must act in a manner that is likely to obstruct justice – simply having an evil intent is not enough. And the proceeding doesn’t have to actually be impeded when all is said and done.
Intent must be established: Does the subject have a personal stake in the outcome? Intent to obstruct justice means acting knowingly and dishonestly or with an improper motive to subvert, impede or obstruct the relevant proceeding.
So, we move to witness tampering specifically, with this definition: “…it is sufficient that the defendant asked a potential witness to lie to investigators in contemplation of a likely federal investigation into its conduct.” Note that Mueller cites many references to establish his definitions. I read them (in agony), and I will not ask you to do so. It’s not that I don’t think they are important; it’s just that I know you have a life, right? The examples he provides are interesting, but… well, you know.
In explaining obstruction of justice, the Report states: “the prosecution need not prove that the due administration of justice was actually obstructed or impeded.”
Now we come to those “investigative and evidentiary considerations,” listed below, each summarized by me:
Request for James Comey’s loyalty one day after a briefing about Michael Flynn’s talk with Ambassador Kislyak
Request that Comey not pursue the Flynn investigation
Request Comey tell the public the president was not under investigation
Outreach to directors of National Intelligence, NSA and CIA about the FBI’s Russia investigation
Statement that Russia was a factor in terminating Comey
Misleading statement about the June 9, 2016, Trump Tower meeting
Based on the above considerations, the Mueller team determined “there was a sufficient factual and legal basis to further investigate potential obstruction of justice issues involving the President.” Interestingly, I learned that, while President Trump agreed to provide written answers to questions about Russia, he did not agree to provide answers to obstruction questions. (I didn’t know he’d been asked to answer more questions than the five that will be reviewed in Here is your Mueller Report Part III.) The Report states that, “after more than a year of discussion, the President declined to be interviewed.” The team chose not to issue a grand jury subpoena to the President, which they “had the authority and legal justification to issue,” because they felt it would only further delay their work. The large amount of evidence made the President’s testimony unnecessary, they assert.
Now follows a painfully long discussion about the establishment of credibility which I am not going to try to reproduce here. I did find one curious reference, however, to a 2010 case that sets out “the well-settled principle that false exculpatory statements are evidence – often strong evidence – of guilt.” You know, like saying, “No, Mom, I did not even open the cookie jar… Please notice that I have no cookies behind my back… I never once told you I want a cookie… I am incensed, Mother, that you would accuse me of even thinking of stealing a cookie. This is a witch hunt!”
What was Actually Investigated?
We are now apprised of the key events investigated:
The President’s conduct concerning the FBI investigation of Michael Flynn
The President’s reaction to public confirmation of the Russia investigation
Events leading up to and surrounding the termination of FBI Director Comey
Efforts to terminate the Special Counsel
Efforts to curtail the scope of the Special Counsel’s investigation
Efforts to prevent disclosure of information about the June 9, 2016, Trump Tower meeting between Russians and senior campaign officials
Efforts to have the Attorney General unrecuse [I seriously doubt that is a word.]
Conduct towards McGahn, Cohen, and other witnesses
The Report restates many of the actions of the Trump staff as detailed in Volume One, but now we see a connection to their actions and the President’s state of mind and intent in relationship to their activities, as Mueller points out. I will outline what the volume contains, occasionally stopping to offer a full sample of the testimony (or we’ll be here forever).
The campaign’s response to reports about Russian support for Trump: By early 2016, Trump had “distinguished himself among Republican candidates by speaking of closer ties with Russia… praising Putin as a ‘strong leader.’ … the media reported that several Trump campaign advisors appeared to have ties with Russia.” And then there was that change to “the Republican platform’s stance on giving ‘weapons to Ukraine to fight Russian and rebel forces.’ In June and July 2016 came the hacks of the DNC and the posts of stolen emails by WikiLeaks. “Within the Trump Campaign, aides reacted with enthusiasm to reports of the hacks… Trump told [Rick] Gates that more releases of damaging information would be coming… and in the summer of 2016, the Campaign was planning a communications strategy based on the possible release of Clinton emails by WikiLeaks.
“On July 26, 2016, Trump tweeted that … he had ZERO investments in Russia…[he] stated that it would give him ‘no pause’ if Russia had Clinton’s emails… ‘Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing… in response to a question about whether he would recognize Crimea as Russian territory and consider lifting sanctions, Trump replied, ‘We’ll be looking at that. Yeah, we’ll be looking.’ During the press conference, Trump repeated ‘I have nothing to do with Russia’ five times… The Trump organization, however, had been pursuing a building project in Moscow… from approximately September 2015 through June 2016.” He later explained to Cohen: “Why mention it if it’s not a deal [yet]?”
Both Manafort and Page were asked to resign from the campaign in August 2016 due to their recently exposed ties to Russia. Two months later, asked whether the Trump campaign was in cahoots with WikiLeaks, he responded “Nothing could be further from the truth.”
The day after the election, when Russian officials told the press they’d been in contact with Trump campaign folks all along and right up to the election [which volume I shows to be true], Hope Hicks denied it: “There was no communication between the campaign and any foreign entity during the campaign.”
On December 18 Priebus said “of course we didn’t interface with the Russians. This whole thing is a spin job.” The next day Obama placed sanctions on Russia for interfering with our election. The day after that, Trump told several of his key staff he believed Obama had done this to delegitimize his presidency. On Jan. 6 the intelligence community released a statement that they had high confidence Russia had intervened with the goal of harming Clinton’s electability with “a clear preference for Trump.” Numerous aides stated that Trump saw this Russian interference story as an attack on the legitimacy of his election as president.
Just after the Obama Administration announced sanctions against Russia for “cyber operations aimed at the U.S. election… Trump [now the President-elect] said, ‘I think we ought to get on with our lives.’” Trump advisors said the U.S. intelligence community’s assessment of Russian interference posed “a threat to the legitimacy of hi electoral victory.” Hope Hicks referred to it as his “Achilles heel.”
Note that Mueller did not impose his 3-part analysis on this the first case presented. I assume that’s because it is not specifically about President Trump’s conduct.
The President’s conduct concerning the investigation of Michael Flynn: Michael Flynn discussed sanctions with Ambassador Kislyak, asking Russia not to retaliate for the sanctions President Obama had just imposed. He “told McFarland that the Russian response to the sanctions was not going to be escalatory because Russia wanted a good relationship with the Trump administration.” The Russian response surprised the U.S. intelligence community, which soon became aware of Flynn’s conversations with Kislyak and opened an investigation. On January 6, 2017, they briefed the President-elect on the issue and the investigation. In the following weeks three congressional investigations were launched.
When the press reported Flynn’s conversations with Kislyak, “the President-elect expressed anger,” and Priebus told Flynn to “kill the story.” Flynn directed K.T. McFarland to call the Washington Post and “kill the story.” McFarland “made the call as Flynn had requested, although she knew she was providing false information… The public statements of incoming Administration officials denying that Flynn and Kislyak had discussed sanctions alarmed senior DOJ officials, who were aware that the statements were not true.”
On January 24 Flynn lied to the FBI about this, and Sally Yates made her famous trip to the White House to inform them of the problem. “Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, ‘not again, this guy, this stuff.” That evening Trump asked senior advisors and the Director of National Intelligence what they thought of FBI Director James Comey. Soon after came the President’s infamous dinner with Comey, but let’s finish the Flynn story first.
Flynn resigned.
On February 14, 2017, the day after Michael Flynn resigned, the President had lunch at the White House with New Jersey Governor Chris Christie. “According to Christie, at one point during the lunch the President said, ‘Now that we fired Flynn, the Russia thing is over.’ Christie laughed and responded, ‘No way.’ He said, ‘this Russia thing is far from over, and we’ll be here on Valentine’s Day 2018 talking about this.’ The President said, ‘[w]hat do you mean? Flynn met with the Russians. That was the problem. I fired Flynn. It’s over.’… Christie recalled he told the president not to talk about the investigation even if he was frustrated at times. Christie also told the President that he would never be able to get rid of Flynn, like gum on the bottom of your shoe.
“Towards the end of the lunch, the President brought up Comey and asked if Christie was still friendly with him. Christie said he was. The President told Christie to call Comey and tell him that the President ‘really like[s] him. Tell him he’s part of the team.’ At the end of the lunch, the President repeated his request that Christie reach out to Comey. Christie had no intention of complying with the President’s request that he contact Comey. He thought the President’s request was ‘nonsensical’ and Christie did not want to put Comey in the position of having to receive such a phone call. Christie thought it would have been uncomfortable to pass on that message.”
Just a reminder to my reader: Each evidentiary statement is footnoted in the Report. One particular footnote is especially concerning. On February 13, 2019, Chris Christie told investigators that he “also recalled Flynn called Kushner, who was at the lunch, and complained about what Spicer had said about him in his press briefing that day. Kushner told words to the effect of, ‘You know the President respects you. The President cares about you. I’ll get the President to send out a positive tweet about you later.’ Kushner looked at the President when he mentioned the tweet, and the President nodded his assent.”
Apparently also during that lunch with Chris Christie “the President said he did not direct Flynn to discuss sanctions with Kislyak. ‘But it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.’”
[What???]
The day after President Trump told K.T. McFarland she would no longer be Deputy National Security Advisor but could have an ambassadorship to Singapore, he asked her to draft a statement saying that Trump had not asked Flynn to speak to Kislyak about not retaliating for the sanctions. She told Priebus she didn’t know whether or not that was true. White House Counsel advised her not to draft the statement. She filed a memo for the record about the request.
“Around the same time, the President asked Priebus to reach out to Flynn and let him know that the President still cared about him. Priebus called Flynn and said that he was checking in and that Flynn was an American hero. Priebus thought the President did not want Flynn saying bad things about him.” Shortly thereafter, “following news that Flynn had offered to testify before the FBI and congressional investigators in exchange for immunity, the President tweeted, ‘Mike should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!’ In late March or early April, the President asked McFarland to pass a message to Flynn telling him the President felt bad for him and should stay strong.”
The testimony about the Flynn resignation (and there is much more!) is now analyzed according to the formula above, covering four full pages. I will do my best to provide the highlights, but remember the Mueller does not intend to pursue a path that will actually charge obstruction, so it’s all pretty inconclusive.
Was an obstructive act committed? Did the President’s statements to Comey have the tendency to impede the administration of justice by shutting down an inquiry that could result in a grand jury investigation and a criminal charge? “…substantial evidence corroborates Comey’s account…Comey wrote a detailed memorandum…Comey provided testimony… under oath… [C]orroborated circumstances… support Comey’s description of the event…And the President acknowledged to Priebus and McGahn that he in fact spoke to Comey about Flynn in their one-on-one meeting… the President’s decision to clear the room and, in particular, exclude the Attorney General…” But couldthose statements impede the Flynn investigation? “… the circumstances of the conversation show that the President was asking Comey to close the FBI’s investigation into Flynn…
Was there a connection to an ongoing proceeding? Although no grand jury subpoenas had been issued regarding Flynn, McGahn had informed the President that Flynn’s conduct could violate federal law. “In addition, the President’s instruction to the FBI Director to ‘let Flynn go’ suggests his awareness that Flynn could face criminal exposure…and was at risk of prosecution.”
Was there an obstructive intent? Did the President have a personal stake in the outcome? “Some evidence suggests that the President knew about the existence and content of Flynn’s calls… but the evidence is inconclusive” and unreliable. “Our investigation did not produce evidence that… the President knew about Flynn’s discussion of sanctions… also does not establish that Flynn otherwise possessed information damaging to the President” that would incentivize the president. “Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation… Flynn’s firing occurred at a time when the media and Congress were raising questions about Russia’s interference in the election… the President told Christie that firing Flynn would put an end to the Russia inquiries… the President asked Comey to ‘let Flynn go.’…
“Priebus indicated that the President’s post-firing expressions of support for Flynn were motivated by the President’s desire to keep Flynn from saying negative things about him… The way in which the President communicated the request to Comey is also relevant to understanding the President’s intent.” [Here Mueller retraces all the steps related to the various Trump-Comey conversations; I think you know them.] “And the President later denied that he cleared the room and asked Comey to ‘let Flynn go’ – a denial that would have been unnecessary if he believed his request was… proper… Finally, the President’s effort to have McFarland write an internal email denying that the President had directed Flynn to discuss sanctions with Kislyak highlights the President’s concern about being associated with Flynn’s conduct…”
Okay, dear reader, I am now going to enforce a stretch break. This is surely a demanding read, and I think you should take a little break before we move on to the next evidentiary consideration. Therefore I am calling a temporary halt to our review of Volume Two, and we will pick it up in the next installment, Here is your Mueller Report Part IIB.