Here is your Mueller Report - Part IIB

This is the effort of one tax-paying, voting citizen to assist the vast majority of other U.S. tax payers/voters who will never read the 448-page Mueller Report. It is my conviction that we, as voters, have an obligation to get as close to the truth as possible. In addition, since I have paid my taxes religiously all my life, I feel a right to know the truth. I like to read, so I’m happy to share with you that truth, found in the Mueller Report, to the best of my lay-person’s ability.

Now, I am beginning with the optimistic assumption you have read Part I and Part IIA. I sincerely recommend you read this series in order. That said, you may skip Part I (although it is the most interesting, readable and shocking), but you really ought to read Part IIA before you launch into this one. Much introductory and background explanation is provided in that article; it will greatly enhance your reading of this material, and I’m not going to repeat it all. It includes the 3-part definition of obstruction of justice and the full list of the 11 evidentiary considerations examined over the period of the investigation. What I will offer at the outset, though, is the brief “cheat sheet” I created as a guide for Part IIA. Here it is:

Let’s re-enter Volume II of the Mueller Report now, following the same pattern: I will extract from the report key information, sparing you whatever I believe you can ignore (including most footnotes, unless they’re fascinating) offering the cogent parts of the evidence followed by the analysis. Assume quoted material was lifted verbatim from the Report. Assume boldface, italics and underlining have been added by me for emphasis. And bear in mind that I am only human. 

We covered the first two considerations in Part IIA, so let’s jump right into the third, remembering that Mueller had already announced, up front, that he was not going to try to draw conclusions about criminal conduct.

President reacts to public confirmation of the FBI’s Russia investigation: In March 2017 thePresident learned that Jeff Sessions was threatening to recuse himself from the Russia investigation, since he had had several contacts with Russians during the campaign and transition (something he hadn’t disclosed in his confirmation hearing). Trump “tried to prevent the recusal.” At the same time, Comey publicly disclosed the existence of the FBI’s Russia investigation. The White House Counsel’s office’s internal notes the next day advised “no contact w/Sessions” and “No comms/Serious concerns about obstruction.” The following day the President told Priebus and Bannon, “I don’t have a lawyer… and brought up Roy Cohn, stating that he wished Cohn was his attorney… That weekend… the President pulled him [Sessions] aside… and suggested that Sessions should ‘unrecuse’ from the Russia investigation.”

On March 9, 2017, Comey briefed congressional leaders about the FBI’s investigation of Russian interference. “…notes taken by Annie Donaldson, then McGahn’s chief of staff, on March 12, 2017, state ‘POTUS in panic/chaos…need binders to put in front of POTUS. All things related to Russia.’” On March 20, when the President had already “expressed frustration with Comey,” the latter testified to the House Permanent Select Intelligence Committee regarding the Russia investigation. “McGahn said the President thought Comey was acting like ‘his own branch of government.’” Press reports then suggested the FBI was investigating the President, which Comey had not said. “… the President was beside himself” say notes from the White House Counsel’s office. “…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 following Comey’s… testimony, the President repeatedly asked intelligence community officials to push back publicly on any suggestion that the President had a connection to the Russian election-interference effort…On at least two occasions, the President began Presidential Daily Briefings by stating that there was no collusion with Russia and he hoped a press statement to that effect could be issued.” On March 20 the President “asked Comey what could be done to ‘lift the cloud.’” On April 11 the President again called Comey to request a public statement that he was not under investigation, adding “Because I have been very loyal to you, very loyal, we had that thing, you know.”

After presenting all of the evidence, Mueller applies the three-part test of obstructive act, nexus to a proceeding, and intent to obstruct. Let’s take a look:

1. Was an obstructive act committed? While the President repeatedly reached out to intelligence agency leaders to discuss the FBI investigation, witnesses had different recollections of the content, and they “were not interpreted by the officials who received them as directives to improperly interfere with the investigation.”

2. Was there a connection to an official proceeding? Although no grand jury proceeding was underway, Comey had announced the FBI investigation into Russian meddling and noted that it “would include an assessment of whether any crimes were committed.”

3. Was there an obstructive intent? “Evidence does not establish that President Trump asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation,” but his attempt to prevent Sessions’s recusal and his reaching out to several key leaders following Comey’s announcement help us understand the motive behind his actions. The President remained focused on the possibility that the FBI investigation might de-legitimize his presidency, and he did speak of previous presidents’ (Kennedy’s and Obama’s) ability “to direct the course of criminal investigations. “

Once Comey announced the Russia investigation, the President was “beside himself” and angry, reached out to numerous intelligence agency leaders and finally, against legal advice, to Comey himself. He continued to complain about the investigation.

The termination of FBI Director Comey: When, in his May 3, 2017, testimony to Congress, Comey failed to state that the President was not under investigation, “The President became very upset and directed his anger at Sessions. According to notes… the President said, ‘This is terrible Jeff. It’s all because you recused. AG is supposed to be most important appointment. Kennedy appointed his brother. Obama appointed Holder. I appointed you and you recused yourself. You left me on an island. I can’t do anything.’” Sessions suggested “a new start at the FBI” and that the President should consider replacing Comey. Bannon recalled the President “brought Comey up with him at least eight times on May 3 and May 4, 2017… ‘He told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.’” 

On May 5 the President told his family and top advisors that “he wanted to remove Comey.” He and Stephen Miller drafted a letter to Comey. “McGahn and Dhillon urged the President to permit Comey to resign, but the President was adamant he be fired… The President told Rosenstein to draft a memorandum… to include… the fact that Comey had refused to confirm that the President was not personally under investigation.” Rosenstein later told colleagues that “his own reasons for replacing Comey were ‘not the President’s reasons.’ … the President liked the DOJ letters… the White House Counsel’s Office [felt] the President’s original termination letter should ‘not see the light of day’ and that it would be better to offer ‘no other rationales’ for the firing than what was in Rosenstein’s and Sessions’s memoranda.” Against counsel’s advice, the President did insist that his letter firing Comey state that Comey had informed him three times that he was not under investigation. 

“The President told [FBI Deputy Director] Andrew McCabe that he had fired Comey because of the decisions Comey had made in the Clinton email investigation and for many other reasons… The President also asked McCabe whether many people in the FBI disliked Comey and whether McCabe was part of the ‘resistance’ that had disagreed with Comey’s decisions in the Clinton investigation… Later that evening, the President told his communications team he was unhappy with the press coverage of Comey’s termination and ordered them to go out and defend him…the White House wanted to put out a statement saying that it was Rosenstein’s idea to fire Comey. Rosenstein told other DOJ officials that he would not participate in putting out a ‘false story.’” Asked by the President to do a press conference, Rosenstein said that “if the press asked him, he would tell the truth that Comey’s firing was not his idea… Rosenstein was upset that his memorandum was being portrayed as the reason for Comey’s termination.” 

On May 9, Spicer told reporters “It was all [Rosenstein]. No one from the White House. It was a DOJ decision.” The next day Trump met with Kislyak and Lavrov in the Oval Office and told them “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off… I’m not under investigation.” Then Trump called McCabe and asked whether he “should visit FBI headquarters and make a speech to employees. The President said he had received ‘hundreds’ of messages from FBI employees indicating their support for terminating Comey… [and] that Comey should not have been permitted to travel back to Washington, DC on the FBI’s airplane… and that he did not want Comey ‘in the building again’ even to collect his belongings… [Trump] estimated that at least 80% of the FBI had voted for him, and asked McCabe who he had voted for in the 2016 presidential election.”

A few hours later Sarah Sanders repeated similar statements about “bipartisan” loss of confidence in Comey and “countless members of the FBI” saying the same thing. She also stated that Rosenstein had “decided on his own” to fire Comey and had approached the President about it. The President “told her she did a good job and did not point out any inaccuracies in her comments.” Questioned by the Mueller team, she said her comments were “a slip of the tongue” and made “in the heat of the moment.”

The following day Trump did his famous televised interview with Lester Holt in which he admitted he’d decided to fire Comey before meeting with Rosenstein and Sessions, stating, “…when I decided to do it, I said to myself… you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election they should’ve won.”

And again there follows the three-stage analysis of whether this might be obstruction of justice. Let’s take an abbreviated look:

1.   Was an obstructive act committed? “The act of firing Comey removed the individual overseeing the FBI’s Russia investigation… Firing Comey would qualify as an obstructive act if it had the natural and probable effect of impeding the investigation…” such as “discouraging a successor director.” Firing Comey with no option to resign, banning him from the FBI building, and repeatedly criticizing him in public “had the potential to affect a successor director’s conduct of the investigation.” However, the President told Lester Holt he realized the investigation would still go forward, and he named McCabe acting FBI Director although McCabe had stated he’d worked very closely with Comey.

2.    Was there a nexus to an official proceeding? Was such a proceeding objectively foreseeable and contemplated? Comey had clearly stated the FBI would be investigating possible criminal activity, including the hacking of the DNC’s computers, “a clear criminal offense.” The President knew Flynn was under investigation and might be prosecuted, and “the FBI was asking for transition-period records.” He tweeted that “Mike Flynn should ask for immunity” and passed along a message that Flynn should “stay strong.” The President understood Flynn’s “criminal exposure.” 

3.    Was there obstructive intent? [Mueller devotes a lot of space to this question!] “Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement.” The President referred to this as “the last straw” and it “angered him.” The final termination letter included, against counsel’s advice, the declaration that Comey had told him three times he was not under investigation.

“The President’s other stated rationales for why he fired Comey were not similarly supported by the evidence.” For example, there is no evidence of low morale at the FBI or that “countless” FBI employees supported Comey’s firing. “Other evidence, however, indicates that the President wanted to protect himself from an investigation into his campaign.” He twice mentioned “loyalty” to Comey, and he stated a desire to have an Attorney General whom he could tell “who to investigate.” 

While Volume I shows no proof that the President was involved in any way in the Russian meddling in our election, “the evidence does indicate that a thorough FBI investigation would uncover facts about the Campaign and the President personally that the President could have understood to be crimes and that would give rise to personal and political concerns.” Finally, the President and the White House sought to mislead the press about the rationale for firing James Comey. One could infer he had “concerns about providing the real reason for the firing.”

The President’s efforts to remove the Special Counsel:The appointment of a Special Counsel prompted the President to exclaim “This is the end of my presidency. I’m fucked. How could you let this happen, Jeff? You were supposed to protect me… This is the worst thing that ever happened to me.” [Note that Mueller does not “bleep” out expletives but spells out words exactly as they were reported.] Hope Hicks saw the president shortly after this scene and reported to Mueller “he was extremely upset… She had only seen the president like that one other time, when the Access Hollywood tapes came out during the campaign.” 

The FBI directed the White House to preserve all records related to Comey’s termination. The President sought Sessions’s resignation but then held the letter of resignation in his pocket and asked the Attorney General to stay on. Priebus urged the President not to hold Sessions’s letter, as it gave him “shock collar” control over DOJ. The President showed the letter to aides on a plane en route to the Mideast, but then told Priebus the letter was back at the White House. Ultimately he returned the letter to Sessions with the notation, “not accepted.”

The President continued to insist the Special Counsel had conflicts of interest. “Bannon recalled telling the President that the purported conflicts were ‘ridiculous.’” The President persisted in complaints about conflicts of interest, and McGahn, refusing to call Rosenstein about the subject, advised the President to contact his personal lawyer about his concerns, “but it would look like still trying to meddle in the investigation.” McGahn went so far as to explain that “knocking out Mueller” would be “another fact used to claim obstruction of justice.” On June 13, 2017, Sarah Sanders reported a statement dictated by the President: “… while the president has every right to” fire the Special Counsel, he has “no intention of doing so.”

The following day the Washington Post reported that “the Special Counsel was investigating whether the President had attempted to obstruct justice.” There followed a two day tweet-storm by the President decrying the “greatest witch hunt in American political history.” On June 17, 2017, “the President called McGahn [twice] and directed him to have the Special Counsel removed… McGahn also had made clear to the President that the White House Counsel’s office should not be involved in any effort to press the issue of conflicts.” Not knowing how he might respond if the President called a third time with this demand, “McGahn decided he had to resign.” He actually drove to his office to collect his things, and his chief of staff, Annie Donaldson, prepared to resign along with him. Having spoken to his personal counsel, McGahn called Priebus and told him the President was asking him to do “crazy shit.” Ultimately McGahn chose to stay on.

“Around the same time, Chris Christie recalled a telephone call with the President in which he asked what Christie thought about the President firing the Special Counsel. Christie advised against doing so…”

And now Mueller provides analysis of the above evidence (which is all carefully footnoted, as is evidence throughout the Report, to cite sources by name, date and type of communication).

1. Was an obstructive act committed? Would the firing of the Special Counsel potentially delay further action in the investigation, have a chilling effect on the actions of a replacement Special Counsel, or otherwise impede the investigation? “Substantial evidence…supports the conclusion that the President… directed McGahn to call Rosenstein and have the Special Counsel removed.” Here Mueller quickly summarizes McGahn’s activities detailed above and concludes “those acts would be a highly unusual reaction to a request to convey information…” In fact, the President himself had already raised his “conflicts of interests” concerns with DOJ. The President’s repeated requests to McGahn were “urgent” and occurred on a weekend, when McGahn was at home. In addition, the President had long ago raised the issue of “knocking out Mueller” and made clear to Priebus and Bannon that he was thinking of firing Mueller. He “was looking to use asserted conflicts as a way to terminate the Special Counsel.”

2. Was there a nexus to an official proceeding? “Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.” Mueller catalogues each day’s new development in May and June 217, and then states: “Based on widespread reporting, the President knew that such an investigation could include his request for Comey’s loyalty; his request that Comey ‘let Flynn go’; his outreach to Coats and Rogers; and his termination of Comey and statement to the Russian Foreign Minister that the termination had relieved ‘great pressure’ related to Russia. And on June 16, 2017… the President publicly acknowledged that his conduct was under investigation by a federal prosecutor, tweeting, ‘am being investigated for firing the FBI Director by the man who told me to fire the FBI Director?’”

3. Was there an obstructive intent? “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct and - most immediately, to reports that the President was being investigated for potential obstruction of justice… advisors perceived the President… to be concerned more than anything else about getting out that he was not personally under investigation… When the Washington Post reported that the Special Counsel was investigating the President for obstruction of justice, the President was facing what he had wanted to avoid: a criminal investigation into his own conduct that was the subject of widespread media attention… Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President’s actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story… Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.”

The President’s efforts to curtail the special counsel investigation: “On June 19, 2017, the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only. [my emphasis] 

“One month later, the President met again with Lewandowski and followed up on the request to have Sessions limit the scope of the Russia investigation… The President directed that Sessions should give a speechpublicly announcing: ‘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 b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.’ 

“The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference: ‘Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.’Lewandowski stored this message in his safe at home and never had an opportunity to deliver it to Sessions. He asked someone else to do so.

“Lewandowski recalled that [one month later] the President told him that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired.” Ultimately the person Lewandowski had asked to deliver the message to Sessions (Dearborn) did not deliver it and did not keep the notes Lewandowski had given him. Mueller goes on to detail the numerous meetings and conversations related to trying to get rid of Jeff Sessions as Attorney General.

The President then told Priebus he wanted Jeff Sessions’s letter of resignation on his desk immediately. “Priebus believed that the President’s desire to replace Sessions was driven by the President’s hatred of Sessions’s recusal from the Russia investigation. McGahn told Priebus not to follow the President’s order.” Both Priebus and McGahn were prepared to resign rather than carry out the President’s order. A few hours later “The President agreed to hold off on demanding Sessions’s resignation until after the Sunday shows the next day, to prevent the shows from focusing on the firing.” He did, however, mount a tweet-storm to criticize Sessions. “…in light of the President’s frequent public attacks, 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.”

Mueller now analyzes the President’s efforts to force Sessions to announce that the Special Counsel investigation would be confined to future elections. 

1. Was an obstructive act committed? “Taken together, the President's directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to ‘move forward with investigating election meddling for future elections.’”

2. Was there a nexus to an official proceeding? By the time the President directed Lewandowski to contact Sessions (June 19, 2017), “the existence of a grand jury investigation supervised by the Special Counsel was public knowledge…it would be necessary to show that limiting the Special Counsel’s investigation would have the natural and probably effect of impeding that grand jury proceeding.”

3. Was there an obstructive intent? “Timing and circumstances of the President’s actions support the conclusion that he sought that result.” [the result is stated above: “those investigations would not proceed if the Special Counsel’s jurisdiction were limited to future election interference only”] “The sequence of… events raises an inference that after seeking to terminate the Special Counsel, the President sought to exclude his and his campaign’s conduct from the investigation’s scope… Rather than rely on official channels, the President met with Lewandowski alone… the President also did not contact the Acting Attorney General, who had just testified publicly that there was no cause to remove the Special Counsel.”

Now, dear reader, we are not, by any means, at the end of Volume II. However, this is heavy stuff, and I really do want you to read it carefully and thoughtfully, so I am now going to force another stretch break. We will pick up the Report again in Here is your Mueller Report Part IIC, in which we will continue the journey through Volume Two, looking at material every bit as fascinating as the cases presented here. If you have truly read my entire report thus far, I congratulate you. If it has pushed you directly to the authentic Mueller Report itself, my work here is complete – go to the source, with my blessings, of course!