D. Why Weren’t Trump’s Enablers Indicted?

One of the great lingering mysteries about Mueller’s treatment of the obstruction issues is why he did not secure indictments of Trump’s enablers when the evidence clearly indicated their involvement in promoting the obstruction that Trump was executing. One prominent example of this is K.T. McFarland, who seemed to act as a go-between for Trump to direct Michael Flynn. It is implausible, I suggest, to believe that McFarland would not have revealed discussions with Flynn and Russian Ambassador Kislyak in meeting with Trump one hour after talking to Flynn about those discussions. II MR-25. As referenced earlier in these posts, Flynn had multiple memory failure about the information he may have discussed with other administration officials and Trump himself. The Russian response to the US sanctions was apparently a matter of considerable importance to Trump and his administration. Given Flynn’s admission of lying about his contacts with Kislyak, it is very hard to conclude that these memory failures were legitimate and that neither Trump nor his principal enablers were kept in the dark.

Beyond all that, McFarland followed Flynn’s directions to tell the Washington Post that no discussion of sanctions had occurred with Kislyak. Mueller specifically says, “McFarland made the call as Flynn had requested although she knew she was providing false information….” II MR-29. No charges were brought against McFarland for her role in this ruse. Why not?

Putting aside the further implausibility of Trump, after a lifetime of litigation and political commentary, denying that he understood the law, one thing is clear: as of January 26, 2017, Don McGahn, White House counsel, explained both 18 USC 1001 (crime to lie to federal government) and the Logan Act (crime for citizen of U.S. to communicate with a foreign government with intent to influence the foreign government in relation to disputes with the U.S. or to defeat the measures of the U.S.). II MR-31.

Rather than extending this already-long narrative about the multiple situations in which credible evidence shows Trump committed obstruction of justice and possibly other crimes, I want to raise some questions about the obstruction investigation that cry out for answers but are not explained in the Mueller Report.

One of the big ones relates to the visits by Acting Attorney General Sally Yates to the White House to explain that the Justice Department had evidence indicating Gen. Flynn had been compromised by his lies about interactions with Russian Ambassador Kislyak. When Yates returned to the White House on January 27, 2017, at the request of White House counsel Don McGahn, he asked to see the information DOJ had on Flynn’s contacts with Kislyak. This information was provided! II MR-33, n. 166. It was reviewed by John Eisenberg, legal advisor to the National Security Council. Why did the Acting AG think it was a good idea to provide the evidence to the White House in light of Trump’s history of denying Russian influence in the election and lying about events related to it? Why would Yates think that the White House would act against Flynn?

As it turned out, that was the same day that Trump invited FBI Director Comey to a private dinner at the White House, disregarding not for the first nor last time, the advice of White House counsel to avoid the appearance of political interference with law enforcement. II MR-33. That, of course, was the dinner at which Trump demanded “loyalty” from Comey. II MR-34. Both Press Secretary Sanders and counsel McGahn adopted Trump’s denials of the “loyalty” demand, thereby making themselves collaborators in what Mueller concluded, based on all the evidence, was a series of Trump lies about what transpired. II MR-35, 36 and 35, n. 183. Yet, neither Sanders nor McGahn was indicted. Why not?

In the end, Trump reluctantly fired Flynn while assuring him that he would be taken care of. II MR-38. The very next day Trump cleared a meeting room of witnesses and asked Comey to let Flynn go. II MR-40. Astoundingly, Jared Kushner, one of those dismissed, claimed he could not remember that Trump asked Comey to remain behind for a private meeting.  II MR-40, n. 233. Trump continued to assure Flynn of his kind regard for him into late March or early April. II MR-44.

Trump continued to lie about the Flynn situation, going so far as to claim he did not recall the “loyalty” meeting at all. II MR-44. Trump insiders Priebus & McGahn minced words regarding Trump’s attempts to call off Comey from the Flynn investigation. II MR-44, n. 270.