F. The Inexplicable Treatment of Trump’s Personal Attorneys & Other Enablers
Another unexplained aspect of the Report relates to Trump’s use of his personal attorneys (never identified) to communicate with Flynn and his attorneys. Trump’s personal counsel appear a number of times in the report. II MR 121-122. A fair interpretation of this evidence is that Trump used his personal attorney to try to influence Flynn’s cooperation with the SCO, first with cajoling about how Trump cared about him, then with implied threats about Trump’s presumed anger. A further fair argument can be made that Trump’s personal counsel was a knowing participant in an obstruction effort. Why is this not at least mentioned in the Report?
The Report relegates to II MR-122, n. 839 the extraordinary decision not to try to interview Trump’s personal attorneys “because of attorney-client privilege issues.” Given the active role those lawyers played in some of Trump’s obstructive acts, it is hard to understand a decision not to try to learn something from them. Attorney-client privilege does not protect an attorney who is participating in a criminal enterprise. This is known as the crime-fraud exception to the general privilege rule. If Trump’s personal counsel were actively and knowingly participating in an attempt to obstruct justice by, for example, influencing Gen. Flynn’s testimony or by attempting to unlawfully procure the firing of the Special Counsel, the privilege likely does not apply. It is, moreover, inconceivable that Trump’s attorneys acted on their own without consulting their client. We are left to speculate as to why Mueller did not pursue this seemingly fruitful source of information.
We can’t be sure, of course, whether to credit Rick Gates assertion that Paul Manafort had talked with Trump’s personal counsel and been assured that they would be “taken care of” if they did not talk to the SCO. Mueller, however, clearly believed Gates’ account of these conversations with Manafort. II MR-123 & n. 848, 850. This is a subject that could have been pursued directly with Trump’s counsel if Mueller had been more aggressive in seeking the full body of evidence rather than simply assuming that the privilege would be upheld.
One of Trump’s personal attorneys during this period was Rudy Giuliani who gave multiple interviews in which he suggested Trump might pardon Manafort, then, following the classic Trump playbook, claimed he was misunderstood and not signaling anyone. II MR-124. This was fertile ground to discover whether Trump and Giuliani had mapped out this strategy to obtain Manafort’s silence or other forms of cooperation. A good argument could be made that Trump-Giuliani had waived the attorney-client privilege when Giuliani told the Washington Post that Trump had consulted his attorneys about granting pardons to Manafort. II MR-127. Manafort had some kind of joint defense agreement with Trump and was coordinating his Mueller interviews with Trump’s attorneys. II MR-127. That fact alone warranted taking Giuliani’s testimony under oath. It is all the more compelling because Trump publicly contradicting Giuliani’s statements. II MR-128. Instead, Mueller concludes that the evidence on Trump’s personal participation in all this was inconclusive (II MR-132), an amazing conclusion in light of his decision not to press for an interview of Giuliani and/or Trump.
Mueller digs deep to find alternative explanations for Trump’s comments about the treatment of Manafort. II MR-133. In the totality of circumstances regarding Trump’s repeated litany of claims that he and others were being treated unfairly, this is astonishing, especially considering that at times Trump claimed he knew very little about what these people did for him and the campaign. Normally you can’t have it both ways but Mueller lets Trump get away with it.
Note that there are substantial redactions in this part of the Report for Harm to an Ongoing Matter, suggesting that additional investigations have been farmed out to the US Attorneys’ offices. II MR 128-130.
Trump’s personal attorneys played a further role in Cohen’s false testimony to Congress. II MR-139. A joint defense agreement existed between Cohen and Trump plus other unnamed individuals involved in the Russia investigation. II MR-139. The identity of all the other individuals is not revealed in the Report. Why is this not addressed? The president’s personal attorney played an active role in assuring Cohen that his loyalty to Trump would be rewarded. II MR-140.
Despite the fact that drafts of Cohen’s false testimony to Congress were discussed with members of the Joint Defense Agreement and that false testimony to Congress under oath is a crime, Mueller did not see the drafts because of concerns about the common interest privilege. But it is not clear who raised those concerns. This is another example of Mueller seeming to act as counsel for the defense.
Perhaps because Cohen was in almost daily contact with Trump’s personal attorney about Cohen’s Congressional testimony, Mueller, in this one case, indicates an attempt was made to interview counsel. But the counsel declined, citing “potential privilege concerns.” II MR-143. What precisely those concerns were is not explained. Nor is there any indication that the SCO aggressively pursued this obviously important testimony about an agreement to suppress truthful information being sought by Congress. Who exactly is the “President’s personal counsel” that is referred here? Is it the same person throughout? Trump hired and replaced many attorneys during this time. Why does the SCO not identify these people by name?
This is not the normal or effective way to handle privilege disputes. The privilege-claiming party should be presented with the questions and compelled to explain with specificity why each question cannot be answered even in part because of privilege. Mueller may have gone through this exercise but there is no evidence of that anywhere in the Report.
Further puzzling issues arise from Mueller’s failure to pursue Robert Costello who, in the period following the raid on Cohen’s home and office, was used as a go-between connecting Giuliani and Cohen and assuring Cohen of Trump’s continued favor. II MR-146. Costello’s offering to support secret communications between the White House and Cohen appears to have been of no concern at the SCO. One question is which personal counsel to the President was assuring Cohen that if he continued lying, Trump would protect him? Why does Mueller protect the identity of President’s personal attorney engaged in a cover-up and overt acts of witness tampering/obstruction of justice?
Beyond that, Mueller accepts that Trump’s personal counsel was working with Cohen on false testimony to Congress but does not attribute that conduct to Trump and never goes after the counsel for aiding & abetting false testimony or giving message to Cohen that he would be protected if he stuck to the party line. Why was Mueller so reticent about these compelling facts that do not appear to be disputed? Faced with an apparent conspiracy to submit false testimony to Congress, resistance by Trump & by his personal attorney (who refused to provide his version of his conversations with Cohen who was not his client and thus not covered by any plausible claim of privilege), Mueller simply assumed he couldn’t get evidence about Trump’s discussions with his personal counsel and didn’t even try to pursue this line. II MR-154. No presumption of privilege should attach to conspiracy to commit a crime. Mueller’s unwillingness to tangle with Trump’s personal attorneys is inexplicable and unconscionable malpractice. Why was Trump’s personal attorney not charged with suborning perjury in connection with Cohen’s false testimony that Trump’s personal attorney helped facilitate?
Mueller’s approach is particularly disturbing because Trump refused to answer the written questions posed to him about the Trump Tower meeting. II MR-149. What Trump did say was that he couldn’t remember his conversations with Cohen. After Cohen pled guilty to lying to Congress about the Trump Tower meeting, Trump refused to provide any more information about his role and turned sharply against Cohen. II MR-151. Thereafter, Giuliani made public statements that conflicted with what Trump was now saying, then “walked those back.” II MR-152. Mueller seems completely bamboozled by all this, unable to make the obvious conclusions.
Trump refused to clarify what Mueller calls the “seeming discrepancy” between his statements about the Trump Tower project in Russia made before and after Cohen’s guilty plea. Mueller engages repeatedly in speculation about what Trump might have meant rather than concluding that, having declined the opportunity to set the record straight, Trump should be estopped to deny the discrepancy and to deny what Cohen said was the truth eventually.
I have asked repeatedly in these evaluations of the Mueller Report why Trump’s enablers were not indicted. Mueller addresses very briefly at II MR-158 where he leaps a giant chasm of evidence to conclude that because a few of Trump’s aides refused to carry out his blatantly obstructive orders, virtually all of them were allowed to walk away unscathed, including Trump’s personal attorneys and others who, according to undisputed evidence, did carry out Trump’s orders to try to intimidate witnesses, terminate the SCO investigation and other forms of interference detailed throughout the Report. Mueller calls the “pattern” one in which Trump’s enablers resisted his obstruction directives, but the evidence adduced shows that in most cases the White House staff did exactly what Trump wanted them to do. The “pattern” is the exact opposite of Mueller’s conclusion.
The Mueller Report ends with a lengthy, lawyerly analysis of the statutory and constitutional defenses asserted by Trump’s attorneys. The analysis is unobjectionable and supports not only the conclusions Mueller did reach but re-emphasizes the lingering questions about the conclusions he declined to reach. In particular, we are left to wonder why so few of the obvious enablers of Trump’s overt obstructive acts were not held accountable. Mueller’s treatment of “presumption of privilege” issues is inexplicable, given that much of the enabling activity was in support of federal crimes. We can only hope, though likely in vain, that Congressional hearings will flesh out the hanging questions.