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Mueller Report Part II – Trump Guilty of Obstruction of Justice-E

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E. Mueller’s Inexplicably Generous Treatment of Trump’s Knowledge of Events

Another of the remarkable and unexplained conclusions reached by Mueller was that the evidence of Trump’s knowledge about Flynn’s lies about Kislyak was inconclusive. II MR-46. This conclusion seems flatly inconsistent with Trump’s statement to Christie that firing Flynn ended the Russia collusion issue.  II MR-38. We are asked to believe that Flynn told McFarland that his contacts with Kislyak had averted a major policy conflict with Russia but she did not pass that on to Trump! And that neither she nor Bannon could remember this major development! This is yet another example of Mueller’s lack of aggressive approach to Trump. WHY didn’t the SCO interview Trump to get at answers to these critical questions instead of saying they had enough evidence and it was late in the investigation? It is also unclear why it mattered so much whether Trump knew about Flynn’s deception close to the time the Kislyak talks occurred.

Even more puzzling is Mueller’s conclusion that Trump’s effort to get K.T. McFarland to write an internal email saying that Trump did not direct Flynn to talk to Kislyak was not an attempt to have McFarland lie. II MR-48. What then was Trump trying to get McFarland to do?  What is the alternative explanation for Trump’s request of her? This is another example where evidence of corrupt intent is simply written off as “insufficient” without explanation. IF SCO had interviewed Trump, questions like this could have been resolved instead of being left open and then construed as exonerating Trump.

A similar problem arises regarding Trump’s campaign to have Attorney General Jeff Sessions un-recuse himself regarding the Russia investigation. In a footnote Mueller says it was unclear that Trump was aware of White House counsel’s admonition not to contact Sessions. II MR-50, n. 289. Why isn’t Trump chargeable with constructive knowledge of WH counsel’s directive? Trump declined to read documents — does that relieve him of responsibility for knowing what was official White House policy that had been put in writing?  Moreover, if the SCO had interviewed Trump, it could have gotten answers to these questions left open and ultimately construed in Trump’s favor on grounds that the evidence did not show he knew something that, on a common sense view, he almost certainly did know.

Mueller’s generous treatment of Trump continued in the discussion of Comey’s briefing of the Gang of Eight legislators in March, 2017, about the Russia investigation. Mueller said it’s “unclear” whether Trump knew about the briefing at the time, but notes taken by McGahn’s chief of staff say that “POTUS in panic/chaos.” II MR-52. How/why would Trump be in a panic if he didn’t know about Comey’s briefing of Congressional leaders? How could the president be ignorant of such developments that might have such huge impacts on his presidency and to which he had devoted so much attention in the past few months?

 The Comey briefing led to one of the clearest cases of obstruction of justice, in that Trump demanded, and McGahn complied, that McGahn contact Dana Boente, then acting assistant attorney general at Justice, to publicly correct the “misperception” that Trump was under investigation. II MR-54,55. Once again, Trump insiders had failed memories of demands Trump made for intervention with the Department of Justice. II MR-5. And, there is no attempt to explain inconsistencies in other testimony from some of the same insiders, claiming Trump never ordered them to do anything wrong. These statements from NSA Director Rogers are inconsistent with the contemporaneous memo of the President’s call and of NSA Deputy Director Ledgett’s characterization of the extraordinary nature of the call. II MR-56. Why is there no consideration of these inconsistencies?

When Trump then reached out directly to Comey to ask him to relieve the impression Trump was under investigation, the Report, unbelievably, turns to McGahn’s asserted recall of what Dana Boente told him Comey had told Boente about Trump’s contacts with him. II MR-59.  As usual, Boente claimed not to recall this discussion. II MR-60.

Then, in one of the most remarkable moments in the Report, Mueller drops into a footnote (II MR-59, n. 376) the reminder that White House counsel had advised Trump not to contact DOJ about the investigation. Mueller seemingly attached no significance to the extraordinary & undisputed fact that Trump on multiple occasions ignored the advice of his White House attorneys by reaching out directly to Comey to discuss relieving the pressure of the Russia investigation. WHY? This was not the conduct of an innocent man.

Mueller seemed to be impressed with the fact that the people involved claimed that they did not interpret Trump’s repeated importunings as “directives” to interfere in the investigation. II MR-60. These people were all Trump appointees and true believers in his politics, who would naturally seek to maintain favor with him by declining to interpret his repeated requests as “directives.” In any case, the real question is not what they thought, but what Trump intended and the only way to get to the bottom of that ultimately was to interrogate him, which SCO, curiously, declined to demand. Trump’s attempts to secure a champion at DOJ included personal contacts with Coates, Pompeo, Rogers and Comey. Despite that, Mueller, with his usual reticence to accept the obvious, concludes that “the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation.” II MR-60.

The same question arises in connection with Trump’s multiple attempts to prevent AG Sessions from recusing himself from oversight of the Russia investigation. A couple of things are clear. Trump thought the AG worked for him personally and therefore that Sessions should remain in place to do Trump’s bidding regarding the investigation. And, White House counsel tried to cut off communications with Sessions about recusal to avoid the appearance of attempted interference with the investigation. Yet, once again, Mueller states it was “not clear” that the “no contact” directive was conveyed to Trump. II MR-61. HOW is it remotely plausible that White House counsel, in a matter of seminal importance, would not have conveyed this information to the one person whose knowledge of it and compliance was the most important? Why didn’t the SCO demand Trump answer this question? He refused to do so even in writing and the SCO let him get away with it!

Mueller repeatedly and uncritically refers to Trump’s asserted belief that the Russia investigation was somehow interfering with, Miller his ability to conduct foreign policy but never discussed how that interference worked or what real impact it had on a president who, by all accounts, spent most of his time watching television and playing golf. II MR-61.

Another point of clarity in the Report is the finding that Trump lied about the basis for firing Comey. II MR-62. Why would he do that except to cover up his corrupt motive to which he shortly confessed? Trump’s lies about his conduct, in the context of his other actions, were a clear case of cover-up that could have been treated as a separate offense by Mueller if he had the aggressive instincts of a prosecutor rather than the timidity of an equivocator.

A related question – why was Stephen Miller not indicted for his role in preparing a phony letter to cover Trump’s tracks regarding the firing of Comey? II MR-64. Another related question: the final stated reason for firing Comey was pretextual. All Trump cared about was establishing that he was not under FBI investigation and that he was firing Comey because Comey refused to say that publicly. The Rosenstein/Sessions memo was constructed as an alternate explanation that Trump then adopted while still insisting, against advice, that the point about his not being under investigation be prominently included in the firing letter. II MR-67. Yet, again, no indictments were brought against any of the president’s men for conspiring and lying to cover the tracks of a discharge action plainly intended to obstruct the FBI investigation. See, e.g., II MR-70 regarding lies told by Sean Spicer, then Press Secretary about the motivation for the Comey firing.

Mueller basically gave a pass to all Trump’s enablers who accepted and acted on his directions. Michael Cohen, in later testimony before Congress, spoke specifically about how Trump rarely gave specific directions for anything. He spoke in “code,” that Cohen claimed he understood. It is beyond credibility that, by the time of Comey’s firing, the president’s men did not also understand how he “directed” what he wanted done, what he insisted upon, without ever explicitly saying so. Mueller appears to have completely overlooked this aspect of Trump’s directorial style, crediting him with innocence because there was no overt statement by him that amounted to a confession. In the future, then, Trump’s enablers have no reason to fear repercussions when they willingly follow his non-order orders.

Further evidence of Mueller’s timidity may be found in his ultimate conclusion that “the anticipated effect of removing the FBI director … would not necessarily be to prevent or impede the FBI from continuing its investigation.” II MR-74. That astonishing statement shows Mueller going out of his way to avoid the overt implications of evidence regarding Trump’s actions that were, by Trump’s own admission, intended to interfere with the Russia investigation. Why else would he have fired Comey and handled the firing as he did, including conspiring to give the impression that Rosenstein/Sessions were responsible for the firing? A seasoned prosecutor like Mueller surely knew better, but falls all over himself in avoiding the plain implications of Trump’s conduct. Moreover, even if the investigation would have been unfazed by Comey’s firing (and thus completely ignored by the surviving DOJ attorneys), the clear intent of the discharge was proven and, as Mueller’s own statement of the governing legal tests showed, an attempt to obstruct does not have to be successful to violate the criminal law.

Curiously, the Report takes a somewhat different approach to assessing evidence of Trump’s intentions when it addresses Trump’s attempts to have the Special Counsel removed. II MR-84 thru MR-90. This may be the result of superior clarity of the evidence but this is not apparent from the Report language. One explanation may be that the “committee” of lawyers that drafted the Report were assigned different sections and that each one had a different approach. The analysis highlights the fact that Trump lied publicly about whether he had tried to have Mueller removed, an approach Trump had taken to other issues but which led to Mueller equivocating about the strength of the evidence. II MR-90.

It is a fair question as to why Mueller did not indict Cory Lewandowski whom Trump chose as the go-between to direct AG Jeff Sessions to publicly speak about the unfairness of the SCO investigation and to limit its authority to future elections only. The recited evidence clearly shows that both Chief of Staff Kelly and Lewandowski himself were well aware of the impropriety of Trump’s demands and took actions to conceal his conduct from exposure. II MR 91-93 & n. 604.

Regarding the infamous Trump Tower meeting, the evidence is clear that Trump took overt actions to cover up the situation. II MR-98 to MR-107. Yes, Mueller concludes that Trump’s actions were merely part of a press strategy and not an effort to affect the SCO investigation or the related work of Congressional investigations. This is an astonishing judgment when the SCO allowed Trump to avoid testifying and be examined about this subject. It is therefore impossible to conclude that these obstructive acts did not occur. Moreover, Trump clearly acted dishonestly regarding disclosure of the information and created a misleading paper trail that could have affected decisions at SCO about what to do regarding the Trump Tower meeting. Mueller resolved all doubts in favor of Trump even in face of evidence of his lies and duplicity regarding the issue at hand.

Other instances of Mueller’s resolving doubts in favor of Trump or his people involved Trump’s effort, using his personal counsel, to have McGahn publish a statement denying that Trump had asked him to fire Mueller. Mueller resigns to a footnote and fails to explain the conflict between Hope Hicks & Gen. Kelly regarding whether the McGahn resistance story was correct. II MR-114, n. 788. Kelly, Sarah Sanders and Rob Porter all experienced memory failure regarding aspects of Trump’s demands and denials about trying to get McGahn to fire Mueller. Trump, of course, remorselessly lied to his own staff about what he had said. II MR-115. He continued to press McGahn to “correct” stories that ” McGahn repeatedly told Trump, and others, was accurate as written. II MR 116-117. Mueller resorts to the gentlest possible language when describing these activities, using phrases such as “runs counter to the evidence” as opposed to the more precise “he lied.” II MR-118.

Rob Porter played a direct role in delivering Trump’s demands to McGahn (II MR-116) but, without explanation, was not indicted for conspiracy to obstruct justice.

Mueller Report Part II – Trump Guilty of Obstruction of Justice – D

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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.

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A

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In many ways, the obstruction of justice issue is the easiest to understand. But, among other factors, because the Attorney General, a Trump appointee, took it upon himself to assert publicly conclusions that the Mueller Report plainly did not reach, the question has been clouded in the public mind. Republican lackies for the president, and the President himself, continue to repeat the AG’s lies about the Report.

The following analysis will endeavor to tell the truth about the Mueller Report and to ask fair questions that remain in the Report’s wake and as a result of Mueller’s refusal to speak about the substance of the Report.

A. Declining to Decide – Why Was This Not Disclosed at the Outset?

The Report opens with a summary statement of five major-impact concepts that shaped the investigation and the Report as its outcome (the Report says there are only four, but a careful reading indicates five).

  1. The Office of Special Counsel (OSC) accepted the 2000 Justice Department legal conclusion that a sitting president could not be indicted – the Report refers to this as a limitation on “prosecutorial jurisdiction;” II MR 1.
  2. The OSC believed, independent of the Justice Department’s opinion about constitutional constraints, indictment of the sitting president would “place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” II MR 1.
  3. Investigation is nonetheless permitted during the presidential term, immunity does not follow the person after presidential service is over and, very importantly: “if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.” II MR 1.
  4. The OSC decided not to apply an “approach that could potentially result in a judgment that the President committed crimes” because it would be unfair to make such findings when the opportunity for a speedy trial on the charges would not be possible. II MR 2
  5. Notwithstanding (4) above, if the OSC concluded that the president did not commit crimes, it would have so stated, but it could not so state based on the evidence developed; therefore, the Report neither accuses nor exonerates the president. II MR 2

These introductory words in the Report raise many questions, among them:

  1. If the SCO knew at the outset that it would not issue indictments, why was this not disclosed at the beginning?
  2. I will go into this in much more detail later, but given the overwhelming evidence that Trump engaged in multiple acts of obstruction, why was not a single person indicted from his staff, his cabinet and in the Republican Party that supported his every falsehood and deflection?
  3. How was the investigative approach altered to assure that a “judgment that the President committed crimes” was not the result?
  4. Why was the Special Counsel prepared, if the evidence supported it, to publish a conclusion that the president was innocent of obstruction while being unwilling/unable to publish a conclusion that crimes were committed even if the evidence overwhelmingly supported that judgment? In light of this, the worst that the president could have faced was a finding that the evidence did not exonerate him. Considering that the alternative, an indictment, was never a possibility, Trump easily could see the outcome as a victory. And he did. And it appears that, at least in that sense, this was inevitable. The deck was stacked in Trump’s favor from the beginning.
  5. Was Mueller’s “no finding of innocence” a kind of double wink, saying, in effect, “my hands were tied, but here’s the evidence for Congress to make the obvious conclusion of guilt and impeach? Maybe, but that seems pretty naïve considering that, until the 2018 mid-term elections, Republicans controlled both houses of Congress and still control the Senate.

I’m not going to go into the details here, but I studied the entire 2000 Justice Department opinion finding that indictment of a sitting president is unconstitutional and it is remarkable in its presumption of undemonstrated facts. It employs extreme language when discussing the presumed burden on the president of having to defend an indictment while in office and seems to be written more to justify a pre-determined result than to analyze the situation neutrally. Like the Mueller investigation itself, the 2000 OLC opinion, like the 1973 opinion that it confirms, seems to have a pre-ordained outcome. Considering that the current occupant of the White House spends little time actually doing presidential work, the overblown language of the OLC opinions rings hollow, turning, as it does, entirely on the presumed interference with presidential responsibilities of the obligation to defend criminal charges.

Turning to the matter at hand, the Mueller Report begins with a summary of the “issues and events” that were examined for obstruction evidence. It includes:

(1) Trump’s lies about his business interests in Russia;

(2) Michael Flynn’s lies about his contacts with Russian Ambassador Kislyak;

(3) Trump’s attempt to extract loyalty commitments and a pledge to leave Flynn alone from then FBI Director Comey;

(4) Trump’s attempt to direct his Deputy National Security Advisor (K.T. McFarland) to produce a letter falsely stating the president had not directed Flynn to discuss U.S. sanctions with Kislyak (why would Trump try to manufacture evidence that he was innocent of soliciting help from Russia if he were innocent?);

(5) Trump’s attempt to prevent Attorney General Jeff Sessions from recusing himself regarding the Russia investigation;

(6) Trump’s attempt to use U.S. intelligence officials and again the FBI Director to make public statements exonerating him from involvement in Russian election interference;

(7) Trump’s firing of FBI Director Comey for the expressed purpose of relieving himself of the Russia investigation;

(8) Trump’s manipulation of the Comey firing letter to make it appear the firing was based on DOJ recommendations when in fact Trump had decided to fire Comey before hearing from DO;

(9) Trump’s attempt to have White House counsel tell the Acting Attorney General that the Special Counsel had conflicts of interest and must be fired;

(10) Trump’s attempt to limit Special Counsel to investigating future election meddling;

(11) Trump’s false narrative about the origins of the Trump Tower meeting, including repeated false denials by his personal attorney that Trump had any role in Trump Jr’s statement about the meeting;

(12) Trump’s attempts to pressure Sessions into un-recusing regarding the Russia investigation;

(13) Trump’s attempts to have White House counsel McGahn falsely state that Trump had not ordered him to have the Special Counsel removed; and

(14) Trump’s attempt to influence testimony from Flynn, Manafort and Cohen, including involvement by Trump’s personal attorney.

The Report then went through a most curious “on the one hand, on the other hand,” regarding Trump’s possible motives for interfering in the SCO investigation, defined by the point at which Trump became aware that he was personally under investigation. Mueller referred to these as “overarching factual issues.” II MR-7. Mueller expressed concern that some of Trump’s actions were within his Article II authority and that his motives should be judged in light of the fact that the investigation found no underlying crime in the Russia investigation, even though such a finding was unnecessary and despite the fact that Trump acted, throughout the entire period, as if he were guilty. II MR-7. Here, Mueller seems to have forgotten his own admonition that the absence of discovered evidence of participation in Russian interference was not proof that no such participation occurred. Finally, Mueller cites the fact that some of Trump’s allegedly obstructive conduct took place in public, although, again, the harm done would be the same for public as for secretive obstructive acts. II MR-7.

My sense of this odd insertion into the Report is that Mueller is revealing a disinclination to hold the president to account when he can’t indict. He is, in effect, gilding the lily in favor of Trump. However, in next analyzing various defenses asserted by Trump’s attorneys, Mueller concludes, correctly I think, that the corrupt use of Article II powers is not immune conduct. Mueller notes that the requirement of corrupt intent is a high standard and “requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” II MR-8.

In the end, Mueller reaffirms the “principle that no person is above the law.” II MR-8. The Report then also concludes that based on the evidence adduced, the SCO could not find that the president committed no obstruction of justice crime. Therefore, although forbidden by policy from stating the prosecutorial conclusion that crimes were committed, the Report “does not exonerate him.” II MR-8.

Despite the clarity of that conclusion, the sitting Attorney General and then Trump himself concluded that the Report did exonerate him. Those statements by the AG and the President were false. The AG also said that he had independently evaluated all the evidence underlying Mueller’s Report and that he, the AG, had concluded that there was no evidence to support a finding of criminal conduct by the president. All that need to said about that is it is extremely unlikely that the AG personally was able to review the entirety of the evidence gathered by Mueller’s team in the time the AG had with the draft report. In making these claims, the AG stepped out of his role as Attorney General of the United States and acted as if he were Trump’s personal attorney defending him against Mueller. Barr’s conclusions should be discounted completely since they conflict with the evidence disclosed in the Report that clearly and strongly demonstrates that Trump did commit obstruction of justice on multiple occasions.