On April 18th A moderately redacted version of the Mueller Report was released by Attorney General Barr.
TRUMP CAMPAIGN CLEARED OF ANY CRIMINAL CONSPIRACY WITH RUSSIA
While the report exonerates the President of any criminal conspiracy with Russia, it nonetheless describes a Presidential Campaign that was aware of and appreciated the assistance of this hostile foreign power. In the words of the report:
“the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts.”
Mueller’s investigation absolves the Trump Campaign of collusion because the investigation concludes the Campaign reached no meeting of the minds with Russians to coordinate activities. The Report also details myriad contacts that Trump and the campaign had with Russians that were publicly denied.
A DESPERATE PRESIDENT OBSTRUCTS JUSTICE
On obstruction, while Mueller declined to make a “traditional prosecutorial judgement,” it is clear he believes Trump committed numerous acts rising to criminal obstruction of justice and that the pattern of these acts is damning evidence. Mueller did not make a traditional prosecutorial judgement because the binary choice there is to decline or initiate prosecution, and Mueller could not initiate prosecution due to DOJ policy forbidding indictment of a sitting President. The obvious implication is that if Mueller had the binary choice to initiate or decline prosecution, he would have made the choice to initiate.
Trump was desperate from the beginning. When he first heard of the investigation he depressingly sat back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.” He immediately blamed Sessions for allowing it to happen.
TEN INSTANCES ESTABLISHING A PATTERN OF OBSTRUCTION
In general Trump tried to fire Mueller. When that failed Trump repeatedly attempted to improperly limit the scope of the investigation to exclude investigation of obstruction. Finally Trump attempted to influence witnesses to not cooperate with the investigation. Mueller spelled out ten instances involving acts by the President that could amount to obstruction.
- The President ‘s Conduct Concerning the Investigation of Michael Flynn — This includes Trump telling then FBI Director Comey to let the Flynn matter go and statements made by Trump encouraging Flynn to not cooperate with investigators.
- The President ‘s Reaction to Public Confirmation of the FBI’s Russia Investigation — This includes Trump’s angry reaction to Attorney General Sessions recusing himself from the investigation, Trump’s directing intelligence officials to make false public statements that he had no connections to Russia, and Trump’s asking Comey to “lift the cloud” from the Russia investigation by publicly stating Trump was not being personally investigated.
- Trump’s removal of Comey as Director of the FBI with the stated intention of doing it to end the Russia investigation. — Trump also attempted to get Rod Rosenstein, and others in the DOJ, to falsely say the decision to terminate Comey initiated within the DOJ, when the decision was in fact, initiated by, and driven by, Trump alone. Others in the administration did advance this false narrative. For example, at the time Sarah Sanders claimed to have heard from “countless members” of the FBI that the rank and file of the FBI had “lost confidence in their director. Under oath, Sanders admitted:
“countless members of the FBI” was a ‘slip of the tongue’ and her claim that rank-and-file FBI agents had lost confidence in Corney was a comment she made ‘in the heat of the moment’ that was not founded on anything.”
In short, Sanders admitted to the FBI that she lied to the public.
4. The President’s Efforts to Remove the Special Counsel — Just weeks after Mueller was appointed Trump repeatedly ordered White Counsel Don McGahn to have Mueller removed. McGahn refused and prepared to resign rather than do so, telling others that he wanted to avoid a Nixon style “Saturday Night Massacre.” McGahn prepared his letter of resignation and even packed up his office in anticipation of resigning. As discussed below, Trump later ordered McGahn to falsely claim, and to create a false record, stating Trump never ordered him to fire Mueller.
5. The President’s Efforts to Curtail the Special Counsel Investigation — Trump directed Corey Lewandowski to order Attorney General Sessions to unrecuse himself from the investigation so Sessions could limit the scope of the investigation to exclude obstruction of justice. Trump directed that Sessions be told to make the following public statement:
“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 . . . 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.”
When Lewandowsky failed to deliver this message to Sessions, Trump ordered Reince Priebus to tell Sessions to resign. Priebus, and other staffers finally talked Trump out of this explaining, “it would be a calamity if Sessions resigned because Priebus expected that Rosenstein and Associate Attorney General Rachel Brand would also resign and the President would be unable to get anyone else confirmed.”
6. The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials — When news of Trump Junior’s June 9, 2016 secret meeting with Russians, set up to get dirt on Clinton, was reported in the New York Times, Trump directed staff to not discuss the emails setting the meeting up and dictated a misleading letter about the purpose of the meeting. Trump’s people then lied by claiming Trump had no role in that letter.
7. The President’s Further Efforts to Have the Attorney General Take Over the Investigation — Trump tried yet again to have Sessions unrecuse himself, take over the investigation, and limit the scope and activities of the investigation. He threatened to fire Sessions again. Sessions had a resignation letter his pocket, that he kept after Trump nearly ordered him to resign a few months prior.
8. The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel — When the New York Times reported that Trump ordered Don McGhan to fire Mueller, Trump ordered McGahn to dispute the story. Trump also directed McGahn to write a memo documenting that Trump never told McGahn to fire Mueller. McGahn refused, telling Trump he would not do so because the NYT’s story was true. Trump himself did publicly deny the story stating, “Fake news, folks. Fake news. A typical New York Times fake story.”
9. The President’s Conduct Towards Flynn, Manafort, and a Third Person Undisclosed To Protect An Ongoing Matter — Trump made a variety of statements, both public and private aimed at discouraging Flynn and Manafort from cooperating with Mueller investigation. These statements included indirectly and coyly dangling the possibility of pardons to induce them to not cooperate. A third unidentified person is included in this section of the report with several entire pages redacted to protect an ongoing investigation.
10. The President’s Conduct Involving Michael Cohen — Trump knew the Trump Tower Moscow project was being considered by him long after he publicly denied having any dealings with Russia. Trump encouraged Cohen to stick the “party line” that deal was dropped in January 2016, when in fact discussions continued through June 2016. Consistent with that encouragement Cohen drafted testimony to Congress saying the deal was dropped in January 2016. Trump’s attorneys reviewed that draft, making some edits, but keeping the false claims. Citing Cohen, the report states “the President’s personal counsel said ‘his client’ appreciated Cohen, that Cohen should stay on message and not contradict the President, that there was no need to muddy the water.” Trump’s personal counsel refused to be interviewed by Mueller’s office. Afterwards, Trump sent messages of support to Cohen, often effusively praising him. After Cohen’s home and office were the target of a search warrant, Trump made numerous statements aimed at encouraging Cohen to remain loyal and not cooperate with the investigation. For example, Trump tweeted:
“The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘ flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!”
Giuliani communicated to Cohen, through another party, that “You are ‘ loved’ … Sleep well tonight, you have friends in high places.”
Mueller’s Report then goes on to say the following:
“Cohen said that following these messages he believed he had the support of the White House if he continued to toe the party line, and he determined to stay on message and be part of the team. At the time, Cohen’s understood that his legal fees were still being paid by the Trump Organization, which he said was important to him. Cohen believed he needed the power of the President to take care of him , so he needed to defend the President and stay on message.
Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House . . . President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. Cohen understood based on this conversation and previous conversations about pardons with the President ‘s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down.”
That last sentence is rather telling given the known efforts made by Trump to shutdown and limit the investigation.
After Cohen did begin cooperating, and pled guilty Trump’s characterizations of him changed dramatically. Trump described Cohen as a “weak person” who was lying to get “a reduced sentence.” Trump made clear he wanted Cohen to get prison time in a tweet that even threatened Cohen’s family:
“Michael Cohen asks judge for no Prison Time. You mean he can do all of the TERRIBLE, unrelated to Trump, things having to do with fraud, big loans , Taxis , etc., and not serve a long prison term? He makes up stories to get a GREAT & ALREADY reduced deal for himself, and get his wife and father-in-law (who has the money?) off Scott Free. He lied for this outcome and should, in my opinion serve a full and complete sentence.”
Trump would go on to call Cohen a “rat” and make multiple other statements suggesting Cohen’s family, and in particular father-in-law, should be investigated.
The Mueller Report goes on to note that “it is important to view the President’s pattern of conduct as a whole” because “that pattern sheds light on the nature of the President ‘s acts and the inferences that can be drawn about his intent.” Mueller then states:
“Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.”
THE PRESIDENT FAILED TO DERAIL THE INVESTIGATION ONLY BECAUSE HIS PEOPLE REFUSED TO DO AS HE DIRECTED
Mueller found the President largely failed to disrupt the investigation but makes clear that is only because his subordinates refused to obey him.
“The President ‘s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. Corney did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President ‘s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so.”
MUELLER SUGGESTED OBSTRUCTION CHARGES COULD BE BROUGHT BY CONGRESS OR A FUTURE PROSECUTOR AFTER TRUMP LEAVES OFFICE
While Attorney General Barr later took it upon himself to decide there as insufficient evidence to support obstruction charges, it is clear Mueller believed there was and that Mueller left that decision to Congress (through potential impeachment) or later prosecutors when the President leaves office. That second option is made clear as Mueller states:
“a President does not have immunity after he leaves office . . . Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
A report finding that you should be criminally prosecuted after you leave office is not the “total exoneration” the President claims.
13 UNKNOWN AND STILL PENDING INVESTIGATIONS OR CASES
One other significant aspect from Mueller’s Report is noteworthy. In an appendix Mueller lists referrals to other prosecutors where his investigation, “identified evidence of potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction established by the Acting Attorney General.”
Fourteen such referrals are listed. All but two are completely redacted to protect from harm to those ongoing investigations. The two unredacted ones involve an investigation of Michael Cohen for wire fraud and another relating to the indictment of Greg Craig.
In addition, there is a list of cases filed and transferred to other jurisdictions. This includes the indictment against Roger Stone. It also includes another existing case, apparently under seal, that is not identified to protect against harm to an ongoing investigation.
- The Trump Campaign did not criminally conspire with Russians because no one in the Campaign coordinated with Russians to disseminate stolen information.
- The Trump Campaign was aware that Russia was trying to help them, believed the Russian hacking of American emails helped their campaign, encouraged the Russians to do it, and exploited what the Russians released.
- Trump and the Campaign hand many contacts with Russians that they denied.
- A pattern of acts clearly prove Trump committed obstruction of justice.
- The pattern includes trying to fire Mueller, directing the person he told to fire Mueller to lie about those conversations, directing that person to create a false written record, and numerous attempts to discourage witnesses from cooperating with law enforcement.
- Mueller left the decision to decide whether Trump’s obstruction was impeachable to Congress, not to the Attorney General.
- Mueller also suggested Trump could be prosecuted for obstruction after leaving office.
- There remain 13 unknown pending cases or investigations referred by Mueller to other prosecutors.