Criminal Justice & the Rule of Law Executive Branch

Appendix: Instances of Obstruction in the Mueller Report

Victoria Clark, Sarah Grant, Quinta Jurecic
Thursday, April 18, 2019, 11:43 PM

This is an appendix to Lawfare's initial analysis of the Mueller report, listing instances of obstruction as described in the report. Read the analysis here.

Published by The Lawfare Institute
in Cooperation With

This is an appendix to Lawfare's initial analysis of the Mueller report, listing instances of obstruction as described in the report. Read the analysis here.

The first episode of possible obstruction of justice the report discusses is Trump’s conduct involving his first national security adviser, Michael Flynn, and FBI Director James Comey. Mueller’s team describes Flynn’s efforts, following the Obama administration’s imposition of sanctions on the Russians for their activities during the 2016 election, to make contact with the Russian government, let them know that the Trump administration wanted better relations, and encourage them not to retaliate. Flynn later lied about his communications with Russian Ambassador Sergey Kislyak, first to incoming Vice President Mike Pence and Sean Spicer, and subsequently to the FBI when agents questioned him in late January 2017. This conduct formed the basis of Flynn’s indictment on 18 U.S.C. § 1001 charges. In early January 2017, Trump was briefed on the intelligence community’s high-confidence conclusions that the Russians interfered in the election. Comey also privately briefed Trump on “sensitive material” in the Steele Dossier, including the “unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant.”

The report includes in a footnote the following detail: “On October 30, 2016, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, ‘Stopped flow of tapes from Russia but not sure if there's anything else. Just so you know ....’ 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said ‘tapes’ referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia.” Trump also asked a number of intelligence community leaders whether they could make public statements refuting the allegations in the Steele reports.

After senior leaders at the Department of Justice notified the White House Counsel’s office that Flynn had lied about his discussions with Kislyak, Trump invited Comey to dinner at the White House. Despite being warned by Chief of Staff Reince Priebus not to discuss Russia matters, Trump brought up the Steele report and whether the FBI could investigate to prove the allegations contained in it were false. He also stated that he expected Comey’s loyalty. Flynn ultimately resigned in mid-February, and Trump met alone with Comey one more time to ask him to encourage him to “see [his] way clear to letting this go, to letting Flynn go.” When challenged by the media about the White House’s account of why Flynn was fired, Trump continued to deny any Russian contacts and pressed for then-Deputy National Security Adviser KT McFarland to write an internal memo stating that Trump did not direct Flynn to contact Kislyak about the sanctions.

Analyzing this conduct through the lens of criminal obstruction, Mueller’s team writes that substantial evidence corroborated Comey’s account of Trump telling him to let the Flynn investigation go, and that they were able to establish that Trump connected the Flynn investigation to the FBI’s broader Russia investigation. Trump told Chris Christie that he thought that terminating Flynn would end “the whole Russia thing.”

Next, the special counsel describes Trump’s reaction to Attorney General Sessions’s decision to recuse himself from the Russia investigation and Comey’s confirmation in congressional testimony of the FBI’s investigation into Russian interference. Trump tried to stop Sessions from recusing, putting pressure on him both personally and through other White House personnel, and then after the fact tried to convince him to “unrecuse.” Following Comey’s testimony before the House intelligence committee about the Russia investigation, Trump was, the report says, “beside himself” and “getting hotter and hotter.” In response, Trump again reached out to intelligence community leaders, including Director of National Intelligence Dan Coats, then-CIA Director Mike Pompeo, and National Security Agency Director Mike Rogers, to ask them to publicly push back on any suggestion that the president was involved in the Russian election-interference effort. In addition, “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.” Trump also called Comey directly on two occasions, despite being warned by McGahn not to speak directly to Comey to prevent the perception of interference, to ask him to publicly state that the president was not under investigation.

Analyzing the facts, Mueller’s team concludes that Trump was angry about Sessions’s decision to recuse and wanted an attorney general who would protect him from investigation. He did not want the cloud of the investigation hanging over him and detracting from “what he had accomplished.” His requests to intelligence community leaders to clear his name were not, however, interpreted as directives and were not acted upon.

Third, the report explores the events leading up to and surround Comey’s firing in May 2017. Trump wanted Comey to make public in his Senate Judiciary Committee testimony on May 3 that the president was not under investigation, and when Comey did not do that, Trump unilaterally decided to fire him. Trump told aides on May 5 that he intended to fire Comey and drafted a termination letter stating that Comey had informed Trump on three occasions that he was not under investigation. Only after making this decision did Trump discuss his intent with Justice Department officials and have Sessions and Rosenstein provide separate memoranda justifying Comey’s firing on other grounds. The White House used Rosenstein’s memo as the public justification and obscured the original letter and Trump’s true motivation. White House Counsel notes from that time say that the intent was for Trump’s original letter never to see light of day. Defending the decision to fire Comey, then-Deputy Press Secretary Huckabee Sanders said in a press conference that the White House had received positive feedback from FBI personnel about the decision and that Comey had lost the confidence of the rank-and-file. In her communications with the special counsel during the investigation, Sanders acknowledged that there was actually no basis for these statements.

In addition, after firing Comey, Trump also told the Russian Foreign Minister, Sergey Lavrov, “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off .... I’m not under investigation.” Trump subsequently did a television interview with NBC’s Lester Holt in which he said he had planned to fire Comey regardless of what Sessions and Rosenstein recommended, and that he did so because he did not like the Russia investigation and thought it was “an excuse by the Democrats for having lost an election that they should’ve won.”

Matching up this conduct with the obstruction charge, the special counsel writes that “[f]iring Comey would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding the investigation-for example, if the termination would have the effect of delaying or disrupting the investigation or providing the President with the opportunity to appoint a director who would take a different approach to the investigation that the President perceived as more protective of his personal interests.” The team concludes that “[s]ubstantial 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’s other stated rationales for why he fired Comey are not similarly supported by the evidence.” The report notes that “[t]he evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia. ... But 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 or that would give rise to personal and political concerns.”

The report next turns to Trump’s efforts to have Mueller removed as the special counsel, on the basis of claims of a conflict of interest which Trump’s advisers told him were “ridiculous.” Upon learning of Mueller’s appointment, “the President slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my Presidency. I'm fucked.’ The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, ‘How could you let this happen, Jeff?’” Sessions submitted a resignation letter to Trump at one point, but Trump did not accept it. On several occasions, Trump tried to get Don McGahn to talk to Rosenstein about Mueller’s conflicts and have Mueller removed, one time, to McGahn’s memory, saying “Mueller has to go.” Chris Christie also recalls Trump calling to ask what Christie thought about firing Mueller, and Christie advised him against it. Neither McGahn nor Rosenstein acted on the president’s requests to fire the special counsel.

The special counsel writes that the weight of the evidence suggests that the president went further than simply trying to bring Mueller’s alleged conflicts to Department of Justice’s attention but, rather, instructed McGahn to have Rosenstein remove the special counsel. The evidence “shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel.” This interpretation is supported by the fact that Trump continued to push McGahn to act on his behalf, rather than going through his personal counsel, as McGahn had indicated he should. Additionally, “[s]ubstantial 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.”

Once the special counsel’s office began its work, Trump also tried a number of tactics to curtail the investigation. Mueller describes Trump’s conversations with former campaign manager Corey Lewandowski about the investigation and Sessions’s recusal. Trump directed Lewandowski—Lewandowski took detailed contemporaneous notes—to tell Sessions to deliver a speech saying Trump had done nothing wrong and that the special counsel’s investigation would be limited only to future election interference. Lewandowski discussed this with White House official Rick Dearborn, but neither relayed the message to Sessions. Trump also directed Reince Priebus to get Sessions to resign. Both Priebus and Don McGahn spoke with their personal attorneys about Trump’s directive and decided not to push Sessions to resign.

Assessing this conduct, the special counsel writes that “the President wanted Sessions to disregard his recusal from the investigation, which had followed from a formal DOJ ethics review, and have Sessions declare that he knew for a fact that there were no Russians involved with the campaign. The President further directed that Sessions should explain that the President should not be subject to an investigation because he hasn't done anything wrong” (internal quotation marks omitted). The special counsel concludes that “[s]ubstantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President's and his campaign’s conduct.”

The special counsel next describes Trump’s efforts to prevent public disclosure of the Trump Tower meeting. According to Trump’s written answers to Mueller’s questions, he had no recollection of learning about the meeting at the time or any time before the election. Mueller writes that Trump’s lawyers first became aware of the email chain with Donald Trump, Jr. regarding the meeting in June 2017, following a document request to the Trump campaign from the Senate intelligence committee. Trump repeatedly rebuffed efforts by both Kushner and Hope Hicks, then the White House director of strategic communications, to be told details about the emails. Hicks, who thought the emails looked “really bad,” wanted to provide information to the press before the emails leaked on their own, but Trump rebuffed those efforts. When Trump learned that the New York Times was writing a story on the emails in July 2017, he directed Hicks not to respond to the paper’s inquiries—a directive Hicks found strange, because the president usually considered being unresponsive to the press to be the “ultimate sin.” After Trump directed Hicks to tell the press that the meeting had been about adoptions, she workshopped a statement with Trump Jr. on his behalf.

In Mueller’s view, these actions are “directed at the press” and would only constitute obstruction if Trump had “sought to withhold information from or mislead congressional investigators or the Special Counsel.” The evidence does not establish this, nor does it establish intent to do so. For similar reasons, the evidence does not establish a nexus to an ongoing proceeding—though a nexus would exist to the grand jury investigation supervised by Mueller had the president sought to mislead Mueller or Congress rather than the press.

Mueller then examines Trump’s efforts from the summer of 2017 to 2018 to have Sessions take over control of the Mueller investigation. After Mueller was appointed, the report states, Trump called Sessions at home in an effort to convince him to reverse his recusal from the Russia investigation and prosecute Hillary Clinton. Then, in July 2017, Trump asked White House Staff Secretary Rob Porter whether then-Associate Attorney General Rachel Brand was “on the team” and would be interested in becoming attorney general and supervising the Mueller investigation. Though Trump requested that Porter see if Brand would be interested, Porter told Mueller that did not do so, because he was uncomfortable with the request and understood it as an effort to end the Mueller investigation. Porter likewise recounts a meeting in which Trump asked Sessions to investigate Clinton—and then tweeted angrily when Sessions failed to do so—and another in which Trump again asked Sessions to reverse his recusal. Speaking to Porter months later, Trump compared Sessions disfavorably to “the great attorneys he had in the pass with successful win records, such as Roy Cohn.”

Trump’s actions toward Sessions “could qualify as obstructive acts” in that Trump sought to place Sessions in charge of the investigation in order for him to impede it, Mueller writes. There was a nexus to an official proceeding, insofar as the grand jury investigation was public knowledge at the time of Trump’s actions. And “there is evidence that at least one purpose of the President’s conduct … was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope.”

The next incident examined by Mueller is Trump’s orders to McGahn to deny that Trump told McGahn to fire Mueller. After news reports surfaced in January 2018 that Trump had asked McGahn to dismiss Mueller in June 2017, Trump and his personal lawyers repeatedly pushed McGahn to deny the story, though McGahn refused. According to Porter, Trump directed Porter to “create a record” internally that Trump had not told him to fire Mueller, saying, “If he doesn’t write a letter, then maybe I’ll have to fire him.” After McGahn refused, Trump then met with him and told him to “correct” the story. The two debated what Trump’s original instructions had been: On McGahn’s account, Trump had told him, “Call Rod, tell Rod that Mueller has conflicts and can’t be the special counsel,” but Trump claimed he had only asked McGahn to raise the conflicts issue with Rosenstein and leave it to the deputy attorney general. He again asked McGahn to deny the story and McGahn again declined. Mueller writes that Trump also asked McGahn why he had told the special counsel’s office about Trump’s effort to have Mueller removed, asking, “What about those notes? Lawyers don’t take notes. I never had a lawyer who took notes.” When McGahn said he took notes because he was a “real lawyer,” Trump responded by stating that Roy Cohn had not taken notes. Trump’s personal lawyer called McGahn’s lawyer after the meeting and said that the president was “fine” with McGahn.

Analyzing Trump’s conduct, Mueller notes that “there is some evidence” that the president genuinely believed press reports were wrong and that he had not told McGahn to ask Rosenstein remove Mueller from his role, pointing to the specifics of his debate with McGahn over the wording he had used. However, Mueller then describes a much larger body of evidence suggesting that Trump knew he was asking McGahn to lie. Regarding the nexus, Mueller argues that Trump’s effort to make McGahn write a false letter “for our records” suggests the president “likely contemplated the ongoing investigation” and the possibility of future testimony by McGahn. “Substantial evidence” indicates that the president acted as such to influence the investigation.

Mueller then examines Trump’s conduct toward Flynn, Manafort and an individual whose name has been redacted but from context seems to be Roger Stone. After Flynn left the White House, Trump was flattering toward him in public and repeatedly had aides pass messages to him indicating support. However, after Flynn withdrew from his joint defense agreement with Trump in November 2017, Trump’s personal lawyers informed Flynn’s lawyers that they would interpret the withdrawal as an expression of “hostility” toward their client—a statement Flynn’s counsel understood as an effort to make Flynn reconsider. In Manafort’s case, Manafort reportedly told Rick Gates that Trump’s counsel had made clear Trump would “take care” of Gates and Manafort if they did not cooperate. When Gates asked Manafort if pardons had been discussed, Manafort said the word had not been used. Finally, though the last section is redacted, it seems to concern Roger Stone: The report cites a comment made by Trump in an interview with the New York Post and records him as discussing “Manafort, Corsi [redacted.]” In the full interview, Trump refers to “Manafort, Corsi and Roger Stone.”

Mueller writes that a nexus to an official proceeding existed in all three cases. No further analysis is available regarding the redacted name. Regarding Flynn, Mueller states that while the exchange between Flynn’s counsel and Trump’s counsel “could have had the potential to affect Flynn’s decision to cooperate,” issues of attorney-client privilege meant that “we could not determine” whether Trump was involved in or knew about that exchange—which contributes to Mueller’s finding that evidence of Trump’s intent on the matter was “inconclusive.” Regarding Manafort, Mueller considers both Trump’s public statements of sympathy toward Manafort and comments suggesting the possibility of a pardon as evidence of an obstructive act, both in affecting Manafort’s decision regarding whether to cooperate and potentially influencing the trial jury in Manafort’s case. While evidence indicates that Trump intended to encourage Manafort against cooperation, however, Mueller writes that his intent is less clear as to influencing the jury trial.

Finally, the report considers Trump’s conduct regarding his former attorney Michael Cohen. Cohen began to be asked by reporters in January 2017 about the Trump Tower Moscow deal, and falsely told them that it ended in January 2016 in an effort to “stay on message”; Cohen “discussed the talking points with Trump but that he did not explicitly tell Trump he thought they were untrue because Trump already knew they were untrue.” Cohen entered into a joint defense agreement with the president, and at one point was told by Trump’s personal counsel that Cohen would be protected unless he “went rogue.”

In 2017, Cohen testified before the House and Senate intelligence committees that the Trump Tower Moscow Project had ended by 2016, when in reality the project continued until June 2016. Trump’s counsel had reviewed Cohen’s drafts of his statement, and when Cohen told Trump’s personal lawyer that the statement left out information on additional communications with Russia, the counsel told him not to elaborate and to keep his statement short. Although the president never directed Cohen to lie to Congress, Cohen said, “Trump already knew [the talking points] were untrue.”

The report also chronicles how throughout the investigation into payments to Stormy Daniels, Trump told Cohen to “hang in there” and “stay strong.” At least three other people linked to Trump told Cohen that Trump was “supporting” him, and Cohen had an exchange with Trump’s personal attorney that he understood to indicate that “he would be taken care of by the president, either through a pardon or through the investigation being shut down.”

Regarding Cohen’s statement to Congress, Mueller writes that there is evidence that Trump was aware of Cohen’s false testimony but that “the evidence available to us does not establish” that Trump “directed or aided” that false testimony. The report states that “the evidence … could support an inference” that Trump intended to keep Cohen from cooperating and then to dissuade him from providing information once he began cooperating. All Trump’s conduct occurred during multiple investigations into Cohen, providing the nexus.

Victoria Clark is an intern at Lawfare. She was formerly a national security intern in Governance Studies at the Brookings Institution. She is a senior at Georgetown University studying Government and History.
Sarah Grant is a graduate of Harvard Law School and previously spent five years on active duty in the Marine Corps. She holds an MPhil in International Relations from the University of Cambridge and a BS in International Relations from the United States Naval Academy. The views expressed here are her own and do not reflect those of the Department of Defense, the Marine Corps, or any other agency of the United States Government.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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