Archive for July, 2019

The Mueller Report: I read it for you, but you should read it for yourself. pt. 10

July 29, 2019

Underlying Factual Issues

            This section deals with general issues, such as the legal justification for the investigation, the legal limits on it, and the general pattern of behavior by Mr. Trump. This is a wide-ranging section, parts of which are rather technical, so a list of the salient points is useful.

  1. First, this report differs from obstruction-of-justice cases typically handled by the Department of Justice because it deals with the President of the United States. Some of the report “raises garden-variety obstruction-of-justice issues,” other parts deal with the use or potential misuse of the powers granted to the President by Article II of the Constitution. This is relevant to the possible defense against the charge of obstruction, which is discussed later. At the same time, what for a billionaire heir businessman private citizen might be dismissed as “Trump being Trump” become much more legally fraught when done by the President of the United States, who has “unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses.” It’s one thing if a private citizen, even a celebrity billionaire playboy, says some person or people should be “locked up” for a supposed crime; it’s quite another when the President, who has broad authority to help make that happen, says it. When Mr. Trump called for the Central Park Five to be executed, it was an abuse of his economic power; he was able to take out ads in papers, to use his celebrity status to get television air time, and so on. And it turns out he was wrong; he didn’t know the facts, jumped to a conclusion rather than wait for a proper investigation, and attempted to have innocent people killed. But he was still only a private citizen, albeit an enormously powerful one; the damage he could do himself was limited. The President of the United States, on the other hand, has far more informal power to influence, tweet, speak on television and so on, and formal power to hire and fire prosecutors and even the Attorney General if they investigate (or not) contrary to his whims. When he says someone should be “looked into” it isn’t just an opinion; it’s closer to a credible threat.
  2. Many obstruction cases involve covering up an underlying crime. In this case, however, the Special Counsel did not find proof that Donald Trump Sr. knowingly conspired with Russia to undermine the U.S. election system. However, proof of an underlying crime is not necessary to establish obstruction of justice. The Special Counsel’s investigation firmly established that there were hundreds of contacts between the Trump campaign and Russian agents, as well as agents of other foreign governments; that these involved high-ranking members of this campaign including his own family; that the Putin regime was actively working to elect Donald Trump Sr. and that in many cases those campaign leaders knew that they were in contact with foreign agents and/or that they were receiving illegally obtained materials or other legally dubious help. All of this was acutely embarrassing to Mr. Trump and he was intensely concerned that it might undermine the legitimacy of his election. Furthermore, at the time the alleged obstruction occurred it was not established whether there was an underlying crime or whether the President’s own family might be prosecuted; as he himself said, his “satellites” might have done things he didn’t know about. In fact, at the time of this writing it is still not established whether there are more prosecutions; and multiple high-ranking Trump campaign directors or policy advisors have pled guilty or been convicted of felonies. Whether the obstruction of justice is motivated by a desire to avoid personal embarrassment or to hide a potential crime, the damage to the integrity of the justice system is the same; that is why obstruction of justice is such a serious matter.
  3. Many of the alleged acts of obstruction-of-justice took place in public view. This seems strange, given that obstruction of justice is a felony; you would think someone committing a felony would be secretive. However, the report asserts that given the power the President has to influence witnesses and official proceedings through mass communication, what we need to focus on is not whether the act was publicly known but whether we can discern a corrupt intent. In many cases, such corrupt intent is in fact established by witnesses or even Trump’s own words. Whether witness tampering or other acts of obstruction occur privately or publicly, the damage to the judicial system is the same, and therefore the crime is equally serious.
  4. While the report discusses separate instances of possible obstruction of justice, there is an overall pattern. At first, before Trump became aware that he was under any sort of investigation, he was concerned primarily to publicly clear his name. His efforts were primarily focused on getting intelligence and legal officials to state that there was no crime, or at least that he personally had not committed any crime, even though the investigation was still ongoing. But after firing James Comey, Trump found that he himself was being investigated for obstruction of justice, and his efforts became much more direct, aggressive and nasty.
  5. Trump repeatedly attempted to undermine or control the investigation into Russia’s efforts to elect him. Those efforts were often unsuccessful because his aides and subordinates did not carry out his orders. Comey did not shut down the Flynn investigation, which ultimately led to Flynn’s prosecution. McGahn did not tell Sessions to fire Mueller, and did not agree later to lie about having been asked to fire Mueller. This does not make Trump himself any less guilty of obstruction of justice; only a trial could establish that. But it does let most of those aides off the hook since they refused to participate in what might have been illegal acts had they been carried out.
  6. The President’s legal team offers what we might call the Nixon Defense: if the President does it, it is not illegal, even if it would have been illegal if any governor, senator or other official had done it, due to the authority and powers granted by Article II of the Constitution. Citing a great deal of case law, as well as legal interpretation of the Constitution including Article I and the principle of separation-of-powers, the Special Counsel’s report rejects this defense and holds that the laws against obstruction of justice apply to everyone, even the President. Requiring the President to obey laws against corruptly undermining the judicial system for his own personal gain does not unduly impede his ability to fulfill his office as described in Article II, while allowing the President to ignore laws passed by Congress and signed into law would unduly undermine the Article I responsibilities granted to Congress to pass laws for the good of the nation, and to exercise oversight of the other branches of government on behalf of the American people. In so deciding, the Special Counsel’s office cites many court rulings, including the Nixon case.
  7. Finally, the conclusion: while the Special Counsel did not make a traditional recommendation whether to prosecute, it did clearly state that it could not make a decision not to prosecute. As stated earlier, the Special Counsel felt that it could not recommend prosecution no matter what it found, since the Department of Justice policy is to not charge a sitting President with a crime even if a crime is found. However, the Special Counsel is quite explicit about whether this means the President is exonerated. It does not. The report concludes that he may well have committed obstruction of justice, and that were he not President then a trial for obstruction would be warranted.

Mueller’s public testimony clarifies somewhat that if it were anybody else who had committed the actions discovered in this investigation, that person would be facing trial for obstruction of justice. If his office had cleared Trump of all crimes, they would have so stated; but he is not cleared. Mueller stated directly that Mr. Trump can be put on trial after he leaves office. When asked whether an impeachment inquiry would also be an adequate forum to publicly establish the President’s guilt or innocence, Mueller refused to answer. His only concern was with the legal issues and the Department of Justice guidelines that he operated under. These allowed for a criminal investigation to establish facts and record evidence while memories were still fresh and other documents and evidence still exist, even though those guidelines forbid even a sealed indictment. They make no claims about impeachment because that is not the authority of the Department of Justice; it is authorized under Article One of the Constitution, which gives the powers and describes the procedures by which Congress may impeach the President or other officials. The concern is to be fair to the accused, who must be given the chance to answer the charges promptly. In principle, since an impeachment trial is a trial, an impeachment would also qualify as a “forum in which” the accused may “vindicate themselves.”

The Mueller Report: I read it for you, but you should read it for yourself. pt. 9

July 13, 2019

The President’s Conduct Involving Michael Cohen

            We’ve seen multiple instances of likely obstruction of justice stem from the series of questionable choices beginning with Mr. Trump’s attempts to get Flynn off, and subsequently to cover this up. Michael Cohen had nothing to do with these events. Instead, he handled other activities Mr. Trump wanted hidden from the American people: specifically, two of his adulterous affairs and his extensive business dealings with Vladimir Putin. Of these, the payoffs to former Trump mistresses was of little concern to Mueller; his mandate was to investigate Russian efforts to subvert the American elections and to follow up on any criminal activities related to this. The investigation of violations of U.S. election law relating strictly to domestic affairs 😉 was handed off to other investigators; its only interest to Mueller was whether aspects of the cover-up of Trump’s adulteries played a part in efforts to prevent Cohen from testifying truthfully on other matters. Trump and his attorneys continued to express support and “love” for Cohen, contingent on him agreeing to “stay strong” and not “flip.” His legal bills were being paid by the Trump Organization, and he needed to “stay on message” and in Trump’s good graces for that to continue. Cohen has also testified that the possibility of a presidential pardon was raised in his discussions with Trump’s lawyers. Thus, the situation surrounding the payoffs to silence Trump mistresses left Cohen more inclined to testify as Trump wanted in other matters as well, regardless of the truth.

Much more significant are Cohen’s efforts to help cover up Mr. Trump’s extensive business dealings with Russia and with Putin himself. In this regard, there are several factors to consider, some favorable for Mr. Trump and some damning.

First, the deal to build a Trump Tower in Moscow was a long-time project, going back at least as far as 2015. The plan was for a Russian corporation to build the tower and license the Trump name. Cohen discussed the plan multiple times with Donald Trump, his son Donald Jr. and his daughter Ivanka. Given that the Trump Organization was primarily a real estate business and that licensing the Trump name was a major part of their business, there was nothing unusual about this at the time. Had the plan been carried out, it would have been a billion-dollar deal for the Trump Organization, with little risk or investment on their part since all they were really doing is selling their name.   A preliminary agreement was reached in Fall 2015, and Cohen even discussed Trump possibly flying to Moscow to seal the deal. Therefore, much of this started before Mr. Trump became a serious presidential contender, when he was still primarily a private businessman pursuing his private business. However, Trump was actively involved in negotiations for this deal long after he became the presumptive Republican nominee.

Second, despite Cohen’s efforts and several phone calls between the Trump Organization and Moscow including a twenty-minute conversation between Cohen and a Kremlin staffer, the deal eventually fell apart in the summer of 2016. This is significant for three reasons. First, the fact that the deal fell apart apparently left the Trump family and Organization feeling justified in covering up the true facts about it. After all, it never actually happened, so what difference does it make? Second, however, Trump, Cohen and others did lie about this. Rather than admit that he had a billion-dollar business deal he was working on after becoming the presumptive nominee of the Republican party for the presidency, Trump and his people developed a “party line,” a false narrative stating that it was never a very big deal and it was all over in January, before it was clear that Mr. Trump would in fact be the Republican candidate for President. By minimizing both the scope of the deal and how long and how deeply Mr. Trump had been engaged in the negotiations, the party line argued that it could have had no significant influence on Mr. Trump’s stance towards Russia and could give Russia no leverage to use over Trump. In fact, it was a potentially very lucrative deal, and Trump was kept well informed of its progress throughout the process until Cohen finally told him in the summer that it had fallen through. This was already after Trump had publicly stated that the deal had ended months earlier; still, he expressed disappointment to hear that the negotiations were at an end.

Third, while not directly stated, we should remember that the Russians themselves knew all about the Moscow Tower plans and that Mr. Trump was lying. Therefore they had leverage they could use at any time; by revealing this information or leaking documents about it, they could embarrass Mr. Trump and possibly undermine his hold on power. So instead of having the possibility of profits to offer him, they had the possibility of blackmail to threaten him with. The fact that he had lied about his business dealings with a hostile and corrupt foreign government thus represents a grave security risk for the United States.

Initially, Michael Cohen resolved to adhere to the “party line” regarding Trump’s Russian business dealings, and to “stay on message” even when he knew the statements he and other members of the Trump Organization (including Trump and his family) were false. Initially, this involved lying to the press and the American people, which is not necessarily a crime; it may seem slimy if you’re inclined to take offense, but that doesn’t make it illegal. However, in May 2017 Congress started looking into Trump’s Russian connections, and this eventually led to Cohen repeating this false “party line” under oath to Congress and later to the FBI. During this time his attorney and Trump’s had a Joint Defense Agreement, and he and his attorney were in constant communication with Trump and his legal team. They helped him prepare his testimony, which included false statements. It is unclear whether the Trump legal team knew they were false; Trump and his family certainly did unless they forgot about a billion-dollar deal they’d been working on for over a year and which had only recently collapsed. Cohen, Trump’s legal team and his family continued to push this false narrative for months after the press began uncovering and publishing more accurate information. It was around this time that Cohen’s troubles with the hush-money payments for Trump mistresses broke, and his need for Trump financial and legal support grew. The Trump Organization continued paying Cohen’s legal fees, his attorney and Trump’s continued working together, and Trump made multiple public statements supporting Cohen as well as sending private messages about how much he “loved” him. Some of these statements included the possibility of a pardon somewhere down the road—IF he remained loyal, didn’t “flip” or “go rouge,” or say anything that contradicted Mr. Trump or cast him in a bad light.

On July 2, 2018, the press reported that Cohen was considering cooperating with investigators even if it put Mr. Trump in legal jeopardy. At this point, Cohen’s office had already been raided by the FBI and evidence (including audio recordings) had been uncovered that he had perjured himself on Trump’s behalf and with Trump’s knowledge during the investigation into the hush-money payments. Faced with irrefutable evidence of his own words on tape discussing the payments with Trump, Cohen negotiated a deal with prosecutors in the Southern District of New York, wherein he pled guilty to eight felonies and agreed to cooperate in further investigations. After that Trump became increasingly hostile. He made public statements that included personal attacks on Cohen and on his family, veiled threats of prosecution on unrelated charges, and continued complaints of “WITCH HUNT” and so on. In the meantime, in written responses to questions from the Special Counsel about Cohen’s testimony regarding the Moscow Tower deal and hush-money payments, Trump claimed to have little memory of the events. Trump refused to answer questions directly. However, Trump’s attorney Rudy Giuliani made public statements that supported Cohen’s version of events and undermined Trump’s, including claiming at the time that Mr. Trump remembered discussing the Moscow Tower months later than he had publicly admitted.

In analyzing Trump’s conduct towards Cohen, Mueller considers the following issues:

  1. Obstructive Act: There are two possibilities here. First, did Trump or others working on his behalf work with Cohen to commit perjury? What the report determines is that:
  2. Michael Cohen did indeed perjure himself, and Mr. Trump knew ahead of time that he intended to “stay on message” and said nothing to him to dissuade him, or to anyone else from making statements Trump knew to be false.
  3. Cohen’s perjury was part of the “party line” he, Trump and Trump’s inner circle had worked on together, in order to obscure Trump’s financial ties to Putin and to Russia.
  4. Cohen and Trump did not directly say, “I intend to lie,” or “Yes, you should lie,” or anything like that. Cohen said he intended to testify before Congress in a way consistent with the statements Trump had made publicly, which were false, so he assumed Trump knew he intended to lie and approved; but no words to that effect were exchanged.
  5. While Cohen said to the President’s counsel that there was more to the Russia deal than he was telling, and Trump’s counsel directed him not to discuss these facts or contradict the President, there is no solid evidence that the President’s counsel knew any details about the Moscow Tower negotiations and specifically there is no evidence that he knew that Trump had lied about it and that directing Cohen not to contradict Trump was tantamount to telling him to commit perjury. The counsel has declined to answer questions about this, citing attorney-client privilege.
  6. Therefore, the report concludes that there is no way, with the evidence the Special Counsel’s office had at that time, to determine whether the President of the United States suborned perjury, or simply passively allowed it and went along after the fact.

Secondly, there is the wider question whether Mr. Trump’s actions would have had the “natural tendency” to prevent Michael Cohen from providing truthful testimony to Congress or to criminal investigators. In the early stages of the investigation, Trump urged Cohen not to “flip,” and the President*’s counsel told him he’d be protected so long as he worked with Trump. Trump publicly praised Cohen and his family, and privately sent him messages such as “the boss loves you.” He thanked Cohen for lying to the media about the hush money payments for his mistresses. And in addition to all the verbal support, there was the financial support the Trump Organization provided Cohen.

Later, when Cohen began cooperating with authorities and negotiating a plea deal, Trump began making public and private attacks on Cohen and on his family. Given the President’s role as head of the Executive branch of the U.S. government, publicly claiming that Cohen’s family should be investigated is more than an idle suggestion; it is close to a threat, since Trump actually has the ability to push to make such an investigation happen. The report diplomatically states: “The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.” So while the report is more or less neutral on the question of whether Mr. Trump directed his former “fixer” to commit perjury, it is more certain that he attempted to stop Cohen from providing truthful information to Congress or to law enforcement.

  1. Nexus to an official proceeding: As Trump admitted in his public statements, he was aware that Cohen was being investigated by Congress, the Special Counsel’s Office, and the U.S. Attorney’s Office for the Southern District of New York. He also made multiple public statements acknowledging that Cohen could cooperate with any or all of these and urging him not to, then called him a “rat” when he did.
  2. Intent: Again couching his terms as diplomatically as possible, Mueller writes: “…there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.” The evidence of this intention include the fact that Cohen made false statements under oath to help Mr. Trump, repeating false statements Trump himself had made, and that Trump knew these statements were false; this means Cohen could reveal him as a liar, and possibly a Russian puppet who had financial strings reaching all the way back to Putin himself. Trump refused to answer questions directly about the Moscow Tower deal, and his written responses to the Special Counsel are inconsistent with statements he made publicly afterwards. And most damning, Trump’s attacks on Cohen’s family have no other reasonable intention except to retaliate against Michael Cohen and to scare him off from further testimony. After all, prior to Cohen’s decision to cooperate with the FBI, Trump knew all about his family and had praised them publicly. After Cohen began cooperating with investigators, Trump began the public attacks on him and his family. He also continued these attacks and repeated them just before Cohen was scheduled to testify before Congress. This timing is suspicious; if he were merely concerned with raising a legitimate concern about possible illegal actions he could have more effectively raised his concerns directly with Attorney General Sessions, and if he were merely trying to influence public opinion then there was no reason to bring the issue up again right before Cohen was due to testify.

At best, then, the President of the United States connived in perjury; he knew Cohen had committed perjury not for his own benefit but solely for Mr. Trump’s, and he thanked him for it. At worst, he actively conspired in perjury. The Special Counsel’s report does not seem to suggest a way to resolve this question. As to whether Trump engaged in “witness tampering,” the Report presents extensive evidence that Mr. Trump was deeply concerned with what Cohen was telling investigators and how it might make Trump personally and the Trump Organization look. His words and actions seem much more likely than not to be intended not merely to “shape the narrative” but primarily to pressure a witness to lie on his behalf. At a bare minimum, given the timing of his events and how much more suspicious they seem as a result, they reflect monumentally bad judgment. So at best, the Special Counsel’s report would have to conclude that regardless of whether there was actual criminal activity, there was incompetence and stupidity that led Mr. Trump to make himself look as guilty as possible of intending to obstruct justice, as well as a severely flawed moral character that was willing to go along with perjury just to avoid embarrassment. Such intellectual and moral deficiencies of themselves are disqualifying for the highest office of the most powerful nation on Earth.

But again, that’s only if one takes what I think to be an overly generous view of the facts. If one takes the more likely view, this is another instance of obstruction of justice; in this case, an attempt to first encourage perjury, then to discourage truthful testimony. It is not just a matter of Cohen and Trump having different stories; Cohen, in many cases, has the receipts to back up his version of events, objective evidence, and has spoken personally and under oath to investigators for many hours. Mr. Trump has avoided testimony under oath, and his written responses to questions have been incomplete and inconsistent. Given a conflict between witnesses, the only logical option is to accept the word of the one who has supporting evidence and is willing to answer follow-up questions and cross-examination. But we will only fully resolve these questions if and when Mr. Trump himself testifies in person and under oath, with whatever objective evidence and witnesses he can muster, in either and impeachment inquiry or a criminal trial, where he can present his defense and be examined to determine the truth.

The President’s Conduct Involving Michael Cohen

We’ve seen multiple instances of arguable obstruction of justice stem from the series of questionable choices beginning with Mr. Trump’s attempts to get Flynn off, and subsequently to cover this up. Michael Cohen had nothing to do with these events. Instead, he handled other activities Mr. Trump wanted hidden from the American people: specifically, two of his adulterous affairs and his extensive business dealings with Vladimir Putin. Of these, the payoffs to former Trump mistresses was of little concern to Mueller; his mandate was to investigate Russian efforts to subvert the American elections and to follow up on any criminal activities related to this. The investigation of violations of U.S. election law relating strictly to domestic affairs 😉 was handed off to other investigators; its only interest to Mueller was whether aspects of the cover-up of Trump’s adulteries played a part in efforts to prevent Cohen from testifying truthfully on other matters. Trump and his attorneys continued to express support and “love” for Cohen, contingent on him agreeing to “stay strong” and not “flip.” His legal bills were being paid by the Trump Organization, and he needed to “stay on message” and in Trump’s good graces for that to continue. Cohen has also testified that the possibility of a presidential pardon was raised in his discussions with Trump’s lawyers. Thus, the situation surrounding the payoffs to silence Trump mistresses left Cohen more inclined to testify as Trump wanted in other matters as well, regardless of the truth.

Much more significant are Cohen’s efforts to help cover up Mr. Trump’s extensive business dealings with Russia and with Putin himself. In this regard, there are several factors to consider, some favorable for Mr. Trump and some damning.

First, the deal to build a Trump Tower in Moscow was a long-time project, going back at least as far as 2015. The plan was for a Russian corporation to build the tower and license the Trump name. Cohen discussed the plan multiple times with Donald Trump, his son Donald Jr. and his daughter Ivanka. Given that the Trump Organization was primarily a real estate business and that licensing the Trump name was a major part of their business, there was nothing unusual about this at the time. Had the plan been carried out, it would have been a billion-dollar deal for the Trump Organization, with little risk or investment on their part since all they were really doing is selling their name.   A preliminary agreement was reached in Fall 2015, and Cohen even discussed Trump possibly flying to Moscow to seal the deal. Therefore, much of this started before Mr. Trump became a serious presidential contender, when he was still primarily a private businessman pursuing his private business. However, Trump was actively involved in negotiations for this deal long after he became the presumptive Republican nominee.

Second, despite Cohen’s efforts and several phone calls between the Trump Organization and Moscow including a twenty-minute conversation between Cohen and a Kremlin staffer, the deal eventually fell apart in the summer of 2016. This is significant for three reasons. First, the fact that the deal fell apart apparently left the Trump family and Organization feeling justified in covering up the true facts about it. After all, it never actually happened, so what difference does it make? Second, however, Trump, Cohen and others did lie about this. Rather than admit that he had a billion-dollar business deal he was working on after becoming the presumptive nominee of the Republican party for the presidency, Trump and his people developed a “party line,” a false narrative stating that it was never a very big deal and it was all over in January, before it was clear that Mr. Trump would in fact be the Republican candidate for President. By minimizing both the scope of the deal and how long and how deeply Mr. Trump had been engaged in the negotiations, the party line argued that it could have had no significant influence on Mr. Trump’s stance towards Russia and could give Russia no leverage to use over Trump. In fact, it was a potentially very lucrative deal, and Trump was kept well informed of its progress throughout the process until Cohen finally told him in the summer that it had fallen through. This was already after Trump had publicly stated that the deal had ended months earlier; still, he expressed disappointment to hear that the negotiations were at an end.

Third, while not directly stated, we should remember that the Russians themselves knew all about the Moscow Tower plans and that Mr. Trump was lying. Therefore they had leverage they could use at any time; by revealing this information or leaking documents about it, they could embarrass Mr. Trump and possibly undermine his hold on power. So instead of having the possibility of profits to offer him, they had the possibility of blackmail to threaten him with. The fact that he had lied about his business dealings with a hostile and corrupt foreign government thus represents a grave security risk for the United States.

Initially, Michael Cohen resolved to adhere to the “party line” regarding Trump’s Russian business dealings, and to “stay on message” even when he knew the statements he and other members of the Trump Organization (including Trump and his family) were false. Initially, this involved lying to the press and the American people, which is not necessarily a crime; it may seem slimy if you’re inclined to take offense, but that doesn’t make it illegal. However, in May 2017 Congress started looking into Trump’s Russian connections, and this eventually led to Cohen repeating this false “party line” under oath to Congress and later to the FBI. During this time his attorney and Trump’s had a Joint Defense Agreement, and he and his attorney were in constant communication with Trump and his legal team. They helped him prepare his testimony, which included false statements. It is unclear whether the Trump legal team knew they were false; Trump and his family certainly did unless they forgot about a billion-dollar deal they’d been working on for over a year and which had only recently collapsed. Cohen, Trump’s legal team and his family continued to push this false narrative for months after the press began uncovering and publishing more accurate information. It was around this time that Cohen’s troubles with the hush-money payments for Trump mistresses broke, and his need for Trump financial and legal support grew. The Trump Organization continued paying Cohen’s legal fees, his attorney and Trump’s continued working together, and Trump made multiple public statements supporting Cohen as well as sending private messages about how much he “loved” him. Some of these statements included the possibility of a pardon somewhere down the road—IF he remained loyal, didn’t “flip” or “go rouge,” or say anything that contradicted Mr. Trump or cast him in a bad light.

On July 2, 2018, the press reported that Cohen was considering cooperating with investigators even if it put Mr. Trump in legal jeopardy. At this point, Cohen’s office had already been raided by the FBI and evidence (including audio recordings) had been uncovered that he had perjured himself on Trump’s behalf and with Trump’s knowledge during the investigation into the hush-money payments. Faced with irrefutable evidence of his own words on tape discussing the payments with Trump, Cohen negotiated a deal with prosecutors in the Southern District of New York, wherein he pled guilty to eight felonies and agreed to cooperate in further investigations. After that Trump became increasingly hostile. He made public statements that included personal attacks on Cohen and on his family, veiled threats of prosecution on unrelated charges, and continued complaints of “WITCH HUNT” and so on. In the meantime, in written responses to questions from the Special Counsel about Cohen’s testimony regarding the Moscow Tower deal and hush-money payments, Trump claimed to have little memory of the events. Trump refused to answer questions directly. However, Trump’s attorney Rudy Giuliani made public statements that supported Cohen’s version of events and undermined Trump’s, including claiming at the time that Mr. Trump remembered discussing the Moscow Tower months later than he had publicly admitted.

In analyzing Trump’s conduct towards Cohen, Mueller considers the following issues:

  1. Obstructive Act: There are two possibilities here. First, did Trump or others working on his behalf work with Cohen to commit perjury? What the report determines is that:
  2. Michael Cohen did indeed perjure himself, and Mr. Trump knew ahead of time that he intended to “stay on message” and said nothing to him to dissuade him, or to anyone else from making statements Trump knew to be false.
  3. Cohen’s perjury was part of the “party line” he, Trump and Trump’s inner circle had worked on together, in order to obscure Trump’s financial ties to Putin and to Russia.
  4. Cohen and Trump did not directly say, “I intend to lie,” or “Yes, you should lie,” or anything like that. Cohen said he intended to testify before Congress in a way consistent with the statements Trump had made publicly, which were false, so he assumed Trump knew he intended to lie and approved; but no words to that effect were exchanged.
  5. While Cohen said to the President’s counsel that there was more to the Russia deal than he was telling, and Trump’s counsel directed him not to discuss these facts or contradict the President, there is no solid evidence that the President’s counsel knew any details about the Moscow Tower negotiations and specifically there is no evidence that he knew that Trump had lied about it and that directing Cohen not to contradict Trump was tantamount to telling him to commit perjury. The counsel has declined to answer questions about this, citing attorney-client privilege.
  6. Therefore, the report concludes that there is no way, with the evidence the Special Counsel’s office had at that time, to determine whether the President of the United States suborned perjury, or simply passively allowed it and went along after the fact.

Secondly, there is the wider question whether Mr. Trump’s actions would have had the “natural tendency” to prevent Michael Cohen from providing truthful testimony to Congress or to criminal investigators. In the early stages of the investigation, Trump urged Cohen not to “flip,” and the President*’s counsel told him he’d be protected so long as he worked with Trump. Trump publicly praised Cohen and his family, and privately sent him messages such as “the boss loves you.” He thanked Cohen for lying to the media about the hush money payments for his mistresses. And in addition to all the verbal support, there was the financial support the Trump Organization provided Cohen.

Later, when Cohen began cooperating with authorities and negotiating a plea deal, Trump began making public and private attacks on Cohen and on his family. Given the President’s role as head of the Executive branch of the U.S. government, publicly claiming that Cohen’s family should be investigated is more than an idle suggestion; it is close to a threat, since Trump actually has the ability to push to make such an investigation happen. The report diplomatically states: “The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.” So while the report is more or less neutral on the question of whether Mr. Trump directed his former “fixer” to commit perjury, it is more certain that he attempted to stop Cohen from providing truthful information to Congress or to law enforcement.

  1. Nexus to an official proceeding: As Trump admitted in his public statements, he was aware that Cohen was being investigated by Congress, the Special Counsel’s Office, and the U.S. Attorney’s Office for the Southern District of New York. He also made multiple public statements acknowledging that Cohen could cooperate with any or all of these and urging him not to, then called him a “rat” when he did.
  2. Intent: Again couching his terms as diplomatically as possible, Mueller writes: “…there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.” The evidence of this intention include the fact that Cohen made false statements under oath to help Mr. Trump, repeating false statements Trump himself had made, and that Trump knew these statements were false; this means Cohen could reveal him as a liar, and possibly a Russian puppet who had financial strings reaching all the way back to Putin himself. Trump refused to answer questions directly about the Moscow Tower deal, and his written responses to the Special Counsel are inconsistent with statements he made publicly afterwards. And most damning, Trump’s attacks on Cohen’s family have no other reasonable intention except to retaliate against Michael Cohen and to scare him off from further testimony. After all, prior to Cohen’s decision to cooperate with the FBI, Trump knew all about his family and had praised them publicly. After Cohen began cooperating with investigators, Trump began the public attacks on him and his family. He also continued these attacks and repeated them just before Cohen was scheduled to testify before Congress. This timing is suspicious; if he were merely concerned with raising a legitimate concern about possible illegal actions he could have more effectively raised his concerns directly with Attorney General Sessions, and if he were merely trying to influence public opinion then there was no reason to bring the issue up again right before Cohen was due to testify.

At best, then, the President of the United States connived in perjury; he knew Cohen had committed perjury not for his own benefit but solely for Mr. Trump’s, and he thanked him for it. At worst, he actively conspired in perjury. The Special Counsel’s report does not seem to suggest a way to resolve this question. As to whether Trump engaged in “witness tampering,” the Report presents extensive evidence that Mr. Trump was deeply concerned with what Cohen was telling investigators and how it might make Trump personally and the Trump Organization look. His words and actions seem much more likely than not to be intended not merely to “shape the narrative” but primarily to pressure a witness to lie on his behalf. At a bare minimum, given the timing of his events and how much more suspicious they seem as a result, they reflect monumentally bad judgment. So at best, the Special Counsel’s report would have to conclude that regardless of whether there was actual criminal activity, there was incompetence and stupidity that led Mr. Trump to make himself look as guilty as possible of intending to obstruct justice, as well as a severely flawed moral character that was willing to go along with perjury just to avoid embarrassment. Such intellectual and moral deficiencies of themselves are disqualifying for the highest office of the most powerful nation on Earth.

But again, that’s only if one takes what I think to be an overly generous view of the facts. If one takes the more likely view, this is another instance of obstruction of justice; in this case, an attempt to first encourage perjury, then to discourage truthful testimony. It is not just a matter of Cohen and Trump having different stories; Cohen, in many cases, has the receipts to back up his version of events, objective evidence, and has spoken personally and under oath to investigators for many hours. Mr. Trump has avoided testimony under oath, and his written responses to questions have been incomplete and inconsistent. Given a conflict between witnesses, the only logical option is to accept the word of the one who has supporting evidence and is willing to answer follow-up questions and cross-examination. But we will only fully resolve these questions if and when Mr. Trump himself testifies in person and under oath, with whatever objective evidence and witnesses he can muster, in either and impeachment inquiry or a criminal trial, where he can present his defense and be examined to determine the truth.

The Mueller Report: I read it for you, but you should read it for yourself. pt 9

July 10, 2019

The President’s Conduct Towards Flynn, Manafort, HOM

            We’ve seen how Mr. Trump’s behavior has become increasingly criminal from the venial “can you see your way to letting Flynn go” he started with Comey up to the “you’d better tell it like I say it happened or you’ll be fired” he threw at Don McGahn. In this section of the report we come to what can only be described as “bribery:” you scratch my back, don’t say nuthin’ to the FBI, and I’ll use my power to get you off scot free. Sometimes the seriousness of the alleged instances of obstruction of justice could be debated, and the Mueller report itself grants that something like a trial is necessary to determine whether Trump’s attempts to interfere always rise to the level of obstruction of justice. Here, the obstruction stinks like week-old sardines. At the same time, there is a madding amount of redacted material in this section. Speculation in the press is that the blacked-out sections refer to Roger Stone, who was still under investigation at the time this report was published. Since we know neither the evidence nor the accused, we must focus instead on the two figures about whom we do have some information.

This issue here is Trump’s transparent and even public dangling of pardons to induce people not to testify, as well as attempts to intimidate them when bribery wasn’t working. In Flynn’s case, Trump made public statements praising Flynn while sending private messages of support, encouraging him to “stay strong.” However, when Flynn began cooperating with the FBI, Trump and his attorneys became increasingly “indignant” and threatening. Even after he pled guilty to lying to the FBI, however, Trump never totally ruled out using his pardon power.

In the case of Paul Manafort, the efforts to interfere in the FBI investigation were even more heavy-handed. Manafort and his subordinate Richard Gates were indicted on multiple felony counts for conduct beginning in 2005 and continuing through 2018. Manafort told Gates in January 2018 that the President’s personal counsel assured him that the President was “going to take care of us” and that they’d be stupid to negotiate a plea deal. Manafort did say that they’d not specifically used the word “pardon” in those conversations. As the Manafort and Gates trials proceeded, Trump privately said he’d never liked Manafort and thought he was incompetent. He also discussed with Rob Porter whether Manafort might know anything that could be damaging to Trump himself. Publicly, however, Trump was effusive in is praise for Manafort and repeatedly said that he thought the FBI investigation was “unfair” because some of the things he’d been investigated for happened a long time ago—ignoring the fact that some of it happened mere weeks earlier. After Manafort’s bail was revoked due to his attempted witness tampering while out on bail, Trump’s personal lawyer Rudy Giuliani publicly said in several interviews that “things might get cleaned up with some presidential pardons.” While he said “no one has been pardoned yet,” he also said pardons were likely if Trump thought someone had been treated “unfairly.” This was followed by a series of public statements by Trump and his legal team that Manafort was in fact being treated unfairly, leading to the logical conclusion that pardons were in the offing so long as nobody “flipped.”

In analyzing the President*’s conduct, the Special Counsel considered the following elements:

  1. Obstructive act: Would Trump’s public praises, public and private threats, and barely-concealed offers of pardons have the natural tendency to prevent witnesses from testifying truthfully? The report concludes that it is unable to determine whether this is true of Flynn since much of the communication was between lawyers and thus was privileged. But in the case of Manafort, much of the evidence comes from public statements and other non-privileged communication. Not only did Trump and his team convey to Manafort that if he was “strong” and didn’t cooperate with the FBI he’d be likely to get a pardon, but when Manafort did finally negotiate a deal he broke it by lying again to investigators. Furthermore, the President*’s public statements during the Manafort trial were likely to sway the jury and were likely attempts to influence their deliberations. At least, any sane, moderately intelligent person would have known that making public statements that the press were likely to repeat and which the jury would likely hear about might influence them, and thus would be improper during the days they were deliberating; yet Trump made such statements anyway. To qualify as an “obstructive act,” it is only necessary to show that the act would have the natural tendency to obstruct an official investigation or trial. Clearly anything that might either encourage a witness to not truthfully cooperate with law enforcement, or might sway a jury during its deliberations would qualify.
  2. Nexus to an official proceeding: Trump’s actions were all connected to official investigations; they took place during either investigations or trials and directly referenced these official proceedings. They also clearly stated his desire that witnesses testify in certain ways.
  3. Intent: The report does not reach a firm conclusion as to why Trump behaved towards Flynn as he did. Even after Flynn had begun cooperating with Mueller and had pled guilty to lying under oath, Trump continued to express sympathy towards him. It seems clearer that his behavior towards Manafort was intended to persuade him to either lie or at least stay silent. While Trump continued to express sympathy for Flynn pretty consistently, he privately expressed dislike and disdain for Manafort while publicly praising him and complaining that he was being treated “unfairly.” Thus his public statements were not true expressions of his actual feelings, and were instead intended for some other purpose. That purpose was to encourage Manafort not to say anything that might hurt Trump; we don’t have to speculate about that because so much of this was carried out on Twitter. The repeated message, publicly and covertly, was that Manafort should not “flip” and say anything harmful about Trump, and that if he remained “strong” and loyal he would be “taken care of,” likely through a presidential pardon. Furthermore, Trump’s public praise of Manafort could be considered an effort to influence the jury. Again, while he actually didn’t think much of Manafort, in public statements the jury would be likely to see or hear while deliberating he praised him for his public service, his strong character, and bemoaned the “witch hunt” and “hoax” trial in which they were the jury. Even so, the report holds out the possibility that maybe Trump was not really engaged in jury tampering but was only expressing genuine sympathy; only a trial, an impeachment inquiry or some other public hearing of that sort, where all the evidence could be presented and argued, could determine this with more certainty.

Some have said that Trump does nothing wrong to suggest he might pardon people while they are on trial or are considering whether to cooperate with an official investigation. After all, doesn’t the Constitution give the President the right to grant pardons? By that argument, he could have just offered them money; the Constitution also gives the President the right to give money to anyone he (or she) chooses. What makes it corrupt is the intention. The Constitution envisions the President using the pardon power to undo miscarriages of justice, not to influence witnesses away from truthful testimony. And the Constitution grants the President and anyone else free speech, but not the right to try to influence a jury’s deliberations. Bribery, suborning perjury and jury tampering are very serious charges, and to suggest they are less serious because they are done by a President using Constitutional powers is like suggesting murder is less serious if it is done by a doctor using his drugs and medical training to kill instead of to heal.

The Mueller Report: I read it for you, but you should read it for yourself. pt. 8

July 10, 2019

 

The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel

            Mr. Trump apparently obstructed justice to cover up an attempted obstruction of justice meant to hide his earlier obstruction of justice.

            As we saw in Volume One of the Special Counsel’s report, there were many contacts between official and unofficial agents of the Russian government as part of Russia’s efforts to hurt Hillary Clinton and to help elect Donald Trump.  Sometimes the Trump campaign personnel might have been unaware or uncertain as to who was ultimately pulling the strings, such as when Roger Stone colluded with WikiLeaks without necessarily knowing for certain that their source Gruciffer 2.0 was in fact Russian military intelligence.  Other times, such as Donald Trump Jr.’s meeting at the Trump Tower, they definitely did know they were working with the Russian government to affect the outcome of elections in the United States, and eagerly cooperated.  During the campaign some of these efforts came to the knowledge of the U.S. intelligence community, but GOP leaders such as Sen. McConnell worked to cover them up.  After the election, counterintelligence and criminal investigations continued, eventually leading to a number of indictments, arrests and convictions, with fines exceeding the costs of the investigations themselves according to official figures cited by the White House.  Among these was the investigation and conviction of Michael Flynn for lying to the FBI under oath.  Mr. Trump’s attempts to interfere with this investigation became the first possible obstruction of justice incident discussed in Volume Two of the Mueller report.  Trump’s involving himself in that investigation led to questions of his own complicity, and his efforts to squash those questions involved him in more potential acts of obstruction of justice, and ultimately compelled the appointment of a Special Counsel.  This in turn led to still more acts of potential obstruction, including his efforts to fire Special Counsel Mueller, efforts that were thwarted primarily by the fact that those around Trump refused to follow his instructions.

            In late January 2018, The New York Times reported that Mr. Trump had ordered Don McGahn to fire Robert Mueller based on bogus allegations of conflict of interest, and that McGahn had threatened to resign rather than carry this order out.  The Washington Post later corrected that story, reporting that McGahn had not in fact told Trump he would resign rather than carry out his instructions.   In response to these reports, Trump ordered McGahn to publicly deny that he had ever attempted to have Mueller fired, and that the entire story was “fake news.”  He also instructed that McGahn should write out a memo stating that Trump had never ordered Mueller be fired, so the White House would have the statement for their records.  As we have seen, the Mueller report concluded, based on multiple eyewitness accounts given under oath, that something like the Post report was true:  Trump did demand that Mueller be removed and McGahn had refused to carry though on those instructions.  He had not threatened to resign, however, so the Times version was wrong on that point alone; he had discussed resigning with others and had been talked out of it, and in the end Trump had given up on his efforts to fire Mueller.  McGahn therefore said that he would not dispute the press reports since they were mostly accurate.  Trump repeatedly insisted that he had never said Mueller should be fired, largely disputing whether he had used the word “fired.”  McGahn countered that his memory was that regardless of the exact words, the order itself was as reported, that “Mueller has to go;” and furthermore, he had taken notes of the conversations to help his memory.  Trump demanded to know why McGahn took notes; McGahn replied that he was “a real lawyer” and real lawyers take notes of important meetings and conversations.  Trump sent intermediaries to McGahn to tell him he’d be fired if he didn’t make a public statement disputing the Times and Post reports; he replied that the President* wouldn’t dare fire him because the optics would be terrible.  McGahn also said that he thought Trump was “testing his mettle” by repeatedly challenging his memory of their conversations, since it was so obvious that he was certain and would not change his mind.

            In analyzing this episode, the Special Counsel considered the following elements:

1.     Obstructive Act:  The report specifically examines the repeated efforts to not only get McGahn to deny the New York Times story, but to create a written record denying the account which the White House could keep, in Mr. Trump’s words, “for our records.”  Did Trump genuinely and simply have a different recollection of events?  Or was his continual effort to get McGahn to create a record different from what he had told the FBI part of an effort to create a false story which could be used to undermine McGahn if he testified truthfully about these events?  While the report states, “There is some evidence that….the President believed the stories were wrong and that he had never told McGahn to have Rosentein remove the Special Counsel,” it continues, “Other evidence cuts against that understanding of the President’s conduct.”  This latter evidence includes McGahn’s behavior at the time, which is consistent with his having been given instructions to have Mueller fired and resisting those orders, as well as the repeated efforts by Trump to have others push for Mueller’s removal for what they themselves regarded as “silly” and insubstantial reasons.  Furthermore, there was Trump’s careful language; he didn’t so much deny to McGahn that he had wanted Mueller removed, but rather that he had used the word “fired.”  He didn’t deny to McGahn that he had suggested that “Mueller has to go,” for example.  Finally, the report states that even if Mr. Trump had sincerely believed that McGahn’s memory was faulty, he knew full well that McGahn was convinced that he had told the truth and that the Times and Post reports were essentially correct, and that he would have no part in refuting them for that reason.  Continuing to push McGahn and even threatening to fire him if he did not make a written statement he believed to be false seems designed to make it difficult for him to testify to what he thought to be the truth.

2.     Nexus to an official proceeding:  When the Times story broke, there was already a grand jury investigating several obstruction-related events, and Trump was even roughly aware of what those were because his personal lawyers had been discussing his possible testimony.  Trump’s attempt to get McGahn to write a letter “for our records” which McGahn thought to be false goes well beyond the sort of “press strategy” he used to try to cover up the Trump Tower meeting between his aides, family and Russian agents.  The only reason to need a written record was to use in possible legal proceedings; therefore, the nexus exists and the written letter Trump desired would have been pointless if it did not.

3.     Intent:  The report cites extensive evidence that Trump’s intention was not to test McGahn’s memory or even to challenge it, but to change his possible testimony regarding Trump’s efforts to undermine and influence the Mueller investigation.  In particular, Trump’s alarm that McGahn had written notes at the time to help ensure his memory remained accurate is damning.  If Trump were interested in the truth, he would have welcomed such attention to accuracy; instead, he was angry because he feared it could create more legal problems for him.  Simply put, the evidence is that he feared the truth and wanted McGahn to cooperate in creating a false story that would protect Mr. Trump from an obstruction-of-justice charge stemming from his efforts to end the Mueller investigation by getting rid of Mueller himself.

            While the initial incident, asking Comey to go easy on Flynn, could be seen as fairly petty, that initial misstep has led to graver acts of obstruction of justice.  At this point, by attempting to force McGahn to testify falsely as to his own memory, Donald Trump appears to be suborning perjury.  Whether this “appears” is ever proven one way or the other depends on whether there is ever an impeachment inquiry or criminal trial at which evidence could be presented by and against Mr. Trump and a fair, open determination made.

The Mueller Report: I read it for you, but you should read it for yourself. pt. 7

July 2, 2019

The President’s Further Efforts to Have the Attorney General Take Over the Investigation

From summer 2017 through 2018, Mr. Trump pressured Attorney General Jeff Sessions to reverse his recusal, take control of the Special Counsel’s investigation into Russian subversion of our nation’s elections (and specifically of Russia’s intense campaign to help elect Trump, an effort that included over 200 contacts between Trump’s campaign and Russian operatives), and to order an investigation of Hillary Clinton despite the fact that multiple investigations by the FBI and Republican-controlled Congress had not found any significant wrongdoing. This episode includes more examples of Trump’s own people thinking his orders were so irrational or illegal that they simply refused to carry them out. Jeff Sessions testified that Trump asked in July 2017 to “unrecuse himself” so that he could order an investigation of Ms. Clinto, and to unrecuse from “all of it” including the Russia investigation in which he was himself both witness and potential target. About that same time Mr. Trump asked Staff Secretary Rob Porter about Associate Attorney General Rachel Brand, and specifically whether she was “on the team” and whether she would like to be responsible for the Special Counsel’s investigation and whether she would want to be Attorney General.   Porter considered the idea of reaching out to her in this manner to be inappropriate, and did not do as the President ordered. It seems that the Deep State that Mr. Trump complains is undermining his efforts to be the Best President Ever is made up largely of his own advisors and staff refusing his demands. Don McGahn and Hope Hicks both testified that Mr. Trump regarded Sessions as disloyal for having recused himself from the Russia investigation, since it meant he wouldn’t be able to shield Trump or to prosecute those he wished to target. From October through December Trump repeatedly asked Sessions to “unrecuse” like Ralphie trying to get a Red Ryder BB Gun. He was always careful not to demand it, but to suggest, request, ask him to think about it, and then tweet about how unfair and incompetent it was that no one was investigating Clinton while he was being so sorely persecuted, or suggest in press interviews that his AG was less loyal than others because he didn’t protect him. Finally, after a year and a half of public statements and private pressure on Sessions to block investigation of Russian contacts with his campaign, and to investigate his rival instead, Mr. Trump finally fired Jeff Sessions.

Mr. Mueller considered the following elements to be relevant to the question of obstruction of justice:

  1. Obstructive Act: Would having Sessions reverse his recusal and take charge of the investigation naturally impede its activity? Mueller did not ask what Sessions would or would not do if he had unrecused himself; there is no way to know. Instead, he asked whether the President*’s actions to get him to do so would themselves have had the natural effect of impeding the Russia investigation. In this regard, the report states, “On multiple occasions in 2017, the President spoke with Sessions about reversing his recusal so that he could take over the Russia investigation and begin an investigation and prosecution of Hillary Clinton… The duration of the President’s efforts—which spanned from March 2017 to August 2018—and the fact that the President repeatedly criticized Sessions in public and in private for failing to tell the President that he would have to recuse is relevant to assessing whether the President’s efforts to have Sessions unrecuse could qualify as obstructive acts.” This does not directly state that yes, there was an obstructive act. However, had Sessions taken over the investigation, it would have been with the understanding that he would not look at what Trump did not want examined, and that he was to look at whatever Trump did want investigated. In other words, had Sessions followed the President’s request to take over, he would have been doing so with full knowledge that his taking over was to allow the President to control the investigation for his own ends.
  2. Nexus to an official proceeding: While all these efforts to meddle were going on, there were two grand jury investigations which could have been affected. Again, the report does not directly say that they would have been affected, but only that the public and private statements of Mr. Trump were that he wanted Sessions to take over so he could affect these investigations.
  3. Intent: The report states, “There is evidence that at least one purpose of the President’s conduct toward Sessions was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope.” He knew by then that he was already under investigation for possible obstruction of justice in his efforts to protect Michael Flynn, and that his son Donald Jr., his son-in-law Jared Kushner and his former campaign manager Paul Manafort were also under investigation. Mr. Trump continually complained to Sessions and others that he was not being treated “fairly” and that he wanted his opponent investigated and prosecuted for something. The report concludes that it is “a reasonable inference…that the President believed that an unrecused Attorney General would play a protective role and could shield the President from the ongoing Russia investigation.”

Mr. Trump has stated repeatedly that be thinks the job of the Attorney General is to be the personal attorney for Donald J. Trump at taxpayer’s expense, not to do the business of the people and government of the United States of America in an impartial and nonpartisan manner. Up until the time that Mr. Sessions was fired and replaced by William Barr, Trump’s efforts to use the Attorney General for personal and partisan business was thwarted by those around him who did not want to be involved in potential obstruction of justice, or who simply thought the President was behaving in an irrational and self-destructive manner and thus sought to save him from himself by promising to carry out his fool notions with no intention of actually doing so.