Archive for July 10th, 2019

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.