Posts Tagged ‘Attorney General Sessions’

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.

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(c)

May 29, 2019
  1. The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation

The second area of concern for the Mueller Report is Trump’s reaction to the FBI investigation of Russia’s efforts to disrupt and control the U.S. elections, including connections between the Trump presidential campaign and Russian intelligence. As discussed in Volume One of the report, there were extensive connections between the Kremlin and Trump Tower, but ultimately the Special Counsel decided he could not establish that there was a conspiracy. There was extensive indirect coordination, and both sides definitely acted in ways that benefitted the other and expected to benefit from the other; but given the apparent lack of concrete payoff for Russia, Mueller decided that there was not a full-blown conspiracy, at least not one he could prove with the evidence he had. But even if there is no “crime,” there can still be an obstruction of attempts to investigate. Mueller discusses efforts by Donald Trump to take control of the investigation, and the reasons he sought to do so. In early March, Trump learned that Sessions was intending to recuse himself from the Russia investigation. Sessions considered this a no-brainer; he was part of the Trump campaign and thus a potential subject of investigation, so for the investigation to have a shred of credibility he had to step away. Furthermore, there were those two meetings he had with the Russian ambassador which he had not disclosed to Congress. Again, Mueller did not find anything nefarious in those meetings, but they had to be investigated and so Sessions had to recuse. This was also the advice he received from the ethics officers at DOJ. Trump by contrast expressed his concern that if Sessions recused himself he’d be unable to protect Trump from investigation, which Trump considered more important than whether the investigation would have any credibility. After the recusal, White House ethics officers stated that the White House should have no further contact with Sessions about this topic; nevertheless, Trump personally continued to press Sessions to unrecuse himself.

By March 20th, FBI Director Comey was authorized to publicly confirm that there was an active investigation of Russia’s interference in our election, but to refuse to comment about any particular persons who might or might not be under investigation. Comey followed these instructions, refusing to tell Congress whether or not Mr. Trump was being investigated. This is said by the report to have made the President’s frustration “worse,” and that’s after previous testimony had described the White House as “in chaos.” Trump is described as being “beside himself,” and began considering by the 21st whether he could fire Comey without a specific cause. The evidence presented is that White House and DOJ officials advised that firing Comey would make things worse, not better, as it would not shorten the investigation and would look suspicious.

Mr. Trump also repeatedly asked other intelligence community officials, such as then CIA Director Pompeo and Director of National Intelligence Dan Coats if they could make public statements that he, Donald Trump, was not under investigation. Both of these men gave testimony that differed substantially from that given by their staff and other witnesses. In particular, the report says that Pompeo was asked to stay behind after a meeting to talk privately with Trump, but he said he had no such recollection. This is significant because, as Mueller stated earlier, a desire to discuss things privately suggests that Trump may have realized that he was suggesting something irregular that had to be concealed from other aides and officials. More significant are the discrepancies in Dan Coats’ testimony; his staff confirmed that he said he’d been asked to contact Comey about the FBI investigation and felt it was an improper order, while he testified Mr. Trump never asked him to speak to Comey. As well as repeatedly complaining to Coats about the investigation, Trump also contacted the NSA Director, Admiral Michael Rogers, and asked him if he could publicly refute the notion that Trump himself was under investigation. This request, witnessed by the Deputy Director as well, was said to be “the most unusual thing” the Deputy Director had experienced in 40 years of government service, and struck both of them as so strange and improper that they immediately drew up a memorandum, signed it together, and put it in a safe. However, Director Rogers said he did not interpret it as an “order” so he did not do anything about it.

On March 30 the President directly contacted Comey and asked him to “lift the cloud” over him concerning the Russia investigation. Comey contacted his immediate supervisor at DOJ, Mr. Boente, about the conversation, asked for guidance, and said he was uncomfortable with the fact that the President was directly contacting him about this. At this time, Trump was not in fact under direct investigation, and his concern was to get that word out. Trump said it was fine to investigate his “satellites” but he wanted the world to know that he himself was not being investigated. So he was not asking anyone to lie, but he was interfering with the investigation by pushing to have information publicly released before the investigation was concluded. Also, a public statement that he was not being investigated could have hindered a future investigation if one became necessary.

  1. Obstructive Act: There is some question in the report whether there was an obstructive act at all. The principle persons involved, Pompeo, Coats, Rogers and apparently even Comey, did not feel that Mr. Trump’s repeated pleas for public statements of his innocence were “directives to improperly interfere with the investigation,” and in fact they often did not carry out those requests because they saw them as foolish or improper requests but not direct orders. But other witnesses testified that at the time Coats at least did feel that he had received just such a directive to improperly interfere, i.e. obstruct the investigation.
  2. Nexus: Since all these actions by the President came as a result of the investigation of Russian interference in our elections, there is a nexus to an official proceeding even though it had not reached the grand jury at that time.
  3. Intent: At this time Trump was not trying to shut down the investigation; he agreed that if “some satellite” of his had been working with Russia “it would be good to find that out.” But it is clear that he had personal reasons for involving himself in the investigation; it was interfering with his desire to develop closer ties to Russia, and he felt that the implication that Russia had helped elect him undermined the greatness of his electoral victory.

Overall, then, this is less clearly a case of obstruction of justice than the Flynn episode seems to be. The nexus to an investigation is clearly established. The intent to intervene for personal and political reasons, rather than simply for the good of the nation and the integrity of the investigation, is a bit less clear but Mueller seems to feel this too is established. In fact, Trump’s repeated efforts to clear his name troubled those he contacted as possibly improper and definitely irregular, and in fact he was advised against these repeated outreaches to Comey and Sessions by his own advisors and legal counsel partly because it would tend to undermine the integrity and credibility of the investigation. The real question is whether there was in fact a real obstructive act. Was Mr. Trump ordering people to interfere in the investigation, or was he merely venting? Was he trying to clear his name because he knew or believed he had done nothing wrong, or was he trying to drag others into a cover-up? Mueller gives more weight to the testimony of Coats and the other officials than to other witnesses, partly because only they were at these private meetings with the President while other witnesses mostly recalled what their bosses said or did immediately afterwards. This might have been ruled mere hearsay in court, though an impeachment hearing might give this testimony a different weight. While a later investigation, either an impeachment or a criminal trial after Mr. Trump leaves office, might wish to look harder at this evidence and try to resolve the discrepancies, the Mueller Report simply presents the sometimes conflicting testimony and leaves it there for the reader’s consideration.