Posts Tagged ‘Jeff 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 for yourself. pt 5

June 26, 2019

The President’s Efforts to Curtail the Special Counsel Investigation

We may never know why Mr. Trump ordered Mueller to be fired, then changed his mind. Did he give the order in a fit of temper and either reconsider or lose interest once he’d calmed down a bit? Was he eventually persuaded that his concerns about conflicts of interest were so flimsy they would only embarrass him if he kept pushing them? Does he in fact have so little attention span that he simply forgot, as some books have suggested? Or did he decide that derailing Mueller’s investigation would work better than sacking him? Perhaps an impeachment inquiry or criminal prosecution after he leaves office will reveal more, if Mr. Trump is compelled to testify under oath. What we do know, however, is that the efforts to shut down the investigation were not limited to trying to get rid of the chief investigator.

Two days after McGahn refused to order Rosenstein to fire Mueller, Mr. Trump ordered Corey Lewandowski to take a message to Jeff Sessions ordering him to unrecuse himself and take charge of the investigation. The idea was not to simply shut it down, but rather to forbid the FBI from actually investigating any crimes; instead they were to only look at what the Russians had done and how to prevent them from doing it again, without considering whether Trump or anyone else had committed any crimes. This was unusual since Lewandowski had no government position and hence had no real reason to be carrying instructions or memos between the White House and the Department of Justice, aside from the fact that he was known for being utterly loyal to Mr. Trump and hence perhaps more likely to do as he was told. Trump dictated a letter to Sessions stating that Sessions was to announce that since the President was being treated very unfairly, he had decided to unrecuse himself; furthermore, unless Sessions made this statement as dictated and restricted the investigation as instructed, he would be fired. Lewandowski decided that, given the sensitive nature of this message, he should hand it to Sessions in person; but after several unsuccessful attempts to arrange a meeting where he could do so, he decided to give the memo to Rick Dearborn, a senior White House official who had a dinner appointment with Sessions. Lewandowski says that while he thought Trump had tasked him with delivering this message because of his loyalty, Dearborn would be able to do it better because he actually did work for the government and had a long relationship with Sessions. However, when Dearborn saw the message he was to deliver, he became extremely uncomfortable and did not deliver it; although he said he had “handled the situation” he in fact refused to deliver the message and instead threw it away. At this same time Mr. Trump, not knowing the speech he intended Sessions to deliver had not been passed to him, called an impromptu news conference to talk about how “unfair” it was for Sessions to recuse himself from the Russia probe, and to state that Sessions might not be allowed to continue as Attorney General. Trump followed this up by demanding that Reince Priebus, his Chief of Staff at the time, fire Sessions. Ostensibly this was because Sessions had falsely denied discussing campaign-related matters with the Russian ambassador, but those around him believed the real reason was what Trump had been saying for months: his anger over Sessions’ recusal from the Russia investigation. Priebus resisted, and when Trump insisted Priebus lied and said he’d get Sessions to resign even though he had no such intention. Eventually he was able to convince Trump that if they fired Sessions the second and third ranking people at DOJ, Rosenstein and Rachel Brand, would also resign, and that he would be unable to get anyone confirmed by the Senate to replace them.

The testimony given under oath to Mueller paints a picture of chaos and dread. Hope Hicks said she wanted to “throw herself” between Trump and the press during his July 19 interview lambasting Sessions, but he loved it and loved the coverage it got afterwards. Priebus and McGahn discussed resigning rather than go along with the plan to fire Sessions. Sessions wrote out another letter of resignation and carried it with him whenever he went to the White House after these events. Again, the only thing that prevented a major Constitutional breakdown, with possibly the entire leadership of the Department of Justice resigning , was the refusal of Trump’s underlings to obey orders they thought were “all wrong.” At times they lied and stalled until his temper cooled down, other times they kept trying to talk him out of whatever self-destructive, government-destructive action he was demanding. The whole time he seems to have been loving the press coverage his attacks on Sessions were getting, and his major concern was to time his actions so as to avoid bad coverage during the Sunday news programs.

In considering whether Trump’s efforts to have Lewandowski deliver an ultimatum that he either rein in the Mueller investigation or be fired, the Special Counsel considered the following elements:

  1. Obstructive act: Would these actions naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry? Undoubtedly; Mueller writes that “Taken together, the President’s directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign…” so the entire point of the President’s actions was to obstruct the investigation.
  2. Nexus to an official proceeding: It was public knowledge that there was already a grand jury investigation of the Trump campaign by this time. We don’t know too much about that because this part of the report is redacted.
  3. Intent: Mueller writes: “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.” Or to put it bluntly: Trump was trying to cover up his own past misdeeds and those of his employees. In particular, Mueller notes that Trump sought to use Lewandowski, someone outside the government who was known to be extremely loyal, to communicate with Sessions, rather than simply talk to him directly or use normal government channels, suggesting that Trump was trying to hide his message to Sessions and to avoid any official record of having communicated with him at all. And it might have worked, if Lewandowski had managed to deliver the message himself instead of passing it to Dearborn to deliver. Dearborn was so freaked out when he read the message he was supposed to pass on that “he recalled not wanting to ask where it came from or think further about doing anything with it,” and instead lied about delivering it and instead trashed it.

Legal experts agree that the fact that Trump failed to obstruct justice because his staff refused to cooperate (or in the case of Lewandoski bungled the job) does not make it any less a crime, just as we routinely throw terrorists in jail for planning bombing attacks on this nation even when they end up talking to an FBI informant instead.

The Mueller Report: I read it for you, but you should read it yourself. pt. 4

June 26, 2019

The President’s Efforts to Remove the Special Counsel

Of all the consequences of firing Director Comey, the worst from Trump’s perspective was the appointment of a Special Counsel to lead the investigation into Russian subversion of our electoral process. This was, of course, inevitable, given the gravity of the question of the integrity of our elections, the lack of trust most Americans had that the President would address the problem in an honest and impartial manner, the deep concerns of most of the nation’s law enforcement and counterintelligence agencies, and the fact that almost everyone else was either a potential suspect or a witness at this point. This was totally predictable and unavoidable in the view of anyone with any political sense or understanding of how American government works, but it caught Mr. Trump completely by surprise. The report states: “According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’” Given that Clinton survived a Special Prosecutor with far more sweeping powers and far less neutrality than Mueller had, this seems rather melodramatic. He then became angry at Attorney General Sessions for not protecting him. I have to confess, I have to agree to a point, given that Sessions apparently recommended firing Comey and the appointment of a Special Prosecutor to take over the investigation after that was as predictable as a third Sharknado movie.   Several witnesses report that Trump was in a rage, and he demanded Sessions resign. Sessions agreed, wrote out his resignation letter and handed it to Trump. Trump decided let Sessions stay as AG, but refused to return the letter until other advisors pressured him over several days to do so.

All of this seems understandable given Mr. Trump’s well-known temper and political ignorance, and by itself not very significant. His later efforts to hit back at the Special Counsel before he even began his work, however, were more questionable. Trump began pushing for Special Counsel Mueller to be removed, alleging conflicts of interest. His own advisors told him his claims were, in Bannon’s words, “ridiculous and petty” and Department of Justice ethics officials examined the question and found no cause for concern. Despite this, Trump pressured White House Counsel McGahn to push Deputy AG Rosenstein to fire Mueller over these alleged conflicts. McGahn pushed back, telling Trump that firing Comey wasn’t even his “biggest exposure” compared to his “other contacts” and his efforts to end the Flynn investigation. The report goes on to describe increased pressure from Trump to fire Mueller, and apparent efforts by various advisors and staff to derail these efforts by leaking them to the press, refusing to cooperate and so on. McGahn even prepared to resign rather than participate in firing Mueller, though ultimately he was talked out of resigning by Steve Bannon and Reince Priebus. In the end McGahn did not resign, and Trump did not ask him the next day whether he had instructed Rosenstein to fire Mueller as Trump had wanted.

The Special Counsel considered these facts to be relevant to determining whether this behavior constitutes obstruction of justice:

  1. Obstructive Act: The report considers whether firing Mueller would have naturally delayed, chilled or otherwise impeded any further investigation. After all, firing Mueller would probably have meant he was replaced, but even so the investigation could have been crippled. Therefore, the proposed firing could have obstructed the investigation. It is also crucial to consider whether Trump actually ordered Mueller fired, or merely suggested the DOJ investigate these alleged conflicts of interest. Ultimately, the report rejects Trump’s denials that he ordered McGahn to order Rosenstein to fire Mueller; not only did it find McGahn a more credible witness than Trump with no motive to lie, but his other actions supported his story, other witnesses corroborate parts of it, and DOJ was already well aware of the allegations Trump was making and had concluded they were baseless. So Mueller’s office found Trump’s claim that he was merely making a suggestion that they look at these supposed conflicts to be unbelievable, while McGahn’s claim that Trump told him “Mueller has to go” likely true.[1] Thus we have an attempt to perform an act that would be likely to impede further investigation; this attempt was not carried out only because McGahn refused to do as ordered, and Mr. Trump was either persuaded to drop the matter or otherwise lost interest in it, as he lost interest in firing Sessions.
  2. Nexus to an official proceeding: By this time Mr. Trump knew he was under investigation; he had been warned by McGahn of his legal exposure, the Special Counsel’s office had informed the White House that they’d be interviewing witnesses to Trump’s interference in Comey’s investigation, and Trump himself tweeted that he was under investigation. Therefore, he knew there was an official investigation which could be crippled or completely derailed by firing the Special Counsel, yet he sought to do so anyway.
  3. Intent: “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked… to reports that the President was being investigated for potential obstruction of justice.” From his immediate “I’m fucked” to his pushing previously refuted allegations against Mueller and finally to his ordering Mueller be fired, it is clear that he was primarily concerned with protecting himself; and his later denials of having ordered McGahn to fire the Special Counsel suggest he knew the order could be seen as improper.

Once again, the report cites the existence of all three essential ingredients of an obstruction of justice: the act itself, the investigation to be obstructed, and the intent to do so. Mr. Trump had the desire to end the investigation and discussed “knocking out Mueller” by alleging conflicts of interest which his own people described as “silly” and “not real.” The only reason he did not “knock out Mueller” was that his own staff and advisors, realizing the enormity of his proposed actions (McGahn described it as “crazy shit”) refused to cooperate. Attempted obstruction of justice, like attempted murder, is still prosecutable; whether this act does indeed rise to the level of criminality is something that can only be determined, says Mueller, by an impeachment hearing before Congress, where all evidence can be presented and the President can offer his defense against the charges.

[1] Of course too, McGahn answered questions under oath and in person; Trump has refused to do 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.