Posts Tagged ‘KT McFarland’

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

May 23, 2019

In Volume II of the Special Counsel’s report, Mueller describes ten areas that could represent obstruction of justice. In each case, he presents all the evidence he was able to gather, including facts as testified by eyewitnesses or by intelligence sources, as well as areas where he was not able to ascertain the facts because witnesses, including the President* lied, refused to answer or claimed not to remember.   After presenting the history of the events and all the evidence he had available, he offers an analysis as to whether each of the three essential elements for an obstruction of justice case were present: the obstructive act, the nexus to an official investigative proceeding, and the intent. Some of these, on close consideration, he does not seem to consider obstruction. In no case does he come out and say that any is obstruction; as we’ve seen, he had already ruled out any possibility of making that determination himself, since he sees this as the job of Congress. But in some cases, he states that the three essential elements definitely appear to be present, thus leaving the reader with the only logical conclusion that the White House was in fact obstructing justice and continues to do so.

  1. The President’s Conduct Related to the Flynn Investigation

Before Michael Flynn began his work as Trump’s National Security Advisor, he had two phone conferences with the Russian ambassador. Since there is only one President at a time and until January 20th that was Obama, it was improper for him to discuss foreign policy matters. Nevertheless, Flynn discussed the sanctions Obama had imposed on Russia in retaliation for its interference in our election. While lying to the press is not a crime, Flynn lied under oath to the FBI about these calls, which is a crime. These lies occurred while Mr. Trump was President. And because he had committed a crime and Russia knew about it, he was vulnerable to being blackmailed by Russia. This was a serious matter. The President had a private dinner with James Comey, the director of the FBI, and asked for him to swear loyalty to Mr. Trump personally, and shortly thereafter asked him to go easy on Flynn. He also fired Sally Yates, then Acting Attorney General, who initially brought concerns about these lies to White House attention. Despite having been briefed before becoming President about the Russian efforts to subvert our nation’s electoral process, and advice from his own advisors that Flynn had possibly violated U.S. law, it was not until Feb. 13 that Flynn was finally forced to resign, and even then White House efforts continued to cover for him.

  1. Obstructive Act: Comey claimed that Trump privately asked him to “let Flynn go.” Trump disputed Comey’s account, but Mueller points out that there is good evidence that Mr. Trump lied; not only did Comey testify under oath (something Trump has refused to do) but there were independent witnesses that Trump did indeed hustle everyone else out of the room so he could talk privately, which he denied. Was this really an “obstructive act,” or merely Trump expressing the wish that Flynn be spared further humiliation? Mueller argues that it was obstruction. First, Trump arranged to make the statement privately, suggesting that it was intended as a request that he did not want others to overhear. Second, he was Comey’s boss, and when your boss says “I hope you’ll do this,” that is generally a request. His thrice-repeated “let this go” reinforces the view that this was an order.
  2. Nexus to a proceeding: At the time of this clandestine meeting, there were no grand jury subpoenas out as part of the FBI investigation. However, everyone in the White House knew that Flynn had lied, that this was a violation of U.S. law, and that the FBI at least might prosecute. Thus there was a nexus to a possible proceeding, and attempting to head off such a possibility qualifies as obstruction of justice.
  3. Intent: While there was an attempt to get McFarland to falsely claim that she knew President Trump had not directed Flynn to discuss sanctions, there is no evidence that at that moment he actually had directed Flynn to do so. There is therefore no evidence that Trump was trying to cover up any criminal activity of his own. That is significant, since it goes to the question of intent: did Trump intend a cover-up? Did he have a personal stake in Flynn’s fate?

What Mueller did find is that while Trump may not have had a personal legal stake in the Flynn investigation, he did have a personal emotional stake. He considered and still considers any mention of Russian interference to be a challenge to his legitimacy and to the greatness of his achievement. There is evidence that Flynn was fired to try to end the Russia inquiries, that Trump reacted with “annoyance and anger” when the Flynn story broke because he thought it made him look bad, and that when told that firing Flynn would not end things he tried to pressure Comey to wrap things up. Also, while Trump has been publicly supportive of Flynn, privately he has been disappointed and angry and has mostly been motivated to keep Flynn from saying negative things about him. Overall, Mueller shows that Trump’s concerns were personal, rather than motivated by sympathy for Flynn or concern for justice: he didn’t want to look bad and thought that Flynn’s actions cast doubt on Trump himself.

Thus, the Special Counsel finds that all three elements of an obstruction of justice seem to be present:  the obstructive act itself, the official investigation which is being obstructed, and the motive to do so.  To confirm whether this is in fact obstruction of justice, and to punish the violation of law if it is, requires that Congress investigate and hold impeachment hearings; no other remedy is permitted under DOJ guidelines, while impeachment and possible removal is.  After removal from office, the DOJ guidelines forbidding prosecution of a sitting POTUS would no longer apply, and a criminal investigation could proceed.

To be continued….