Posts Tagged ‘Rudy Giuliani’

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.