Posts Tagged ‘The Mueller Report’

The Mueller Report: I read it for you, but you should read it for yourself. pt. 9

July 13, 2019

The President’s Conduct Involving Michael Cohen

            We’ve seen multiple instances of likely obstruction of justice stem from the series of questionable choices beginning with Mr. Trump’s attempts to get Flynn off, and subsequently to cover this up. Michael Cohen had nothing to do with these events. Instead, he handled other activities Mr. Trump wanted hidden from the American people: specifically, two of his adulterous affairs and his extensive business dealings with Vladimir Putin. Of these, the payoffs to former Trump mistresses was of little concern to Mueller; his mandate was to investigate Russian efforts to subvert the American elections and to follow up on any criminal activities related to this. The investigation of violations of U.S. election law relating strictly to domestic affairs 😉 was handed off to other investigators; its only interest to Mueller was whether aspects of the cover-up of Trump’s adulteries played a part in efforts to prevent Cohen from testifying truthfully on other matters. Trump and his attorneys continued to express support and “love” for Cohen, contingent on him agreeing to “stay strong” and not “flip.” His legal bills were being paid by the Trump Organization, and he needed to “stay on message” and in Trump’s good graces for that to continue. Cohen has also testified that the possibility of a presidential pardon was raised in his discussions with Trump’s lawyers. Thus, the situation surrounding the payoffs to silence Trump mistresses left Cohen more inclined to testify as Trump wanted in other matters as well, regardless of the truth.

Much more significant are Cohen’s efforts to help cover up Mr. Trump’s extensive business dealings with Russia and with Putin himself. In this regard, there are several factors to consider, some favorable for Mr. Trump and some damning.

First, the deal to build a Trump Tower in Moscow was a long-time project, going back at least as far as 2015. The plan was for a Russian corporation to build the tower and license the Trump name. Cohen discussed the plan multiple times with Donald Trump, his son Donald Jr. and his daughter Ivanka. Given that the Trump Organization was primarily a real estate business and that licensing the Trump name was a major part of their business, there was nothing unusual about this at the time. Had the plan been carried out, it would have been a billion-dollar deal for the Trump Organization, with little risk or investment on their part since all they were really doing is selling their name.   A preliminary agreement was reached in Fall 2015, and Cohen even discussed Trump possibly flying to Moscow to seal the deal. Therefore, much of this started before Mr. Trump became a serious presidential contender, when he was still primarily a private businessman pursuing his private business. However, Trump was actively involved in negotiations for this deal long after he became the presumptive Republican nominee.

Second, despite Cohen’s efforts and several phone calls between the Trump Organization and Moscow including a twenty-minute conversation between Cohen and a Kremlin staffer, the deal eventually fell apart in the summer of 2016. This is significant for three reasons. First, the fact that the deal fell apart apparently left the Trump family and Organization feeling justified in covering up the true facts about it. After all, it never actually happened, so what difference does it make? Second, however, Trump, Cohen and others did lie about this. Rather than admit that he had a billion-dollar business deal he was working on after becoming the presumptive nominee of the Republican party for the presidency, Trump and his people developed a “party line,” a false narrative stating that it was never a very big deal and it was all over in January, before it was clear that Mr. Trump would in fact be the Republican candidate for President. By minimizing both the scope of the deal and how long and how deeply Mr. Trump had been engaged in the negotiations, the party line argued that it could have had no significant influence on Mr. Trump’s stance towards Russia and could give Russia no leverage to use over Trump. In fact, it was a potentially very lucrative deal, and Trump was kept well informed of its progress throughout the process until Cohen finally told him in the summer that it had fallen through. This was already after Trump had publicly stated that the deal had ended months earlier; still, he expressed disappointment to hear that the negotiations were at an end.

Third, while not directly stated, we should remember that the Russians themselves knew all about the Moscow Tower plans and that Mr. Trump was lying. Therefore they had leverage they could use at any time; by revealing this information or leaking documents about it, they could embarrass Mr. Trump and possibly undermine his hold on power. So instead of having the possibility of profits to offer him, they had the possibility of blackmail to threaten him with. The fact that he had lied about his business dealings with a hostile and corrupt foreign government thus represents a grave security risk for the United States.

Initially, Michael Cohen resolved to adhere to the “party line” regarding Trump’s Russian business dealings, and to “stay on message” even when he knew the statements he and other members of the Trump Organization (including Trump and his family) were false. Initially, this involved lying to the press and the American people, which is not necessarily a crime; it may seem slimy if you’re inclined to take offense, but that doesn’t make it illegal. However, in May 2017 Congress started looking into Trump’s Russian connections, and this eventually led to Cohen repeating this false “party line” under oath to Congress and later to the FBI. During this time his attorney and Trump’s had a Joint Defense Agreement, and he and his attorney were in constant communication with Trump and his legal team. They helped him prepare his testimony, which included false statements. It is unclear whether the Trump legal team knew they were false; Trump and his family certainly did unless they forgot about a billion-dollar deal they’d been working on for over a year and which had only recently collapsed. Cohen, Trump’s legal team and his family continued to push this false narrative for months after the press began uncovering and publishing more accurate information. It was around this time that Cohen’s troubles with the hush-money payments for Trump mistresses broke, and his need for Trump financial and legal support grew. The Trump Organization continued paying Cohen’s legal fees, his attorney and Trump’s continued working together, and Trump made multiple public statements supporting Cohen as well as sending private messages about how much he “loved” him. Some of these statements included the possibility of a pardon somewhere down the road—IF he remained loyal, didn’t “flip” or “go rouge,” or say anything that contradicted Mr. Trump or cast him in a bad light.

On July 2, 2018, the press reported that Cohen was considering cooperating with investigators even if it put Mr. Trump in legal jeopardy. At this point, Cohen’s office had already been raided by the FBI and evidence (including audio recordings) had been uncovered that he had perjured himself on Trump’s behalf and with Trump’s knowledge during the investigation into the hush-money payments. Faced with irrefutable evidence of his own words on tape discussing the payments with Trump, Cohen negotiated a deal with prosecutors in the Southern District of New York, wherein he pled guilty to eight felonies and agreed to cooperate in further investigations. After that Trump became increasingly hostile. He made public statements that included personal attacks on Cohen and on his family, veiled threats of prosecution on unrelated charges, and continued complaints of “WITCH HUNT” and so on. In the meantime, in written responses to questions from the Special Counsel about Cohen’s testimony regarding the Moscow Tower deal and hush-money payments, Trump claimed to have little memory of the events. Trump refused to answer questions directly. However, Trump’s attorney Rudy Giuliani made public statements that supported Cohen’s version of events and undermined Trump’s, including claiming at the time that Mr. Trump remembered discussing the Moscow Tower months later than he had publicly admitted.

In analyzing Trump’s conduct towards Cohen, Mueller considers the following issues:

  1. Obstructive Act: There are two possibilities here. First, did Trump or others working on his behalf work with Cohen to commit perjury? What the report determines is that:
  2. Michael Cohen did indeed perjure himself, and Mr. Trump knew ahead of time that he intended to “stay on message” and said nothing to him to dissuade him, or to anyone else from making statements Trump knew to be false.
  3. Cohen’s perjury was part of the “party line” he, Trump and Trump’s inner circle had worked on together, in order to obscure Trump’s financial ties to Putin and to Russia.
  4. Cohen and Trump did not directly say, “I intend to lie,” or “Yes, you should lie,” or anything like that. Cohen said he intended to testify before Congress in a way consistent with the statements Trump had made publicly, which were false, so he assumed Trump knew he intended to lie and approved; but no words to that effect were exchanged.
  5. While Cohen said to the President’s counsel that there was more to the Russia deal than he was telling, and Trump’s counsel directed him not to discuss these facts or contradict the President, there is no solid evidence that the President’s counsel knew any details about the Moscow Tower negotiations and specifically there is no evidence that he knew that Trump had lied about it and that directing Cohen not to contradict Trump was tantamount to telling him to commit perjury. The counsel has declined to answer questions about this, citing attorney-client privilege.
  6. Therefore, the report concludes that there is no way, with the evidence the Special Counsel’s office had at that time, to determine whether the President of the United States suborned perjury, or simply passively allowed it and went along after the fact.

Secondly, there is the wider question whether Mr. Trump’s actions would have had the “natural tendency” to prevent Michael Cohen from providing truthful testimony to Congress or to criminal investigators. In the early stages of the investigation, Trump urged Cohen not to “flip,” and the President*’s counsel told him he’d be protected so long as he worked with Trump. Trump publicly praised Cohen and his family, and privately sent him messages such as “the boss loves you.” He thanked Cohen for lying to the media about the hush money payments for his mistresses. And in addition to all the verbal support, there was the financial support the Trump Organization provided Cohen.

Later, when Cohen began cooperating with authorities and negotiating a plea deal, Trump began making public and private attacks on Cohen and on his family. Given the President’s role as head of the Executive branch of the U.S. government, publicly claiming that Cohen’s family should be investigated is more than an idle suggestion; it is close to a threat, since Trump actually has the ability to push to make such an investigation happen. The report diplomatically states: “The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.” So while the report is more or less neutral on the question of whether Mr. Trump directed his former “fixer” to commit perjury, it is more certain that he attempted to stop Cohen from providing truthful information to Congress or to law enforcement.

  1. Nexus to an official proceeding: As Trump admitted in his public statements, he was aware that Cohen was being investigated by Congress, the Special Counsel’s Office, and the U.S. Attorney’s Office for the Southern District of New York. He also made multiple public statements acknowledging that Cohen could cooperate with any or all of these and urging him not to, then called him a “rat” when he did.
  2. Intent: Again couching his terms as diplomatically as possible, Mueller writes: “…there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.” The evidence of this intention include the fact that Cohen made false statements under oath to help Mr. Trump, repeating false statements Trump himself had made, and that Trump knew these statements were false; this means Cohen could reveal him as a liar, and possibly a Russian puppet who had financial strings reaching all the way back to Putin himself. Trump refused to answer questions directly about the Moscow Tower deal, and his written responses to the Special Counsel are inconsistent with statements he made publicly afterwards. And most damning, Trump’s attacks on Cohen’s family have no other reasonable intention except to retaliate against Michael Cohen and to scare him off from further testimony. After all, prior to Cohen’s decision to cooperate with the FBI, Trump knew all about his family and had praised them publicly. After Cohen began cooperating with investigators, Trump began the public attacks on him and his family. He also continued these attacks and repeated them just before Cohen was scheduled to testify before Congress. This timing is suspicious; if he were merely concerned with raising a legitimate concern about possible illegal actions he could have more effectively raised his concerns directly with Attorney General Sessions, and if he were merely trying to influence public opinion then there was no reason to bring the issue up again right before Cohen was due to testify.

At best, then, the President of the United States connived in perjury; he knew Cohen had committed perjury not for his own benefit but solely for Mr. Trump’s, and he thanked him for it. At worst, he actively conspired in perjury. The Special Counsel’s report does not seem to suggest a way to resolve this question. As to whether Trump engaged in “witness tampering,” the Report presents extensive evidence that Mr. Trump was deeply concerned with what Cohen was telling investigators and how it might make Trump personally and the Trump Organization look. His words and actions seem much more likely than not to be intended not merely to “shape the narrative” but primarily to pressure a witness to lie on his behalf. At a bare minimum, given the timing of his events and how much more suspicious they seem as a result, they reflect monumentally bad judgment. So at best, the Special Counsel’s report would have to conclude that regardless of whether there was actual criminal activity, there was incompetence and stupidity that led Mr. Trump to make himself look as guilty as possible of intending to obstruct justice, as well as a severely flawed moral character that was willing to go along with perjury just to avoid embarrassment. Such intellectual and moral deficiencies of themselves are disqualifying for the highest office of the most powerful nation on Earth.

But again, that’s only if one takes what I think to be an overly generous view of the facts. If one takes the more likely view, this is another instance of obstruction of justice; in this case, an attempt to first encourage perjury, then to discourage truthful testimony. It is not just a matter of Cohen and Trump having different stories; Cohen, in many cases, has the receipts to back up his version of events, objective evidence, and has spoken personally and under oath to investigators for many hours. Mr. Trump has avoided testimony under oath, and his written responses to questions have been incomplete and inconsistent. Given a conflict between witnesses, the only logical option is to accept the word of the one who has supporting evidence and is willing to answer follow-up questions and cross-examination. But we will only fully resolve these questions if and when Mr. Trump himself testifies in person and under oath, with whatever objective evidence and witnesses he can muster, in either and impeachment inquiry or a criminal trial, where he can present his defense and be examined to determine the truth.

The President’s Conduct Involving Michael Cohen

We’ve seen multiple instances of arguable obstruction of justice stem from the series of questionable choices beginning with Mr. Trump’s attempts to get Flynn off, and subsequently to cover this up. Michael Cohen had nothing to do with these events. Instead, he handled other activities Mr. Trump wanted hidden from the American people: specifically, two of his adulterous affairs and his extensive business dealings with Vladimir Putin. Of these, the payoffs to former Trump mistresses was of little concern to Mueller; his mandate was to investigate Russian efforts to subvert the American elections and to follow up on any criminal activities related to this. The investigation of violations of U.S. election law relating strictly to domestic affairs 😉 was handed off to other investigators; its only interest to Mueller was whether aspects of the cover-up of Trump’s adulteries played a part in efforts to prevent Cohen from testifying truthfully on other matters. Trump and his attorneys continued to express support and “love” for Cohen, contingent on him agreeing to “stay strong” and not “flip.” His legal bills were being paid by the Trump Organization, and he needed to “stay on message” and in Trump’s good graces for that to continue. Cohen has also testified that the possibility of a presidential pardon was raised in his discussions with Trump’s lawyers. Thus, the situation surrounding the payoffs to silence Trump mistresses left Cohen more inclined to testify as Trump wanted in other matters as well, regardless of the truth.

Much more significant are Cohen’s efforts to help cover up Mr. Trump’s extensive business dealings with Russia and with Putin himself. In this regard, there are several factors to consider, some favorable for Mr. Trump and some damning.

First, the deal to build a Trump Tower in Moscow was a long-time project, going back at least as far as 2015. The plan was for a Russian corporation to build the tower and license the Trump name. Cohen discussed the plan multiple times with Donald Trump, his son Donald Jr. and his daughter Ivanka. Given that the Trump Organization was primarily a real estate business and that licensing the Trump name was a major part of their business, there was nothing unusual about this at the time. Had the plan been carried out, it would have been a billion-dollar deal for the Trump Organization, with little risk or investment on their part since all they were really doing is selling their name.   A preliminary agreement was reached in Fall 2015, and Cohen even discussed Trump possibly flying to Moscow to seal the deal. Therefore, much of this started before Mr. Trump became a serious presidential contender, when he was still primarily a private businessman pursuing his private business. However, Trump was actively involved in negotiations for this deal long after he became the presumptive Republican nominee.

Second, despite Cohen’s efforts and several phone calls between the Trump Organization and Moscow including a twenty-minute conversation between Cohen and a Kremlin staffer, the deal eventually fell apart in the summer of 2016. This is significant for three reasons. First, the fact that the deal fell apart apparently left the Trump family and Organization feeling justified in covering up the true facts about it. After all, it never actually happened, so what difference does it make? Second, however, Trump, Cohen and others did lie about this. Rather than admit that he had a billion-dollar business deal he was working on after becoming the presumptive nominee of the Republican party for the presidency, Trump and his people developed a “party line,” a false narrative stating that it was never a very big deal and it was all over in January, before it was clear that Mr. Trump would in fact be the Republican candidate for President. By minimizing both the scope of the deal and how long and how deeply Mr. Trump had been engaged in the negotiations, the party line argued that it could have had no significant influence on Mr. Trump’s stance towards Russia and could give Russia no leverage to use over Trump. In fact, it was a potentially very lucrative deal, and Trump was kept well informed of its progress throughout the process until Cohen finally told him in the summer that it had fallen through. This was already after Trump had publicly stated that the deal had ended months earlier; still, he expressed disappointment to hear that the negotiations were at an end.

Third, while not directly stated, we should remember that the Russians themselves knew all about the Moscow Tower plans and that Mr. Trump was lying. Therefore they had leverage they could use at any time; by revealing this information or leaking documents about it, they could embarrass Mr. Trump and possibly undermine his hold on power. So instead of having the possibility of profits to offer him, they had the possibility of blackmail to threaten him with. The fact that he had lied about his business dealings with a hostile and corrupt foreign government thus represents a grave security risk for the United States.

Initially, Michael Cohen resolved to adhere to the “party line” regarding Trump’s Russian business dealings, and to “stay on message” even when he knew the statements he and other members of the Trump Organization (including Trump and his family) were false. Initially, this involved lying to the press and the American people, which is not necessarily a crime; it may seem slimy if you’re inclined to take offense, but that doesn’t make it illegal. However, in May 2017 Congress started looking into Trump’s Russian connections, and this eventually led to Cohen repeating this false “party line” under oath to Congress and later to the FBI. During this time his attorney and Trump’s had a Joint Defense Agreement, and he and his attorney were in constant communication with Trump and his legal team. They helped him prepare his testimony, which included false statements. It is unclear whether the Trump legal team knew they were false; Trump and his family certainly did unless they forgot about a billion-dollar deal they’d been working on for over a year and which had only recently collapsed. Cohen, Trump’s legal team and his family continued to push this false narrative for months after the press began uncovering and publishing more accurate information. It was around this time that Cohen’s troubles with the hush-money payments for Trump mistresses broke, and his need for Trump financial and legal support grew. The Trump Organization continued paying Cohen’s legal fees, his attorney and Trump’s continued working together, and Trump made multiple public statements supporting Cohen as well as sending private messages about how much he “loved” him. Some of these statements included the possibility of a pardon somewhere down the road—IF he remained loyal, didn’t “flip” or “go rouge,” or say anything that contradicted Mr. Trump or cast him in a bad light.

On July 2, 2018, the press reported that Cohen was considering cooperating with investigators even if it put Mr. Trump in legal jeopardy. At this point, Cohen’s office had already been raided by the FBI and evidence (including audio recordings) had been uncovered that he had perjured himself on Trump’s behalf and with Trump’s knowledge during the investigation into the hush-money payments. Faced with irrefutable evidence of his own words on tape discussing the payments with Trump, Cohen negotiated a deal with prosecutors in the Southern District of New York, wherein he pled guilty to eight felonies and agreed to cooperate in further investigations. After that Trump became increasingly hostile. He made public statements that included personal attacks on Cohen and on his family, veiled threats of prosecution on unrelated charges, and continued complaints of “WITCH HUNT” and so on. In the meantime, in written responses to questions from the Special Counsel about Cohen’s testimony regarding the Moscow Tower deal and hush-money payments, Trump claimed to have little memory of the events. Trump refused to answer questions directly. However, Trump’s attorney Rudy Giuliani made public statements that supported Cohen’s version of events and undermined Trump’s, including claiming at the time that Mr. Trump remembered discussing the Moscow Tower months later than he had publicly admitted.

In analyzing Trump’s conduct towards Cohen, Mueller considers the following issues:

  1. Obstructive Act: There are two possibilities here. First, did Trump or others working on his behalf work with Cohen to commit perjury? What the report determines is that:
  2. Michael Cohen did indeed perjure himself, and Mr. Trump knew ahead of time that he intended to “stay on message” and said nothing to him to dissuade him, or to anyone else from making statements Trump knew to be false.
  3. Cohen’s perjury was part of the “party line” he, Trump and Trump’s inner circle had worked on together, in order to obscure Trump’s financial ties to Putin and to Russia.
  4. Cohen and Trump did not directly say, “I intend to lie,” or “Yes, you should lie,” or anything like that. Cohen said he intended to testify before Congress in a way consistent with the statements Trump had made publicly, which were false, so he assumed Trump knew he intended to lie and approved; but no words to that effect were exchanged.
  5. While Cohen said to the President’s counsel that there was more to the Russia deal than he was telling, and Trump’s counsel directed him not to discuss these facts or contradict the President, there is no solid evidence that the President’s counsel knew any details about the Moscow Tower negotiations and specifically there is no evidence that he knew that Trump had lied about it and that directing Cohen not to contradict Trump was tantamount to telling him to commit perjury. The counsel has declined to answer questions about this, citing attorney-client privilege.
  6. Therefore, the report concludes that there is no way, with the evidence the Special Counsel’s office had at that time, to determine whether the President of the United States suborned perjury, or simply passively allowed it and went along after the fact.

Secondly, there is the wider question whether Mr. Trump’s actions would have had the “natural tendency” to prevent Michael Cohen from providing truthful testimony to Congress or to criminal investigators. In the early stages of the investigation, Trump urged Cohen not to “flip,” and the President*’s counsel told him he’d be protected so long as he worked with Trump. Trump publicly praised Cohen and his family, and privately sent him messages such as “the boss loves you.” He thanked Cohen for lying to the media about the hush money payments for his mistresses. And in addition to all the verbal support, there was the financial support the Trump Organization provided Cohen.

Later, when Cohen began cooperating with authorities and negotiating a plea deal, Trump began making public and private attacks on Cohen and on his family. Given the President’s role as head of the Executive branch of the U.S. government, publicly claiming that Cohen’s family should be investigated is more than an idle suggestion; it is close to a threat, since Trump actually has the ability to push to make such an investigation happen. The report diplomatically states: “The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.” So while the report is more or less neutral on the question of whether Mr. Trump directed his former “fixer” to commit perjury, it is more certain that he attempted to stop Cohen from providing truthful information to Congress or to law enforcement.

  1. Nexus to an official proceeding: As Trump admitted in his public statements, he was aware that Cohen was being investigated by Congress, the Special Counsel’s Office, and the U.S. Attorney’s Office for the Southern District of New York. He also made multiple public statements acknowledging that Cohen could cooperate with any or all of these and urging him not to, then called him a “rat” when he did.
  2. Intent: Again couching his terms as diplomatically as possible, Mueller writes: “…there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.” The evidence of this intention include the fact that Cohen made false statements under oath to help Mr. Trump, repeating false statements Trump himself had made, and that Trump knew these statements were false; this means Cohen could reveal him as a liar, and possibly a Russian puppet who had financial strings reaching all the way back to Putin himself. Trump refused to answer questions directly about the Moscow Tower deal, and his written responses to the Special Counsel are inconsistent with statements he made publicly afterwards. And most damning, Trump’s attacks on Cohen’s family have no other reasonable intention except to retaliate against Michael Cohen and to scare him off from further testimony. After all, prior to Cohen’s decision to cooperate with the FBI, Trump knew all about his family and had praised them publicly. After Cohen began cooperating with investigators, Trump began the public attacks on him and his family. He also continued these attacks and repeated them just before Cohen was scheduled to testify before Congress. This timing is suspicious; if he were merely concerned with raising a legitimate concern about possible illegal actions he could have more effectively raised his concerns directly with Attorney General Sessions, and if he were merely trying to influence public opinion then there was no reason to bring the issue up again right before Cohen was due to testify.

At best, then, the President of the United States connived in perjury; he knew Cohen had committed perjury not for his own benefit but solely for Mr. Trump’s, and he thanked him for it. At worst, he actively conspired in perjury. The Special Counsel’s report does not seem to suggest a way to resolve this question. As to whether Trump engaged in “witness tampering,” the Report presents extensive evidence that Mr. Trump was deeply concerned with what Cohen was telling investigators and how it might make Trump personally and the Trump Organization look. His words and actions seem much more likely than not to be intended not merely to “shape the narrative” but primarily to pressure a witness to lie on his behalf. At a bare minimum, given the timing of his events and how much more suspicious they seem as a result, they reflect monumentally bad judgment. So at best, the Special Counsel’s report would have to conclude that regardless of whether there was actual criminal activity, there was incompetence and stupidity that led Mr. Trump to make himself look as guilty as possible of intending to obstruct justice, as well as a severely flawed moral character that was willing to go along with perjury just to avoid embarrassment. Such intellectual and moral deficiencies of themselves are disqualifying for the highest office of the most powerful nation on Earth.

But again, that’s only if one takes what I think to be an overly generous view of the facts. If one takes the more likely view, this is another instance of obstruction of justice; in this case, an attempt to first encourage perjury, then to discourage truthful testimony. It is not just a matter of Cohen and Trump having different stories; Cohen, in many cases, has the receipts to back up his version of events, objective evidence, and has spoken personally and under oath to investigators for many hours. Mr. Trump has avoided testimony under oath, and his written responses to questions have been incomplete and inconsistent. Given a conflict between witnesses, the only logical option is to accept the word of the one who has supporting evidence and is willing to answer follow-up questions and cross-examination. But we will only fully resolve these questions if and when Mr. Trump himself testifies in person and under oath, with whatever objective evidence and witnesses he can muster, in either and impeachment inquiry or a criminal trial, where he can present his defense and be examined to determine the truth.

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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.

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. 6

June 29, 2019

The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials

 

This part of Volume II of the Mueller Report relates more closely to the subject matter of Volume I than the other sections we have examined. Russian agents, closely tied to Vladimir Putin though not officially part of his government, approached the Donald Trump Jr. at a time when his father was the presumptive Republican nominee for President of the United States, offering him derogatory information about Hillary Clinton as part of what they described as the Russian government’s efforts to help Mr. Trump win the general election. Some of the highest level campaign workers, including Don Jr. agreed to meet in Trump Tower with these self-professed Russian agents. Don Jr. later said he had expected different information from the Russians than he received, supposedly indicating financial corruption which apparently didn’t exist given that such evidence wasn’t produced, though it remains unclear whether Don Jr. realized then or now that there was no such corruption. Apparently there was no direct discussion at this meeting of the fact that the Russians had hacked the DNC computers and were preparing to selectively release emails that would embarrass the Clinton campaign and enrage Bernie Sanders followers. Instead, after being a bit vague about what they were offering, the Russians made clear what they wanted in return for their help: relief from the Magnitsky Act, a set of sanctions imposed by the Obama administration on Russian oligarchs connected to such crimes as murder, money laundering, and the illegal seizure of Crimea from Ukraine. While Don Jr. claimed that nothing came of the meeting, shortly after this the Russians began feeding DNC emails to WikiLeaks.

A year later, after his election, Mr. Trump learned that there were emails detailing the involvement of his son, his son-in-law Jared Kushner, his then campaign manager and others in this clandestine meeting with Putin’s emissaries, including the Russians’ statement that they were acting on their government’s behalf to help Trump win and his son’s reply “If it’s what you say, I love it.” According to Mr. Trump’s written statements, he had no knowledge at the time about the meeting; he has refused to answer questions in person. At this time the meeting was being investigated as part of the FBI Russia investigation, and had in fact provided requested information including these emails. However, Mr. Trump actively sought to hide this information from the press, the American people and even from himself. For example, when Hope Hicks sought to discuss the emails with him because she thought they looked “really bad,” he replied each time that he didn’t want to know the details. While he knowingly dictated a false explanation to The New York Times about the nature of the meeting, he sought to avoid having anyone discuss the true nature of the meeting with the press, or with he himself as part of planning his press strategy. Despite warnings from Hicks and others that the actual facts would eventually leak, Trump insisted that if they just kept mum the existence of the emails would never be known and the whole thing would blow over. Discussion between Hicks, Trump and then White House spokesperson Mark Corallo of Corallo’s attempts to plant a false narrative on a conservative news site included discussion of the fact that a “document” existed which would contradict the statement Trump had written for his son to deliver about the meeting, and the belief that its existence would never get out. Eventually, the emails did leak, Trump Jr. followed Ms. Hicks’ original advice to simply release the emails and weather the storm, and the President stated that it didn’t matter because his false explanation had been given to the Times and not to “a high tribunal of judges.”

All of this certainly fits the common dictionary definition of “collusion,” meaning “a secret cooperation or deceitful agreement in order to deceive others, although not necessarily illegal.” There was the Russian government’s stated intention to help Mr. Trump win the election, efforts made on both sides to hide knowledge of this support from the public, and Russia’s stated desire to “discuss” the sanctions imposed under the Magnitsky Act. But as stated in our summary of Volume One of the Special Counsel’s report, Mueller did not feel this meeting rose to the level of criminal conspiracy, or at least he states he did not think there was evidence to prove it did. Likewise, the later claims by Trump that “I don’t do cover-ups” is clearly false, and he himself said as much. To determine whether this incident constitutes obstruction of justice, the three constitutive elements need to be considered:

  1. Obstructive Act: Mueller finds at least three instances where Mr. Trump ordered others to deny the existence of the emails about the Trump Tower meeting, and actively participated in giving false information to the press. However, Mr. Mueller notes that there is no evidence that Mr. Trump or the White House actually sought to hide the documents or the information from Congress or the Special Counsel. Instead, the stonewalling and deceit “occurred in the context of developing a press strategy,” and as Mr. Trump observed himself, lying to the press, or the American people, is not a crime.
  2. Nexus to an official proceeding: Since the information was provided to the official investigative offices which requested it, and the natural result of keeping the emails from the public was not likely to impede a grand jury or other investigation, there is no nexus.
  3. Intent: The intent was to stonewall the press, and thus prevent the public from finding out the truth about the Trump Tower meeting, as the fact that the Russian government and Trump’s own family and campaign staff were meeting together to strategize how to help him get elected would look “really bad.” However, there is no evidence that there was any intent to hide this meeting from any official scrutiny.

Thus, Mr. Mueller concludes that the actions to hide the Trump Tower meeting from the public were not themselves obstruction of justice. While there was clearly an intention to lie to the press and to voters, and while it is clear that the Trumps were well aware of and eager for Russian help winning the election, and that they were willing to cooperate with Russia to some degree, Mueller decided that none of this can be proven to violate U.S. law. While it may be embarrassing for all concerned (esp. American citizens) to admit that the President of the United States was elected with the active assistance of a hostile foreign power, and that he, his family and his advisors were aware of this and were only concerned that it might become public knowledge, the attempt to hide this was not in fact “obstruction of justice” so long as the cover-up only involved lying to the press.

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. 3(c)

June 23, 2019

How does all of this relate to the three constitutive elements of an obstruction of justice?

  1. Obstructive Act: It is true that Mr. Trump was aware that James Comey was not only investigating Trump’s friend Michael Flynn but was also looking into other aspects of Russian efforts to help elect Trump, including whether any other American citizens had committed crimes. On the other hand, he was advised repeatedly that firing Comey would not end the investigations; as Steve Bannon told him, “You can’t fire the FBI.” Trump even acknowledged as much during his interview with Lester Holt, saying it was likely firing Comey would actually prolong the investigation. What seems to have most troubled Mueller and seems most likely to be part of an illegal obstruction of justice is the way Trump handled it. The vengefulness, the petty cruelty, and the public attacks on the investigation and cries of “Witch hunt!” afterwards seem, according to the report, intended to affect and obstruct whatever future investigators might take over after Comey’s departure. True, there might be other, legally innocent motives, such as paranoia, sadism, or stupidity. That question falls under “intent.” What we can say is that there were in fact official investigations that could be disrupted by this behavior, that Mr. Trump was aware of these investigations and continued in this behavior anyway, despite the fact that his office requires him to support upholding the laws of the nation without undue personal prejudice.
  2. Nexus to a proceeding: You can’t obstruct justice unless there’s an official proceeding to obstruct. In this case, while there was no official grand jury at that time investigating the Trump campaign, there was a criminal investigation of Flynn that Trump had tried to shut down, and public knowledge that the FBI was looking into Russian interference in the 2016 election, including the crime of hacking the DNC’s computers. Thus there was a nexus to at least one official proceeding.
  3. Intent: As the report states: “Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement….the President’s over stated rationales for why he fired Comey are not similarly supported by the evidence.” In other words, the report says that Comey was fired for not publicly clearing Trump, and that Trump and others working on his behalf lied about the true reasons for the firing. As stated earlier, intention to deceive is tacit acknowledgment of wrongdoing; if it doesn’t prove impure motives, it at least implies such. But why, the report asks, what this so important? Was it merely for political reasons, because “this Russia business” was making it difficult for Trump to carry out his agenda for the nation? Was it because, as has been stated outside the Mueller but in multiple press reports and books, that Mr. Trump gets angry when anyone mentions that Russia helped elect him because it takes away from his own sense of accomplishment? Or are there other, criminal reasons for Trump’s repeated demands for Comey to publicly announce his innocence? There are the demands that Comey pledge his “loyalty” to Trump personally, and his claim that he thought the Attorney General was not doing enough to protect him personally. He also said he wanted to be able to tell his Attorney General “who to investigate.” Comey was interfering with these goals by the fact that he’d taken over the investigations after Sessions recused himself, and by the independent way he was handling the investigations. Also, when Trump was railing against Sessions for recusing himself and for not doing more to protect Trump and punish Trump’s foes, Sessions had suggested firing Comey, either because he was suggesting to Mr. Trump that this would solve his problems or perhaps merely to redirect Trump’s anger onto someone else. In addition, as the Muller report states, “…the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.” Thus there is a strong prima facie case that Trump was motivated by personal goals rather than national interests in firing Comey, the definition of “corrupt intent.”

As Mr. Mueller stated, we need to have some sort of a hearing to allow the accused party the chance to clear his name. Legally, there is no law against being stupid, sadistic, deceitful, vain, vindictive, paranoid or obstinate. These may be reasons to say someone is unfit for an important office, but they are not crimes. Perhaps Mr. Trump was not trying to shut down or intimidate other investigations, and anyone or everyone around him who might think about challenging his orders. Perhaps he was just running the White House the way he’d run his businesses: as his wife says, if he feels you’ve hit him he’ll hit back ten times harder.[1] Perhaps, as many who have or do work for him are reported to have said, he’s very insecure about his election victory, and his desire to have Comey and others come out and publicly say he had nothing to do with Russia is his way of insisting that he won on his own, without Putin’s help, despite what Putin said at Helsinki and what every U.S. intelligence agency has said. But as Mueller said, the only way to bring these facts out, and show whether or not Trump had corrupt motives or simply acted foolishly in ways that appear corrupt, is to have an impeachment investigation, where all the facts can be presented and the President can take the opportunity to personally defend himself under oath. As it stands, the report states, there is evidence that the President* knowingly and intentionally obstructed justice, seeking to impede and influence official investigations of crimes as well as undermining counterintelligence operations, for corrupt personal reasons.

[1] Ali Vitali, “Melania Stumps for Donald Trump: ‘He Will Punch Back 10 Times Harder;” NBC News.com April 4, 2016 (https://www.nbcnews.com/politics/2016-election/melania-stumps-donald-trump-he-will-punch-back-10-times-n550641). Or as Mr. Trump says on Twitter: “When someone attacks me, I always attack back…except 100x more. This has nothing to do with a tirade but rather, a way of life!” @realDonaldTrump Twitter 11 Nov. 2012. These claims, I believe, fit the dictionary definitions of “vindictive” and “vengeful.”

 

The Mueller Report: I read it for you, but you should read it yourself. pt. 3(b)

June 21, 2019

As we’ve seen before, Donald Trump was intensely concerned, if not absolutely fixated on getting James Comey and everyone else to proclaim publicly that he was not under investigation, even if government ethics and legal advisors said no such statement should be made before the investigation concluded. He also repeatedly stated that the job of the Attorney General is to protect him from investigation and scandal, to investigate whomever he wants investigated and to not investigate anyone he doesn’t wish investigated. As the FBI investigation into Michael Flynn unfolded, Trump became increasingly concerned that he might be publicly implicated and increasingly active to try to control the investigation and the public perception of it. The investigation into Flynn not only led to probable obstruction of justice (I say “probable” because there has been no impeachment inquiry to determine one way or the other) but also to further possible crimes by the Trump election and transition teams, aimed at suppressing investigation of improper assistance from Russia and improper promises made to Russia. Eventually even the Republican-led Senate Judiciary Committee decided they had to see what Comey had to say about these matters. Trump told his advisors this was Comey’s “last chance” to publicly clear him. However, Comey refused to say who was or wasn’t under investigation, citing FBI policy not to comment on ongoing investigations. This infuriated Trump, initially at Sessions for not protecting him more. Sessions then seems to have suggested firing Comey as a way to deflect Mr. Trump’s ire. Trump then decided to get rid of Comey, despite being advised by Steve Bannon that this was a bad idea and that it would not end the investigations.

Trump initially drafted a letter firing Comey, mentioning that Comey had privately told him he was not under investigation but still saying he was a failure. His advisors urged him to let Comey resign, but Trump was determined to fire and humiliate him. They then decided that the reasons Trump gave for wanting to fire Comey in the draft letter he’d prepared were not good enough and might look suspicious, so they decided to have Rod Rosenstein write a “recommendation” that Comey be fired for other reasons, including his handling of the investigation of Hillary Clinton’s emails. They decided to use Rosenstein’s draft as the justification for firing Comey even though everyone knew those weren’t the real reasons, to give Trump cover. The only major contribution Trump made to the second letter was to insist it say something about Comey having told him he wasn’t under investigation.

Despite the pretext provided by Rosenstein, the firing of Comey was received badly by the press. After all, Trump had himself endorsed Comey despite knowing previously about his treatment of Clinton and even praising him for it. The other major claim, that Comey had lost the faith of his people at the FBI, was demonstrably false, as quickly seen in the negative reactions to news of Comey’s firing. Furthermore, there was something curiously vindictive about Trump’s actions. Normally, someone in Comey’s position would be allowed to resign; instead, he was fired with no warning, finding out while giving a public speech. Furthermore, Trump was furious that he was allowed to fly back to DC instead of being stranded in California where he had been speaking to new FBI recruits, and further sought to prevent Comey from entering the FBI building even to remove his own personal possessions. This is not how normal people treat employees who haven’t worked out on the job. This is how you treat people you personally hate, The only reasonable explanation is that Trump was trying to make things as humiliating and painful as possible for Comey, either out of vengefulness or to send a message to all other present and future government officials that he would do the same to them if he wished.

The White House story regarding the firing of James Comey quickly fell apart. Sarah Huckabee Sanders was one of a platoon of Republican voices claiming that Comey was distrusted by his colleagues and that most were glad to see him gone; however, these claims were, to put it politely, “without foundation” by her own admission under oath. The claim that Comey was fired for treating Clinton unfairly was laughable, given that Trump had benefited from this, that he had supported Comey in the job for several months while knowing all about this, and furthermore that Comey had been fired not as soon as Trump had the right and power to do so but only after he began investigating Republican actions. When the decision was made to shove Rod Rosenstein out in front of the cameras to tell the world that it was he, and not Mr. Trump who had initially thought Comey should be fired, Rosenstein refused, since it was a lie and he knew it, and furthermore he did not want to be the one seen to be responsible. White House Counsel Don McGahn and the White House Counsel’s office agreed that the White House was creating a false narrative by claiming Rosenstein had initiated the firing, and that it was necessary to set the record straight. The fact that the cover story wasn’t working, coupled with this legal advice, seems to be why Mr. Trump gave the now-famous interview with Lester Holt, wherein he affirmed that he had decided to fire Comey regardless of what was recommended “because of this Russia thing” which was “made-up.”

To be continued….

The Mueller Report: I read it for you, but you should read it yourself. pt. 3(a)

June 18, 2019
  1. The Firing of FBI Director James Comey

Often in stories there’s a point where things go from maybe bad to major crisis in an instant. If we read the Mueller Report as a political novel, the turning point is the firing of James Comey. Prior to this, many of the characters seemed to think that while the President of the United States was breaking the law, maybe he was just such a novice, so insecure and so used to instant gratification that he just didn’t understand the significance of his actions. He seems to have approached the Flynn investigation like the town millionaire in an old TV show saying to the local sheriff, “I know my boy shouldn’t have been driving so fast and maybe he’d had a few beers, but how about I pay the hospital costs for the old lady and you let it slide. After all, he’s basically a good boy. Say, how’s your reelection campaign coming?” Yes, it’s sleazy; but it’s the sort of corruption of and by the rich that we all always sort of knew went on anyway. The boss wanted to get his favorite Yes Man out of trouble. Is that the end of the world? The White House efforts to get the FBI, CIA or anyone to say publicly that Mr. Trump was definitely totally not being investigated also seem like heavy-handed elitism in action, like someone who is getting carried away with his image and an army of sycophants and fixers trying to satisfy him; but again, while the report indicates they likely broke the law, it’s not like they broke the legal system itself. In fact, if the Flynn incident reminds me of the bullying millionaire in Perry Mason episode trying to bend the town to his will, the reaction to the public confirmation of the existence of an FBI investigation seems more like an old-timey Hollywood diva in some drama, or maybe real life, who’s terrified of being linked to scandal rightly or wrongly, and goes so far to try to squelch the story that she or he ends up actually making things worse. Again, not good, but nothing we haven’t survived before.

The Comey firing changed everything. It is impossible to overstate this, from a political or literary perspective. Politically, we need only look at the reaction at the time. People with decades of experience in national security and law enforcement, who had served both Republican and Democratic administrations with dedication and distinction, were so shocked by the unprecedented audacity and destructive nature of Trump’s actions that they seriously believed, and still do believe that the president of the United States might be an agent of a foreign government, or at least a complete dupe and puppet. It has been credibly reported that there was serious examination of the Constitutional options for removing him from power before he could do irreparable harm to the nation or possibly end it.[1] People who know more than you do, more than I do, who have spent their lives looking at these sorts of matters and who have the training and personality to be far less partisan than you or I, looked at President Donald Trump and how he acted in his firing of the director of the FBI and thought it more likely than not that he is either a mole or a dupe, a willing or unwitting Russian intelligence asset, and considered whether it would be possible to legally and Constitutionally remove him and replace him with Vice President Pence, lest he should betray the nation to its enemies and possibly destroy it. People who compare Trump to Nixon are unfair to Nixon; even in the midst of the Watergate investigation, no one really thought Nixon was working for the Russians. Nixon could go to China because even people who thought he was neurotic, paranoid, racist and a lawbreaker conceded that he was an American who truly put “America first” in the good sense, in the sense that he would not knowingly weaken the nation for his own profit or put another nation’s interests over our own. People who know more than we do about what’s going on in our government today do wonder, seriously worry that the occupant of 1600 Pennsylvania Avenue is either being bribed, blackmailed, or simply so disloyal to the nation that he is willing to sacrifice us at the behest of Russia, and possibly other authoritarian governments. If this were a horror movie, this is the point where the hillbillies go from vaguely threatening talk to firing up the chainsaws. This is the point in the story where we go from “The president broke the law” to “the president is breaking America.”

 

To be continued….

[1] Maureen Groppe, “What to Know about the 25th Amendment: It

s never been used, but ex-FBI head says officials thought about it;USA Today updated Feb 14, 2019 (https://www.usatoday.com/story/news/politics/2018/09/05/could-25th-amendment-used-remove-trump-office/1012979001/