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DOJ Should Just Give Andrew McCabe What He Wants, But They Won’t

185 paragraphs into his complaint against Bill Barr, Christopher Wray, and DOJ and FBI for unlawful termination, Andrew McCabe makes what is probably an untrue statement.

Had Plaintiff pledged his personal loyalty to Trump, voted for Trump in the 2016 election (or falsely told Trump that he had), not worn a T-shirt supporting Dr. McCabe’s campaign, and not been married to Dr. McCabe, Defendants would not have reached the decisions to demote him and terminate him, nor would they have proceeded on the accelerated schedule that deprived him of his full vested pension and related benefits.

The statement is true, insofar as they’re the issues that Trump bitched about for the year leading up to McCabe’s firing in part to discredit the Mueller investigation. They’re true because Trump has claimed they’re true, so there will be abundant evidence to submit to prove they are true. But they’re not true insofar as the Russian investigation is what led Trump to hunt down his perceived enemies, and the DOJ IG investigation is the claimed reason for McCabe’s firing.

But the claims nevertheless assert the principle that FBI employees can’t be forced to take a loyalty oath. And as such, the lawsuit seeks to uphold a principle at the core of our judicial system.

That’s not the only complaint McCabe makes. Along another First Amendment claim, he also makes two due process claims and one mandamus claim that gets into the legal fine print of the way that, in response to pressure from Trump, top DOJ officials fast-tracked an effort to get rid of McCabe.

The legal details are actually of real interest, given that Wray, then Associate Deputy Attorney General Scott Schools, and Jeff Sessions, among others, bolloxed the firing of McCabe. As Schools told McCabe while he was trying to accelerate the review of his termination in March 2018, “We’re making it up as we go along.” DOJ fucked up in two significant ways.

First, they didn’t get around to “firing” McCabe until 10:00 pm on March 16, 2018, after FBI clocked the final day McCabe had to put in before qualifying for retirement at 5:00 pm that same day. FBI registered that day as a full vacation day. By the time Sessions fired McCabe late at night, he claims, he was already legally retired. (Note, there’s a real tragicomic section describing Sessions’ role, including that the firing did not come with any of the official details like time of termination needed for such a firing, that are very similar to the way that Sessions himself would be fired 8 months later).

The other way they bolloxed McCabe’s firing is by demoting him on January 28, 2018. On that day, Wray gave McCabe a choice: to remain at FBI in a demoted role of his picking if he lied and said the demotion was voluntary, or remain in a lesser role of Wray’s choice if he refused to lie. Instead, McCabe took terminal leave, meaning he was no longer one of the positions that the Attorney General or Acting Attorney General could terminate directly. As McCabe described it, Sessions didn’t have the authority to fire McCabe.

Sessions publicly announced that he had terminated Plaintiff “[p]ursuant to [DOJ] Order 1202,”but that did not give Sessions the authority to terminate employees in Plaintiff’s position. DOJ Order 1202, promulgated pursuant to 5 U.S.C. § 3151, provides that the FBI Director alone has authority to terminate career FBI senior executives, except that the Attorney General and Deputy Attorney General retain authority to remove those who serve in certain enumerated “key positions.” After Defendant Wray removed Plaintiff from the role of Deputy Director in January 2018 and replaced him with Bowdich, Plaintiff remained a career FBI senior executive but did not serve in any of the “key positions” listed in DOJ Order 1202. Defendant Wray, as FBI Director, did not authorize Plaintiff’s termination and in fact previously refused Sessions’ request to terminate Plaintiff. Accordingly, Plaintiff was not, in fact, terminated before his retirement.

[snip]

Additionally, Sessions lacked any authority to terminate Plaintiff due to conflicts of interest and recusals, including Sessions’ March 2017 recusal from “investigations of any matters related in any way to the campaigns for President of the United States.” Defendants’ pretextual basis for Plaintiff’s termination arose from the OIG investigation of Plaintiff’s actions related to the 2016 U.S. presidential campaign, specifically his actions regarding campaign-related articles published in October 2016 by the Wall Street Journal. Sessions’ recusal, on its face, extended to the OIG investigation. Sessions’ recusal was therefore a “disability” under 28 U.S.C §508(a), meaning that he lacked qualification to participate in Plaintiff’s termination. As a result, Sessions had no authority to terminate Plaintiff.

The entire complaint is (as one would expect for a suit filed by four Arnold & Porter lawyers on behalf of a lawyer who happens to be a former top FBI official) very well lawyered in such a way that the legal issues are very narrow, even while invoking the entirety of Trump’s obstructive behavior along the way.

The easiest way DOJ could make this go away would be to grant McCabe’s request, to find that he had retired before he was fired, with the benefits accruing accordingly (McCabe refutes the findings of the DOJ IG investigation against him in more cursory fashion, though it’s key to his due process claims and his allegations reflect badly on the well-respected Michael Horowitz). But to do that, DOJ would rob Trump of one of his favorite petty wins.

So they probably won’t.

What I Would Do with the Mueller Report If I Were Reggie Walton

According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Republicans Complaining about Mueller’s Non-Exoneration of Trump Don’t Care that He Exonerated Jeff Sessions

One of the new attacks Republicans launched on the Mueller Report yesterday is that Mueller explicitly did not exonerate Trump, complaining that prosecutorial discretion doesn’t include the power to exonerate. Here’s how John Ratcliffe put it yesterday.

The special counsel’s job — nowhere does it say that you were to conclusively determine Donald Trump’s innocence, or that the special counsel report should determine whether or not to exonerate him. It not in any of the documents. It’s not in your appointment order. It’s not in the special counsel regulations. It’s not in the OLC opinions. It’s not in the Justice Manual. And it’s not in the Principles of Federal Prosecution.

Nowhere do those words appear together because, respectfully — respectfully, Director, it was not the special counsel’s job to conclusively determine Donald Trump’s innocence or to exonerate him. Because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. And because there is a presumption of innocence, prosecutors never, ever need to conclusively determine it.

Except that Ratcliffe and other Republicans didn’t complain and aren’t complaining about the point in his report, as released, where he did exonerate someone, with Bill Barr’s approval: Jeff Sessions.

As set forth in Volume I, Section IV.A.6, supra, the investigation established that, while a U.S. Senator and a Trump Campaign advisor, former Attorney General Jeff Sessions interacted with Russian Ambassador Kislyak during the week of the Republican National Convention in July 2016 and again at a meeting in Sessions’ s Senate office in September 2016. The investigation also established that Sessions and Kislyak both attended a reception held before candidate Trump’s foreign policy speech at the Mayflower Hotel in Washington, D.C., in April 2016, and that it is possible that they met briefly at that reception.

The Office considered whether, in light of these interactions, Sessions committed perjury before, or made false statements to, Congress in connection with his confirmation as Attorney General. In January 2017 testimony during his confirmation hearing, Sessions stated in response to a question about Trump Campaign communications with the Russian government that he had “been called a surrogate at a time or two in that campaign and I didn’t have – did not have communications with the Russians.” In written responses submitted on January 17, 2017, Sessions answered “[n]o” to a question asking whether he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” And, in a March 2017 supplement to his testimony, Sessions identified two of the campaign-period contacts with Ambassador Kislyak noted above, which had been reported in the media following the January 2017 confirmation hearing. Sessions stated in the supplemental response that he did “not recall any discussions with the Russian Ambassador, or any other representatives of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Although the investigation established that Sessions interacted with Kislyak on the occasions described above and that Kislyak mentioned the presidential campaign on at least one occasion, the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions. With respect to Sessions’s statements that he did “not recall any discussions with the Russian Ambassador . .. regarding the political campaign” and he had not been in contact with any Russian official “about the 2016 election,” the evidence concerning the nature of Sessions’s interactions with Kislyak makes it plausible that Sessions did not recall discussing the campaign with Kislyak at the time of his statements. Similarly, while Sessions stated in his January 2017 oral testimony that he “did not have communications with Russians,” he did so in response to a question that had linked such not have communications with Russians,” he did so in response to a question that had linked such communications to an alleged “continuing exchange of information” between the Trump Campaign and Russian government intermediaries. Sessions later explained to the Senate and to the Office that he understood the question as narrowly calling for disclosure of interactions with Russians that involved the exchange of campaign information, as distinguished from more routine contacts with Russian nationals. Given the context in which the question was asked, that understanding is plausible.

Accordingly, the Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and thus insufficient to obtain or sustain a conviction for perjury or false statements. Consistent with the Principles of Federal Prosecution, the Office therefore determined not to pursue charges against Sessions and informed his counsel of that decision in March 2018.

In fact, Mueller must have provided similar explanations in at least four more instances, where he explained why other Trump people didn’t get charged, most often for lying.

But all of those other discussions were redacted under a personal privacy exemption (or, in the FOIA version, a b(5), b(6)/b(7)(C) exemption). Presumably, those other instances were less clearcut, or perhaps they simply weren’t someone as senior as Sessions. But redactions consistently applied would have redacted this passage too, denying Sessions (who would be running for his old Senate seat this year if Trump weren’t still angry that Sessions didn’t act more like Bill Barr while serving as Attorney General) of the public explanation why he wasn’t charged.

Nothing Mueller said yesterday indicated he had any complaints about the redactions in the report (though he was more willing to talk about why Trump Sr. didn’t testify — the discussion of which is partly redacted in the report — than Don Jr, which is redacted under the same grand jury justification).

But in the case of Jeff Sessions, the redaction process was not treated in the way applied with everyone else, especially including mentions of Don Jr. And Republican silence about that inconsistency suggests they don’t really have a principled stance about public decisions of exoneration.

Bill Barr’s Bullshit Claim that Trump Obstructed the Investigation Out of Frustration and Anger

I’ve grown increasingly bothered by the justification William Barr made for Trump’s obstruction of the Russian investigation. Basically, the Attorney General of the United States argued that because the President was “frustrated and angered” about the investigation into the Russian ties he kept lying about, his obstruction was not corrupt.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, [1] federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, [2] there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, [3] propelled by his political opponents, and [4] fueled by illegal leaks.  Nonetheless, [5] the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, [6] directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, [7] the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

There are, of course, a slew of errors in this passage, which I address by number.

  1. Federal Agents and prosecutors weren’t investigating the President until after he had committed several acts of obstruction
  2. The report doesn’t address collusion, it addresses a criminal conspiracy; Roger Stone’s actions, done at the behest of Trump, probably reach any measure for “collusion”
  3. There’s no evidence that the Steele dossier drove the FBI investigation — and certainly not the Mueller investigation that Trump obstructed
  4. The only leak that had a substantial effect on this investigation was the one about Flynn being picked on Sergei Kislyak’s FISA intercept, but it may not have been illegal (if John Brennan authorized the leak, for example, it would have been done with the consent of an original classification authority), and Flynn’s actions would have been included as part of the already-predicated counterintelligence investigation into him in any case
  5. Trump personally refused to cooperate with the investigation; his responses to Mueller’s questions are outright contemptuous
  6. Trump knew several of his aides were lying and encouraged that
  7. Trump was probably involved in withholding key emails about the Moscow Trump Tower project and probably had a role in attempts to withhold Transition emails possessed by GSA

But the thing that has really begun to irk me is the Attorney General’s claim that, “as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency,” which is the core of Barr’s excuse for the President’s obstructive acts: the President was frustrated and so it’s cool that he totally undermined rule of law.

Barr is largely wrong about what the report says about the President’s anger and frustration, though, and to the extent he’s not, he’s basically arguing it’s cool for the President to be angry that the system worked as it should.

To show how much he exaggerates that, I reviewed below what the Mueller Report says about the President’s:

  • Frustrations
  • Anger
  • Motivations for obstructing the investigation

There are several categories of references that are on-point to Trump’s feelings about the investigation. In the two most persistent cases, Trump was angry that people engaged in ethical behavior. He was angry and frustrated that Jeff Sessions followed ethics guidelines and recused from the investigation.  He was angry that Comey adhered to DOJ guidelines (both general and specific with respect to this investigation) about confirming or denying targets of an investigation (though the report also describes Trump denying he was angry). So one category of evidence that shows Trump was angry or frustrated — which the Attorney General claims justifies his obstruction — involves Trump reacting emotionally because people did the ethically correct thing.

In one case, he was angry that his administration got caught doing something improper. Trump was angry that Mike Flynn’s totally inappropriate secret efforts to undermine Obama’s policy towards Russia got exposed. He also was angry at Flynn for other reasons, though. Yes, Trump may be right to be angry if this was illegally leaked (something that hasn’t yet been proven), but ultimately he’s pissed that he got caught doing something wrong.

In the sections that deal with Trump’s motives for obstructive acts, the report describes what might be described as frustration about two things. First, that the focus on Russia (both the investigation and the press coverage of it) delegitimized his victory. If Barr thinks this justifies obstruction of justice, it suggests that he thinks Trump is entitled — after having cheered Russia’s hacks of his opponent — not to have it reflect on his own victory. Effectively, the Attorney General seems to think Trump should be able to benefit from help from a foreign adversary — with his encouragement!! — and then have no one mention that, which is an alarming prospect.

The report also describes how Trump was frustrated that he was stymied in foreign policy, most especially in his desire to work with Russia, by the focus on the Russian investigation. This is particularly interesting, as some of the policies Trump was thwarted in pursuing — reversing sanctions on Russia — might have been proof of a quid pro quo (remember, Trump refused to answer all questions about sanctions, even one covering the election period). Given the report’s silence on the most alarming interactions with Trump (such as Putin’s involvement in writing the June 9 statement), there could be more to Trump’s frustrations, which any Attorney General pretending to care about American national security should attend to. In any case, while the Constitution permits the President great leeway to set the country’s foreign policy, it does expect the President will be subject to political pressure on those decisions. That Trump is frustrated that the manner in which he won — plus his encouragement of it and his subsequent lies about it — has constrained his ability to work with Russia is not something that should justify obstruction of justice.

Some of the other descriptions of Trump’s response to the investigation describe him making false claims — denying that Russia did the hack, preferred him, and also denying he had business with Russia. That is, Trump was not denying the allegations in the dossier, but was denying other things that were, in fact, true. That’s also not a basis to obstruct an investigation, that it will expose your lies.

For most of the instances after Trump himself became the subject of the investigation, the Mueller Report concludes Trump was motivated out of a desire to shield his own conduct — that is, pure corrupt obstruction.

In short, even to the extent that the Mueller Report confirms Barr’s claim that Trump was motivated out of frustration, in the most justifiable case (that Trump was prevented from working closely with Russia), Barr is excusing obstruction of justice because Trump got political pressure he deserved for his actions. But in most cases, Trump was frustrated by the ethical actions of others, that he got caught doing something wrong, that winning while cheering the interference of a hostile power aiming to help you undermines your legitimacy. That any lawyer would think such things — which basically amount to a democracy holding someone accountable — would justify obstruction of justice is downright insane.

Nevertheless, that’s where Attorney General Barr has taken us.


Frustration

Four of six references to frustration in the report describe Trump directly.

In the context of reaching out to WikiLeaks, one described Trump’s frustration that Hillary’s deleted emails had not been found.

Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found.

Chris Christie hypothetically describes Trump as being “frustrated” with the investigation.

The President asked Christie what he meant, and Christie told the President not to talk about the investigation even if he was frustrated at times.222

Trump was frustrated with Comey before his March 20 testimony, which got worse afterwards.

According to McGahn and Donaldson, the President had expressed frustration with Comey before his March 20 testimony, and the testimony made matters worse.318

Trump was frustrated that the Russian investigation made relations with Russia difficult.

The President expressed frustration with the Russia investigation, saying that it made relations with the Russians difficult.348 The President told Rogers “the thing with the Russians [wa]s messing up” his ability to get things done with Russia.349

Anger

The following are the nine of ten references to “angry” and all eleven references to “anger” in the Report involve Trump directly.

A double instance describes Trump being angry — but he was angry that the WaPo had correctly reported that Flynn undermined Obama’s sanctions on Russia. Trump is described another time as being angry that Flynn’s actions were exposed.

On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions. 122 The column questioned whether Flynn had said something to “undercut the U.S. sanctions” and whether Flynn’s communications had violated the letter or spirit of the Logan Act. 123

President-Elect Trump called Priebus after the story was published and expressed anger about it. 124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’s conversations with Kislyak. 126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the “boss” and said Flynn needed to “kill the story.” 127

The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak.

Trump was angry with Flynn that his behavior with Sergey Kislyak was causing him trouble again.

The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” 155

Trump was also angry at Flynn for other things, including his stupid spawn.

Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017.

The Report describes Trump being angry at Jeff Sessions four times for following DOJ guidelines on recusal.

Hicks recalled that after Sessions recused, the President was angry and scolded Sessions in her presence, but she could not remember exactly when that conversation occurred.

The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, “How could you let this happen, Jeff?”505

And after Sessions announced his recusal on March 2, the President expressed anger at the decision and told advisors that he should have an Attorney General who would protect him. That weekend, the President took Sessions aside at an event and urged him to “unrecuse.”

The President became very upset and directed his anger at Sessions.393 According to notes written by Hunt, the President said, “This is terrible Jeff. It’s all because you recused.

Trump was also angry at McGahn because Sessions recused.

The President expressed anger at McGahn about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney.294

One instance reports Trump denying that he fired Comey because he was angry about the Russian investigation.

The next day, the President acknowledged in a television interview that he was going to fire Comey regardless of the Department of Justice’s recommendation and that when he “decided to just do it,” he was thinking that “this thing with Trump and Russia is a made-up story.” In response to a question about whether he was angry with Comey about the Russia investigation, the President said, “As far as I’m concerned, I want that thing to be absolutely done properly,” adding that firing Comey “might even lengthen out the investigation.”

But two other references describes Trump being angry that Comey complied with DOJ guidelines and instructions and did not specifically say Trump was not under investigation.

After Comey publicly confirmed the existence of the FBT’s Russia investigation on March 20, 2017, the President was “beside himself’ and expressed anger that Comey did not issue a statement correcting any misperception that the President himself was under investigation.

But during his May 3 testimony, Comey refused to answer questions about whether the President was being investigated. Comey’s refusal angered the President, who criticized Sessions for leaving him isolated and exposed, saying “You left me on an island.

Trump claimed others were angry that Hillary was not being investigated.

On October 29, 2017, the President tweeted that there was “ANGER & UNITY” over a “lack of investigation” of Clinton and “the Comey fix,” and concluded: “DO SOMETHTNG!”756

Trump claimed others were angry because Mike Flynn was prosecuted for lying to the FBI and DOJ.

On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”845

Trump twice accused Mueller’s prosecutors of being angry (and being Democrats).

On July 31, 2018, Manafort’s criminal trial began in the Eastern District of Virginia, generating substantial news coverage.862 The next day, the President tweeted, “This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!”86

“While the disgusting Fake News is doing everything within their power not to report it that way, at least 3 major players are intimating that the Angry Mueller Gang of Dems is viciously telling witnesses to lie about facts & they will get relief. This is our Joseph McCarthy Era!” @rea!DonaldTrump 11/28/ 18 (8:39 a.m. ET) Tweet.

Motivations

As far as motive, the report has several discussions of Trump’s motives after every act of obstruction it analyzes, but it also suggests that those motives are different before and after he fired Comey and made himself a focus of the investigation.

Although the series of events we investigated involved discrete acts, the overall pattern of the President’s conduct towards the investigations can shed light on the nature of the President’s acts and the inferences that can be drawn about his intent. In particular, the actions we investigated can be divided into two phases, reflecting a possible shift in the President’s motives. The first phase covered the period from the President’s first interactions with Comey through the President’s firing of Come. During that time, the President had been repeatedly told he was not personally under investigation. Soon after the firing of Comey and the appointment of the Special Counsel, however, the President became aware that his own conduct was being investigated in an obstruction-of-justice inquiry. At that point, the President engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation. Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence.

The Flynn section includes a passage that describes Trump being angry that Russia’s interference tainted his own victory.

Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.” Flynn’s firing occurred at a time when the media and Congress were raising questions about Russia’s interference in the election and whether members of the President’s campaign had colluded with Russia. Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election. The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before meeting one-on-one with Corney, the President told Christie that firing Flynn would put an end to the Russia inquiries.

The confirmation of the investigation section includes a lot of language about protecting himself but also concern about the legitimacy of his victory and his ability to work with Russia.

Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.

Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia. The President told Coats he “can’t do anything with Russia,” he told Rogers that “the thing with the Russians” was interfering with his ability to conduct foreign affairs, and he told Corney that “he was trying to run the country and the cloud of this Russia business was making that difficult.”

The Comey firing passage does suggest Trump was frustrated he couldn’t work with Russia, but also shows that he had reason to worry an investigation would show he had broken the law, and he worried the investigation would delegitimize his victory.

We also considered why it was important to the President that Comey announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia. The President told Comey that the “cloud” of “this Russia business” was making it difficult to run the country. The President told Sessions and McGahn that foreign leaders had expressed sympathy to him for being under investigation and that the perception he was under investigation was hurting his ability to address foreign relations issues. The President complained to Rogers that “the thing with the Russians [ was] messing up” his ability to get things done with Russia, and told Coats, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” The President also may have viewed Comey as insubordinate for his failure to make clear in the May 3 testimony that the President was not under investigation.

[snip]

As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But 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. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the ro ress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

The report describes his efforts to fire Mueller, efforts to limit the scope of Mueller’s investigation, attacks on Sessions, and attempt to get McGahn to write a false statement denying he tried to fire Mueller as an effort to stop the investigation into himself for obstruction.

Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

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.

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.

Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn ‘s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.

The report explains that Trump wrote the June 9 statement in an attempt to avoid public disclosure about the meeting.

The evidence establishes the President’s substantial involvement in the communications strategy related to information about his campaign’s connections to Russia and his desire to minimize public disclosures about those connections.

While the analysis on floating a pardon for Flynn is inconclusive and that on Stone is redacted, the report does say that Trump floated a pardon to Manafort to encourage him not to cooperate and also to influence his jury.

Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.

And the report concludes that Trump’s efforts to discourage Cohen from cooperating were an attempt to cover up Trump’s own conduct during the campaign.

In analyzing the President’s intent in his actions towards Cohen as a potential witness, 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.

Update: Fixed mention of Trump Tower meeting when I meant Trump Tower Moscow.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

One Man’s Declination Decision Is Another Man’s Criminal Suspect Failson

One thing Robert Mueller’s March 27 letter to Attorney General William Barr reveals — in addition to the fact that Mueller is as pissed as he has ever been in his career — is that the two men think very differently about the redactions in the now released report. DOJ has always said it redacted information for four reasons:

  • Grand jury material
  • Ongoing investigations
  • Investigative techniques (sources and methods)
  • Peripheral privacy

It was always clear the last category was — as described — abusively applied. That’s because a number of knowable PP details involve people who are not peripheral at all. For example, I suggested that the redacted description of someone who committed perjury on page 194 might be Carter Page (one other possibility, given the discrepancies between George Papadopoulos and Sam Clovis’ testimony, is the latter figure). One of the people whose lies are detailed on page 199 must be KT McFarland, who managed to correct the lies she told when first interviewed by the FBI in the wake of Mike Flynn’s plea deal.

But the most obvious example of this comes in the scope paragraph on page 12:

While the first redaction is uncertain, the second redaction of the expanded scope — which came after the investigation started focusing on the June 9 meeting — has to be Don Jr given the spacing on the second line, which can only be a suffix.

KT McFarland is not a peripheral figure by any shade. But the President’s son is the definition of a central player. And yet Bill Barr would have you believe that redaction is some coffee boy hired on a whim.

And the thing is, these redactions are hiding not just innocent bystanders. Don Jr is someone whom Mueller believed broke the law — at least on campaign finance and maybe on CFAA when he accessed a non-public site using a password obtained from WikiLeaks (I had thought the redaction on page 179 was of some script kiddies investigated in Philadelphia, but now that I realize these PP redactions are not of peripheral people at all, I’m reconsidering) — but who couldn’t or shouldn’t be charged.

Compare his treatment with that of Jeff Sessions’ forgetfulness about meeting with Sergey Kislyak, which the report presents as a complete exoneration. The discussion of that exoneration is unredacted in both the investigative scope on page 12 and declinations section (197-198).

Mueller in his letter makes it clear he doesn’t consider that PP category peripheral people. Rather, he treats it as a declination decision.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

The appropriateness of the redaction may be the same in both cases: clearly Mueller believes those not charged, even if it was a close call, should not be identified (with the notable exception of Jeff Sessions).

But Mueller is not pretending these are peripheral figures. The Attorney General is hiding the seriousness of potential criminal acts by at least five Trump flunkies — including Trump’s failson — by pretending these people are peripheral figures rather than central figures that, for whatever reason, the Special Counsel decided not to charge.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Why Did Mueller Include the June 9 Meeting Statement in His Obstruction Case?

I’ve got a bunch more posts on the Mueller Report I’m going to eventually write; I’ve still got a slew of theories and observations to share. But there’s one topic I just have guesses on, one I’d love to have more people weigh in on.

Why did Mueller’s team include Donald Trump’s statement on the June 9 meeting — which is described not as a false statement, but an effort to prevent the disclosure of Don Jr’s emails setting up the meeting — in his obstruction analysis?

The obstruction analysis on the June 9 meeting shows it’s not itself obstruction

As a number of reviews of the Mueller Report obstruction analysis show, the June 9 meeting cover-up is the one obstructive act where the report concludes the evidence did not establish it as an act of obstruction for all three factors:

As the obstruction analysis lays out, Trump talked hopefully about ensuring the emails didn’t get out, but there’s no evidence he took action, beyond lying publicly, to suppress them.

Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel. On May 17, 2017, the President’s campaign received a document request from SSCI that clearly covered the June 9 meeting and underlying emails, and those documents also plainly would have been relevant to the Special Counsel’s investigation.

But the evidence does not establish that the President took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the Special Counsel. The series of discussions in which the President sought to limit access to the emails and prevent their public release occurred in the context of developing a press strategy.

It then repeats that analysis by showing that while withholding the emails might amount to obstruction, he did not withhold emails.

As noted above, the evidence does not establish that the President sought to prevent disclosure of the emails in those official proceedings.

Then, in the intent section, it shows Trump’s central role in crafting the adoptions statement, while again concluding that the statement doesn’t amount to withholding the email.

The evidence establishes the President’s substantial involvement in the communications strategy related to information about his campaign’s connections to Russia and his desire to minimize public disclosures about those connections. The President became aware of the emails no later than June 29, 2017, when he discussed them with Hicks and Kushner, and he could have been aware of them as early as June 2, 2017, when lawyers for the Trump Organization began interviewing witnesses who participated in the June 9 meeting. The President thereafter repeatedly rejected the advice of Hicks and other staffers to publicly release information about the June 9 meeting. The President expressed concern that multiple people had access to the emails and instructed Hicks that only one lawyer should deal with the matter. And the President dictated a statement to be released by Trump Jr. in response to the first press accounts of the June 9 meeting that said the meeting was about adoption.

But as described above, the evidence does not establish that the President intended to prevent the Special Counsel’s Office or Congress from obtaining the emails setting up the June 9 meeting or other information about that meeting.

Curiously, this analysis of intent doesn’t talk about why Trump may have wanted to hide the truth about the June 9 meeting, even though elsewhere the report suggests that, overall, one motive for Trump obstructing the investigation might be because he thought the June 9 meeting would be found to be criminal.

So Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.

So why — in a report that might better be understood as an impeachment referral — did they include that?

Trump’s statement on the June 9 meeting as evidence of corrupt intent for other obstructive acts

I’ve commented elsewhere that one of the posts I’ll eventually do is a narratological analysis of the report. I said that, in part, for the way the report intersperses several acts of potential Trump obstruction that all happened during the same time period in summer 2017. While the report only mentions this in passing, Trump’s lies about the June 9 meeting occur during the same time frame as three other potential obstructive acts that the report shows do amount to obstruction: the effort to get Don McGahn to get Rod Rosenstein to fire Mueller, the request that Corey Lewandowski (!!) fire Jeff Sessions, and the effort to get Sessions to unrecuse.

And, as noted, the June 9 meeting is one of three things — along with the Trump Tower Moscow deal and Trump’s push to have Roger Stone optimize the release of the stolen emails — that the report posits might be the underlying facts Trump was attempting to hide with his other obstruction (note that the report never focuses on Mike Flynn’s discussion on sanctions, which I’ll return to in a later post).

Which suggests Trump’s involvement in the June 9 statement is there not for those actions themselves, but for the way his actions prove corrupt intent for other obstructive actions.

A story describing Trump’s unique actions that nevertheless leaves out the biggest detail

Still, the specific story the report tells is damning. It includes details that suggest this was a unique event, with Trump trying to retain plausible deniability even though several witnesses say he knew about the meeting, and describing Trump preferring to break his cardinal sin, remaining silent on a story. But note that the story leaves out one of the most important details: Vladimir Putin’s interactions with the President during the day Trump wrote his deceitful statement.

Here’s the story, as told in the obstruction section.

Trump claims he didn’t know about the meeting ahead of time, contrary to what several witnesses said.

According to written answers submitted by the President in response to questions from this Office, the President had no recollection of learning of the meeting or the emails setting it up at the time the meeting occurred or at any other time before the election 668

The Chief of Staff learns about the meeting from Sean Hannity, which is just crazy train.

[Reince] Priebus recalled learning about the June 9 meeting from Fox News host Sean Hannity in late June 2017.672

Trump tells Jared not to share details of the meeting with him, according to Hope Hicks.

According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr.678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down.’

[snip]

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office 68° She recalled being shocked by the emails because they looked “really bad.”68′ The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress.682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.”‘ The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President.685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting.686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with “softball questions.”687 The President said he did not want to know about it and they should not go to the press 688 Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details!'” Hicks recalled that the President asked Kushner when his document production was due.699 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”‘ Hicks also recalled that the President said Kushner’s attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press.692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the emails because the President believed they would not leak.693

But Jared claims that didn’t happen. This narrative is largely sourced to interviews with Hope Hicks. Even in his second interview, Jared said it didn’t happen this way.

Hicks 12/7/17 302, at 7; Hicks 3/13/18 302, at I. Counsel for Ivanka Trump provided an attorney proffer that is consistent with Hicks’s account and with the other events involving Ivanka Trump set forth in this section of the report. Kushner said that he did not recall talking to the President at this time about the June 9 meeting or the underlying emails. Kushner 4/11/18 302, at 30.

Hicks is confused about why Trump wants to commit his ultimate sin.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697 Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”706

The Report neglects to mention the Putin meeting where he and Trump talked about the subject of the statement.

[see this post]

Trump edits Jr’s statement because it admits they were offered dirt and discussed sanctions relief, defaulting on Putinesque spin.

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

Hope Hicks channels the President hoping the damning emails would never leak.

Corallo told the President the statement had been authorized and further observed that Trump Jr. ‘s statement was inaccurate and that a document existed that would contradict it.722 Corallo said that he purposely used the term “document” to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails.723 Corallo recalled that when he referred to the “document” on the call with the President, Hicks responded that only a few people had access to it and said “it will never get out.”724 Corallo took contemporaneous notes of the call that say: “Also mention existence of doc. Hope says ‘ only a few people have it. It will never get out.”‘725 Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emaiis would leak.726

Trump’s flunkies deny that the guy who met Vladimir Putin twice during the drafting of the statement wrote the statement.

Over the next several days, the President’s personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr. ‘s statement.729 After consulting with the President on the issue, White House Press Secretary Sarah Sanders told the media that the President “certainly didn’t dictate” the statement, but that “he weighed in, offered suggestions like any father would do.”730

The Report again neglects to mention the Putin meeting where he and Trump spoke about the subject of the statement.

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’ t have taken a meeting like that?”‘735

[see this post]

Providing the framework for the Putin involvement

As I’ve said, I think it remarkable — though perhaps explicable on constitutional grounds — that the report does not mention Putin’s role in all of this, and Trump’s bizarre behavior at the G20 (where he had Ivanka sit in on a meeting while he worked on the statement) more generally. Trump’s interactions with Putin — and his efforts to keep them secret even from staffers — is the subject of other congressional investigation. Which is why this passage from the beginning of the obstruction section sticks out.

Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

As noted, I think Mueller included the June 9 meeting statement not because it, by itself, amounts to obstruction, but because the evidence laid out — plus evidence available publicly or via separate congressional investigation — provides an important motivational explanation for the rest of it. Trump made three separate attempts to gut the Mueller investigation in this period, all at a time he was acting unusually (for him) in his efforts to bury the June 9 meeting.

This is the lie he was telling while using his office to try to stop the investigation. Or rather, this is the lie he and Vladimir Putin were telling.

EMPTYWHEEL’S MUELLER REPORT COVERAGE

Two Exceptions to Trump’s “Do Not Recall” Responses: A Limited Answer on an Assange Pardon and a Non-Answer on Sanctions Relief

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

Giorgi Rtslchiladze’s Honor Has Been Sullied because He Can’t Decide Whether He Knows the Tapes He Suppressed Exist or Not

Why Did Mueller Include the June 9 Meeting Statement in His Obstruction Case?

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Hell Hath No Fury Like a Self-Promoting Republican Lawyer Scorned

Yesterday, Jerry Nadler subpoenaed Don McGahn, both to appear and testify on May 21, but also to turn over a slew of documents pertaining to 36 topics, the two most interesting of which are:

23. President Trump’s exposure in the Special Counsel Investigation relating to “other contacts,” calls,” or “ask re Flynn” as mentioned in Volume II, page 82 of the Report.

[snip]

34.  Communications relating to United States imposed sanctions or potential sanctions against the Russian Federation from June 16, 2015 to October 18, 2018, including but not limited to the sanctions imposed pursuant to the Magnitsky Act.

I suspect this is a friendly subpoena — a subpoena giving the witness an excuse for testifying. I say that not just because McGahn is a self-promoter who likes to pretend he’s the hero of saving Trump from prison, but also because McGahn got noticeably more chatty with Mueller’s office as Trump grew more unmanageable and the risk to McGahn’s future increased. Indeed, because he leaked his heroic role to the press, he ended up getting called in for further interviews.

At least as described by its footnotes, the Mueller Report revealed that McGahn testified five times. The first three seem to be largely sequential interviews covering three big events:

  • November 30, 2017: Flynn’s firing
  • December 12, 2017: Sessions’ recusal and Comey’s firing
  • December 14, 2017: Mueller’s appointment and Trump’s efforts to fire him, both directly (through McGahn) and indirectly (by firing Sessions)

Then, after the NYT and WaPo reported two versions of the story, in January of last year, that Trump asked McGahn to fire Mueller, McGahn was interviewed at more length about that.

  • March 8, 2018: Trump’s order to fire Mueller and attempt to force McGahn to correct the NYT story

Then, this year, after he had been fired for cooperating with Mueller, he was interviewed again, apparently to clarify some timing related issues (the interview apparently focused on his private phone records), and to explain why he didn’t tell Anne Donaldson, Reince Priebus, and others about the order to fire Mueller.

  • February 28, 2019

There are signs that, during the first set of interviews, McGahn was shading the truth. As expected, his story about the Flynn firing (and the CYA memo he drafted the day after Flynn’s firing) is dodgy — some of which I’ll return to, For example, his CYA memo claimed that, “Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the Department of Justice would not object to the White House taking action against Flynn,” when in fact she had told him she alerted him to Flynn’s lies precisely so the White House could take action. At times, it was clear McGahn was trying to put a less damning spin on things, especially notes taken by Anne Donaldson or Sessions Chief of Staff Jody Hunt. For example, he claimed a note that said “No comms, / Serious concerns about obstruction” didn’t mean that his office had tried to set a rule not to speak to Sessions about the investigation, reflected instead a concern about the press spin; that spin might reflect his own concern about his efforts to convince Sessions not to recuse.

In those initial interviews, too, McGahn’s story about his effort to get DOJ to issue a statement claiming the President wasn’t being investigated differs significantly from Dana Boente’s, which is useful to his story as it provides an excuse for his orchestration of blaming the Jim Comey firing on Rod Rosenstein. Perhaps the most ridiculous claim, from the initial meetings, is that Trump insisted on emphasizing Comey’s refusal to say he wasn’t under investigation because he didn’t want everyone to know Comey was fired over the Russia investigation. “McGahn said he believed the President wanted the language included so that people would not think that the President had terminated Comey because the President was under investigation” — this, even in spite of the fact that Trump told McGahn that he had told Sergey Lavrov he fired Comey because of the Russian investigation to take the pressure off.

McGahn,  and to a lesser degree Donaldson, both invented a bullshit story for why they were asking Richard Burr which Trump aides were targeted by the investigation, which a footnote dismantles.

The week after Comey’s briefing, the White House Counsel’s Office was in contact with SSCI Chairman Senator Richard Burr about the Russia investigations and appears to have received information about the status of the FBI investigation.309

309 Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11 /6/17 302, at 15. The “targets” were identified in notes taken by Donaldson as “Flynn (FBI was ~ooking for phone records”; “Comey~Manafort (Ukr + Russia, not campaign)”; [redacted] “Carter Page ($ game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. § 1001 for lying to the FBI). SC_AD_00l98 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets ofSSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Comey’s briefing to the Gang of8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI’s targets).

Perhaps most tellingly, the first time McGahn got asked about Trump’s efforts to fire Mueller, he was not all that forthcoming.

When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.

From the footnotes, it appears that Mueller’s office went back to Don McGahn in March 2018, after flattering stories about his heroic role showed up in NYT, WaPo, and CNN and got more clarification about how McGahn prevented Trump from firing Mueller (basically, by ignoring him). That interview, too, gathered information about how Trump tried to bully McGahn into correcting the NYT story, which falsely claimed that McGahn had told Trump he would quit. (Truthfully, McGahn’s threats to quit are as pathetic as I expected when the stories first came out, and the NYT story is as misleadingly flattering as I expected.)

It’s at that March 2018 meeting where McGahn admitted his real motivation: he envisioned himself as an esteemed judicial ideologue and not a historic hack.

McGahn also had made clear to the President that the White House Counsel’s Office should not be involved in any effort to press the issue of conflicts.578 McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not ” Saturday Night Massacre Bork.”579

Finally, after being fired himself for cooperating with Mueller (and, probably, for seeding so many self-serving stories with the NYT), Mueller interviewed McGahn once more, this February, one of the very last interviews that appears in the report. It appears they were cleaning up two discrepancies: the dates of the calls (it appears McGahn may have said one happened later than it did to separate it from coverage that Trump was under investigation for obstruction), and to get McGahn to explain why he didn’t tell Donaldson or Priebus and Bannon that he had been ordered to get Rosenstein to fire Mueller.

Incidentally, while self-proclaimed Mueller investigation hero McGahn appears to have been happy to tell Mueller’s team that Trump’s claims that Mueller had a conflict, he never told the press, not even in any of those seeded stories to the NYT.

There’s one detail about the Mueller report of particular interest, however, given the subpoena to testify. That note Donaldson took, recording that “McGahn told the President that his ‘biggest exposure’ was not his act of firing Comey but his ‘other contacts’ and ‘calls,’ and his ‘ask re: Flynn”?

Nowhere is his explanation for that comment cited to an interview report from him.

Which brings us to the subpoena, which (as I said) I suspect is a friendly one.

McGahn is almost certainly one of the people who sourced stories (including with his favorite reporters at the NYT) saying they were worried about all the damning things they said exposed in the Mueller Report. In McGahn’s case, he was right to be worried. The other day, Politico revealed that Trump replaced Jones Day as his 2020 campaign firm, in a move that was attributed to cost-cutting but that Politico’s sources say is retaliation not just for McGahn’s cooperation with Mueller but also a story (written by McGahn’s favorite NYT journos the same day he last interviewed with Mueller) on Jared Kushner’s inappropriate security clearance.

[C]lose Trump advisers say the decision also stems from disappointment with the White House’s former top attorney and current Jones Day partner, Don McGahn, whose behavior has irked the president and some of his family members.

Taking business away from Jones Day is payback, these advisers say, for McGahn’s soured relationship with the Trump family and a handful articles in high-profile newspapers that the family blames, unfairly or not, on the former White House counsel.

“Why in the world would you want to put your enemy on the payroll?” said one adviser close to the White House. “They do not want to reward his firm. Trump arrived at that point long ago, but the security clearance memo stories put a fine point on it.”

One February 2019 story, in particular, caught the White House’s attention, when The New York Times reported that the president ordered John Kelly, his chief of staff at the time, to grant a security clearance to Jared Kushner. Kelly had written an internal memo on it, according to the Times. That fact was closely held inside the White House, and few officials other than Kelly and McGahn knew, say two close White House advisers — and the administration blamed McGahn for the leak.

One other thing HJC is asking for are “communications with the Executive Office of the President regarding your response to the March 4, 2019 document request” by HJC.

Which, I’m sure they have reason to know, reflect White House opposition to his public testimony.

Don McGahn apparently imagined working for a corrupt asshole like Trump would get him named to the Supreme Court.

Instead, his firm has a lost a very lucrative client. He appears to be upping the ante by further distancing himself from Trump’s corruption. That may get ugly, because Don McGahn knows where a whole lot of Donald Trump’s bodies are buried. And given that McGahn, not Trump, is the one who packed the courts, the Republicans may have really divided loyalties over this fight.

Update: The White House is fighting McGahn’s subpoena.

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

The Mueller Report does not include the investigation’s counterintelligence analysis. It says that explicitly here (see also this Ben Wittes report, though I think he gets a few things wrong).

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results. [my emphasis]

These FBI Agents were only co-located for part of Mueller’s tenure, perhaps around the same time as the IRA indictment? And this description does not include the three NSD prosecutors described as detailees, Heather Alpino, Ryan Dickey, and Jessica Romero, as distinct from prosecutors originally assigned to Mueller.

Plus, we know there was always a counterintelligence focus to this investigation; all the initial subjects of it (Manafort, Page, Papadopoulos, and Flynn) were counterintelligence concerns. Other Trump associates got added in October 2017, but even there, the investigation into Michael Cohen started as a FARA investigation and Gates and probably others were brought in along with Manafort’s counterintelligence concerns. Then there’s Trump (who must have been brought in for obstruction, but I don’t think the report says how).

But the most significant thing that doesn’t show up in this report is whether Trump was undercutting the investigation as a favor to Russia, reportedly one of the concerns Rod Rosenstein had when he first hired Mueller. This report does not explicitly treat that concern, at all (to significant detriment to one area of its analysis, as I’ll show in a follow-up post).

That’s most evident in the way the report deals with Vladimir Putin in the post-inauguration period. The report itself invokes Putin at least 163 times, often describing the many different efforts to set up a meeting between Putin and Trump. But when Trump actually started meeting with top Russian officials — and Putin specifically — the report gets quiet.

We finally get a read-out of the January 28 phone call

Start with the phone call between Trump and Putin on January 28, 2017. The report describes that setting up this call was among the things Mike Flynn spoke to Sergey Kislyak about.

Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East.

That Kislyak asked him to set up the call was actually something Flynn told the FBI the truth about in his interview with the FBI. More importantly, the report reveals several details that previous reporting about the George Nader channel did not: first, the role of Jared Kushner’s hedge fund buddy Rick Gerson in that back channel with Kirill Dmitriev, and the role that a “reconciliation plan” that Dmitriev got to Kushner via Gerson played in that January 28 meeting.

On January 16, 2017, Dmitriev consolidated the ideas for U.S.-Russia reconciliation that he and Gerson had been discussing into a two-page document that listed five main points: (1) jointly fighting terrorism; (2) jointly engaging in anti-weapons of mass destruction efforts; (3) developing “win-win” economic and investment initiatives; (4) maintaining an honest, open, and continual dialogue regarding issues of disagreement; and (5) ensuring proper communication and trust by “key people” from each country. 1111 On January 18, 2017, Gerson gave a copy of the document to Kushner. 1112 Kushner had not heard of Dmitriev at that time. 1113 Gerson explained that Dmitriev was the head of RDIF, and Gerson may have alluded to Dmitriev’s being well connected. 1114 Kushner placed the document in a file and said he would get it to the right people. 1115 Kushner ultimately gave one copy of the document to Bannon and another to Rex Tillerson; according to Kushner, neither of them followed up with Kushner about it. 1116 On January 19, 2017, Dmitriev sent Nader a copy of the two-page document, telling him that this was “a view from our side that I discussed in my meeting on the islands and with you and with our friends. Please share with them – we believe this is a good foundation to start from.” 1117

Gerson informed Dmitriev that he had given the document to Kushner soon after delivering it. 1118 On January 26, 2017, Dmitriev wrote to Gerson that his “boss”-an apparent reference to Putin-was asking if there had been any feedback on the proposal. 1119 Dmitriev said, ” [w]e do not want to rush things and move at a comfortable speed. At the same time, my boss asked me to try to have the key US meetings in the next two weeks if possible.”1120 He informed Gerson that Putin and President Trump would speak by phone that Saturday, and noted that that information was “very confidential.”1121

The same day, Dmitriev wrote to Nader that he had seen his “boss” again yesterday who had “emphasized that this is a great priority for us and that we need to build this communication channel to avoid bureaucracy.” 1122 On January 28, 2017, Dmitriev texted Nader that he wanted “to see if I can confirm to my boss that your friends may use some of the ideas from the 2 pager I sent you in the telephone call that will happen at 12 EST,”1123 an apparent reference to the call scheduled between President Trump and Putin. Nader replied, “Definitely paper was so submitted to Team by Rick and me. They took it seriously!”1124 After the call between President Trump and Putin occurred, Dmitriev wrote to Nader that “the call went very well. My boss wants me to continue making some public statements that us [sic] Russia cooperation is good and important.” 1125 Gerson also wrote to Dmitriev to say that the call had gone well, and Dmitriev replied that the document they had drafted together “played an important role.” 1126 [my emphasis]

This was a meeting that the US side provided just a terse readout of (and, if I remember correctly, only after Russia released its readout). 27 months later, we’re learning that Dmitriev (whose bank was of questionable status because of sanctions) and convicted pedophile Nader were prepping the meeting less than an hour before it began (the report cites text messages between them from 11:05 and 11:11 AM the morning of the 12PM meeting, as well as texts involving Gerson). Between them, the two of them plus Gerson (none of whom had clearance) had a better sense of how the meeting went than the American public. Among the things they learned — but we did not — was that part of the reconciliation plan included “win-win” economic and investment initiatives pitched by the head of RDIF.

The lead-up to this meeting is the subject about which Steve Bannon and Erik Prince mysteriously lost the encrypted texts they exchanged discussing it.

While the report does describe this meeting in its assessment of links between Russians and Trump associates, it doesn’t focus on how it lines up with questions about firing Mike Flynn.

The correlation of Trump’s decision to fire Comey and his conversation with Putin

The report gets still more coy when it describes the role of a meeting with Sergey Lavrov and Sergey Kislyak the day after Trump fired Jim Comey. One of the most pregnant footnotes in the report (h/t Laura Rozen) notes that the May 10, 2017 meeting was planned in a call between Putin and Trump and confirmed the day Trump first dictated the Comey termination at Bedminster Golf Course.

468 SCR08_000353 (5/9/17 White House Document, “Working Visit with Foreign Minister Sergey Lavrov of Russia”); SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.). The meeting had been planned on May 2, 2017, during a telephone call between the President and Russian President Vladimir Putin, and the meeting date was confirmed on May 5, 2017, the same day the President dictated ideas for the Comey termination letter to Stephen Miller. SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.).

According to Don McGahn, in the leadup to Comey’s May 3 testimony to Congress, Trump told him that if Comey did not confirm that Trump was not under investigation it would “be the last straw” because it was “hurting his ability to … deal with foreign leaders.”

McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Comey did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation.384 The President had previously told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.385

Trump brought up Comey at least 8 times with Bannon in the following two days, and Bannon warned Trump not to fire Comey.

Bannon recalled that the President brought Comey up with him at least eight times on May 3 and May 4, 2017 .399 According to Bannon, the President said the same thing each time: “He told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.”400 Bannon told the President that he could not fire Comey because “that ship had sailed.”401 Bannon also told the President that firing Comey was not going to stop the investigation, cautioning him that he could fire the FBI director but could not fire the FBI.402

On the 5th — the day (the report helpfully notes) the Russian meeting was confirmed — Trump dictated to Stephen Miller to start Comey’s termination letter by stating that the Trump-Russia story was fabricated.

[T]he President told Miller that the letter should start, “While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship – pertaining to the 2016 presidential election, please be informed that I, and I believe the American public – including Ds and Rs – have lost faith in you as Director of the FBI.”

Trump prohibited Miller from telling anyone at the White House about his plan to fire Comey.

All that would lead you to believe the report might make further note about this correlation, about the appearance (which had already been suggested, but the report makes far more clear) that Trump took action in advance of that meeting.

It doesn’t really. The description of the meeting does make clear that, in the wake of Trump’s comments to Lavrov boasting about firing Comey, the White House released a statement that incorporated and expanded on the language about Comey’s grandstanding from finalized Miller letter drafted at Bedminster.

In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office.468 The media subsequently reported that during the May 10 meeting the President brought up his decision the prior day to terminate Comey, telling Lavrov and Kislyak: “T just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. … I’m not under investigation.”469 The President never denied making those statements, and the White House did not dispute the account, instead issuing a statement that said: “By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia. The investigation would have always continued, and obviously, the termination of Comey would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified information.”470 Hicks said that when she told the President about the reports on his meeting with Lavrov, he did not look concerned and said of Comey, “he is crazy.”471 When McGahn asked the President about his comments to Lavrov, the President said it was good that Comey was fired because that took the pressure off by making it clear that he was not under investigation so he could get more work done.472 [my emphasis]

What the report doesn’t mention, at all, is that Trump shared sensitive Israeli intelligence with the Russians at this meeting, an obvious counterintelligence concern.

Trump’s secret co-author on the June 9 meeting statement

An even more remarkable silence in the report pertains to the conversation Trump had with Putin at the G20 while his team was working on drafting the statement about the June 9 meeting.

The description of Trump’s actions on this matter are fairly superlative, with Hope Hicks describing Trump in what is best described as denial, refusing to be included in conversations about it, yet strongly suggesting that it was Trump making the comment — suggesting they could withhold the damning emails — that Mark Corallo later attributed to her. Hicks even describes Trump as committing what he considered the ultimate sin, not commenting on a story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

The report then describes how (in what would have been in the wake of Trump’s first face-to-face meeting with Putin) Trump instructed her to claim the meeting was just about adoptions. It then describes Trump dictating a statement, watering down the offer of dirt to just adoptions, something that not even Don Jr was willing to put out.

Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”700

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

The passage mentions nothing about Trump’s meeting, with no American aides, with Putin at the G20 dinner in between the first discussion of a statement about adoptions and the one Trump drafted personally.

Nor does the report, in repeated discussions of Trump’s unplanned interview with the NYT at which he admitted discussing adoptions with Putin that night, mention that admission.

Within hours of the President’s meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions’s decision to recuse from the Russia investigation.630 The President said that “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.”631 Sessions’s recusal, the President said, was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”632 Hicks, who was present for the interview, recalled trying to “throw [herself] between the reporters and [the President]” to stop parts of the interview, but the President “loved the interview.”633

[snip]

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’t have taken a meeting like that?”‘735

Trump’s admission that he spoke to Putin about adoptions in the same interview where he prepared the ground to fire Sessions and insisted that everyone would take a meeting with foreigners offering dirt on your opponent would seem important to the discussion of whether in attempting to fire Sessions, Trump was obstructing not a criminal investigation into his own conduct, but a counterintelligence investigation into his own ties with Putin.

But the report not only doesn’t consider it, the report doesn’t mention it.

Nor does the report discuss some of the other bizarre Trump interactions with Putin, most of all the Helsinki meeting that took place in the wake of the release of the GRU indictment, leading Trump to yet again very publicly deny Russia’s role in the attack, that time in the presence of Putin himself.

Now, there may be very good constitutional reasons why the analysis of Trump’s weird relationship with Putin as President is not part of this report. The President is empowered with fairly unlimited authority to conduct foreign policy and to declassify information, which would cover these instances.

Plus, if Mueller conducted this analysis, you wouldn’t want to share that publicly so the Russians could read it.

But it must be noted that the report doesn’t answer what a lot of people think it does: whether Trump has been compromised by Russia, leading him to pursue policies damaging to US interests. Let me very clear: I don’t think Trump is a puppet being managed by Vladimir Putin. But contrary to a great number of claims that this report puts those concerns to rest, the report does the opposite. With the limited exception of the suggestion of a tie between firing Comey and the meeting with Lavrov, the report doesn’t even mention the key incidents that would be the subject of such analysis.

If anything, new details released in this report provide even further reason to think Trump obstructed the Russian investigation to halt the counterintelligence analysis of his ties with Russia. But the report itself doesn’t ever explicitly consider whether that’s why Trump obstructed this investigation.

Update: As TC noted, one thing the report does include is the detail that during a period he was trying to fire Sessions, Trump wanted him to limit Mueller’s mandate to future elections, which would have the effect of limiting the investigation into Russia’s crime as well as any potential exposure of his own.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605

The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing: I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

Which Came First: The Indemnity Fail or Cohen’s Cooperation Curiosity?

Michael Cohen is suing Trump Organization for refusing to fulfill an indemnity agreement they had. By itself, the suit offers the promise that these shitholes will rip each other apart in court. Discovery could be awesome, especially since the suit names Eric and Don Jr.

It also may lead other members of the Joint Defense Agreement to question how long Trump will remain loyal to them.

But I’m acutely interested in the timeline the lawsuit draws out for what it says about Trump’s efforts to cover-up his own criminal actions, laid out below. The italicized entries are ones I’ve added to Cohen’s own timeline — many of those dates come from this post on the timeline of the Special Master review of materials seized in the raid of Cohen’s home. The underlined ones are ones in Cohen’s complaint that I’ve editorialized on, to note where someone is known to have told a lie that coordinated with Cohen’s own lies.

As you can see, Trump’s spawn were happy to pay Cohen’s legal bills so long as he continued to tell the agreed upon lies.

But that changed when he got raided in April 2018. As I’ve noted, even though Cohen and Trump succeeded in getting a Special Master appointed to review all the discovery, that appointment didn’t succeed in withholding any of the most damning materials. But the Special Master process did give Trump an opportunity to review what Cohen had — including to identify what he had tape recordings of.

This probably led them to two conclusions. First, because Cohen had taped incriminating conversations (to ensure he’d get paid, Cohen explained in his OGR testimony), he had exposed Trump where he otherwise wouldn’t have been exposed. But because he hadn’t taped the most damning conversations — those implicating the Trump Tower Moscow deal and other Russia-related issues — they could fuck him over with relative impunity.

And that’s about when Trump stopped paying for Cohen’s silence. Notably, Cohen’s filing states that “On June 2018, Mr. Cohen began telling friends and family that he was willing to cooperate with the Special Counsel,” as if there once was a date there. He doesn’t give us that date.

But we can see from the timeline that it happened at a key point in the Special Master review, which is the same time Trump stopped paying for Cohen’s silence.

Two things are unclear to me.

First, as the title suggests, which came first, Cohen’s willingness to cooperate, or Trump’s newfound unwillingness to pay. My bet is it’s the latter, and my bet is it was a response to what they were seeing in the Special Master review. That is, once they decided that Cohen couldn’t hurt them, they cut him free, to sink on his own.

I’m also curious about why Cohen included Papadopoulos, Manafort, Gates, Page, Sessions, and Flynn in his timeline. He is not known to have testimony relating to any of these people — except, perhaps, Manafort. And they weren’t the only ones in Trump’s JDA (Gates has said he was never in the JDA) to have testified in this period (for example, KT McFarland had her first interview).

But it suggests Cohen may have more on the JDA he’s hanging over the others. Which may get litigated in this suit.

Timeline

August 2016: Karen McDougal catch and kill.

October 2016: Stormy Daniels hush payment.

January 13, 2017: SSCI opens Russian investigation.

January 25, 2017: HPSCI opens investigation.

January and February 2017: Cohen seeks reimbursement for hush payment to Daniels.

March 2017: Cohen named RNC Deputy Chair.

May 17, 2017: Mueller appointed.

~May 18, 2017: Cohen meets with Trump and Jay Sekulow, implicitly agree to tell a cover story.

End of May 2017: Cohen lawyers up with McDermott Will & Emery.

May 31, 2017: HPSCI subpoenas Cohen.

July 2017: Trump Organization enters into indemnity agreement in context of joint defense agreement.

August 28, 2017, Cohen sends letter making false statements to HPSCI and SSCI.

September 7, 2017: Don Jr testifies before SJC, repeating Cohen’s false statement on Trump Tower Moscow.

September 19, 2017: Cohen lies to SSCI about Trump Tower Moscow.

September 26, 2017: Roger Stone lies to HPSCI about relaying information about WikiLeaks to campaign, including Trump.

October 5, 2017: George Papadopoulos pleads guilty to making false statements to FBI agents relating to contacts he had with agents of the Russian government while working for the Trump Campaign.

October 25, 2017: Cohen testifies to SSCI, lying about Trump Tower Moscow.

October 25, 2017: First payment, in sum of $137,460, to McDermott.

October 30, 2017: Paul Manafort and Rick Gates indicted by a federal grand jury, including conspiracy against
the United States

November 2, 2017: Carter Page testifies before HPSCI.

November 14, 2017: AG Jeff Sessions testifies before HJC.

December 1, 2017: Mike Flynn pled guilty to lying to the FBI about conversations he had with the Russian ambassador.

December 6, 2017: Don Jr testified before the HPSCI, sustaining Cohen’s lies about Trump Tower Moscow.

December 2017: Don Jr and Eric Trump confirm they will continue to pay Cohen’s attorneys’ fees and expenses.

March 6, 2018: Daniels files a lawsuit against Trump and Cohen in CA seeking to invalidate NDA.

March 26, 2018: Daniels amends lawsuit to allege that Cohen defamed Daniels through public statements he made in or around February 2018.

~March 20, 2018: McDougal files a lawsuit against AMI seeking to invalidate the NDA.

April 5, 2018: Trump says, of payment to Daniels, “You’ll have to ask Michael Cohen. Michael is my attorney. You’ll have to ask Michael.”

April 9, 2018: Cohen raided.

April 9, 2018: Trump states, “So, I just heard that they[, the FBI,] broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. . . . It’s an attack on our country in a true sense. It’s an attack on what we all stand for.”

April 13, 2018: Challenge to seized materials, leading to appointment of Special Master.

April 21, 2018: Rudy Giuliani associate Robert Costello emails Cohen and tells him he “can sleep well tonight” because he “has friends in high places” to reassure Cohen that the President was not made him. Emails also say,

I just spoke to Rudy Giuliani and told him I was on your team. He asked me to tell you that he knows how tough this is on you and your family and he will make (sure) to tell the President. He said thank you for opening this back channel of communication and asked me to keep in touch.

There was never a doubt and they are in our corner, Rudy said this communication channel must be maintained. He called it crucial and noted how reassured they were that they had someone like me whom Rudy has known for so many years in this role

April 21, 2018: Trump tweets, “The New York Times and a third rate reporter named Maggie Haberman, known as a Crooked H flunkie who I don’t speak to and have nothing to do with, are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip.’ They use . . . non-existent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if . . . it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!”

April 26, 2018: On Fox & Friends Trump states that Mr. Cohen is a “good person” and “great guy” who handled “a percentage of my overall legal work. . . . He represents me – like with this crazy Stormy Daniels deal he represented me. And, you know, from what I see he did absolutely nothing wrong. . . . I hope he’s in great shape.”

April 27, 2018: Kimba Wood appoints Barbara Jones as Special Master. 

Through May 2018: Trump Organization continues to pay Cohen’s legal fees, totaling $1.7 million.

May 6, 2018: George Stephanopoulos asks Rudy Giuliani, “Are you concerned at all that Michael Cohen’s going to cooperate with prosecutors?” Mr. Giuliani responds, “No. I expect that he is going to cooperate with them. I don’t think they’ll be happy with it because he doesn’t have any incriminating evidence about the president or himself. The man is an honest, honorable lawyer.”

June 4, 2018: Jones issues first report (covering a number of Cohen’s recordings), disagreeing with three claims of privilege. 

June 6, 2018: Trump lawyer Joanna Herndon requests that any challenge to Special Master decision be sealed. 

June 7, 2018: SDNY demands that any legal discussions of challenges be public. 

June 8, 2018: Judge Wood agrees with SDNY, leading Trump to withdraw certain privilege claims. 

June XX 2018: Cohen begins telling friends and family that he was willing to cooperate with the Special Counsel and federal prosecutors in connection with the SDNY Investigation.

June 2018: Trump Organization ceases to pay McDermott’s invoices, without notice or justification.

June 13, 2018: Daniels files a new lawsuit in CA against former attorney, Keith Davidson, and Cohen, alleging that they “colluded” and “acted in concert” to “manipulate” Daniels and benefit Trump.

June 14, 2018: NYAG subpoenas Cohen in Charitable Foundation suit.

June 15, 2018; Trump says, “I haven’t spoken to Michael in a long time. . . . [H]e’s not my lawyer anymore.”

June 22, 2018: Judge Wood finds that Cohen didn’t do much privileged lawyering.

July 2, 2018: Jones begins releasing files to SDNY.

July 2, 2018: Cohen tells Stephanopoulos, “To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty … I will not be a punching bag as part of anyone’s defense strategy. I am not a villain of this story, and I will not allow others to try to depict me that way.”

July 23, 2018: Cohen withdraws privilege claims from 12 recordings. 

July 26, 2018: On CNN Rudy claims of Cohen, “He has lied all his life” and that he is a “pathological liar.”

August 7, 2018: Cohen begins meeting with Mueller. At his first proffer, he lies.

August 21, 2018: Cohen pleads guilty in SDNY.

September 12, 2018: First truthful Cohen proffer with Mueller.

November 29, 2018: Cohen pleads guilty with Mueller.

December 12, 2018: Cohen sentenced.

December 16, 2018: Trump tweets, “Remember, Michael Cohen only became a ‘Rat’ after the FBI did something which was absolutely unthinkable & unheard of until the Witch Hunt was illegally started. They BROKE INTO AN ATTORNEY’S OFFICE!”

January 25, 2019: Cohen asks for reimbursement for $1.9 million in legal fees and $1.9 in restitution.

Update, March 14: Included Robert Costello email.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.