The Mueller Report: Presented with Related Materials by The Washington Post

by The Washington Post

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed.

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. 1854 McGahn was at home and the President was at Camp David. 1855 In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel. 1856 Footnotes 1854. McGahn 3/ 8/ 18 302, at 1-2; McGahn 12/ 14/ 17 302, at 10. 1855. McGahn 3/ 8/ 18 302, at 1, 3; SCR026_000196 (President’s Daily Diary, 6/ 17/ 17) (records showing President departed the White House at 11: 07 a.m. on June 17, 2017, and arrived at Camp David at 11: 37 a.m.). 1856. McGahn 3/ 8/ 18 302, at 1-2; McGahn 12/ 14/ 17 302, at 10. Phone records show that the President called McGahn in the afternoon on June 17, 2017, and they spoke for approximately 23 minutes. SCR026_000196 (President’s Daily Diary, 6/ 17/ 17) (reflecting call from the President to McGahn on 6/ 17/ 17 with start time 2: 23 p.m. and end time 2: 46 p.m.); (Call Records of Don McGahn). Phone records do not show another call between McGahn and the President that day. Although McGahn recalled receiving multiple calls from the President on the same day, in light of the phone records he thought it was possible that the first call instead occurred on June 14, 2017, shortly after the press reported that the President was under investigation for obstruction of justice. McGahn 2/ 28/ 19 302, at 1-3. While McGahn was not certain of the specific dates of the calls, McGahn was confident that he had at least two phone conversations with the President in which the President directed him to call the Acting Attorney General to have the Special Counsel removed. McGahn 2/ 28/ 19 302, at 1-3.

McGahn was perturbed by the call and did not intend to act on the request.1859 He and other advisors believed the asserted conflicts were “silly” and “not real,” and they had previously communicated that view to the President.

McGahn recalled feeling trapped because he did not plan to follow the President’s directive but did not know what he would say the next time the President called.1869 McGahn decided he had to resign.

Priebus and Bannon both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and remained in his position.1880 He had not told the President directly that he planned to resign, and when they next saw each other the President did not ask McGahn whether he had followed through with calling Rosenstein.

First, McGahn’s clear recollection was that the President directed him to tell Rosenstein not only that conflicts existed but also that “Mueller has to go.”

Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice.

In response to that request, McGahn decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre. He called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter with his chief of staff, told Priebus that the President had asked him to “do crazy shit,” and informed Priebus and Bannon that he was leaving. Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice.

Second, in the days before the calls to McGahn, the President, through his counsel, had already brought the asserted conflicts to the attention of the Department of Justice. Accordingly, the President had no reason to have McGahn call Rosenstein that weekend to raise conflicts issues that already had been raised.

Third, the President’s sense of urgency and repeated requests to McGahn to take immediate action on a weekend—“You gotta do this.

Third, the President’s sense of urgency and repeated requests to McGahn to take immediate action on a weekend—“ You gotta do this. You gotta call Rod.”—support McGahn’s recollection that the President wanted the Department of Justice to take action to remove the Special Counsel. Had the President instead sought only to have the Department of Justice re-examine asserted conflicts to evaluate whether they posed an ethical bar, it would have been unnecessary to set the process in motion on a Saturday and to make repeated calls to McGahn.

Finally, the President had discussed “knocking out Mueller” and raised conflicts of interest in a May 23, 2017 call with McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel.

Finally, the President had discussed “knocking out Mueller” and raised conflicts of interest in a May 23, 2017 call with McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel. And in the days leading up to June 17, 2017, the President made clear to Priebus and Bannon, who then told Ruddy, that the President was considering terminating the Special Counsel. Also during this time period, the President reached out to Christie to get his thoughts on firing the Special Counsel. This evidence shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel.

Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.

“I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!”

And on June 16, 2017, the day before he directed McGahn to have the Special Counsel removed, the President publicly acknowledged that his conduct was under investigation by a federal prosecutor, tweeting, “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!”

“[t]his is the end of my Presidency.”

When the President learned of the appointment of the Special Counsel on May 17, 2017, he expressed further concern about the investigation, saying “[ t] his is the end of my Presidency.” The President also faulted Sessions for recusing, saying “you were supposed to protect me.”

The evidence accordingly indicates that news that an obstruction investigation had been opened is what led the President to call McGahn to have the Special Counsel terminated.

There also is evidence that the President knew that he should not have made those calls to McGahn.

There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office—and McGahn himself—could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President’s actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story, as discussed in Volume II, Section II.I, infra. Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.

Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel.

On June 19, 2017, the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only.

Following his June meeting with the President, Lewandowski contacted Rick Dearborn, then a senior White House official, and asked if Dearborn could pass a message to Sessions.

Lewandowski recalled that the President told him that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired.

Dearborn also said that being asked to serve as a messenger to Sessions made him uncomfortable.1911 He recalled later telling Lewandowski that he had handled the situation, but he did not actually follow through with delivering the message to Sessions, and he did not keep a copy of the typewritten notes Lewandowski had given him.1912

Immediately following the meeting with the President, Lewandowski saw Dearborn in the anteroom outside the Oval Office and gave him a typewritten version of the message the President had dictated to be delivered to Sessions.1908 Lewandowski told Dearborn that the notes were the message they had discussed, but Dearborn did not recall whether Lewandowski said the message was from the President.1909 The message “definitely raised an eyebrow” for Dearborn, and he recalled not wanting to ask where it came from or think further about doing anything with it.1910 Dearborn also said that being asked to serve as a messenger to Sessions made him uncomfortable.1911 He recalled later telling Lewandowski that he had handled the situation, but he did not actually follow through with delivering the message to Sessions, and he did not keep a copy of the typewritten notes Lewandowski had given him.1912

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.

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.”

Three days later, on July 21, 2017, the Washington Post reported that U.S. intelligence intercepts showed that Sessions had discussed campaign-related matters with the Russian ambassador, contrary to what Sessions had said publicly.

Hunt asked Priebus what the President would accomplish by firing Sessions, pointing out there was an investigation before and there would be an investigation after.

“A new INTELLIGENCE LEAK from the Amazon Washington Post, this time against A.G. Jeff Sessions. These illegal leaks, like Comey’s, must stop!”

Although the President tied his desire for Sessions to resign to Sessions’s negative press and poor performance in congressional testimony, Priebus believed that the President’s desire to replace Sessions was driven by the President’s hatred of Sessions’s recusal from the Russia investigation.

Priebus said that he believed that his job depended on whether he followed the order to remove Sessions, although the President did not directly say so.

The President agreed to hold off on demanding Sessions’s resignation until after the Sunday shows the next day, to prevent the shows from focusing on the firing.

Later in the day, Priebus called the President and explained that it would be a calamity if Sessions resigned because Priebus expected that Rosenstein and Associate Attorney General Rachel Brand would also resign and the President would be unable to get anyone else confirmed. 1939 The President agreed to hold off on demanding Sessions’s resignation until after the Sunday shows the next day, to prevent the shows from focusing on the firing.

The President’s effort to send Sessions a message through Lewandowski would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.

a. Obstructive act. The President’s effort to send Sessions a message through Lewandowski would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.

by the time of the President’s initial one-on-one meeting with Lewandowski on June 19, 2017, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge.

b. Nexus to an official proceeding. As described above, by the time of the President’s initial one-on-one meeting with Lewandowski on June 19, 2017, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge.

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.

c. Intent. 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.

the President wanted Sessions to realize that his job might be on the line as he evaluated whether to comply with the President’s direction that Sessions publicly announce that, notwithstanding his recusal, he was going to confine the Special Counsel’s investigation to future election interference.

Later in 2017, the President continued to urge Sessions to reverse his recusal from campaign-related investigations and considered replacing Sessions with an Attorney General who would not be recused.

On December 6, 2017, five days after Flynn pleaded guilty to lying about his contacts with the Russian government, the President asked to speak with Sessions in the Oval Office at the end of a cabinet meeting.2040 During that Oval Office meeting, which Porter attended, the President again suggested that Sessions could “unrecuse,” which Porter linked to taking back supervision of the Russia investigation and directing an investigation of Hillary Clinton.

The President said that flipping was “not fair” and “almost ought to be outlawed.”

In response to a question about a potential pardon for Manafort, the President said, “It was never discussed, but I wouldn’t take it off the table. Why would I take it off the table?”2173

The President’s actions towards witnesses in the Special Counsel’s investigation would qualify as obstructive if they had the natural tendency to prevent particular witnesses from testifying truthfully, or otherwise would have the probable effect of influencing, delaying, or preventing their testimony to law enforcement.

The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not want Manafort to “flip” and cooperate with the government.

The President’s public statements during the Manafort trial, including during jury deliberations, also had the potential to influence the trial jury.

the President’s comments about the prospect of Manafort “flipping” occurred when it was clear the Special Counsel continued to oversee grand jury proceedings.

Before Manafort was convicted, the President repeatedly stated that Manafort had been treated unfairly.

Some evidence supports a conclusion that the President intended, at least in part, to influence the jury.

We also examined the evidence of the President’s intent in making public statements about Manafort at the beginning of his trial and when the jury was deliberating. Some evidence supports a conclusion that the President intended, at least in part, to influence the jury. The trial generated widespread publicity, and as the jury began to deliberate, commentators suggested that an acquittal would add to pressure to end the Special Counsel’s investigation.

The President’s conduct involving Michael Cohen spans the full period of our investigation.

The President’s conduct involving Michael Cohen spans the full period of our investigation. During the campaign, Cohen pursued the Trump Tower Moscow project on behalf of the Trump Organization. Cohen briefed candidate Trump on the project numerous times, including discussing whether Trump should travel to Russia to advance the deal. After the media began questioning Trump’s connections to Russia, Cohen promoted a “party line” that publicly distanced Trump from Russia and asserted he had no business there. Cohen continued to adhere to that party line in 2017, when Congress asked him to provide documents and testimony in its Russia investigation. In an attempt to minimize the President’s connections to Russia, Cohen submitted a letter to Congress falsely stating that he only briefed Trump on the Trump Tower Moscow project three times, that he did not consider asking Trump to travel to Russia, that Cohen had not received a response to an outreach he made to the Russian government, and that the project ended in January 2016, before the first Republican caucus or primary. While working on the congressional statement, Cohen had extensive discussions with the President’s personal counsel, who, according to Cohen, said that Cohen should not contradict the President and should keep the statement short and “tight.” After the FBI searched Cohen’s home and office in April 2018, the President publicly asserted that Cohen would not “flip” and privately passed messages of support to him. Cohen also discussed pardons with the President’s personal counsel and believed that if he stayed on message, he would get a pardon or the President would do “something else” to make the investigation end. But after Cohen began cooperating with the government in July 2018, the President publicly criticized him, called him a “rat,” and suggested his family members had committed crimes.

The President’s interactions with Cohen as a witness took place against the background of the President’s involvement in the Trump Tower Moscow project.

On May 5, 2016, Sater followed up with a text that Cohen thought he probably read to Trump:

On May 5, 2016, Sater followed up with a text that Cohen thought he probably read to Trump: Peskov would like to invite you as his guest to the St. Petersburg Forum which is Russia’s Davos it’s June 16-19. He wants to meet there with you and possibly introduce you to either Putin or Medvedev. . . . This is perfect. The entire business class of Russia will be there as well. He said anything you want to discuss including dates and subjects are on the table to discuss. 2218 Cohen recalled discussing the invitation to the St. Petersburg Economic Forum with candidate Trump and saying that Putin or Russian Prime Minister Dmitry Medvedev might be there. 2219 Cohen remembered that Trump said that he would be willing to travel to Russia if Cohen could “lock and load” on the deal. 2220 In June 2016, Cohen decided not to attend the St. Petersburg Economic Forum because Sater had not obtained a formal invitation for Cohen from Peskov. 2221 Cohen said he had a quick conversation with Trump at that time but did not tell him that the project was over because he did not want Trump to complain that the deal was on-again-off-again if it were revived. 2222

Cohen was concerned that truthful answers about the Trump Tower Moscow project might not be consistent with the “message” that the President-Elect had no relationship with Russia.

In an effort to “stay on message,” Cohen told a New York Times reporter that the Trump Tower Moscow deal was not feasible and had ended in January 2016.2232

In an effort to “stay on message,” Cohen told a New York Times reporter that the Trump Tower Moscow deal was not feasible and had ended in January 2016.2232 Cohen recalled that this was part of a “script” or talking points he had developed with President-Elect Trump and others to dismiss the idea of a substantial connection between Trump and Russia.2233 Cohen said that he discussed the talking points with Trump but that he did not explicitly tell Trump he thought they were untrue because Trump already knew they were untrue.2234 Cohen thought it was important to say the deal was done in January 2016, rather than acknowledge that talks continued in May and June 2016, because it limited the period when candidate Trump could be alleged to have a relationship with Russia to an early point in the campaign, before Trump had become the party’s presumptive nominee.2235 Footnotes 2232. Cohen 9/ 18/ 18 302, at 5. The article was published on February 19, 2017, and reported that Sater and Cohen had been working on plan for a Trump Tower Moscow “as recently as the fall of 2015” but had come to a halt because of the presidential campaign. Consistent with Cohen’s intended party line message, the article stated, “Cohen said the Trump Organization had received a letter of intent for a project in Moscow from a Russian real estate developer at that time but determined that the project was not feasible.” Megan Twohey & Scott Shane, A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump Associates, New York Times (Feb. 19, 2017). 2233. Cohen 9/ 18/ 18 302, at 5-6. 2234. Cohen 9/ 18/ 18 302, at 6. 2235. Cohen 9/ 12/ 18 302, at 10.

Other events we investigated, however, drew upon the President’s Article II authority, which raised constitutional issues that we address in Volume II, Section III.B, infra.

First, the conduct involved actions by the President. Some of the conduct did not implicate the President’s constitutional authority and raises garden-variety obstruction-of-justice issues. Other events we investigated, however, drew upon the President’s Article II authority, which raised constitutional issues that we address in Volume II, Section III.B, infra. A factual analysis of that conduct would have to take into account both that the President’s acts were facially lawful and that his position as head of the Executive Branch provides him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses.

many obstruction cases involve the attempted or actual cover-up of an underlying crime.

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g., United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events—such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians—could be seen as criminal activity by the President, his campaign, or his family.

many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view.

Third, many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view. While it may be more difficult to establish that public-facing acts were motivated by a corrupt intent, the President’s power to influence actions, persons, and events is enhanced by his unique ability to attract attention through use of mass communications. And no principle of law excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened.

“The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”).

5/ 9/ 17 Memorandum, Rosenstein to Sessions (concluding with, “The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”).