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

by The Washington Post

the President viewed Sessions’s recusal from the Russia investigation as an act of disloyalty.

the day after the midterm elections, the President replaced Sessions

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.

The President then directed Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel.

“If he doesn’t write a letter, then maybe I’ll have to get rid of him.”

The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.

Other evidence cuts against that understanding of the President’s conduct. As previously described, see Volume II, Section II.E, supra, substantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed,

the President’s efforts to have McGahn write a letter “for our records” approximately ten days after the stories had come out—well past the typical time to issue a correction for a news story—indicates the President was not focused solely on a press strategy,

With regard to Flynn, the President sent private and public messages to Flynn encouraging him to stay strong and conveying that the President still cared about him before he began to cooperate with the government. When Flynn’s attorneys withdrew him from a joint defense agreement with the President, signaling that Flynn was potentially cooperating with the government, the President’s personal counsel initially reminded Flynn’s counsel of the President’s warm feelings towards Flynn and said “that still remains.” But when Flynn’s counsel reiterated that Flynn could no longer share information under a joint defense agreement, the President’s personal counsel stated that the decision would be interpreted as reflecting Flynn’s hostility towards the President. That sequence of events could have had the potential to affect Flynn’s decision to cooperate, as well as the extent of that cooperation. Because of privilege issues, however, we could not determine whether the President was personally involved in or knew about the specific message his counsel delivered to Flynn’s counsel.

the President’s commendation of Manafort for being a “brave man” who “refused to ‘break’,” suggested that a pardon was a more likely possibility if Manafort continued not to 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.

And the President’s statements during jury deliberations that Manafort “happens to be a very good person” and that “it’s very sad what they’ve done to Paul Manafort” had the potential to influence jurors who learned of the statements, which the President made just as jurors were considering whether to convict or acquit Manafort.

At the same time, although the President had privately told aides he did not like Manafort,

goal was not to influence the jury but to influence public opinion.

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,

Trump Tower Moscow project was going nowhere because the Russian development company had not secured a piece of property

Cohen’s statement was circulated in advance to, and edited by, members of the JDA.2254 Before the statement was finalized, early drafts contained a sentence stating, “The building project led me to make limited contacts with Russian government officials.”

this Office sought to speak with the President’s personal counsel about these conversations with Cohen, but counsel declined, citing potential privilege concerns.

in anticipation of his impending testimony, Cohen orchestrated the public release of his opening remarks to Congress,

This Office did not investigate Cohen’s campaign-period payments to women.

You are ‘loved’. . .

This one is verified in an email. LYNN always tried to tie people to himself with "love"

the President submitted written responses that did not answer those questions about Trump Tower Moscow directly and did not provide any information about the timing of the candidate’s discussions with Cohen about the project or whether he participated in any discussions about the project being abandoned or no longer pursued.2332 Instead, the President’s answers stated in relevant part: I

the President’s personal counsel declined to provide additional information from the President

the evidence available to us does not establish that the President directed or aided Cohen’s false testimony.

Cohen did not speak directly to the President about the statement, but rather communicated with the President’s personal counsel—as

The President’s conversations with his personal counsel were presumptively protected by attorney-client privilege, and we did not seek to obtain the contents of any such communications. The absence of evidence about the President and his counsel’s conversations about the drafting of Cohen’s statement precludes us from assessing what, if any, role the President played.

the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.

Cohen had not yet pleaded guilty to making false statements to Congress. Accordingly, it was not publicly known what information about the project Cohen had provided to the government. In his written answers, the President did not provide details about the timing and substance of his discussions with Cohen about the project and gave no indication that he had decided to no longer pursue the project. Yet after Cohen pleaded guilty, the President publicly stated that he had personally made the decision to abandon the project. The President then declined to clarify the seeming discrepancy to our Office or answer additional questions.

As described above, there is evidence that the President knew that Cohen had made false statements about the Trump Tower Moscow

effort to retaliate against Cohen and chill further testimony adverse to the President by Cohen or others.

timing of the statements supports an inference that they were intended at least in part to discourage Cohen from further cooperation.

Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.

The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders

we concluded, Article II of the Constitution does not categorically and permanently immunize the President from potential liability for the conduct that we investigated.

The intent element in Section 1512(c)(2) comes from the word “corruptly.” See, e.g., United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (“The intent element is important because the word ‘corruptly’ is what serves to separate criminal and innocent acts of obstruction.”)

The purpose of the word “otherwise” in Section 1512(c)(2) is therefore to clarify that the provision covers obstructive acts other than the destruction of physical evidence with the intent to impair its integrity or availability, which is the conduct addressed in Section 1512(c)(1). The word “otherwise” does not signal that Section 1512(c)(2) has less breadth in covering obstructive conduct than the language of the provision implies.

Those cases illustrate that Section 1512(c)(2) applies to corrupt acts—including by public officials—that frustrate the commencement or conduct of a proceeding, and not just to acts that make evidence unavailable or impair its integrity.

the omnibus clause aims at obstruction of justice itself, regardless of the means used to reach that result.”

The report therefore indicates a congressional awareness not only that residual-clause language resembling Section 1512(c)(2) broadly covers a wide variety of obstructive conduct, but also that such language reaches the improper use of governmental processes to obstruct justice—specifically, the Watergate cover-up orchestrated by White House officials including the President himself.

In several obstruction cases, the Court has imposed a nexus test that requires that the wrongful conduct targeted by the provision be sufficiently connected to an official proceeding to ensure the requisite culpability.

To satisfy the nexus requirement, the government must show as an objective matter that a defendant acted “in a manner that is likely to obstruct justice,”

the individual actually has the obstructive result in mind.

Justice Scalia explained, and “the term ‘corruptly’ in criminal laws has a longstanding and well-accepted meaning. It denotes an act done with an intent to give some advantage inconsistent with official duty and the rights of others.”

Scalia added that “in the context of obstructing jury proceedings, any claim of ignorance of wrongdoing is incredible.”

In sum, in light of the breadth of Section 1512(c)(2) and the other obstruction statutes, an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.

Although the President has broad authority under Article II, that authority coexists with Congress’s Article I power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.

we concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice. The limited effect on presidential power that results from that restriction would not impermissibly undermine the President’s ability to perform his Article II functions.

The Requirement of a Clear Statement to Apply Statutes to Presidential Conduct Does Not Limit the Obstruction Statutes

This section confused me.

we concluded that Congress can validly make obstruction-of-justice statutes applicable to corruptly motivated official acts of the President without impermissibly undermining his Article II functions.

“the President’s power to remove Executive officers, a power [that] . . . is not conferred by any explicit provision in the text of the Constitution (as is the appointment power), but rather is inferred to be a necessary part of the grant of the ‘executive Power.’