The Mueller Report: Report on the Investigation into Russian Interference in the 2016 Presidential Election

by Robert S. Mueller III

Sanders told this Office that her reference to hearing from “countless members of the FBI” was a “slip of the tongue.”482 She also recalled that her statement in a separate press interview that rank-and-file FBI agents had lost confidence in Comey was a comment she made “in the heat of the moment” that was not founded on anything.

Also on May 10, 2017, Sessions and Rosenstein each spoke to McGahn and expressed concern that the White House was creating a narrative that Rosenstein had initiated the decision to fire Comey.484 The White House Counsel’s Office agreed that it was factually wrong to say that the Department of Justice had initiated Comey’s termination.

That weekend, the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed.

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. I 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.

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.627 Dearborn also said that being asked to serve as a messenger to Sessions made him uncomfortable.628 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.

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.”

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 manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski alone in the Oval Office. The President selected a loyal “devotee” outside the White House to deliver the message, supporting an inference that he was working outside White House channels, including McGahn, who had previously resisted contacting the Department of Justice about the Special Counsel.

Porter did not contact Brand because he was sensitive to the implications of that action and did not want to be involved in a chain of events associated with an effort to end the investigation or fire the Special Counsel.

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.797 Porter thought the matter should be handled by the White House communications office, but the President said he wanted McGahn to write a letter to the file “for our records” and wanted something beyond a press statement to demonstrate that the reporting was inaccurate.798 The President referred to McGahn as a “lying bastard” and said that he wanted a record from him.799 Porter recalled the President saying something to the effect of, “If he doesn’t write a letter, then maybe I’ll have to get rid of him.”

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, but instead likely contemplated the ongoing investigation and any proceedings arising from it.

I understand your situation, but let me see if I can’t state it in starker terms….[I]t wouldn’t surprise me if you’ve gone on to make a deal with…the government….[I]f…there’s information that implicates the President, then we’ve got a national security issue,…so, you know,…we need some kind of heads up. Um, just for the sake of protecting all our interests if we can….[R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains….

As the proceedings against Manafort progressed in court, the President told Porter that he never liked Manafort and that Manafort did not know what he was doing on the campaign.851 The President discussed with aides whether and in what way Manafort might be cooperating with the Special Counsel’s investigation, and whether Manafort knew any information that would be harmful to the President.

Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?”

In a CNN interview two days later, Giuliani said, “I guess I should clarify this once and for all….The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation….When it’s over, hey, he’s the president of the United States. He retains his pardon power. Nobody is taking that away from him.”

Giuliani rejected the suggestion that his and the President’s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were “certainly not intended that way.”859 Giuliani said the comments only acknowledged that an individual involved in the investigation would not be “excluded from [a pardon], if in fact the president and his advisors…come to the conclusion that you have been treated unfairly.”860 Giuliani observed that pardons were not unusual in political investigations but said, “That doesn’t mean they’re going to happen here. Doesn’t mean that anybody should rely on it….Big signal is, nobody has been pardoned yet.”

Obstructive act. 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.

That sequence of events could have had the potential to affect Flynn’s decision to cooperate, as well as the extent of that cooperation.

Those statements, combined with 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.

At the same time, although the President had privately told aides he did not like Manafort, he publicly called Manafort “a good man” and said he had a “wonderful family.” And when the President was asked whether he was considering a pardon for Manafort, the President did not respond directly and instead said he had “great respect for what [Manafort]’s done, in terms of what he’s gone through.” The President added that “some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.” In light of the President’s counsel’s previous statements that the investigations “might get cleaned up with some presidential pardons” and that a pardon would be possible if the President “come[s] to the conclusion that you have been treated unfairly,” the evidence supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.

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

Cohen recalled telling Trump he wished the Trump Organization had assistants who were as competent as the woman from the Kremlin.

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.

On October 24 and 25, 2017, Cohen testified before Congress and repeated the false statements he had included in his written statement about Trump Tower Moscow.1005 Phone records show that Cohen spoke with the President’s personal counsel immediately after his testimony on both days.

On February 19, 2018, the day after the New York Times wrote a detailed story attributing the payment to Cohen and describing Cohen as the President’s “fixer,” Cohen received a text message from the President’s personal counsel that stated, “Client says thanks for what you do.”

President responded with a series of tweets predicting that Cohen would not “flip”: The New York Times and a third rate reporter…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!

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”).

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.

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.

Although the events we investigated involved discrete acts—e.g., the President’s statement to Comey about the Flynn investigation, his termination of Comey, and his efforts to remove the Special Counsel—it is important to view the President’s pattern of conduct as a whole. That pattern sheds light on the nature of the President’s acts and the inferences that can be drawn about his intent.

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. Viewing the acts collectively can help to illuminate their significance.

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 or accede to his requests.

the President attempted to remove the Special Counsel; he sought to have Attorney General Sessions unrecuse himself and limit the investigation; he sought to prevent public disclosure of information about the June 9, 2016 meeting between Russians and campaign officials; and he used public forums to attack potential witnesses who might offer adverse information and to praise witnesses who declined to cooperate with the government. Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence.

The President’s personal counsel has written to this Office to advance statutory and constitutional defenses to the potential application of the obstruction-of-justice statutes to the President’s conduct.1072 As a statutory matter, the President’s counsel has argued that a core obstruction-of-justice statute, 18 U.S.C. § 1512(c)(2), does not cover the President’s actions.1073

Under that view, any statute that restricts the President’s exercise of those powers would impermissibly intrude on the President’s constitutional role. The President’s counsel has conceded that the President may be subject to criminal laws that do not directly involve exercises of his Article II authority, such as laws prohibiting bribing witnesses or suborning perjury.

In analyzing counsel’s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.

Under that framework, we concluded, Article II of the Constitution does not categorically and permanently immunize the President from potential liability for the conduct that we investigated. Rather, our analysis led us to conclude that the obstruction-of-justice statutes can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.

The Senate Committee explained that: [T]he purpose of preventing an obstruction of or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice.

Under OLC’s analysis, Congress can permissibly criminalize certain obstructive conduct by the President, such as suborning perjury, intimidating witnesses, or fabricating evidence, because those prohibitions raise no separation-of-powers questions.

In this context, a balancing test applies to assess separation-of-powers issues. Applying that test here, 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 offer of a pardon would precede the act of pardoning and thus be within Congress’s power to regulate even if the pardon itself is not. Just as the Speech or Debate Clause, U.S. Const. Art. I, § 6, cl.1, absolutely protects legislative acts, but not a legislator’s “taking or agreeing to take money for a promise to act in a certain way…for it is taking the bribe, not performance of the illicit compact, that is a criminal act,” United States v. Brewster, 408

Under the Supreme Court’s balancing test for analyzing separation-of-powers issues, the first task is to assess the degree to which applying obstruction-of-justice statutes to presidential actions affects the President’s ability to carry out his Article II responsibilities.

a statute that prohibits official action undertaken for such personal purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. And the Constitution does not mandate that the President have unfettered authority to direct investigations or prosecutions, with no limits whatsoever, in order to carry out his Article II functions.

iii. Finally, the grand jury cannot achieve its constitutional purpose absent protection from corrupt acts.

In the case of the obstruction-of-justice statutes, our assessment of the weighing of interests leads us to conclude that Congress has the authority to impose the limited restrictions contained in those statutes on the President’s official conduct to protect the integrity of important functions of other branches of government.

Accordingly, based on the analysis above, we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.

Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding that directly and adversely affected the President’s financial interests for the purpose of protecting those interests. In those examples, officiai power is being used for the purpose of protecting the President’s personal interests. In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt.

In sum, contrary to the position taken by the President’s counsel, we concluded that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.”

while this report does not conclude that the President committed a crime, it also does not exonerate him.

We also advised counsel that “[a]n interview with the President is vital to our investigation” and that this Office had “carefully considered the constitutional and other arguments raised by…counsel, and they d[id] not provide us with reason to forgo seeking an interview.”