Mueller Report (p. 87 – 90) Analysis of the obstructive act, nexus to official proceeding (definition explained below), and intent.

 

Obstructive Act: “As with the President’s firing of Comey, the attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.”

Trump’s explanation of McGahn was that he just wanted McGahn to bring the issue of conflicts of interest to the attention of the DOJ. “Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

Evidence:

  1. President specifically told McGahn to tell Rosenstein that “Mueller has to go.” He spoke with Trump twice and clearly understood what the president meant, and what the president meant was severe enough for McGahn to attempt to resign
  2. “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.”
  3. “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.”
  4. “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.”

 

Nexus to an official proceeding

Definition: “To satisfy the proceeding requirement, it would be necessary to establish a nexus between the President’s act of seeking to terminate the Special Counsel and a pending or foreseeable grand jury proceeding.”

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:

  • On May 23, 2017, McGahn explicitly warned the President that his “biggest exposure” was not his act of firing Comey but his “other contacts” and “calls,” and his “ask re: Flynn.”
    • (ask re: Flynn refers to asking Comey to let go of Flynn investigation)
  • “On June 9, 2017, the Special Counsel’s Office informed the White House that investigators would be interviewing intelligence agency officials who allegedly had been asked by the President to push back against the Russia investigation.”
  • “On June 14, 2017, news outlets began reporting that the President was himself being investigated for obstruction of justice. Based on widespread reporting, the President knew that such an investigation could include his request for Comey’s loyalty; his request that Comey ‘let[] Flynn go’; his outreach to Coats and Rogers; and his termination of Comey and statement to the Russian Foreign Minister that the termination had relieved ‘great pressure’ related to Russia.”
  • “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.'”

 

Intent

“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.”

“Before the President terminated Comey, the President considered it critically important that he was not under investigation and that the public not erroneously think he was being investigated. As described in Volume TI, Section TI.D, supra, advisors perceived the President, while he was drafting the Comey termination letter, to be concerned more than anything else about getting out that he was not personally under investigation. 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.'”

“By mid-June, the Department of Justice had already cleared the Special Counsel’s service and the President’s advisors had told him that the claimed conflicts of interest were ‘silly’ and did not provide a basis to remove the Special Counsel…[later], the media reported that the President was under investigation for obstruction of justice and the Special Counsel was interviewing witnesses about events related to possible obstruction – spurring the President to write critical tweets about the Special Counsel’s investigation. The President called McGahn at home that night and then called him on Saturday from Camp David. 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. 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.”

 

Leave a Reply

Your email address will not be published. Required fields are marked *