p. 92-98

Obstructive Act, Nexus to Proceeding, and Intent

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.

  • Trump wanted Sessions to announce that the President “shouldn’t have a Special Prosecutor/Counsel” and that Sessions was 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.”  This was stated in a letter that Trump wanted
  • He wanted Sessions to unrecuse himself
  • Trump wanted to have “Sessions declare that he knew ‘for a fact’ that ‘there were no Russians involved with the campaign’ because he ‘was there.'”
  • “The President further directed that Sessions should explain that the President should not be subject to an investigation ‘because he hasn’t done anything wrong.'”

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. To satisfy the nexus requirement, it would be necessary to show that limiting the Special Counsel’s investigation would have the natural and probable effect of impeding that grand jury proceeding.”

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 further knew that the investigation had broadened to include his own conduct and whether he had obstructed justice. Those investigations would not proceed if the Special Counsel’s jurisdiction were limited to future election interference only.”

“The timing and circumstances of the President’s actions support the conclusion that he sought that result. The President’s initial direction that Sessions should limit the Special Counsel’s investigation came just two days after the President had ordered McGahn to have the Special Counsel removed, which itself followed public reports that the President was personally under investigation for obstruction of justice. The sequence of those events raises an inference that after seeking to terminate the Special Counsel, the President sought to exclude his and his campaign’s conduct from the investigation ‘s scope. The President raised the matter with Lewandowski again on July 19, 2017, just days after emails and information about the June 9, 2016 meeting between Russians and senior campaign officials had been publicly disclosed, generating substantial media coverage and investigative interest.”

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. The President also did not contact the Acting Attorney General, who had just testified publicly that there was no cause to remove the Special Counsel. Instead, the President tried to use Sessions to restrict and redirect the Special Counsel’s investigation when Sessions was recused and could not properly take any action on it.”

“The July 19, 2017 events provide further evidence of the President’s intent. The President followed up with Lewandowski in a separate one-on-one meeting one month after he first dictated the message for Sessions, demonstrating he still sought to pursue the request. And just hours after Lewandowski assured the President that the message would soon be delivered to Sessions, the President gave an unplanned interview to the New York Times in which he publicly attacked Sessions and raised questions about his job security. Four days later, on July 22, 2017, the President directed Priebus to obtain Sessions’s resignation. That evidence could raise an inference that 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.”

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