p. 113 – 120
A NY Times article in June 2017 reported that Trump had told White House Counsel, Don McGahn, to have the DOJ fire the Special Counsel. The Washington Post added that McGahn wanted to resign because he did not want to carry out Trump’s request. The NY Times version was accurate, except for it reporting that McGahn had told Trump that he would rather resign than carry out this order. McGahn acknowledged that even though this part was not accurate, everything else about the article was.
“Later that day, Porter spoke to McGahn to deliver the President’s message. Porter told McGahn that he had to write a letter to dispute that he was ever ordered to terminate the Special Counsel. McGahn shrugged off the request, explaining that the media reports were true. McGahn told Porter that the President had been insistent on firing the Special Counsel and that McGahn had planned to resign rather than carry out the order, although he had not personally told the President he intended to quit. ”
Later Trump had a meeting with McGahn in which he confronted him: “The President asked McGahn, ‘Did I say the word “fire”? McGahn responded, ‘What you said is, “Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel.” The President responded, ‘I never said that.’ The President said he merely wanted McGahn to raise the conflicts issue with Rosenstein and leave it to him to decide what to do. McGahn told the President he did not understand the conversation that way and instead had heard, ‘Call Rod. There are conflicts. Mueller has to go.'”
Was this obstruction?
Potential obstructive act: “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.”
“That evidence could indicate that the President was not attempting to persuade McGahn to change his story but was instead offering his own-but different-recollection of the substance of his June 2017 conversations with McGahn and McGahn’s reaction to them. For example, Trump told McGahn that he never used the word ‘fire.'”
“Other evidence cuts against that understanding of the President’s conduct… substantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed, including the timing and context of the President’s directive; the manner in which McGahn reacted; and the fact that the President had been told the conflicts were insubstantial, were being considered by the Department of Justice, and should be raised with the President’s personal counsel rather than brought to McGahn. In addition, the President’s subsequent denials that he had told McGahn to have the Special Counsel removed were carefully worded. When first asked about the New York Times story, the President said, ‘Fake news, folks. Fake news. A typical New York Times fake story.’ And when the President spoke with McGahn in the Oval Office, he focused on whether he had used the word ‘fire,’ saying, ‘I never said to fire Mueller. I never said”fire”‘ and ‘Did T say the word “fire”?’ The President’s assertion in the Oval Office meeting that he had never directed McGahn to have the Special Counsel removed thus runs counter to the evidence.”
“Shortly after the story broke, the President’s counsel told McGahn’s counsel that the President wanted McGahn to make a statement denying he had been asked to fire the Special Counsel, but McGahn responded through his counsel that that aspect of the story was accurate and he therefore could not comply with the President’s request.”
Trump tried again and mentioned that he might “have to get rid of” McGahn if he did not comply.
Nexus to an official proceeding: “By January 2018 , the Special Counsel’s use of a grand jury had been further confirmed by the return of several indictments. The President also was aware that the Special Counsel was investigating obstruction-related events because, among other reasons, on January 8, 2018, the Special Counsel’s Office provided his counsel with a detailed list of topics for a possible interview with the President. The President knew that McGahn had personal knowledge of many of the events the Special Counsel was investigating and that McGahn had already been interviewed by Special Counsel investigators. And in the Oval Office meeting, the President indicated he knew that McGahn had told the Special Counsel’s Office about the President’s effort to remove the Special Counsel. The President challenged McGahn for disclosing that information and for taking notes that he viewed as creating unnecessary legal exposure. That evidence indicates the President’s awareness that the June 17, 2017 events were relevant to the Special Counsel’s investigation and any grand jury investigation that might grow out outfit.”
“If the President were focused solely on a press strategy in seeking to have McGahn refute the New York Times article, a nexus to a proceeding or to further investigative interviews would not be shown. But 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.”
Intent: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”
“Several facts support that conclusion. The President made repeated attempts to get McGahn to change his story. As described above, by the time of the last attempt, the evidence suggests that the President had been told on multiple occasions that McGahn believed the President had ordered him to have the Special Counsel terminated…. The President had already laid the groundwork for pressing McGahn to alter his account by telling Porter that it might be necessary to fire McGahn if he did not deny the story, and Porter relayed that statement to McGahn. Additional evidence of the President ‘s intent may be gleaned from the fact that his counsel was sufficiently alarmed by the prospect of the President’s meeting with McGahn that he called McGahn ‘s counsel and said that McGahn could not resign no matter what happened in the Oval Office that day. The President’s counsel was well aware of McGahn’s resolve not to issue what he believed to be a false account of events despite the President’s request. Finally, as noted above, the President brought up the Special Counsel investigation in his Oval Office meeting with McGahn and criticized him for telling this Office about the June 17, 2017 events. The President’s statements reflect his understanding-and his displeasure-that those events would be part of an obstruction-of-justice inquiry.”