Getting Away With It

The Mueller Report, Volume 2, details the investigation into whether the President was guilty of obstruction of justice. Almost immediately, the report states that the Office of the Special Counsel decided not to come to a conclusion on whether the President committed any crimes, as a sitting President cannot be charged under current guidelines. This stems from the Office of Legal Counsel (OLC), which determined in 1973, and upheld in 2000, that charging a President with a crime could lead to serious issues in his capacity to govern. Thus, a President can only be charged with a crime when out of office, leading Mueller to refrain from a formal prosecutorial judgment.

Mueller, however, explicitly states:

“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state... Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Mueller found that the President knowingly and willingly obstructed the investigation into him, using his power as President to enable it while relying on the OLC’s decision to avoid immediate prosecution. The report concludes that Congress’s authority to apply obstruction laws to the President’s actions aligns with the constitutional system of checks and balances and the principle that no person, not even Trump, is above the law.

Gum on the bottom of your shoe 

The obstruction began almost immediately after the 2016 election. On December 28, 2016, the Obama Administration sanctioned Russia for election interference. In response, the Presidential Transition Team (PTT) immediately began discussing the implications the sanctions could have on the incoming presidency and how to minimize their negative impact.

When the sanctions were announced, incoming National Security Advisor Michael Flynn was on vacation in the Dominican Republic. Flynn, formerly the Director of the Defense Intelligence Agency (DIA), was experienced in dealing with ambassadors and diplomats.

Upon hearing of the sanctions, Flynn called K.T. McFarland, his assistant and incoming Deputy National Security Advisor. At the time, McFarland was with other officials at Mar-A-Lago. Flynn asked what he should discuss with Russian Ambassador Sergey Kislyak during a scheduled call. McFarland, having already discussed the sanctions with officials at Mar-A-Lago, relayed their opinions. Trump viewed the sanctions as an attempt to undermine his presidency and desired a more productive relationship with Russia. Flynn, likely aware of this, proceeded with the call to Kislyak.

Flynn would go on to speak to Kislyak about the sanctions, indicating that Russia should not respond in kind to the sanctions, and that Trump would revisit the issue once in office. Kislyak was receptive, and said he would take this straight to Putin. The very next day, Putin would announce that Russia would not retaliate at that time. Kislyak would later call Flynn on the 31st, telling him that the Russian response was a direct consequence of his call to Kislyak. 

Right after, Trump tweeted, “Great move on delay (by V. Putin) - I always knew he was very smart!” 

Flynn’s call couldn’t stay hidden forever though, and on January 12th, 2017, the Washington Post reported the details of the call. When Trump heard of the report, he was infuriated. “What the hell is this all about?” He exclaimed. He ordered Chief of Staff Reince Priebus to call Flynn and express his fury regarding the reporting.

Desperate to hide what he had done, Flynn ordered McFarland to call the Washington Post and deny the call ever happened. 

“I want to kill the story.” Though McFarland knew she was lying, she made the call as Flynn had requested.

When Sean Spicer, White House Press Secretary, delivered his first ever press briefing, he repeated Flynn's false claims. As soon as he did, alarms went off at the Department of Justice. They immediately had major concerns that Russia had leverage over Flynn based on his lies and could use that derogatory information to compromise him. 

Four days after Trump’s inauguration, Flynn agreed to be interviewed by agents from the FBI. Flynn maintained the lie, insisting he didn’t ask Kislyak to not escalate the situation in response to the sanctions. Flynn also said he somehow forgot the follow-up conversation, where Kislyak stated that Russia had chosen its response specifically as a result of Flynn’s request.

On January 27th, 2017, after hearing that Flynn lied to the DOJ, Trump invited FBI Director James Comey to a dinner. He did this despite being warned by advisor Donald McGahn to not speak directly to DOJ officials, to avoid potential obstruction claims. Before the dinner, Priebus warned him, “don’t talk about Russia, whatever you do,”.

When Comey arrived, he was immediately concerned at the lack of other guests. There, Trump brought up Comey’s future multiple times, asking if he’d like to stay FBI director. Trump would then bring up Flynn, saying “the guy has serious judgment issues”. Comey did not comment on Flynn.

Then, he told Comey quite plainly that he required Comey’s loyalty. 

“I need loyalty, I expect loyalty.” 

Comey replied that Trump would always get honesty from him, to which Trump replied,

“That’s what I want, honest loyalty.” 

The week of February 6, 2017, Flynn spoke privately with the President about his contacts with Kislyak. Trump was upset and asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions. Trump responded that he “got it”.

On February 9, 2017, Vice President Mike Pence learned that the DOJ notified the White House about the content of Flynn’s calls. After reviewing, McGahn, Priebus, and Pence concluded that Flynn could not have forgotten the details of the discussions of sanctions, but that he had lied. They concluded that Flynn needed to be fired, and recommended that to the President. On February 13th, Trump requested Flynn’s resignation.

The day after Flynn’s resignation, the President had lunch at the White House with then-New Jersey Governor Chris Christie. Christie said that, at one point during the lunch the President said, “Now that we fired Flynn, the Russia thing is over.”

Christie laughed and responded, “No way. This Russia thing is far from over. We'll be here on Valentine’s Day 2018 talking about this.”

Trump replied, “what do you mean? Flynn met with the Russians. That was the problem. I fired Flynn. It’s over.”

Christie told the President not to talk about the investigation even if he was frustrated at times. Christie also told the President that he would never be able to get rid of Flynn, 

“Like gum on the bottom of your shoe.”

At 4 p.m. that same afternoon, Trump held a briefing, and dismissed everyone else, saying that he wanted to speak to Comey alone.

“I want to talk about Mike Flynn.” Trump told him. “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”. Later, Comey testified under oath that he took the President’s statement “as a direction” because of the President’s position and the circumstances of the one-on-one meeting.

On February 23, 2017, Trump asked Priebus to have K.T. McFarland draft an internal email stating that Trump had never asked Michael Flynn to discuss sanctions with the Russian ambassador. Priebus told the President he would only ask McFarland if she was comfortable doing so. When approached, McFarland said she did not know whether the President had given such instructions and declined to write the email. She then consulted National Security Council legal advisor James L. Eisenberg, explaining that she believed she was about to be fired but had been offered an ambassadorship, so long as she went along with the lie. Eisenberg advised her not to write the email, seeing it as potential quid pro quo. Later that day, Priebus told McFarland not to write anything and to forget the request, likely fearing the same issue.

Lift the cloud

During the 2016 campaign, the media raised questions about a possible connection between the Trump Campaign and Russia. This only intensified after the Wikileaks releases. Trump was denying business involvement with Russia, despite being in talks for Trump Tower Moscow until June 2016. According to Micheal Cohen, in response to Trump’s disavowal of connections to Russia, campaign advisors had developed a “party line”. Trump had no business with Russia and no connections to Russia, at all. 

When the investigations began, the President called McGahn and urged him to contact Attorney General Jeff Sessions to tell him not to recuse himself from the Russia investigation. Trump thought that a recusal would make Sessions look guilty for omitting details in his confirmation hearing, and would be unable to protect him during the investigation. McGahn complied, and Sessions replied that he intended to follow the rules on recusal anyway. Throughout the day, McGahn kept trying to stop Sessions’s recusal by speaking to Sessions’s personal counsel, Sessions’s chief of staff, and Senate Majority Leader Mitch McConnell, and by contacting Sessions himself two more times.

It did not work. Sessions recused himself from any investigations involving Trump’s campaign on March 2nd.

The day after Sessions’s recusal, McGahn was called into the Oval Office. Other advisors were there, including Priebus and Bannon. The President opened the conversation explosively, 

“I don’t have a lawyer!”

The President wanted McGahn to talk to Sessions about the recusal, but McGahn told the President that DOJ ethics officials cleared Sessions’s decision to recuse. Trump brought up former Attorneys General Robert Kennedy and Eric Holder and said that they had protected their presidents.

“You’re telling me that Bobby and Jack didn’t talk about investigations?! Or Obama didn’t tell Eric Holder who to investigate?!”

Steve Bannon noted that the only time he’d ever seen Trump this angry was the release of the Access Hollywood tape. 

On March 9, 2017, Comey briefed the “Gang of Eight”, congressional leaders who are entitled to receive highly sensitive classified briefings. He informed them about the FBI’s investigation of Russian interference, including the main U.S. subjects of the investigation. Notes taken by Annie Donaldson, then McGahn’s chief of staff, on March 12, 2017, state, 

“POTUS in panic/chaos . . . Need binders to put in front of POTUS. (1) All things related to Russia.”

On March 20, 2017, Comey was scheduled to testify before the House Permanent Select Committee on Intelligence (HPSCI). Dana Boente, who at that time was the Acting Attorney General for the Russia investigation, authorized Comey to confirm the existence of the Russia investigation. When Comey was specifically asked whether President Trump was “under investigation during the campaign” or “under investigation now.”, Comey didn’t answer, stating, 

“Please don’t over interpret what I’ve said as—as the chair and ranking know, we have briefed him in great detail on the subjects of the investigation and what we’re doing, but I’m not gonna answer about anybody in this forum.”

According to McGahn and Donaldson, the President had already been frustrated with Comey before his March 20 testimony, and the testimony made matters even worse. Trump criticized Comey for too frequently making headlines and for not attending briefings at the White House. Trump told McGahn that he thought Comey was acting like “his own branch of Government.”

Reports following Comey’s March 20 testimony suggested that the FBI was investigating the President, contrary to what Comey had told Trump. Trump was desperate to not have the public think he was under investigation, and was furious that Comey did not say he wasn’t. Trump called McGahn repeatedly that day to ask him to intervene with the DOJ. According to the notes, the President was “getting hotter and hotter”. Officials in the White House Counsel’s Office became so concerned that the President would fire Comey that they began drafting a memorandum that examined whether the President needed cause to terminate the FBI director.

McGahn contacted the DOJ multiple times at Trump’s behest on March 21, 2017, to correct the “misperception” that the President was under investigation.

On March 22, 2017, Trump kept DNI Daniel Coats and CIA Director Mike Pompeo in the Oval Office after the Presidential Daily Briefing and asked what they could do to publicly dispel any connection between him and Russia’s election interference. According to Coats, the President wanted them to say there was no link, but Coats refused, telling him that the intelligence community did not control the investigation and it was not his role to comment publicly. Coats also said Trump never asked him to intervene with FBI Director Comey.

However, some ODNI officials recalled Coats describing the meeting differently. Senior official Michael Dempsey said Coats told him the President was venting about the investigation and seemed to want Coats to “do something to stop it.” Dempsey said Coats was clear that he would not interfere in an ongoing FBI investigation. Deputy Director of the NSA Richard Ledgett, who was part of a later call, said it was the most unusual thing he had experienced in 40 years of government service.

On the morning of March 30, 2017, the President reached out to Comey directly about the Russia investigation, despite McGahn repeatedly advising him not to do so.  According to Comey, Trump said the investigation was impeding his ability to conduct foreign affairs, and to “lift the cloud.” Comey told the President that congressional leaders were aware that the FBI was not investigating the President personally. Trump emphasized heavily, multiple times, “We need to get that fact out.” 

Trump told Comey that he himself had not done anything wrong and he hoped Comey would find a way to announce that Trump was not under investigation. After the call ended, Comey called Boente and told him about the conversation, asking for guidance on how to respond, saying he was uncomfortable with direct contact from the President about the investigation. 

He later informed the President that the appropriate channel for such a request would be to have the White House Counsel contacting DOJ leadership. The President said he would do just that, adding, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

The President told McGahn and Priebus that he had contacted Comey twice in recent weeks, despite knowing McGahn had repeatedly warned him not to speak directly with the FBI Director to avoid any appearance of interference. Trump said Comey suggested the FBI could publicly state that the President was not under investigation if the Justice Department approved it. McGahn later said Acting Deputy Attorney General Dana Boente declined, citing the serious political risks and warning that such a move could trigger the appointment of a Special Counsel.

On May 3, 2017, Comey was scheduled to testify at an FBI oversight hearing before the Senate Judiciary Committee. Trump reiterated that if Comey didn’t announce Trump wasn’t under investigation, it would be the last straw. 

At the hearing, Comey declined to answer questions about the status of the Russia investigation. He stated he was authorized to comment on the investigation, but that he was “not going to say another word about it” until the investigation was completed. Comey didn’t answer questions about whether investigators had “ruled out” anyone in the Trump campaign as potentially a target of the criminal investigation.

In the afternoon after Comey’s testimony, the President met with McGahn, Sessions, and Sessions’s Chief of Staff Jody Hunt. At that meeting, the President asked McGahn to update him on what Comey had said in his testimony and McGahn answered that Comey had declined to answer questions about whether the President was under investigation.  The President became enraged, and directed his rage at Sessions.

“This is terrible Jeff! It’s all because you recused. AG is supposed to be the most important appointment. Kennedy appointed his brother. Obama appointed Holder. I appointed you and you recused yourself! You left me on an island. I can’t do anything!”

Sessions responded that he had had no choice but to recuse, and it was a mandatory rather than personal decision. 

At a dinner on Friday, May 5, attended by the President along with advisors and family members, Trump said he wanted to remove Comey and outlined ideas for a letter announcing the decision. The President dictated specific arguments and language for the letter while Stephen Miller took notes. After the dinner, Miller drafted a termination letter based on those notes. The final version of the termination letter prepared by Miller and the President began in a way that closely tracked what the President had dictated to Miller at the May 5 dinner: 

“Dear Director Comey, While I greatly appreciate your informing me, on three separate occasions, that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship with respect to the 2016 Presidential Election, please be informed that I, along with members of both political parties and, most importantly, the American Public, have lost faith in you as the Director of the FBI and you are hereby terminated.” 

Decided to just do it

The termination letter faulted Comey’s judgment and conduct, pointing to his Senate testimony, his handling of the Clinton email investigation, and his failure to address leaks. It noted that Comey had asked to remain FBI Director shortly after the inauguration, but concluded that the President had “no alternative” but to seek new leadership to restore confidence in the Bureau.

McGahn urged the President to allow Comey to resign, but Trump insisted on firing him. The group considered having Deputy AG Rod Rosenstein and Sessions provide a written recommendation for firing Comey. The President agreed and instructed Rosenstein to draft a memorandum, stating, “Put the Russia stuff in the memo.” Rosenstein responded that the Russia investigation was not the basis of his recommendation and should not be mentioned, but the President said he would appreciate it if Rosenstein included it anyway.

Once the President’s letter was finalized, Priebus summoned Spicer and the press team to the Oval Office to inform them that Comey had been terminated for the reasons stated in the letters from Rosenstein and Sessions. To announce the termination, the White House released a statement, dictated by the President. It read in full:

“Today, President Donald J. Trump informed FBI Director James Comey that he has been terminated and removed from office. President Trump acted based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions.”

That evening, FBI Deputy Director Andrew McCabe met with the President at the White House. Trump told McCabe that Comey had been fired due to his decisions in the Clinton email investigation and asked McCabe if he knew that Comey had told the President three times he was not under investigation, asking if he was part of the “resistance” that disagreed with Comey’s Clinton investigation decisions. McCabe replied that he knew Comey had said he was not under investigation, and that he had worked closely with Comey and been part of all decisions in the Clinton investigation.

That evening, the President complained to aides and to Chris Christie that he was being “killed” in the press over Comey’s firing and ordered his communications team to defend it. When Christie asked if the firing was based on Rosenstein’s memo, the President said yes and approved Christie’s suggestion to have Rosenstein publicly defend the decision.

The President then called Rosenstein directly, saying he was watching Fox News, thought the coverage was “great,” and wanted Rosenstein to hold a press conference. Rosenstein warned it was a bad idea, as he would have to tell the truth that Comey’s firing was not his decision. Sessions also informed the White House Counsel’s Office that Rosenstein was upset his memorandum was being presented as the reason for Comey’s termination. But the wheels were already in motion.

Late in the evening of May 9, 2017, White House Press Secretary Sean Spicer held an unplanned press conference, telling reporters, “It was all [Rosenstein]. No one from the White House. It was a DOJ decision.” In the hours that followed, White House officials and spokespeople continued to maintain this narrative.

The next morning, May 10, President Trump met in the Oval Office with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak. Media reports indicated that the President discussed his decision to terminate Comey, saying:

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. . . . I’m not under investigation.”

On the same day, Sessions and Rosenstein expressed concern to McGahn that the White House was portraying Rosenstein as the originator of Comey’s firing. The White House Counsel’s Office acknowledged that this narrative was factually incorrect and instructed attorneys to work with the press office to correct it. Later, in an interview with Lester Holt, President Trump confirmed that he had decided to fire Comey before meeting with Rosenstein and Sessions. He said:

“I was going to fire regardless of recommendation . . . . [Rosenstein] made a recommendation. But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it.”

He described Comey as “the wrong man for that position,” a “showboat,” and a “grandstander,” criticizing the FBI’s state of turmoil and emphasizing his desire for a “really competent, capable director.” Trump confirmed that he expected the new director to continue the Russia investigation.

"I’m fucked" 

On May 17, 2017, Rosenstein appointed Robert S. Mueller III as Special Counsel, authorizing him to oversee the Russia investigation and related matters. The President learned of the appointment from Sessions. When informed of Mueller’s appointment, Trump slumped in his chair and said, 

“Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.”

The President expressed anger at Sessions for recusing himself from the investigation once again, asking, “How could you let this happen, Jeff?” 

He lamented that the Attorney General position was his most important appointment and said Sessions had let him down.

“You were supposed to protect me! Everyone tells me if you get one of these independent counsels it ruins your presidency …. This is the worst thing that ever happened to me.” 

He then told Sessions he should resign. Sessions agreed to submit his resignation and left the Oval Office. Sessions finalized a resignation letter, which he delivered to the President. The President put the letter in his pocket, repeatedly asking Sessions if he wanted to continue as Attorney General. Sessions ultimately decided to stay, and the President returned the letter on May 30, with a notation stating, “Not accepted.”

The President raised concerns about purported conflicts involving Mueller, including his prior law firm work and membership in a Trump golf course. Steve Bannon told the President that these conflicts were “ridiculous” and “petty” and did not justify precluding Mueller from serving as Special Counsel. The President continued to press McGahn to contact Rosenstein about the conflicts, but McGahn declined, warning that such a call would appear as an attempt to “knock out Mueller” and could be considered obstruction of justice.

On June 12, 2017, Newsmax CEO Christopher Ruddy met with Priebus and Bannon, who told him the President was strongly considering firing the Special Counsel. Ruddy publicly stated that Trump was “definitely considering” removing Mueller. White House officials were unhappy with the coverage, and the next day, the Press Secretary delivered a statement from the President asserting he “has no intention to do so.”.

The most popular guy in the country

On June 19, 2017, the President met one-on-one in the Oval Office with his former campaign manager, Corey Lewandowski. Senior White House advisors described Lewandowski as a “devotee” of the President and said their relationship was “close.”

During the meeting, the President criticized Sessions’s recusal from the Russia investigation, calling him weak and saying that if he had known in advance about the likelihood of recusal, he would not have appointed him. The President then asked Lewandowski to deliver a message to Sessions, 

“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 … except he ran the greatest campaign in American history … 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 President told Lewandowski that if Sessions delivered that statement, he would be the “most popular guy in the country.” Lewandowski wanted to deliver the message in person rather than by phone and arranged a meeting for the following evening at his office, but Sessions had to cancel, leaving the message undelivered. 

Within hours of the President’s meeting with Lewandowski, the President gave an unplanned interview to the New York Times criticizing Sessions’s recusal, saying:

“Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.”

On July 21, 2017, the Washington Post reported that U.S. intelligence intercepts showed Sessions had discussed campaign-related matters with the Russian ambassador. 

On July 22, 2017, the President tweeted:

“A new INTELLIGENCE LEAK from the Amazon Washington Post, this time against A.G. Jeff Sessions. These illegal leaks, like Comey’s, must stop!” 

While aboard Marine One, the President told Priebus that Sessions needed to resign immediately, saying that the country had lost confidence in him. Trump directed Priebus to have a “letter of resignation on [his] desk immediately” and insisted Sessions “must immediately resign.” Priebus warned that firing Sessions would prevent confirmation of a new Attorney General and could result in further resignations By the end of the weekend, the President relented and agreed not to demand Sessions’s resignation immediately.

Over the following days, the President continued to criticize Sessions publicly. On July 24, he called Sessions “beleaguered,” on July 25 tweeted:

“Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!”

Because of the President’s public attacks, Sessions prepared another resignation letter and carried it with him whenever he visited the White House for the remainder of the year.

At the end of December, the President told the New York Times it was “too bad” Sessions had recused himself, adding,

“I don’t want to get into loyalty, but I will tell you that, I will say this: Holder protected President Obama. Totally protected him. When you look at the things that they did, and Holder protected the president. And I have great respect for that, I’ll be honest.”

In January, the President raised the idea of replacing Sessions and told Porter he wanted to “clean house” at the Department of Justice. On November 7, 2018, the day after the midterm elections, the President replaced Sessions with Sessions’s chief of staff as Acting Attorney General.

Conclusion 

The Mueller Report paints a detailed portrait of a President who repeatedly leveraged the powers of his office to interfere with the investigation into his campaign’s ties to Russia. The Flynn episode, the repeated attempts to influence or remove the Special Counsel, and witness tampering cannot make it any clearer. Trump intentionally attempted to obstruct the investigation.

Trump viewed the investigations into Russia’s interference as a personal and political threat. He repeatedly took steps to protect himself, his associates, and his presidency. The Mueller Report thus documents a modern presidency in which the exercise of power was used to block the process of justice, and an executive who sees themselves as above the law. The conclusion to the report summarized it succinctly: 

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.