The Mueller Report and Donald Trump; An Analysis - Part 4: Obstruction - The Evidence: Flynn to Comey
The President's Conduct Concerning the Investigation of Michael Flynn
The first obstruction issue that Mueller provides evidence of Trump's attempts to prevent Gen Michael Flynn from cooperating with the Special Council's team. This section discusses Trump trying to stop Flynn from being investigated.
From PDF pages 236 to 249, the report lays out the events that led up to Donald Trump firing his National Security Advisor Michael Flynn. Very briefly, they are:
- Shortly after being elected, Trump appointed Flynn as National Security Advisor who spent the next couple of months on the Presidential Transition Team (PTT). This included Russian Ambassador to the United States Sergey Kislyak
- On Dec 29, 2016, President Obama put sanctions on Russia for interfering in America's election. That day, emails flew back and forth within the PTT wondering about the impact of the sanctions. Flynn said he was going to be speaking to Kislyak later.
- This is interesting; did Flynn get a raw deal by the White House? 1) "McFarland met with the President-Elect and senior officials and briefed them on the sanctions and Russia's possible responses.", 2) "Incoming Chief of Staff Reince Priebus recalled that McFarland may have mentioned at the meeting that the sanctions situation could be "cooled down" and not escalated", 3) "McFarland recalled that at the end of the meeting, someone may have mentioned to the President-Elect that Flynn was speaking to the Russian Ambassador that evening", 4) McFarland did not recall any response by the President-Elect.", AND 5) "Priebus recalled that the President-Elect viewed the sanctions as an attempt by the Obama Administration to embarrass him by delegitimizing his election." (Recall that Trump has repeatedly said Obama did nothing to the Russians)
- And this may be a crime - "Immediately after discussing the sanctions with McFarland on December 29, 2016, Flynn called Kislyak and requested that Russia respond to the sanctions only in a reciprocal manner, without escalating the situation." (It is a crime because Trump was not yet president and is potentially in violation of the Logan Act)
- On December 30, 2016, Putin announced he would not retaliate to which Trump tweeted "Great move on delay (by V. Putin) - I always knew he was very smart! "
The report goes on to reveal additional information about Flynn's dealing with Russia, prior to Trump becoming president. It then moves on to the intelligence briefing Trump received where James Comey reveals the contents of the Steele dossier to Trump (which BuzzFeed provided to the public). It was also during this period in January 2017 that reports began to surface of Gen Flynn's possibly illegal contacts with the Russians.
From here, Mueller moves on to Trump's attempt to get Flynn off the hook. Everybody forgets that it was mid-January to early-February 2017, that Congress kicked off four investigations into Trump's connections with Russia based on current new reporting and intelligence briefings. At this point in time, the FBI was only investigating Russian contacts between Russia operatives and certain members of Trump's Campaign, e.g. Flynn, Popadopoulos, Page, Manafort, AG Sessions, and so forth. Comey had told Trump at the January 6th briefing that he, Trump, was personally being investigated.
It was on January 12, 2017, when the Washington Post reported
"... that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions. The column questioned whether Flynn had said something to "undercut the U.S. sanctions" and whether Flynn's communications had violated the letter or spirit of the Logan Act."
Trump was angry about this report which led to this exchange:
"Flynn recalled that he felt a lot of pressure because Priebus had spoken to the "boss" and said Flynn needed to "kill the story.""
"Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred." She did even though "she knew she was providing false information" Later the Post updated their story "... to reflect that a "Trump official" had denied that Flynn and Kislyak discussed sanctions."
So now we know what Trump wanted to happen. Flynn then began to lie to White House staff, including the Vice President, about not talking to Kislyak about the sanctions. This "alarmed senior DOJ officials" because they knew Flynn was lying.
Three days after Trump was inaugurated, January 23, 2017, his press secretary, Sean Spicer, lied to the press and the American people by saying "that he had spoken with Flynn the night before, who confirmed that the calls with Kislyak were about topics unrelated to sanctions." The FBI, who is now investigating Flynn's connections with Russia and other foreign nations, knew the White House was putting out a false narrative and that the Russians could prove it. With that knowledge, Russia was now in a position to compromise the now National Security Advisor to the President of the United States.
The next day, January 24, 2017, the FBI interviewed Flynn and he told them the same lie. The difference, of course, is before this, he and the White House had only been lying to the American people - not a crime. Now, Flynn had lied to the FBI and they knew it. Trump was not happy.
Shortly thereafter, Sally Yates, acting Attorney General, told the White House that "Flynn's statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions." and were problematic. Several days later, Trump fired Yates.
The story still did not go away and Trump tried other means. Trump had been inquiring about what Comey was like. Dan Coats, Director of National Intelligence, said of Comey, "... that he thought Comey was a good director. Coats encouraged the President to meet Comey face-to-face and spend time with him before making a decision about whether to retain him ."
On January 27, 2017, Trump invited FBI Directory Comey to dinner. All of his advisors advised him to NOT be alone Comey. White House council told Trump "... he should not communicate directly with the Department of Justice to avoid the perception or reality of political interference in law enforcement" - Trump ignored them all and thus set the stage for him to be personally investigated. Also, by ignoring McGahn's advise, he also helps fulfill the Corrupt Intent portion of the elements of proof.
Comey was "surprised and concerned" he was alone with Trump. Trump asked several times about his job, the Steele dossier, and Flynn. Regarding his job, Comey thought that Trump made an "effort to create a patronage relationship by having Comey ask for his job." Regarding the dossier, Trump was thinking about telling the FBI to "... investigate the allegations to prove they were false."a Regarding Flynn, Trump said "the guy has serious judgment issues." but apparently offered nothing more about Flynn at the dinner.
Trump did, however, ask Comey for his loyalty by saying "I need loyalty , I expect loyalty ." - Comey smartly remained silent. Later Trump said "I need loyalty" to which Comey could only safely reply 'You will always get honesty from me." To this, Trump pressed with "That's what I need, honest loyalty" to which Comey waffled with "you will get that from me". I suspect what Trump heard was 'yes, I will be loyal' and what Comey thought he said would be 'I am being loyal by being honest'.b
On February 13, 2017, after the conclusion of an internal investigation, Don McGahn recommended that Flynn be fired and Trump agreed. However, upon letting Flynn go, Trump said to him "We'll give you a good recommendation. You're a good guy ·. We'll take care of you." The next day, to Gov. Chris Christi, Trump declared "Now that we fired Flynn , the Russia thing is over."
a Many have been investigated. Some have been proven to be true, the rest do not have a resolution yet. None have been disproved.
b This is a major departure from the way the president and his Justice Department are supposed to act with each other. While yes, DOJ is part of the executive branch, it must be free to act independently of the president because it represents justice in America. Trump has put a halt to that history with the appointment of a malleable attorney general William Barr. He is also putting a full-court press in obstruction Congress' oversight duty - with the help of Barr who has effectively become Trump's personal lawyer.
Attempting to Protect and Influence Michael Flynn
Obstructive Acts - Evidence
What might be an "obstructive act"? The following scenarios could easily qualify.
(from above, and Trump declared "... now that we fired Flynn, the Russia thing is over") To that Christie said "No way, this Russia thing is far from over" to which Trump asked, "[w]hat do you mean? Flynn met with the Russians . That was the problem. I fired Flynn. It's over. " Christie, being a former prosecutor, noted that "firing Flynn would not end the investigation ... there was no way to make an investigation shorter, but a lot of ways to make it longer."
Then Trump inquired if Christie was "...still friendly with him [Comey]" When Christi said yes, "... The President told Christie to call Comey and tell him that the President "really like[s] him . Tell him he's part of the team.", a request Trump repeated. Gov. Christie never did, but the potentially obstructive act had been committed.
On its face, this request doesn't appear to be an obstructive act based on the definition provided in Part 3. But, when put in context with the conversation a few minutes before, it very well could be.
The same day, Trump followed up with this - "At 4 p.m. that afternoon, the President met with Comey, Sessions, and other officials for a homeland security briefing. At the end of the briefing, the President dismissed the other attendees and stated that he wanted to speak to Comey alone." Sessions and Jared Kushner tried to stay but Trump "excused them, repeating that he wanted to speak only with Comey.?" - they left.
According to Comey, what transpired next was also an obstructive act. Trump began by telling Comey "I want to talk about Mike Flynn." - a huge departure from all normal relationships between a president and an FBI director for a whole host of legal and common sense reasons. Trump continues "... that Flynn had not done anything wrong in speaking with the Russians, but had to be terminated because he had misled the Vice President." (remember, Flynn was more or less directed by Trump to speak to Kislyak about sanctions).
The conversation drifted but Trump brought up Flynn again by saying "he is a good guy and has been through a lot." followed by
"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." - An Obstructive Act.
"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"
He also directed Priebus to do two things. One was to ask McFarland to write an email saying that Trump had not directed Flynn to discuss sanctions with Kislyak (more later). Two, "... to reach out to Flynn and let him know that the President still cared about him." Priebus did as ordered and told Flynn that he "... was an American hero." Priebus told Mueller's team that he "... thought the President did not want Flynn saying bad things about him."
Trump also attempted to influence Flynn's testimony when he found out Flynn was going to cooperate with the Special Counsel. He tweeted "Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!"
The Nexus - Evidence
Since Comey was heading up the investigation into Russian contacts and Flynn was being investigated, we have the second element of proof "A nexus between the obstructive act and an official proceeding." The official proceedings, of course, being first the FBI investigation of the Trump Campaign and later the Special Council's investigation into the Campaign and Donald Trump himself.
Corrupt Intent - Evidence
For the third element, Corrupt Intent, consider the following:
- The media wondered (and I suspect Mueller did to) why, after being informed by DOJ that Flynn had crossed the line, did Trump wait two weeks to fire him. Why did he deflect on the reason to "one of trust"
- Trump was aware of what actually took place and why Flynn talked to the Russians, yet on February 15, 2017, Trump told reporters , "General Flynn is a wonderful man. I think he's been treated very, very unfairly by the media." Followed the next day with "... he removed Flynn because Flynn "didn't tell the Vice President of the United States the facts, and then he didn't remember. And that just wasn't acceptable to me. " Yet, Trump knew that wasn't really the truth.
- Further, Trump said he didn't tell Flynn to discuss sanctions with Kislyak (yet we know he effectively did with McFarland), but "it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn't doing it. I didn't direct him, but I would have directed him because that 's his job." At about the same time Trump "... denied having any connection to Russia, stating, "I have nothing to do with Russia . I told you, I have no deals there. I have no anything." (a lie).
- Trump then directed Reince Priebus "to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions" Why would he do that but for knowing what Flynn did was wrong? Ultimately, after consulting with a White House lawyer, refused to do what Trump requested
Mueller completes this instance of alleged obstruction with an analysis of the evidence just provided. Consequently, I will highlight is reasoning using the elements of proof just outlined above.
Obstructive Act - Analysis
First on Mueller's hit list is Trump's request (order) to then-Director Comey ""I hope you can see your way clear to letting this go, to letting Flynn go .... I hope you can let this go." To be an Obstructive Act, Mueller has to find that 1) "whether Comey's account of the interaction is accurate," and 2) "... whether the President's statements had the tendency to impede the administration of justice by shutting down an inquiry that could result in a grand jury investigation and a criminal charge.". A third thing Mueller needed to figure out is - was Trump's request effectively a directive?
To the first part, Mueller claims there is much corroborating evidence that Comey's account of his meeting(s) with Trump are accurate. To the second part, the reasoning went that had Comey stopped investigating Flynn, then that part of the FBI's counter-intelligence inquiry would have stopped. To the third part, Mueller found that "... the circumstances of the conversation show that the President was asking Comey to close the FBI's investigation into Flynn." Mueller pointed out that 1) Trump "... arranged the meeting with Comey so that they would be alone and purposely excluded the Attorney General" and 2) "... because the President is the head of the Executive Branch, when he says that he "hopes" a subordinate will do something , it is reasonable to expect that the subordinate will do what the President wants ... "
Nexus to a Proceeding - Analysis
For this to be the case, Trump needed to know that preventing Flynn from being investigated would likely lead to the end of prosecuting Flynn for violating a law, specifically 18 U .S.C. § 1001 (lying to the FBI). In fact, Mueller found, that by the time Trump spoke to Comey about Flynn, FBI Deputy Director McCabe had already informed Trump of the possibility.
Corrupt Intent - Analysis
To have Corrupt Intent, a prosecutor must prove that Trump "... had a personal stake in the outcome of an investigation into Flynn". Mueller found that the episode with McFarland, Bannon, and Flynn was, while suggestive of foreknowledge of Flynn's illegal conversations with Kislyak, it was not conclusive.
What is important, however, is that Mueller did conclude that prior to his one-on-one meeting with Comey, "Evidence does establish that the President connected the Flynn investigation to the FBI's broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end "the whole Russia thing."" Mueller further noted that "The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak" - further awareness that the scandal surrounding Flynn was impacting him personally.
Importantly, Mueller says "The way in which the President communicated the request to Comey also is relevant to understanding the President's intent.". First, upon learning about Flynn's investigation, Trump tells, Bannon, McGahn, and Priebus to keep the knowledge "close hold". The next day Trump invites Comey to dinner where he demands "loyalty", which Comey did not give, while also mentioning that "... Flynn had judgment issues." Right after firing Flynn, Trump has is infamous meeting with Comey, alone, where he pressures Comey to ""let Flynn go". It is the fact that Trump denied he said such a thing which Mueller finds damning because "... a denial that would have been unnecessary if he believed his request was a proper exercise of prosecutorial discretion."
Attorney General Bill Barr Says It's Not So
In his four page summary of the Mueller Report, AG Barr claims the above set of facts does not constitute a case for Obstruction of Justice. He says his former Deputy Rod Rosenstein agreed - I wonder.
It is clear to me anyway, and hopefully you, that added together, Mueller thinks the events surrounding the investigation of Gen Flynn was a prosecutable instance of obstruction of justice by Donald Trump. It seems to me, Mueller was hoping the weight of this evidence would pry loose enough Republicans in the Senate to make impeachment possible.
© 2019 Scott Belford