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Why Trump Believed He Could Withhold the June 9 Email: Because He Succeeded in Withholding Moscow Trump Tower Ones

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In this post, I showed that I was correct when I wrote, back in January, that the Trump Organization did not turn over all the documents requested in the House Intelligence Committee subpoena to Michael Cohen. Trump Organization withheld — from HPSCI and from Cohen — the email that shows Dmitry Peskov’s office did respond to Cohen’s request for help (as well as emails showing that he kept trying to reach Peskov’s office).

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.

I also showed that Trump’s sworn response to a Mueller question about all this replicates the lies that Cohen told in his false statement to Congress.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

[snip]

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

All that’s important background for something explained in the Mueller Report: that it was Trump — not Hope Hicks (as Mark Corallo feared) — who planned to withhold the thread of emails setting up the June 9 meeting to hide that Don Jr had accepted dirt from the Russian government. In the weeks before the NYT learned of the emails, Trump repeatedly tried to insulate himself from being shown the emails and said that “just one lawyer should deal with the matter” to prevent them from leaking.

According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr.678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down.679

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office.680 She recalled being shocked by the emails because they looked “really bad.”681 The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress.682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.683 The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President.685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting.686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with “softball questions.”687 The President said he did not want to know about it and they should not go to the press.688 Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details.689 Hicks recalled that the President asked Kushner when his document production was due. 690 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”691 Hicks also recalled that the President said Kushner’s attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press.692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the emails because the President believed they would not leak.693

When the NYT reached out to the White House for the story, Trump uncharacteristically told Hicks not to comment for the story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

Then, when Trump, who was with Hicks, was chewing Mark Corallo out for the counter-statement he released, Hicks, “channel[ed] the President” by saying that the email would never get out.

The next day, July 9, 2017, Hicks and the President called Corallo together and the President criticized Corallo for the statement he had released.721 Corallo told the President the statement had been authorized and further observed that Trump Jr. ‘s statement was inaccurate and that a document existed that would contradict it.722 Corallo said that he purposely used the term “document” to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails.723 Corallo recalled that when he referred to the “document” on the call with the President, Hicks responded that only a few people had access to it and said “it will never get out.”724 Corallo took contemporaneous notes of the call that say: “Also mention existence of doc. Hope says ‘ only a few people have it. It will never get out.”‘725 Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emails would leak.726

In the period when the Joint Defense Agreement was trying to respond to Congressional requests for documents on Trump’s ties to Russia, the President’s response was to argue that “just one lawyer should deal with the matter” to ensure that the emails did not get out.

That lawyer is Alan Garten.

We know that because in Cohen’s March 6 testimony to the House Intelligence Committee, he described that Alan Garten and Alan Futerfas were in charge of document collection for the Trump Organization.

THE CHAIRMAN: A number of those emails were never turned over to our committee in the document production. Do you know who was responsible for the document production and who would have withheld those documents from this committee?

MR. COHEN: Alan Futerfas and Alan Garten.

More specifically, Cohen’s February 28 testimony to the House Intelligence Committee, he described a meeting he had with Garten on document production. He was telling the story to explain that at the meeting, Garten told Cohen enough for him to figure out that Trump was the one who drafted the false statement on the June 9 meeting.

THE CHAIRMAN: You mentioned a meeting also with Alan Garten?

MR. COHEN: Yes, sir.

THE CHAIRMAN: And can you tell us who that is?

MR. COHEN: Alan Garten is now general counsel at The Trump Organization, And prior to that, he was assistant general counsel.

THE CHAIRMAN: You referenced that in the context of this also raised your suspicion of collusion. What in particular were you referring to?

MR. COHEN: My conversation with Alan Garten was in regard to, I believe, this committee’s subpoena where they wanted all of my contacts from the Trump Org server. And in order to limit the amount, because there were about 10,000, he brought to me a stack of pages and wanted me to go through each one of those email addresses to the best of my ability to mark off which ones were family, which ones were friends, which ones related to Trump Org business, which ones were just solicitations, Google alerts, et cetera. We started to engage in conversation, because at the time the news cycle was all over the allegation that the conversation going back and forth was about adoption. And I said, well, what’s going on? Tell me what happened. So he told me that he was with Don Jr. and that they were communicating back and forth with Air Force One. And he goes, you know how it gets, back and forth and back and forth. He goes, it was such a process. That was the conversation with Alan Garten.

THE CHAIRMAN: And tell me what raised your suspicion about that conversation.

MR. COHEN: lt was about how to describe the meeting, the Trump Tower meeting, as to whether it was about obtaining dirt on Hillary Clinton or it was about adoption. And what he expressed to me is that, you know, Mr. Trump drafted the first round, and it came to Don and him, and then they sent it back, and back and forth.

THE CHAIRMAN: So what he described to you was Mr. Trump’s participation in the creation of a false statement about what took place in that meeting?

MR. COHEN: Yes, that’s how he described it. Well, that’s how I understood it.

But the point of the meeting was to begin the document response process from Trump Organization that resulted in the most damning emails — emails that would prove false the story Cohen and the Trump family lawyers planned to tell about the Trump Tower Moscow deal — being withheld.

In the March 6 one, Adam Schiff got Cohen to repeat that the reason he and Garten were having this conversation in the first place is because Garten was pulling documents to reply to Congressional requests.

Q Well, let me ask it a different way. What was the purpose of him showing you your contacts and other documents?

A The Trump Organization received a subpoena in order to turn over documents, and since I had no documents, everything being in their custody and control, they wanted the contacts to be limited to, I suspect, non-business-related, you know, removal, family removal emails that are not pertaining to the investigation.

Q So the purpose of the meeting was to discuss a document production that The Trump Organization needed to provide?

A Correct.

Q And was it to provide to this committee?

A I don’t know which committee, but I suspect it was all the committees.

Q All right. And do you recall that the false statement that Don Jr. issued about the Trump Tower meeting that was discussed on Air Force One, do you recall that happened in approximately June of 2017?

A I believe so.

Garten was with Don Jr in person as they worked back and forth with Hope Hicks and Donald Trump on Air Force One to draft the June 9 meeting that Trump wanted to lie about by making sure the email didn’t leak.

There were no lawyers on Air Force One. This is the conversation that, in his appearances before Congress, Don Jr successfully avoided discussing because he was with his lawyer. But no privilege should have attached to that conversation because Garten did not represent Trump personally (Trump was supposed to be walled off from Trump Organization matters), much less Hope Hicks.

In June 2017, when Donald Trump was trying to sustain a false story about the June 9 meeting by suggesting that if just one lawyer dealt with the matter, the email disproving that story would not be “leaked,” Alan Garten was ensuring that the email disproving Michael Cohen’s false story did not get turned over to Congress.

That’s why Trump thought he’d get away with the lie. Because he almost got away with it on the Trump Tower Moscow story.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

In a Bid to Jettison Flynn, Trump Suggests Hope Hicks and Steve Bannon Lied to the FBI

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In the wake of yesterday’s disclosures in the Mike Flynn docket, Judge Emmet Sullivan issued three somewhat confusing orders demanding that the government provide transcripts and Mueller Report passages relating to Flynn

With respect, Judge Sullivan, if you’re going to order additional files released, please also ask the government to release a less redacted version of Mike Flynn’s original 302, which is docket #62-1, redacted sections of which (especially pertaining to the meeting at which Jared Kushner asked for a back channel with Russia) appear in unredacted form in the Mueller Report, and which was inexplicably not included in the WaPo request.

In any case, perhaps because Sullivan asked for files that may be very damning (especially if they include the contacts Flynn had with Kislyak before the election, which aren’t discussed in the Mueller Report), Donald Trump now claims he didn’t know Flynn was under a counterintelligence investigation and would have replaced him had he known.

Of course he knew. Obama warned Trump against hiring Flynn on November 10, 2016. And it’s no longer just three former Obama officials who say that. According to the Mueller Report, both Hope Hicks and Steve Bannon not only corroborate that Obama warned Trump, but their FBI testimony makes it clear that Trump was really bugged about Obama’s warning.

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10. [my emphasis]

No lesser Trump supporter than Bannon says that at the time Mike Flynn called up the Russian Ambassador and undermined the policy the President of the United States had just implemented, Trump was already concerned about the warnings that Obama gave him.

As I have noted, the evidence in the Mueller Report — as well as the silences about most earlier things Flynn did that raised counterintelligence concerns — suggest that Mueller has to believe that Flynn did what he did with Trump’s blessing. Otherwise Mueller would have had abundant evidence that Flynn, while freelancing, hiding that he was freelancing, and lying about it to the FBI, did things that directly benefitted the Russian state and undermined US policy.

Sullivan’s moves (which may be an attempt to explain why he raised such sharp questions about Flynn’s loyalty last December) may reveal evidence to substantiate that.

Which, in turn, may be why Trump is accusing two of his closest aides of lying to the FBI to pretend he didn’t get the warning from Obama they say he did.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump’s Excuse for His Promised Speech on Hillary Clinton

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On June 21, 2016, the day after Christopher Steele submitted the first installment in his dossier, Guccifer 2.0 published what the persona deemed a dossier on Hillary Clinton. It included a bunch of files — many dating to April 2015 — that summarized potential attacks on Hillary, often providing rebuttals. These documents appear to be the kind of reports campaigns do to prepare for attacks they expect to be hit with.

The “dossier” included four files relating to the Clinton Foundation (two of which were responses to the Peter Schweizer book Clinton Cash), one on defenses to attacks on her email server, another on attacks on Bill and Chelsea, and a summary of the attacks GOP primary candidates had made on her, a number of which focused on national security. While the files were definitely dated (and the financial records, in particular, worthless), it is the closest thing to a “dossier” of “kompromat” released during the entire Russian operation.

The timing of that release and its focus — including on Schweizer’s book — is worth revisiting given the explanation Trump gave Mueller (starting on PDF 427) for his aborted promise, on June 7, 2016 to, “give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”

g. On June 7, 2016, you gave a speech in which you said, in part, “I am going to give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”

i. Why did you make that statement?

ii. What information did you plan to share with respect to the Clintons?

iii. What did you believe the source(s) of that information would be?

iv. Did you expect any of the information to have come from the June 9 meeting?

v. Did anyone help draft the speech that you were referring to? If so, who?

v. Why did you ultimately not give the speech you referenced on June 7, 2016?

[snip]

In remarks I delivered the night I won the California, New Jersey, New Mexico, Montana, and South Dakota Republican primaries, I said, “I am going to give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.” In general, l expected to give a speech referencing the publicly available, negative information about the Clintons, including, for example, Mrs. Clinton’s failed policies, the Clintons’ use of the State Department to further their interests and the interests of the Clinton Foundation, Mrs. Clinton’s improper use of a private server for State Department business, the destruction of 33,000 emails on that server, and Mrs. Clinton’s temperamental unsuitability for the office of President.

In the course of preparing to respond to your questions, I have become aware that the Campaign documents already produced to you reflect the drafting, evolution, and sources of information for the speech I expected to give “probably” on the Monday following my June 7, 2016 comments. These documents generally show that the text of the speech was initially drafted by Campaign staff with input from various outside advisors and was based on publicly available material, including, in particular, information from the book Clinton Cash by Peter Schweizer.

The Pulse Nightclub terrorist attack took place in the early morning hours of Sunday, June 12, 2016. In light of that tragedy, I gave a speech directed more specifically to national security and terrorism than to the Clintons. That speech was delivered at the Saint Anselm College Institute of Politics in Manchester, New Hampshire, and, as reported, opened with the following:

This was going to be a speech on Hillary Clinton and how bad a President, especially in these times of Radical Islamic Terrorism, she would be. Even her former Secret Service Agent, who has seen her under pressure and in times of stress, has stated that she lacks the temperament and integrity to be president. There will be plenty of opportunity to discuss these important issues at a later time, and I will deliver that speech soon. But today there is only one thing to discuss: the growing threat of terrorism inside of our borders.

I continued to speak about Mrs. Clinton’s failings throughout the campaign, using the information prepared for inclusion in the speech to which I referred on June 7, 2016.

If the documents submitted to Mueller do back his claims that the speech was in preparation ahead of time, then Trump’s answer is one of the most responsive ones he gave Mueller. But we’ve already seen one instance — whether Trump ever declined an invitation to St. Petersburg from Russian Deputy Prime Minister Sergei Prikhodko (if footnotes are understood to be comprehensive, Trump submitted an unsigned letter, but not a signed copy or the emails that supposedly extended the invitation) — where Trump’s written responses claimed that documentation submitted to Mueller substantiated more than they appear to have.

And Trump didn’t really answer the question why he didn’t give a designated speech focused on those topics; he instead simply suggested he covered those topics along the way, generally.

Elsewhere, the report describes a discussion at a meeting that Mueller believes happened on June 6 relayed by Rick Gates at which Don Jr promised damaging information about the Clinton Foundation which — though vague — appears to reference an upcoming meeting.

Rick Gates, who was the deputy campaign chairman, stated during interviews with the Office that in the days before June 9, 2016 Trump Jr. announced at a regular morning meeting of senior campaign staff and Trump family members that he had a lead on negative information about the Clinton Foundation.703 Gates believed that Trump Jr. said the information was coming from a group in Kyrgyzstan and that he was introduced to the group by a friend. 704 Gates recalled that the meeting was attended by Trump Jr., Eric Trump, Paul Manafort, Hope Hicks, and, joining late, Ivanka Trump and Jared Kushner. According to Gates, Manafort warned the group that the meeting likely would not yield vital information and they should be careful.705 Hicks denied any knowledge of the June 9 meeting before 2017,706 and Kushner did not recall if the planned June 9 meeting came up at all earlier that week.707 [my emphasis]

Which is why I find it interesting that Guccifer 2.0 released a set of documents that — while not all that exciting, were nevertheless directly on point regarding the topics Trump claimed were already being drafted into a speech he’d give.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Why Did Mueller Include the June 9 Meeting Statement in His Obstruction Case?

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I’ve got a bunch more posts on the Mueller Report I’m going to eventually write; I’ve still got a slew of theories and observations to share. But there’s one topic I just have guesses on, one I’d love to have more people weigh in on.

Why did Mueller’s team include Donald Trump’s statement on the June 9 meeting — which is described not as a false statement, but an effort to prevent the disclosure of Don Jr’s emails setting up the meeting — in his obstruction analysis?

The obstruction analysis on the June 9 meeting shows it’s not itself obstruction

As a number of reviews of the Mueller Report obstruction analysis show, the June 9 meeting cover-up is the one obstructive act where the report concludes the evidence did not establish it as an act of obstruction for all three factors:

As the obstruction analysis lays out, Trump talked hopefully about ensuring the emails didn’t get out, but there’s no evidence he took action, beyond lying publicly, to suppress them.

Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel. On May 17, 2017, the President’s campaign received a document request from SSCI that clearly covered the June 9 meeting and underlying emails, and those documents also plainly would have been relevant to the Special Counsel’s investigation.

But the evidence does not establish that the President took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the Special Counsel. The series of discussions in which the President sought to limit access to the emails and prevent their public release occurred in the context of developing a press strategy.

It then repeats that analysis by showing that while withholding the emails might amount to obstruction, he did not withhold emails.

As noted above, the evidence does not establish that the President sought to prevent disclosure of the emails in those official proceedings.

Then, in the intent section, it shows Trump’s central role in crafting the adoptions statement, while again concluding that the statement doesn’t amount to withholding the email.

The evidence establishes the President’s substantial involvement in the communications strategy related to information about his campaign’s connections to Russia and his desire to minimize public disclosures about those connections. The President became aware of the emails no later than June 29, 2017, when he discussed them with Hicks and Kushner, and he could have been aware of them as early as June 2, 2017, when lawyers for the Trump Organization began interviewing witnesses who participated in the June 9 meeting. The President thereafter repeatedly rejected the advice of Hicks and other staffers to publicly release information about the June 9 meeting. The President expressed concern that multiple people had access to the emails and instructed Hicks that only one lawyer should deal with the matter. And the President dictated a statement to be released by Trump Jr. in response to the first press accounts of the June 9 meeting that said the meeting was about adoption.

But as described above, the evidence does not establish that the President intended to prevent the Special Counsel’s Office or Congress from obtaining the emails setting up the June 9 meeting or other information about that meeting.

Curiously, this analysis of intent doesn’t talk about why Trump may have wanted to hide the truth about the June 9 meeting, even though elsewhere the report suggests that, overall, one motive for Trump obstructing the investigation might be because he thought the June 9 meeting would be found to be criminal.

So Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.

So why — in a report that might better be understood as an impeachment referral — did they include that?

Trump’s statement on the June 9 meeting as evidence of corrupt intent for other obstructive acts

I’ve commented elsewhere that one of the posts I’ll eventually do is a narratological analysis of the report. I said that, in part, for the way the report intersperses several acts of potential Trump obstruction that all happened during the same time period in summer 2017. While the report only mentions this in passing, Trump’s lies about the June 9 meeting occur during the same time frame as three other potential obstructive acts that the report shows do amount to obstruction: the effort to get Don McGahn to get Rod Rosenstein to fire Mueller, the request that Corey Lewandowski (!!) fire Jeff Sessions, and the effort to get Sessions to unrecuse.

And, as noted, the June 9 meeting is one of three things — along with the Trump Tower Moscow deal and Trump’s push to have Roger Stone optimize the release of the stolen emails — that the report posits might be the underlying facts Trump was attempting to hide with his other obstruction (note that the report never focuses on Mike Flynn’s discussion on sanctions, which I’ll return to in a later post).

Which suggests Trump’s involvement in the June 9 statement is there not for those actions themselves, but for the way his actions prove corrupt intent for other obstructive actions.

A story describing Trump’s unique actions that nevertheless leaves out the biggest detail

Still, the specific story the report tells is damning. It includes details that suggest this was a unique event, with Trump trying to retain plausible deniability even though several witnesses say he knew about the meeting, and describing Trump preferring to break his cardinal sin, remaining silent on a story. But note that the story leaves out one of the most important details: Vladimir Putin’s interactions with the President during the day Trump wrote his deceitful statement.

Here’s the story, as told in the obstruction section.

Trump claims he didn’t know about the meeting ahead of time, contrary to what several witnesses said.

According to written answers submitted by the President in response to questions from this Office, the President had no recollection of learning of the meeting or the emails setting it up at the time the meeting occurred or at any other time before the election 668

The Chief of Staff learns about the meeting from Sean Hannity, which is just crazy train.

[Reince] Priebus recalled learning about the June 9 meeting from Fox News host Sean Hannity in late June 2017.672

Trump tells Jared not to share details of the meeting with him, according to Hope Hicks.

According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr.678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down.’

[snip]

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office 68° She recalled being shocked by the emails because they looked “really bad.”68′ The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress.682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.”‘ The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President.685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting.686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with “softball questions.”687 The President said he did not want to know about it and they should not go to the press 688 Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details!'” Hicks recalled that the President asked Kushner when his document production was due.699 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”‘ Hicks also recalled that the President said Kushner’s attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press.692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the emails because the President believed they would not leak.693

But Jared claims that didn’t happen. This narrative is largely sourced to interviews with Hope Hicks. Even in his second interview, Jared said it didn’t happen this way.

Hicks 12/7/17 302, at 7; Hicks 3/13/18 302, at I. Counsel for Ivanka Trump provided an attorney proffer that is consistent with Hicks’s account and with the other events involving Ivanka Trump set forth in this section of the report. Kushner said that he did not recall talking to the President at this time about the June 9 meeting or the underlying emails. Kushner 4/11/18 302, at 30.

Hicks is confused about why Trump wants to commit his ultimate sin.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697 Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”706

The Report neglects to mention the Putin meeting where he and Trump talked about the subject of the statement.

[see this post]

Trump edits Jr’s statement because it admits they were offered dirt and discussed sanctions relief, defaulting on Putinesque spin.

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

Hope Hicks channels the President hoping the damning emails would never leak.

Corallo told the President the statement had been authorized and further observed that Trump Jr. ‘s statement was inaccurate and that a document existed that would contradict it.722 Corallo said that he purposely used the term “document” to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails.723 Corallo recalled that when he referred to the “document” on the call with the President, Hicks responded that only a few people had access to it and said “it will never get out.”724 Corallo took contemporaneous notes of the call that say: “Also mention existence of doc. Hope says ‘ only a few people have it. It will never get out.”‘725 Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emaiis would leak.726

Trump’s flunkies deny that the guy who met Vladimir Putin twice during the drafting of the statement wrote the statement.

Over the next several days, the President’s personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr. ‘s statement.729 After consulting with the President on the issue, White House Press Secretary Sarah Sanders told the media that the President “certainly didn’t dictate” the statement, but that “he weighed in, offered suggestions like any father would do.”730

The Report again neglects to mention the Putin meeting where he and Trump spoke about the subject of the statement.

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’ t have taken a meeting like that?”‘735

[see this post]

Providing the framework for the Putin involvement

As I’ve said, I think it remarkable — though perhaps explicable on constitutional grounds — that the report does not mention Putin’s role in all of this, and Trump’s bizarre behavior at the G20 (where he had Ivanka sit in on a meeting while he worked on the statement) more generally. Trump’s interactions with Putin — and his efforts to keep them secret even from staffers — is the subject of other congressional investigation. Which is why this passage from the beginning of the obstruction section sticks out.

Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

As noted, I think Mueller included the June 9 meeting statement not because it, by itself, amounts to obstruction, but because the evidence laid out — plus evidence available publicly or via separate congressional investigation — provides an important motivational explanation for the rest of it. Trump made three separate attempts to gut the Mueller investigation in this period, all at a time he was acting unusually (for him) in his efforts to bury the June 9 meeting.

This is the lie he was telling while using his office to try to stop the investigation. Or rather, this is the lie he and Vladimir Putin were telling.

EMPTYWHEEL’S MUELLER REPORT COVERAGE

Two Exceptions to Trump’s “Do Not Recall” Responses: A Limited Answer on an Assange Pardon and a Non-Answer on Sanctions Relief

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

Giorgi Rtslchiladze’s Honor Has Been Sullied because He Can’t Decide Whether He Knows the Tapes He Suppressed Exist or Not

Why Did Mueller Include the June 9 Meeting Statement in His Obstruction Case?

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

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The Mueller Report does not include the investigation’s counterintelligence analysis. It says that explicitly here (see also this Ben Wittes report, though I think he gets a few things wrong).

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results. [my emphasis]

These FBI Agents were only co-located for part of Mueller’s tenure, perhaps around the same time as the IRA indictment? And this description does not include the three NSD prosecutors described as detailees, Heather Alpino, Ryan Dickey, and Jessica Romero, as distinct from prosecutors originally assigned to Mueller.

Plus, we know there was always a counterintelligence focus to this investigation; all the initial subjects of it (Manafort, Page, Papadopoulos, and Flynn) were counterintelligence concerns. Other Trump associates got added in October 2017, but even there, the investigation into Michael Cohen started as a FARA investigation and Gates and probably others were brought in along with Manafort’s counterintelligence concerns. Then there’s Trump (who must have been brought in for obstruction, but I don’t think the report says how).

But the most significant thing that doesn’t show up in this report is whether Trump was undercutting the investigation as a favor to Russia, reportedly one of the concerns Rod Rosenstein had when he first hired Mueller. This report does not explicitly treat that concern, at all (to significant detriment to one area of its analysis, as I’ll show in a follow-up post).

That’s most evident in the way the report deals with Vladimir Putin in the post-inauguration period. The report itself invokes Putin at least 163 times, often describing the many different efforts to set up a meeting between Putin and Trump. But when Trump actually started meeting with top Russian officials — and Putin specifically — the report gets quiet.

We finally get a read-out of the January 28 phone call

Start with the phone call between Trump and Putin on January 28, 2017. The report describes that setting up this call was among the things Mike Flynn spoke to Sergey Kislyak about.

Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East.

That Kislyak asked him to set up the call was actually something Flynn told the FBI the truth about in his interview with the FBI. More importantly, the report reveals several details that previous reporting about the George Nader channel did not: first, the role of Jared Kushner’s hedge fund buddy Rick Gerson in that back channel with Kirill Dmitriev, and the role that a “reconciliation plan” that Dmitriev got to Kushner via Gerson played in that January 28 meeting.

On January 16, 2017, Dmitriev consolidated the ideas for U.S.-Russia reconciliation that he and Gerson had been discussing into a two-page document that listed five main points: (1) jointly fighting terrorism; (2) jointly engaging in anti-weapons of mass destruction efforts; (3) developing “win-win” economic and investment initiatives; (4) maintaining an honest, open, and continual dialogue regarding issues of disagreement; and (5) ensuring proper communication and trust by “key people” from each country. 1111 On January 18, 2017, Gerson gave a copy of the document to Kushner. 1112 Kushner had not heard of Dmitriev at that time. 1113 Gerson explained that Dmitriev was the head of RDIF, and Gerson may have alluded to Dmitriev’s being well connected. 1114 Kushner placed the document in a file and said he would get it to the right people. 1115 Kushner ultimately gave one copy of the document to Bannon and another to Rex Tillerson; according to Kushner, neither of them followed up with Kushner about it. 1116 On January 19, 2017, Dmitriev sent Nader a copy of the two-page document, telling him that this was “a view from our side that I discussed in my meeting on the islands and with you and with our friends. Please share with them – we believe this is a good foundation to start from.” 1117

Gerson informed Dmitriev that he had given the document to Kushner soon after delivering it. 1118 On January 26, 2017, Dmitriev wrote to Gerson that his “boss”-an apparent reference to Putin-was asking if there had been any feedback on the proposal. 1119 Dmitriev said, ” [w]e do not want to rush things and move at a comfortable speed. At the same time, my boss asked me to try to have the key US meetings in the next two weeks if possible.”1120 He informed Gerson that Putin and President Trump would speak by phone that Saturday, and noted that that information was “very confidential.”1121

The same day, Dmitriev wrote to Nader that he had seen his “boss” again yesterday who had “emphasized that this is a great priority for us and that we need to build this communication channel to avoid bureaucracy.” 1122 On January 28, 2017, Dmitriev texted Nader that he wanted “to see if I can confirm to my boss that your friends may use some of the ideas from the 2 pager I sent you in the telephone call that will happen at 12 EST,”1123 an apparent reference to the call scheduled between President Trump and Putin. Nader replied, “Definitely paper was so submitted to Team by Rick and me. They took it seriously!”1124 After the call between President Trump and Putin occurred, Dmitriev wrote to Nader that “the call went very well. My boss wants me to continue making some public statements that us [sic] Russia cooperation is good and important.” 1125 Gerson also wrote to Dmitriev to say that the call had gone well, and Dmitriev replied that the document they had drafted together “played an important role.” 1126 [my emphasis]

This was a meeting that the US side provided just a terse readout of (and, if I remember correctly, only after Russia released its readout). 27 months later, we’re learning that Dmitriev (whose bank was of questionable status because of sanctions) and convicted pedophile Nader were prepping the meeting less than an hour before it began (the report cites text messages between them from 11:05 and 11:11 AM the morning of the 12PM meeting, as well as texts involving Gerson). Between them, the two of them plus Gerson (none of whom had clearance) had a better sense of how the meeting went than the American public. Among the things they learned — but we did not — was that part of the reconciliation plan included “win-win” economic and investment initiatives pitched by the head of RDIF.

The lead-up to this meeting is the subject about which Steve Bannon and Erik Prince mysteriously lost the encrypted texts they exchanged discussing it.

While the report does describe this meeting in its assessment of links between Russians and Trump associates, it doesn’t focus on how it lines up with questions about firing Mike Flynn.

The correlation of Trump’s decision to fire Comey and his conversation with Putin

The report gets still more coy when it describes the role of a meeting with Sergey Lavrov and Sergey Kislyak the day after Trump fired Jim Comey. One of the most pregnant footnotes in the report (h/t Laura Rozen) notes that the May 10, 2017 meeting was planned in a call between Putin and Trump and confirmed the day Trump first dictated the Comey termination at Bedminster Golf Course.

468 SCR08_000353 (5/9/17 White House Document, “Working Visit with Foreign Minister Sergey Lavrov of Russia”); SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.). The meeting had been planned on May 2, 2017, during a telephone call between the President and Russian President Vladimir Putin, and the meeting date was confirmed on May 5, 2017, the same day the President dictated ideas for the Comey termination letter to Stephen Miller. SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.).

According to Don McGahn, in the leadup to Comey’s May 3 testimony to Congress, Trump told him that if Comey did not confirm that Trump was not under investigation it would “be the last straw” because it was “hurting his ability to … deal with foreign leaders.”

McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Comey did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation.384 The President had previously told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.385

Trump brought up Comey at least 8 times with Bannon in the following two days, and Bannon warned Trump not to fire Comey.

Bannon recalled that the President brought Comey up with him at least eight times on May 3 and May 4, 2017 .399 According to Bannon, the President said the same thing each time: “He told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.”400 Bannon told the President that he could not fire Comey because “that ship had sailed.”401 Bannon also told the President that firing Comey was not going to stop the investigation, cautioning him that he could fire the FBI director but could not fire the FBI.402

On the 5th — the day (the report helpfully notes) the Russian meeting was confirmed — Trump dictated to Stephen Miller to start Comey’s termination letter by stating that the Trump-Russia story was fabricated.

[T]he President told Miller that the letter should start, “While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship – pertaining to the 2016 presidential election, please be informed that I, and I believe the American public – including Ds and Rs – have lost faith in you as Director of the FBI.”

Trump prohibited Miller from telling anyone at the White House about his plan to fire Comey.

All that would lead you to believe the report might make further note about this correlation, about the appearance (which had already been suggested, but the report makes far more clear) that Trump took action in advance of that meeting.

It doesn’t really. The description of the meeting does make clear that, in the wake of Trump’s comments to Lavrov boasting about firing Comey, the White House released a statement that incorporated and expanded on the language about Comey’s grandstanding from finalized Miller letter drafted at Bedminster.

In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office.468 The media subsequently reported that during the May 10 meeting the President brought up his decision the prior day to terminate Comey, telling Lavrov and Kislyak: “T 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.”469 The President never denied making those statements, and the White House did not dispute the account, instead issuing a statement that said: “By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia. The investigation would have always continued, and obviously, the termination of Comey would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified information.”470 Hicks said that when she told the President about the reports on his meeting with Lavrov, he did not look concerned and said of Comey, “he is crazy.”471 When McGahn asked the President about his comments to Lavrov, the President said it was good that Comey was fired because that took the pressure off by making it clear that he was not under investigation so he could get more work done.472 [my emphasis]

What the report doesn’t mention, at all, is that Trump shared sensitive Israeli intelligence with the Russians at this meeting, an obvious counterintelligence concern.

Trump’s secret co-author on the June 9 meeting statement

An even more remarkable silence in the report pertains to the conversation Trump had with Putin at the G20 while his team was working on drafting the statement about the June 9 meeting.

The description of Trump’s actions on this matter are fairly superlative, with Hope Hicks describing Trump in what is best described as denial, refusing to be included in conversations about it, yet strongly suggesting that it was Trump making the comment — suggesting they could withhold the damning emails — that Mark Corallo later attributed to her. Hicks even describes Trump as committing what he considered the ultimate sin, not commenting on a story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

The report then describes how (in what would have been in the wake of Trump’s first face-to-face meeting with Putin) Trump instructed her to claim the meeting was just about adoptions. It then describes Trump dictating a statement, watering down the offer of dirt to just adoptions, something that not even Don Jr was willing to put out.

Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”700

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

The passage mentions nothing about Trump’s meeting, with no American aides, with Putin at the G20 dinner in between the first discussion of a statement about adoptions and the one Trump drafted personally.

Nor does the report, in repeated discussions of Trump’s unplanned interview with the NYT at which he admitted discussing adoptions with Putin that night, mention that admission.

Within hours of the President’s meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions’s decision to recuse from the Russia investigation.630 The President said that “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.”631 Sessions’s recusal, the President said, was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”632 Hicks, who was present for the interview, recalled trying to “throw [herself] between the reporters and [the President]” to stop parts of the interview, but the President “loved the interview.”633

[snip]

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’t have taken a meeting like that?”‘735

Trump’s admission that he spoke to Putin about adoptions in the same interview where he prepared the ground to fire Sessions and insisted that everyone would take a meeting with foreigners offering dirt on your opponent would seem important to the discussion of whether in attempting to fire Sessions, Trump was obstructing not a criminal investigation into his own conduct, but a counterintelligence investigation into his own ties with Putin.

But the report not only doesn’t consider it, the report doesn’t mention it.

Nor does the report discuss some of the other bizarre Trump interactions with Putin, most of all the Helsinki meeting that took place in the wake of the release of the GRU indictment, leading Trump to yet again very publicly deny Russia’s role in the attack, that time in the presence of Putin himself.

Now, there may be very good constitutional reasons why the analysis of Trump’s weird relationship with Putin as President is not part of this report. The President is empowered with fairly unlimited authority to conduct foreign policy and to declassify information, which would cover these instances.

Plus, if Mueller conducted this analysis, you wouldn’t want to share that publicly so the Russians could read it.

But it must be noted that the report doesn’t answer what a lot of people think it does: whether Trump has been compromised by Russia, leading him to pursue policies damaging to US interests. Let me very clear: I don’t think Trump is a puppet being managed by Vladimir Putin. But contrary to a great number of claims that this report puts those concerns to rest, the report does the opposite. With the limited exception of the suggestion of a tie between firing Comey and the meeting with Lavrov, the report doesn’t even mention the key incidents that would be the subject of such analysis.

If anything, new details released in this report provide even further reason to think Trump obstructed the Russian investigation to halt the counterintelligence analysis of his ties with Russia. But the report itself doesn’t ever explicitly consider whether that’s why Trump obstructed this investigation.

Update: As TC noted, one thing the report does include is the detail that during a period he was trying to fire Sessions, Trump wanted him to limit Mueller’s mandate to future elections, which would have the effect of limiting the investigation into Russia’s crime as well as any potential exposure of his own.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605

The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing: 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. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T 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.610

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

It Is Objectively False that Trump Provided Unprecedented Cooperation; Stop Parroting Rudy Claiming He Did

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If a President makes an expansive new claim to Executive Privilege and the press reports the opposite, did it really happen?

That’s a question presented by the coverage of yesterday’s news that after a year of resistance, President Trump finally provided the answers to his open book test to Mueller. That’s because a slew of journalists repeated Rudy Giuliani’s claim, made in his official statement, that Trump has provided “unprecedented cooperation” with Mueller’s team, without noting that the claim is objectively false.

I showed back in February — when the press first started parroting this claim credulously, which was first made by John Dowd — that it was not true.

A simple comparison of the Bush White House’s cooperation the CIA leak case, which investigated events that occurred in a more narrow period two month period of time, showed Dowd’s claim about cooperation on discovery and witnesses was overblown.

More importantly, a key detail distinguished George W Bush’s cooperation from Trump’s: Bush sat for an interview with Patrick Fitzgerald and answered questions about the orders he gave, while President, to at least one of his Assistants and the Vice President about an exclusive executive authority, declassification.

Bush sat for an interview in June 2004, and Cheney — who himself made some grossly false statements in his tenure — sat for one in May 2004 and a little-known follow-up that August. According to Cheney’s autobiography, “[T]he second session was conducted under oath so that [his] testimony could be submitted to the grand jury.”

[snip]

[Randall] Samborn, the Fitzgerald spokesperson who was famously reticent during the whole CIA leak investigation, offered an expansive rebuttal to Dowd’s claim that this White House has offered unprecedented cooperation. “Trump’s team can claim all the cooperation it wants, and whether justifiably so or not, it seems to me that it all gets negated, if at the end, he personally refuses to be questioned when so much substance depends on what he knew and did, as well as his state of mind.”

Any refusal to sit for an interview, Samborn said, was central evaluating the level of cooperation.

“That’s sort of the ultimate in noncooperation,” he explained, “especially after saying he looks forward to being interviewed and under oath.”

By limiting his cooperation to an open book test, Trump has stopped far short of the cooperation Bush offered.

And yet, because Rudy included the claim in the statement he released to the press, many news outlets are repeating that false claim, uncontested. The outlets that subscribe to the AP feed are propagating false claim today, because Eric Tucker repeated that line from Rudy’s statement with no correction to it.  Unsurprisingly, Fox News parroted Rudy. But so did some more credible outlets, like NBC, ABC, CNN, and Reuters. Even the WaPo’s otherwise superb report from Carol Leonnig and Robert Costa repeated the claim in the last line of their story.

NYT’s Maggie and Mike, incidentally, avoided repeating Rudy’s claim, choosing to include the part of his statement that provided quasi-factual numbers, but leaving out the superlative claim.

It’s bad enough that most of the press has repeated Rudy and Dowd’s claim uncritically since January. But for yesterday’s stories, it is all the more important to get it right. That’s because Trump is not just refusing to answer questions on Mueller’s obstruction investigation, he’s also refusing to answer questions about the transition period, before any claim of Executive Privilege should kick in. While that’s consistent with what Trump did with Hope Hicks’ and Corey Lewandowski’s testimony to the House Intelligence Committee, it nevertheless represents an expansion of accepted claims to executive power.

The emphasis, here, should be on Trump’s claim to be above the law even before he took an oath to protect and defend the Constitution.

Instead, a bunch of copy and paste journalism has made it the opposite.

On Corey Lewandowski’s Big Legal Bills and Mueller’s Deadline from Rosenstein

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Quarterly political spending reports are out and they provide some hints about which current or former Trump aides have been spending a lot of time with Mueller’s investigators. The NYT reported the other day that the Trump campaign has paid $173,000 in the past quarter to the law firm representing Corey Lewandowski.

The campaign also paid $173,000 to Mintz Levin, a law firm that has helped Mr. Trump’s first campaign manager, Corey Lewandowski, handle inquiries related to the Russia investigations.

The suggestion that Lewandowski has spent quality time with Mueller’s team of late is particularly interesting, for several reasons. First, Lewandowski had a number of key interactions with George Papadopoulos regarding the outreach from Russia, including drafting Trump’s first foreign policy speech, which Papadopoulos reportedly told Ivan Timofeev was a sign that the campaign was interested in pursuing a Trump-Putin meeting.

April 27: Papadopoulos to Corey Lewandowski

“to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”

April 27: Papadopoulos authored speech that he tells Timofeev is “the signal to meet”

[snip]

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

[snip]

June 19: Papadopoulos to Lewandowski

“New message from Russia”: “The Russian ministry of foreign affairs messaged and said that if Mr. Trump is unable to make it to Russia, if a campaign rep (me or someone else) can make it for meetings? I am willing to make the trip off the record if it’s in the interest of Mr. Trump and the campaign to meet specific people.”

Lewandowski was also the person that the House Intelligence Committee treated most curiously. HPSCI originally interviewed him in January, during the phase when HPSCI seemed to be interviewing key witnesses to be able to pass on to Trump how they would testify. At that point, Mueller had not yet contacted Lewandowski.

Even though Lewandowski never worked in the Administration, in that first appearance with HPSCI, he invoked privilege over parts of his testimony. On March 8, HPSCI brought him back, the very last witness in their so-called investigation. After his three hour appearance, Adam Schiff discussed subpoenaing Lewnadowski to compel him to answer questions he had still refused to answer (Schiff had also demanded HPSCI compel full testimony from Hope Hicks). In the same discussion of compelling Lewandowski to answer questions,  Schiff suggested the committee should subpoena Stephen Miller.

After Lewandowski’s testimony had wrapped, Schiff raised a new name he wanted to speak to: White House aide Stephen Miller.

Which is curious because WSJ reports that the legal defense fund supporting specific former campaign staffers paid Akin Gump $115,000.

The fund directed most of its third-quarter spending to legal consulting, paying nearly $115,000 to the law firm Akin Gump Strauss Hauer & Feld LLP and another $8,500 to Schertler & Onorato LLP. The latter firm has represented Keith Schiller, Mr. Trump’s longtime bodyguard who was interviewed by the House Intelligence Committee as part of its Russia investigation.

It’s not publicly known which former campaign staffer Akin Gump represents, but two of the few key Trump people whose lawyers have not been publicly identified are Brad Parscale (though the campaign would probably pay for his legal defense at this point) and Miller.

Miller is the person whom Papadopoulos has said he would have told about the Russian offer of emails had he actually connected by phone the day he learned of it.

Meanwhile, Bloomberg reports (possibly based on Congressional sources) that Mueller is preparing to offer “reports” on his investigation.

Mueller is close to rendering judgment on two of the most explosive aspects of his inquiry: whether there were clear incidents of collusion between Russia and Donald Trump’s 2016 campaign, and whether the president took any actions that constitute obstruction of justice, according to one of the officials, who asked not to be identified speaking about the investigation.

[snip]

Rosenstein has made it clear that he wants Mueller to wrap up the investigation as expeditiously as possible, another U.S. official said.

This is actually not at all surprising. Trump is going to start firing people after the election, so Mueller’s ability to work unimpeded may be dramatically curtailed shortly after that. If he’s going to bring a big indictment, he has to do so in that time frame. Plus, after securing Paul Manafort and Michael Cohen’s cooperation, he has cooperating witnesses on all the elements of a conspiracy Mueller had identified by last March, not to mention slam dunk obstruction charges tied to floated pardons. Everyone is scheduled to start being sentenced after the election, too. With the hints he has gotten extensive Lewandowski testimony (and reports that he had obtained far more documentation pertaining to Don Jr’s actions), it would suggest that Mueller has at least tracked the game of telephone between Russians offering emails to the candidate anxious to accept that offer.

So this tells us what we might expect: the denouement of the Mueller investigation will happen, unless Trump works to undercut it, just after the election.

Update: In their plan for further investigation released in March, HPSCI Dems described that in his second committee appearance Lewandowski refused, “to answer questions regarding his communication with President Trump regarding former FBI Director Comey, Special Counsel Mueller, and Attorney General Sessions, as well as his communications with certain administration officials pertaining to the June 9, 2016 meeting at Trump Tower.” So it sounds like he’s also got evidence pertaining to the June 9 meeting.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Paul Manafort Is One of 37 People in an Omertà with the President

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Apparently, Bob Woodward committed some journalism along with canonizing racist John Kelly and wife-beater Rob Porter in his book: he got a number for how many people are included the Joint Defense Agreement that gives Rudy Giuliani such confidence the President is not at risk: 37.

And Politico committed still more journalism and answered the question we’ve all been asking: yes, Paul Manafort is among those 37.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.

That means when John Dowd complained that the raid of Manafort’s condo (where his eight iPods were seized), that was based on privileged conversations between lawyers. And when, in January, Trump confidently said he was sure Manafort would protect him, that was based on privileged conversations between lawyers.  And when, just before the EDVA trial, Kevin Downing was ostentatiously saying there was no way Manafort was flipping, and when he was balking on a plea with Mueller immediately after the trial, he was also talking to Rudy Giuliani.

Mind you, Rudy G will learn right away if Manafort starts considering cooperating, rather than just pleading, because Manafort will have to (finally!) drop out of the JDA before those discussions start.

And while I suspect Mueller has slowly been peeling away people like Sam Patten, that the JDA is so big likely means some or most of the following people are part of the omertà (and Michael Cohen, Rick Gates, and Mike Flynn were part of it):

  • Paul Manafort and Konstantin Kilimnik
  • Jared Kushner
  • The Trump Org defendants: Don Jr, Rhonna Graff
  • Bill Burck’s clients: Steve Bannon, Reince Priebus, Don McGahn (and up to three more)
  • Victoria Toensing’s clients: Mark Corallo, Erik Prince, Sam Clovis
  • The hush payment recipients: Hope Hicks, Brad Parscale, Keith Schiller
  • Roger Stone and his buddies: Stone, Michael Caputo, Sam Nunberg, Andrew Miller, plus some (probably)

That’s 20. Some other likely (and enticing) JDA members are: Devin Nunes, Jeff Sessions, Tom Barrack, Keith Kellogg, John Mashburn, KT McFarland, JD Gordon, Walid Phares, Stephen Miller, Sean Spicer, Rob Porter, Corey Lewandowski, John Kelly. Heck, it’s not even clear that George Papadopoulos is not part of the JDA.

But that still leaves space in the JDA for people who were already comparing notes with known members of the JDA, including Rinat Akhmetshin, Rob Goldstone, and Ike Kaveladze (along with Emin and Aras Agalarov, who are all represented by Scott Balber).

No wonder Rudy thinks he knows everything that Mueller has.

That’s why the collective panic on the discovery that Stone’s phone was likely among the ~10 or so that Mueller got warrants for in the wake of Rick Gates’ cooperation agreement is so interesting, and also why Manafort, playing his part as point, tried so hard to find out who the other four AT&T users whose phones were obtained with his own.

These guys may be good at omertà. But every single one we’ve seen so far has shitty OpSec; they’ve been saying their co-conspiracy communications on their phones and on iCloud. Plus there are people like Omarosa wandering among them, dismissed as irrelevant even while they record everything they hear. And meanwhile, Mueller is chipping away at the edges, people they haven’t considered (like Patten). And all the while he’s been building his case against Stone and Don Jr.

Trump Is Willing to Pay for Joint Defense for Hope Hicks, But Not for France

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As I laid out last week, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

I keep coming back to this exchange between Dana Bash and Rudy Giuliani over the weekend.

BASH:  But let’s just focus on one of the things that you said…

GIULIANI: Go.

BASH: … that there is no evidence — you say that the special counsel hasn’t produced evidence.

But they haven’t said that they have no evidence. They have — you say that there have been leaks. They have been remarkably tight-lipped, aside from what they have had to do with indictments and such.

GIULIANI: No, they haven’t. They leaked reports. They leaked reports. They leaked meetings. They’re leaking on Manafort right now. They leaked Cohen before it happened.

BASH: But this is an ongoing investigation. We don’t really know what they have and what they don’t have. That’s fair, right?

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

They have nothing, Dana. They wouldn’t be pressing for this interview if they had anything. [my emphasis]

Rudy asserts that every critical witness is a member of a Joint Defense Agreement involving Trump.

That’s a big Joint Defense Agreement. It also suggests that if Mueller can learn who is in it, he’s got a map of everyone that Trump himself thinks was involved in the conspiracy with Russia.

Some people will be obvious — not least, because they share lawyers. Witnesses with shared lawyers include:

Erik Prince, Sam Clovis, Mark Corallo (represented by Victoria Toensing)

Reince Priebus, Steve Bannon, Don McGahn (represented by William Burck)

Don Jr, Rhona Graff (represented by Trump Organization lawyer Alan Futerfas)

Almost certainly, it includes the key witnesses who’ve been moved onto various parts of the Reelection campaign, including 2020 convention security head Keith Schiller (represented by Stuart Sears) and Brad Parscale (defense attorney unknown).

Others are obvious because we know they’re centrally involved — people like Jared Kushner (represented by Abbe Lowell) and Hope Hicks (represented by Robert Trout). Indeed, Hicks may also fall into the category of shared lawyers — at least from the same firm — as Trout Cacheris & Janis got paid $451,779 by the RNC in April for representing Hope and two other witnesses.

One implication from this (which would be unbelievable, if true) is that Paul Manafort remains a part of the Joint Defense Agreement. But that is the only way that Trump can assess his vulnerability — as he has in the past, and appears to have shared with the Russians — to go exclusively through Manafort.

There are other implications of claiming that every critical witness is part of the Joint Defense Agreement — including that the Attorney General (represented by Iran-Contra escape artist lawyer Charles Cooper) must be part of it too. So, too, must Stephen Miller (defense attorney unknown).

But here’s the really telling thing. A key part of Trump’s foreign policy — one he’ll be focusing on relentlessly in advance of next week’s NATO summit — is that other members of the United States’ alliances are freeloaders. He’s demanding that NATO members all start paying their own way for our mutual defense.

But Trump is willing to make sure that those protecting him get paid (even if he’s not willing to pay himself). (I stole this observation from an interlocutor on Twitter.)

Which is saying something about what Trump is willing to do when he, himself, is at risk.

The Crimes with which NSD Envisions Charging Those Attacking Elections

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The Senate Judiciary Committee had a hearing on how to protect our elections today. Among others, Deputy Assistant Attorney General Adam Hickey from DOJ’s National Security Division testified. He gave a list of some of the crimes he thought might be used to charge people who tampered with elections.

Foreign influence operations, though not always illegal, can implicate several U.S. Federal criminal statutes, including (but not limited to) 18 U.S.C. § 371 (conspiracy to defraud the United States); 18 U.S.C. § 951 (acting in the United States as an agent of a foreign government without prior notification to the Attorney General); 18 U.S.C. § 1001 (false statements); 18 U.S.C. § 1028A (aggravated identity theft); 18 U.S.C. § 1030 (computer fraud and abuse); 18 U.S.C. §§ 1343, 1344 (wire fraud and bank fraud); 18 U.S.C. § 1519 (destruction of evidence); 18 U.S.C. § 1546 (visa fraud); 22 U.S.C. § 618 (Foreign Agents Registration Act); and 52 U.S.C. §§ 30109, 30121 (soliciting or making foreign contributions to influence Federal elections, or donations to influence State or local elections).

In their testimony, Ken Wainstein (someone with extensive experience of national security prosecutions, but less apparent focus on the available evidence in this investigation) and Ryan Goodman (who doesn’t have the prosecutorial experience of Wainstein, but who is familiar with the public facts about the investigation) also list what crimes they think will get charged.

I find a comparison of what each raised, along with what has already been charged, to be instructive. I believe that comparison looks like this:

I’m interested, in part, because Hickey, who likely has at least a sense of the Mueller investigation (if not personal involvement), sees the case somewhat differently than two differently expert lawyers. Two charges — agent of a foreign power (basically, being a foreign spy in the US not working under official cover) and CFAA (hacking) seem obvious to both National Security Division prosecutors, but have not yet been publicly charged. Illegal foreign contributions seems obvious to those paying close attention, but also has not been charged. We might expect to see all three charges before we’re done.

Neither Wainstein nor Goodman mentioned false statements, but of course that’s what we’ve seen charged most often so far.

Then there are the two crimes Hickey mentions that the others don’t, but that have not yet been charged (both have been alleged as overt acts in the Internet Research Agency indictment): Visa fraud (alleged against the trolls who came to the US to reconnoiter in 2014) and destruction of evidence (again, alleged against IRA employees destroying evidence after Facebook’s role was discovered). Mueller also described George Papadopoulos destroying evidencec when he deleted his Facebook account, but like the Russian trolls, he didn’t get charged for it. Visa fraud, in particular, is something that multiple figures might be accused of — Alexander Torshin and others reaching out via NRA, Natalia Veselnitskaya, and even Brits who worked illegally during the election for Cambridge Analytica.

I confess I’m most interested in Hickey’s mention of destruction of evidence, though. That’s true, in part, because SDNY seems to think Michael Cohen might destroy evidence.

Hope Hicks, too, reportedly thought about hiding evidence from authorities. Then there’s the report that Mueller is checking encrypted messaging apps as people turn in phones when they arrive for interviews.

Huckey seems to think some of the people being investigated — beyond Papadopoulos and IRA troll Viktorovna Kaverzina — may have been destroying evidence.

I wonder if he has reason to suspect that.