July 23, 2019 - Issue: Vol. 165, No. 124 — Daily Edition116th Congress (2019 - 2020) - 1st Session
All in Senate sectionPrev47 of 50Next
MUELLER REPORT; Congressional Record Vol. 165, No. 124
(Senate - July 23, 2019)
Text available as:
Formatting necessary for an accurate reading of this text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF.
[Pages S5020-S5025] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] MUELLER REPORT Mr. MERKLEY. Madam President, as our Founders worked to design what would become the Constitution of the United States, they had certain core principles in mind--certain principles that were the exact opposite of the way government worked in Europe. They did not want to see America be a land run by a dictator or a King. They wanted to make sure that power was distributed between voting Americans, a principle Jefferson called the equal voice principle, because distributed power among the people would lead to laws by and for the people, not laws by and for the powerful. They had another principle, and it was the opposite of what existed in Europe, where a King and perhaps the King's circle were above the law, not accountable to any core principles of conduct or any rules. What they did in their lives as rulers in that fashion just simply was accountable to no one. But our Constitution had a different vision. The goal was to have everyone in America accountable to the law--that we are all in this together. No one is a King. No one is a dictator. That vision is really embodied in four simple words carved into the facade of the doors of the Supreme Court: Equal Justice Under Law. If you stand here in the Johnson Room, just across the hallway, and you look out the window toward the Supreme Court, you see this: Equal Justice Under Law. It is a principle so foundational to our vision of a citizen-run nation, a nation by and for the people, that it was the source of my first political act. If memory serves me well, I was a junior in high school. I read an article in the evening newspaper. Now, at that point, many cities in the country had a morning newspaper, which was more of the business community's newspaper, and an evening newspaper, which was more the workers' newspaper, which made sense. For my father, a union machinist, his work started at 7 in the morning and concluded 9 hours later at 4 in the afternoon. He would come home, get the evening newspaper, read it, have dinner, and watch the evening news on television. In that newspaper that evening, there was an article about Spiro Agnew, our former Vice President. He was convicted of taking $100,000 in bribes, but what was his penalty? His penalty was a $10,000 fine. I was enraged: Like, what? People get sent to prison for stealing a loaf of bread, and the Vice President illegally took $100,000 and gets to keep 90 percent of it. What kind of a story is that to America, that if you are wealthy and powerful, you can commit crimes and keep the vast share of what you have taken in that crime? So I wrote an outraged letter to the newspaper, and the newspaper published it. Equal Justice Under Law--it is a very important principle to our Nation. But today we face a political crisis--a crisis about whether we have a President who is above the law, and that somehow this phrase, this principle, the foundation of our country, doesn't apply to this particular President. If that stands, then we will have lost a core principle of our democratic Republic. Tomorrow we are going to have testimony from former Special Counsel Mueller in the House of Representatives. He is scheduled for some 3 hours before the Judiciary Committee of the House and another couple of hours with the Intelligence Committee. He will be following up to share insights and answer questions related to this hefty document: Report On The Investigation Into Russian Interference In The 2016 Presidential Election. There is a lot in this report. You wouldn't know that if you just listened to our Attorney General, because our current Attorney General Barr said there is nothing here--nothing in this. That is not the case, and I have come to the floor tonight to make that absolutely clear. Here is the easiest way to summarize it. We received an open letter from more than 1,000 former prosecutors evaluating what is in this hefty book. It says: We are former federal prosecutors. We served under both Republican and Democratic administrations at different levels . . . line attorneys, supervisors, special prosecutors, United States Attorneys, and senior officials at the Department of Justice. The offices in which we served were small, medium, and large; urban, suburban, and rural; and located in all parts of our country. Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller's report would, in the case of any other person not covered by the [[Page S5021]] Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice. The Mueller report describes several acts that satisfy all of the elements for an obstruction charge, conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include: The President's efforts to fire Mueller and to falsify evidence about that effort; The President's efforts to limit the scope of Mueller's investigation to exclude his conduct; and The President's efforts to prevent witnesses from cooperating with the investigators probing him and his campaign. This statement goes on in some detail, but the point that needs to be repeated is this point: ``Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller's report would, in the case of any other person . . . result in multiple felony charges.'' In other words, 1,000--in fact, more than 1,000--Federal prosecutors said, in their minds, reading just this report, that the President has committed multiple crimes. What happened to the principle of equal justice under the law? There are 1,000 Federal prosecutors who said that anyone else--you or you or you--would be indicted for felonies as a result of the conduct that is in this report. But the President has not been indicted. Why has he not been indicted? It is simply this: An indictment has to stem from the Department of Justice, which is now run by an Attorney General who has dedicated himself to preventing the President from being held accountable rather than to the principle of equal justice under the law. No one who does not believe in the founding principle of our Nation should ever serve as Attorney General of the United States. Yet he serves and refuses to conduct his responsibilities under the Constitution. That is why there is no choice but for the House to act. In the failure of Attorney General Barr to honor the principle that our Nation was founded on, equal justice under the law, the only recourse is the House of Representatives. Down this hallway, through these double doors, not far away, is the House of Representatives, which is charged under the Constitution with determining if a President has committed high crimes and misdemeanors. While there may be a discussion of exactly what is meant by high crimes and misdemeanors, surely they entail acts of obstruction of justice for which any other American would have been indicted. Surely, felony crimes qualify. The House doesn't determine guilt or innocence. The House plays the role of Federal prosecutors who are deciding whether to indict. Is the evidence sufficient to say it is credible and substantial that the individual conducted a felony, a crime? The answer by 1,000 Federal prosecutors is absolutely. It can't be done by the Supreme Court. It can't be done by the judiciary as long as the Attorney General is blocking it. It can be done only by the House. That is why the House has to act now and has to proceed to put together a committee on impeachment or this principle means nothing. Then it would come to this Chamber to hold the actual trial. But there will be no trial if there is no indictment. There is no trial in the Senate Chamber if there is no impeachment, and there is no credibility to this principle in America if the House doesn't act. So I call upon the House to convene that committee and to conduct that impeachment inquiry, and if they come out of that inquiry with 1,000 Federal prosecutors, they must act and vote to impeach. This cannot be about politics: Is it a smart thing to do? How will it affect the next election? Will it put our Presidential candidates in a strange space? Let's do an opinion poll of America. No, absolutely not. Our institutions are under assault, and we have a responsibility because we took an oath of office to the Constitution to defend this principle. The House took the same oath, and they have a responsibility to defend that principle. I am going to take the time to lay out four of those charges of obstruction justice just to set the stage for tomorrow. This is what is referred to as a ``heat map.'' It lays out different cases in which the President interfered with the judicial process, and then it proceeds to ask: Is there substantial evidence of the three things that are needed as a foundation for saying that a felony crime has been committed? The first is, was there an obstructive act? The second is, was there a nexus to an issue? The third is, was there criminal intent? There are four cases in which capable individuals have reviewed the Mueller report and have said yes on all three--meaning, each of these is red. Let's take a look at this. First, let's turn to this issue of efforts to fire Mueller. I am reading now from page 87 of this hefty report on the investigation, the special counsel's report. On page 87, under ``Analysis,'' it proceeds to say: ``In analyzing the President's direction to McGahn to have the Special Counsel removed, the following evidence is relevant to the elements of obstruction of justice.'' Then he walks through each of these three pieces: Obstructive act. As with the President's firing of Comey, the attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation. A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice's attention. . . . Some of the President's specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed. First, McGahn's clear recollection was that the President directed him to tell Rosenstein not only that conflicts existed but also that ``Mueller has to go.'' McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House. McGahn spoke with the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President's request. In response to that request, McGahn decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre. That is a reference to Watergate. He called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter with his chief of staff, told Priebus that the President had asked him to ``do crazy shit,'' and informed Priebus and Bannon that he was leaving. Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice. Second, in the days before the calls to McGahn, the President, through his counsel, had already brought the asserted conflicts to the attention of the Department of Justice. Accordingly, the President had no reason to have McGahn call Rosenstein that weekend to raise conflicts issues that already had been raised. Third, the President's sense of urgency and repeated requests to McGahn to take immediate action on a weekend-- ``You gotta do this. You gotta call Rod.''--support McGahn's recollection that the President wanted the Department of Justice to take action to remove the Special Counsel. Had the President instead sought only to have the Department of Justice re-examine asserted conflicts to evaluate whether they posed an ethical bar, it would have been unnecessary to set the process in motion on a Saturday and to make repeated calls to McGahn. Finally, the President had discussed ``knocking out Mueller'' and raised conflicts of interest in a May 23, 2017 call to McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel. And in the days leading up to June 17, 2017, the President made clear to Priebus and Bannon, who then told Ruddy, that the President was considering terminating the Special Counsel. Also, during this time period, the President reached out to Christie to get his thoughts on firing the Special Counsel. This evidence shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel. So those are the obstructive acts, efforts to fire special counsel Mueller. Nexus to an official proceeding [the second test]. To satisfy the proceeding requirement, it would be necessary to establish a nexus [[Page S5022]] between the President's act of seeking to terminate the Special Counsel and a pending or foreseeable grand jury proceeding. Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury. On May 23, 2017, McGahn explicitly warned the President that his ``biggest exposure'' was not his act of firing Comey but his ``other contacts'' and ``calls,'' and his ``ask re: Flynn.'' By early June, it was widely reported in the media that federal prosecutors had issued grand jury subpoenas in the Flynn inquiry and that the Special Counsel had taken over the Flynn investigation. On June 9, 2017, the Special Counsel's Office informed the White House that investigators would be interviewing intelligence agency officials who allegedly had been asked by the President to push back against the Russia investigation. On June 14, 2017, news outlets began reporting that the President himself was being investigated for obstruction of justice. Based on widespread reporting, the President knew that such an investigation could include his request for Comey's loyalty; his request that Comey ``let[] Flynn go''; his outreach to Coats and Rogers; and his termination of Comey and statement to the Russian Foreign Minister that the termination had relieved ``great pressure'' related to Russia. And on June 16, 2017, the day before he directed McGahn to have the Special Counsel removed, the President publicly acknowledged that his conduct was under investigation by a federal prosecutor, tweeting, ``I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!'' That covers the nexus to an official proceeding, but what about this third issue, this issue of intent? Reading again from the special counsel's report evaluating this, going to the issue of intent on efforts to fire Mueller: Substantial evidence indicates that the President's attempts to remove the Special Counsel were linked to the Special Counsel's oversight of investigations that involved the President's conduct--and, most immediately, to reports that the President was being investigated for potential obstruction of justice. Before the President terminated Comey, the President considered it critically important that he was not under investigation and that the public not erroneously think he was being investigated. As described in Volume II . . . advisors perceived the President, while he was drafting the Comey termination letter, to be concerned more than anything else about getting out that he was not personally under investigation. When the President learned of the appointment of the Special Counsel on May 17, 2017, he expressed further concern about the investigation, saying ``[t]his is the end of my Presidency.'' The President also faulted Sessions for recusing, saying ``you were supposed to protect me.'' On June 14, 2017, when the Washington Post reported that the Special Counsel was investigating the President for obstruction of justice, the President was facing what he had wanted to avoid: a criminal investigation into his own conduct that was the subject of widespread media attention. The evidence indicates that news of the obstruction investigation prompted the President to call McGahn and seek to have the Special Counsel removed. By mid-June, the Department of Justice had already cleared the Special Counsel's service and the President's advisors had told him that the claimed conflicts of interest were ``silly'' and did not provide a basis to remove the Special Counsel. On June 13, 2017, the Acting Attorney General testified before Congress that no good cause for removing the Special Counsel existed, and the President dictated a press statement to Sanders saying he had no intention of firing the Special Counsel. But the next day, the media reported that the President was under investigation for obstruction of justice and the Special Counsel was interviewing witnesses about events related to possible obstruction--spurring the President to write critical tweets about the Special Counsel's investigation. The President called McGahn at home that night and then called him on Saturday from Camp David. The evidence accordingly indicates that news that an obstruction investigation had been opened is what led the President to call McGahn to have the Special Counsel terminated. There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel's Office--and McGahn himself--could not be involved in pressing conflict claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President's actions, he denied that he had ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story, as discussed in Volume II. . . . Those denials are contrary to the evidence and suggest the President's awareness that the direction to McGahn could be seen as improper. So there it is--obstruction, a nexus to an investigation, and criminal intent. Those are the efforts to fire Mueller. That is the first one laid out in this quote that I am reading from, the first one that I am conveying to you all, and there are four of these I am going to go through to set the stage for understanding the gravity of what is happening in the United States. I think this conversation has been going on for so long that people have lost sight of the egregious nature and the criminal nature of the President's conduct--at least the degree laid out in exquisite detail, as I am reading it to you--and that more than 1,000 former Federal prosecutors who have looked at these top four issues and others have said that anyone else would be indicted, meaning that in their minds, these acts met the three tests for felony conduct; that is, in their view, the President committed crimes. So the second issue is efforts to curtail the Mueller investigation. The first was to fire Mueller, and the second was to curtail the investigation. I will start reading the analysis laid out starting on page 97, continuing through page 98. In analyzing the President's efforts to have Lewandowski deliver a message directing Sessions to publicly announce that the Special Counsel investigation would be confined to future election interference, the following evidence is relevant to the elements of obstruction of justice. Looking first to the obstructive act. The President's effort to send Sessions a message through Lewandowski would qualify as an obstructive act if it would naturally obstruct the investigation in any grand jury proceedings that might flow from the inquiry. The President sought to have Sessions announce that the President ``shouldn't have a Special Prosecutor/Counsel'' and that Sessions was going to ``meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.'' The President wanted Sessions to disregard his recusal from the investigation, which had followed from a former DOJ ethics review, and have Sessions declare that he knew ``for a fact'' that ``there were no Russians involved in the campaign'' because he ``was there.'' The President further directed that Sessions should explain that the President should not be subject to an investigation ``because he hasn't done anything wrong.'' Taken together, the President's directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to ``move forward with investigating election meddling for future elections.'' So the obstructive act was perceived to box in the Mueller investigation so it wouldn't touch on the President. That is an obstruction of justice. But is there a nexus to an official proceeding? That is next addressed in the Mueller report as follows: As described above, by the time of the President's initial one-on-one meeting with Lewandowski on June 19, 2017, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge. By the time of the President's follow-up meeting with Lewandowski-- I bet you would like to know what comes next, but take a look here. I can't tell you because it has been blacked out. So whatever it was, it created a key point about the nexus to the official proceeding. The section goes on after the blacked out section: To satisfy the nexus requirement, it would be necessary to show that limiting the Special Counsel's investigation would have the natural and probable effect of impeding that grand jury proceeding. So nexus and substantial evidence. Let's go to intent. Again, I am reading from page 97: Substantial evidence indicates that the President's effort to have Sessions limit the scope of the Special Counsel's investigation to future election interference was intended to prevent further investigative scrutiny of the President's and his campaign's conduct. That sums it up. Then it goes on in some greater detail: As previously described, see Volume II . . . the President knew that the Russian investigation was focused in part on his campaign, and he perceived allegations of Russian interference to cast doubt on the legitimacy of his election. The President further knew that the investigation had broadened to include his own conduct and whether he had obstructed justice. Those investigations would not proceed if the Special Counsel's jurisdiction were limited to future election interference only. The timing and circumstances of the President's actions support the conclusion that he sought that result. The President's initial direction that Sessions should limit the Special Counsel's investigation came just 2 days [[Page S5023]] after the President ordered McGahn to have the Special Counsel removed, which itself followed public reports that the President was personally under investigation for obstruction of justice. The sequence of those events raises an inference that after seeking to terminate the Special Counsel, the President sought to exclude his and his campaign's conduct from the investigation's scope. The President raised the matter with Lewandowski again on July 19, 2017, just days after emails and information about the June 9, 2016 meeting between Russians and senior campaign officials had been publicly disclosed, generating substantial media coverage and investigative interest. The manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski alone in the Oval Office. The President selected a loyal ``devotee'' outside the White House to deliver the message, supporting an inference that he was working outside White House channels, including McGahn, who had previously resisted contacting the Department of Justice about the Special Counsel. The President also did not contact the Acting Attorney General, who had just testified publicly that there was no cause to remove the Special Counsel. Instead, the President tried to use Sessions to restrict and redirect the Special Counsel's investigation when Sessions was recused and could not properly take any action on it. The July 19, 2017 events provide further evidence of the President's intent. The President followed up with Lewandowski in a separate one-on-one meeting one month after he first dictated the message for Sessions, demonstrating he still sought to pursue the request. And just hours after Lewandowski assured the President that the message would soon be delivered to Sessions, the President gave an unplanned interview to the New York Times in which he publicly attacked Sessions and raised questions about his job security. Four days later, on July 22, 2017, the President directed Priebus to obtain Sessions' resignation. That evidence could raise an inference that the President wanted Sessions to realize that his job might be on the line as he evaluated whether to comply with the President's direction that Sessions publicly announce that, notwithstanding his recusal, he was going to confine the Special Counsel's investigation to future election interference. It is laid out in great detail--an obstructive act, a nexus to an official proceeding, and the issue of intent. This did not happen by accident--not on the efforts to fire Mueller and not on the efforts to curtail the Mueller investigation. Now we will go to the third major point here--the order to McGahn to deny the attempt to fire Mueller. This analysis in the special prosecutor's report starts on page 118. In analyzing the President's efforts to have McGahn deny that he had been ordered to have the Special Counsel removed, the following evidence is relevant to the elements of obstruction of justice. First, obstructive act. The President's repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had a natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory rather than with what the record said. There is some evidence that at the time the New York Times and Washington Post stories were published in late January 2018, the President believed the stories were wrong and that he had never told McGhan to have Rosenstein remove the Special Counsel. The President correctly understood that McGhan had not told the President directly that he planned to resign. In addition, the President told Priebus and Porter that he had not sought to terminate the Special Counsel, and in the Oval Office meeting with McGhan, the President said, ``I never said to fire Mueller. I never said `fire.' '' That evidence could indicate that the President was not attempting to persuade McGhan to change his story but instead offering his own but different recollection of the substance of his June 2017 conversations with McGhan and McGhan's reaction to them. Other evidence cuts against that understanding of the President's conduct. That is an important line to understand. Is it possible that the President simply had a different recollection? And the answer in the special prosecutor's report is this: ``Other evidence cuts against that understanding.'' The special counsel continues: As previously described, see Volume II . . . substantial evidence supports McGhan's account that the President had directed him to have the Special Counsel removed, including the timing and context of the President's directive; the manner in which McGhan reacted; and the fact that the President had been told the conflicts were insubstantial, were be being considered by the Department of Justice, and should be raised with the President's personal counsel rather than brought to McGhan. In addition, the President's subsequent denials that he had told McGhan to have the Special Counsel removed were carefully worded. When first asked about the New York Times story, the President said, ``Fake news, folks. Fake news. A typical New York Times fake story.'' And when the President spoke with McGhan in the Oval Office, he focused on whether he had used the word ``fire,'' saying, ``I never said to fire Mueller. I never said ``fire.'' He then said: ``Did I say the word `fire'? The President's assertion in the Oval Office meeting that he had never directed McGhan to have the Special Counsel removed thus runs counter to the evidence. In addition, even if the President sincerely disagreed with McGhan's memory of the June 17, 2017 events, the evidence indicates that the President knew by the time of the Oval Office meeting that McGhan's account differed and that McGhan was firm in his views. Shortly after the story broke, the President's counsel told McGhan's counsel that the President wanted McGhan to make a statement denying he had been asked to fire the Special Counsel, but McGhan responded through his counsel that that aspect of the story was accurate and he therefore could not comply with the President's request. The President then directed Sanders to tell McGhan to correct the story, but McGhan told her he would not do so because the story was accurate in reporting on the President's order. Consistent with that position, McGhan never issued a correction. More than a week later, the President brought up the issue again with Porter, made comments indicating that the President thought McGhan had leaked the story, and directed Porter to have McGhan create a record denying that the President had tried to fire the Special Counsel. At that point, the President said he might ``have to get rid of'' McGhan if McGhan did not comply. McGhan again refused and told Porter, as he told Sanders and as his counsel had told the President's counsel, that the President had in fact ordered him to have Rosenstein remove the Special Counsel. That evidence indicates that by the time of the Oval Office meeting the President was aware that McGhan did not think the story was false and did not want to issue a statement or create a written record denying facts that McGhan believed to be true. The President nevertheless persisted and asked McGhan to repudiate facts that McGhan had repeatedly said were accurate. So that is the evidence of the order to McGhan to deny that he had been instructed to fire Mueller by the President. But is there a nexus to an official proceeding--the second test? The special counsel's report continues to address that issue. Nexus to an official proceeding. By January 2018, the Special Counsel's use of a grand jury had been further confirmed by the return of several indictments. The President also was aware that the Special Counsel was investigating obstruction-related events because, among other reasons, on January 8, 2018, the Special Counsel's office provided his counsel with a detailed list of topics for a possible interview with the President. The President knew that McGhan had personal knowledge in many of the events the Special Counsel was investigating and that McGhan had already been interviewed by Special Counsel investigators. And in the Oval Office meeting, the President indicated he knew that McGhan had told the Special Counsel's Office about the President's effort to remove the Special Counsel. The President challenged McGhan for disclosing that information and for taking notes that he viewed as creating unnecessary legal exposure. That evidence indicates the President's awareness that the June 17, 2017 events were relevant to the Special Counsel's investigation and any grand jury investigation that might grow out of it. To establish a nexus, it would be necessary to show that the President's actions would have the natural tendency to affect such a proceeding or that they would hinder, delay or prevent the communication of information to investigators. Because McGhan had spoken to Special Counsel investigators before January 2018, the President could not have been seeking to influence his prior statements in those interviews. But because McGhan had repeatedly spoken to investigators and the obstruction inquiry was not complete, it was foreseeable that he would be interviewed again on obstruction-related topics. If the President were focused solely on a press strategy in seeking to have McGhan refute the New York Times article, a nexus to a proceeding or to further investigative interviews would not be shown. But the President's efforts to have McGhan write a letter ``for our records'' approximately ten days after the story had come out--well past the typical time to issue a correction for a news story--indicates the President was not focused solely on press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it. So that is the nexus. And now to intent. Substantial evidence indicates that in repeatedly urging McGhan to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGhan's account in order to deflect or prevent further scrutiny of the President's conduct towards the investigation. [[Page S5024]] That summarizes the intent. Let me just repeat a piece of that. Substantial evidence indicates that in repeatedly urging McGhan to dispute that he was ordered to have the Special Counsel terminated-- In other words, his repeated efforts to have McGhan lie-- the President acted for the purpose of influencing McGhan's account in order to deflect or prevent further scrutiny of the President's conduct. . . . Several facts support that conclusion. The President made repeated attempts to get McGhan to change his story. Not just one, but repeated attempts. As described above, by the time of the last attempt, the evidence suggests that the President had been told on multiple occasions that McGhan believed the President had ordered him to have the Special Counsel terminated. McGhan interpreted his encounter with the President in the Oval Office as an attempt to test his mettle and see how committed he was to his memory of what had occurred. The President had already laid the groundwork for pressing McGhan to alter his account by telling Porter that it might be necessary to fire McGhan if he did not deny the story, and Porter relayed that statement to McGhan. Additional evidence of the President's intent might be gleaned from the fact that his counsel was sufficiently alarmed by the prospect of the President's meeting with McGhan that he called McGhan's counsel and said that McGhan could not resign no matter what happened in the Oval Office that day. The President's counsel was well aware of McGhan's resolve not to issue what he believed to be a false account of events despite the President's request. Finally, as noted above, the President brought up the Special Counsel investigation in his Oval Office meeting with McGhan and criticized him for telling this Office about the June 17, 2017 events. The President's statements reflect his understanding--and his displeasure--that those events would be part of an obstruction-of-justice inquiry. So there it is--the intent, all laid out very, very clearly in this report--obstructive acts, a nexus to an official proceeding, and the clear intent. So let's turn to the fourth issue: Conduct toward Manafort. This can be found on page 131 of the special counsel's report. In analyzing the President's conduct towards Flynn, Manafort-- And a third person who has been blacked out in the record-- the following evidence is relevant to the elements of obstruction of justice: Section a, Obstructive act. Here we are addressing if there is evidence--is there substantial evidence--of the President's conduct toward Manafort. With respect to Manafort, there is evidence that the President's actions had the potential to influence Manafort's decision whether to cooperate with the government. The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not want Manafort to ``flip'' and cooperate with the government. On June 15, 2018, the day the judge presiding over Manafort's D.C. case was considering whether to revoke his bail, the President said that he ``felt badly'' for Manafort and stated, ``I think a lot of it is very unfair.'' And when asked about a pardon for Manafort, the President said, ``I do want to see people treated fairly. That's what it's all about.'' Later that day, after Manafort's bail was revoked, the President called it a ``tough sentence'' that was ``Very unfair!'' Two days later, the President's personal counsel stated that individuals involved in the Special Counsel's investigation could receive a pardon ``if in fact the [P]resident and his advisors . . . come to the conclusion that you have been treated unfairly''--using language that paralleled how the President had already described the treatment of Manafort. Those statements, combined with the President's commendation of Manafort for being a ``brave man'' who ``refused to `break,' '' suggested that a pardon was a more likely possibility if Manafort continued not to cooperate with the government. And while Manafort eventually pleaded guilty pursuant to a cooperation agreement, he was found to have violated the agreement by lying to investigators. The President's public statements during the Manafort trial, including during jury deliberations, also had the potential to influence the trial jury. On the second day of trial, for example, the President called the prosecution a ``terrible situation'' and a ``hoax'' that ``continues to stain our country'' and referred to Manafort as a ``Reagan/ Dole darling'' who was ``serving solitary confinement'' even though he was ``convicted of nothing.'' Those statements were widely picked up by the press. While jurors were instructed not to watch or read news stories about the case and are presumed to follow those instructions, the President's statements during the trial generated substantial media coverage that could have reached jurors if they happened to see the statements or learned about them from others. And the President's statements during deliberations of Manafort ``happens to be a very good person'' and that ``it's very sad what they've done to Paul Manafort'' had the potential to influence jurors who learned of the statements, which the President made just as jurors were considering whether to convict or acquit Manafort. Let me point out here that I see in this book substantial sections have been blocked out under No. 8, the Obstructive Act and under section C, the Intent. In spite of part of that section being blacked out, that was the substantial evidence of the effort to influence Paul Manafort and obstruct justice. Nexus to an official proceeding. The President's actions towards Flynn and Manafort and a third person blacked out in this book appeared to have been connected to pending or anticipated official proceedings involving each individual. The President's conduct towards Flynn principally occurred when both were under criminal investigation by the Special Counsel's Office and press reports speculated about whether they would cooperate with the Special Counsel's investigation. And the President's conduct toward Manafort was directly connected to the official proceedings involving him. The President made statements about Manafort and the charges against him during Manafort's criminal trial. And the President's comments about the prospect of Manafort ``flipping'' occurred when it was clear the Special Counsel continued to oversee grand jury proceedings. So there is the nexus laid out very clearly in this report on this effort to influence Manafort's testimony. And then to intent, page 132. Evidence concerning the President's conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government. Before Manafort was convicted, the President repeatedly stated that Manafort had been treated unfairly. One day after Manafort was convicted on eight felony charges and potentially faced a lengthy prison term, the President said that Manafort was a ``brave man'' for refusing to ``break'' and that ``flipping'' ``almost ought to be outlawed.'' At the same time, although the President privately told aides he did not like Manafort, he publicly called Manafort ``a good man'' and said he had a ``wonderful family.'' And when the President was asked whether he was asked whether he was considering a pardon for Manafort, the President did not respond directly and instead said he had ``great respect for what [Manafort]'s done, in terms of what he's gone through.'' The President added that ``some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.'' In light of the President's counsel's previous statements that the investigations ``might get cleaned up with some presidential pardons'' and that a pardon would be possible if the President come[s] to the conclusion that you have been treated unfairly.'' The evidence supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of a lesser sentence unnecessary. To read that again: The evidence supports the inference that the President intended Manafort to believe that he could receive a pardon which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary. The special counsel continues under intent: We also examined the evidence of the President's intent making public statements about Manafort at the beginning of his trial and when the jury was deliberating. Some evidence supports a conclusion the President intended, at least in part, to influence the jury. The trial generated widespread publicity, and as the jury began to deliberate, commentators suggested that an acquittal would add pressure to end the Special Counsel's investigation. By publicly stating on the second day of deliberations that Manafort ``happens to be a very good person'' and that ``it's very sad what they've done to Paul Manafort'' right after calling the Special Counsel's investigation a ``rigged witch hunt,'' the President's statements could, if they reached jurors, have the natural tendency to engender sympathy for Manafort among jurors, and a factfinder could infer that the President intended that result. But there are alternative explanations to the President's comments, including that he genuinely felt sorry for Manafort or that his goal was not to influence the jury but influence public opinion. The President's comments also could have been intended to continue sending a message to Manafort that a pardon was possible. As described above, the President made his comments about Manafort being ``a very good person'' immediately after declining to answer questions about whether he would pardon Manafort. You might be very interested in the additional information about intent, but I can't read it to you because it is blacked out. Nonetheless, in that previous paragraph, it is clearly declared the evidence supports the inference the President intended Manafort to believe he could receive a pardon, which would make cooperation with the government [[Page S5025]] as a means of obtaining a lesser sentence unnecessary. Those are the first four cases of obstruction of justice in which a special prosecutor lays out substantial evidence on the obstructive act, on the nexus, and on the intent on the efforts to fire Mueller, on the efforts to curtail the Mueller investigation, on the order to McGahn to deny that he had attempted to fire Mueller, and on the effort to influence Manafort by alluding to a potential pardon. There is a lot more in this book--many other cases that, in the eyes of analysts, isn't as strong as the first four, but the evidence could support it, whether it is substantial evidence, but still very serious stories of efforts to obstruct justice. Ordinary Americans might say: If, in fact, the special prosecutor found all three standards met on at least four of these cases, then why hasn't the President been indicted? Well, indictment has to come from the executive branch and the Attorney General, who runs the Department of Justice, who isn't going to do that. There is a policy within the White House that basically says a President can't be indicted. Pull out your Constitution and try to find where the Constitution says that a President can't be indicted. Try to find that because it is not in there. ``Equal justice under law.'' That is what our Constitution is about, not the case of a King who is above the law, so we have a democratic republic, if we can keep it. But that means that we are in this principle ``equal justice under law,'' and if the special prosecutor is not going to make recommendations based on the White House executive branch principle that a President can't be indicted and the Department of Justice is not going to do it, there is only one option, and that is the House of Representatives. The House of Representatives has the huge responsibility of defending this principle ``equal justice under law.'' No one else is going to do it. It can't be done here in the Senate because the Constitution says the responsibility is in the House of Representatives to decide whether to impeach a President. There has been a lot of discussion of politics: Is this a smart thing to do? Does it take up too much time? How will people respond? I can tell you this, if the House fails to act, then this ``equal justice under law'' means nothing. This book is full of events that a thousand former Federal prosecutors have told us constitutes criminal conduct, and that is why the House must, in defending their oath of office to the Constitution, bring a committee together and defend the Constitution--the vision-- that no one in the United States of America, not even the President, is above the law. It is time--past time--to convene impeachment proceedings. ____________________
All in Senate sectionPrev47 of 50Next