Our
obstruction-of-justice inquiry focused on a series of actions by the President
that related to the Russian-interference investigations, including the
President's conduct towards the law enforcement officials overseeing the
investigations and the witnesses to relevant events.
FACTUAL
RESULTS OF THE OBSTRUCTION INVESTIGATION
The key issues and
events we examined include the following: The Campaign's response to reports
about Russian support for Trump. During the 2016 presidential campaign,
questions arose about the Russian government's apparent support for candidate
Trump. After WikiLeaks released politically damaging Democratic Party emails
that were reported to have been hacked by Russia, Trump publicly expressed
skepticism that Russia was responsible for the hacks at the same time that he
and other Campaign officials privately sought information about any further
planned WikiLeaks releases.
Trump also denied having any business in or
connections to Russia, even though as late as June 2016 the Trump Organization
had been pursuing a licensing deal for a skyscraper to be built in Russia called
Trump Tower Moscow. After the election, the President expressed concerns to
advisors that reports of Russia's election interference might lead the public
to question the legitimacy of his election.
Conduct
involving FBI Director Comey and Michael Flynn.
In mid-January 2017,
incoming National Security Advisor Michael Flynn falsely denied to the Vice
President, other administration officials, and FBI agents that he had talked to
Russian Ambassador Sergey Kislyak about Russia's response to U.S. sanctions on
Russia for its election interference. On January 27, the day after the
President was told that Flynn had lied to the Vice President and had made
similar statements to the FBI, the President invited FBI Director Comey to a
private dinner at the White House and told Comey that he needed loyalty. On
February 14, the day after the President requested Flynn's resignation, the
President told an outside advisor, "Now that we fired Flynn, the Russia
thing is over." The advisor disagreed and said the investigations would
continue.
Later that afternoon,
the President cleared the Oval Office to have a one-on-one meeting with Comey.
Referring to the FBI's investigation of Flynn, the President said, "I hope
you can see your way clear to letting this go, to letting Flynn go. He is a
good guy. I hope you can let this go." Shortly after requesting Flynn's
resignation and speaking privately to Comey, the President sought to have
Deputy National Security Advisor K.T. McFarland draft an internal letter
stating that the President had not directed Flynn to discuss sanctions with
Kislyak. McFarland declined because she did not know whether that was true, and
a White House Counsel's Office attorney thought that the request would look
like a quid pro quo for an ambassadorship she had been offered.
The
President's reaction to the continuing Russia investigation.
In February 2017,
Attorney General Jeff Sessions began to assess whether he had to recuse himself
from campaign related investigations because of his role in the Trump Campaign.
In early March, the President told White House Counsel Donald McGahn to stop
Sessions from recusing. And after Sessions announced his recusal on March 2,
the President expressed anger at the decision and told advisors that he should
have an Attorney General who would protect him. That weekend, the President
took Sessions aside at an event and urged him to "unrecuse." Later in
March, Comey publicly disclosed at a congressional hearing that the FBI was
investigating "the Russian government's efforts to interfere in the 2016
presidential election," including any links or coordination between the
Russian government and the Trump Campaign.
In the following days,
the President reached out to the Director of National Intelligence and the
leaders of the Central Intelligence Agency (CIA) and the National Security
Agency (NSA) to ask them what they could do to publicly dispel the suggestion
that the President had any connection to the Russian election-interference
effort. The President also twice called Comey directly, notwithstanding
guidance from McGahn to avoid direct contacts with the Department of Justice.
Comey had previously assured the President that the FBI was not investigating
him personally, and the President asked Comey to "lift the cloud" of
the Russia investigation by saying that publicly.
The President's
termination of Comey. On May 3, 2017, Comey testified in a congressional hearing,
but declined to answer questions about whether the President was personally
under investigation. Within days, the President decided to terminate Comey. The
President insisted that the termination letter, which was written for public
release, state that Comey had informed the President that he was not under
investigation. The day of the firing, the White House maintained that Comey's
termination resulted from independent recommendations from the Attorney General
and Deputy Attorney General that Comey should be discharged for mishandling the
Hillary Clinton email investigation. But the President had decided to fire Comey
before hearing from the Department of Justice.
The day after firing Comey,
the President told Russian officials that he had "faced great pressure
because of Russia," which had been "taken off' by Comey's firing. The
next day, the President acknowledged in a television interview that he was
going to fire Comey regardless of the Department of Justice's recommendation
and that when he "decided to just do it," he was thinking that
"this thing with Trump and Russia is a made-up story." In response to
a question about whether he was angry with Comey about the Russia
investigation, the President said, "As far as I'm concerned, I want that
thing to be absolutely done properly," adding that firing Comey
"might even lengthen out the investigation."
The
appointment of a Special Counsel and efforts to remove him.
On May 17, 2017, the
Acting Attorney General for the Russia investigation appointed a Special
Counsel to conduct the investigation and related matters. The President reacted
to news that a Special Counsel had been appointed by telling advisors that it
was "the end of his presidency" and demanding that Sessions resign.
Sessions submitted his resignation, but the President ultimately did not accept
it. The President told aides that the Special Counsel had conflicts of interest
and suggested that the Special Counsel therefore could not serve. The
President's advisors told him the asserted conflicts were meritless and had
already been considered by the Department of Justice.
On June 14, 2017, the
media reported that the Special Counsel's Office was investigating whether the
President had obstructed justice. Press reports called this "a major
turning point" in the investigation: while Comey had told the President he
was not under investigation, following Comey's firing, the President now was
under investigation. The President reacted to this news with a series of tweets
criticizing the Department of Justice and the Special Counsel's investigation.
On June 17, 2017, the President called McGahn at home and directed him to call
the Acting Attorney General and say that the Special Counsel had conflicts of
interest and must be removed. McGahn did not carry out the direction, however,
deciding that he would resign rather than trigger what he regarded as a
potential Saturday Night Massacre.
Efforts
to curtail the Special Counsel's investigation.
Two days after
directing McGahn to have the Special Counsel removed, the President made
another attempt to affect the course of the Russia investigation. On June 19,
2017, the President met one-on-one in the Oval Office with his former campaign
manager Corey Lewandowski, a trusted advisor outside the government, and
dictated a message for Lewandowski to deliver to Sessions. The message said
that Sessions should publicly announce that, notwithstanding his recusal from
the Russia investigation, the investigation was "very unfair" to the
President, the President had done nothing wrong, and Sessions planned to meet
with the Special Counsel and "let [him] move forward with investigating
election meddling for future elections." Lewandowski said he understood
what the President wanted Sessions to do.
One month later, in
another private meeting with Lewandowski on July 19, 2017, the President asked
about the status of his message for Sessions to limit the Special Counsel
investigation to future election interference. Lewandowski told the President
that the message would be delivered soon. Hours after that meeting, the
President publicly criticized Sessions in an interview with the New York Times,
and then issued a series of tweets making it clear that Sessions' job was in
jeopardy. Lewandowski did not want to deliver the President's message
personally, so he asked senior White House official Rick Dearborn to deliver it
to Sessions. Dearborn was uncomfortable with the task and did not follow
through.
Efforts
to prevent public disclosure of evidence.
In the summer of 2017,
the President learned that media outlets were asking questions about the June
9, 2016 meeting at Trump Tower between senior campaign officials, including
Donald Trump Jr., and a Russian lawyer who was said to be offering damaging
information about Hillary Clinton as "part of Russia and its government's
support for Mr. Trump." On several occasions, the President directed aides
not to publicly disclose the emails setting up the June 9 meeting, suggesting
that the emails would not leak and that the number of lawyers with access to
them should be limited. Before the emails became public, the President edited a
press statement for Trump Jr. by deleting a line that acknowledged that the
meeting was with "an individual who [Trump Jr.] was told might have
information helpful to the campaign" and instead said only that the
meeting was about adoptions of Russian children. When the press asked questions
about the President's involvement in Trump Jr.' s statement, the President's
personal lawyer repeatedly denied the President had played any role.
Further
efforts to have the Attorney General take control of the investigation.
In early summer 2017,
the President called Sessions at home and again asked him to reverse his
recusal from the Russia investigation. Sessions did not reverse his recusal. In
October 2017, the President met privately with Sessions in the Oval Office and
asked him to "take [a] look" at investigating Clinton. In December
2017, shortly after Flynn pleaded guilty pursuant to a cooperation agreement,
the President met with Sessions in the Oval Office and suggested, according to
notes taken by a senior advisor, that if Sessions is unrecused and took back
supervision of the Russia investigation, he would be a "hero." The
President told Sessions, "I'm not going to do anything or direct you to do
anything. I just want to be treated fairly." In response, Sessions
volunteered that he had never seen anything " improper" on the
campaign and told the President there was a "whole new leadership
team" in place. He did not unrecuse.
Efforts
to have McGahn deny that the President had ordered him to have the Special
Counsel removed.
In early 2018, the
press reported that the President had directed McGahn to have the Special
Counsel removed in June 2017 and that McGahn had threatened to resign rather
than carry out the order. The President reacted to the news stories by
directing White House officials to tell McGahn to dispute the story and create
a record stating he had not been ordered to have the Special Counsel removed.
McGahn told those officials that the media reports were accurate in stating
that the President had directed McGahn to have the Special Counsel removed. The
President then met with McGahn in the Oval Office and again pressured him to
deny the reports. In the same meeting, the President also asked McGahn why he
had told the Special Counsel about the President's effort to remove the Special
Counsel and why McGahn took notes of his conversations with the President.
McGahn refused to back away from what he remembered happening and perceived the
President to be testing his mettle.
Conduct
towards Flynn, Manafort…
After Flynn withdrew
from a joint defense agreement with the President and began cooperating with
the government, the President's personal counsel left a message for Flynn's
attorneys reminding them of the President's warm feelings towards Flynn, which
he said "still remains," and asking for a "heads up" if
Flynn knew "information that implicates the President." When Flynn's
counsel reiterated that Flynn could no longer share information pursuant to a
joint defense agreement, the President's personal counsel said he would make
sure that the President knew that Flynn's actions reflected
"hostility" towards the President. During Manafort's prosecution and
when the jury in his criminal trial was deliberating, the President praised
Manafort in public, said that Manafort was being treated unfairly, and declined
to rule out a pardon. After Manafort was convicted, the President called
Manafort "a brave man" for refusing to "break" and said
that "flipping " "almost ought to be outlawed.
Conduct
involving Michael Cohen.
The President' s
conduct towards Michael Cohen, a former Trump Organization executive, changed
from praise for Cohen when he falsely minimized the President's involvement in
the Trump Tower Moscow project, to castigation of Cohen when he became a
cooperating witness. From September 2015 to June 2016, Cohen had pursued the
Trump Tower Moscow project on behalf of the Trump Organization and had briefed
candidate Trump on the project numerous times, including discussing whether
Trump should travel to Russia to advance the deal.
In 2017, Cohen provided
false testimony to Congress about the project, including stating that he had
only briefed Trump on the project three times and never discussed travel to
Russia with him, in an effort to adhere to a "party line" that Cohen
said was developed to minimize the President's connections to Russia. While
preparing for his congressional testimony, Cohen had extensive discussions with
the President's personal counsel, who, according to Cohen, said that Cohen
should "stay on message" and not contradict the President.
After the FBI searched
Cohen's home and office in April 2018, the President publicly asserted that
Cohen would not "flip," contacted him directly to tell him to
"stay strong," and privately passed messages of support to him. Cohen
also discussed pardons with the President's personal counsel and believed that
if he stayed on message, he would be taken care of. But after Cohen began
cooperating with the government in the summer of 2018, the President publicly
criticized him, called him a "rat," and suggested that his family
members had committed crimes.
Overarching
factual issues.
We did not make a
traditional prosecution decision about these facts, but the evidence we
obtained supports several general statements about the President's conduct.
Several features of the
conduct we investigated distinguish it from typical obstruction-of-justice
cases. First, the investigation concerned the President, and some of his
actions, such as firing the FBI director, involved facially lawful acts within
his Article II authority, which raises constitutional issues discussed below.
At the same time, the President's position as the head of the Executive Branch
provided him with unique and powerful means of influencing official
proceedings, subordinate officers, and potential witnesses-all of which is
relevant to a potential obstruction-of-justice analysis.
Second, unlike cases in
which a subject engages in obstruction of justice to cover up a crime, the
evidence we obtained did not establish that the President was involved in an
underlying crime related to Russian election interference. Although the
obstruction statutes do not require proof of such a crime, the absence of that
evidence affects the analysis of the President's intent and requires
consideration of other possible motives for his conduct.
Third, many of the
President's acts directed at witnesses, including discouragement of cooperation
with the government and suggestions of possible future pardons, took place in
public view. That circumstance is unusual, but no principle of law excludes
public acts from the reach of the obstruction laws. If the likely effect of
public acts is to influence witnesses or alter their testimony, the harm to the
justice system's integrity is the same.
Although the series of
events we investigated involved discrete acts, the overall pattern of the
President's conduct towards the investigations can shed light on the nature of
the President's acts and the inferences that can be drawn about his intent.
In particular, the
actions we investigated can be divided into two phases, reflecting a possible
shift in the President's motives. The first phase covered the period from the
President's first interactions with Comey through the President's firing of Comey.
During that time, the President had been repeatedly told he was not personally
under investigation. Soon after the firing of Comey and the appointment of the
Special Counsel, however, the President became aware that his own conduct was
being investigated in an obstruction-of-justice inquiry.
At that point, the President
engaged in a second phase of conduct, involving public attacks on the investigation,
non-public efforts to control it, and efforts in both public and private to
encourage witnesses not to cooperate with the investigation. Judgments about
the nature of the President's motives during each phase would be informed by
the totality of the evidence.
STATUTORY AND
CONSTITUTIONAL DEFENSES
The President's counsel
raised statutory and constitutional defenses to a possible
obstruction-of-justice analysis of the conduct we investigated. We concluded
that none of those legal defenses provided a basis for declining to investigate
the facts.
Statutory
defenses.
Consistent with
precedent and the Department of Justice's general approach to interpreting
obstruction statutes, we concluded that several statutes could apply here. See
18 U.S.C. §§ 1503, 1505, 1512(b)(3), 1512(c)(2). Section 1512(c)(2) is an
omnibus obstruction-of-justice provision that covers a range of obstructive
acts directed at pending or contemplated official proceedings. No principle of
statutory construction justifies narrowing the provision to cover only conduct
that impairs the integrity or availability of evidence. Sections 1503 and 1505
also offer broad protection against obstructive acts directed at pending grand
jury, judicial, administrative, and congressional proceedings, and they are
supplemented by a provision in Section 1512(6) aimed specifically at conduct
intended to prevent or hinder the communication to law enforcement of
information related to a federal crime.
Constitutional
defenses.
As for constitutional
defenses arising from the President's status as the head of the Executive
Branch, we recognized that the Department of Justice and the courts have not.
definitively resolved these issues. We therefore examined those issues through
the framework established by Supreme Court precedent governing
separation-of-powers issues. The Department of Justice and the President's
personal counsel have recognized that the President is subject to statutes that
prohibit obstruction of justice by bribing a witness or suborning perjury
because that conduct does not implicate his constitutional authority.
With respect to whether
the President can be found to have obstructed justice by exercising his powers
under Article II of the Constitution, we concluded that Congress has authority
to prohibit a President's corrupt use of his authority in order to protect the
integrity of the administration of justice.
Under applicable
Supreme Court precedent, the Constitution does not categorically and
permanently immunize a President for obstructing justice through the use of his
Article II powers. The separation-of-powers doctrine authorizes Congress to
protect official proceedings, including those of courts and grand juries, from
corrupt, obstructive acts regard less of their source.
We also concluded that
any inroad on presidential authority that would occur from prohibiting corrupt
acts does not undermine the President's ability to fulfill his constitutional
mission. The term "corruptly" sets a demanding standard. It requires
a concrete showing that a person acted with an intent to obtain an improper
advantage for himself or someone else, inconsistent with official duty and the
rights of others.
A preclusion of "corrupt"
official action does not diminish the President's ability to exercise Article
II powers. For example, the proper supervision of criminal law does not demand
freedom for the President to act with a corrupt intention of shielding himself
from criminal punishment, avoiding financial liability, or preventing personal
embarrassment. To the contrary, a statute that prohibits official action undertaken
for such corrupt purposes furthers, rather than hinders, the impartial and
evenhanded administration of the law. It also aligns with the President's
constitutional duty to faithfully execute the laws.
Finally, we concluded
that in the rare case in which a criminal investigation of the President's
conduct is justified, inquiries to determine whether the President acted for a
corrupt motive should not impermissibly chill his performance of his
constitutionally assigned duties. The conclusion that Congress may apply the
obstruction laws to the President's corrupt exercise of the powers of office
accords with our constitutional system of checks and balances and the principle
that no person is above the law.
CONCLUSION
Because we determined
not to make a traditional prosecutorial judgment, we did not draw ultimate
conclusions about the President's conduct. The evidence we obtained about the
President's actions and intent presents difficult issues that would need to be
resolved if we were making a traditional prosecutorial judgment. At the same
time, if we had confidence after a thorough investigation of the facts that the
President clearly did not commit obstruction of justice, we would so state.
Based on the facts and
the applicable legal standards, we are unable to reach that judgment.
Accordingly, while this report does not conclude that the President committed a
crime, it also does not exonerate him...
