Mueller Report Vol. 2

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U.S.

Department of Justice
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Report On The Investigation Into


Russian Interference In The
2016 Presidential Election

Volume II of II

Special Counsel Robert S. Mueller, III

Submitted Pursuant to 28 C.F.R. § 600.8(c)

Washington, D.C.

March 2019
U.S. Department of Justice
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TABLE OF CONTENTS – VOLUME II

INTRODUCTION TO VOLUME II ......................................................................................................... 1 


EXECUTIVE SUMMARY TO VOLUME II ............................................................................................. 3 
I. BACKGROUND LEGAL AND EVIDENTIARY PRINCIPLES ................................................................ 9 
A. Legal Framework of Obstruction of Justice ................................................................... 9 
B.  Investigative and Evidentiary Considerations.............................................................. 12 
II. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION ...................................................... 15 
A. The Campaign’s Response to Reports About Russian Support for Trump ................. 15 
1.  Press Reports Allege Links Between the Trump Campaign and Russia .............. 16 
2.  The Trump Campaign Reacts to WikiLeaks’s Release of Hacked Emails ........... 17 
3.  The Trump Campaign Reacts to Allegations That Russia was Seeking to
Aid Candidate Trump ........................................................................................... 18 
4.  After the Election, Trump Continues to Deny Any Contacts or
Connections with Russia or That Russia Aided his Election ................................ 21 
B.  The President’s Conduct Concerning the Investigation of Michael Flynn .................. 24 
1.  Incoming National Security Advisor Flynn Discusses Sanctions on Russia
with Russian Ambassador Sergey Kislyak ........................................................... 24 
2.  President-Elect Trump is Briefed on the Intelligence Community’s
Assessment of Russian Interference in the Election and Congress Opens
Election-Interference Investigations ..................................................................... 27 
3.  Flynn Makes False Statements About his Communications with Kislyak to
Incoming Administration Officials, the Media, and the FBI ................................ 29 
4.  DOJ Officials Notify the White House of Their Concerns About Flynn ............. 31 
5.  McGahn has a Follow-Up Meeting About Flynn with Yates; President
Trump has Dinner with FBI Director Comey ....................................................... 32 
6.  Flynn’s Resignation .............................................................................................. 36 
7.  The President Discusses Flynn with FBI Director Comey ................................... 38 
8.  The Media Raises Questions About the President’s Delay in Terminating
Flynn........ ............................................................................................................. 41 
9.  The President Attempts to Have K.T. McFarland Create a Witness
Statement Denying that he Directed Flynn’s Discussions with Kislyak .............. 42 
C.  The President’s Reaction to Public Confirmation of the FBI’s Russia
Investigation ................................................................................................................. 48 
1.  Attorney General Sessions Recuses From the Russia Investigation..................... 48 

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2.  FBI Director Comey Publicly Confirms the Existence of the Russia
Investigation in Testimony Before HPSCI ........................................................... 52 
3.  The President Asks Intelligence Community Leaders to Make Public
Statements that he had No Connection to Russia ................................................. 55 
4.  The President Asks Comey to “Lift the Cloud” Created by the Russia
Investigation.......................................................................................................... 57 
D. Events Leading Up To and Surrounding the Termination of FBI Director
Comey .......................................................................................................................... 62 
1.  Comey Testifies Before the Senate Judiciary Committee and Declines to
Answer Questions About Whether the President is Under Investigation ............. 62 
2.  The President Makes the Decision to Terminate Comey...................................... 64 
E. The President’s Efforts to Remove the Special Counsel ............................................. 77 
1.  The Appointment of the Special Counsel and the President’s Reaction .............. 78 
2.  The President Asserts that the Special Counsel has Conflicts of Interest............. 80 
3.  The Press Reports that the President is Being Investigated for Obstruction
of Justice and the President Directs the White House Counsel to Have the
Special Counsel Removed .................................................................................... 84 
F.  The President’s Efforts to Curtail the Special Counsel Investigation .......................... 90 
1.  The President Asks Corey Lewandowski to Deliver a Message to Sessions
to Curtail the Special Counsel Investigation......................................................... 90 
2.  The President Follows Up with Lewandowski ..................................................... 92 
3.  The President Publicly Criticizes Sessions in a New York Times Interview ....... 93 
4.  The President Orders Priebus to Demand Sessions’s Resignation ....................... 94 
G. The President’s Efforts to Prevent Disclosure of Emails About the June 9,
2016 Meeting Between Russians and Senior Campaign Officials............................... 98 
1.  The President Learns About the Existence of Emails Concerning the June
9, 2016 Trump Tower Meeting ............................................................................. 98 
2.  The President Directs Communications Staff Not to Publicly Disclose
Information About the June 9 Meeting ............................................................... 100 
3.  The President Directs Trump Jr.’s Response to Press Inquiries About the
June 9 Meeting .................................................................................................... 101 
4.  The Media Reports on the June 9, 2016 Meeting ............................................... 103 
H. The President’s Further Efforts to Have the Attorney General Take Over
the Investigation ......................................................................................................... 107 
1.  The President Again Seeks to Have Sessions Reverse his Recusal .................... 107 
2.  Additional Efforts to Have Sessions Unrecuse or Direct Investigations
Covered by his Recusal ....................................................................................... 109 

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I.  The President Orders McGahn to Deny that the President Tried to Fire the
Special Counsel.......................................................................................................... 113 
1.  The Press Reports that the President Tried to Fire the Special Counsel ............. 113 
2.  The President Seeks to Have McGahn Dispute the Press Reports ..................... 114 
J.  The President’s Conduct Towards Flynn, Manafort, and Stone ................................ 120 
1.  Conduct Directed at Michael Flynn.................................................................... 120 
2.  Conduct Directed at Paul Manafort .................................................................... 122 
3.  Conduct Directed at Roger Stone ....................................................................... 128 
K. The President’s Conduct Involving Michael Cohen .................................................. 134 
1.  Candidate Trump’s Awareness of and Involvement in the Trump Tower
Moscow Project .................................................................................................. 134 
2.  Cohen Determines to Adhere to a “Party Line” Distancing Candidate
Trump From Russia ............................................................................................ 138 
3.  Cohen Submits False Statements to Congress Minimizing the Trump
Tower Moscow Project in Accordance with the Party Line ............................... 139 
4.  The President Sends Messages of Support to Cohen.......................................... 144 
5.  The President’s Conduct After Cohen Began Cooperating with the
Government......................................................................................................... 148 
L.  Overarching Factual Issues ........................................................................................ 156 
III. LEGAL DEFENSES TO THE APPLICATION OF OBSTRUCTION-OF-JUSTICE STATUTES TO THE
PRESIDENT............................................................................................................................ 159 
A. Statutory Defenses to the Application of Obstruction-Of-Justice Provisions
to the Conduct Under Investigation ........................................................................... 160 
1.  The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive
Acts……… ......................................................................................................... 160 
2.  Judicial Decisions Support a Broad Reading of Section 1512(c)(2) .................. 162 
3.  The Legislative History of Section 1512(c)(2) Does Not Justify Narrowing
Its Text…. ........................................................................................................... 164 
4.  General Principles of Statutory Construction Do Not Suggest That Section
1512(c)(2) is Inapplicable to the Conduct in this Investigation.......................... 165 
5.  Other Obstruction Statutes Might Apply to the Conduct in this
Investigation........................................................................................................ 167 
B.  Constitutional Defenses to Applying Obstruction-Of-Justice Statutes to
Presidential Conduct .................................................................................................. 168 
1.  The Requirement of a Clear Statement to Apply Statutes to Presidential
Conduct Does Not Limit the Obstruction Statutes ............................................. 169 

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2.  Separation-of-Powers Principles Support the Conclusion that Congress


May Validly Prohibit Corrupt Obstructive Acts Carried Out Through the
President’s Official Powers................................................................................. 171 
a.  The Supreme Court’s Separation-of-Powers Balancing Test Applies In
This Context ................................................................................................... 172 
b.  The Effect of Obstruction-of-Justice Statutes on the President’s
Capacity to Perform His Article II Responsibilities is Limited ..................... 173 
c.  Congress Has Power to Protect Congressional, Grand Jury, and Judicial
Proceedings Against Corrupt Acts from Any Source .................................... 176 
3.  Ascertaining Whether the President Violated the Obstruction Statutes
Would Not Chill his Performance of his Article II Duties ................................. 178 
IV. CONCLUSION ......................................................................................................................... 182 

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INTRODUCTION TO VOLUME II

This report is submitted to the Attorney General pursuant to 28 C.F.R. § 600.8(c), which
states that, “[a]t the conclusion of the Special Counsel’s work, he . . . shall provide the Attorney
General a confidential report explaining the prosecution or declination decisions [the Special
Counsel] reached.”

Beginning in 2017, the President of the United States took a variety of actions towards the
ongoing FBI investigation into Russia’s interference in the 2016 presidential election and related
matters that raised questions about whether he had obstructed justice. The Order appointing the
Special Counsel gave this Office jurisdiction to investigate matters that arose directly from the
FBI’s Russia investigation, including whether the President had obstructed justice in connection
with Russia-related investigations. The Special Counsel’s jurisdiction also covered potentially
obstructive acts related to the Special Counsel’s investigation itself. This Volume of our report
summarizes our obstruction-of-justice investigation of the President.

We first describe the considerations that guided our obstruction-of-justice investigation,


and then provide an overview of this Volume:

First, a traditional prosecution or declination decision entails a binary determination to


initiate or decline a prosecution, but we determined not to make a traditional prosecutorial
judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment
or criminal prosecution of a sitting President would impermissibly undermine the capacity of the
executive branch to perform its constitutionally assigned functions” in violation of “the
constitutional separation of powers.”1 Given the role of the Special Counsel as an attorney in the
Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 515;
28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising
prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that a federal
criminal accusation against a sitting President would place burdens on the President’s capacity to
govern and potentially preempt constitutional processes for addressing presidential misconduct.2

Second, while the OLC opinion concludes that a sitting President may not be prosecuted,
it recognizes that a criminal investigation during the President’s term is permissible.3 The OLC
opinion also recognizes that a President does not have immunity after he leaves office.4 And if
individuals other than the President committed an obstruction offense, they may be prosecuted at
this time. Given those considerations, the facts known to us, and the strong public interest in

1
A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222,
222, 260 (2000) (OLC Op.).
2
See U.S. CONST. Art. I § 2, cl. 5; § 3, cl. 6; cf. OLC Op. at 257-258 (discussing relationship
between impeachment and criminal prosecution of a sitting President).
3
OLC Op. at 257 n.36 (“A grand jury could continue to gather evidence throughout the period of
immunity”).
4
OLC Op. at 255 (“Recognizing an immunity from prosecution for a sitting President would not
preclude such prosecution once the President’s term is over or he is otherwise removed from office by
resignation or impeachment”).

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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.

Third, we considered whether to evaluate the conduct we investigated under the Justice
Manual standards governing prosecution and declination decisions, but we determined not to apply
an approach that could potentially result in a judgment that the President committed crimes. The
threshold step under the Justice Manual standards is to assess whether a person’s conduct
“constitutes a federal offense.” U.S. Dep’t of Justice, Justice Manual § 9-27.220 (2018) (Justice
Manual). Fairness concerns counseled against potentially reaching that judgment when no charges
can be brought. The ordinary means for an individual to respond to an accusation is through a
speedy and public trial, with all the procedural protections that surround a criminal case. An
individual who believes he was wrongly accused can use that process to seek to clear his name. In
contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought,
affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.5

The concerns about the fairness of such a determination would be heightened in the case
of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report,
could carry consequences that extend beyond the realm of criminal justice. OLC noted similar
concerns about sealed indictments. Even if an indictment were sealed during the President’s term,
OLC reasoned, “it would be very difficult to preserve [an indictment’s] secrecy,” and if an
indictment became public, “[t]he stigma and opprobrium” could imperil the President’s ability to
govern.”6 Although a prosecutor’s internal report would not represent a formal public accusation
akin to an indictment, the possibility of the report’s public disclosure and the absence of a neutral
adjudicatory forum to review its findings counseled against potentially determining “that the
person’s conduct constitutes a federal offense.” Justice Manual § 9-27.220.

Fourth, 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, however, we are unable to reach that judgment. The evidence we
obtained about the President’s actions and intent presents difficult issues that prevent us from
conclusively determining that no criminal conduct occurred. Accordingly, while this report does
not conclude that the President committed a crime, it also does not exonerate him.
* * *
This report on our investigation consists of four parts. Section I provides an overview of
obstruction-of-justice principles and summarizes certain investigatory and evidentiary
considerations. Section II sets forth the factual results of our obstruction investigation and
analyzes the evidence. Section III addresses statutory and constitutional defenses. Section IV
states our conclusion.

5
For that reason, criticisms have been lodged against the practice of naming unindicted co-
conspirators in an indictment. See United States v. Briggs, 514 F.2d 794, 802 (5th Cir. 1975) (“The courts
have struck down with strong language efforts by grand juries to accuse persons of crime while affording
them no forum in which to vindicate themselves.”); see also Justice Manual § 9-11.130.
6
OLC Op. at 259 & n.38 (citation omitted).

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EXECUTIVE SUMMARY TO VOLUME II

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 from Trump associate Roger Stone 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

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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.

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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’s 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 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

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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, and Stone. 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.” After Roger Stone publicly announced that he would not cooperate with prosecutors,
the President called Stone “very brave” and said he had “guts!” for not “testify[ing] against
Trump.”

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.

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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,

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judicial, administrative, and congressional proceedings, and they are supplemented by a provision
in Section 1512(b) 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 regardless 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.

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I. BACKGROUND LEGAL AND EVIDENTIARY PRINCIPLES

A. Legal Framework of Obstruction of Justice

The May 17, 2017 Appointment Order and the Special Counsel regulations provide this
Office with jurisdiction to investigate “federal crimes committed in the course of, and with intent
to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice,
destruction of evidence, and intimidation of witnesses.” 28 C.F.R. § 600.4(a). Because of that
description of our jurisdiction, we sought evidence for our obstruction-of-justice investigation with
the elements of obstruction offenses in mind. Our evidentiary analysis is similarly focused on the
elements of such offenses, although we do not draw conclusions on the ultimate questions that
govern a prosecutorial decision under the Principles of Federal Prosecution. See Justice Manual
§ 9-27.000 et seq. (2018).

Here, we summarize the law interpreting the elements of potentially relevant obstruction
statutes in an ordinary case. This discussion does not address the unique constitutional issues that
arise in an inquiry into official acts by the President. Those issues are discussed in a later section
of this report addressing constitutional defenses that the President’s counsel have raised. See
Volume II, Section III.B, infra.

Three basic elements are common to most of the relevant obstruction statutes: (1) an
obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt
intent. See, e.g., 18 U.S.C. §§ 1503, 1505, 1512(c)(2). We describe those elements as they have
been interpreted by the courts. We then discuss a more specific statute aimed at witness tampering,
see 18 U.S.C. § 1512(b), and describe the requirements for attempted offenses and endeavors to
obstruct justice, see 18 U.S.C. §§ 1503, 1512(c)(2).

Obstructive act. Obstruction-of-justice law “reaches all corrupt conduct capable of


producing an effect that prevents justice from being duly administered, regardless of the means
employed.” United States v. Silverman, 745 F.2d 1386, 1393 (11th Cir. 1984) (interpreting 18
U.S.C. § 1503). An “effort to influence” a proceeding can qualify as an endeavor to obstruct
justice even if the effort was “subtle or circuitous” and “however cleverly or with whatever
cloaking of purpose” it was made. United States v. Roe, 529 F.2d 629, 632 (4th Cir. 1975); see
also United States v. Quattrone, 441 F.3d 153, 173 (2d Cir. 2006). The verbs “‘obstruct or impede’
are broad” and “can refer to anything that blocks, makes difficult, or hinders.” Marinello v. United
States, 138 S. Ct. 1101, 1106 (2018) (internal brackets and quotation marks omitted).

An improper motive can render an actor’s conduct criminal even when the conduct would
otherwise be lawful and within the actor’s authority. See United States v. Cueto, 151 F.3d 620,
631 (7th Cir. 1998) (affirming obstruction conviction of a criminal defense attorney for “litigation-
related conduct”); United States v. Cintolo, 818 F.2d 980, 992 (1st Cir. 1987) (“any act by any
party—whether lawful or unlawful on its face—may abridge § 1503 if performed with a corrupt
motive”).

Nexus to a pending or contemplated official proceeding. Obstruction-of-justice law


generally requires a nexus, or connection, to an official proceeding. In Section 1503, the nexus
must be to pending “judicial or grand jury proceedings.” United States v. Aguilar, 515 U.S. 593,

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599 (1995). In Section 1505, the nexus can include a connection to a “pending” federal agency
proceeding or a congressional inquiry or investigation. Under both statutes, the government must
demonstrate “a relationship in time, causation, or logic” between the obstructive act and the
proceeding or inquiry to be obstructed. Id. at 599; see also Arthur Andersen LLP v. United States,
544 U.S. 696, 707-708 (2005). Section 1512(c) prohibits obstructive efforts aimed at official
proceedings including judicial or grand jury proceedings. 18 U.S.C. § 1515(a)(1)(A). “For
purposes of” Section 1512, “an official proceeding need not be pending or about to be instituted
at the time of the offense.” 18 U.S.C. § 1512(f)(1). Although a proceeding need not already be in
progress to trigger liability under Section 1512(c), a nexus to a contemplated proceeding still must
be shown. United States v. Young, 916 F.3d 368, 386 (4th Cir. 2019); United States v. Petruk, 781
F.3d 438, 445 (8th Cir. 2015); United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009);
United States v. Reich, 479 F.3d 179, 186 (2d Cir. 2007). The nexus requirement narrows the
scope of obstruction statutes to ensure that individuals have “fair warning” of what the law
proscribes. Aguilar, 515 U.S. at 600 (internal quotation marks omitted).

The nexus showing has subjective and objective components. As an objective matter, a
defendant must act “in a manner that is likely to obstruct justice,” such that the statute “excludes
defendants who have an evil purpose but use means that would only unnaturally and improbably
be successful.” Aguilar, 515 U.S. at 601-602 (emphasis added; internal quotation marks omitted).
“[T]he endeavor must have the natural and probable effect of interfering with the due
administration of justice.” Id. at 599 (citation and internal quotation marks omitted). As a
subjective matter, the actor must have “contemplated a particular, foreseeable proceeding.”
Petruk, 781 F.3d at 445-446. A defendant need not directly impede the proceeding. Rather, a
nexus exists if “discretionary actions of a third person would be required to obstruct the judicial
proceeding if it was foreseeable to the defendant that the third party would act on the [defendant’s]
communication in such a way as to obstruct the judicial proceeding.” United States v. Martinez,
862 F.3d 223, 238 (2d Cir. 2017) (brackets, ellipses, and internal quotation marks omitted).

Corruptly. The word “corruptly” provides the intent element for obstruction of justice and
means acting “knowingly and dishonestly” or “with an improper motive.” United States v.
Richardson, 676 F.3d 491, 508 (5th Cir. 2012); United States v. Gordon, 710 F.3d 1124, 1151
(10th Cir. 2013) (to act corruptly means to “act[] with an improper purpose and to engage in
conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct” the
relevant proceeding) (some quotation marks omitted); see 18 U.S.C. § 1515(b) (“As used in section
1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing
another.”); see also Arthur Andersen, 544 U.S. at 705-706 (interpreting “corruptly” to mean
“wrongful, immoral, depraved, or evil” and holding that acting “knowingly . . . corruptly” in 18
U.S.C. § 1512(b) requires “consciousness of wrongdoing”). The requisite showing is made when
a person acted with an intent to obtain an “improper advantage for [him]self or someone else,
inconsistent with official duty and the rights of others.” BALLENTINE’S LAW DICTIONARY 276 (3d
ed. 1969); see United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015); Aguilar, 515 U.S. at
616 (Scalia, J., concurring in part and dissenting in part) (characterizing this definition as the
“longstanding and well-accepted meaning” of “corruptly”).

Witness tampering. A more specific provision in Section 1512 prohibits tampering with a
witness. See 18 U.S.C. § 1512(b)(1), (3) (making it a crime to “knowingly use[] intimidation . . .
or corruptly persuade[] another person,” or “engage[] in misleading conduct towards another

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person,” with the intent to “influence, delay, or prevent the testimony of any person in an official
proceeding” or to “hinder, delay, or prevent the communication to a law enforcement officer . . .
of information relating to the commission or possible commission of a Federal offense”). To
establish corrupt persuasion, it is sufficient that the defendant asked a potential witness to lie to
investigators in contemplation of a likely federal investigation into his conduct. United States v.
Edlind, 887 F.3d 166, 174 (4th Cir. 2018); United States v. Sparks, 791 F.3d 1188, 1191-1192
(10th Cir. 2015); United States v. Byrne, 435 F.3d 16, 23-26 (1st Cir. 2006); United States v.
LaShay, 417 F.3d 715, 718-719 (7th Cir. 2005); United States v. Burns, 298 F.3d 523, 539-540
(6th Cir. 2002); United States v. Pennington, 168 F.3d 1060, 1066 (8th Cir. 1999). The
“persuasion” need not be coercive, intimidating, or explicit; it is sufficient to “urge,” “induce,”
“ask[],” “argu[e],” “giv[e] reasons,” Sparks, 791 F.3d at 1192, or “coach[] or remind[] witnesses
by planting misleading facts,” Edlind, 887 F.3d at 174. Corrupt persuasion is shown “where a
defendant tells a potential witness a false story as if the story were true, intending that the witness
believe the story and testify to it.” United States v. Rodolitz, 786 F.2d 77, 82 (2d Cir. 1986); see
United States v. Gabriel, 125 F.3d 89, 102 (2d Cir. 1997). It also covers urging a witness to recall
a fact that the witness did not know, even if the fact was actually true. See LaShay, 417 F.3d at
719. Corrupt persuasion also can be shown in certain circumstances when a person, with an
improper motive, urges a witness not to cooperate with law enforcement. See United States v.
Shotts, 145 F.3d 1289, 1301 (11th Cr. 1998) (telling Secretary “not to [say] anything [to the FBI]
and [she] would not be bothered”).

When the charge is acting with the intent to hinder, delay, or prevent the communication
of information to law enforcement under Section 1512(b)(3), the “nexus” to a proceeding inquiry
articulated in Aguilar—that an individual have “knowledge that his actions are likely to affect the
judicial proceeding,” 515 U.S. at 599—does not apply because the obstructive act is aimed at the
communication of information to investigators, not at impeding an official proceeding.

Acting “knowingly . . . corruptly” requires proof that the individual was “conscious of
wrongdoing.” Arthur Andersen, 544 U.S. at 705-706 (declining to explore “[t]he outer limits of
this element” but indicating that an instruction was infirm where it permitted conviction even if
the defendant “honestly and sincerely believed that [the] conduct was lawful”). It is an affirmative
defense that “the conduct consisted solely of lawful conduct and that the defendant’s sole intention
was to encourage, induce, or cause the other person to testify truthfully.” 18 U.S.C. § 1512(e).

Attempts and endeavors. Section 1512(c)(2) covers both substantive obstruction offenses
and attempts to obstruct justice. Under general principles of attempt law, a person is guilty of an
attempt when he has the intent to commit a substantive offense and takes an overt act that
constitutes a substantial step towards that goal. See United States v. Resendiz-Ponce, 549 U.S.
102, 106-107 (2007). “[T]he act [must be] substantial, in that it was strongly corroborative of the
defendant’s criminal purpose.” United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). While
“mere abstract talk” does not suffice, any “concrete and specific” acts that corroborate the
defendant’s intent can constitute a “substantial step.” United States v. Irving, 665 F.3d 1184, 1198-
1205 (10th Cir. 2011). Thus, “soliciting an innocent agent to engage in conduct constituting an
element of the crime” may qualify as a substantial step. Model Penal Code § 5.01(2)(g); see United
States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007).

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The omnibus clause of 18 U.S.C. § 1503 prohibits an “endeavor” to obstruct justice, which
sweeps more broadly than Section 1512’s attempt provision. See United States v. Sampson, 898
F.3d 287, 302 (2d Cir. 2018); United States v. Leisure, 844 F.2d 1347, 1366-1367 (8th Cir. 1988)
(collecting cases). “It is well established that a[n] [obstruction-of-justice] offense is complete
when one corruptly endeavors to obstruct or impede the due administration of justice; the
prosecution need not prove that the due administration of justice was actually obstructed or
impeded.” United States v. Davis, 854 F.3d 1276, 1292 (11th Cir. 2017) (internal quotation marks
omitted).

B. Investigative and Evidentiary Considerations

After the appointment of the Special Counsel, this Office obtained evidence about the
following events relating to potential issues of obstruction of justice involving the President:

(a) The President’s January 27, 2017 dinner with former FBI Director James Comey in which
the President reportedly asked for Comey’s loyalty, one day after the White House had
been briefed by the Department of Justice on contacts between former National Security
Advisor Michael Flynn and the Russian Ambassador;

(b) The President’s February 14, 2017 meeting with Comey in which the President reportedly
asked Comey not to pursue an investigation of Flynn;

(c) The President’s private requests to Comey to make public the fact that the President was
not the subject of an FBI investigation and to lift what the President regarded as a cloud;

(d) The President’s outreach to the Director of National Intelligence and the Directors of the
National Security Agency and the Central Intelligence Agency about the FBI’s Russia
investigation;

(e) The President’s stated rationales for terminating Comey on May 9, 2017, including
statements that could reasonably be understood as acknowledging that the FBI’s Russia
investigation was a factor in Comey’s termination; and

(f) The President’s reported involvement in issuing a statement about the June 9, 2016 Trump
Tower meeting between Russians and senior Trump Campaign officials that said the
meeting was about adoption and omitted that the Russians had offered to provide the
Trump Campaign with derogatory information about Hillary Clinton.

Taking into account that information and our analysis of applicable statutory and constitutional
principles (discussed below in Volume II, Section III, infra), we determined that there was a
sufficient factual and legal basis to further investigate potential obstruction-of-justice issues
involving the President.

Many of the core issues in an obstruction-of-justice investigation turn on an individual’s


actions and intent. We therefore requested that the White House provide us with documentary
evidence in its possession on the relevant events. We also sought and obtained the White House’s
concurrence in our conducting interviews of White House personnel who had relevant information.
And we interviewed other witnesses who had pertinent knowledge, obtained documents on a

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voluntaiy basis when possible, and used legal process where appropriate. These investigative steps
allowed us to gather a substantial amount of evidence.

We also sought a voluntaiy interview with the President.


discussion the President declined to be interviewed. (b)(3)-1

During the course of our discussions,


the President did agree to answer written questions on certain Russia-related topics, and he
provided us with answers. He did not similarly agree to provide written answers to questions on
obstruction topics or questions on events during the tr·ansition. Ultimately, while we believed that
we had the authority and legal justification to issue a grandjmy subpoena to obtain the President's
testimony, we chose not to do so. We made that decision in view of the substantial delay that such
an investigative step would likely produce at a late stage in our investigation. We also assessed
that based on the significant body of evidence we had ak eady obtained of the President's actions
and his public and private statements describing or explaining those actions, we had sufficient
evidence to understand relevant events and to make certain assessments without the President's
testimony. The Office 's decision-making process on this issue is described in more detail in
Appendix C, infra, in a note that precedes the President's written responses.

In assessing the evidence we obtained, we relied on common principles that apply in any
investigation. The issue of criminal intent is often infened from circumstantial evidence. See,
e.g. , United States v. Croteau, 819 F.3d 1293, 1305 (11th Cir. 2016) ("[G]uilty knowledge can
rai·ely be established by direct evidence . . . . Therefore, mens rea elements such as knowledge or
intent may be proved by circumstantial evidence.") (internal quotation mai·ks omitted); United
States v. Robinson, 702 F.3d 22, 36 (2d Cir. 2012) ("The government's case rested on
circumstantial evidence, but the mens rea elements of knowledge and intent can often be proved
through circumstantial evidence and the reasonable inferences drawn therefrom.") (internal
quotation mai·ks omitted). The principle that intent can be infened from circumstantial evidence
is a necessity in criminal cases, given the right of a subject to assert his privilege against compelled
self-incrimination under the Fifth Amendment and therefore decline to testify. Accordingly,
detenninations on intent are frequently reached without the opportunity to interview an
investigato1y subject.

Obstr11ction-of-justice cases are consistent with this rnle. See, e.g. , Ed/ind, 887 F.3d at
174, 176 (relying on "significant circmnstantial evidence that [the defendant] was conscious of her
wrongdoing" in an obstruction case; "[b]ecause evidence of intent will almost always be
circumstantial, a defendant may be found culpable where the reasonable and foreseeable
consequences of her acts ai·e the obstr11ction of justice") (internal quotation mai·ks, ellipses, and
punctuation omitted); Quattrone, 441 F.3d at 173-174. Circumstantial evidence that illuminates
intent may include a pattern of potentially obstr11ctive acts. Fed. R. Evid. 404(b) ("Evidence of a
crime, wrong, or other act ... may be admissible ... [to] prov[e] motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident."); see, e.g., United
States v. Frankhauser, 80 F.3d 641 , 648-650 (1st Cir. 1996); United States v. Arnold, 773 F.2d
823, 832-834 (7th Cir. 1985); Cintolo, 818 F.2d at 1000.

Credibility judgments may also be made based on objective facts and circumstantial
evidence. Standai·d jmy instructions highlight a variety of factors that are often relevant in

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assessing credibility. These include whether a witness had a reason not to tell the truth; whether
the witness had a good memory; whether the witness had the opportunity to observe the events
about which he testified; whether the witness’s testimony was corroborated by other witnesses;
and whether anything the witness said or wrote previously contradicts his testimony. See, e.g.,
First Circuit Pattern Jury Instructions § 1.06 (2018); Fifth Circuit Pattern Jury Instructions
(Criminal Cases) § 1.08 (2012); Seventh Circuit Pattern Jury Instruction § 3.01 (2012).

In addition to those general factors, we took into account more specific factors in assessing
the credibility of conflicting accounts of the facts. For example, contemporaneous written notes
can provide strong corroborating evidence. See United States v. Nobles, 422 U.S. 225, 232 (1975)
(the fact that a “statement appeared in the contemporaneously recorded report . . . would tend
strongly to corroborate the investigator’s version of the interview”). Similarly, a witness’s
recitation of his account before he had any motive to fabricate also supports the witness’s
credibility. See Tome v. United States, 513 U.S. 150, 158 (1995) (“A consistent statement that
predates the motive is a square rebuttal of the charge that the testimony was contrived as a
consequence of that motive.”). Finally, a witness’s false description of an encounter can imply
consciousness of wrongdoing. See Al-Adahi v. Obama, 613 F.3d 1102, 1107 (D.C. Cir. 2010)
(noting the “well-settled principle that false exculpatory statements are evidence—often strong
evidence—of guilt”). We applied those settled legal principles in evaluating the factual results of
our investigation.

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II. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION

This section of the report details the evidence we obtained. We first provide an overview
of how Russia became an issue in the 2016 presidential campaign, and how candidate Trump
responded. We then turn to the key events that we investigated: the President’s conduct concerning
the FBI investigation of Michael Flynn; the President’s reaction to public confirmation of the FBI’s
Russia investigation; events leading up to and surrounding the termination of FBI Director Comey;
efforts to terminate the Special Counsel; efforts to curtail the scope of the Special Counsel’s
investigation; efforts to prevent disclosure of information about the June 9, 2016 Trump Tower
meeting between Russians and senior campaign officials; efforts to have the Attorney General
unrecuse; and conduct towards McGahn, Cohen, and other witnesses.

We summarize the evidence we found and then analyze it by reference to the three statutory
obstruction-of-justice elements: obstructive act, nexus to a proceeding, and intent. We focus on
elements because, by regulation, the Special Counsel has “jurisdiction . . . to investigate . . . federal
crimes committed in the course of, and with intent to interfere with, the Special Counsel’s
investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of
witnesses.” 28 C.F.R. § 600.4(a). Consistent with our jurisdiction to investigate federal
obstruction crimes, we gathered evidence that is relevant to the elements of those crimes and
analyzed them within an elements framework—while refraining from reaching ultimate
conclusions about whether crimes were committed, for the reasons explained above. This section
also does not address legal and constitutional defenses raised by counsel for the President; those
defenses are analyzed in Volume II, Section III, infra.

A. The Campaign’s Response to Reports About Russian Support for Trump

During the 2016 campaign, the media raised questions about a possible connection between
the Trump Campaign and Russia.7 The questions intensified after WikiLeaks released politically
damaging Democratic Party emails that were reported to have been hacked by Russia. Trump
responded to questions about possible connections to Russia by denying any business involvement
in Russia—even though the Trump Organization had pursued a business project in Russia as late
as June 2016. Trump also expressed skepticism that Russia had hacked the emails at the same
time as he and other Campaign advisors privately sought information from Roger Stone about any
further planned WikiLeaks releases. After the election, when questions persisted about possible
links between Russia and the Trump Campaign, the President-Elect continued to deny any
connections to Russia and privately expressed concerns that reports of Russian election
interference might lead the public to question the legitimacy of his election.8

7
This section summarizes and cites various news stories not for the truth of the information
contained in the stories, but rather to place candidate Trump’s response to those stories in context. Volume
I of this report analyzes the underlying facts of several relevant events that were reported on by the media
during the campaign.
8
As discussed in Volume I, while the investigation identified numerous links between individuals
with ties to the Russian government and individuals associated with the Trump Campaign, the evidence
was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with
representatives of the Russian government to interfere in the 2016 election.

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1. Press Reports Allege Links Between the Trump Campaign and Russia

On June 16, 2015, Donald J. Trump declared his intent to seek nomination as the
Republican candidate for President.9 By early 2016, he distinguished himself among Republican
candidates by speaking of closer ties with Russia,10 saying he would get along well with Russian
President Vladimir Putin,11 questioning whether the NATO alliance was obsolete,12 and praising
Putin as a “strong leader.”13 The press reported that Russian political analysts and commentators
perceived Trump as favorable to Russia.14

Beginning in February 2016 and continuing through the summer, the media reported that
several Trump campaign advisors appeared to have ties to Russia. For example, the press reported
that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow
in December 2015 and that Flynn had appeared regularly on RT as an analyst.15 The press also
reported that foreign policy advisor Carter Page had ties to a Russian state-run gas company,16 and
that campaign chairman Paul Manafort had done work for the “Russian-backed former Ukrainian
president Viktor Yanukovych.”17 In addition, the press raised questions during the Republican

9
@realDonaldTrump 6/16/15 (11:57 a.m. ET) Tweet.
10
See, e.g., Meet the Press Interview with Donald J. Trump, NBC (Dec. 20, 2015) (Trump: “I think
it would be a positive thing if Russia and the United States actually got along”); Presidential Candidate
Donald Trump News Conference, Hanahan, South Carolina, C-SPAN (Feb. 15, 2016) (“You want to make
a good deal for the country, you want to deal with Russia.”).
11
See, e.g., Anderson Cooper 360 Degrees, CNN (July 8, 2015) (“I think I get along with [Putin]
fine.”); Andrew Rafferty, Trump Says He Would “Get Along Very Well” With Putin, NBC (July 30, 2015)
(quoting Trump as saying, “I think I would get along very well with Vladimir Putin.”).
12
See, e.g., @realDonaldTrump Tweet 3/24/16 (7:47 a.m. ET); @realDonaldTrump Tweet 3/24/16
(7:59 a.m. ET).
13
See, e.g., Meet the Press Interview with Donald J. Trump, NBC (Dec. 20, 2015) (“[Putin] is a
strong leader. What am I gonna say, he’s a weak leader? He’s making mincemeat out of our President.”);
Donald Trump Campaign Rally in Vandalia, Ohio, C-SPAN (Mar. 12, 2016) (“I said [Putin] was a strong
leader, which he is. I mean, he might be bad, he might be good. But he’s a strong leader.”).
14
See, e.g., Andrew Osborn, From Russia with love: why the Kremlin backs Trump, Reuters (Mar.
24, 2016); Robert Zubrin, Trump: The Kremlin’s Candidate, National Review (Apr. 4, 2016).
15
See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-U.S. Lieutenant General
who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump’s financial ties
to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters
pertaining to Flynn are described in Volume I, Section IV.B.7, supra.
16
See, e.g., Zachary Mider, Trump’s New Russia Advisor Has Deep Ties to Kremlin’s Gazprom,
Bloomberg (Mar. 30, 2016); Julia Iofee, Who is Carter Page?, Politico (Sep. 23, 2016). Certain matters
pertaining to Page are described in Volume I, Section IV.A.3, supra.
17
Tracy Wilkinson, In a shift, Republican platform doesn’t call for arming Ukraine against Russia,
spurring outrage, Los Angeles Times (July 21, 2016); Josh Rogin, Trump campaign guts GOP’s anti-
Russia stance on Ukraine, Washington Post (July 18, 2016).

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National Convention about the Trump Campaign’s involvement in changing the Republican
platform’s stance on giving “weapons to Ukraine to fight Russian and rebel forces.”18

2. The Trump Campaign Reacts to WikiLeaks’s Release of Hacked Emails

On June 14, 2016, a cybersecurity firm that had conducted in-house analysis for the
Democratic National Committee (DNC) posted an announcement that Russian government
hackers had infiltrated the DNC’s computer and obtained access to documents.19

On July 22, 2016, the day before the Democratic National Convention, WikiLeaks posted
thousands of hacked DNC documents revealing sensitive internal deliberations.20 Soon thereafter,
Hillary Clinton’s campaign manager publicly contended that Russia had hacked the DNC emails
and arranged their release in order to help candidate Trump.21 On July 26, 2016, the New York
Times reported that U.S. “intelligence agencies ha[d] told the White House they now have ‘high
confidence’ that the Russian government was behind the theft of emails and documents from the
Democratic National Committee.”22

Within the Trump Campaign, aides reacted with enthusiasm to reports of the hacks.23
Trump associate Roger Stone had predicted and discussed with Campaign officials that WikiLeaks
would release the hacked material.24 Some witnesses said that Trump himself discussed the
possibility of upcoming releases with Stone. Michael Cohen, then-executive vice president of the
Trump Organization and special counsel to Trump, recalled hearing Stone tell Trump during the
summer of 2016 that Stone had just gotten off the phone with Julian Assange and that WikiLeaks
planned to release information soon.25 Cohen recalled that Trump responded, “oh good, alright,”

18
Josh Rogin, Trump campaign guts GOP’s anti-Russia stance on Ukraine, Washington Post,
Opinions (July 18, 2016). The Republican Platform events are described in Volume I, Section IV.A.6,
supra.
19
Bears in the Midst: Intrusion into the Democratic National Committee, CrowdStrike (June 15,
2016) (post originally appearing on June 14, 2016, according to records of the timing provided by
CrowdStrike); Ellen Nakashima, Russian government hackers penetrated DNC, stole opposition research
on Trump, Washington Post (June 14, 2016).
20
Tom Hamburger and Karen Tumulty, WikiLeaks releases thousands of documents about Clinton
and internal deliberations, Washington Post (July 22, 2016).
21
Amber Phillips, Clinton campaign manager: Russians leaked Democrats’ emails to help Donald
Trump, Washington Post (July 24, 2016).
22
David E. Sanger and Eric Schmitt, Spy Agency Consensus Grows That Russia Hacked D.N.C.,
New York Times (July 26, 2016).
23
Gates 4/10/18 302, at 5; Newman 8/23/18 302, at 1.
24
Gates 4/11/18 302, at 2-3 (SM-2180998); Gates 10/25/18 302, at 2; see also Volume I, Section
III.D.1, supra.
25
Cohen 8/7/18 302, at 8; see also Volume I, Section III.D.1, supra. According to Cohen, after
WikiLeaks’s subsequent release of stolen DNC emails on July 22, 2016, Trump said to Cohen words to the
effect of, “I guess Roger was right.” Cohen 9/18/18 302, at 10. Cohen’s role in the candidate’s and later

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and asked Stone to keep him in the loop.26 Manafort said that shortly after WikiLeaks’s July 22,
2016 release of hacked documents, he spoke to Trump and mentioned that Stone had predicted the
release and claimed to have access to WikiLeaks; Manafort recalled that Trump responded that
Manafort should stay in touch with Stone and keep Trump updated.27 Deputy campaign manager
Rick Gates said that Manafort was getting pressure about Stone’s having information and that
Manafort instructed Gates to call Stone and get status updates on upcoming releases.28 Around
the same time, Gates was with Trump on a trip to an airport when Trump spoke by phone with
Stone at length, and shortly after the call ended, Trump told Gates that more releases of damaging
information would be coming.29 Stone’s connections to WikiLeaks were discussed within the
Campaign,30 and in the summer of 2016, the Campaign was planning a communications strategy
based on the possible release of Clinton emails by WikiLeaks.31

3. The Trump Campaign Reacts to Allegations That Russia was Seeking to Aid
Candidate Trump

In the days that followed WikiLeaks’s July 22, 2016 release of hacked DNC emails, the
Trump Campaign publicly rejected suggestions that Russia was seeking to aid candidate Trump.
On July 26, 2016, Trump tweeted that it was “[c]razy” to suggest that Russia was “dealing with
Trump”32 and that “[f]or the record,” he had “ZERO investments in Russia.”33

In a press conference the next day, July 27, 2016, Trump characterized “this whole thing
with Russia” as “a total deflection” and stated that it was “farfetched” and “ridiculous.”34 Trump
said that the assertion that Russia had hacked the emails was unproven, but stated that it would
give him “no pause” if Russia had Clinton’s emails.35 Trump added, “Russia, if you’re listening,
I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded

President’s activities, and his own criminal conduct, is described in Volume II, Section II.K, infra, and in
Volume I, Section IV.A.1, supra.
26
Cohen 8/7/18 302, at 8.
27
(b) (3) . As explained in footnote 197 of Volume (b)(3)-1
I, Section III.D.1.b, supra, this Office has included Manafort’s account of these events because it aligns
with those of other witnesses and is corroborated to that extent.
28
Gates 10/25/18 302, at 4.
29
Gates 10/25/18 302, at 4.
30
Bannon 1/18/19 302, at 3.
31
Gates 4/11/18 302, at 1-2 (SM-2180998); Gates 10/25/18 302, at 2 (messaging strategy was being
formed in June/July timeframe based on claims by Assange on June 12, 2016, and information Stone
provided before the first WikiLeaks release on July 22, 2016).
32
@realDonaldTrump 7/26/16 (6:47 p.m. ET) Tweet.
33
@realDonaldTrump 7/26/16 (6:50 p.m. ET) Tweet.
34
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).
35
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).

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mightily by our press.”36 Trump also said that “there’s nothing that I can think of that I’d rather
do than have Russia friendly as opposed to the way they are right now,” and in response to a
question about whether he would recognize Crimea as Russian territory and consider lifting
sanctions, Trump replied, “We’ll be looking at that. Yeah, we’ll be looking.”37

During the press conference, Trump repeated “I have nothing to do with Russia” five
38
times. He stated that “the closest [he] came to Russia” was that Russians may have purchased a
home or condos from him.39 He said that after he held the Miss Universe pageant in Moscow in
2013 he had been interested in working with Russian companies that “wanted to put a lot of money
into developments in Russia” but “it never worked out.”40 He explained, “[f]rankly, I didn’t want
to do it for a couple of different reasons. But we had a major developer . . . that wanted to develop
property in Moscow and other places. But we decided not to do it.”41 The Trump Organization,
however, had been pursuing a building project in Moscow—the Trump Tower Moscow project—
from approximately September 2015 through June 2016, and the candidate was regularly updated
on developments, including possible trips by Michael Cohen to Moscow to promote the deal and
by Trump himself to finalize it.42

Cohen recalled speaking with Trump after the press conference about Trump’s denial of
any business dealings in Russia, which Cohen regarded as untrue.43 Trump told Cohen that Trump
Tower Moscow was not a deal yet and said, “Why mention it if it is not a deal?”44 According to
Cohen, at around this time, in response to Trump’s disavowal of connections to Russia, campaign

36
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016). Within five hours
of Trump’s remark, a Russian intelligence service began targeting email accounts associated with Hillary
Clinton for possible hacks. See Volume I, Section III, supra. In written answers submitted in this
investigation, the President stated that he made the “Russia, if you’re listening” statement “in jest and
sarcastically, as was apparent to any objective observer.” Written Responses of Donald J. Trump (Nov. 20,
2018), at 13 (Response to Question II, Part (d)).
37
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016). In his written
answers submitted in this investigation, the President said that his statement that “we’ll be looking” at
Crimea and sanctions “did not communicate any position.” Written Responses of Donald J. Trump (Nov.
20, 2018), at 17 (Response to Question IV, Part (g)).
38
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).
39
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).
40
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).
41
Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).
42
The Trump Tower Moscow project and Trump’s involvement in it is discussed in detail in
Volume I, Section IV.A.1, supra, and Volume II, Section II.K, infra.
43
Cohen 9/18/18 302, at 4.
44
Cohen 9/18/18 302, at 4-5.

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advisors had developed a “party line” that Trump had no business with Russia and no connections
to Russia.45

In addition to denying any connections with Russia, the Trump Campaign reacted to reports
of Russian election interference in aid of the Campaign by seeking to distance itself from Russian
contacts. For example, in August 2016, foreign policy advisor J.D. Gordon declined an invitation
to Russian Ambassador Sergey Kislyak’s residence because the timing was “not optimal” in view
of media reports about Russian interference.46 On August 19, 2016, Manafort was asked to resign
amid media coverage scrutinizing his ties to a pro-Russian political party in Ukraine and links to
Russian business.47 And when the media published stories about Page’s connections to Russia in
September 2016, Trump Campaign officials terminated Page’s association with the Campaign and
told the press that he had played “no role” in the Campaign.48

On October 7, 2016, WikiLeaks released the first set of emails stolen by a Russian
intelligence agency from Clinton Campaign chairman John Podesta.49 The same day, the federal
government announced that “the Russian Government directed the recent compromises of e-mails
from US persons and institutions, including from US political organizations.”50 The government
statement directly linked Russian hacking to the releases on WikiLeaks, with the goal of interfering
with the presidential election, and concluded “that only Russia’s senior-most officials could have
authorized these activities” based on their “scope and sensitivity.”51

On October 11, 2016, Podesta stated publicly that the FBI was investigating Russia’s
hacking and said that candidate Trump might have known in advance that the hacked emails were
going to be released.52 Vice Presidential Candidate Mike Pence was asked whether the Trump

45
Cohen 11/20/18 302, at 1; Cohen 9/18/18 302, at 3-5. The formation of the “party line” is
described in greater detail in Volume II, Section II.K, infra.
46
DJTFP00004953 (8/8/16 Email, Gordon to Pchelyakov) (stating that “[t]hese days are not
optimal for us, as we are busily knocking down a stream of false media stories”). The invitation and
Gordon’s response are discussed in Volume I, Section IV.A.7.a, supra.
47
See, e.g., Amber Phillips, Paul Manafort’s complicated ties to Ukraine, explained, Washington
Post (Aug. 19, 2016) (“There were also a wave of fresh headlines dealing with investigations into
[Manafort’s] ties to a pro-Russian political party in Ukraine.”); Tom Winter & Ken Dilanian, Donald Trump
Aide Paul Manafort Scrutinized for Russian Business Ties, NBC (Aug. 18, 2016). Relevant events
involving Manafort are discussed in Volume I, Section IV.A.8, supra.
48
Michael Isikoff, U.S. intel officials probe ties between Trump adviser and Kremlin, Yahoo News
(Sep. 23, 2016); see, e.g., 9/25/16 Email, Hicks to Conway & Bannon; 9/23/16 Email, J. Miller to Bannon
& S. Miller; Page 3/16/17 302, at 2.
49
@WikiLeaks 10/7/16 (4:32 p.m. ET) Tweet.
50
Joint Statement from the Department Of Homeland Security and Office of the Director of
National Intelligence on Election Security, DHS (Oct. 7, 2016).
51
Joint Statement from the Department Of Homeland Security and Office of the Director of
National Intelligence on Election Security, DHS (Oct. 7, 2016).
52
John Wagner & Anne Gearan, Clinton campaign chairman ties email hack to Russians, suggests
Trump had early warning, Washington Post (Oct. 11, 2016).

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Campaign was “in cahoots” with WikiLeaks in releasing damaging Clinton-related information
and responded, “Nothing could be further from the truth.”53

4. After the Election, Trump Continues to Deny Any Contacts or Connections


with Russia or That Russia Aided his Election

On November 8, 2016, Trump was elected President. Two days later, Russian officials
told the press that the Russian government had maintained contacts with Trump’s “immediate
entourage” during the campaign.54 In response, Hope Hicks, who had been the Trump Campaign
spokesperson, said, “We are not aware of any campaign representatives that were in touch with
any foreign entities before yesterday, when Mr. Trump spoke with many world leaders.”55 Hicks
gave an additional statement denying any contacts between the Campaign and Russia: “It never
happened. There was no communication between the campaign and any foreign entity during the
campaign.”56

On December 10, 2016, the press reported that U.S. intelligence agencies had “concluded
that Russia interfered in last month’s presidential election to boost Donald Trump’s bid for the
White House.”57 Reacting to the story the next day, President-Elect Trump stated, “I think it’s
ridiculous. I think it’s just another excuse.”58 He continued that no one really knew who was
responsible for the hacking, suggesting that the intelligence community had “no idea if it’s Russia
or China or somebody. It could be somebody sitting in a bed some place.”59 The President-Elect

53
Louis Nelson, Pence denies Trump camp in cahoots with WikiLeaks, Politico (Oct. 14, 2016).
54
Ivan Nechepurenko, Russian Officials Were in Contact With Trump Allies, Diplomat Says, New
York Times (Nov. 10, 2016) (quoting Russian Deputy Foreign Minister Sergey Ryabkov saying, “[t]here
were contacts” and “I cannot say that all, but a number of them maintained contacts with Russian
representatives”); Jim Heintz & Matthew Lee, Russia eyes better ties with Trump; says contacts underway,
Associated Press (Nov. 11, 2016) (quoting Ryabkov saying, “I don’t say that all of them, but a whole array
of them supported contacts with Russian representatives”).
55
Ivan Nechepurenko, Russian Officials Were in Contact With Trump Allies, Diplomat Says, New
York Times (Nov. 11, 2016) (quoting Hicks).
56
Jim Heintz & Matthew Lee, Russia eyes better ties with Trump; says contacts underway,
Associated Press (Nov. 10, 2016) (quoting Hicks). Hicks recalled that after she made that statement, she
spoke with Campaign advisors Kellyanne Conway, Stephen Miller, Jason Miller, and probably Kushner
and Bannon to ensure it was accurate, and there was no hesitation or pushback from any of them. Hicks
12/8/17 302, at 4.
57
Damien Gayle, CIA concludes Russia interfered to help Trump win election, say reports,
Guardian (Dec. 10, 2016).
58
Chris Wallace Hosts “Fox News Sunday,” Interview with President-Elect Donald Trump, CQ
Newsmaker Transcripts (Dec. 11, 2016).
59
Chris Wallace Hosts “Fox News Sunday,” Interview with President-Elect Donald Trump, CQ
Newsmaker Transcripts (Dec. 11, 2016).

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also said that Democrats were “putting [] out” the story of Russian interference “because they
suffered one of the greatest defeats in the history of politics.”60

On December 18, 2016, Podesta told the press that the election was “distorted by the
Russian intervention” and questioned whether Trump Campaign officials had been “in touch with
the Russians.”61 The same day, incoming Chief of Staff Reince Priebus appeared on Fox News
Sunday and declined to say whether the President-Elect accepted the intelligence community’s
determination that Russia intervened in the election.62 When asked about any contact or
coordination between the Campaign and Russia, Priebus said, “Even this question is insane. Of
course we didn’t interface with the Russians.”63 Priebus added that “this whole thing is a spin job”
and said, “the real question is, why the Democrats . . . are doing everything they can to delegitimize
the outcome of the election?”64

On December 29, 2016, the Obama Administration announced that in response to Russian
cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on
several Russian individuals and entities.65 When first asked about the sanctions, President-Elect
Trump said, “I think we ought to get on with our lives.”66 He then put out a statement that said
“It’s time for our country to move on to bigger and better things,” but indicated that he would meet
with intelligence community leaders the following week for a briefing on Russian interference.67
The briefing occurred on January 6, 2017.68 Following the briefing, the intelligence community
released the public version of its assessment, which concluded with high confidence that Russia
had intervened in the election through a variety of means with the goal of harming Clinton’s

60
Chris Wallace Hosts “Fox News Sunday,” Interview with President-Elect Donald Trump, CQ
Newsmaker Transcripts (Dec. 11, 2016).
61
David Morgan, Clinton campaign: It’s an ‘open question’ if Trump team colluded with Russia,
Reuters Business Insider (Dec. 18, 2016).
62
Chris Wallace Hosts “Fox News Sunday,” Interview with Incoming White House Chief of Staff
Reince Priebus, Fox News (Dec. 18, 2016).
63
Chris Wallace Hosts “Fox News Sunday,” Interview with Incoming White House Chief of Staff
Reince Priebus, Fox News (Dec. 18, 2016).
64
Chris Wallace Hosts “Fox News Sunday,” Interview with Incoming White House Chief of Staff
Reince Priebus, Fox News (Dec. 18, 2016).
65
Statement by the President on Actions in Response to Russian Malicious Cyber Activity and
Harassment, White House (Dec. 29, 2016); see also Missy Ryan et al., Obama administration announces
measures to punish Russia for 2016 election interference, Washington Post (Dec. 29, 2016).
66
John Wagner, Trump on alleged election interference by Russia: ‘Get on with our lives,’
Washington Post (Dec. 29, 2016).
67
Missy Ryan et al., Obama administration announces measures to punish Russia for 2016 election
interference, Washington Post (Dec. 29, 2016).
68
Comey 11/15/17 302, at 3.

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electability.69 The assessment further concluded with high confidence that Putin and the Russian
government had developed a clear preference for Trump.70

Several days later, BuzzFeed published unverified allegations compiled by former British
intelligence officer Christopher Steele during the campaign about candidate Trump’s Russia
connections under the headline “These Reports Allege Trump Has Deep Ties To Russia.”71 In a
press conference the next day, the President-Elect called the release “an absolute disgrace” and
said, “I have no dealings with Russia. I have no deals that could happen in Russia, because we’ve
stayed away. . . . So I have no deals, I have no loans and I have no dealings. We could make deals
in Russia very easily if we wanted to, I just don’t want to because I think that would be a conflict.”72

Several advisors recalled that the President-Elect viewed stories about his Russian
connections, the Russia investigations, and the intelligence community assessment of Russian
interference as a threat to the legitimacy of his electoral victory.73 Hicks, for example, said that
the President-Elect viewed the intelligence community assessment as his “Achilles heel” because,
even if Russia had no impact on the election, people would think Russia helped him win, taking
away from what he had accomplished.74 Sean Spicer, the first White House communications
director, recalled that the President thought the Russia story was developed to undermine the
legitimacy of his election.75 Gates said the President viewed the Russia investigation as an attack
on the legitimacy of his win.76 And Priebus recalled that when the intelligence assessment came
out, the President-Elect was concerned people would question the legitimacy of his win.77

69
Office of the Director of National Intelligence, Russia’s Influence Campaign Targeting the 2016
US Presidential Election, at 1 (Jan. 6, 2017).
70
Office of the Director of National Intelligence, Russia’s Influence Campaign Targeting the 2016
US Presidential Election, at 1 (Jan. 6, 2017).
71
Ken Bensinger et al., These Reports Allege Trump Has Deep Ties To Russia, BuzzFeed (Jan. 10,
2017).
72
Donald Trump’s News Conference: Full Transcript and Video, New York Times (Jan. 11,
2017), available at https://www.nytimes.com/2017/01/11/us/politics/trump-press-conference-
transcript.html.
73
Priebus 10/13/17 302, at 7; Hicks 3/13/18 302, at 18; Spicer 10/16/17 302, at 6; Bannon 2/14/18
302, at 2; Gates 4/18/18 302, at 3; see Pompeo 6/28/17 302, at 2 (the President believed that the purpose of
the Russia investigation was to delegitimize his presidency).
74
Hicks 3/13/18 302, at 18.
75
Spicer 10/17/17 302, at 6.
76
Gates 4/18/18 302, at 3.
77
Priebus 10/13/17 302, at 7.

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B. The President’s Conduct Concerning the Investigation of Michael Flynn

Overview

During the presidential transition, incoming National Security Advisor Michael Flynn had
two phone calls with the Russian Ambassador to the United States about the Russian response to
U.S. sanctions imposed because of Russia’s election interference. After the press reported on
Flynn’s contacts with the Russian Ambassador, Flynn lied to incoming Administration officials
by saying he had not discussed sanctions on the calls. The officials publicly repeated those lies in
press interviews. The FBI, which previously was investigating Flynn for other matters,
interviewed him about the calls in the first week after the inauguration, and Flynn told similar lies
to the FBI. On January 26, 2017, Department of Justice (DOJ) officials notified the White House
that Flynn and the Russian Ambassador had discussed sanctions and that Flynn had been
interviewed by the FBI. The next night, the President had a private dinner with FBI Director James
Comey in which he asked for Comey’s loyalty. On February 13, 2017, the President asked Flynn
to resign. The following day, the President had a one-on-one conversation with Comey in which
he said, “I hope you can see your way clear to letting this go, to letting Flynn go.”

Evidence

1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with


Russian Ambassador Sergey Kislyak

Shortly after the election, President-Elect Trump announced he would appoint Michael
Flynn as his National Security Advisor.78 For the next two months, Flynn played an active role on
the Presidential Transition Team (PTT) coordinating policy positions and communicating with
foreign government officials, including Russian Ambassador to the United States Sergey
Kislyak.79

On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama
Administration announced that it was imposing sanctions and other measures on several Russian
individuals and entities.80 That day, multiple members of the PTT exchanged emails about the
sanctions and the impact they would have on the incoming Administration, and Flynn informed
members of the PTT that he would be speaking to the Russian Ambassador later in the day.81

78
Flynn 11/16/17 302, at 7; President-Elect Donald J. Trump Selects U.S. Senator Jeff Sessions for
Attorney General, Lt. Gen. Michael Flynn as Assistant to the President for National Security Affairs and
U.S. Rep. Mike Pompeo as Director of the Central Intelligence Agency, President-Elect Donald J. Trump
Press Release (Nov. 18, 2016); see also, e.g., Bryan Bender, Trump names Mike Flynn national security
adviser, Politico, (Nov. 17, 2016).
79
Flynn 11/16/17 302, at 8-14; Priebus 10/13/17 302, at 3-5.
80
Statement by the President on Actions in Response to Russian Malicious Cyber Activity and
Harassment, The White House, Office of the Press Secretary (Dec. 29, 2016).
81
12/29/16 Email, O’Brien to McFarland et al.; 12/29/16 Email, Bossert to Flynn et al.; 12/29/16
Email, McFarland to Flynn et al.; SF000001 (12/29/16 Text Message, Flynn to Flaherty) (“Tit for tat w
Russia not good. Russian AMBO reaching out to me today.”); Flynn 1/19/18 302, at 2.

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Flynn, who was in the Dominican Republic at the time, and K.T. McFarland, who was slated to
become the Deputy National Security Advisor and was at the Mar-a-Lago resort in Florida with
the President-Elect and other senior staff, talked by phone about what, if anything, Flynn should
communicate to Kislyak about the sanctions.82 McFarland had spoken with incoming
Administration officials about the sanctions and Russia’s possible responses and thought she had
mentioned in those conversations that Flynn was scheduled to speak with Kislyak.83 Based on
those conversations, McFarland informed Flynn that incoming Administration officials at Mar-a-
Lago did not want Russia to escalate the situation.84 At 4:43 p.m. that afternoon, McFarland sent
an email to several officials about the sanctions and informed the group that “Gen [F]lynn is talking
to russian ambassador this evening.”85

Approximately one hour later, McFarland met with the President-Elect and senior officials
and briefed them on the sanctions and Russia’s possible responses.86 Incoming Chief of Staff
Reince Priebus recalled that McFarland may have mentioned at the meeting that the sanctions
situation could be “cooled down” and not escalated.87 McFarland recalled that at the end of the
meeting, someone may have mentioned to the President-Elect that Flynn was speaking to the
Russian Ambassador that evening.88 McFarland did not recall any response by the President-
Elect.89 Priebus recalled that the President-Elect viewed the sanctions as an attempt by the Obama
Administration to embarrass him by delegitimizing his election.90

Immediately after discussing the sanctions with McFarland on December 29, 2016, Flynn
called Kislyak and requested that Russia respond to the sanctions only in a reciprocal manner,
without escalating the situation.91 After the call, Flynn briefed McFarland on its substance.92
Flynn told McFarland that the Russian response to the sanctions was not going to be escalatory
because Russia wanted a good relationship with the Trump Administration.93 On December 30,
2016, Russian President Vladimir Putin announced that Russia would not take retaliatory measures

82
Statement of Offense at 2-3, United States v. Michael T. Flynn, 1:17-cr-232 (D.D.C. Dec. 1,
2017), Doc. 4 (Flynn Statement of Offense); Flynn 11/17/17 302, at 3-4; Flynn 11/20/17 302, at 3;
McFarland 12/22/17 302, at 6-7.
83
McFarland 12/22/17 302, at 4-7 (recalling discussions about this issue with Bannon and Priebus).
84
Flynn Statement of Offense, at 3; Flynn 11/17/17 302, at 3-4; McFarland 12/22/17 302, at 6-7.
85
12/29/16 Email, McFarland to Flynn et al.
86
McFarland 12/22/17 302, at 7.
87
Priebus 1/18/18 302, at 3.
88
McFarland 12/22/17 302, at 7. Priebus thought it was possible that McFarland had mentioned
Flynn’s scheduled call with Kislyak at this meeting, although he was not certain. Priebus 1/18/18 302, at
3.
89
McFarland 12/22/17 302, at 7.
90
Priebus 1/18/18 302, at 3.
91
Flynn Statement of Offense, at 3; Flynn 11/17/17 302, at 3-4.
92
Flynn Statement of Offense, at 3; McFarland 12/22/17 302, at 7-8; Flynn 11/17/17 302, at 4.
93
McFarland 12/22/17 302, at 8.

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in response to the sanctions at that time and would instead “plan . . . further steps to restore Russian-
US relations based on the policies of the Trump Administration.”94 Following that announcement,
the President-Elect tweeted, “Great move on delay (by V. Putin) - I always knew he was very
smart!”95

On December 31, 2016, Kislyak called Flynn and told him that Flynn’s request had been
received at the highest levels and Russia had chosen not to retaliate in response to the request.96
Later that day, Flynn told McFarland about this follow-up conversation with Kislyak and Russia’s
decision not to escalate the sanctions situation based on Flynn’s request.97 McFarland recalled
that Flynn thought his phone call had made a difference.98 Flynn spoke with other incoming
Administration officials that day, but does not recall whether they discussed the sanctions.99

Flynn recalled discussing the sanctions issue with incoming Administration official
Stephen Bannon the next day.100 Flynn said that Bannon appeared to know about Flynn’s
conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’s
response” to the sanctions.101 On January 3, 2017, Flynn saw the President-Elect in person and
thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific
recollection of telling the President-Elect about the substance of his calls with Kislyak.102

Members of the intelligence community were surprised by Russia’s decision not to retaliate
in response to the sanctions.103 When analyzing Russia’s response, they became aware of Flynn’s
discussion of sanctions with Kislyak.104 Previously, the FBI had opened an investigation of Flynn
based on his relationship with the Russian government.105 Flynn’s contacts with Kislyak became
a key component of that investigation.106

94
Statement by the President of Russia, President of Russia (Dec. 30, 2016) 12/30/16.
95
@realDonaldTrump 12/30/16 (2:41 p.m. ET) Tweet.
96
Flynn 1/19/18 302, at 3; Flynn Statement of Offense, at 3.
97
Flynn 1/19/18 302, at 3; Flynn 11/17/17 302, at 6; McFarland 12/22/17 302, at 10; Flynn
Statement of Offense, at 3.
98
McFarland 12/22/17 302, at 10; see Flynn 1/19/18 302, at 4.
99
Flynn 11/17/17 302, at 5-6.
100
Flynn 1/19/18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not
remember discussing sanctions with him. Bannon 2/12/18 302, at 9.
101
Flynn 11/21/17 302, at 1; Flynn 1/19/18 302, at 5.
102
Flynn 1/19/18 302, at 6; Flynn 11/17/17 302, at 6.
103
McCord 7/17/17 302, at 2.
104
McCord 7/17/17 302, at 2.
105
McCord 7/17/17 302, at 2-3; Comey 11/15/17 302, at 5.
106
McCord 7/17/17 302, at 2-3.

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2. President-Elect Trump is Briefed on the Intelligence Community’s Assessment


of Russian Interference in the Election and Congress Opens Election-
Interference Investigations

On January 6, 2017, as noted in Volume II, Section II.A.4, supra, intelligence officials
briefed President-Elect Trump and the incoming Administration on the intelligence community’s
assessment that Russia had interfered in the 2016 presidential election.107 When the briefing
concluded, Comey spoke with the President-Elect privately to brief him on unverified, personally
sensitive allegations compiled by Steele.108 According to a memorandum Comey drafted
immediately after their private discussion, the President-Elect began the meeting by telling Comey
he had conducted himself honorably over the prior year and had a great reputation.109 The
President-Elect stated that he thought highly of Comey, looked forward to working with him, and
hoped that he planned to stay on as FBI director.110 Comey responded that he intended to continue
serving in that role.111 Comey then briefed the President-Elect on the sensitive material in the
Steele reporting.112 Comey recalled that the President-Elect seemed defensive, so Comey decided

107
Hearing on Russian Election Interference Before the Senate Select Intelligence Committee,
115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at
1-2).
108
Comey 11/15/17 302, at 3; Hearing on Russian Election Interference Before the Senate Select
Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former
Director of the FBI, at 1-2).
109
Comey 1/7/17 Memorandum, at 1. Comey began drafting the memorandum summarizing the
meeting immediately after it occurred. Comey 11/15/17 302, at 4. He finished the memorandum that
evening and finalized it the following morning. Comey 11/15/17 302, at 4.
110
Comey 1/7/17 Memorandum, at 1; Comey 11/15/17 302, at 3. Comey identified several other
occasions in January 2017 when the President reiterated that he hoped Comey would stay on as FBI director.
On January 11, President-Elect Trump called Comey to discuss the Steele reports and stated that he thought
Comey was doing great and the President-Elect hoped he would remain in his position as FBI director.
Comey 11/15/17 302, at 4; Hearing on Russian Election Interference Before the Senate Select Intelligence
Committee, 115th Cong. (June 8, 2017) (testimony of James B. Comey, former Director of the FBI), CQ
Cong. Transcripts, at 90. (“[D]uring that call, he asked me again, ‘Hope you’re going to stay, you’re doing
a great job.’ And I told him that I intended to.”). On January 22, at a White House reception honoring law
enforcement, the President greeted Comey and said he looked forward to working with him. Hearing on
Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017)
(testimony of James B. Comey, former Director of the FBI), CQ Cong. Transcripts, at 22. And as discussed
in greater detail in Volume II, Section II.D, infra, on January 27, the President invited Comey to dinner at
the White House and said he was glad Comey wanted to stay on as FBI Director.
111
Comey 1/7/17 Memorandum, at 1; Comey 11/15/17 302, at 3.
112
Comey 1/7/17 Memorandum, at 1-2; Comey 11/15/17 302, at 3. Comey’s briefing included the
Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving
conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During
the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 2016,
Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of
tapes from Russia but not sure if there’s anything else. Just so you know . . . .” 10/30/16 Text Message,
Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be
held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host

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to assure him that the FBI was not investigating him personally.113 Comey recalled he did not
want the President-Elect to think of the conversation as a “J. Edgar Hoover move.”114

On January 10, 2017, the media reported that Comey had briefed the President-Elect on
the Steele reporting,115 and BuzzFeed News published information compiled by Steele online,
stating that the information included “specific, unverified, and potentially unverifiable allegations
of contact between Trump aides and Russian operatives.”116 The next day, the President-Elect
expressed concern to intelligence community leaders about the fact that the information had leaked
and asked whether they could make public statements refuting the allegations in the Steele
reports.117

In the following weeks, three Congressional committees opened investigations to examine


Russia’s interference in the election and whether the Trump Campaign had colluded with
Russia.118 On January 13, 2017, the Senate Select Committee on Intelligence (SSCI) announced
that it would conduct a bipartisan inquiry into Russian interference in the election, including any
“links between Russia and individuals associated with political campaigns.”119 On January 25,
2017, the House Permanent Select Committee on Intelligence (HPSCI) announced that it had been
conducting an investigation into Russian election interference and possible coordination with the
political campaigns.120 And on February 2, 2017, the Senate Judiciary Committee announced that
it too would investigate Russian efforts to intervene in the election.121

the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump
about the issue after receiving the texts from Rtskhiladze. Cohen 9/12/18 302, at 13. Rtskhiladze said he
was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.
113
Comey 11/15/17 302, at 3-4; Hearing on Russian Election Interference Before the Senate Select
Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former
Director of the FBI, at 2).
114
Comey 11/15/17 302, at 3.
115
See, e.g., Evan Perez et al., Intel chiefs presented Trump with claims of Russian efforts to
compromise him, CNN (Jan. 10, 2017; updated Jan. 12, 2017).
116
Ken Bensinger et al., These Reports Allege Trump Has Deep Ties To Russia, BuzzFeed News
(Jan. 10, 2017).
117
See 1/11/17 Email, Clapper to Comey (“He asked if I could put out a statement. He would prefer
of course that I say the documents are bogus, which, of course, I can’t do.”); 1/12/17 Email, Comey to
Clapper (“He called me at 5 yesterday and we had a very similar conversation.”); Comey 11/15/17 302, at
4-5.
118
See 2016 Presidential Election Investigation Fast Facts, CNN (first published Oct. 12, 2017;
updated Mar. 1, 2019) (summarizing starting dates of Russia-related investigations).
119
Joint Statement on Committee Inquiry into Russian Intelligence Activities, SSCI (Jan. 13, 2017).
120
Joint Statement on Progress of Bipartisan HPSCI Inquiry into Russian Active Measures, HPSCI
(Jan. 25, 2017).
121
Joint Statement from Senators Graham and Whitehouse on Investigation into Russian Influence
on Democratic Nations’ Elections (Feb. 2, 2017).

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3. Flynn Makes False Statements About his Communications with Kislyak to


Incoming Administration Officials, the Media, and the FBI

On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak
communicated on the day the Obama Administration announced the Russia sanctions.122 The
column questioned whether Flynn had said something to “undercut the U.S. sanctions” and
whether Flynn’s communications had violated the letter or spirit of the Logan Act.123

President-Elect Trump called Priebus after the story was published and expressed anger
about it.124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125
Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’s
conversations with Kislyak.126 Flynn recalled that he felt a lot of pressure because Priebus had
spoken to the “boss” and said Flynn needed to “kill the story.”127 Flynn directed McFarland to
call the Washington Post columnist and inform him that no discussion of sanctions had occurred.128
McFarland recalled that Flynn said words to the effect of, “I want to kill the story.”129 McFarland
made the call as Flynn had requested although she knew she was providing false information, and
the Washington Post updated the column to reflect that a “Trump official” had denied that Flynn
and Kislyak discussed sanctions.130

When Priebus and other incoming Administration officials questioned Flynn internally
about the Washington Post column, Flynn maintained that he had not discussed sanctions with
Kislyak.131 Flynn repeated that claim to Vice President-Elect Michael Pence and to incoming press
secretary Sean Spicer.132 In subsequent media interviews in mid-January, Pence, Priebus, and

122
David Ignatius, Why did Obama dawdle on Russia’s hacking?, Washington Post (Jan. 12, 2017).
123
David Ignatius, Why did Obama dawdle on Russia’s hacking?, Washington Post (Jan. 12, 2017).
The Logan Act makes it a crime for “[a]ny citizen of the United States, wherever he may be” to “without
authority of the United States, directly or indirectly commence[] or carr[y] on any correspondence or
intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or
controversies with the United States, or to defeat the measures of the United States.” 18 U.S.C. § 953.
124
Priebus 1/18/18 302, at 6.
125
Priebus 1/18/18 302, at 6.
126
Priebus 1/18/18 302, at 6.
127
Flynn 11/21/17 302, at 1; Flynn 11/20/17 302, at 6.
128
McFarland 12/22/17 302, at 12-13.
129
McFarland 12/22/17 302, at 12.
130
McFarland 12/22/17 302, at 12-13; McFarland 8/29/17 302, at 8; see David Ignatius, Why did
Obama dawdle on Russia’s hacking?, Washington Post (Jan. 12, 2017).
131
Flynn 11/17/17 302, at 1, 8; Flynn 1/19/18 302, at 7; Priebus 10/13/17 302, at 7-8; S. Miller
8/31/17 302, at 8-11.
132
Flynn 11/17/17 302, at 1, 8; Flynn 1/19/18 302, at 7; S. Miller 8/31/17 302, at 10-11.

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Spicer denied that Flynn and Kislyak had discussed sanctions, basing those denials on their
conversations with Flynn.133

The public statements of incoming Administration officials denying that Flynn and Kislyak
had discussed sanctions alarmed senior DOJ officials, who were aware that the statements were
not true.134 Those officials were concerned that Flynn had lied to his colleagues—who in turn had
unwittingly misled the American public—creating a compromise situation for Flynn because the
Department of Justice assessed that the Russian government could prove Flynn lied.135 The FBI
investigative team also believed that Flynn’s calls with Kislyak and subsequent denials about
discussing sanctions raised potential Logan Act issues and were relevant to the FBI’s broader
Russia investigation.136

On January 20, 2017, President Trump was inaugurated and Flynn was sworn in as
National Security Advisor. On January 23, 2017, Spicer delivered his first press briefing and stated
that he had spoken with Flynn the night before, who confirmed that the calls with Kislyak were
about topics unrelated to sanctions.137 Spicer’s statements added to the Department of Justice’s
concerns that Russia had leverage over Flynn based on his lies and could use that derogatory
information to compromise him.138

On January 24, 2017, Flynn agreed to be interviewed by agents from the FBI.139 During
the interview, which took place at the White House, Flynn falsely stated that he did not ask Kislyak
to refrain from escalating the situation in response to the sanctions on Russia imposed by the
Obama Administration.140 Flynn also falsely stated that he did not remember a follow-up
conversation in which Kislyak stated that Russia had chosen to moderate its response to those
sanctions as a result of Flynn’s request.141

133
Face the Nation Interview with Vice President-Elect Pence, CBS (Jan. 15, 2017); Julie
Hirschfield Davis et al., Trump National Security Advisor Called Russian Envoy Day Before Sanctions
Were Imposed, Washington Post (Jan. 13, 2017); Meet the Press Interview with Reince Priebus, NBC (Jan.
15, 2017).
134
Yates 8/15/17 302, at 2-3; McCord 7/17/17 302, at 3-4; McCabe 8/17/17 302, at 5 (DOJ officials
were “really freaked out about it”).
135
Yates 8/15/17 302, at 3; McCord 7/17/17 302, at 4.
136
McCord 7/17/17 302, at 4; McCabe 8/17/17 302, at 5-6.
137
Sean Spicer, White House Daily Briefing, C-SPAN (Jan. 23, 2017).
138
Yates 8/15/17 302, at 4; Axelrod 7/20/17 302, at 5.
139
Flynn Statement of Offense, at 2.
140
Flynn Statement of Offense, at 2.
141
Flynn Statement of Offense, at 2. On December 1, 2017, Flynn admitted to making these false
statements and pleaded guilty to violating 18 U.S.C. § 1001, which makes it a crime to knowingly and
willfully “make[] any materially false, fictitious, or fraudulent statement or representation” to federal law
enforcement officials. See Volume I, Section IV.A.7, supra.

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4. DOJ Officials Notify the White House of Their Concerns About Flynn

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel
Donald McGahn and informed him that she needed to discuss a sensitive matter with him in
person.142 Later that day, Yates and Mary McCord, a senior national security official at the
Department of Justice, met at the White House with McGahn and White House Counsel’s Office
attorney James Burnham.143 Yates said that the public statements made by the Vice President
denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially
compromised position because the Russians would know he had lied.144 Yates disclosed that Flynn
had been interviewed by the FBI.145 She declined to answer a specific question about how Flynn
had performed during that interview,146 but she indicated that Flynn’s statements to the FBI were
similar to the statements he had made to Pence and Spicer denying that he had discussed
sanctions.147 McGahn came away from the meeting with the impression that the FBI had not
pinned Flynn down in lies,148 but he asked John Eisenberg, who served as legal advisor to the
National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and
his contacts with Kislyak.149

That afternoon, McGahn notified the President that Yates had come to the White House to
discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President
asked him to repeat it, so he did.151 McGahn recalled that when he described the FBI interview of
Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there
may not have been a clear violation of 18 U.S.C. § 1001.152 The President asked about Section
1001, and McGahn explained the law to him, and also explained the Logan Act.153 The President

142
Yates 8/15/17 302, at 6.
143
Yates 8/15/17 302, at 6; McCord 7/17/17 302, at 6; SCR015_000198 (2/15/17 Draft
Memorandum to file from the Office of the Counsel to the President).
144
Yates 8/15/17 302, at 6-8; McCord 7/17/17 302, at 6-7; Burnham 11/3/17 302, at 4;
SCR015_000198 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President).
145
McGahn 11/30/17 302, at 5; Yates 8/15/17 302, at 7; McCord 7/17/17 302, at 7; Burnham
11/3/17 302, at 4.
146
Yates 8/15/17 302, at 7; McCord 7/17/17 302, at 7.
147
SCR015_000198 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); Burnham 11/3/17 302, at 4.
148
McGahn 11/30/17 302, at 5.
149
SCR015_000198 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); McGahn 11/30/17 302, at 6, 8.
150
McGahn 11/30/17 302, at 6; SCR015_000278 (White House Counsel’s Office Memorandum
re: “Flynn Tick Tock”) (on January 26, “McGahn IMMEDIATELY advises POTUS”); SCR015_000198
(2/15/17 Draft Memorandum to file from the Office of the Counsel to the President).
151
McGahn 11/30/17 302, at 6.
152
McGahn 11/30/17 302, at 7.
153
McGahn 11/30/17 302, at 7.

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instructed McGahn to work with Priebus and Bannon to look into the matter further and directed
that they not discuss it with any other officials.154 Priebus recalled that the President was angry
with Flynn in light of what Yates had told the White House and said, “not again, this guy, this
stuff.”155

That evening, the President dined with several senior advisors and asked the group what
they thought about FBI Director Comey.156 According to Director of National Intelligence Dan
Coats, who was at the dinner, no one openly advocated terminating Comey but the consensus on
him was not positive.157 Coats told the group that he thought Comey was a good director.158 Coats
encouraged the President to meet Comey face-to-face and spend time with him before making a
decision about whether to retain him.159

5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump
has Dinner with FBI Director Comey

The next day, January 27, 2017, McGahn and Eisenberg discussed the results of
Eisenberg’s initial legal research into Flynn’s conduct, and specifically whether Flynn may have
violated the Espionage Act, the Logan Act, or 18 U.S.C. § 1001.160 Based on his preliminary
research, Eisenberg informed McGahn that there was a possibility that Flynn had violated 18
U.S.C. § 1001 and the Logan Act.161 Eisenberg noted that the United States had never successfully
prosecuted an individual under the Logan Act and that Flynn could have possible defenses, and

154
McGahn 11/30/17 302, at 7; SCR015_000198-99 (2/15/17 Draft Memorandum to file from the
Office of the Counsel to the President).
155
Priebus 10/13/17 302, at 8. 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.
156
Coats 6/14/17 302, at 2.
157
Coats 6/14/17 302, at 2.
158
Coats 6/14/17 302, at 2.
159
Coats 6/14/17 302, at 2.
160
SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); McGahn 11/30/17 302, at 8.
161
SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); Eisenberg 11/29/17 302, at 9.

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told McGahn that he believed it was unlikely that a prosecutor would pursue a Logan Act charge
under the circumstances.162

That same morning, McGahn asked Yates to return to the White House to discuss Flynn
163
again. In that second meeting, McGahn expressed doubts that the Department of Justice would
bring a Logan Act prosecution against Flynn, but stated that the White House did not want to take
action that would interfere with an ongoing FBI investigation of Flynn.164 Yates responded that
Department of Justice had notified the White House so that it could take action in response to the
information provided.165 McGahn ended the meeting by asking Yates for access to the underlying
information the Department of Justice possessed pertaining to Flynn’s discussions with Kislyak.166

Also on January 27, the President called FBI Director Comey and invited him to dinner
that evening.167 Priebus recalled that before the dinner, he told the President something like, “don’t
talk about Russia, whatever you do,” and the President promised he would not talk about Russia
at the dinner.168 McGahn had previously advised the President that he should not communicate
directly with the Department of Justice to avoid the perception or reality of political interference
in law enforcement.169 When Bannon learned about the President’s planned dinner with Comey,
he suggested that he or Priebus also attend, but the President stated that he wanted to dine with
Comey alone.170 Comey said that when he arrived for the dinner that evening, he was surprised
and concerned to see that no one else had been invited.171

162
SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); Eisenberg 11/29/17 302, at 9.
163
SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); McGahn 11/30/17 302, at 8; Yates 8/15/17 302, at 8.
164
Yates 8/15/17 302, at 9; McGahn 11/30/17 302, at 8.
165
Yates 8/15/17 302, at 9; Burnham 11/3/17 302, at 5; see SCR015_00199 (2/15/17 Draft
Memorandum to file from the Office of the Counsel to the President) (“Yates was unwilling to confirm or
deny that there was an ongoing investigation but did indicate that the Department of Justice would not
object to the White House taking action against Flynn.”).
166
Yates 9/15/17 302, at 9; Burnham 11/3/17 302, at 5. In accordance with McGahn’s request, the
Department of Justice made the underlying information available and Eisenberg viewed the information in
early February. Eisenberg 11/29/17 302, at 5; FBI 2/7/17 Electronic Communication, at 1 (documenting
2/2/17 meeting with Eisenberg).
167
Comey 11/15/17 302, at 6; SCR012b_000001 (President’s Daily Diary, 1/27/17); Hearing on
Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017)
(Statement for the Record of James B. Comey, former Director of the FBI, at 2-3).
168
Priebus 10/13/17 302, at 17.
169
See McGahn 11/30/17 302, at 9; Dhillon 11/21/17 302, at 2; Bannon 2/12/18 302, at 17.
170
Bannon 2/12/18 302, at 17.
171
Hearing on Russian Election Interference Before the Senate Select Intelligence Committee,
115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at
3); see Comey 11/15/17 302, at 6.

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Comey provided an account of the dinner in a contemporaneous memo, an interview with


this Office, and congressional testimony. According to Comey’s account of the dinner, the
President repeatedly brought up Comey’s future, asking whether he wanted to stay on as FBI
director.172 Because the President had previously said he wanted Comey to stay on as FBI director,
Comey interpreted the President’s comments as an effort to create a patronage relationship by
having Comey ask for his job.173 The President also brought up the Steele reporting that Comey
had raised in the January 6, 2017 briefing and stated that he was thinking about ordering the FBI
to investigate the allegations to prove they were false.174 Comey responded that the President
should think carefully about issuing such an order because it could create a narrative that the FBI
was investigating him personally, which was incorrect.175 Later in the dinner, the President
brought up Flynn and said, “the guy has serious judgment issues.”176 Comey did not comment on
Flynn and the President did not acknowledge any FBI interest in or contact with Flynn.177

According to Comey’s account, at one point during the dinner the President stated, “I need
loyalty, I expect loyalty.”178 Comey did not respond and the conversation moved on to other
topics, but the President returned to the subject of Comey’s job at the end of the dinner and
repeated, “I need loyalty.”179 Comey responded, “You will always get honesty from me.”180 The

172
Comey 11/15/17 302, at 7; Comey 1/28/17 Memorandum, at 1, 3; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 3).
173
Comey 11/15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select
Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former
Director of the FBI, at 3).
174
Comey 1/28/17 Memorandum, at 3; Hearing on Russian Election Interference Before the Senate
Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey,
former Director of the FBI, at 4).
175
Comey 1/28/17 Memorandum, at 3; Hearing on Russian Election Interference Before the Senate
Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey,
former Director of the FBI, at 4).
176
Comey 1/28/17 Memorandum, at 4; Comey 11/15/17 302, at 7.
177
Comey 1/28/17 Memorandum, at 4; Comey 11/15/17 302, at 7.
178
Comey 1/28/18 Memorandum, at 2; Comey 11/15/17 302, at 7; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 3).
179
Comey 1/28/17 Memorandum, at 3; Comey 11/15/17 302, at 7; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 3-4).
180
Comey 1/28/17 Memorandum, at 3; Comey 11/15/17 302, at 7; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 4).

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President said, “That’s what I want, honest loyalty.”181 Comey said, “You will get that from
me.”182

After Comey’s account of the dinner became public, the President and his advisors disputed
that he had asked for Comey’s loyalty.183 The President also indicated that he had not invited
Comey to dinner, telling a reporter that he thought Comey had “asked for the dinner” because “he
wanted to stay on.”184 But substantial evidence corroborates Comey’s account of the dinner
invitation and the request for loyalty. The President’s Daily Diary confirms that the President
“extend[ed] a dinner invitation” to Comey on January 27.185 With respect to the substance of the
dinner conversation, Comey documented the President’s request for loyalty in a memorandum he
began drafting the night of the dinner;186 senior FBI officials recall that Comey told them about
the loyalty request shortly after the dinner occurred;187 and Comey described the request while

181
Comey 1/28/17 Memorandum, at 3; Comey 11/15/17 302, at 7; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 4).
182
Comey 1/28/17 Memorandum, at 3; Comey 11/15/17 302, at 7; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 4).
183
See, e.g., Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey
Demurred., New York Times (May 11, 2017) (quoting Sarah Sanders as saying, “[The President] would
never even suggest the expectation of personal loyalty”); Ali Vitali, Trump Never Asked for Comey’s
Loyalty, President’s Personal Lawyer Says, NBC (June 8, 2017) (quoting the President’s personal counsel
as saying, “The president also never told Mr. Comey, ‘I need loyalty, I expect loyalty,’ in form or
substance.”); Remarks by President Trump in Press Conference, White House (June 9, 2017) (“I hardly
know the man. I’m not going to say ‘I want you to pledge allegiance.’ Who would do that? Who would
ask a man to pledge allegiance under oath?”). In a private conversation with Spicer, the President stated
that he had never asked for Comey’s loyalty, but added that if he had asked for loyalty, “Who cares?”
Spicer 10/16/17 302, at 4. The President also told McGahn that he never said what Comey said he had.
McGahn 12/12/17 302, at 17.
184
Interview of Donald J. Trump, NBC (May 11, 2017).
185
SCR012b_000001 (President’s Daily Diary, 1/27/17) (reflecting that the President called Comey
in the morning on January 27 and “[t]he purpose of the call was to extend a dinner invitation”). In addition,
two witnesses corroborate Comey’s account that the President reached out to schedule the dinner, without
Comey having asked for it. Priebus 10/13/17 302, at 17 (the President asked to schedule the January 27
dinner because he did not know much about Comey and intended to ask him whether he wanted to stay on
as FBI Director); Rybicki 11/21/18 302, at 3 (recalling that Comey told him about the President’s dinner
invitation on the day of the dinner).
186
Comey 11/15/17 302, at 8; Hearing on Russian Election Interference Before the Senate Select
Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former
Director of the FBI, at 4).
187
McCabe 8/17/17 302, at 9-10; Rybicki 11/21/18 302, at 3. After leaving the White House,
Comey called Deputy Director of the FBI Andrew McCabe, summarized what he and the President had
discussed, including the President’s request for loyalty, and expressed shock over the President’s request.
McCabe 8/17/17 302, at 9. Comey also convened a meeting with his senior leadership team to discuss what
the President had asked of him during the dinner and whether he had handled the request for loyalty
properly. McCabe 8/17/17 302, at 10; Rybicki 11/21/18 302, at 3. In addition, Comey distributed his

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under oath in congressional proceedings and in a subsequent interview with investigators subject
to penalties for lying under 18 U.S.C. § 1001. Comey’s memory of the details of the dinner,
including that the President requested loyalty, has remained consistent throughout.188

6. Flynn’s Resignation

On February 2, 2017, Eisenberg reviewed the underlying information relating to Flynn’s


calls with Kislyak.189 Eisenberg recalled that he prepared a memorandum about criminal statutes
that could apply to Flynn’s conduct, but he did not believe the White House had enough
information to make a definitive recommendation to the President.190 Eisenberg and McGahn
discussed that Eisenberg’s review of the underlying information confirmed his preliminary
conclusion that Flynn was unlikely to be prosecuted for violating the Logan Act.191 Because White
House officials were uncertain what Flynn had told the FBI, however, they could not assess his
exposure to prosecution for violating 18 U.S.C. § 1001.192

The week of February 6, Flynn had a one-on-one conversation with the President in the
Oval Office about the negative media coverage of his contacts with Kislyak.193 Flynn recalled that
the President was upset and asked him for information on the conversations.194 Flynn listed the
specific dates on which he remembered speaking with Kislyak, but the President corrected one of
the dates he listed.195 The President asked Flynn what he and Kislyak discussed and Flynn
responded that he might have talked about sanctions.196

memorandum documenting the dinner to his senior leadership team, and McCabe confirmed that the
memorandum captured what Comey said on the telephone call immediately following the dinner. McCabe
8/17/17 302, at 9-10.
188
There also is evidence that corroborates other aspects of the memoranda Comey wrote
documenting his interactions with the President. For example, Comey recalled, and his memoranda reflect,
that he told the President in his January 6, 2017 meeting, and on phone calls on March 30 and April 11,
2017, that the FBI was not investigating the President personally. On May 8, 2017, during White House
discussions about firing Comey, the President told Rosenstein and others that Comey had told him three
times that he was not under investigation, including once in person and twice on the phone. Gauhar-000058
(Gauhar 5/16/17 Notes).
189
Eisenberg 11/29/17 302, at 5; FBI 2/7/17 Electronic Communication, at 1 (documenting 2/2/17
meeting with Eisenberg).
190
Eisenberg 11/29/17 302, at 6.
191
Eisenberg 11/29/17 302, at 9; SCR015_000200 (2/15/17 Draft Memorandum to file from the
Office of the Counsel to the President).
192
Eisenberg 11/29/17 302, at 9.
193
Flynn 11/21/17 302, at 2.
194
Flynn 11/21/17 302, at 2.
195
Flynn 11/21/17 302, at 2.
196
Flynn 11/21/17 302, at 2-3.

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On February 9, 2017, the Washington Post reported that Flynn discussed sanctions with
Kislyak the month before the President took office.197 After the publication of that story, Vice
President Pence learned of the Department of Justice’s notification to the White House about the
content of Flynn’s calls.198 He and other advisors then sought access to and reviewed the
underlying information about Flynn’s contacts with Kislyak.199 FBI Deputy Director Andrew
McCabe, who provided the White House officials access to the information and was present when
they reviewed it, recalled the officials asking him whether Flynn’s conduct violated the Logan
Act.200 McCabe responded that he did not know, but the FBI was investigating the matter because
it was a possibility.201 Based on the evidence of Flynn’s contacts with Kislyak, McGahn and
Priebus concluded that Flynn could not have forgotten the details of the discussions of sanctions
and had instead been lying about what he discussed with Kislyak.202 Flynn had also told White
House officials that the FBI had told him that the FBI was closing out its investigation of him,203
but Eisenberg did not believe him.204 After reviewing the materials and speaking with Flynn,
McGahn and Priebus concluded that Flynn should be terminated and recommended that course of
action to the President.205

That weekend, Flynn accompanied the President to Mar-a-Lago.206 Flynn recalled that on
February 12, 2017, on the return flight to D.C. on Air Force One, the President asked him whether
he had lied to the Vice President.207 Flynn responded that he may have forgotten details of his
calls, but he did not think he lied.208 The President responded, “Okay. That’s fine. I got it.”209

197
Greg Miller et al., National security adviser Flynn discussed sanctions with Russian
ambassador, despite denials, officials say, Washington Post (Feb. 9, 2017).
198
SCR015_000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); McGahn 11/30/17 302, at 12.
199
SCR015_000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); McCabe 8/17/17 302, at 11-13; Priebus 10/13/17 302, at 10; McGahn 11/30/17 302, at 12.
200
McCabe 8/17/17 302, at 13.
201
McCabe 8/17/17 302, at 13.
202
McGahn 11/30/17 302, at 12; Priebus 1/18/18 302, at 8; Priebus 10/13/17 302, at 10;
SCR015_000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President).
203
McGahn 11/30/17 302, at 11; Eisenberg 11/29/17 302, at 9; Priebus 10/13/17 302, at 11.
204
Eisenberg 11/29/17 302, at 9.
205
SCR015_000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the
President); Priebus 10/13/17 302, at 10; McGahn 11/30/17 302, at 12.
206
Flynn 11/17/17 302, at 8.
207
Flynn 1/19/18 302, at 9; Flynn 11/17/17 302, at 8.
208
Flynn 11/17/17 302, at 8; Flynn 1/19/18 302, at 9.
209
Flynn 1/19/18 302, at 9.

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On February 13, 2017, Priebus told Flynn he had to resign.210 Flynn said he wanted to say
goodbye to the President, so Priebus brought him to the Oval Office.211 Priebus recalled that the
President hugged Flynn, shook his hand, and said, “We’ll give you a good recommendation.
You’re a good guy. We’ll take care of you.”212

Talking points on the resignation prepared by the White House Counsel’s Office and
distributed to the White House communications team stated that McGahn had advised the
President that Flynn was unlikely to be prosecuted, and the President had determined that the issue
with Flynn was one of trust.213 Spicer told the press the next day that Flynn was forced to resign
“not based on a legal issue, but based on a trust issue, [where] a level of trust between the President
and General Flynn had eroded to the point where [the President] felt he had to make a change.”214

7. The President Discusses Flynn with FBI Director Comey

On February 14, 2017, the day after Flynn’s resignation, the President had lunch at the
White House with New Jersey Governor Chris Christie.215 According to Christie, at one point
during the lunch the President said, “Now that we fired Flynn, the Russia thing is over.”216 Christie
laughed and responded, “No way.”217 He said, “this Russia thing is far from over” and “[w]e’ll be
here on Valentine’s Day 2018 talking about this.”218 The President said, “[w]hat do you mean?
Flynn met with the Russians. That was the problem. I fired Flynn. It’s over.”219 Christie recalled
responding that based on his experience both as a prosecutor and as someone who had been
investigated, firing Flynn would not end the investigation.220 Christie said there was no way to
make an investigation shorter, but a lot of ways to make it longer.221 The President asked Christie
what he meant, and Christie told the President not to talk about the investigation even if he was

210
Priebus 1/18/18 302, at 9.
211
Priebus 1/18/18 302, at 9; Flynn 11/17/17 302, at 10.
212
Priebus 1/18/18 302, at 9; Flynn 11/17/17 302, at 10.
213
SCR004_00600 (2/16/17 Email, Burnham to Donaldson).
214
Sean Spicer, White House Daily Briefing, C-SPAN (Feb. 14, 2017). After Flynn pleaded guilty
to violating 18 U.S.C. § 1001 in December 2017, the President tweeted, “I had to fire General Flynn because
he lied to the Vice President and the FBI.” @realDonaldTrump 12/2/17 (12:14 p.m. ET) Tweet. The next
day, the President’s personal counsel told the press that he had drafted the tweet. Maegan Vazquez et al.,
Trump’s lawyer says he was behind President’s tweet about firing Flynn, CNN (Dec. 3, 2017).
215
Christie 2/13/19 302, at 2-3; SCR012b_000022 (President’s Daily Diary, 2/14/17).
216
Christie 2/13/19 302, at 3.
217
Christie 2/13/19 302, at 3.
218
Christie 2/13/19 302, at 3. Christie said he thought when the President said “the Russia thing”
he was referring to not just the investigations but also press coverage about Russia. Christie thought the
more important thing was that there was an investigation. Christie 2/13/19 302, at 4.
219
Christie 2/13/19 302, at 3.
220
Christie 2/13/19 302, at 3.
221
Christie 2/13/19 302, at 3.

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frustrated at times.222 Christie also told the President that he would never be able to get rid of
Flynn, “like gum on the bottom of your shoe.”223

Towards the end of the lunch, the President brought up Comey and asked if Christie was
still friendly with him.224 Christie said he was.225 The President told Christie to call Comey and
tell him that the President “really like[s] him. Tell him he’s part of the team.”226 At the end of the
lunch, the President repeated his request that Christie reach out to Comey.227 Christie had no
intention of complying with the President’s request that he contact Comey.228 He thought the
President’s request was “nonsensical” and Christie did not want to put Comey in the position of
having to receive such a phone call.229 Christie thought it would have been uncomfortable to pass
on that message.230

At 4 p.m. that afternoon, the President met with Comey, Sessions, and other officials for a
homeland security briefing.231 At the end of the briefing, the President dismissed the other
attendees and stated that he wanted to speak to Comey alone.232 Sessions and senior advisor to the
President Jared Kushner remained in the Oval Office as other participants left, but the President

222
Christie 2/13/19 302, at 3-4.
223
Christie 2/13/19 302, at 3. Christie also recalled that during the lunch, Flynn called Kushner,
who was at the lunch, and complained about what Spicer had said about Flynn in his press briefing that
day. Kushner told Flynn words to the effect of, “You know the President respects you. The President cares
about you. I’ll get the President to send out a positive tweet about you later.” Kushner looked at the
President when he mentioned the tweet, and the President nodded his assent. Christie 2/13/19 302, at 3.
Flynn recalled getting upset at Spicer’s comments in the press conference and calling Kushner to say he did
not appreciate the comments. Flynn 1/19/18 302, at 9.
224
Christie 2/13/19 302, at 4.
225
Christie 2/13/19 302, at 4.
226
Christie 2/13/19 302, at 4-5.
227
Christie 2/13/19 302, at 5.
228
Christie 2/13/19 302, at 5.
229
Christie 2/13/19 302, at 5.
230
Christie 2/13/19 302, at 5.
231
SCR012b_000022 (President’s Daily Diary, 2/14/17); Comey 11/15/17 302, at 9.
232
Comey 11/15/17 302, at 10; 2/14/17 Comey Memorandum, at 1; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 4); Priebus 10/13/17 302, at 18 (confirming
that everyone was shooed out “like Comey said” in his June testimony).

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excused them, repeating that he wanted to speak only with Comey.233 At some point after others
had left the Oval Office, Priebus opened the door, but the President sent him away.234

According to Comey’s account of the meeting, once they were alone, the President began
the conversation by saying, “I want to talk about Mike Flynn.”235 The President stated that Flynn
had not done anything wrong in speaking with the Russians, but had to be terminated because he
had misled the Vice President.236 The conversation turned to the topic of leaks of classified
information, but the President returned to Flynn, saying “he is a good guy and has been through a
lot.”237 The President stated, “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.”238 Comey agreed that Flynn “is a good guy,”
but did not commit to ending the investigation of Flynn.239 Comey testified under oath that he
took the President’s statement “as a direction” because of the President’s position and the
circumstances of the one-on-one meeting.240

233
Comey 11/15/17 302, at 10; Comey 2/14/17 Memorandum, at 1; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 4). Sessions recalled that the President asked
to speak to Comey alone and that Sessions was one of the last to leave the room; he described Comey’s
testimony about the events leading up to the private meeting with the President as “pretty accurate.”
Sessions 1/17/18 302, at 6. Kushner had no recollection of whether the President asked Comey to stay
behind. Kushner 4/11/18 302, at 24.
234
Comey 2/14/17 Memorandum, at 2; Priebus 10/13/17 302, at 18.
235
Comey 11/15/17 302, at 10; Comey 2/14/17 Memorandum, at 1; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 4).
236
Comey 2/14/17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate
Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey,
former Director of the FBI, at 5).
237
Comey 11/15/17 302, at 10; Comey 2/14/17 Memorandum, at 2; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 5).
238
Hearing on Russian Election Interference Before the Senate Select Intelligence Committee,
115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at
5); Comey 2/14/17 Memorandum, at 2. Comey said he was highly confident that the words in quotations
in his Memorandum documenting this meeting were the exact words used by the President. He said he
knew from the outset of the meeting that he was about to have a conversation of consequence, and he
remembered the words used by the President and wrote them down soon after the meeting. Comey 11/15/17
302, at 10-11.
239
Comey 11/15/17 302, at 10; Comey 2/14/17 Memorandum, at 2.
240
Hearing on Russian Election Interference Before the Senate Select Intelligence Committee,
115th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 31) (testimony of James B. Comey, former Director
of the FBI). Comey further stated, “I mean, this is the president of the United States, with me alone, saying,
‘I hope’ this. I took it as, this is what he wants me to do.” Id.; see also Comey 11/15/17 302, at 10 (Comey
took the statement as an order to shut down the Flynn investigation).

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Shortly after meeting with the President, Comey began drafting a memorandum
documenting their conversation.241 Comey also met with his senior leadership team to discuss the
President’s request, and they agreed not to inform FBI officials working on the Flynn case of the
President’s statements so the officials would not be influenced by the request.242 Comey also asked
for a meeting with Sessions and requested that Sessions not leave Comey alone with the President
again.243

8. The Media Raises Questions About the President’s Delay in Terminating Flynn

After Flynn was forced to resign, the press raised questions about why the President waited
more than two weeks after the DOJ notification to remove Flynn and whether the President had
known about Flynn’s contacts with Kislyak before the DOJ notification.244 The press also
continued to raise questions about connections between Russia and the President’s campaign.245
On February 15, 2017, the President told reporters, “General Flynn is a wonderful man. I think
he’s been treated very, very unfairly by the media.”246 On February 16, 2017, the President held

241
Comey 11/15/17 302, at 11; Hearing on Russian Election Interference Before the Senate Select
Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the record of James B. Comey, former
Director of the FBI, at 5).
242
Comey 11/15/17 302, at 11; Rybicki 6/9/17 302, at 4; Rybicki 6/22/17 302, at 1; Hearing on
Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017)
(Statement for the record of James B. Comey, former Director of the FBI, at 5-6).
243
Comey 11/15/17 302, at 11; Rybicki 6/9/17 302, at 4-5; Rybicki 6/22/17 302, at 1-2; Sessions
1/17/18 302, at 6 (confirming that later in the week following Comey’s one-on-one meeting with the
President in the Oval Office, Comey told the Attorney General that he did not want to be alone with the
President); Hunt 2/1/18 302, at 6 (within days of the February 14 Oval Office meeting, Comey told Sessions
he did not think it was appropriate for the FBI Director to meet alone with the President); Rybicki 11/21/18
302, at 4 (Rybicki helped to schedule the meeting with Sessions because Comey wanted to talk about his
concerns about meeting with the President alone); Hearing on Russian Election Interference Before the
Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the record of James B.
Comey, former Director of the FBI, at 6).
244
See, e.g., Sean Spicer, White House Daily Briefing, C-SPAN (Feb. 14, 2017) (questions from
the press included, “if [the President] was notified 17 days ago that Flynn had misled the Vice President,
other officials here, and that he was a potential threat to blackmail by the Russians, why would he be kept
on for almost three weeks?” and “Did the President instruct [Flynn] to talk about sanctions with the [Russian
ambassador]?”). Priebus recalled that the President initially equivocated on whether to fire Flynn because
it would generate negative press to lose his National Security Advisor so early in his term. Priebus 1/18/18
302, at 8.
245
E.g., Sean Sullivan et al., Senators from both parties pledge to deepen probe of Russia and the
2016 election, Washington Post (Feb. 14, 2017); Aaron Blake, 5 times Donald Trump’s team denied contact
with Russia, Washington Post (Feb. 15, 2017); Oren Dorell, Donald Trump’s ties to Russia go back 30
years, USA Today (Feb. 15, 2017); Pamela Brown et al., Trump aides were in constant touch with senior
Russian officials during campaign, CNN (Feb. 15, 2017); Austin Wright, Comey briefs senators amid furor
over Trump-Russia ties, Politico (Feb. 17, 2017); Megan Twohey & Scott Shane, A Back-Channel Plan for
Ukraine and Russia, Courtesy of Trump Associates, New York Times (Feb. 19, 2017).
246
Remarks by President Trump and Prime Minister Netanyahu of Israel in Joint Press Conference,
White House (Feb. 15, 2017).

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a press conference and said that he removed Flynn because Flynn “didn’t tell the Vice President
of the United States the facts, and then he didn’t remember. And that just wasn’t acceptable to
me.”247 The President said he did not direct Flynn to discuss sanctions with Kislyak, but “it
certainly would have been okay with me if he did. I would have directed him to do it if I thought
he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”248
In listing the reasons for terminating Flynn, the President did not say that Flynn had lied to him.249
The President also denied having any connection to Russia, stating, “I have nothing to do with
Russia. I told you, I have no deals there. I have no anything.”250 The President also said he “had
nothing to do with” WikiLeaks’s publication of information hacked from the Clinton campaign.251

9. The President Attempts to Have K.T. McFarland Create a Witness Statement


Denying that he Directed Flynn’s Discussions with Kislyak

On February 22, 2017, Priebus and Bannon told McFarland that the President wanted her
to resign as Deputy National Security Advisor, but they suggested to her that the Administration
could make her the ambassador to Singapore.252 The next day, the President asked Priebus to have
McFarland draft an internal email that would confirm that the President did not direct Flynn to call
the Russian Ambassador about sanctions.253 Priebus said he told the President he would only
direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland
into his office to convey the President’s request that she memorialize in writing that the President
did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the
President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no

247
Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).
248
Remarks by President Trump in Press Conference, White House (Feb. 16, 2017). The President
also said that Flynn’s conduct “wasn’t wrong – what he did in terms of the information he saw.” The
President said that Flynn was just “doing the job,” and “if anything, he did something right.”
249
Remarks by President Trump in Press Conference, White House (Feb. 16, 2017); Priebus
1/18/18 302, at 9.
250
Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).
251
Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).
252
KTMF_00000047 (McFarland 2/26/17 Memorandum for the Record); McFarland 12/22/17 302,
at 16-17.
253
See Priebus 1/18/18 302, at 11; see also KTMF_00000048 (McFarland 2/26/17 Memorandum
for the Record); McFarland 12/22/17 302, at 17.
254
Priebus 1/18/18 302, at 11.
255
KTMF_00000048 (McFarland 2/26/17 Memorandum for the Record); McFarland 12/22/17 302,
at 17.

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to the request.256 Priebus understood that McFarland was not comfortable with the President’s
request, and he recommended that she talk to attorneys in the White House Counsel’s Office.257

McFarland then reached out to Eisenberg.258 McFarland told him that she had been fired
from her job as Deputy National Security Advisor and offered the ambassadorship in Singapore
but that the President and Priebus wanted a letter from her denying that the President directed
Flynn to discuss sanctions with Kislyak.259 Eisenberg advised McFarland not to write the
requested letter.260 As documented by McFarland in a contemporaneous “Memorandum for the
Record” that she wrote because she was concerned by the President’s request: “Eisenberg . . .
thought the requested email and letter would be a bad idea – from my side because the email would
be awkward. Why would I be emailing Priebus to make a statement for the record? But it would
also be a bad idea for the President because it looked as if my ambassadorial appointment was in
some way a quid pro quo.”261 Later that evening, Priebus stopped by McFarland’s office and told
her not to write the email and to forget he even mentioned it.262

Around the same time, the President asked Priebus to reach out to Flynn and let him know
that the President still cared about him.263 Priebus called Flynn and said that he was checking in
and that Flynn was an American hero. 264 Priebus thought the President did not want Flynn saying
bad things about him.265

On March 31, 2017, following news that Flynn had offered to testify before the FBI and
congressional investigators in exchange for immunity, the President tweeted, “Mike Flynn should
ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of

256
KTMF_00000047 (McFarland 2/26/17 Memorandum for the Record) (“I said I did not know
whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn
was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”);
McFarland 12/22/17 302, at 17.
257
Priebus 1/18/18 302, at 11.
258
McFarland 12/22/17 302, at 17.
259
McFarland 12/22/17 302, at 17.
260
KTMF_00000048 (McFarland 2/26/17 Memorandum for the Record); McFarland 12/22/17 302,
at 17.
261
KTMF_00000048 (McFarland 2/26/17 Memorandum for the Record); see McFarland 12/22/17
302, at 17.
262
McFarland 12/22/17 302, at 17; KTMF_00000048 (McFarland 2/26/17 Memorandum for the
Record).
263
Priebus 1/18/18 302, at 9.
264
Priebus 1/18/18 302, at 9; Flynn 1/19/18 302, at 9.
265
Priebus 1/18/18 302, at 9-10.

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historic proportion!”266 In late March or early April, the President asked McFarland to pass a
message to Flynn telling him the President felt bad for him and that he should stay strong.267

Analysis

In analyzing the President’s conduct related to the Flynn investigation, the following
evidence is relevant to the elements of obstruction of justice:

a. Obstructive act. According to Comey’s account of his February 14, 2017 meeting
in the Oval Office, the President told him, “I hope you can see your way clear to letting this go, to
letting Flynn go. . . . I hope you can let this go.” In analyzing whether these statements constitute
an obstructive act, a threshold question is whether Comey’s account of the interaction is accurate,
and, if so, whether the President’s statements had the tendency to impede the administration of
justice by shutting down an inquiry that could result in a grand jury investigation and a criminal
charge.

After Comey’s account of the President’s request to “let[] Flynn go” became public, the
President publicly disputed several aspects of the story. The President told the New York Times
that he did not “shoo other people out of the room” when he talked to Comey and that he did not
remember having a one-on-one conversation with Comey.268 The President also publicly denied
that he had asked Comey to “let[] Flynn go” or otherwise communicated that Comey should drop
the investigation of Flynn.269 In private, the President denied aspects of Comey’s account to White
House advisors, but acknowledged to Priebus that he brought Flynn up in the meeting with Comey
and stated that Flynn was a good guy.270 Despite those denials, substantial evidence corroborates
Comey’s account.

266
@realDonaldTrump 3/31/17 (7:04 a.m. ET) Tweet; see Shane Harris at al., Mike Flynn Offers
to Testify in Exchange for Immunity, Wall Street Journal (Mar. 30, 2017).
267
McFarland 12/22/17 302, at 18.
268
Excerpts From The Times’s Interview With Trump, New York Times (July 19, 2017). Hicks
recalled that the President told her he had never asked Comey to stay behind in his office. Hicks 12/8/17
302, at 12.
269
In a statement on May 16, 2017, the White House said: “While the President has repeatedly
expressed his view that General Flynn is a decent man who served and protected our country, the President
has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving
General Flynn. . . . This is not a truthful or accurate portrayal of the conversation between the President
and Mr. Comey.” See Michael S. Schmidt, Comey Memorandum Says Trump Asked Him to End Flynn
Investigation, New York Times (May 16, 2017) (quoting White House statement); @realDonaldTrump
12/3/17 (6:15 a.m. ET) Tweet (“I never asked Comey to stop investigating Flynn. Just more Fake News
covering another Comey lie!”).
270
Priebus recalled that the President acknowledged telling Comey that Flynn was a good guy and
he hoped “everything worked out for him.” Priebus 10/13/17 302, at 19. McGahn recalled that the
President denied saying to Comey that he hoped Comey would let Flynn go, but added that he was “allowed
to hope.” The President told McGahn he did not think he had crossed any lines. McGahn 12/14/17 302, at
8.

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First, Comey wrote a detailed memorandum of his encounter with the President on the
same day it occurred. Comey also told senior FBI officials about the meeting with the President
that day, and their recollections of what Comey told them at the time are consistent with Comey’s
account.271

Second, Comey provided testimony about the President’s request that he “let[] Flynn go”
under oath in congressional proceedings and in interviews with federal investigators subject to
penalties for lying under 18 U.S.C. § 1001. Comey’s recollections of the encounter have remained
consistent over time.

Third, the objective, corroborated circumstances of how the one-on-one meeting came to
occur support Comey’s description of the event. Comey recalled that the President cleared the
room to speak with Comey alone after a homeland security briefing in the Oval Office, that
Kushner and Sessions lingered and had to be shooed out by the President, and that Priebus briefly
opened the door during the meeting, prompting the President to wave him away. While the
President has publicly denied those details, other Administration officials who were present have
confirmed Comey’s account of how he ended up in a one-on-one meeting with the President.272
And the President acknowledged to Priebus and McGahn that he in fact spoke to Comey about
Flynn in their one-on-one meeting.

Fourth, the President’s decision to clear the room and, in particular, to exclude the Attorney
General from the meeting signals that the President wanted to be alone with Comey, which is
consistent with the delivery of a message of the type that Comey recalls, rather than a more
innocuous conversation that could have occurred in the presence of the Attorney General.

Finally, Comey’s reaction to the President’s statements is consistent with the President
having asked him to “let[] Flynn go.” Comey met with the FBI leadership team, which agreed to
keep the President’s statements closely held and not to inform the team working on the Flynn
investigation so that they would not be influenced by the President’s request. Comey also promptly
met with the Attorney General to ask him not to be left alone with the President again, an account
verified by Sessions, FBI Chief of Staff James Rybicki, and Jody Hunt, who was then the Attorney
General’s chief of staff.

A second question is whether the President’s statements, which were not phrased as a direct
order to Comey, could impede or interfere with the FBI’s investigation of Flynn. While the
President said he “hope[d]” Comey could “let[] Flynn go,” rather than affirmatively directing him
to do so, the circumstances of the conversation show that the President was asking Comey to close
the FBI’s investigation into Flynn. First, the President arranged the meeting with Comey so that
they would be alone and purposely excluded the Attorney General, which suggests that the
President meant to make a request to Comey that he did not want anyone else to hear. Second,
because the President is the head of the Executive Branch, when he says that he “hopes” a
subordinate will do something, it is reasonable to expect that the subordinate will do what the
President wants. Indeed, the President repeated a version of “let this go” three times, and Comey

271
Rybicki 11/21/18 302, at 4; McCabe 8/17/17 302, at 13-14.
272
See Priebus 10/13/17 302, at 18; Sessions 1/17/18 302, at 6.

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testified that he understood the President’s statements as a directive, which is corroborated by the
way Comey reacted at the time.

b. Nexus to a proceeding. To establish a nexus to a proceeding, it would be necessary


to show that the President could reasonably foresee and actually contemplated that the
investigation of Flynn was likely to lead to a grand jury investigation or prosecution.

At the time of the President’s one-on-one meeting with Comey, no grand jury subpoenas
had been issued as part of the FBI’s investigation into Flynn. But Flynn’s lies to the FBI violated
federal criminal law, (b) (3) , and resulted in Flynn’s (b)(3)-1
prosecution for violating 18 U.S.C. § 1001. By the time the President spoke to Comey about
Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn’s statements
to senior White House officials about his contacts with Kislyak were not true and that Flynn had
told the same version of events to the FBI. McGahn also informed the President that Flynn’s
conduct could violate 18 U.S.C. § 1001. After the Vice President and senior White House officials
reviewed the underlying information about Flynn’s calls on February 10, 2017, they believed that
Flynn could not have forgotten his conversations with Kislyak and concluded that he had been
lying. In addition, the President’s instruction to the FBI Director to “let[] Flynn go” suggests his
awareness that Flynn could face criminal exposure for his conduct and was at risk of prosecution.

c. Intent. As part of our investigation, we examined whether the President had a


personal stake in the outcome of an investigation into Flynn—for example, whether the President
was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that
the President knew that Flynn had lied to senior White House officials and that those lies had been
passed on to the public. Some evidence suggests that the President knew about the existence and
content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be
relied upon to establish the President’s knowledge. In advance of Flynn’s initial call with Kislyak,
the President attended a meeting where the sanctions were discussed and an advisor may have
mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance
of his calls with Kislyak and said they may have made a difference in Russia’s response, and Flynn
recalled talking to Bannon in early January 2017 about how they had successfully “stopped the
train on Russia’s response” to the sanctions. It would have been reasonable for Flynn to have
wanted the President to know of his communications with Kislyak because Kislyak told Flynn his
request had been received at the highest levels in Russia and that Russia had chosen not to retaliate
in response to the request, and the President was pleased by the Russian response, calling it a
“[g]reat move.” And the President never said publicly or internally that Flynn had lied to him
about the calls with Kislyak.

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his
calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect
directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn.
And in February 2017, the President asked Flynn what was discussed on the calls and whether he
had lied to the Vice President, suggesting that he did not already know. Our investigation
accordingly did not produce evidence that established that the President knew about Flynn’s
discussions of sanctions before the Department of Justice notified the White House of those
discussions in late January 2017. The evidence also does not establish that Flynn otherwise

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possessed information damaging to the President that would give the President a personal incentive
to end the FBI’s inquiry into Flynn’s conduct.

Evidence does establish that the President connected the Flynn investigation to the FBI’s
broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would
end “the whole Russia thing.” Flynn’s firing occurred at a time when the media and Congress
were raising questions about Russia’s interference in the election and whether members of the
President’s campaign had colluded with Russia. Multiple witnesses recalled that the President
viewed the Russia investigations as a challenge to the legitimacy of his election. The President
paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when
the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before
meeting one-on-one with Comey, the President told Christie that firing Flynn would put an end to
the Russia inquiries. And after Christie pushed back, telling the President that firing Flynn would
not end the Russia investigation, the President asked Christie to reach out to Comey and convey
that the President liked him and he was part of “the team.” That afternoon, the President cleared
the room and asked Comey to “let[] Flynn go.”

We also sought evidence relevant to assessing whether the President’s direction to Comey
was motivated by sympathy towards Flynn. In public statements the President repeatedly
described Flynn as a good person who had been harmed by the Russia investigation, and the
President directed advisors to reach out to Flynn to tell him the President “care[d]”
about him and felt bad for him. At the same time, multiple senior advisors, including Bannon,
Priebus, and Hicks, said that the President had become unhappy with Flynn well before Flynn was
forced to resign and that the President was frequently irritated with Flynn. Priebus said he believed
the President’s initial reluctance to fire Flynn stemmed not from personal regard, but from concern
about the negative press that would be generated by firing the National Security Advisor so early
in the Administration. And Priebus indicated that the President’s post-firing expressions of
support for Flynn were motivated by the President’s desire to keep Flynn from saying negative
things about him.

The way in which the President communicated the request to Comey also is relevant to
understanding the President’s intent. When the President first learned about the FBI investigation
into Flynn, he told McGahn, Bannon, and Priebus not to discuss the matter with anyone else in the
White House. The next day, the President invited Comey for a one-on-one dinner against the
advice of an aide who recommended that other White House officials also attend. At the dinner,
the President asked Comey for “loyalty” and, at a different point in the conversation, mentioned
that Flynn had judgment issues. When the President met with Comey the day after Flynn’s
termination—shortly after being told by Christie that firing Flynn would not end the Russia
investigation—the President cleared the room, even excluding the Attorney General, so that he
could again speak to Comey alone. The President’s decision to meet one-on-one with Comey
contravened the advice of the White House Counsel that the President should not communicate
directly with the Department of Justice to avoid any appearance of interfering in law enforcement
activities. And the President later denied that he cleared the room and asked Comey to “let[] Flynn
go”—a denial that would have been unnecessary if he believed his request was a proper exercise
of prosecutorial discretion.

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Finally, the President’s effort to have McFarland write an internal email denying that the
President had directed Flynn to discuss sanctions with Kislyak highlights the President’s concern
about being associated with Flynn’s conduct. The evidence does not establish that the President
was trying to have McFarland lie. The President’s request, however, was sufficiently irregular
that McFarland—who did not know the full extent of Flynn’s communications with the President
and thus could not make the representation the President wanted—felt the need to draft an internal
memorandum documenting the President’s request, and Eisenberg was concerned that the request
would look like a quid pro quo in exchange for an ambassadorship.

C. The President’s Reaction to Public Confirmation of the FBI’s Russia


Investigation

Overview

In early March 2017, the President learned that Sessions was considering recusing from
the Russia investigation and tried to prevent the recusal. After Sessions announced his recusal on
March 2, the President expressed anger at Sessions for the decision and then privately asked
Sessions to “unrecuse.” On March 20, 2017, Comey publicly disclosed the existence of the FBI’s
Russia investigation. In the days that followed, the President contacted Comey and other
intelligence agency leaders and asked them to push back publicly on the suggestion that the
President had any connection to the Russian election-interference effort in order to “lift the cloud”
of the ongoing investigation.

Evidence

1. Attorney General Sessions Recuses From the Russia Investigation

In late February 2017, the Department of Justice began an internal analysis of whether
Sessions should recuse from the Russia investigation based on his role in the 2016 Trump
Campaign.273 On March 1, 2017, the press reported that, in his January confirmation hearing to
become Attorney General, Senator Sessions had not disclosed two meetings he had with Russian
Ambassador Kislyak before the presidential election, leading to congressional calls for Sessions
to recuse or for a special counsel to investigate Russia’s interference in the presidential election.274

Also on March 1, the President called Comey and said he wanted to check in and see how
Comey was doing.275 According to an email Comey sent to his chief of staff after the call, the
President “talked about Sessions a bit,” said that he had heard Comey was “doing great,” and said
that he hoped Comey would come by to say hello when he was at the White House.276 Comey

273
Sessions 1/17/18 302, at 1; Hunt 2/1/18 302, at 3.
274
E.g., Adam Entous et al., Sessions met with Russian envoy twice last year, encounters he later
did not disclose, Washington Post (Mar. 1, 2017).
275
3/1/17 Email, Comey to Rybicki; SCR012b_000030 (President’s Daily Diary, 3/1/17, reflecting
call with Comey at 11:55 am.)
276
3/1/17 Email, Comey to Rybicki; see Hearing on Russian Election Interference Before the
Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 86) (testimony

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interpreted the call as an effort by the President to “pull [him] in,” but he did not perceive the call
as an attempt by the President to find out what Comey was doing with the Flynn investigation.277

The next morning, the President called McGahn and urged him to contact Sessions to tell
him not to recuse himself from the Russia investigation.278 McGahn understood the President to
be concerned that a recusal would make Sessions look guilty for omitting details in his
confirmation hearing; leave the President unprotected from an investigation that could hobble the
presidency and derail his policy objectives; and detract from favorable press coverage of a
Presidential Address to Congress the President had delivered earlier in the week.279 McGahn
reached out to Sessions and reported that the President was not happy about the possibility of
recusal.280 Sessions replied that he intended to follow the rules on recusal.281 McGahn reported
back to the President about the call with Sessions, and the President reiterated that he did not want
Sessions to recuse.282 Throughout the day, McGahn continued trying on behalf of the President to
avert Sessions’s recusal by speaking to Sessions’s personal counsel, Sessions’s chief of staff, and
Senate Majority Leader Mitch McConnell, and by contacting Sessions himself two more times.283
Sessions recalled that other White House advisors also called him that day to argue against his
recusal.284

That afternoon, Sessions announced his decision to recuse “from any existing or future
investigations of any matters related in any way to the campaigns for President of the United
States.”285 Sessions believed the decision to recuse was not a close call, given the applicable

of James B. Comey, former Director of the FBI) (“[H]e called me one day. . . . [H]e just called to check in
and tell me I was doing an awesome job, and wanted to see how I was doing.”).
277
Comey 11/15/17 302, at 17-18.
278
McGahn 11/30/17 302, at 16.
279
McGahn 11/30/17 302, at 16-17; see SC_AD_00123 (Donaldson 3/2/17 Notes) (“Just in the
middle of another Russia Fiasco.”).
280
Sessions 1/17/18 302, at 3.
281
McGahn 11/30/17 302, at 17.
282
McGahn 11/30/17 302, at 17.
283
McGahn 11/30/17 302, at 18-19; Sessions 1/17/18 302, at 3; Hunt 2/1/18 302, at 4; Donaldson
11/6/17 302, at 8-10; see Hunt-000017; SC_AD_00121 (Donaldson 3/2/17 Notes).
284
Sessions 1/17/18 302, at 3.
285
Attorney General Sessions Statement on Recusal, Department of Justice Press Release (Mar. 2,
2017) (“During the course of the last several weeks, I have met with the relevant senior career Department
officials to discuss whether I should recuse myself from any matters arising from the campaigns for
President of the United States. Having concluded those meetings today, I have decided to recuse myself
from any existing or future investigations of any matters related in any way to the campaigns for President
of the United States.”). At the time of Sessions’s recusal, Dana Boente, then the Acting Deputy Attorney
General and U.S. Attorney for the Eastern District of Virginia, became the Acting Attorney General for
campaign-related matters pursuant to an executive order specifying the order of succession at the
Department of Justice. Id. (“Consistent with the succession order for the Department of Justice, . . . Dana
Boente shall act as and perform the functions of the Attorney General with respect to any matters from

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language in the Code of Federal Regulations (CFR), which Sessions considered to be clear and
decisive.286 Sessions thought that any argument that the CFR did not apply to him was “very
thin.”287 Sessions got the impression, based on calls he received from White House officials, that
the President was very upset with him and did not think he had done his duty as Attorney
General.288

Shortly after Sessions announced his recusal, the White House Counsel’s Office directed
that Sessions should not be contacted about the matter.289 Internal White House Counsel’s Office
notes from March 2, 2017, state “No contact w/Sessions” and “No comms / Serious concerns about
obstruction.”290

On March 3, the day after Sessions’s recusal, McGahn was called into the Oval Office.291
Other advisors were there, including Priebus and Bannon.292 The President opened the
conversation by saying, “I don’t have a lawyer.”293 The President expressed anger at McGahn
about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney.294
McGahn interpreted this comment as directed at him, suggesting that Cohn would fight for the

which I have recused myself to the extent they exist.”); see Exec. Order No. 13775, 82 Fed. Reg. 10697
(Feb. 14, 2017).
286
Sessions 1/17/18 302, at 1-2. 28 C.F.R. § 45.2 provides that “no employee shall participate in a
criminal investigation or prosecution if he has a personal or political relationship with . . . [a]ny person or
organization substantially involved in the conduct that is the subject of the investigation or prosecution,”
and defines “political relationship” as “a close identification with an elected official, a candidate (whether
or not successful) for elective, public office, a political party, or a campaign organization, arising from
service as a principal adviser thereto or a principal official thereof.”
287
Sessions 1/17/18 302, at 2.
288
Sessions 1/17/18 302, at 3.
289
Donaldson 11/6/17 302, at 11; SC_AD_00123 (Donaldson 3/2/17 Notes). It is not clear whether
the President was aware of the White House Counsel’s Office direction not to contact Sessions about his
recusal.
290
SC_AD_00123 (Donaldson 3/2/17 Notes). McGahn said he believed the note “No comms /
Serious concerns about obstruction” may have referred to concerns McGahn had about the press team
saying “crazy things” and trying to spin Sessions’s recusal in a way that would raise concerns about
obstruction. McGahn 11/30/17 302, at 19. Donaldson recalled that “No comms” referred to the order that
no one should contact Sessions. Donaldson 11/6/17 302, at 11.
291
McGahn 12/12/17 302, at 2.
292
McGahn 12/12/17 302, at 2.
293
McGahn 12/12/17 302, at 2.
294
McGahn 12/12/17 302, at 2. Cohn had previously served as a lawyer for the President during
his career as a private businessman. Priebus recalled that when the President talked about Cohn, he said
Cohn would win cases for him that had no chance, and that Cohn had done incredible things for him.
Priebus 4/3/18 302, at 5. Bannon recalled the President describing Cohn as a winner and a fixer, someone
who got things done. Bannon 2/14/18 302, at 6.

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President whereas McGahn would not.295 The President wanted McGahn to talk to Sessions about
the recusal, but McGahn told the President that DOJ ethics officials had weighed in on Sessions’s
decision to recuse.296 The President then brought up former Attorneys General Robert Kennedy
and Eric Holder and said that they had protected their presidents.297 The President also pushed
back on the DOJ contacts policy, and said words to the effect of, “You’re telling me that Bobby
and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?”298
Bannon recalled that the President was as mad as Bannon had ever seen him and that he screamed
at McGahn about how weak Sessions was.299 Bannon recalled telling the President that Sessions’s
recusal was not a surprise and that before the inauguration they had discussed that Sessions would
have to recuse from campaign-related investigations because of his work on the Trump
Campaign.300

That weekend, Sessions and McGahn flew to Mar-a-Lago to meet with the President.301
Sessions recalled that the President pulled him aside to speak to him alone and suggested that
Sessions should “unrecuse” from the Russia investigation.302 The President contrasted Sessions
with Attorneys General Holder and Kennedy, who had developed a strategy to help their presidents
where Sessions had not.303 Sessions said he had the impression that the President feared that the
investigation could spin out of control and disrupt his ability to govern, which Sessions could have
helped avert if he were still overseeing it.304

On March 5, 2017, the White House Counsel’s Office was informed that the FBI was
asking for transition-period records relating to Flynn—indicating that the FBI was still actively
investigating him.305 On March 6, the President told advisors he wanted to call the Acting Attorney

295
McGahn 12/12/17 302, at 2.
296
McGahn 12/12/17 302, at 2.
297
McGahn 12/12/17 302, at 3. Bannon said the President saw Robert Kennedy and Eric Holder
as Attorneys General who protected the presidents they served. The President thought Holder always stood
up for President Obama and even took a contempt charge for him, and Robert Kennedy always had his
brother’s back. Bannon 2/14/18 302, at 5. Priebus recalled that the President said he had been told his
entire life he needed to have a great lawyer, a “bulldog,” and added that Holder had been willing to take a
contempt-of-Congress charge for President Obama. Priebus 4/3/18 302, at 5.
298
McGahn 12/12/17 302, at 3.
299
Bannon 2/14/18 302, at 5.
300
Bannon 2/14/18 302, at 5.
301
Sessions 1/17/18 302, at 3; Hunt 2/1/18 302, at 5; McGahn 12/12/17 302, at 3.
302
Sessions 1/17/18 302, at 3-4.
303
Sessions 1/17/18 302, at 3-4
304
Sessions 1/17/18 302, at 3-4. Hicks recalled that after Sessions recused, the President was angry
and scolded Sessions in her presence, but she could not remember exactly when that conversation occurred.
Hicks 12/8/17 302, at 13.
305
SC_AD_000137 (Donaldson 3/5/17 Notes); see Donaldson 11/6/17 302, at 13.

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General to find out whether the White House or the President was being investigated, although it
is not clear whether the President knew at that time of the FBI’s recent request concerning Flynn.306

2. FBI Director Comey Publicly Confirms the Existence of the Russia


Investigation in Testimony Before HPSCI

On March 9, 2017, Comey briefed the “Gang of Eight” congressional leaders about the
FBI’s investigation of Russian interference, including an identification of the principal U.S.
subjects of the investigation.307 Although it is unclear whether the President knew of that briefing
at the time, notes taken by Annie Donaldson, then McGahn’s chief of staff, on March 12, 2017,
state, “POTUS in panic/chaos . . . Need binders to put in front of POTUS. (1) All things related
to Russia.”308 The week after Comey’s briefing, the White House Counsel’s Office was in contact
with SSCI Chairman Senator Richard Burr about the Russia investigations and appears to have
received information about the status of the FBI investigation.309

On March 20, 2017, Comey was scheduled to testify before HPSCI.310 In advance of
Comey’s testimony, congressional officials made clear that they wanted Comey to provide
information about the ongoing FBI investigation.311 Dana Boente, who at that time was the Acting
Attorney General for the Russia investigation, authorized Comey to confirm the existence of the
Russia investigation and agreed that Comey should decline to comment on whether any particular
individuals, including the President, were being investigated.312

306
Donaldson 11/6/17 302, at 14; see SC_AD_000168 (Donaldson 3/6/17 Notes) (“POTUS wants
to call Dana [then the Acting Attorney General for campaign-related investigations] / Is investigation / No /
We know something on Flynn / GSA got contacted by FBI / There’s something hot”).
307
Comey 11/15/17 302, at 13-14; SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et
al.).
308
SC_AD_00188 (Donaldson 3/12/18 Notes). Donaldson said she was not part of the conversation
that led to these notes, and must have been told about it from others. Donaldson 11/6/17 302, at 13.
309
Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was
briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11/6/17 302, at 15. The “targets”
were identified in notes taken by Donaldson as “Flynn (FBI was in—wrapping up)→DOJ looking for phone
records”; “Comey→Manafort (Ukr + Russia, not campaign)”; “Stone (can’t handicap)”; “Carter Page ($
game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18
U.S.C. § 1001 for lying to the FBI). SC_AD_00198 (Donaldson 3/16/17 Notes). Donaldson and McGahn
both said they believed these were targets of SSCI. Donaldson 11/6/17 302, at 15; McGahn 12/12/17 302,
at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the
FBI, the Department of Justice, and Comey; and the notes track the background materials prepared by the
FBI for Comey’s briefing to the Gang of 8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email,
Gauhar to Page et al.); see also Donaldson 11/6/17 302, at 15 (Donaldson could not rule out that Burr had
told McGahn those individuals were the FBI’s targets).
310
Hearing on Russian Election Tampering Before the House Permanent Select Intelligence
Committee, 115th Cong. (Mar. 20, 2017).
311
Comey 11/15/17 302, at 16; McCabe 8/17/17, at 15; McGahn 12/14/17 302, at 1.
312
Boente 1/31/18 302, at 5; Comey 11/15/17 302, at 16-17.

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In his opening remarks at the HPSCI hearing, which were drafted in consultation with the
Department of Justice, Comey stated that he had “been authorized by the Department of Justice to
confirm that the FBI, as part of [its] counterintelligence mission, is investigating the Russian
government’s efforts to interfere in the 2016 presidential election and that includes investigating
the nature of any links between individuals associated with the Trump campaign and the Russian
government and whether there was any coordination between the campaign and Russia’s efforts.
As with any counterintelligence investigation, this will also include an assessment of whether any
crimes were committed.”313 Comey added that he would not comment further on what the FBI
was “doing and whose conduct [it] [was] examining” because the investigation was ongoing and
classified—but he observed that he had “taken the extraordinary step in consultation with the
Department of Justice of briefing this Congress’s leaders . . . in a classified setting in detail about
the investigation.”314 Comey was specifically asked whether President Trump was “under
investigation during the campaign” or “under investigation now.”315 Comey declined to answer,
stating, “Please don’t over interpret what I’ve said as—as the chair and ranking know, we have
briefed him in great detail on the subjects of the investigation and what we’re doing, but I’m not
gonna answer about anybody in this forum.”316 Comey was also asked whether the FBI was
investigating the information contained in the Steele reporting, and he declined to answer.317

According to McGahn and Donaldson, the President had expressed frustration with Comey
before his March 20 testimony, and the testimony made matters worse.318 The President had
previously criticized Comey for too frequently making headlines and for not attending intelligence
briefings at the White House, and the President suspected Comey of leaking certain information
to the media.319 McGahn said the President thought Comey was acting like “his own branch of
government.”320

313
Hearing on Russian Election Tampering Before the House Permanent Select Intelligence
Committee, 115th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 11) (testimony by FBI Director James
B. Comey); Comey 11/15/17 302, at 17; Boente 1/31/18 302, at 5 (confirming that the Department of Justice
authorized Comey’s remarks).
314
Hearing on Russian Election Tampering Before the House Permanent Select Intelligence
Committee, 115th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 11) (testimony by FBI Director James
B. Comey ).
315
Hearing on Russian Election Tampering Before the House Permanent Select Intelligence
Committee, 115th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 130) (question by Rep. Swalwell).
316
Hearing on Russian Election Tampering Before the House Permanent Select Intelligence
Committee, 115th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 130) (testimony by FBI Director James
B. Comey).
317
Hearing on Russian Election Tampering Before the House Permanent Select Intelligence
Committee, 115th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 143) (testimony by FBI Director James
B. Comey).
318
Donaldson 11/6/17 302, at 21; McGahn 12/12/17 302, at 7.
319
Donaldson 11/6/17 302, at 21; McGahn 12/12/17 302, at 6-9.
320
McGahn 12/12/17 302, at 7.

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Press reports following Comey’s March 20 testimony suggested that the FBI was
investigating the President, contrary to what Comey had told the President at the end of the January
6, 2017 intelligence assessment briefing.321 McGahn, Donaldson, and senior advisor Stephen
Miller recalled that the President was upset with Comey’s testimony and the press coverage that
followed because of the suggestion that the President was under investigation.322 Notes from the
White House Counsel’s Office dated March 21, 2017, indicate that the President was “beside
himself” over Comey’s testimony.323 The President called McGahn repeatedly that day to ask him
to intervene with the Department of Justice, and, according to the notes, the President was “getting
hotter and hotter, get rid?”324 Officials in the White House Counsel’s Office became so concerned
that the President would fire Comey that they began drafting a memorandum that examined
whether the President needed cause to terminate the FBI director.325

At the President’s urging, McGahn contacted Boente several times on March 21, 2017, to
seek Boente’s assistance in having Comey or the Department of Justice correct the misperception
that the President was under investigation.326 Boente did not specifically recall the conversations,
although he did remember one conversation with McGahn around this time where McGahn asked
if there was a way to speed up or end the Russia investigation as quickly as possible.327 Boente
said McGahn told him the President was under a cloud and it made it hard for him to govern.328
Boente recalled telling McGahn that there was no good way to shorten the investigation and
attempting to do so could erode confidence in the investigation’s conclusions.329 Boente said
McGahn agreed and dropped the issue.330 The President also sought to speak with Boente directly,
but McGahn told the President that Boente did not want to talk to the President about the request

321
E.g., Matt Apuzzo et al., F.B.I. Is Investigating Trump’s Russia Ties, Comey Confirms, New
York Times (Mar. 20, 2017); Andy Greenberg. The FBI Has Been Investigating Trump’s Russia Ties Since
July, Wired (Mar. 20, 2017); Julie Borger & Spencer Ackerman, Trump-Russia collusion is being
investigated by FBI, Comey confirms, Guardian (Mar. 20, 2017); see Comey 1/6/17 Memorandum, at 2.
322
Donaldson 11/6/17 302, at 16-17; S. Miller 10/31/17 302, at 4; McGahn 12/12/17 302, at 5-7.
323
SC_AD_00213 (Donaldson 3/21/17 Notes). The notes from that day also indicate that the
President referred to the “Comey bombshell” which “made [him] look like a fool.” SC_AD_00206
(Donaldson 3/21/17 Notes).
324
SC_AD_00210 (Donaldson 3/21/17 Notes).
325
SCR016_000002-05 (White House Counsel’s Office Memorandum). White House Counsel’s
Office attorney Uttam Dhillon did not recall a triggering event causing the White House Counsel’s Office
to begin this research. Dhillon 11/21/17 302, at 5. Metadata from the document, which was provided by
the White House, establishes that it was created on March 21, 2017.
326
Donaldson 11/6/17 302, at 16-21; McGahn 12/12/17 302, at 5-7.
327
Boente 1/31/18 302, at 5.
328
Boente 1/31/18 302, at 5.
329
Boente 1/31/18 302, at 5.
330
Boente 1/31/18 302, at 5.

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to intervene with Comey.331 McGahn recalled Boente telling him in calls that day that he did not
think it was sustainable for Comey to stay on as FBI director for the next four years, which
McGahn said he conveyed to the President.332 Boente did not recall discussing with McGahn or
anyone else the idea that Comey should not continue as FBI director.333

3. The President Asks Intelligence Community Leaders to Make Public


Statements that he had No Connection to Russia

In the weeks following Comey’s March 20, 2017 testimony, the President repeatedly asked
intelligence community officials to push back publicly on any suggestion that the President had a
connection to the Russian election-interference effort.

On March 22, 2017, the President asked Director of National Intelligence Daniel Coats and
CIA Director Michael Pompeo to stay behind in the Oval Office after a Presidential Daily
Briefing.334 According to Coats, the President asked them whether they could say publicly that no
link existed between him and Russia.335 Coats responded that the Office of the Director of National
Intelligence (ODNI) has nothing to do with investigations and it was not his role to make a public
statement on the Russia investigation.336 Pompeo had no recollection of being asked to stay behind
after the March 22 briefing, but he recalled that the President regularly urged officials to get the
word out that he had not done anything wrong related to Russia.337

Coats told this Office that the President never asked him to speak to Comey about the FBI
investigation.338 Some ODNI staffers, however, had a different recollection of how Coats
described the meeting immediately after it occurred. According to senior ODNI official Michael
Dempsey, Coats said after the meeting that the President had brought up the Russia investigation
and asked him to contact Comey to see if there was a way to get past the investigation, get it over
with, end it, or words to that effect.339 Dempsey said that Coats described the President’s
comments as falling “somewhere between musing about hating the investigation” and wanting
Coats to “do something to stop it.”340 Dempsey said Coats made it clear that he would not get
involved with an ongoing FBI investigation.341 Edward Gistaro, another ODNI official, recalled

331
SC_AD_00210 (Donaldson 3/21/17 Notes); McGahn 12/12/17 302, at 7; Donaldson 11/6/17
302, at 19.
332
McGahn 12/12/17 302, at 7; Burnham 11/03/17 302, at 11.
333
Boente 1/31/18 302, at 3.
334
Coats 6/14/17 302, at 3; Culver 6/14/17 302, at 2.
335
Coats 6/14/17 302, at 3.
336
Coats 6/14/17 302, at 3.
337
Pompeo 6/28/17 302, at 1-3.
338
Coats 6/14/17 302, at 3.
339
Dempsey 6/14/17 302, at 2.
340
Dempsey 6/14/17 302, at 2-3.
341
Dempsey 6/14/17 302, at 3.

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that right after Coats’s meeting with the President, on the walk from the Oval Office back to the
Eisenhower Executive Office Building, Coats said that the President had kept him behind to ask
him what he could do to “help with the investigation.”342 Another ODNI staffer who had been
waiting for Coats outside the Oval Office talked to Gistaro a few minutes later and recalled Gistaro
reporting that Coats was upset because the President had asked him to contact Comey to convince
him there was nothing to the Russia investigation.343

On Saturday, March 25, 2017, three days after the meeting in the Oval Office, the President
called Coats and again complained about the Russia investigations, saying words to the effect of,
“I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS,
they’re all over me with this.”344 Coats told the President that the investigations were going to go
on and the best thing to do was to let them run their course.345 Coats later testified in a
congressional hearing that he had “never felt pressure to intervene or interfere in any way and
shape—with shaping intelligence in a political way, or in relationship . . . to an ongoing
investigation.”346

On March 26, 2017, the day after the President called Coats, the President called NSA
Director Admiral Michael Rogers.347 The President expressed frustration with the Russia
investigation, saying that it made relations with the Russians difficult.348 The President told
Rogers “the thing with the Russians [wa]s messing up” his ability to get things done with Russia.349
The President also said that the news stories linking him with Russia were not true and asked
Rogers if he could do anything to refute the stories.350 Deputy Director of the NSA Richard
Ledgett, who was present for the call, said it was the most unusual thing he had experienced in 40
years of government service.351 After the call concluded, Ledgett prepared a memorandum that
he and Rogers both signed documenting the content of the conversation and the President’s
request, and they placed the memorandum in a safe.352 But Rogers did not perceive the President’s
request to be an order, and the President did not ask Rogers to push back on the Russia

342
Gistaro 6/14/17 302, at 2.
343
Culver 6/14/17 302, at 2-3.
344
Coats 6/14/17 302, at 4.
345
Coats 6/14/17 302, at 4; Dempsey 6/14/17 302, at 3 (Coats relayed that the President had asked
several times what Coats could do to help “get [the investigation] done,” and Coats had repeatedly told the
President that fastest way to “get it done” was to let it run its course).
346
Hearing on Foreign Intelligence Surveillance Act Before the Senate Select Intelligence
Committee, 115th Cong. (June 7, 2017) (CQ Cong. Transcripts, at 25) (testimony by Daniel Coats, Director
of National Intelligence).
347
Rogers 6/12/17 302, at 3-4.
348
Rogers 6/12/17 302, at 4.
349
Ledgett 6/13/17 302, at 1-2; see Rogers 6/12/17 302, at 4.
350
Rogers 6/12/17 302, at 4-5; Ledgett 6/13/17 302, at 2.
351
Ledgett 6/13/17 302, at 2.
352
Ledgett 6/13/17 302, at 2-3; Rogers 6/12/17 302, at 4.

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investigation itself.353 Rogers later testified in a congressional hearing that as NSA Director he
had “never been directed to do anything [he] believe[d] to be illegal, immoral, unethical or
inappropriate” and did “not recall ever feeling pressured to do so.”354

In addition to the specific comments made to Coats, Pompeo, and Rogers, the President
spoke on other occasions in the presence of intelligence community officials about the Russia
investigation and stated that it interfered with his ability to conduct foreign relations.355 On at least
two occasions, the President began Presidential Daily Briefings by stating that there was no
collusion with Russia and he hoped a press statement to that effect could be issued.356 Pompeo
recalled that the President vented about the investigation on multiple occasions, complaining that
there was no evidence against him and that nobody would publicly defend him.357 Rogers recalled
a private conversation with the President in which he “vent[ed]” about the investigation, said he
had done nothing wrong, and said something like the “Russia thing has got to go away.”358 Coats
recalled the President bringing up the Russia investigation several times, and Coats said he finally
told the President that Coats’s job was to provide intelligence and not get involved in
investigations.359

4. The President Asks Comey to “Lift the Cloud” Created by the Russia
Investigation

On the morning of March 30, 2017, the President reached out to Comey directly about the
Russia investigation.360 According to Comey’s contemporaneous record of the conversation, the
President said “he was trying to run the country and the cloud of this Russia business was making

353
Rogers 6/12/17 302, at 5; Ledgett 6/13/17 302, at 2.
354
Hearing on Foreign Intelligence Surveillance Act Before the Senate Select Intelligence
Committee, 115th Cong. (June 7, 2017) (CQ Cong. Transcripts, at 20) (testimony by Admiral Michael
Rogers, Director of the National Security Agency).
355
Gistaro 6/14/17 302, at 1, 3; Pompeo 6/28/17 302, at 2-3.
356
Gistaro 6/14/17 302, at 1.
357
Pompeo 6/28/17 302, at 2.
358
Rogers 6/12/17 302, at 6.
359
Coats 6/14/17 302, at 3-4.
360
SCR012b_000044 (President’s Daily Diary, 3/30/17, reflecting call to Comey from 8:14 - 8:24
a.m.); Comey 3/30/17 Memorandum, at 1 (“The President called me on my CMS phone at 8:13 am today .
. . . The call lasted 11 minutes (about 10 minutes when he was connected).”; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 6).

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that difficult.”361 The President asked Comey what could be done to “lift the cloud.”362 Comey
explained “that we were running it down as quickly as possible and that there would be great
benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do
our work.”363 Comey also told the President that congressional leaders were aware that the FBI
was not investigating the President personally.364 The President said several times, “We need to
get that fact out.”365 The President commented that if there was “some satellite” (which Comey
took to mean an associate of the President’s or the campaign) that did something, “it would be
good to find that out” but that he himself had not done anything wrong and he hoped Comey
“would find a way to get out that we weren’t investigating him.”366 After the call ended, Comey
called Boente and told him about the conversation, asked for guidance on how to respond, and said
he was uncomfortable with direct contact from the President about the investigation.367

On the morning of April 11, 2017, the President called Comey again.368 According to
Comey’s contemporaneous record of the conversation, the President said he was “following up to
see if [Comey] did what [the President] had asked last time—getting out that he personally is not
under investigation.”369 Comey responded that he had passed the request to Boente but not heard
back, and he informed the President that the traditional channel for such a request would be to

361
Comey 3/30/17 Memorandum, at 1. Comey subsequently testified before Congress about this
conversation and described it to our Office; his recollections were consistent with his memorandum.
Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong.
(June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 6); Comey
11/15/17 302, at 18.
362
Comey 3/30/17 Memorandum, at 1; Comey 11/15/17 302, at 18.
363
Comey 3/30/17 Memorandum, at 1; Comey 11/15/17 302, at 18.
364
Comey 3/30/17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate
Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey,
former Director of the FBI, at 6).
365
Comey 3/30/17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate
Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey,
former Director of the FBI, at 6).
366
Comey 3/30/17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate
Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey,
former Director of the FBI, at 6-7).
367
Comey 3/30/17 Memorandum, at 2; Boente 1/31/18 302, at 6-7; Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 7).
368
SCR012b_000053 (President’s Daily Diary, 4/11/17, reflecting call to Comey from 8:27 – 8:31
a.m.); Comey 4/11/17 Memorandum, at 1 (“I returned the president’s call this morning at 8:26 am EDT.
We spoke for about four minutes.”).
369
Comey 4/11/17 Memorandum, at 1. Comey subsequently testified before Congress about this
conversation and his recollections were consistent with his memo. Hearing on Russian Election
Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for
the Record of James B. Comey, former Director of the FBI, at 7).

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have the White House Counsel contact DOJ leadership.370 The President said he would take that
step.371 The President then added, “Because I have been very loyal to you, very loyal, we had that
thing, you know.”372 In a televised interview that was taped early that afternoon, the President was
asked if it was too late for him to ask Comey to step down; the President responded, “No, it’s not
too late, but you know, I have confidence in him. We’ll see what happens. You know, it’s going
to be interesting.”373 After the interview, Hicks told the President she thought the President’s
comment about Comey should be removed from the broadcast of the interview, but the President
wanted to keep it in, which Hicks thought was unusual.374

Later that day, the President told senior advisors, including McGahn and Priebus, that he
had reached out to Comey twice in recent weeks.375 The President acknowledged that McGahn
would not approve of the outreach to Comey because McGahn had previously cautioned the
President that he should not talk to Comey directly to prevent any perception that the White House
was interfering with investigations.376 The President told McGahn that Comey had indicated the
FBI could make a public statement that the President was not under investigation if the Department
of Justice approved that action.377 After speaking with the President, McGahn followed up with
Boente to relay the President’s understanding that the FBI could make a public announcement if
the Department of Justice cleared it.378 McGahn recalled that Boente said Comey had told him
there was nothing obstructive about the calls from the President, but they made Comey
uncomfortable.379 According to McGahn, Boente responded that he did not want to issue a
statement about the President not being under investigation because of the potential political
ramifications and did not want to order Comey to do it because that action could prompt the

370
Comey 4/11/17 Memorandum, at 1.
371
Comey 4/11/17 Memorandum, at 1.
372
Comey 4/11/17 Memorandum, at 1. In a footnote to this statement in his memorandum, Comey
wrote, “His use of these words did not fit with the flow of the call, which at that point had moved away
from any request of me, but I have recorded it here as it happened.”
373
Maria Bartiromo, Interview with President Trump, Fox Business Network (Apr. 12, 2017);
SCR012b_000054 (President’s Daily Diary, 4/11/17, reflecting Bartiromo interview from 12:30 - 12:55
p.m.).
374
Hicks 12/8/17 302, at 13.
375
Priebus 10/13/17 302, at 23; McGahn 12/12/17 302, at 9.
376
Priebus 10/13/17 302, at 23; McGahn 12/12/17 302, at 9; see McGahn 11/30/17 302, at 9;
Dhillon 11/21/17 302, at 2 (stating that White House Counsel attorneys had advised the President not to
contact the FBI Director directly because it could create a perception he was interfering with investigations).
Later in April, the President told other attorneys in the White House Counsel’s Office that he had called
Comey even though he knew they had advised against direct contact. Dhillon 11/21/17 302, at 2 (recalling
that the President said, “I know you told me not to, but I called Comey anyway.”).
377
McGahn 12/12/17 302, at 9.
378
McGahn 12/12/17 302, at 9.
379
McGahn 12/12/17 302, at 9; see Boente 1/31/18 302, at 6 (recalling that Comey told him after
the March 30, 2017 call that it was not obstructive).

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appointment of a Special Counsel.380 Boente did not recall that aspect of his conversation with
McGahn, but did recall telling McGahn that the direct outreaches from the President to Comey
were a problem.381 Boente recalled that McGahn agreed and said he would do what he could to
address that issue.382

Analysis

In analyzing the President’s reaction to Sessions’s recusal and the requests he made to
Coats, Pompeo, Rogers, and Comey, the following evidence is relevant to the elements of
obstruction of justice:

a. Obstructive act. The evidence shows that, after Comey’s March 20, 2017
testimony, the President repeatedly reached out to intelligence agency leaders to discuss the FBI’s
investigation. But witnesses had different recollections of the precise content of those outreaches.
Some ODNI officials recalled that Coats told them immediately after the March 22 Oval Office
meeting that the President asked Coats to intervene with Comey and “stop” the investigation. But
the first-hand witnesses to the encounter remember the conversation differently. Pompeo had no
memory of the specific meeting, but generally recalled the President urging officials to get the
word out that the President had not done anything wrong related to Russia. Coats recalled that the
President asked that Coats state publicly that no link existed between the President and Russia, but
did not ask him to speak with Comey or to help end the investigation. The other outreaches by the
President during this period were similar in nature. The President asked Rogers if he could do
anything to refute the stories linking the President to Russia, and the President asked Comey to
make a public statement that would “lift the cloud” of the ongoing investigation by making clear
that the President was not personally under investigation. These requests, while significant enough
that Rogers thought it important to document the encounter in a written memorandum, were not
interpreted by the officials who received them as directives to improperly interfere with the
investigation.

b. Nexus to a proceeding. At the time of the President’s outreaches to leaders of the


intelligence agencies in late March and early April 2017, the FBI’s Russia investigation did not
yet involve grand jury proceedings. The outreaches, however, came after and were in response to
Comey’s March 20, 2017 announcement that the FBI, as a part of its counterintelligence mission,
was conducting an investigation into Russian interference in the 2016 presidential election.
Comey testified that the investigation included any links or coordination with Trump campaign
officials and would “include an assessment of whether any crimes were committed.”

c. Intent. As described above, the evidence does not establish that the President asked
or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation—
and the President affirmatively told Comey that if “some satellite” was involved in Russian
election interference “it would be good to find that out.” But the President’s intent in trying to
prevent Sessions’s recusal, and in reaching out to Coats, Pompeo, Rogers, and Comey following

380
McGahn 12/12/17 302, at 9-10.
381
Boente 1/31/18 302, at 7; McGahn 12/12/17 302, at 9.
382
Boente 1/31/18 302, at 7.

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Comey’s public announcement of the FBI’s Russia investigation, is nevertheless relevant to


understanding what motivated the President’s other actions towards the investigation.

The evidence shows that the President was focused on the Russia investigation’s
implications for his presidency—and, specifically, on dispelling any suggestion that he was under
investigation or had links to Russia. In early March, the President attempted to prevent Sessions’s
recusal, even after being told that Sessions was following DOJ conflict-of-interest rules. After
Sessions recused, the White House Counsel’s Office tried to cut off further contact with Sessions
about the matter, although it is not clear whether that direction was conveyed to the President. The
President continued to raise the issue of Sessions’s recusal and, when he had the opportunity, he
pulled Sessions aside and urged him to unrecuse. The President also told advisors that he wanted
an Attorney General who would protect him, the way he perceived Robert Kennedy and Eric
Holder to have protected their presidents. The President made statements about being able to direct
the course of criminal investigations, saying words to the effect of, “You’re telling me that Bobby
and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?”

After Comey publicly confirmed the existence of the FBI’s Russia investigation on March
20, 2017, the President was “beside himself” and expressed anger that Comey did not issue a
statement correcting any misperception that the President himself was under investigation. The
President sought to speak with Acting Attorney General Boente directly and told McGahn to
contact Boente to request that Comey make a clarifying statement. The President then asked other
intelligence community leaders to make public statements to refute the suggestion that the
President had links to Russia, but the leaders told him they could not publicly comment on the
investigation. On March 30 and April 11, against the advice of White House advisors who had
informed him that any direct contact with the FBI could be perceived as improper interference in
an ongoing investigation, the President made personal outreaches to Comey asking him to “lift the
cloud” of the Russia investigation by making public the fact that the President was not personally
under investigation.

Evidence indicates that the President was angered by both the existence of the Russia
investigation and the public reporting that he was under investigation, which he knew was not true
based on Comey’s representations. The President complained to advisors that if people thought
Russia helped him with the election, it would detract from what he had accomplished.

Other evidence indicates that the President was concerned about the impact of the Russia
investigation on his ability to govern. The President complained that the perception that he was
under investigation was hurting his ability to conduct foreign relations, particularly with Russia.
The President told Coats he “can’t do anything with Russia,” he told Rogers that “the thing with
the Russians” was interfering with his ability to conduct foreign affairs, and he told Comey that
“he was trying to run the country and the cloud of this Russia business was making that difficult.”

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D. Events Leading Up To and Surrounding the Termination of FBI Director


Comey

Overview

Comey was scheduled to testify before Congress on May 3, 2017. Leading up to that
testimony, the President continued to tell advisors that he wanted Comey to make public that the
President was not under investigation. At the hearing, Comey declined to answer questions about
the scope or subjects of the Russia investigation and did not state publicly that the President was
not under investigation. Two days later, on May 5, 2017, the President told close aides he was
going to fire Comey, and on May 9, he did so, using his official termination letter to make public
that Comey had on three occasions informed the President that he was not under investigation.
The President decided to fire Comey before receiving advice or a recommendation from the
Department of Justice, but he approved an initial public account of the termination that attributed
it to a recommendation from the Department of Justice based on Comey’s handling of the Clinton
email investigation. After Deputy Attorney General Rod Rosenstein resisted attributing the firing
to his recommendation, the President acknowledged that he intended to fire Comey regardless of
the DOJ recommendation and was thinking of the Russia investigation when he made the decision.
The President also told the Russian Foreign Minister, “I just fired the head of the F.B.I. He was
crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. . . . . I’m not
under investigation.”

Evidence

1. Comey Testifies Before the Senate Judiciary Committee and Declines to


Answer Questions About Whether the President is Under Investigation

On May 3, 2017, Comey was scheduled to testify at an FBI oversight hearing before the
Senate Judiciary Committee.383 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 At the
hearing, Comey declined to answer questions about the status of the Russia investigation, stating
“[t]he Department of Justice ha[d] authorized [him] to confirm that [the Russia investigation]
exists,” but that he was “not going to say another word about it” until the investigation was
completed.386 Comey also declined to answer questions about whether investigators had “ruled
383
Hearing on Oversight of the FBI before the Senate Judiciary Committee, 115th Cong. (May 3,
2017).
384
McGahn 12/12/17 302, at 10-11.
385
McGahn 12/12/17 302, at 7, 10-11 (McGahn believed that two foreign leaders had expressed
sympathy to the President for being under investigation); SC_AD_00265 (Donaldson 4/11/17 Notes) (“P
Called Comey – Day we told him not to? ‘You are not under investigation’ NK/China/Sapping
Credibility”).
386
Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (CQ Cong.
Transcripts, at 70) (May 3, 2017) (testimony by FBI Director James Comey). Comey repeated this point

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out anyone in the Trump campaign as potentially a target of th[e] criminal investigation,” including
whether the FBI had “ruled out the president of the United States.”387

Comey was also asked at the hearing about his decision to announce 11 days before the
presidential election that the FBI was reopening the Clinton email investigation.388 Comey stated
that it made him “mildly nauseous to think that we might have had some impact on the election,”
but added that “even in hindsight” he “would make the same decision.”389 He later repeated that
he had no regrets about how he had handled the email investigation and believed he had “done the
right thing at each turn.”390

In the afternoon following Comey’s testimony, the President met with McGahn, Sessions,
and Sessions’s Chief of Staff Jody Hunt.391 At that meeting, the President asked McGahn how
Comey had done in his testimony and McGahn relayed that Comey had declined to answer
questions about whether the President was under investigation.392 The President became very
upset and directed his anger at Sessions.393 According to notes written by Hunt, the President said,
“This is terrible Jeff. It’s all because you recused. AG is supposed to be most important
appointment. Kennedy appointed his brother. Obama appointed Holder. I appointed you and you
recused yourself. You left me on an island. I can’t do anything.”394 The President said that the
recusal was unfair and that it was interfering with his ability to govern and undermining his
authority with foreign leaders.395 Sessions responded that he had had no choice but to recuse, and
it was a mandatory rather than discretionary decision.396 Hunt recalled that Sessions also stated at

several times during his testimony. See id. at 26 (explaining that he was “not going to say another peep
about [the investigation] until we’re done”); id. at 90 (stating that he would not provide any updates about
the status of investigation “before the matter is concluded”).
387
Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (May 3, 2017)
(CQ Cong. Transcripts, at 87-88) (questions by Sen. Blumenthal and testimony by FBI Director James B.
Comey).
388
Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (May 3, 2017)
(CQ Cong. Transcripts, at 15) (question by Sen. Feinstein).
389
Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (May 3, 2017)
(CQ Cong. Transcripts, at 17) (testimony by FBI Director James B. Comey).
390
Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (May 3, 2017)
(CQ Cong. Transcripts, at 92) (testimony by FBI Director James B. Comey).
391
Sessions 1/17/18 302, at 8; Hunt 2/1/18 302, at 8.
392
Sessions 1/17/18 302, at 8; Hunt-000021 (Hunt 5/3/17 Notes); McGahn 3/8/18 302, at 6.
393
Sessions 1/17/18 302, at 8-9.
394
Hunt-000021 (Hunt 5/3/17 Notes). Hunt said that he wrote down notes describing this meeting
and others with the President after the events occurred. Hunt 2/1/17 302, at 2.
395
Hunt-000021-22 (Hunt 5/3/17 Notes) (“I have foreign leaders saying they are sorry I am being
investigated.”); Sessions 1/17/18 302, at 8 (Sessions recalled that a Chinese leader had said to the President
that he was sorry the President was under investigation, which the President interpreted as undermining his
authority); Hunt 2/1/18 302, at 8.
396
Sessions 1/17/18 302, at 8; Hunt-000022 (Hunt 5/3/17 Notes).

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some point during the conversation that a new start at the FBI would be appropriate and the
President should consider replacing Comey as FBI director.397 According to Sessions, when the
meeting concluded, it was clear that the President was unhappy with Comey, but Sessions did not
think the President had made the decision to terminate Comey.398

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

2. The President Makes the Decision to Terminate Comey

The weekend following Comey’s May 3, 2017 testimony, the President traveled to his
resort in Bedminster, New Jersey.403 At a dinner on Friday, May 5, attended by the President and
various advisors and family members, including Jared Kushner and senior advisor Stephen Miller,
the President stated that he wanted to remove Comey and had ideas for a letter that would be used
to make the announcement.404 The President dictated arguments and specific language for the
letter, and Miller took notes.405 As reflected in the notes, the 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.”406 Following the
dinner, Miller prepared a termination letter based on those notes and research he conducted to
support the President’s arguments.407 Over the weekend, the President provided several rounds of

397
Hunt-000022 (Hunt 5/3/17 Notes).
398
Sessions 1/17/18 302, at 9.
399
Bannon 2/12/18 302, at 20.
400
Bannon 2/12/18 302, at 20.
401
Bannon 2/12/18 302, at 20.
402
Bannon 2/12/18 302, at 20-21; see Priebus 10/13/17 302, at 28.
403
S. Miller 10/31/17 302, at 4-5; SCR025_000019 (President’s Daily Diary, 5/4/17).
404
S. Miller 10/31/17 302, at 5.
405
S. Miller 10/31/17 302, at 5-6.
406
S. Miller 5/5/17 Notes, at 1; see S. Miller 10/31/17 302, at 8.
407
S. Miller 10/31/17 302, at 6.

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edits on the draft letter.408 Miller said the President was adamant that he not tell anyone at the
White House what they were preparing because the President was worried about leaks.409

In his discussions with Miller, the President made clear that he wanted the letter to open
with a reference to him not being under investigation.410 Miller said he believed that fact was
important to the President to show that Comey was not being terminated based on any such
investigation.411 According to Miller, the President wanted to establish as a factual matter that
Comey had been under a “review period” and did not have assurance from the President that he
would be permitted to keep his job.412

The final version of the termination letter prepared by Miller and the President began in a
way that closely tracked what the President had dictated to Miller at the May 5 dinner: “Dear
Director Comey, While I greatly appreciate your informing me, on three separate occasions, that I
am not under investigation concerning the fabricated and politically-motivated allegations of a
Trump-Russia relationship with respect to the 2016 Presidential Election, please be informed that
I, along with members of both political parties and, most importantly, the American Public, have
lost faith in you as the Director of the FBI and you are hereby terminated.”413 The four-page letter
went on to critique Comey’s judgment and conduct, including his May 3 testimony before the
Senate Judiciary Committee, his handling of the Clinton email investigation, and his failure to hold
leakers accountable.414 The letter stated that Comey had “asked [the President] at dinner shortly
after inauguration to let [Comey] stay on in the Director’s role, and [the President] said that [he]
would consider it,” but the President had “concluded that [he] ha[d] no alternative but to find new
leadership for the Bureau – a leader that restores confidence and trust.”415

In the morning of Monday, May 8, 2017, the President met in the Oval Office with senior
advisors, including McGahn, Priebus, and Miller, and informed them he had decided to terminate
Comey.416 The President read aloud the first paragraphs of the termination letter he wrote with

408
S. Miller 10/31/17 302, at 6-8.
409
S. Miller 10/31/17 302, at 7. Miller said he did not want Priebus to be blindsided, so on Sunday
night he called Priebus to tell him that the President had been thinking about the “Comey situation” and
there would be an important discussion on Monday. S. Miller 10/31/17 302, at 7.
410
S. Miller 10/31/17 302, at 8.
411
S. Miller 10/31/17 302, at 8.
412
S. Miller 10/31/17 302, at 10.
413
SCR013c_000003-06 (Draft Termination Letter to FBI Director Comey).
414
SCR013c_000003-06 (Draft Termination Letter to FBI Director Comey). Kushner said that the
termination letter reflected the reasons the President wanted to fire Comey and was the truest representation
of what the President had said during the May 5 dinner. Kushner 4/11/18 302, at 25.
415
SCR013c_000003 (Draft Termination Letter to FBI Director Comey).
416
McGahn 12/12/17 302, at 11; Priebus 10/13/17 302, at 24; S. Miller 10/31/17 302, at 11; Dhillon
11/21/17 302, at 6; Eisenberg 11/29/17 302, at 13.

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Miller and conveyed that the decision had been made and was not up for discussion.417 The
President told the group that Miller had researched the issue and determined the President had the
authority to terminate Comey without cause.418 In an effort to slow down the decision-making
process, McGahn told the President that DOJ leadership was currently discussing Comey’s status
and suggested that White House Counsel’s Office attorneys should talk with Sessions and Rod
Rosenstein, who had recently been confirmed as the Deputy Attorney General.419 McGahn said
that previously scheduled meetings with Sessions and Rosenstein that day would be an opportunity
to find out what they thought about firing Comey.420

At noon, Sessions, Rosenstein, and Hunt met with McGahn and White House Counsel’s
Office attorney Uttam Dhillon at the White House.421 McGahn said that the President had decided
to fire Comey and asked for Sessions’s and Rosenstein’s views.422 Sessions and Rosenstein
criticized Comey and did not raise concerns about replacing him.423 McGahn and Dhillon said the
fact that neither Sessions nor Rosenstein objected to replacing Comey gave them peace of mind
that the President’s decision to fire Comey was not an attempt to obstruct justice.424 An Oval
Office meeting was scheduled later that day so that Sessions and Rosenstein could discuss the
issue with the President.425

At around 5 p.m., the President and several White House officials met with Sessions and
Rosenstein to discuss Comey.426 The President told the group that he had watched Comey’s May

417
S. Miller 10/31/17 302, at 11 (observing that the President started the meeting by saying, “I’m
going to read you a letter. Don’t talk me out of this. I’ve made my decision.”); Dhillon 11/21/17 302, at 6
(the President announced in an irreversible way that he was firing Comey); Eisenberg 11/29/17 302, at 13
(the President did not leave whether or not to fire Comey up for discussion); Priebus 10/13/17 302, at 25;
McGahn 12/12/17 302, at 11-12.
418
Dhillon 302 11/21/17, at 6; Eisenberg 11/29/17 302, at 13; McGahn 12/12/17 302, at 11.
419
McGahn 12/12/17 302, at 12, 13; S. Miller 10/31/17 302, at 11; Dhillon 11/21/17 302, at 7.
Because of the Attorney General’s recusal, Rosenstein became the Acting Attorney General for the Russia
investigation upon his confirmation as Deputy Attorney General. See 28 U.S.C. § 508(a) (“In case of a
vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may
exercise all the duties of that office”).
420
McGahn 12/12/17 302, at 12.
421
Dhillon 11/21/17 302, at 7; McGahn 12/12/17 302, at 13; Gauhar-000056 (Gauhar 5/16/17
Notes); see Gauhar-000056-72 (2/11/19 Memorandum to File attaching Gauhar handwritten notes) (“Ms.
Gauhar determined that she likely recorded all these notes during one or more meetings on Tuesday, May
16, 2017.”).
422
McGahn 12/12/17 302, at 13; see Gauhar-000056 (Gauhar 5/16/17 Notes).
423
Dhillon 11/21/17 302, at 7-9; Sessions 1/17/18 302, at 9; McGahn 12/12/17 302, at 13.
424
McGahn 12/12/17 302, at 13; Dhillon 11/21/17 302, at 9.
425
Hunt-000026 (Hunt 5/8/17 Notes); see Gauhar-000057 (Gauhar 5/16/17 Notes).
426
Rosenstein 5/23/17 302, at 2; McGahn 12/12/17 302, at 14; see Gauhar-000057 (Gauhar 5/16/17
Notes).

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3 testimony over the weekend and thought that something was “not right” with Comey.427 The
President said that Comey should be removed and asked Sessions and Rosenstein for their
views.428 Hunt, who was in the room, recalled that Sessions responded that he had previously
recommended that Comey be replaced.429 McGahn and Dhillon said Rosenstein described his
concerns about Comey’s handling of the Clinton email investigation.430

The President then distributed copies of the termination letter he had drafted with Miller,
and the discussion turned to the mechanics of how to fire Comey and whether the President’s letter
should be used.431 McGahn and Dhillon urged the President to permit Comey to resign, but the
President was adamant that he be fired.432 The group discussed the possibility that Rosenstein and
Sessions could provide a recommendation in writing that Comey should be removed.433 The
President agreed and told Rosenstein to draft a memorandum, but said he wanted to receive it first
thing the next morning.434 Hunt’s notes reflect that the President told Rosenstein to include in his
recommendation the fact that Comey had refused to confirm that the President was not personally
under investigation.435 According to notes taken by a senior DOJ official of Rosenstein’s
description of his meeting with the President, the President said, “Put the Russia stuff in the
memo.”436 Rosenstein responded that the Russia investigation was not the basis of his
recommendation, so he did not think Russia should be mentioned.437 The President told
Rosenstein he would appreciate it if Rosenstein put it in his letter anyway.438 When Rosenstein

427
Hunt-000026-27 (Hunt 5/8/17 Notes).
428
Sessions 1/17/18 302, at 10; see Gauhar-000058 (Gauhar 5/16/17 Notes) (“POTUS to AG: What
is your rec?”).
429
Hunt-000027 (Hunt 5/8/17 Notes).
430
McGahn 12/12/17 302, at 14; Dhillon 11/21/17 302, at 7.
431
Hunt-000028 (Hunt 5/8/17 Notes).
432
McGahn 12/12/17 302, at 13.
433
Hunt-000028-29 (Hunt 5/8/17 Notes).
434
McCabe 9/26/17 302, at 13; Rosenstein 5/23/17 302, at 2; see Gauhar-000059 (Gauhar 5/16/17
Notes) (“POTUS tells DAG to write a memo”).
435
Hunt-000028-29 (Hunt 5/8/17 Notes) (“POTUS asked if Rod’s recommendation would include
the fact that although Comey talks about the investigation he refuses to say that the President is not under
investigation. . . . So it would be good if your recommendation would make mention of the fact that Comey
refuses to say public[ly] what he said privately 3 times.”).
436
Gauhar-000059 (Gauhar 5/16/17 Notes).
437
Sessions 1/17/18 302 at 10; McCabe 9/26/17 302, at 13; see Gauhar-000059 (Gauhar 5/16/17
Notes).
438
Gauhar-000059 (Gauhar 5/16/17 Notes); McCabe 5/16/17 Memorandum 1; McCabe 9/26/17
302, at 13.

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left the meeting, he knew that Comey would be terminated, and he told DOJ colleagues that his
own reasons for replacing Comey were “not [the President’s] reasons.”439

On May 9, Hunt delivered to the White House a letter from Sessions recommending
Comey’s removal and a memorandum from Rosenstein, addressed to the Attorney General, titled
“Restoring Public Confidence in the FBI.”440 McGahn recalled that the President liked the DOJ
letters and agreed that they should provide the foundation for a new cover letter from the President
accepting the recommendation to terminate Comey.441 Notes taken by Donaldson on May 9
reflected the view of the White House Counsel’s Office that the President’s original termination
letter should “[n]ot [see the] light of day” and that it would be better to offer “[n]o other rationales”
for the firing than what was in Rosenstein’s and Sessions’s memoranda.442 The President asked
Miller to draft a new termination letter and directed Miller to say in the letter that Comey had
informed the President three times that he was not under investigation.443 McGahn, Priebus, and
Dhillon objected to including that language, but the President insisted that it be included.444
McGahn, Priebus, and others perceived that language to be the most important part of the letter to

439
Rosenstein 5/23/17 302, at 2; Gauhar-000059 (Gauhar 5/16/17 Notes) (“DAG reasons not their
reasons [POTUS]”); Gauhar-000060 (Gauhar 5/16/17 Notes) (“1st draft had a recommendation. Took it out
b/c knew decision had already been made.”).
440
Rosenstein 5/23/17 302, at 4; McGahn 12/12/17 302, at 15; 5/9/17 Letter, Sessions to President
Trump (“Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the
attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”); 5/9/17
Memorandum, Rosenstein to Sessions (concluding with, “The way the Director handled the conclusion of
the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust
until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having
refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”).
441
S. Miller 10/31/17 302, at 12; McGahn 12/12/17 302, at 15; Hunt-000031 (Hunt 5/9/17 Notes).
442
SC_AD_00342 (Donaldson 5/9/17 Notes). Donaldson also wrote “[i]s this the beginning of the
end?” because she was worried that the decision to terminate Comey and the manner in which it was carried
out would be the end of the presidency. Donaldson 11/6/17 302, at 25.
443
S. Miller 10/31/17 302, at 12; McGahn 12/12/17 302, at 15; Hunt-000032 (Hunt 5/9/17 Notes).
444
McGahn 12/12/17 302, at 15; S. Miller 10/31/17 302, at 12; Dhillon 11/21/17 302, at 8, 10;
Priebus 10/13/17 302, at 27; Hunt 2/1/18 302, at 14-15; Hunt-000032 (Hunt 5/9/17 Notes).

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the President.445 Dhillon made a final pitch to the President that Comey should be permitted to
resign, but the President refused.446

Around the time the President’s letter was finalized, Priebus summoned Spicer and the
press team to the Oval Office, where they were told that Comey had been terminated for the reasons
stated in the letters by Rosenstein and Sessions.447 To announce Comey’s termination, the White
House released a statement, which Priebus thought had been dictated by the President.448 In full,
the statement read: “Today, President Donald J. Trump informed FBI Director James Comey that
he has been terminated and removed from office. President Trump acted based on the clear
recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff
Sessions.”449

That evening, FBI Deputy Director Andrew McCabe was summoned to meet with the
President at the White House.450 The President told McCabe that he had fired Comey because of
the decisions Comey had made in the Clinton email investigation and for many other reasons.451
The President asked McCabe if he was aware that Comey had told the President three times that
he was not under investigation.452 The President also asked McCabe whether many people in the
FBI disliked Comey and whether McCabe was part of the “resistance” that had disagreed with
Comey’s decisions in the Clinton investigation.453 McCabe told the President that he knew Comey
had told the President he was not under investigation, that most people in the FBI felt positively
about Comey, and that McCabe worked “very closely” with Comey and was part of all the
decisions that had been made in the Clinton investigation.454

445
Dhillon 11/21/17 302, at 10; Eisenberg 11/29/17 302, at 15 (providing the view that the
President’s desire to include the language about not being under investigation was the “driving animus of
the whole thing”); Burnham 11/3/17 302, at 16 (Burnham knew the only line the President cared about was
the line that said Comey advised the President on three separate occasions that the President was not under
investigation). According to Hunt’s notes, the reference to Comey’s statement would indicate that
“notwithstanding” Comey’s having informed the President that he was not under investigation, the
President was terminating Comey. Hunt-000032 (Hunt 5/9/17 Notes). McGahn said he believed the
President wanted the language included so that people would not think that the President had terminated
Comey because the President was under investigation. McGahn 12/12/17 302, at 15.
446
McGahn 12/12/17 302, at 15; Donaldson 11/6/17 302, at 25; see SC_AD_00342 (Donaldson
5/9/17 Notes) (“Resign vs. Removal. – POTUS/removal.”).
447
Spicer 10/16/17 302, at 9; McGahn 12/12/17 302, at 16.
448
Priebus 10/13/17 302, at 28.
449
Statement of the Press Secretary, The White House, Office of the Press Secretary (May 9, 2017).
450
McCabe 9/26/17 302, at 4; SCR025_000044 (President’s Daily Diary, 5/9/17); McCabe 5/10/17
Memorandum, at 1.
451
McCabe 9/26/17 302, at 5; McCabe 5/10/17 Memorandum, at 1.
452
McCabe 9/26/17 302, at 5; McCabe 5/10/17 Memorandum, at 1-2.
453
McCabe 9/26/17 302, at 5; McCabe 5/10/17 Memorandum, at 1-2.
454
McCabe 9/26/17 302, at 5; McCabe 5/10/17 Memorandum, at 1-2.

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Later that evening, the President told his communications team he was unhappy with the
press coverage of Comey’s termination and ordered them to go out and defend him.455 The
President also called Chris Christie and, according to Christie, said he was getting “killed” in the
press over Comey’s termination.456 The President asked what he should do.457 Christie asked,
“Did you fire [Comey] because of what Rod wrote in the memo?”, and the President responded,
“Yes.”458 Christie said that the President should “get Rod out there” and have him defend the
decision.459 The President told Christie that this was a “good idea” and said he was going to call
Rosenstein right away.460

That night, the White House Press Office called the Department of Justice and said the
White House wanted to put out a statement saying that it was Rosenstein’s idea to fire Comey.461
Rosenstein told other DOJ officials that he would not participate in putting out a “false story.”462
The President then called Rosenstein directly and said he was watching Fox News, that the
coverage had been great, and that he wanted Rosenstein to do a press conference.463 Rosenstein
responded that this was not a good idea because if the press asked him, he would tell the truth that
Comey’s firing was not his idea.464 Sessions also informed the White House Counsel’s Office that
evening that Rosenstein was upset that his memorandum was being portrayed as the reason for
Comey’s termination.465

In an unplanned press conference late in the evening of May 9, 2017, Spicer told reporters,
“It was all [Rosenstein]. No one from the White House. It was a DOJ decision.”466 That evening
and the next morning, White House officials and spokespeople continued to maintain that the

455
Spicer 10/16/17 302, at 11; Hicks 12/8/17, at 18; Sanders 7/3/18 302, at 2.
456
Christie 2/13/19 302, at 6.
457
Christie 2/13/19 302, at 6.
458
Christie 2/13/19 302, at 6.
459
Christie 2/13/19 302, at 6.
460
Christie 2/13/19 302, at 6.
461
Gauhar-000071 (Gauhar 5/16/17 Notes); Page Memorandum, at 3 (recording events of 5/16/17);
McCabe 9/26/17 302, at 14.
462
Rosenstein 5/23/17 302, at 4-5; Gauhar-000059 (Gauhar 5/16/17 Notes).
463
Rosenstein 5/23/17 302, at 4-5; Gauhar-000071 (Gauhar 5/16/17 Notes).
464
Gauhar-000071 (Gauhar 5/16/17 Notes). DOJ notes from the week of Comey’s firing indicate
that Priebus was “screaming” at the DOJ public affairs office trying to get Rosenstein to do a press
conference, and the DOJ public affairs office told Priebus that Rosenstein had told the President he was not
doing it. Gauhar-000071-72 (Gauhar 5/16/17 Notes).
465
McGahn 12/12/17 302, at 16-17; Donaldson 11/6/17 302, at 26-27; Dhillon 11/21/17 302, at 11.
466
Jenna Johnson, After Trump fired Comey, White House staff scrambled to explain why,
Washington Post (May 10, 2017) (quoting Spicer).

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President’s decision to terminate Comey was driven by the recommendations the President
received from Rosenstein and Sessions.467

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

That same morning, on May 10, 2017, the President called McCabe.473 According to a
memorandum McCabe wrote following the call, the President asked McCabe to come over to the
White House to discuss whether the President should visit FBI headquarters and make a speech to

467
See, e.g., Sarah Sanders, White House Daily Briefing, C-SPAN (May 10, 2017);
SCR013_001088 (5/10/17 Email, Hemming to Cheung et al.) (internal White House email describing
comments on the Comey termination by Vice President Pence).
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.).
469
Matt Apuzzo et al., Trump Told Russians That Firing “Nut Job” Comey Eased Pressure From
Investigation, New York Times (May 19, 2017).
470
SCR08_002117 (5/19/17 Email, Walters to Farhi (CBS News)); see Spicer 10/16/17 302, at 13
(noting he would have been told to “clean it up” if the reporting on the meeting with the Russian Foreign
Minister was inaccurate, but he was never told to correct the reporting); Hicks 12/8/17 302, at 19 (recalling
that the President never denied making the statements attributed to him in the Lavrov meeting and that the
President had said similar things about Comey in an off-the-record meeting with reporters on May 18, 2017,
calling Comey a “nut job” and “crazy”).
471
Hicks 12/8/17 302, at 19.
472
McGahn 12/12/17 302, at 18.
473
SCR025_000046 (President’s Daily Diary, 5/10/17); McCabe 5/10/17 Memorandum, at 1.

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employees.474 The President said he had received “hundreds” of messages from FBI employees
indicating their support for terminating Comey.475 The President also told McCabe that Comey
should not have been permitted to travel back to Washington, D.C. on the FBI’s airplane after he
had been terminated and that he did not want Comey “in the building again,” even to collect his
belongings.476 When McCabe met with the President that afternoon, the President, without
prompting, told McCabe that people in the FBI loved the President, estimated that at least 80% of
the FBI had voted for him, and asked McCabe who he had voted for in the 2016 presidential
election.477

In the afternoon of May 10, 2017, deputy press secretary Sarah Sanders spoke to the
President about his decision to fire Comey and then spoke to reporters in a televised press
conference.478 Sanders told reporters that the President, the Department of Justice, and bipartisan
members of Congress had lost confidence in Comey, “[a]nd most importantly, the rank and file of
the FBI had lost confidence in their director. Accordingly, the President accepted the
recommendation of his Deputy Attorney General to remove James Comey from his position.”479
In response to questions from reporters, Sanders said that Rosenstein decided “on his own” to
review Comey’s performance and that Rosenstein decided “on his own” to come to the President
on Monday, May 8 to express his concerns about Comey. When a reporter indicated that the “vast
majority” of FBI agents supported Comey, Sanders said, “Look, we’ve heard from countless
members of the FBI that say very different things.”480 Following the press conference, Sanders
spoke to the President, who told her she did a good job and did not point out any inaccuracies in
her comments.481 Sanders told this Office that her reference to hearing from “countless members
of the FBI” was a “slip of the tongue.”482 She also recalled that her statement in a separate press
interview that rank-and-file FBI agents had lost confidence in Comey was a comment she made
“in the heat of the moment” that was not founded on anything.483

Also on May 10, 2017, Sessions and Rosenstein each spoke to McGahn and expressed
concern that the White House was creating a narrative that Rosenstein had initiated the decision to

474
McCabe 5/10/17 Memorandum, at 1.
475
McCabe 5/10/17 Memorandum, at 1.
476
McCabe 5/10/17 Memorandum, at 1; Rybicki 6/13/17 302, at 2. Comey had been visiting the
FBI’s Los Angeles office when he found out he had been terminated. Comey 11/15/17 302, at 22.
477
McCabe 5/10/17 Memorandum, at 1-2. McCabe’s memorandum documenting his meeting with
the President is consistent with notes taken by the White House Counsel’s Office. See SC_AD_00347
(Donaldson 5/10/17 Notes).
478
Sanders 7/3/18 302, at 4; Sarah Sanders, White House Daily Briefing, C-SPAN (May 10, 2017).
479
Sarah Sanders, White House Daily Briefing, C-SPAN (May 10, 2017); Sanders 7/3/18 302, at 4.
480
Sarah Sanders, White House Daily Briefing, C-SPAN (May 10, 2017).
481
Sanders 7/3/18 302, at 4.
482
Sanders 7/3/18 302, at 4.
483
Sanders 7/3/18 302, at 3.

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fire Comey.484 The White House Counsel’s Office agreed that it was factually wrong to say that
the Department of Justice had initiated Comey’s termination,485 and McGahn asked attorneys in
the White House Counsel’s Office to work with the press office to correct the narrative.486

The next day, on May 11, 2017, the President participated in an interview with Lester Holt.
The President told White House Counsel’s Office attorneys in advance of the interview that the
communications team could not get the story right, so he was going on Lester Holt to say what
really happened.487 During the interview, the President stated that he had made the decision to fire
Comey before the President met with Rosenstein and Sessions. The President told Holt, “I was
going to fire regardless of recommendation . . . . [Rosenstein] made a recommendation. But
regardless of recommendation, I was going to fire Comey knowing there was no good time to do
it.”488 The President continued, “And in fact, when I decided to just do it, I said to myself—I said,
you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the
Democrats for having lost an election that they should’ve won.”489

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.”490 The President added that he realized his termination of Comey “probably maybe will
confuse people” with the result that it “might even lengthen out the investigation,” but he “ha[d]
to do the right thing for the American people” and Comey was “the wrong man for that position.”491
The President described Comey as “a showboat” and “a grandstander,” said that “[t]he FBI has
been in turmoil,” and said he wanted “to have a really competent, capable director.”492 The
President affirmed that he expected the new FBI director to continue the Russia investigation.493

On the evening of May 11, 2017, following the Lester Holt interview, the President
tweeted, “Russia must be laughing up their sleeves watching as the U.S. tears itself apart over a
Democrat EXCUSE for losing the election.”494 The same day, the media reported that the
President had demanded that Comey pledge his loyalty to the President in a private dinner shortly

484
McGahn 12/12/17 302, at 16-17; Donaldson 11/6/17 302, at 26; see Dhillon 11/21/17 302, at
11.
485
Donaldson 11/6/17 302, at 27.
486
McGahn 12/12/17 302, at 17.
487
Dhillon 11/21/17 302, at 11.
488
Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 2.
489
Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 2.
490
Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 3.
491
Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 3.
492
Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 1, 5.
493
Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 7.
494
@realDonaldTrump 5/11/17 (4:34 p.m. ET) Tweet.

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after being sworn in.495 Late in the morning of May 12, 2017, the President tweeted, “Again, the
story that there was collusion between the Russians & Trump campaign was fabricated by Dems
as an excuse for losing the election.”496 The President also tweeted, “James Comey better hope
that there are no ‘tapes’ of our conversations before he starts leaking to the press!” and “When
James Clapper himself, and virtually everyone else with knowledge of the witch hunt, says there
is no collusion, when does it end?”497

Analysis

In analyzing the President’s decision to fire Comey, the following evidence is relevant to
the elements of obstruction of justice:

a. Obstructive act. The act of firing Comey removed the individual overseeing the
FBI’s Russia investigation. The President knew that Comey was personally involved in the
investigation based on Comey’s briefing of the Gang of Eight, Comey’s March 20, 2017 public
testimony about the investigation, and the President’s one-on-one conversations with Comey.

Firing Comey would qualify as an obstructive act if it had the natural and probable effect
of interfering with or impeding the investigation—for example, if the termination would have the
effect of delaying or disrupting the investigation or providing the President with the opportunity
to appoint a director who would take a different approach to the investigation that the President
perceived as more protective of his personal interests. Relevant circumstances bearing on that
issue include whether the President’s actions had the potential to discourage a successor director
or other law enforcement officials in their conduct of the Russia investigation. The President fired
Comey abruptly without offering him an opportunity to resign, banned him from the FBI building,
and criticized him publicly, calling him a “showboat” and claiming that the FBI was “in turmoil”
under his leadership. And the President followed the termination with public statements that were
highly critical of the investigation; for example, three days after firing Comey, the President
referred to the investigation as a “witch hunt” and asked, “when does it end?” Those actions had
the potential to affect a successor director’s conduct of the investigation.

The anticipated effect of removing the FBI director, however, would not necessarily be to
prevent or impede the FBI from continuing its investigation. As a general matter, FBI
investigations run under the operational direction of FBI personnel levels below the FBI director.
Bannon made a similar point when he told the President that he could fire the FBI director, but
could not fire the FBI. The White House issued a press statement the day after Comey was fired
that said, “The investigation would have always continued, and obviously, the termination of
Comey would not have ended it.” In addition, in his May 11 interview with Lester Holt, the
President stated that he understood when he made the decision to fire Comey that the action might
prolong the investigation. And the President chose McCabe to serve as interim director, even

495
Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred., New
York Times (May 11, 2017).
496
@realDonaldTrump 5/12/17 (7:51 a.m. ET) Tweet.
497
@realDonaldTrump 5/12/17 (8:26 a.m. ET) Tweet; @realDonaldTrump 5/12/17 (8:54 a.m. ET)
Tweet.

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though McCabe told the President he had worked “very closely” with Comey and was part of all
the decisions made in the Clinton investigation.

b. Nexus to a proceeding. The nexus element would be satisfied by evidence showing


that a grand jury proceeding or criminal prosecution arising from an FBI investigation was
objectively foreseeable and actually contemplated by the President when he terminated Comey.

Several facts would be relevant to such a showing. At the time the President fired Comey,
a grand jury had not begun to hear evidence related to the Russia investigation and no grand jury
subpoenas had been issued. On March 20, 2017, however, Comey had announced that the FBI
was investigating Russia’s interference in the election, including “an assessment of whether any
crimes were committed.” It was widely known that the FBI, as part of the Russia investigation,
was investigating the hacking of the DNC’s computers—a clear criminal offense.

In addition, at the time the President fired Comey, evidence indicates the President knew
that Flynn was still under criminal investigation and could potentially be prosecuted, despite the
President’s February 14, 2017 request that Comey “let[] Flynn go.” On March 5, 2017, the White
House Counsel’s Office was informed that the FBI was asking for transition-period records
relating to Flynn—indicating that the FBI was still actively investigating him. The same day, the
President told advisors he wanted to call Dana Boente, then the Acting Attorney General for the
Russia investigation, to find out whether the White House or the President was being investigated.
On March 31, 2017, the President signaled his awareness that Flynn remained in legal jeopardy by
tweeting that “Mike Flynn should ask for immunity” before he agreed to provide testimony to the
FBI or Congress. And in late March or early April, the President asked McFarland to pass a
message to Flynn telling him that the President felt bad for him and that he should stay strong,
further demonstrating the President’s awareness of Flynn’s criminal exposure.

c. Intent. Substantial evidence indicates that the catalyst for the President’s decision
to fire Comey was Comey’s unwillingness to publicly state that the President was not personally
under investigation, despite the President’s repeated requests that Comey make such an
announcement. In the week leading up to Comey’s May 3, 2017 Senate Judiciary Committee
testimony, the President told McGahn that it would be the last straw if Comey did not set the record
straight and publicly announce that the President was not under investigation. But during his May
3 testimony, Comey refused to answer questions about whether the President was being
investigated. Comey’s refusal angered the President, who criticized Sessions for leaving him
isolated and exposed, saying “You left me on an island.” Two days later, the President told
advisors he had decided to fire Comey and dictated a letter to Stephen Miller that began with a
reference to the fact that the President was not being investigated: “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 . . . .” The President later asked Rosenstein to include
“Russia” in his memorandum and to say that Comey had told the President that he was not under
investigation. And the President’s final termination letter included a sentence, at the President’s
insistence and against McGahn’s advice, stating that Comey had told the President on three
separate occasions that he was not under investigation.

The President’s other stated rationales for why he fired Comey are not similarly supported
by the evidence. The termination letter the President and Stephen Miller prepared in Bedminster

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cited Comey’s handling of the Clinton email investigation, and the President told McCabe he fired
Comey for that reason. But the facts surrounding Comey’s handling of the Clinton email
investigation were well known to the President at the time he assumed office, and the President
had made it clear to both Comey and the President’s senior staff in early 2017 that he wanted
Comey to stay on as director. And Rosenstein articulated his criticism of Comey’s handling of the
Clinton investigation after the President had already decided to fire Comey. The President’s draft
termination letter also stated that morale in the FBI was at an all-time low and Sanders told the
press after Comey’s termination that the White House had heard from “countless” FBI agents who
had lost confidence in Comey. But the evidence does not support those claims. The President told
Comey at their January 27 dinner that “the people of the FBI really like [him],” no evidence
suggests that the President heard otherwise before deciding to terminate Comey, and Sanders
acknowledged to investigators that her comments were not founded on anything.

We also considered why it was important to the President that Comey announce publicly
that he was not under investigation. Some evidence indicates that the President believed that the
erroneous perception he was under investigation harmed his ability to manage domestic and
foreign affairs, particularly in dealings with Russia. The President told Comey that the “cloud” of
“this Russia business” was making it difficult to run the country. The President told Sessions and
McGahn that foreign leaders had expressed sympathy to him for being under investigation and that
the perception he was under investigation was hurting his ability to address foreign relations issues.
The President complained to Rogers that “the thing with the Russians [was] messing up” his ability
to get things done with Russia, and told Coats, “I can’t do anything with Russia, there’s things I’d
like to do with Russia, with trade, with ISIS, they’re all over me with this.” The President also
may have viewed Comey as insubordinate for his failure to make clear in the May 3 testimony that
the President was not under investigation.

Other evidence, however, indicates that the President wanted to protect himself from an
investigation into his campaign. The day after learning about the FBI’s interview of Flynn, the
President had a one-on-one dinner with Comey, against the advice of senior aides, and told Comey
he needed Comey’s “loyalty.” When the President later asked Comey for a second time to make
public that he was not under investigation, he brought up loyalty again, saying “Because I have
been very loyal to you, very loyal, we had that thing, you know.” After the President learned of
Sessions’s recusal from the Russia investigation, the President was furious and said he wanted an
Attorney General who would protect him the way he perceived Robert Kennedy and Eric Holder
to have protected their presidents. The President also said he wanted to be able to tell his Attorney
General “who to investigate.”

In addition, the President had a motive to put the FBI’s Russia investigation behind him.
The evidence does not establish that the termination of Comey was designed to cover up a
conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence
uncovered in the investigation did not establish that the President or those close to him were
involved in the charged Russian computer-hacking or active-measure conspiracies, or that the
President otherwise had an unlawful relationship with any Russian official. But the evidence does
indicate that a thorough FBI investigation would uncover facts about the campaign and the
President personally that the President could have understood to be crimes or that would give rise
to personal and political concerns. Although the President publicly stated during and after the
election that he had no connection to Russia, the Trump Organization, through Michael Cohen,

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was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump
was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that
Trump was aware that Roger Stone was pursuing information about hacked documents from
WikiLeaks at a time when public reports stated that Russian intelligence officials were behind the
hacks, and that Trump privately sought information about future WikiLeaks releases.499 More
broadly, multiple witnesses described the President’s preoccupation with press coverage of the
Russia investigation and his persistent concern that it raised questions about the legitimacy of his
election.500

Finally, the President and White House aides initially advanced a pretextual reason to the
press and the public for Comey’s termination. In the immediate aftermath of the firing, the
President dictated a press statement suggesting that he had acted based on the DOJ
recommendations, and White House press officials repeated that story. But the President had
decided to fire Comey before the White House solicited those recommendations. Although the
President ultimately acknowledged that he was going to fire Comey regardless of the Department
of Justice’s recommendations, he did so only after DOJ officials made clear to him that they would
resist the White House’s suggestion that they had prompted the process that led to Comey’s
termination. The initial reliance on a pretextual justification could support an inference that the
President had concerns about providing the real reason for the firing, although the evidence does
not resolve whether those concerns were personal, political, or both.

E. The President’s Efforts to Remove the Special Counsel

Overview

The Acting Attorney General appointed a Special Counsel on May 17, 2017, prompting
the President to state that it was the end of his presidency and that Attorney General Sessions had
failed to protect him and should resign. Sessions submitted his resignation, which the President
ultimately did not accept. The President told senior advisors that the Special Counsel had conflicts
of interest, but they responded that those claims were “ridiculous” and posed no obstacle to the
Special Counsel’s service. Department of Justice ethics officials similarly cleared the Special
Counsel’s service. On June 14, 2017, the press reported that the President was being personally
investigated for obstruction of justice and the President responded with a series of tweets

498
See Volume II, Section II.K.1, infra.
499
See Volume I, Section III.D.1, supra.
500
In addition to whether the President had a motive related to Russia-related matters that an FBI
investigation could uncover, we considered whether the President’s intent in firing Comey was connected
to other conduct that could come to light as a result of the FBI’s Russian-interference investigation. In
particular, Michael Cohen was a potential subject of investigation because of his pursuit of the Trump
Tower Moscow project and involvement in other activities. And facts uncovered in the Russia
investigation, which our Office referred to the U.S. Attorney’s Office for the Southern District of New
York, ultimately led to the conviction of Cohen in the Southern District of New York for campaign-finance
offenses related to payments he said he made at the direction of the President. See Volume II, Section
II.K.5, infra. The investigation, however, did not establish that when the President fired Comey, he was
considering the possibility that the FBI’s investigation would uncover these payments or that the President’s
intent in firing Comey was otherwise connected to a concern about these matters coming to light.

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criticizing the Special Counsel’s investigation. That weekend, the President called McGahn and
directed him to have the Special Counsel removed because of asserted conflicts of interest.
McGahn did not carry out the instruction for fear of being seen as triggering another Saturday
Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President
did not follow up with McGahn on his request to have the Special Counsel removed.

Evidence

1. The Appointment of the Special Counsel and the President’s Reaction

On May 17, 2017, Acting Attorney General Rosenstein appointed Robert S. Mueller, III as
Special Counsel and authorized him to conduct the Russia investigation and matters that arose
from the investigation.501 The President learned of the Special Counsel’s appointment from
Sessions, who was with the President, Hunt, and McGahn conducting interviews for a new FBI
Director.502 Sessions stepped out of the Oval Office to take a call from Rosenstein, who told him
about the Special Counsel appointment, and Sessions then returned to inform the President of the
news.503 According to notes written by Hunt, when Sessions told the President that a Special
Counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This
is terrible. This is the end of my Presidency. I’m fucked.”504 The President became angry and
lambasted the Attorney General for his decision to recuse from the investigation, stating, “How
could you let this happen, Jeff?”505 The President said the position of Attorney General was his
most important appointment and that Sessions had “let [him] down,” contrasting him to Eric
Holder and Robert Kennedy.506 Sessions recalled that the President said to him, “you were
supposed to protect me,” or words to that effect.507 The President returned to the consequences of
the appointment and said, “Everyone tells me if you get one of these independent counsels it ruins
your presidency. It takes years and years and I won’t be able to do anything. This is the worst
thing that ever happened to me.”508

501
Office of the Deputy Attorney General, Order No. 3915-2017, Appointment of Special Counsel
to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17,
2017).
502
Sessions 1/17/18 302, at 13; Hunt 2/1/18 302, at 18; McGahn 12/14/17 302, at 4; Hunt-000039
(Hunt 5/17/17 Notes).
503
Sessions 1/17/18 302, at 13; Hunt 2/1/18 302, at 18; McGahn 12/14/17 302, at 4; Hunt-000039
(Hunt 5/17/17 Notes).
504
Hunt-000039 (Hunt 5/17/17 Notes).
505
Hunt-000039 (Hunt 5/17/17 Notes); Sessions 1/17/18 302, at 13-14.
506
Hunt-000040; see Sessions 1/17/18 302, at 14.
507
Sessions 1/17/18 302, at 14.
508
Hunt-000040 (Hunt 5/17/17 Notes); see Sessions 1/17/18 302, at 14. Early the next morning,
the President tweeted, “This is the single greatest witch hunt of a politician in American history!”
@realDonaldTrump 5/18/17 (7:52 a.m. ET) Tweet.

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The President then told Sessions he should resign as Attorney General.509 Sessions agreed
to submit his resignation and left the Oval Office.510 Hicks saw the President shortly after Sessions
departed and described the President as being extremely upset by the Special Counsel’s
appointment.511 Hicks said that she had only seen the President like that one other time, when the
Access Hollywood tape came out during the campaign.512

The next day, May 18, 2017, FBI agents delivered to McGahn a preservation notice that
discussed an investigation related to Comey’s termination and directed the White House to
preserve all relevant documents.513 When he received the letter, McGahn issued a document hold
to White House staff and instructed them not to send out any burn bags over the weekend while
he sorted things out.514

Also on May 18, Sessions finalized a resignation letter that stated, “Pursuant to our
conversation of yesterday, and at your request, I hereby offer my resignation.”515 Sessions,
accompanied by Hunt, brought the letter to the White House and handed it to the President.516 The
President put the resignation letter in his pocket and asked Sessions several times whether he
wanted to continue serving as Attorney General.517 Sessions ultimately told the President he
wanted to stay, but it was up to the President. 518 The President said he wanted Sessions to stay.519
At the conclusion of the meeting, the President shook Sessions’s hand but did not return the
resignation letter.520

When Priebus and Bannon learned that the President was holding onto Sessions’s
resignation letter, they became concerned that it could be used to influence the Department of
Justice.521 Priebus told Sessions it was not good for the President to have the letter because it

509
Hunt-000041 (Hunt 5/17/17 Notes); Sessions 1/17/18 302, at 14.
510
Hunt-000041 (Hunt 5/17/17 Notes); Sessions 1/17/18 302, at 14.
511
Hicks 12/8/17 302, at 21.
512
Hicks 12/8/17 302, at 21. The Access Hollywood tape was released on October 7, 2016, as
discussed in Volume I, Section III.D.1, supra.
513
McGahn 12/14/17 302, at 9; SCR015_000175-82 (Undated Draft Memoranda to White House
Staff).
514
McGahn 12/14/17 302, at 9; SCR015_000175-82 (Undated Draft Memoranda to White House
Staff). The White House Counsel’s Office had previously issued a document hold on February 27, 2017.
SCR015_000171 (2/17/17 Memorandum from McGahn to Executive Office of the President Staff).
515
Hunt-000047 (Hunt 5/18/17 Notes); 5/18/17 Letter, Sessions to President Trump (resigning as
Attorney General).
516
Hunt-000047-49 (Hunt 5/18/17 Notes); Sessions 1/17/18 302, at 14.
517
Hunt-000047-49 (Hunt 5/18/17 Notes); Sessions 1/17/18 302, at 14.
518
Hunt-000048-49 (Hunt 5/18/17 Notes); Sessions 1/17/18 302, at 14.
519
Sessions 1/17/18 302, at 14.
520
Hunt-000049 (Hunt 5/18/17 Notes).
521
Hunt-000050-51 (Hunt 5/18/17 Notes).

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would function as a kind of "shock collar " th at the President could use any time he wanted; Priebus
said th e President had "DOJ by the throat." 522 Priebus an d Bannon told Sessions they would
attempt to get the letter back from the President with a notation that he was not accepting
Sessions ' s resignation .523

On May 19, 2017, the President left for a trip to the Middle East. 524 Hicks recalled that on
th e President's flight from Saudi Arabia to Tel Aviv, the President pulled Sessions's resignation
letter from his pocket, showed it to a group of senior advisors, and asked th em what he should do
about it. 525 Dming the trip, Priebus asked about the resignation letter so he could return it to
Sessions, but the President told him that the letter was back at the White House, somewhere in the
residence. 526 It was not until May 30, three days after the President returned from the ti·ip, that the
President returned the letter to Sessions with a notation saying, "Not accepted." 527

2. The President Asserts that the Special Counsel has Conflicts of Interest

In the days following the Special Counsel 's appointment, the President repeatedly told
advisors, including Priebus, Bannon, and McGahn, that Special Counsel Mueller had conflicts of
interest. 528 The President cited as conflicts that Mueller had interviewed for the FBI Director
position shortly before being appointed as Special Counsel, that he had worked for a law fnm th at
represented people affiliated with the President, an d that Mueller had disputed ceiiain fees relating
to his m embership in a Trnmp golf course in Noii hern Virginia. 529 The President 's advisors pushed

522
Hunt-000050 (Hunt 5/ 18/ 17 Notes); Priebus 10/13/ 17 302, at 21 ; Hunt 2/ 1/18 302, at 21.
523
Hunt-000051 (Hunt 5/ 18/ 17 Notes).
524
SCR026_ 000110 (President's Daily Diaiy, 5/ 19/ 17).
525
Hicks 12/8/ 17 302, at 22.
526
Priebus 10/ 13/ 17 302, at 21. Hunt's notes state that when Piiebus returned from the trip, Pliebus
told Hunt that the President was supposed to have given him the letter, but when he asked for it, the
President "slapped the desk" and said he had forgotten it back at the hotel. Hunt-000052 (Hunt Notes,
undated).
527
Hunt-000052-53 (Hunt 5/30/17 Notes); 5/ 18/ 17 Letter, Sessions to Pi·esident Tnnnp (resignation
letter). Robeit Poiter, who was the White House Staff Secretaiy at the time, said that in the days after the
President returned from the Middle East trip, the President took Sessions' s letter out of a drawer in the Oval
Office and showed it to Poiter. Poiter 4/ 13/ 18 302, at 8. (b)(6)/
(b)(7)(C)-4

528
Priebus 1/18/ 18 302, at 12; Bannon 2/14/ 18 302, at 10; McGahn 3/8/ 18 302, at l ; McGahn
12/ 14/17 302, at 10; Bannon 10/26/ 18 302, at 12.
529
Pliebus 1/18/ 18 302, at 12; Bannon 2/14/ 18 302, at 10. In October 2011 , Mueller resigned his
family's membership from Tmmp National Golf Club in Sterling, Virginia, in a letter that noted that "we
live in the District and find that we are unable to make full use of the Club" and that inquired "whether we
would be entitled to a refund of a poition of our initial membership fee ," which was paid in 1994. 10/ 12/ 11
Letter, Muellers to Tmmp National Golf Club. About two weeks later, the controller of the club responded
that the Muellers' resignation would be effective October 31, 2011 , and that they would be "placed on a
waitlist to be refunded on a first resigned / first refunded basis" in accordance with the club's legal

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back on his assertion of conflicts, telling the President they did not count as true conflicts.530
Bannon recalled telling the President that the purported conflicts were “ridiculous” and that none
of them was real or could come close to justifying precluding Mueller from serving as Special
Counsel.531 As for Mueller’s interview for FBI Director, Bannon recalled that the White House
had invited Mueller to speak to the President to offer a perspective on the institution of the FBI.532
Bannon said that, although the White House thought about beseeching Mueller to become Director
again, he did not come in looking for the job.533 Bannon also told the President that the law firm
position did not amount to a conflict in the legal community.534 And Bannon told the President
that the golf course dispute did not rise to the level of a conflict and claiming one was “ridiculous
and petty.”535 The President did not respond when Bannon pushed back on the stated conflicts of
interest.536

On May 23, 2017, the Department of Justice announced that ethics officials had determined
that the Special Counsel’s prior law firm position did not bar his service, generating media reports
that Mueller had been cleared to serve.537 McGahn recalled that around the same time, the
President complained about the asserted conflicts and prodded McGahn to reach out to Rosenstein
about the issue.538 McGahn said he responded that he could not make such a call and that the
President should instead consult his personal lawyer because it was not a White House issue.539
Contemporaneous notes of a May 23, 2017 conversation between McGahn and the President
reflect that McGahn told the President that he would not call Rosenstein and that he would suggest
that the President not make such a call either.540 McGahn advised that the President could discuss
the issue with his personal attorney but it would “look like still trying to meddle in [the]
investigation” and “knocking out Mueller” would be “[a]nother fact used to claim obst[ruction] of

documents. 10/27/11 Letter, Muellers to Trump National Golf Club. The Muellers have not had further
contact with the club.
530
Priebus 4/3/18 302, at 3; Bannon 10/26/18 302, at 13 (confirming that he, Priebus, and McGahn
pushed back on the asserted conflicts).
531
Bannon 10/26/18 302, at 12-13.
532
Bannon 10/26/18 302, at 12.
533
Bannon 10/26/18 302, at 12.
534
Bannon 10/26/18 302, at 12.
535
Bannon 10/26/18 302, at 13.
536
Bannon 10/26/18 302, at 12.
537
Matt Zapotosky & Matea Gold, Justice Department ethics experts clear Mueller to lead Russia
probe, Washington Post (May 23, 2017).
538
McGahn 3/8/18 302, at 1; McGahn 12/14/17 302, at 10; Priebus 1/18/18 302, at 12.
539
McGahn 3/8/18 302, at 1. McGahn and Donaldson said that after the appointment of the Special
Counsel, they considered themselves potential fact witnesses and accordingly told the President that
inquiries related to the investigation should be brought to his personal counsel. McGahn 12/14/17 302, at
7; Donaldson 4/2/18 302, at 5.
540
SC_AD_00361 (Donaldson 5/31/17 Notes).

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just[ice].”541 McGahn told the President that his “biggest exposure” was not his act of firing
Comey but his “other contacts” and “calls,” and his “ask re: Flynn.”542 By the time McGahn
provided this advice to the President, there had been widespread reporting on the President’s
request for Comey’s loyalty, which the President publicly denied; his request that Comey “let[]
Flynn go,” which the President also denied; and the President’s statement to the Russian Foreign
Minister that the termination of Comey had relieved “great pressure” related to Russia, which the
President did not deny.543

On June 8, 2017, Comey testified before Congress about his interactions with the President
before his termination, including the request for loyalty, the request that Comey “let[] Flynn go,”
and the request that Comey “lift the cloud” over the presidency caused by the ongoing
investigation.544 Comey’s testimony led to a series of news reports about whether the President
had obstructed justice.545 On June 9, 2017, the Special Counsel’s Office informed the White House
Counsel’s Office that investigators intended to interview intelligence community officials who had
allegedly been asked by the President to push back against the Russia investigation.546

On Monday, June 12, 2017, Christopher Ruddy, the chief executive of Newsmax Media
and a longtime friend of the President’s, met at the White House with Priebus and Bannon.547
Ruddy recalled that they told him the President was strongly considering firing the Special Counsel

541
SC_AD_00361 (Donaldson 5/31/17 Notes).
542
SC_AD_00361 (Donaldson 5/31/17 Notes).
543
See, e.g., Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey
Demurred., New York Times (May 11, 2017); Michael S. Schmidt, Comey Memorandum Says Trump
Asked Him to End Flynn Investigation, New York Times (May 16, 2017); Matt Apuzzo et al., Trump Told
Russians That Firing ‘Nut Job’ Comey Eased Pressure From Investigation, New York Times (May 19,
2017).
544
Hearing on Russian Election Interference Before the Senate Select Intelligence Committee,
115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at
5-6). Comey testified that he deliberately caused his memorandum documenting the February 14, 2017
meeting to be leaked to the New York Times in response to a tweet from the President, sent on May 12,
2017, that stated “James Comey better hope that there are no ‘tapes’ of our conversations before he starts
leaking to the press!,” and because he thought sharing the memorandum with a reporter “might prompt the
appointment of a special counsel.” Hearing on Russian Election Interference Before the Senate Select
Intelligence Committee, 115th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 55) (testimony by James B.
Comey, former Director of the FBI).
545
See, e.g., Matt Zapotosky, Comey lays out the case that Trump obstructed justice, Washington
Post (June 8, 2017) (“Legal analysts said Comey’s testimony clarified and bolstered the case that the
president obstructed justice.”).
546
6/9/17 Email, Special Counsel’s Office to the White House Counsel’s Office. This Office made
the notification to give the White House an opportunity to invoke executive privilege in advance of the
interviews. On June 12, 2017, the Special Counsel’s Office interviewed Admiral Rogers in the presence of
agency counsel. Rogers 6/12/17 302, at 1. On June 13, the Special Counsel’s Office interviewed Ledgett.
Ledgett 6/13/17 302, at 1. On June 14, the Office interviewed Coats and other personnel from his office.
Coats 6/14/17 302, at 1; Gistaro 6/14/17 302, at 1; Culver 6/14/17 302, at 1.
547
Ruddy 6/6/18 302, at 5.

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and that he would do so precipitously, without vetting the decision through Administration
officials.548 Ruddy asked Priebus if Ruddy could talk publicly about the discussion they had about
the Special Counsel, and Priebus said he could.549 Priebus told Ruddy he hoped another blow up
like the one that followed the termination of Comey did not happen.550 Later that day, Ruddy
stated in a televised interview that the President was “considering perhaps terminating the Special
Counsel” based on purported conflicts of interest.551 Ruddy later told another news outlet that
“Trump is definitely considering” terminating the Special Counsel and “it’s not something that’s
being dismissed.”552 Ruddy’s comments led to extensive coverage in the media that the President
was considering firing the Special Counsel.553

White House officials were unhappy with that press coverage and Ruddy heard from
friends that the President was upset with him.554 On June 13, 2017, Sanders asked the President
for guidance on how to respond to press inquiries about the possible firing of the Special
Counsel.555 The President dictated an answer, which Sanders delivered, saying that “[w]hile the
president has every right to” fire the Special Counsel, “he has no intention to do so.”556

Also on June 13, 2017, the President’s personal counsel contacted the Special Counsel’s
Office and raised concerns about possible conflicts.557 The President’s counsel cited Mueller’s
previous partnership in his law firm, his interview for the FBI Director position, and an asserted
personal relationship he had with Comey.558 That same day, Rosenstein had testified publicly
before Congress and said he saw no evidence of good cause to terminate the Special Counsel,
including for conflicts of interest.559 Two days later, on June 15, 2017, the Special Counsel’s

548
Ruddy 6/6/18 302, at 5-6.
549
Ruddy 6/6/18 302, at 6.
550
Ruddy 6/6/18 302, at 6.
551
Trump Confidant Christopher Ruddy says Mueller has “real conflicts” as special counsel, PBS
(June 12, 2017); Michael D. Shear & Maggie Haberman, Friend Says Trump Is Considering Firing Mueller
as Special Counsel, New York Times (June 12, 2017).
552
Katherine Faulders & Veronica Stracqualursi, Trump friend Chris Ruddy says Spicer’s ‘bizarre’
statement doesn’t deny claim Trump seeking Mueller firing, ABC (June 13, 2017).
553
See, e.g., Michael D. Shear & Maggie Haberman, Friend Says Trump Is Considering Firing
Mueller as Special Counsel, New York Times (June 12, 2017).
554
Ruddy 6/6/18 302, at 6-7.
555
Sanders 7/3/18 302, at 6-7.
556
Glenn Thrush et al., Trump Stews, Staff Steps In, and Mueller Is Safe for Now, New York Times
(June 13, 2017); see Sanders 7/3/18 302, at 6 (Sanders spoke with the President directly before speaking to
the press on Air Force One and the answer she gave is the answer the President told her to give).
557
Special Counsel’s Office Attorney 6/13/17 Notes.
558
Special Counsel’s Office Attorney 6/13/17 Notes.
559
Hearing on Fiscal 2018 Justice Department Budget before the Senate Appropriations
Subcommittee on Commerce, Justice, and Science, 115th Cong. (June 13, 2017) (CQ Cong. Transcripts, at
14) (testimony by Rod Rosenstein, Deputy Attorney General).

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Office informed the Acting Attorney General’s office about the areas of concern raised by the
President’s counsel and told the President’s counsel that their concerns had been communicated to
Rosenstein so that the Department of Justice could take any appropriate action.560

3. The Press Reports that the President is Being Investigated for Obstruction of
Justice and the President Directs the White House Counsel to Have the Special
Counsel Removed

On the evening of June 14, 2017, the Washington Post published an article stating that the
Special Counsel was investigating whether the President had attempted to obstruct justice.561 This
was the first public report that the President himself was under investigation by the Special
Counsel’s Office, and cable news networks quickly picked up on the report.562 The Post story
stated that the Special Counsel was interviewing intelligence community leaders, including Coats
and Rogers, about what the President had asked them to do in response to Comey’s March 20,
2017 testimony; that the inquiry into obstruction marked “a major turning point” in the
investigation; and that while “Trump had received private assurances from then-FBI Director
James B. Comey starting in January that he was not personally under investigation,” “[o]fficials
say that changed shortly after Comey’s firing.”563 That evening, at approximately 10:31 p.m., the
President called McGahn on McGahn’s personal cell phone and they spoke for about 15
minutes.564 McGahn did not have a clear memory of the call but thought they might have discussed
the stories reporting that the President was under investigation.565

Beginning early the next day, June 15, 2017, the President issued a series of tweets
acknowledging the existence of the obstruction investigation and criticizing it. He wrote: “They
made up a phony collusion with the Russians story, found zero proof, so now they go for
obstruction of justice on the phony story. Nice”;566 “You are witnessing the single greatest WITCH
HUNT in American political history—led by some very bad and conflicted people!”;567 and
“Crooked H destroyed phones w/ hammer, ‘bleached’ emails, & had husband meet w/AG days

560
Special Counsel’s Office Attorney 6/15/17 Notes.
561
Devlin Barrett et al., Special counsel is investigating Trump for possible obstruction of justice,
officials say, Washington Post (June 14, 2017).
562
CNN, for example, began running a chyron at 6:55 p.m. that stated: “WASH POST: MUELLER
INVESTIGATING TRUMP FOR OBSTRUCTION OF JUSTICE.” CNN, (June 14, 2017, published
online at 7:15 p.m. ET).
563
Devlin Barrett et al., Special counsel is investigating Trump for possible obstruction of justice,
officials say, Washington Post (June 14, 2017).
564
SCR026_000183 (President’s Daily Diary, 6/14/17) (reflecting call from the President to
McGahn on 6/14/17 with start time 10:31 p.m. and end time 10:46 p.m.); Call Records of Don McGahn.
565
McGahn 2/28/19 302, at 1-2. McGahn thought he and the President also probably talked about
the investiture ceremony for Supreme Court Justice Neil Gorsuch, which was scheduled for the following
day. McGahn 2/28/18 302, at 2.
566
@realDonaldTrump 6/15/17 (6:55 a.m. ET) Tweet.
567
@realDonaldTrump 6/15/17 (7:57 a.m. ET) Tweet.

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before she was cleared—& they talk about obstruction?”568 The next day, June 16, 2017, the
President wrote additional tweets criticizing the investigation: “After 7 months of investigations
& committee hearings about my ‘collusion with the Russians,’ nobody has been able to show any
proof. Sad!”;569 and “I am being investigated for firing the FBI Director by the man who told me
to fire the FBI Director! Witch Hunt.”570

On Saturday, June 17, 2017, the President called McGahn and directed him to have the
Special Counsel removed.571 McGahn was at home and the President was at Camp David.572 In
interviews with this Office, McGahn recalled that the President called him at home twice and on
both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded
him from serving as Special Counsel.573

On the first call, McGahn recalled that the President said something like, “You gotta do
this. You gotta call Rod.”574 McGahn said he told the President that he would see what he could
do.575 McGahn was perturbed by the call and did not intend to act on the request.576 He and other
advisors believed the asserted conflicts were “silly” and “not real,” and they had previously
communicated that view to the President.577 McGahn also had made clear to the President that the
White House Counsel’s Office should not be involved in any effort to press the issue of conflicts.578
McGahn was concerned about having any role in asking the Acting Attorney General to fire the
Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge

568
@realDonaldTrump 6/15/17 (3:56 p.m. ET) Tweet.
569
@realDonaldTrump 6/16/17 (7:53 a.m. ET) Tweet.
570
@realDonaldTrump 6/16/17 (9:07 a.m. ET) Tweet.
571
McGahn 3/8/18 302, at 1-2; McGahn 12/14/17 302, at 10.
572
McGahn 3/8/18 302, at 1, 3; SCR026_000196 (President’s Daily Diary, 6/17/17) (records
showing President departed the White House at 11:07 a.m. on June 17, 2017, and arrived at Camp David at
11:37 a.m.).
573
McGahn 3/8/18 302, at 1-2; McGahn 12/14/17 302, at 10. Phone records show that the President
called McGahn in the afternoon on June 17, 2017, and they spoke for approximately 23 minutes.
SCR026_000196 (President’s Daily Diary, 6/17/17) (reflecting call from the President to McGahn on
6/17/17 with start time 2:23 p.m. and end time 2:46 p.m.); (Call Records of Don McGahn). Phone records
do not show another call between McGahn and the President that day. Although McGahn recalled receiving
multiple calls from the President on the same day, in light of the phone records he thought it was possible
that the first call instead occurred on June 14, 2017, shortly after the press reported that the President was
under investigation for obstruction of justice. McGahn 2/28/19 302, at 1-3. While McGahn was not certain
of the specific dates of the calls, McGahn was confident that he had at least two phone conversations with
the President in which the President directed him to call the Acting Attorney General to have the Special
Counsel removed. McGahn 2/28/19 302, at 1-3.
574
McGahn 3/8/18 302, at 1.
575
McGahn 3/8/18 302, at 1.
576
McGahn 3/8/18 302, at 1.
577
McGahn 3/8/18 302, at 1-2.
578
McGahn 3/8/18 302, at 1-2.

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Robert Bork and not “Saturday Night Massacre Bork.”579 McGahn considered the President’s
request to be an inflection point and he wanted to hit the brakes.580

When the President called McGahn a second time to follow up on the order to call the
Department of Justice, McGahn recalled that the President was more direct, saying something like,
“Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.”581 McGahn
recalled the President telling him “Mueller has to go” and “Call me back when you do it.”582
McGahn understood the President to be saying that the Special Counsel had to be removed by
Rosenstein.583 To end the conversation with the President, McGahn left the President with the
impression that McGahn would call Rosenstein.584 McGahn recalled that he had already said no
to the President’s request and he was worn down, so he just wanted to get off the phone.585

McGahn recalled feeling trapped because he did not plan to follow the President’s directive
but did not know what he would say the next time the President called.586 McGahn decided he had
to resign.587 He called his personal lawyer and then called his chief of staff, Annie Donaldson, to
inform her of his decision.588 He then drove to the office to pack his belongings and submit his
resignation letter.589 Donaldson recalled that McGahn told her the President had called and
demanded he contact the Department of Justice and that the President wanted him to do something
that McGahn did not want to do.590 McGahn told Donaldson that the President had called at least
twice and in one of the calls asked “have you done it?”591 McGahn did not tell Donaldson the
specifics of the President’s request because he was consciously trying not to involve her in the

579
McGahn 3/8/18 302, at 2.
580
McGahn 3/8/18 302, at 2.
581
McGahn 3/8/18 302, at 5.
582
McGahn 3/8/18 302, at 2, 5; McGahn 2/28/19 302, at 3.
583
McGahn 3/8/18 302, at 1-2, 5.
584
McGahn 3/8/18 302, at 2.
585
McGahn 2/28/19 302, at 3; McGahn 3/8/18 302, at 2.
586
McGahn 3/8/18 302, at 2.
587
McGahn 3/8/18 302, at 2.
588
McGahn 3/8/18 302, at 2-3; McGahn 2/28/19 302, at 3; Donaldson 4/2/18 302, at 4; Call Records
of Don McGahn.
589
McGahn 3/8/18 302, at 2; Donaldson 4/2/18 302, at 4.
590
Donaldson 4/2/18 302, at 4.
591
Donaldson 4/2/18 302, at 4.

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investigation, but Donaldson inferred that the President’s directive was related to the Russia
investigation.592 Donaldson prepared to resign along with McGahn.593

That evening, McGahn called both Priebus and Bannon and told them that he intended to
594
resign. McGahn recalled that, after speaking with his attorney and given the nature of the
President’s request, he decided not to share details of the President’s request with other White
House staff.595 Priebus recalled that McGahn said that the President had asked him to “do crazy
shit,” but he thought McGahn did not tell him the specifics of the President’s request because
McGahn was trying to protect Priebus from what he did not need to know.596 Priebus and Bannon
both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and
remained in his position.597 He had not told the President directly that he planned to resign, and
when they next saw each other the President did not ask McGahn whether he had followed through
with calling Rosenstein.598

Around the same time, Chris Christie recalled a telephone call with the President in which
the President asked what Christie thought about the President firing the Special Counsel.599
Christie advised against doing so because there was no substantive basis for the President to fire
the Special Counsel, and because the President would lose support from Republicans in Congress
if he did so.600

Analysis

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:

a. 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

592
McGahn 2/28/19 302, at 3-4; Donaldson 4/2/18 302, at 4-5. Donaldson said she believed
McGahn consciously did not share details with her because he did not want to drag her into the
investigation. Donaldson 4/2/18 302, at 5; see McGahn 2/28/19 302, at 3.
593
Donaldson 4/2/18 302, at 5.
594
McGahn 12/14/17 302, at 10; Call Records of Don McGahn; McGahn 2/28/19 302, at 3-4;
Priebus 4/3/18 302, at 6-7.
595
McGahn 2/28/19 302, at 4. Priebus and Bannon confirmed that McGahn did not tell them the
specific details of the President’s request. Priebus 4/3/18 302, at 7; Bannon 2/14/18 302, at 10.
596
Priebus 4/3/18 302, at 7.
597
McGahn 3/8/18 302, at 3; McGahn 2/28/19 302, at 3-4.
598
McGahn 3/8/18 302, at 3.
599
Christie 2/13/19 302, at 7. Christie did not recall the precise date of this call, but believed it was
after Christopher Wray was announced as the nominee to be the new FBI director, which was on June 7,
2017. Christie 2/13/19 302, at 7. Telephone records show that the President called Christie twice after that
time period, on July 4, 2017, and July 14, 2017. Call Records of Chris Christie.
600
Christie 2/13/19 302, at 7.

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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. See Volume II, Section II.I, infra. 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.601 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. 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 with 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

601
When this Office first interviewed McGahn about this topic, he was reluctant to share detailed
information about what had occurred and only did so after continued questioning. See McGahn 12/14/17
302 (agent notes).

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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.

b. Nexus to an official proceeding. To satisfy the proceeding requirement, it would


be necessary to establish a nexus 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.602 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 was himself 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!”

c. Intent. 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, Section II.D, supra, 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

602
See, e.g., Evan Perez et al., CNN exclusive: Grand jury subpoenas issued in FBI’s Russia
investigation, CNN (May 9, 2017); Matt Ford, Why Mueller Is Taking Over the Michael Flynn Grand Jury,
The Atlantic (June 2, 2017).

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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 conflicts 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 ever ordered McGahn to have the Special
Counsel terminated and made repeated efforts to have McGahn deny the story, as discussed in
Volume II, Section II.I, infra. Those denials are contrary to the evidence and suggest the
President’s awareness that the direction to McGahn could be seen as improper.

F. The President’s Efforts to Curtail the Special Counsel Investigation

Overview

Two days after the President directed 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 with Corey Lewandowski in the Oval Office and dictated a message
to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia
investigation to future election interference only. One month later, the President met again with
Lewandowski and followed up on the request to have Sessions limit the scope of the Russia
investigation. Lewandowski told the President the message would be delivered soon. Hours later,
the President publicly criticized Sessions in an unplanned press interview, raising questions about
Sessions’s job security.

1. The President Asks Corey Lewandowski to Deliver a Message to Sessions to


Curtail the Special Counsel Investigation

On June 19, 2017, two days after the President directed McGahn to have the Special
Counsel removed, the President met one-on-one in the Oval Office with his former campaign

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manager Corey Lewandowski.603 Senior White House advisors described Lewandowski as a


"devotee" of the President and said the relationship between th e President and Lewandowski was
"close. " 604

During the June 19 m eeting, Lewan dowski 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 th at 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 con ectly. 608

The President directed th at Sessions should give a speech publicly announcing:

I know that I recused myself from ce1tain things having to do with specific areas. But our
POTUS .. . is being treated ve1y 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 histoiy. 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 subve1t the Constitution of the United States. I am going
to meet with the Special Prosecutor to explain this is ve1y unfair and let the Special
Prosecutor move fo1ward with investigating election meddling for future elections so th at
nothing can happen in future elections.6 10

(b)(6)/
(b)(7)(C)-4
604
Kelly 8/2/18 302, at 7; Dearborn 6/20/ 18 302, at 1 (desc1ibing Lewandowski as a "comfort to
the President" whose loyalty was appreciated). Kelly said that when he was Chief of Staff and the President
had meetings with friends like Lewandowski, Kelly tried not to be there and to push the meetings to the
residence to create distance from the West Wing. Kelly 8/2/18 302, at 7.
605
Lewandowski 4/6/ 18 302, at 2.
606
Lewandowski 4/6/ 18 302, at 2.
607
Lewandowski 4/6/ 18 302, at 2.
608
Lewandowski 4/6/ 18 302, at 3.
609
Lewandowski 4/6/ 18 302, at 2-3; Lewandowski 6/ 19/ 17 Notes, at 1-2.
610
Lewandowski 4/6/ 18 302, at 3; Lewandowski 6/ 19/ 17 Notes, at 3.

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The President said that if Sessions delivered that statement he would be the “most popular guy in
the country.”611 Lewandowski told the President he understood what the President wanted Sessions
to do.612

Lewandowski wanted to pass the message to Sessions in person rather than over the
phone.613 He did not want to meet at the Department of Justice because he did not want a public
log of his visit and did not want Sessions to have an advantage over him by meeting on what
Lewandowski described as Sessions’s turf.614 Lewandowski called Sessions and arranged a
meeting for the following evening at Lewandowski’s office, but Sessions had to cancel due to a
last minute conflict.615 Shortly thereafter, Lewandowski left Washington, D.C., without having
had an opportunity to meet with Sessions to convey the President’s message.616 Lewandowski
stored the notes in a safe at his home, which he stated was his standard procedure with sensitive
items.617

2. The President Follows Up with Lewandowski

Following his June meeting with the President, Lewandowski contacted Rick Dearborn,
then a senior White House official, and asked if Dearborn could pass a message to Sessions.618
Dearborn agreed without knowing what the message was, and Lewandowski later confirmed that
Dearborn would meet with Sessions for dinner in late July and could deliver the message then.619
Lewandowski recalled thinking that the President had asked him to pass the message because the
President knew Lewandowski could be trusted, but Lewandowski believed Dearborn would be a
better messenger because he had a longstanding relationship with Sessions and because Dearborn
was in the government while Lewandowski was not.620

On July 19, 2017, the President again met with Lewandowski alone in the Oval Office.621
In the preceding days, as described in Volume II, Section II.G, infra, emails and other information
about the June 9, 2016 meeting between several Russians and Donald Trump Jr., Jared Kushner,
and Paul Manafort had been publicly disclosed. In the July 19 meeting with Lewandowski, the

611
Lewandowski 4/6/18 302, at 3; Lewandowski 6/19/17 Notes, at 4.
612
Lewandowski 4/6/18 302, at 3.
613
Lewandowski 4/6/18 302, at 3-4.
614
Lewandowski 4/6/18 302, at 4.
615
Lewandowski 4/6/18 302, at 4.
616
Lewandowski 4/6/18 302, at 4.
617
Lewandowski 4/6/18 302, at 4.
618
Lewandowski 4/6/18 302, at 4; see Dearborn 6/20/18 302, at 3.
619
Lewandowski 4/6/18 302, at 4-5.
620
Lewandowski 4/6/18 302, at 4, 6.
621
Lewandowski 4/6/18 302, at 5; SCR029b_000002-03 (6/5/18 Additional Response to Special
Counsel Request for Certain Visitor Log Information).

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President raised his previous request and asked if Lewandowski had talked to Sessions.622
Lewandowski told the President that the message would be delivered soon.623 Lewandowski
recalled that the President told him that if Sessions did not meet with him, Lewandowski should
tell Sessions he was fired.624

Immediately following the meeting with the President, Lewandowski saw Dearborn in the
anteroom outside the Oval Office and gave him a typewritten version of the message the President
had dictated to be delivered to Sessions.625 Lewandowski told Dearborn that the notes were the
message they had discussed, but Dearborn did not recall whether Lewandowski said the message
was from the President.626 The message “definitely raised an eyebrow” for Dearborn, and he
recalled not wanting to ask where it came from or think further about doing anything with it.627
Dearborn also said that being asked to serve as a messenger to Sessions made him
uncomfortable.628 He recalled later telling Lewandowski that he had handled the situation, but he
did not actually follow through with delivering the message to Sessions, and he did not keep a
copy of the typewritten notes Lewandowski had given him.629

3. The President Publicly Criticizes Sessions in a New York Times Interview

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

622
Lewandowski 4/6/18 302, at 5.
623
Lewandowski 4/6/18 302, at 5.
624
Lewandowski 4/6/18 302, at 6. Priebus vaguely recalled Lewandowski telling him that in
approximately May or June 2017 the President had asked Lewandowski to get Sessions’s resignation.
Priebus recalled that Lewandowski described his reaction as something like, “What can I do? I’m not an
employee of the administration. I’m a nobody.” Priebus 4/3/18 302, at 6.
625
Lewandowski 4/6/18 302, at 5. Lewandowski said he asked Hope Hicks to type the notes when
he went in to the Oval Office, and he then retrieved the notes from her partway through his meeting with
the President. Lewandowski 4/6/18 302, at 5.
626
Lewandowski 4/6/18 302, at 5; Dearborn 6/20/18 302, at 3.
627
Dearborn 6/20/18 302, at 3.
628
Dearborn 6/20/18 302, at 3.
629
Dearborn 6/20/18 302, at 3-4.
630
Peter Baker et al., Excerpts From The Times’s Interview With Trump, New York Times (July
19, 2017).
631
Peter Baker et al., Excerpts From The Times’s Interview With Trump, New York Times (July
19, 2017).

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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

Later that day, Lewandowski met with Hicks and they discussed the President’s New York
Times interview.634 Lewandowski recalled telling Hicks about the President’s request that he meet
with Sessions and joking with her about the idea of firing Sessions as a private citizen if Sessions
would not meet with him.635 As Hicks remembered the conversation, Lewandowski told her the
President had recently asked him to meet with Sessions and deliver a message that he needed to
do the “right thing” and resign.636 While Hicks and Lewandowski were together, the President
called Hicks and told her he was happy with how coverage of his New York Times interview
criticizing Sessions was playing out.637

4. The President Orders Priebus to Demand Sessions’s Resignation

Three days later, on July 21, 2017, the Washington Post reported that U.S. intelligence
intercepts showed that Sessions had discussed campaign-related matters with the Russian
ambassador, contrary to what Sessions had said publicly.638 That evening, Priebus called Hunt to
talk about whether Sessions might be fired or might resign.639 Priebus had previously talked to
Hunt when the media had reported on tensions between Sessions and the President, and, after
speaking to Sessions, Hunt had told Priebus that the President would have to fire Sessions if he
wanted to remove Sessions because Sessions was not going to quit.640 According to Hunt, who
took contemporaneous notes of the July 21 call, Hunt told Priebus that, as they had previously
discussed, Sessions had no intention of resigning.641 Hunt asked Priebus what the President would

632
Peter Baker et al., Excerpts From The Times’s Interview With Trump, New York Times (July
19, 2017).
633
Hicks 12/8/17 302, at 23.
634
Hicks 3/13/18 302, at 10; Lewandowski 4/6/18 302, at 6.
635
Lewandowski 4/6/18 302, at 6.
636
Hicks 3/13/18 302, at 10. Hicks thought that the President might be able to make a recess
appointment of a new Attorney General because the Senate was about to go on recess. Hicks 3/13/18 302,
at 10. Lewandowski recalled that in the afternoon of July 19, 2017, following his meeting with the
President, he conducted research on recess appointments but did not share his research with the President.
Lewandowski 4/6/18 302, at 7.
637
Lewandowski 4/6/18 302, at 6.
638
Adam Entous et al., Sessions discussed Trump campaign-related matters with Russian
ambassador, U.S. intelligence intercepts show, Washington Post (July 21, 2017). The underlying events
concerning the Sessions-Kislyak contacts are discussed in Volume I, Section IV.A.4.c, supra.
639
Hunt 2/1/18 302, at 23.
640
Hunt 2/1/18 302, at 23.
641
Hunt 2/1/18 302, at 23-24; Hunt 7/21/17 Notes, at 1.

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accomplish by firing Sessions, pointing out there was an investigation before and there would be
an investigation after.642

Early the following morning, July 22, 2017, the President tweeted, “A new
INTELLIGENCE LEAK from the Amazon Washington Post, this time against A.G. Jeff Sessions.
These illegal leaks, like Comey’s, must stop!”643 Approximately one hour later, the President
tweeted, “So many people are asking why isn’t the A.G. or Special Council looking at the many
Hillary Clinton or Comey crimes. 33,000 e-mails deleted?”644 Later that morning, while aboard
Marine One on the way to Norfolk, Virginia, the President told Priebus that he had to get Sessions
to resign immediately.645 The President said that the country had lost confidence in Sessions and
the negative publicity was not tolerable.646 According to contemporaneous notes taken by Priebus,
the President told Priebus to say that he “need[ed] a letter of resignation on [his] desk immediately”
and that Sessions had “no choice” but “must immediately resign.”647 Priebus replied that if they
fired Sessions, they would never get a new Attorney General confirmed and that the Department
of Justice and Congress would turn their backs on the President, but the President suggested he
could make a recess appointment to replace Sessions.648

Priebus believed that the President’s request was a problem, so he called McGahn and
asked for advice, explaining that he did not want to pull the trigger on something that was “all
wrong.”649 Although the President tied his desire for Sessions to resign to Sessions’s negative
press and poor performance in congressional testimony, Priebus believed that the President’s
desire to replace Sessions was driven by the President’s hatred of Sessions’s recusal from the
Russia investigation.650 McGahn told Priebus not to follow the President’s order and said they
should consult their personal counsel, with whom they had attorney-client privilege.651 McGahn

642
Hunt 2/1/18 302, at 23-24; Hunt 7/21/17 Notes, at 1-2.
643
@realDonaldTrump 7/22/17 (6:33 a.m. ET) Tweet.
644
@realDonaldTrump 7/22/17 (7:44 a.m. ET) Tweet. Three minutes later, the President tweeted,
“What about all of the Clinton ties to Russia, including Podesta Company, Uranium deal, Russian Reset,
big dollar speeches etc.” @realDonaldTrump 7/22/17 (7:47 a.m. ET) Tweet.
645
Priebus 1/18/18 302, at 13-14.
646
Priebus 1/18/18 302, at 14; Priebus 4/3/18 302, at 4-5; see RP_000073 (Priebus 7/22/17 Notes).
647
RP_000073 (Priebus 7/22/17 Notes).
648
Priebus 4/3/18 302, at 5.
649
Priebus 1/18/18 302, at 14; Priebus 4/3/18 302, at 4-5.
650
Priebus 4/3/18 302, at 5.
651
RP_000074 (Priebus 7/22/17 Notes); McGahn 12/14/17 302, at 11; Priebus 1/18/18 302, at 14.
Priebus followed McGahn’s advice and called his personal attorney to discuss the President’s request
because he thought it was the type of thing about which one would need to consult an attorney. Priebus
1/18/18 302, at 14.

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and Priebus discussed the possibility that they would both have to resign rather than carry out the
President’s order to fire Sessions.652

That afternoon, the President followed up with Priebus about demanding Sessions’s
resignation, using words to the effect of, “Did you get it? Are you working on it?”653 Priebus said
that he believed that his job depended on whether he followed the order to remove Sessions,
although the President did not directly say so.654 Even though Priebus did not intend to carry out
the President’s directive, he told the President he would get Sessions to resign.655 Later in the day,
Priebus called the President and explained that it would be a calamity if Sessions resigned because
Priebus expected that Rosenstein and Associate Attorney General Rachel Brand would also resign
and the President would be unable to get anyone else confirmed.656 The President agreed to hold
off on demanding Sessions’s resignation until after the Sunday shows the next day, to prevent the
shows from focusing on the firing.657

By the end of that weekend, Priebus recalled that the President relented and agreed not to
ask Sessions to resign.658 Over the next several days, the President tweeted about Sessions. On
the morning of Monday, July 24, 2017, the President criticized Sessions for neglecting to
investigate Clinton and called him “beleaguered.”659 On July 25, the President tweeted, “Attorney
General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-
mails & DNC server) & Intel leakers!”660 The following day, July 26, the President tweeted, “Why
didn’t A.G. Sessions replace Acting FBI Director Andrew McCabe, a Comey friend who was in
charge of Clinton investigation.”661 According to Hunt, in light of the President’s frequent public
attacks, Sessions prepared another resignation letter and for the rest of the year carried it with him
in his pocket every time he went to the White House.662

652
McGahn 12/14/17 302, at 11; RP_000074 (Priebus 7/22/17 Notes) (“discuss resigning
together”).
653
Priebus 1/18/18 302, at 14; Priebus 4/3/18 302, at 4.
654
Priebus 4/3/18 302, at 4.
655
Priebus 1/18/18 302, at 15.
656
Priebus 1/18/18 302, at 15.
657
Priebus 1/18/18 302, at 15.
658
Priebus 1/18/18 302, at 15.
659
@realDonaldTrump 7/24/17 (8:49 a.m. ET) Tweet (“So why aren’t the Committees and
investigators, and of course our beleaguered A.G., looking into Crooked Hillarys crimes & Russia
relations?”).
660
@realDonaldTrump 7/25/17 (6:12 a.m. ET) Tweet. The President sent another tweet shortly
before this one asking “where is the investigation A.G.” @realDonaldTrump 7/25/17 (6:03 a.m. ET) Tweet.
661
@realDonaldTrump 7/26/17 (9:48 a.m. ET) Tweet.
662
Hunt 2/1/18 302, at 24-25.

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Analysis

In analyzing the President's effo1is 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:

a. Obstrnctive act. The President's effo1i to send Sessions a message through


Lewandowski would qualify as an obstructive act if it would naturally obstrnct the investigation
and any grand jmy proceedings that might flow from the inquiiy.

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 ve1y unfair and let the Special Prosecutor move fo1ward with investigating election
meddling for future elections so that nothing can happen in futme elections." The President wanted
Sessions to disregard his recusal from the investigation, which had followed from a fo1mal DOJ
ethics review, and have Sessions declare that he knew "for a fact" that "there were no Russians
involved with the campaign" because he "was there." The President fuiiher 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 dii·ectives 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 pennitted to "move fo1ward with investigating election
meddling for future elections."

b. Nexus to an official proceeding. 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 jmy
investigation supervised by the Special Counsel was ublic knowled e. B the time of the
President's follow-u meetin with Lewandowski, (b)(3)-1
See Volume II, Section 11.G, infra. To satisfy the nexus requii·ement,
it would be necessaiy to show that limiting the Special Counsel 's investigation would have the
natural and probable effect of impeding that grand jmy proceeding.

c. Intent. Substantial evidence indicates that the President's effo1i to have Sessions
limit the scope of the Special Counsel's investigation to futme election interference was intended
to prevent fuii her investigative scrntiny of the President's and his campaign's conduct.

As previously described, see Volume II, Section II.B, supra, the President knew that the
Russia investigation was focused in paii on his campaign, and he perceived allegations of Russian
interference to cast doubt on the legitimacy of his election. The President fuii her 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 li1nited to future
election interference only.

The timing and cii·cumstan ces 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 two days after the President had ordered McGahn to have the Special
Counsel removed, which itself followed public reports that the President was personally under

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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’s 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.

G. The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016
Meeting Between Russians and Senior Campaign Officials

Overview

By June 2017, the President became aware of emails setting up the June 9, 2016 meeting
between senior campaign officials and Russians who offered derogatory information on Hillary
Clinton as “part of Russia and its government’s support for Mr. Trump.” On multiple occasions
in late June and early July 2017, the President directed aides not to publicly disclose the emails,
and he then dictated a statement about the meeting to be issued by Donald Trump Jr. describing
the meeting as about adoption.

Evidence

1. The President Learns About the Existence of Emails Concerning the June 9,
2016 Trump Tower Meeting

In mid-June 2017—the same week that the President first asked Lewandowski to pass a
message to Sessions—senior Administration officials became aware of emails exchanged during
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the campaign arranging a meeting between Donald Trump Jr., Paul Manafort, Jared Kushner, and
a Russian attorney.663 As described in Volume I, Section IV.A.5, supra, the emails stated that the
“Crown [P]rosecutor of Russia” had offered “to provide the Trump campaign with some official
documents and information that would incriminate Hillary and her dealings with Russia” as part
of “Russia and its government’s support for Mr. Trump.”664 Trump Jr. responded, “[I]f it’s what
you say I love it,”665 and he, Kushner, and Manafort met with the Russian attorney and several
other Russian individuals at Trump Tower on June 9, 2016.666 At the meeting, the Russian attorney
claimed that funds derived from illegal activities in Russia were provided to Hillary Clinton and
other Democrats, and the Russian attorney then spoke about the Magnitsky Act, a 2012 U.S. statute
that imposed financial and travel sanctions on Russian officials and that had resulted in a retaliatory
ban in Russia on U.S. adoptions of Russian children.667

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 Trump Campaign had previously received a document request from SSCI that called
for the production of various information, including, “[a] list and a description of all meetings”
between any “individual affiliated with the Trump campaign” and “any individual formally or
informally affiliated with the Russian government or Russian business interests which took place
between June 16, 2015, and 12 pm on January 20, 2017,” and associated records.669 Trump
Organization attorneys became aware of the June 9 meeting no later than the first week of June
2017, when they began interviewing the meeting participants, and the Trump Organization
attorneys provided the emails setting up the meeting to the President’s personal counsel.670 Mark
Corallo, who had been hired as a spokesman for the President’s personal legal team, recalled that
he learned about the June 9 meeting around June 21 or 22, 2017.671 Priebus recalled learning about
the June 9 meeting from Fox News host Sean Hannity in late June 2017.672 Priebus notified one

663
Hicks 3/13/18 302, at 1; Raffel 2/8/18 302, at 2.
664
RG000061 (6/3/16 Email, Goldstone to Trump Jr.); @DonaldJTrumpJR 7/11/17 (11:01 a.m.
ET) Tweet.
665
RG000061 (6/3/16 Email, Trump Jr. to Goldstone); @DonaldJTrumpJR 7/11/17 (11:01 a.m.
ET) Tweet.
666
Samochornov 7/12/17 302, at 4.
667
See Volume I, Section IV.A.5, supra (describing meeting in detail).
668
Written Responses of Donald J. Trump (Nov. 20, 2018), at 8 (Response to Question I, Parts (a)
through (c)). The President declined to answer questions about his knowledge of the June 9 meeting or
other events after the election.
669
DJTFP_SCO_PDF_00000001-02 (5/17/17 Letter, SSCI to Donald J. Trump for President, Inc.).
670
Goldstone 2/8/18 302, at 12; 6/2/17 and 6/5/17 Emails, Goldstone & Garten; Raffel 2/8/18 302,
at 3; Hicks 3/13/18 302, at 2.
671
Corallo 2/15/18 302, at 3.
672
Priebus 4/3/18 302, at 7.

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of the President’s personal attorneys, who told Priebus he was already working on it.673 By late
June, several advisors recalled receiving media inquiries that could relate to the June 9 meeting.674

2. The President Directs Communications Staff Not to Publicly Disclose


Information About the June 9 Meeting

Communications advisors Hope Hicks and Josh Raffel recalled discussing with Jared
Kushner and Ivanka Trump that the emails were damaging and would inevitably be leaked.675
Hicks and Raffel advised that the best strategy was to proactively release the emails to the press.676
On or about June 22, 2017, Hicks attended a meeting in the White House residence with the
President, Kushner, and Ivanka Trump.677 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

673
Priebus 4/3/18 302, at 7.
674
Corallo 2/15/18 302, at 3; Hicks 12/7/17 302, at 8; Raffel 2/8/18 302, at 3.
675
Raffel 2/8/18 302, at 2-3; Hicks 3/13/18 302, at 2.
676
Raffel 2/8/18 302, at 2-3, 5; Hicks 3/13/18 302, at 2; Hicks 12/7/17 302, at 8.
677
Hicks 12/7/17 302, at 6-7; Hicks 3/13/18 302, at 1.
678
Hicks 12/7/17 302, at 7; Hicks 3/13/18 302, at 1.
679
Hicks 12/7/17 302, at 7; Hicks 3/13/18 302, at 1. 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.
680
Hicks 3/13/18 302, at 1-2.
681
Hicks 3/13/18 302, at 2.
682
Hicks 12/7/17 302, at 8.
683
Hicks 3/13/18 302, at 2-3; Hicks 12/7/17 302, at 8.
684
Hicks 12/7/17 302, at 8.

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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

3. The President Directs Trump Jr.’s Response to Press Inquiries About the
June 9 Meeting

The following week, the President departed on an overseas trip for the G20 summit in
Hamburg, Germany, accompanied by Hicks, Raffel, Kushner, and Ivanka Trump, among others.694
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

685
Hicks 12/7/17 302, at 8; Hicks 3/13/18 302, at 2.
686
Hicks 3/13/18 302, at 2; Hicks 12/7/17 302, at 9.
687
Hicks 3/13/18 302, at 2-3.
688
Hicks 3/13/18 302, at 2-3; Hicks 12/7/17 302, at 9.
689
Hicks 3/13/18 302, at 3; Hicks 12/7/17 302, at 9.
690
Hicks 3/13/18 302, at 3.
691
Hicks 3/13/18 302, at 3.
692
Hicks 12/7/17 302, at 9.
693
Raffel 2/8/18 302, at 5.
694
Raffel 2/8/18 302, at 6.
695
Raffel 2/8/18 302, at 6-7; Hicks 3/13/18 302, at 3.
696
Hicks 12/7/17 302, at 10; Hicks 3/13/18 302, at 3.
697
Hicks 12/7/17 302, at 10.
698
Hicks 3/13/18 302, at 3.

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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 Bc 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, “If I don’t have it in there it appears
as though I’m lying later when they inevitably leak something.”710 Trump Jr.’s statement—adding

699
Hicks 3/13/18 302, at 3; Hicks 12/7/17 302, at 10.
700
Hicks 3/13/18 302, at 3; see Hicks 12/7/17 302, at 10.
701
Hicks 3/13/18 302, at 4.
702
Hicks 7/8/17 Notes.
703
Hicks 3/13/18 302, at 4-5; Hicks 12/7/17 302, at 11.
704
Hicks 12/7/17 302, at 11.
705
SCR011a_000004 (7/8/17 Text Message, Hicks to Trump Jr.).
706
SCR011a_000004 (7/8/17 Text Message, Hicks to Trump Jr.).
707
SCR011a_000005 (7/8/17 Text Message, Trump Jr. to Hicks).
708
SCR011a_000005 (7/8/17 Text Message, Trump Jr. to Hicks).
709
SCR011a_000005 (7/8/17 Text Message, Hicks to Trump Jr.).
710
SCR011a_000006 (7/8/17 Text Message, Trump Jr. to Hicks).

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the word “primarily” and making other minor additions—was then provided to the New York
Times.711 The full statement provided to the Times stated:

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily
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 the time and there was no follow up. I was asked to attend the
meeting by an acquaintance, but was not told the name of the person I would be meeting
with beforehand.712

The statement did not mention the offer of derogatory information about Clinton or any discussion
of the Magnitsky Act or U.S. sanctions, which were the principal subjects of the meeting, as
described in Volume I, Section IV.A.5, supra.

A short while later, while still on Air Force One, Hicks learned that Priebus knew about
the emails, which further convinced her that additional information about the June 9 meeting would
leak and the White House should be proactive and get in front of the story.713 Hicks recalled again
going to the President to urge him that they should be fully transparent about the June 9 meeting,
but he again said no, telling Hicks, “You’ve given a statement. We’re done.”714

Later on the flight home, Hicks went to the President’s cabin, where the President was on
the phone with one of his personal attorneys.715 At one point the President handed the phone to
Hicks, and the attorney told Hicks that he had been working with Circa News on a separate story,
and that she should not talk to the New York Times.716

4. The Media Reports on the June 9, 2016 Meeting

Before the President’s flight home from the G20 landed, the New York Times published
its story about the June 9, 2016 meeting.717 In addition to the statement from Trump Jr., the Times
story also quoted a statement from Corallo on behalf of the President’s legal team suggesting that
the meeting might have been a setup by individuals working with the firm that produced the Steele
reporting.718 Corallo also worked with Circa News on a story published an hour later that

711
Hicks 3/13/18 302, at 6; see Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin
During Campaign, New York Times (July 8, 2017).
712
See Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New
York Times (July 8, 2017).
713
Hicks 3/13/18 302, at 6; Raffel 2/8/18 302, at 9-10.
714
Hicks 12/7/17 302, at 12; Raffel 2/8/18 302, at 10.
715
Hicks 3/13/18 302, at 7.
716
Hicks 3/13/18 302, at 7.
717
See Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New
York Times (July 8, 2017); Raffel 2/8/18 302, at 10.
718
See Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New
York Times (July 8, 2017).

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questioned whether Democratic operatives had arranged the June 9 meeting to create the
appearance of improper connections between Russia and Trump family members.719 Hicks was
upset about Corallo’s public statement and called him that evening to say the President had not
approved the statement.720

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

On July 11, 2017, Trump Jr. posted redacted images of the emails setting up the June 9
meeting on Twitter; the New York Times reported that he did so “[a]fter being told that The Times
was about to publish the content of the emails.”727 Later that day, the media reported that the
President had been personally involved in preparing Trump Jr.’s initial statement to the New York
Times that had claimed the meeting “primarily” concerned “a program about the adoption of
Russian children.”728 Over the next several days, the President’s personal counsel repeatedly and

719
See Donald Trump Jr. gathered members of campaign for meeting with Russian lawyer before
election, Circa News (July 8, 2017).
720
Hicks 3/13/18 302, at 8; Corallo 2/15/18 302, at 6-7.
721
Corallo 2/15/18 302, at 7.
722
Corallo 2/15/18 302, at 7.
723
Corallo 2/15/18 302, at 7-9.
724
Corallo 2/15/18 302, at 8.
725
Corallo 2/15/18 302, at 8; Corallo 7/9/17 Notes (“Sunday 9th – Hope calls w/ POTUS on line”).
Corallo said he is “100% confident” that Hicks said “It will never get out” on the call. Corallo 2/15/18 302,
at 9.
726
Hicks 3/13/18 302, at 9.
727
@DonaldJTrumpJR 7/11/17 (11:01 a.m. ET) Tweet; Jo Becker et al., Russian Dirt on Clinton?
‘I Love It,’ Donald Trump Jr. Said, New York Times (July 11, 2017).
728
See, e.g., Peter Baker & Maggie Haberman, Rancor at White House as Russia Story Refuses to
Let the Page Turn, New York Times (July 11, 2017) (reporting that the President “signed off” on Trump
Jr.’s statement).

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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 Several months later, the President’s personal counsel
stated in a private communication to the Special Counsel’s Office that “the President dictated a
short but accurate response to the New York Times article on behalf of his son, Donald Trump,
Jr.”731 The President later told the press that it was “irrelevant” whether he dictated the statement
and said, “It’s a statement to the New York Times. . . . That’s not a statement to a high tribunal of
judges.”732

On July 12, 2017, the Special Counsel’s Office (b) (3) Trump Jr. (b)(3)-1
(b) (3) related to the June 9 meeting and those who attended the
June 9 meeting.733

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

Analysis

In analyzing the President’s actions regarding the disclosure of information about the June
9 meeting, the following evidence is relevant to the elements of obstruction of justice:

a. Obstructive act. On at least three occasions between June 29, 2017, and July 9,
2017, the President directed Hicks and others not to publicly disclose information about the June

729
See, e.g., David Wright, Trump lawyer: President was aware of “nothing”, CNN (July 12, 2017)
(quoting the President’s personal attorney as saying, “I wasn’t involved in the statement drafting at all nor
was the President.”); see also Good Morning America, ABC (July 12, 2017) (“The President didn’t sign
off on anything. . . . The President wasn’t involved in that.”); Meet the Press, NBC (July 16, 2017) (“I do
want to be clear—the President was not involved in the drafting of the statement.”).
730
Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2017); Sanders 7/3/18 302, at 9
(the President told Sanders he “weighed in, as any father would” and knew she intended to tell the press
what he said).
731
1/29/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 18.
732
Remarks by President Trump in Press Gaggle (June 15, 2018).
733 (b) (3) . (b)(3)-1
734
Peter Baker et al., Excerpts From The Times’s Interview With Trump, New York Times (July
19, 2017).
735
Peter Baker et al., Excerpts From The Times’s Interview With Trump, New York Times (July
19, 2017).

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9, 2016 meeting between senior campaign officials and a Russian attorney. On June 29, Hicks
warned the President that the emails setting up the June 9 meeting were “really bad” and the story
would be “massive” when it broke, but the President told her and Kushner to “leave it alone.”
Early on July 8, after Hicks told the President the New York Times was working on a story about
the June 9 meeting, the President directed her not to comment, even though Hicks said that the
President usually considered not responding to the press to be the ultimate sin. Later that day, the
President rejected Trump Jr.’s draft statement that would have acknowledged that the meeting was
with “an individual who I was told might have information helpful to the campaign.” The
President then dictated a statement to Hicks that said the meeting was about Russian adoption
(which the President had twice been told was discussed at the meeting). The statement dictated
by the President did not mention the offer of derogatory information about Clinton.

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. The only
evidence we have of the President discussing the production of documents to Congress or the
Special Counsel is the conversation on June 29, 2017, when Hicks recalled the President
acknowledging that Kushner’s attorney should provide emails related to the June 9 meeting to
whomever he needed to give them to. We do not have evidence of what the President discussed
with his own lawyers at that time.

b. Nexus to an official proceeding. As described above, by the time of the President’s


attempts to prevent the public release of the emails regarding the June 9 meeting, the existence of
a grand jury investigation supervised by the Special Counsel was public knowledge, and the
President had been told that the emails were responsive to congressional inquiries. To satisfy the
nexus requirement, however, it would be necessary to show that preventing the release of the
emails to the public would have the natural and probable effect of impeding the grand jury
proceeding or congressional inquiries. As noted above, the evidence does not establish that the
President sought to prevent disclosure of the emails in those official proceedings.

c. Intent. 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

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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. The statement recorded by Corallo—that the
emails “will never get out”—can be explained as reflecting a belief that the emails would not be
made public if the President’s press strategy were followed, even if the emails were provided to
Congress and the Special Counsel.

H. The President’s Further Efforts to Have the Attorney General Take Over the
Investigation

Overview

From summer 2017 through 2018, the President attempted to have Attorney General
Sessions reverse his recusal, take control of the Special Counsel’s investigation, and order an
investigation of Hillary Clinton.

Evidence

1. The President Again Seeks to Have Sessions Reverse his Recusal

After returning Sessions’s resignation letter at the end of May 2017, but before the
President’s July 19, 2017 New York Times interview in which he publicly criticized Sessions for
recusing from the Russia investigation, the President took additional steps to have Sessions reverse
his recusal. In particular, at some point after the May 17, 2017 appointment of the Special Counsel,
Sessions recalled, the President called him at home and asked if Sessions would “unrecuse”
himself.736 According to Sessions, the President asked him to reverse his recusal so that Sessions
could direct the Department of Justice to investigate and prosecute Hillary Clinton, and the “gist”
of the conversation was that the President wanted Sessions to unrecuse from “all of it,” including
the Special Counsel’s Russia investigation.737 Sessions listened but did not respond, and he did
not reverse his recusal or order an investigation of Clinton.738

In early July 2017, the President asked Staff Secretary Rob Porter what he thought of
Associate Attorney General Rachel Brand.739 Porter recalled that the President asked him if Brand
was good, tough, and “on the team.”740 The President also asked if Porter thought Brand was
interested in being responsible for the Special Counsel’s investigation and whether she would want

736
Sessions 1/17/18 302, at 15. That was the second time that the President asked Sessions to
reverse his recusal from campaign-related investigations. See Volume II, Section II.C.1, supra (describing
President’s March 2017 request at Mar-a-Lago for Sessions to unrecuse).
737
Sessions 1/17/18 302, at 15.
738
Sessions 1/17/18 302, at 15.
739
Porter 4/13/18 302, at 11; Porter 5/8/18 302, at 6.
740
Porter 4/13/18 302, at 11; Porter 5/8/18 302, at 6.

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to be Attorney General one day.741 Because Porter knew Brand, the President asked him to sound
her out about taking responsibility for the investigation and being Attorney General.742
Contemporaneous notes taken by Porter show that the President told Porter to “Keep in touch with
your friend,” in reference to Brand.743 Later, the President asked Porter a few times in passing
whether he had spoken to Brand, but Porter did not reach out to her because he was uncomfortable
with the task.744 In asking him to reach out to Brand, Porter understood the President to want to
find someone to end the Russia investigation or fire the Special Counsel, although the President
never said so explicitly.745 Porter did not contact Brand because he was sensitive to the
implications of that action and did not want to be involved in a chain of events associated with an
effort to end the investigation or fire the Special Counsel.746

McGahn recalled that during the summer of 2017, he and the President discussed the fact
that if Sessions were no longer in his position the Special Counsel would report directly to a non-
recused Attorney General.747 McGahn told the President that things might not change much under
a new Attorney General.748 McGahn also recalled that in or around July 2017, the President
frequently brought up his displeasure with Sessions.749 Hicks recalled that the President viewed
Sessions’s recusal from the Russia investigation as an act of disloyalty.750 In addition to criticizing
Sessions’s recusal, the President raised other concerns about Sessions and his job performance
with McGahn and Hicks.751

741
Porter 4/13/18 302, at 11; Porter 5/8/18 302, at 6. Because of Sessions’s recusal, if Rosenstein
were no longer in his position, Brand would, by default, become the DOJ official in charge of supervising
the Special Counsel’s investigation, and if both Sessions and Rosenstein were removed, Brand would be
next in line to become Acting Attorney General for all DOJ matters. See 28 U.S.C. § 508.
742
Porter 4/13/18 302, at 11; Porter 5/8/18 302, at 6.
743
SC_RRP000020 (Porter 7/10/17 Notes).
744
Porter 4/13/18 302, at 11-12.
745
Porter 4/13/18 302, at 11-12.
746
Porter 4/13/18 302, at 11-12. Brand confirmed that no one ever raised with her the prospect of
taking over the Russia investigation or becoming Attorney General. Brand 1/29/19 302, at 2.
747
McGahn 12/14/17 302, at 11.
748
McGahn 12/14/17 302, at 11.
749
McGahn 12/14/17 302, at 9.
750
Hicks 3/13/18 302, at 10.
751
McGahn 12/14/17 302, at 9; Hicks 3/13/18 302, at 10.

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2. Additional Efforts to Have Sessions Unrecuse or Direct Investigations Covered


by his Recusal

Later in 2017, the President continued to urge Sessions to reverse his recusal from
campaign-related investigations and considered replacing Sessions with an Attorney General who
would not be recused.

On October 16, 2017, the President met privately with Sessions and said that the
Department of Justice was not investigating individuals and events that the President thought the
Department should be investigating.752 According to contemporaneous notes taken by Porter, who
was at the meeting, the President mentioned Clinton’s emails and said, “Don’t have to tell us, just
take [a] look.”753 Sessions did not offer any assurances or promises to the President that the
Department of Justice would comply with that request.754 Two days later, on October 18, 2017,
the President tweeted, “Wow, FBI confirms report that James Comey drafted letter exonerating
Crooked Hillary Clinton long before investigation was complete. Many people not interviewed,
including Clinton herself. Comey stated under oath that he didn’t do this-obviously a fix? Where
is Justice Dept?”755 On October 29, 2017, the President tweeted that there was “ANGER &
UNITY” over a “lack of investigation” of Clinton and “the Comey fix,” and concluded: “DO
SOMETHING!”756

On December 6, 2017, five days after Flynn pleaded guilty to lying about his contacts with
the Russian government, the President asked to speak with Sessions in the Oval Office at the end
of a cabinet meeting.757 During that Oval Office meeting, which Porter attended, the President
again suggested that Sessions could “unrecuse,” which Porter linked to taking back supervision of
the Russia investigation and directing an investigation of Hillary Clinton.758 According to
contemporaneous notes taken by Porter, the President said, “I don’t know if you could un-recuse
yourself. You’d be a hero. Not telling you to do anything. Dershowitz says POTUS can get
involved. Can order AG to investigate. I don’t want to get involved. I’m not going to get involved.
I’m not going to do anything or direct you to do anything. I just want to be treated fairly.”759
According to Porter’s notes, Sessions responded, “We are taking steps; whole new leadership

752
Porter 5/8/18 302, at 10.
753
SC_RRP000024 (Porter 10/16/17 Notes); see Porter 5/8/18 302, at 10.
754
Porter 5/8/18 302, at 10.
755
@realDonaldTrump 10/18/17 (6:21 a.m. ET) Tweet; @realDonaldTrump 10/18/17 (6:27 a.m.
ET) Tweet.
756
@realDonaldTrump 10/29/17 (9:53 a.m. ET) Tweet; @realDonaldTrump 10/29/17 (10:02 a.m.
ET) Tweet; @realDonaldTrump 10/29/17 (10:17 a.m. ET) Tweet.
757
Porter 4/13/18 302, at 5-6; see SC_RRP000031 (Porter 12/6/17 Notes) (“12:45pm With the
President, Gen. Kelly, and Sessions (who I pulled in after the Cabinet meeting)”); SC_RRP000033 (Porter
12/6/17 Notes) (“Post-cabinet meeting – POTUS asked me to get AG Sessions. Asked me to stay. Also
COS Kelly.”).
758
Porter 5/8/18 302, at 12; Porter 4/13/18 302, at 5-6.
759
SC_RRP000033 (Porter 12/6/17 Notes); see Porter 4/13/18 302, at 6; Porter 5/8/18 302, at 12.

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team. Professionals; will operate according to the law.”760 Sessions also said, “I never saw
anything that was improper,” which Porter thought was noteworthy because it did not fit with the
previous discussion about Clinton.761 Porter understood Sessions to be reassuring the President
that he was on the President’s team.762

At the end of December, the President told the New York Times it was “too bad” that
Sessions had recused himself from the Russia investigation.763 When asked whether Holder had
been a more loyal Attorney General to President Obama than Sessions was to him, the President
said, “I don’t want to get into loyalty, but I will tell you that, I will say this: Holder protected
President Obama. Totally protected him. When you look at the things that they did, and Holder
protected the president. And I have great respect for that, I’ll be honest.”764 Later in January, the
President brought up the idea of replacing Sessions and told Porter that he wanted to “clean house”
at the Department of Justice.765 In a meeting in the White House residence that Porter attended on
January 27, 2018, Porter recalled that the President talked about the great attorneys he had in the
past with successful win records, such as Roy Cohn and Jay Goldberg, and said that one of his
biggest failings as President was that he had not surrounded himself with good attorneys, citing
Sessions as an example.766 The President raised Sessions’s recusal and brought up and criticized
the Special Counsel’s investigation.767

Over the next several months, the President continued to criticize Sessions in tweets and
media interviews and on several occasions appeared to publicly encourage him to take action in
the Russia investigation despite his recusal.768 On June 5, 2018, for example, the President

760
SC_RRP000033 (Porter 12/6/17 Notes); see Porter 4/13/18 302, at 6.
761
SC_RRP000033 (Porter 12/6/17 Notes); Porter 4/13/18 302, at 6.
762
Porter 4/13/18 302, at 6-7.
763
Michael S. Schmidt & Michael D. Shear, Trump Says Russia Inquiry Makes U.S. “Look Very
Bad”, New York Times (Dec. 28, 2017).
764
Michael S. Schmidt & Michael D. Shear, Trump Says Russia Inquiry Makes U.S. “Look Very
Bad”, New York Times (Dec. 28, 2017).
765
Porter 4/13/18 302, at 14.
766
Porter 5/8/18 302, at 15. Contemporaneous notes Porter took of the conversation state, “Roy
Cohn (14-0) / Jay Goldberg (12-0).” SC_RRP000047 (Porter 1/27/18 Notes).
767
Porter 5/8/18 302, at 15-16.
768
See, e.g., @realDonaldTrump 2/28/18 (9:34 a.m. ET) Tweet (“Why is A.G. Jeff Sessions asking
the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial
power and already late with reports on Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice
Department lawyers? DISGRACEFUL!”); @realDonaldTrump 4/7/18 (4:52 p.m. ET) Tweet (“Lawmakers
of the House Judiciary Committee are angrily accusing the Department of Justice of missing the Thursday
Deadline for turning over UNREDACTED Documents relating to FISA abuse, FBI, Comey, Lynch,
McCabe, Clinton Emails and much more. Slow walking – what is going on? BAD!”); @realDonaldTrump
4/22/18 (8:22 a.m. ET) Tweet (“‘GOP Lawmakers asking Sessions to Investigate Comey and Hillary
Clinton.’ @FoxNews Good luck with that request!”); @realDonaldTrump 12/16/18 (3:37 p.m. ET) Tweet

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tweeted, “The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was
going to recuse himself. . . . I would have quickly picked someone else. So much time and money
wasted, so many lives ruined . . . and Sessions knew better than most that there was No
Collusion!”769 On August 1, 2018, the President tweeted that “Attorney General Jeff Sessions
should stop this Rigged Witch Hunt right now.”770 On August 23, 2018, the President publicly
criticized Sessions in a press interview and suggested that prosecutions at the Department of
Justice were politically motivated because Paul Manafort had been prosecuted but Democrats had
not.771 The President said, “I put in an Attorney General that never took control of the Justice
Department, Jeff Sessions.”772 That day, Sessions issued a press statement that said, “I took control
of the Department of Justice the day I was sworn in . . . . While I am Attorney General, the actions
of the Department of Justice will not be improperly influenced by political considerations.”773 The
next day, the President tweeted a response: “‘Department of Justice will not be improperly
influenced by political considerations.’ Jeff, this is GREAT, what everyone wants, so look into
all of the corruption on the ‘other side’ including deleted Emails, Comey lies & leaks, Mueller
conflicts, McCabe, Strzok, Page, Ohr, FISA abuse, Christopher Steele & his phony and corrupt
Dossier, the Clinton Foundation, illegal surveillance of Trump campaign, Russian collusion by
Dems – and so much more. Open up the papers & documents without redaction? Come on Jeff,
you can do it, the country is waiting!”774

On November 7, 2018, the day after the midterm elections, the President replaced Sessions
with Sessions’s chief of staff as Acting Attorney General.775

Analysis

In analyzing the President’s efforts to have Sessions unrecuse himself and regain control
of the Russia investigation, the following considerations and evidence are relevant to the elements
of obstruction of justice:

a. Obstructive act. To determine if the President’s efforts to have the Attorney General
unrecuse could qualify as an obstructive act, it would be necessary to assess evidence on whether
those actions would naturally impede the Russia investigation. That inquiry would take into
account the supervisory role that the Attorney General, if unrecused, would play in the Russia
investigation. It also would have to take into account that the Attorney General’s recusal covered

(“Jeff Sessions should be ashamed of himself for allowing this total HOAX to get started in the first
place!”).
769
@realDonaldTrump 6/5/18 (7:31 a.m. ET) Tweet.
770
@realDonaldTrump 8/1/18 (9:24 a.m. ET) Tweet.
771
Fox & Friends Interview of President Trump, Fox News (Aug. 23, 2018).
772
Fox & Friends Interview of President Trump, Fox News (Aug. 23, 2018).
773
Sessions 8/23/18 Press Statement.
774
@realDonaldTrump 8/24/18 (6:17 a.m. ET) Tweet; @ realDonaldTrump 8/24/18 (6:28 a.m. ET)
Tweet.
775
@realDonaldTrump 11/7/18 (2:44 p.m. ET) Tweet.

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other campaign-related matters. The inquiry would not turn on what Attorney General Sessions
would actually do if unrecused, but on whether the efforts to reverse his recusal would naturally
have had the effect of impeding the Russia investigation.

On multiple occasions in 2017, the President spoke with Sessions about reversing his
recusal so that he could take over the Russia investigation and begin an investigation and
prosecution of Hillary Clinton. For example, in early summer 2017, Sessions recalled the
President asking him to unrecuse, but Sessions did not take it as a directive. When the President
raised the issue again in December 2017, the President said, as recorded by Porter, “Not telling
you to do anything. . . . I’m not going to get involved. I’m not going to do anything or direct you
to do anything. I just want to be treated fairly.” The duration of the President’s efforts—which
spanned from March 2017 to August 2018—and the fact that the President repeatedly criticized
Sessions in public and in private for failing to tell the President that he would have to recuse is
relevant to assessing whether the President’s efforts to have Sessions unrecuse could qualify as
obstructive acts.

b. Nexus to an official proceeding. As described above, by mid-June 2017, the existence


of a grand jury investigation supervised by the Special Counsel was public knowledge. In addition,
in July 2017, a different grand jury supervised by the Special Counsel was empaneled in the
District of Columbia, and the press reported on the existence of this grand jury in early August
2017.776 Whether the conduct towards the Attorney General would have a foreseeable impact on
those proceedings turns on much of the same evidence discussed above with respect to the
obstructive-act element.

c. Intent. There is evidence that at least one purpose of the President’s conduct toward
Sessions was to have Sessions assume control over the Russia investigation and supervise it in a
way that would restrict its scope. By the summer of 2017, the President was aware that the Special
Counsel was investigating him personally for obstruction of justice. And in the wake of the
disclosures of emails about the June 9 meeting between Russians and senior members of the
campaign, see Volume II, Section II.G, supra, it was evident that the investigation into the
campaign now included the President’s son, son-in-law, and former campaign manager. The
President had previously and unsuccessfully sought to have Sessions publicly announce that the
Special Counsel investigation would be confined to future election interference. Yet Sessions
remained recused. In December 2017, shortly after Flynn pleaded guilty, the President spoke to
Sessions in the Oval Office with only Porter present and told Sessions that he would be a hero if
he unrecused. Porter linked that request to the President’s desire that Sessions take back
supervision of the Russia investigation and direct an investigation of Hillary Clinton. The
President said in that meeting that he “just want[ed] to be treated fairly,” which could reflect his
perception that it was unfair that he was being investigated while Hillary Clinton was not. But a
principal effect of that act would be to restore supervision of the Russia investigation to the
Attorney General—a position that the President frequently suggested should be occupied by
someone like Eric Holder and Bobby Kennedy, who the President described as protecting their

776
E.g., Del Quentin Wilbur & Byron Tau, Special Counsel Robert Mueller Impanels Washington
Grand Jury in Russia Probe, Wall Street Journal (Aug. 3, 2017); Carol D. Leonnig et al., Special Counsel
Mueller using grand jury in federal court in Washington as part of Russia investigation, Washington Post
(Aug. 3, 2017).

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presidents. A reasonable inference from those statements and the President’s actions is that the
President believed that an unrecused Attorney General would play a protective role and could
shield the President from the ongoing Russia investigation.

I. The President Orders McGahn to Deny that the President Tried to Fire the
Special Counsel

Overview

In late January 2018, the media reported that in June 2017 the President had ordered
McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn
had refused, saying he would quit instead. After the story broke, the President, through his
personal counsel and two aides, sought to have McGahn deny that he had been directed to remove
the Special Counsel. Each time he was approached, McGahn responded that he would not refute
the press accounts because they were accurate in reporting on the President’s effort to have the
Special Counsel removed. The President later personally met with McGahn in the Oval Office
with only the Chief of Staff present and tried to get McGahn to say that the President never ordered
him to fire the Special Counsel. McGahn refused and insisted his memory of the President’s
direction to remove the Special Counsel was accurate. In that same meeting, the President
challenged McGahn for taking notes of his discussions with the President and asked why he had
told Special Counsel investigators that he had been directed to have the Special Counsel removed.

Evidence

1. The Press Reports that the President Tried to Fire the Special Counsel

On January 25, 2018, the New York Times reported that in June 2017, the President had
ordered McGahn to have the Department of Justice fire the Special Counsel.777 According to the
article, “[a]mid the first wave of news media reports that Mr. Mueller was examining a possible
obstruction case, the president began to argue that Mr. Mueller had three conflicts of interest that
disqualified him from overseeing the investigation.”778 The article further reported that “[a]fter
receiving the president’s order to fire Mr. Mueller, the White House counsel . . . refused to ask the
Justice Department to dismiss the special counsel, saying he would quit instead.”779 The article
stated that the president “ultimately backed down after the White House counsel threatened to
resign rather than carry out the directive.”780 After the article was published, the President

777
Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When
White House Counsel Threatened to Quit, New York Times (Jan. 25. 2018).
778
Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When
White House Counsel Threatened to Quit, New York Times (Jan. 25. 2018).
779
Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When
White House Counsel Threatened to Quit, New York Times (Jan. 25. 2018).
780
Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When
White House Counsel Threatened to Quit, New York Times (Jan. 25. 2018).

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dismissed the story when asked about it by reporters, saying, “Fake news, folks. Fake news. A
typical New York Times fake story.”781

The next day, the Washington Post reported on the same event but added that McGahn had
not told the President directly that he intended to resign rather than carry out the directive to have
the Special Counsel terminated.782 In that respect, the Post story clarified the Times story, which
could be read to suggest that McGahn had told the President of his intention to quit, causing the
President to back down from the order to have the Special Counsel fired.783

2. The President Seeks to Have McGahn Dispute the Press Reports

On January 26, 2018, the President’s personal counsel called McGahn’s attorney and said
that the President wanted McGahn to put out a statement denying that he had been asked to fire
the Special Counsel and that he had threatened to quit in protest.784 McGahn’s attorney spoke with
McGahn about that request and then called the President’s personal counsel to relay that McGahn
would not make a statement.785 McGahn’s attorney informed the President’s personal counsel that
the Times story was accurate in reporting that the President wanted the Special Counsel
removed.786 Accordingly, McGahn’s attorney said, although the article was inaccurate in some
other respects, McGahn could not comply with the President’s request to dispute the story.787
Hicks recalled relaying to the President that one of his attorneys had spoken to McGahn’s attorney
about the issue.788

781
Sophie Tatum & Kara Scannell, Trump denies he called for Mueller’s firing, CNN (Jan. 26,
2018); Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When
White House Counsel Threatened to Quit, New York Times (Jan. 25, 2018).
782
The Post article stated, “Despite internal objections, Trump decided to assert that Mueller had
unacceptable conflicts of interest and moved to remove him from his position. . . . In response, McGahn
said he would not remain at the White House if Trump went through with the move. . . . McGahn did not
deliver his resignation threat directly to Trump but was serious about his threat to leave.” Rosalind S.
Helderman & Josh Dawsey, Trump moved to fire Mueller in June, bringing White House counsel to the
brink of leaving, Washington Post (Jan. 26, 2018).
783
Rosalind S. Helderman & Josh Dawsey, Trump moved to fire Mueller in June, bringing White
House counsel to the brink of leaving, Washington Post (Jan. 26, 2018); see McGahn 3/8/17 302, at 3-4.
784
McGahn 3/8/18 302, at 3 (agent note).
785
McGahn 3/8/18 302, at 3 (agent note).
786
McGahn 3/8/18 302, at 3-4 (agent note).
787
McGahn 3/8/18 302, at 4 (agent note).
788
Hicks 3/13/18 302, at 11. Hicks also recalled that the President spoke on the phone that day
with Chief of Staff John Kelly and that the President said Kelly told him that McGahn had totally refuted
the story and was going to put out a statement. Hicks 3/13/18 302, at 11. But Kelly said that he did not
speak to McGahn when the article came out and did not tell anyone he had done so. Kelly 8/2/18 302, at
1-2.

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Also on January 26, 2017, Hicks recalled that the President asked Sanders to contact
McGahn about the story.789 McGahn told Sanders there was no need to respond and indicated that
some of the article was accurate.790 Consistent with that position, McGahn did not correct the
Times story.

On February 4, 2018, Priebus appeared on Meet the Press and said he had not heard the
President say that he wanted the Special Counsel fired.791 After Priebus’s appearance, the
President called Priebus and said he did a great job on Meet the Press.792 The President also told
Priebus that the President had “never said any of those things about” the Special Counsel.793

The next day, on February 5, 2018, the President complained about the Times article to
Porter.794 The President told Porter that the article was “bullshit” and he had not sought to
terminate the Special Counsel.795 The President said that McGahn leaked to the media to make
himself look good.796 The President then directed Porter to tell McGahn to create a record to make
clear that the President never directed McGahn to fire the Special Counsel.797 Porter thought the
matter should be handled by the White House communications office, but the President said he
wanted McGahn to write a letter to the file “for our records” and wanted something beyond a press
statement to demonstrate that the reporting was inaccurate.798 The President referred to McGahn
as a “lying bastard” and said that he wanted a record from him.799 Porter recalled the President

789
Hicks 3/13/18 302, at 11. Sanders did not recall whether the President asked her to speak to
McGahn or if she did it on her own. Sanders 7/23/18 302, at 2.
790
Sanders 7/23/18 302, at 1-2.
791
Meet the Press Interview with Reince Priebus, NBC (Feb. 4, 2018).
792
Priebus 4/3/18 302, at 10.
793
Priebus 4/3/18 302, at 10.
794
Porter 4/13/18 302, at 16-17. Porter did not recall the timing of this discussion with the
President. Porter 4/13/18 302, at 17. Evidence indicates it was February 5, 2018. On the back of a pocket
card dated February 5, 2018, Porter took notes that are consistent with his description of the discussion:
“COS: (1) Letter from DM – Never threatened to quit – DJT never told him to fire M.” SC_RRP000053
(Porter Undated Notes). Porter said it was possible he took the notes on a day other than February 5. Porter
4/13/18 302, at 17. But Porter also said that “COS” referred to matters he wanted to discuss with Chief of
Staff Kelly, Porter 4/13/18 302, at 17, and Kelly took notes dated February 5, 2018, that state “POTUS –
Don McGahn letter – Mueller + resigning.” WH000017684 (Kelly 2/5/18 Notes). Kelly said he did not
recall what the notes meant, but thought the President may have “mused” about having McGahn write a
letter. Kelly 8/2/18 302, at 3. McGahn recalled that Porter spoke with him about the President’s request
about two weeks after the New York Times story was published, which is consistent with the discussion
taking place on or about February 5. McGahn 3/8/18 302, at 4.
795
Porter 4/13/18 302, at 17.
796
Porter 4/13/18 302, at 17.
797
Porter 4/13/18 302, at 17.
798
Porter 4/13/18 302, at 17; Porter 5/8/18 302, at 18.
799
Porter 4/13/18 302, at 17; Porter 5/8/18 302, at 18.

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saying something to the effect of, “If he doesn’t write a letter, then maybe I’ll have to get rid of
him.”800

Later that day, Porter spoke to McGahn to deliver the President’s message.801 Porter told
McGahn that he had to write a letter to dispute that he was ever ordered to terminate the Special
Counsel.802 McGahn shrugged off the request, explaining that the media reports were true.803
McGahn told Porter that the President had been insistent on firing the Special Counsel and that
McGahn had planned to resign rather than carry out the order, although he had not personally told
the President he intended to quit.804 Porter told McGahn that the President suggested that McGahn
would be fired if he did not write the letter.805 McGahn dismissed the threat, saying that the optics
would be terrible if the President followed through with firing him on that basis.806 McGahn said
he would not write the letter the President had requested.807 Porter said that to his knowledge the
issue of McGahn’s letter never came up with the President again, but Porter did recall telling Kelly
about his conversation with McGahn.808

The next day, on February 6, 2018, Kelly scheduled time for McGahn to meet with him
and the President in the Oval Office to discuss the Times article.809 The morning of the meeting,
the President’s personal counsel called McGahn’s attorney and said that the President was going
to be speaking with McGahn and McGahn could not resign no matter what happened in the
meeting.810

The President began the Oval Office meeting by telling McGahn that the New York Times
story did not “look good” and McGahn needed to correct it.811 McGahn recalled the President
said, “I never said to fire Mueller. I never said ‘fire.’ This story doesn’t look good. You need to
correct this. You’re the White House counsel.”812

800
Porter 4/13/18 302, at 17.
801
Porter 4/13/18 302, at 17; McGahn 3/8/18 302, at 4.
802
Porter 4/13/18 302, at 17; McGahn 3/8/18 302, at 4.
803
Porter 4/13/18 302, at 17; McGahn 3/8/18 302, at 4.
804
Porter 4/13/18 302, at 17; McGahn 3/8/18 302, at 4.
805
Porter 4/13/18 302, at 17; McGahn 3/8/18 302, at 4.
806
Porter 4/13/18 302, at 17-18; McGahn 3/8/18 302, at 4.
807
McGahn 3/8/18 302, at 4.
808
Porter 4/13/18 302, at 18.
809
McGahn 3/8/18 302, at 4; WH000017685 (Kelly 2/6/18 Notes). McGahn recalled that, before
the Oval Office meeting, he told Kelly that he was not inclined to fix the article. McGahn 3/8/18 302, at 4.
810
McGahn 3/8/18 302, at 5 (agent note); 2/26/19 Email, Counsel for Don McGahn to Special
Counsel’s Office (confirming February 6, 2018 date of call from the President’s personal counsel).
811
McGahn 3/8/18 302, at 4; Kelly 8/2/18 302, at 2.
812
McGahn 3/8/18 302, at 4; Kelly 8/2/18 302, at 2.

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In response, McGahn acknowledged that he had not told the President directly that he
planned to resign, but said that the story was otherwise accurate.813 The President asked McGahn,
“Did I say the word ‘fire’?”814 McGahn responded, “What you said is, ‘Call Rod [Rosenstein],
tell Rod that Mueller has conflicts and can’t be the Special Counsel.’”815 The President responded,
“I never said that.”816 The President said he merely wanted McGahn to raise the conflicts issue
with Rosenstein and leave it to him to decide what to do.817 McGahn told the President he did not
understand the conversation that way and instead had heard, “Call Rod. There are conflicts.
Mueller has to go.”818 The President asked McGahn whether he would “do a correction,” and
McGahn said no.819 McGahn thought the President was testing his mettle to see how committed
McGahn was to what happened.820 Kelly described the meeting as “a little tense.”821

The President also asked McGahn in the meeting why he had told Special Counsel’s Office
investigators that the President had told him to have the Special Counsel removed.822 McGahn
responded that he had to and that his conversations with the President were not protected by
attorney-client privilege.823 The President then asked, “What about these notes? Why do you take
notes? Lawyers don’t take notes. I never had a lawyer who took notes.”824 McGahn responded
that he keeps notes because he is a “real lawyer” and explained that notes create a record and are
not a bad thing.825 The President said, “I’ve had a lot of great lawyers, like Roy Cohn. He did not
take notes.”826

After the Oval Office meeting concluded, Kelly recalled McGahn telling him that McGahn
and the President “did have that conversation” about removing the Special Counsel.827 McGahn
recalled that Kelly said that he had pointed out to the President after the Oval Office that McGahn

813
McGahn 3/8/18 302, at 4.
814
McGahn 3/8/18 302, at 4; Kelly 8/2/18 302, at 2.
815
McGahn 3/8/18 302, at 5.
816
McGahn 3/8/18 302, at 5.
817
McGahn 3/8/18 302, at 5.
818
McGahn 3/8/18 302, at 5.
819
McGahn 3/8/18 302, at 5; Kelly 8/2/18 302, at 2.
820
McGahn 3/8/18 302, at 5.
821
Kelly 8/2/18 302, at 2.
822
McGahn 3/8/18 302, at 5.
823
McGahn 3/8/18 302, at 5.
824
McGahn 3/8/18 302, at 5. McGahn said the President was referring to Donaldson’s notes, which
the President thought of as McGahn’s notes. McGahn 3/8/18 302, at 5.
825
McGahn 3/8/18 302, at 5.
826
McGahn 3/8/18 302, at 5.
827
Kelly 8/2/18 302, at 2.

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had not backed down and would not budge.828 Following the Oval Office meeting, the President’s
personal counsel called McGahn’s counsel and relayed that the President was “fine” with
McGahn.829

Analysis

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:

a. 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 the 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 McGahn to have Rosenstein remove the Special Counsel. The President correctly
understood that McGahn 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 McGahn, 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
McGahn to change his story but was instead offering his own—but different—recollection of the
substance of his June 2017 conversations with McGahn and McGahn’s reaction to them.

Other evidence cuts against that understanding of the President’s conduct. As previously
described, see Volume II, Section II.E, supra, substantial evidence supports McGahn’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 McGahn reacted; and the fact that the
President had been told the conflicts were insubstantial, were being considered by the Department
of Justice, and should be raised with the President’s personal counsel rather than brought to
McGahn. In addition, the President’s subsequent denials that he had told McGahn 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 McGahn 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’” and “Did I say the
word ‘fire’?” The President’s assertion in the Oval Office meeting that he had never directed
McGahn to have the Special Counsel removed thus runs counter to the evidence.

In addition, even if the President sincerely disagreed with McGahn’s memory of the June
17, 2017 events, the evidence indicates that the President knew by the time of the Oval Office

828
McGahn 3/8/18 302, at 5. Kelly did not recall discussing the Oval Office meeting with the
President after the fact. Kelly 8/2/18 302, at 2. Handwritten notes taken by Kelly state, “Don[:] Mueller
discussion in June. - Bannon Priebus - came out okay.” WH000017685 (Kelly 2/6/18 Notes).
829
McGahn 3/8/18 302, at 5 (agent note).

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meeting that McGahn’s account differed and that McGahn was firm in his views. Shortly after the
story broke, the President’s counsel told McGahn’s counsel that the President wanted McGahn to
make a statement denying he had been asked to fire the Special Counsel, but McGahn 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 McGahn to correct the
story, but McGahn told her he would not do so because the story was accurate in reporting on the
President’s order. Consistent with that position, McGahn never issued a correction. More than a
week later, the President brought up the issue again with Porter, made comments indicating the
President thought McGahn had leaked the story, and directed Porter to have McGahn 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” McGahn if McGahn did not comply. McGahn again refused and
told Porter, as he had 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 McGahn did not
think the story was false and did not want to issue a statement or create a written record denying
facts that McGahn believed to be true. The President nevertheless persisted and asked McGahn to
repudiate facts that McGahn had repeatedly said were accurate.

b. 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.830 The President knew that
McGahn had personal knowledge of many of the events the Special Counsel was investigating and
that McGahn had already been interviewed by Special Counsel investigators. And in the Oval
Office meeting, the President indicated he knew that McGahn had told the Special Counsel’s
Office about the President’s effort to remove the Special Counsel. The President challenged
McGahn 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 McGahn 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 McGahn 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 McGahn 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 McGahn write a
letter “for our records” approximately ten days after the stories had come out—well past the typical
830
1/29/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 1-2 (“In our
conversation of January 8, your office identified the following topics as areas you desired to address with
the President in order to complete your investigation on the subjects of alleged collusion and obstruction of
justice”; listing 16 topics).

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time to issue a correction for a news story—indicates the President was not focused solely on a
press strategy, but instead likely contemplated the ongoing investigation and any proceedings
arising from it.

c. Intent. Substantial evidence indicates that in repeatedly urging McGahn to dispute


that he was ordered to have the Special Counsel terminated, the President acted for the purpose of
influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s
conduct towards the investigation.

Several facts support that conclusion. The President made repeated attempts to get
McGahn to change his story. As described above, by the time of the last attempt, the evidence
suggests that the President had been told on multiple occasions that McGahn believed the President
had ordered him to have the Special Counsel terminated. McGahn 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
McGahn to alter his account by telling Porter that it might be necessary to fire McGahn if he did
not deny the story, and Porter relayed that statement to McGahn. Additional evidence of the
President’s intent may be gleaned from the fact that his counsel was sufficiently alarmed by the
prospect of the President’s meeting with McGahn that he called McGahn’s counsel and said that
McGahn could not resign no matter what happened in the Oval Office that day. The President’s
counsel was well aware of McGahn’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 McGahn 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.

J. The President’s Conduct Towards Flynn, Manafort, and Stone

Overview

In addition to the interactions with McGahn described above, the President has taken other
actions directed at possible witnesses in the Special Counsel’s investigation, including Flynn,
Manafort, Stone, and as described in the next section, Cohen. When Flynn withdrew from a joint
defense agreement with the President, the President’s personal counsel stated that Flynn’s actions
would be viewed as reflecting “hostility” towards the President. During Manafort’s prosecution
and while the jury was deliberating, the President repeatedly stated that Manafort was being treated
unfairly and made it known that Manafort could receive a pardon. And the President commended
Stone for having the “guts” to say that he would not testify against the President.

Evidence

1. Conduct Directed at Michael Flynn

As previously noted, see Volume II, Section II.B, supra, the President asked for Flynn’s
resignation on February 13, 2017. Following Flynn’s resignation, the President made positive
public comments about Flynn, describing him as a “wonderful man,” “a fine person,” and a “very

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good person.”831 The President also privately asked advisors to pass messages to Flynn conveying
that the President still cared about him and encouraging him to stay strong.832

In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017,
Flynn withdrew from a joint defense agreement he had with the President.833 Flynn’s counsel told
the President’s personal counsel and counsel for the White House that Flynn could no longer have
confidential communications with the White House or the President.834 Later that night, the
President’s personal counsel left a voicemail for Flynn’s counsel that said:

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t
wouldn’t surprise me if you’ve gone on to make a deal with . . . the government. . . . [I]f
. . . there’s information that implicates the President, then we’ve got a national security
issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of
protecting all our interests if we can. . . . [R]emember what we’ve always said about the
President and his feelings toward Flynn and, that still remains . . . .835

On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal
counsel to acknowledge receipt of the voicemail.836 Flynn’s attorneys reiterated that they were no
longer in a position to share information under any sort of privilege.837 According to Flynn’s
attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The
President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s

831
See, e.g., Remarks by President Trump in Press Conference, White House (Feb. 16, 2018)
(stating that “Flynn is a fine person” and “I don’t think [Flynn] did anything wrong. If anything, he did
something right . . . You know, he was just doing his job”); Interview of Donald J. Trump, NBC (May 11,
2017) (stating that Flynn is a “very good person”).
832
See Priebus 1/18/17 302, at 9-10 (the President asked Priebus to contact Flynn the week he was
terminated to convey that the President still cared about him and felt bad about what happened to him;
Priebus thought the President did not want Flynn to have a problem with him); McFarland 12/22/17 302,
at 18 (about a month or two after Flynn was terminated, the President asked McFarland to get in touch with
Flynn and tell him that he was a good guy, he should stay strong, and the President felt bad for him); Flynn
1/19/18 302, at 9 (recalling the call from Priebus and an additional call from Hicks who said she wanted to
relay on behalf of the President that the President hoped Flynn was okay); Christie 2/13/19 302, at 3
(describing a phone conversation between Kushner and Flynn the day after Flynn was fired where Kushner
said, “You know the President respects you. The President cares about you. I’ll get the President to send
out a positive tweet about you later,” and the President nodded his assent to Kushner’s comment promising
a tweet).
833
Counsel for Flynn 3/1/18 302, at 1.
834
Counsel for Flynn 3/1/18 302, at 1.
835
11/22/17 Voicemail Transcript, President’s Personal Counsel to Counsel for Michael Flynn.
836
Counsel for Flynn 3/1/18 302, at 1.
837
Counsel for Flynn 3/1/18 302, at 1.
838
Counsel for Flynn 3/1/18 302, at 1.

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hostility towards the President and that he planned to inform his client of that interpretation.839
Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position
because the President’s personal counsel believed that Flynn would be disturbed to know that such
a message would be conveyed to the President.840

On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a


cooperation agreement.841 The next day, the President told the press that he was not concerned
about what Flynn might tell the Special Counsel.842 In response to a question about whether the
President still stood behind Flynn, the President responded, “We’ll see what happens.”843 Over
the next several days, the President made public statements expressing sympathy for Flynn and
indicating he had not been treated fairly.844 On December 15, 2017, the President responded to a
press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk
about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When
you look at what’s gone on with the FBI and with the Justice Department, people are very, very
angry.”845

2. Conduct Directed at Paul Manafort

On October 27, 2017, a grand jury in the District of Columbia indicted Manafort and former
deputy campaign manager Richard Gates on multiple felony counts, and on February 22, 2018, a
grand jury in the Eastern District of Virginia indicted Manafort and Gates on additional felony

839
Counsel for Flynn 3/1/18 302, at 2. Because of attorney-client privilege issues, we did not seek
to interview the President’s personal counsel about the extent to which he discussed his statements to
Flynn’s attorneys with the President.
840
Counsel for Flynn 3/1/18 302, at 2.
841
Information, United States v. Michael T. Flynn, 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 1; Plea
Agreement, United States v. Michael T. Flynn, 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 3.
842
President Trump Remarks on Tax Reform and Michael Flynn’s Guilty Plea, C-SPAN (Dec. 2,
2017).
843
President Trump Remarks on Tax Reform and Michael Flynn’s Guilty Plea, C-SPAN (Dec. 2,
2017).
844
See @realDonaldTrump 12/2/17 (9:06 p.m. ET) Tweet (“So General Flynn lies to the FBI and
his life is destroyed, while Crooked Hillary Clinton, on that now famous FBI holiday ‘interrogation’ with
no swearing in and no recording, lies many times . . . and nothing happens to her? Rigged system, or just
a double standard?”); President Trump Departure Remarks, C-SPAN (Dec. 4, 2017) (“Well, I feel badly
for General Flynn. I feel very badly. He’s led a very strong life. And I feel very badly.”).
845
President Trump White House Departure, C-SPAN (Dec. 15, 2017).

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counts.846 The charges in both cases alleged criminal conduct by Manafort that began as early as
2005 and continued through 2018.847

In January 2018, Manafort told Gates that he had talked to the President’s personal counsel
and they were “going to take care of us.”848 Manafort told Gates it was stupid to plead, saying that
he had been in touch with the President’s personal counsel and repeating that they should “sit tight”
and “we’ll be taken care of.”849 Gates asked Manafort outright if anyone mentioned pardons and
Manafort said no one used that word.850

As the proceedings against Manafort progressed in court, the President told Porter that he
never liked Manafort and that Manafort did not know what he was doing on the campaign.851 The
President discussed with aides whether and in what way Manafort might be cooperating with the
Special Counsel’s investigation, and whether Manafort knew any information that would be
harmful to the President.852

In public, the President made statements criticizing the prosecution and suggesting that
Manafort was being treated unfairly. On June 15, 2018, before a scheduled court hearing that day
on whether Manafort’s bail should be revoked based on new charges that Manafort had tampered
with witnesses while out on bail, the President told the press, “I feel badly about a lot of them

846
Indictment, United States v. Paul J. Manafort, Jr. and Richard W. Gates III, 1:17-cr-201 (D.D.C.
Oct, 27, 2017), Doc. 13 (“Manafort and Gates D.D.C. Indictment”); Indictment, United States v. Paul J.
Manafort, Jr. and Richard W. Gates III, 1:18-cr-83 (E.D. Va. Feb. 22, 2018), Doc. 9 (“Manafort and Gates
E.D. Va. Indictment”)
847
Manafort and Gates D.D.C. Indictment; Manafort and Gates E.D. Va. Indictment.
848
Gates 4/18/18 302, at 4. In February 2018, Gates pleaded guilty, pursuant to a cooperation plea
agreement, to a superseding criminal information charging him with conspiring to defraud and commit
multiple offenses (i.e., tax fraud, failure to report foreign bank accounts, and acting as an unregistered agent
of a foreign principal) against the United States, as well as making false statements to our
Office. Superseding Criminal Information, United States v. Richard W. Gates III, 1:17-cr-201 (D.D.C. Feb.
23, 2018), Doc. 195; Plea Agreement, United States v. Richard W. Gates III, 1:17-cr-201 (D.D.C. Feb. 23,
2018), Doc. 205. Gates has provided information and in-court testimony that the Office has deemed to be
reliable.
849
Gates 4/18/18 302, at 4.
850
Gates 4/18/18 302, at 4. Manafort told this Office that he never told Gates that he had talked to
the President’s personal counsel or suggested that they would be taken care of. Manafort also said he hoped
for a pardon but never discussed one with the President, although he noticed the President’s public
comments about pardons. Manafort 10/1/18 302, at 11. As explained in Volume I, Section IV.A.8, supra,
Manafort entered into a plea agreement with our Office. The U.S. District Court for the District of
Columbia determined that he breached the agreement by being untruthful in proffer sessions and before the
grand jury. Order, United States v. Manafort, 1:17-cr-201 (D.D.C. Feb. 13, 2019), Doc. 503.
851
Porter 5/8/18 302, at 11. Priebus recalled that the President never really liked Manafort. See
Priebus 4/3/18 302, at 11. Hicks said that candidate Trump trusted Manafort’s judgment while he worked
on the Campaign, but she also once heard Trump tell Gates to keep an eye on Manafort. Hicks 3/13/18
302, at 16.
852
Porter 5/8/18 302, at 11; McGahn 12/14/17 302, at 14.

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because I think a lot of it is very unfair. I mean, I look at some of them where they go back 12
years. Like Manafort has nothing to do with our campaign. But I feel so—I tell you, I feel a little
badly about it. They went back 12 years to get things that he did 12 years ago? . . . I feel badly
for some people, because they’ve gone back 12 years to find things about somebody, and I don’t
think it’s right.”853 In response to a question about whether he was considering a pardon for
Manafort or other individuals involved in the Special Counsel’s investigation, the President said,
“I don’t want to talk about that. No, I don’t want to talk about that. . . . But look, I do want to see
people treated fairly. That’s what it’s all about.” 854 Hours later, Manafort’s bail was revoked and
the President tweeted, “Wow, what a tough sentence for Paul Manafort, who has represented
Ronald Reagan, Bob Dole and many other top political people and campaigns. Didn’t know
Manafort was the head of the Mob. What about Comey and Crooked Hillary and all the others?
Very unfair!”855

Immediately following the revocation of Manafort’s bail, the President’s personal lawyer,
Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for
Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things
might get cleaned up with some presidential pardons.”856 Giuliani also said in an interview that,
although the President should not pardon anyone while the Special Counsel’s investigation was
ongoing, “when the investigation is concluded, he’s kind of on his own, right?”857 In a CNN
interview two days later, Giuliani said, “I guess I should clarify this once and for all. . . . The
president has issued no pardons in this investigation. The president is not going to issue pardons
in this investigation. . . . When it’s over, hey, he’s the president of the United States. He retains
his pardon power. Nobody is taking that away from him.”858 Giuliani rejected the suggestion that
his and the President’s comments could signal to defendants that they should not cooperate in a
criminal prosecution because a pardon might follow, saying the comments were “certainly not
intended that way.”859 Giuliani said the comments only acknowledged that an individual involved
in the investigation would not be “excluded from [a pardon], if in fact the president and his advisors
. . . come to the conclusion that you have been treated unfairly.”860 Giuliani observed that pardons
were not unusual in political investigations but said, “That doesn’t mean they’re going to happen

853
Remarks by President Trump in Press Gaggle, White House (June 15, 2018).
854
Remarks by President Trump in Press Gaggle, White House (June 15, 2018).
855
@realDonaldTrump 6/15/18 (1:41 p.m. ET) Tweet.
856
Chris Sommerfeldt, Rudy Giuliani says Mueller probe ‘might get cleaned up’ with ‘presidential
pardons’ in light of Paul Manafort going to jail, New York Daily News (June 15, 2018).
857
Sharon LaFraniere, Judge Orders Paul Manafort Jailed Before Trial, Citing New Obstruction
Charges, New York Times (June 15, 2018) (quoting Giuliani).
858
State of the Union with Jake Tapper Transcript, CNN (June 17, 2018); see Karoun Demirjian,
Giuliani suggests Trump may pardon Manafort after Mueller’s probe, Washington Post (June 17, 2018).
859
State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).
860
State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

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here. Doesn’t mean that anybody should rely on it. . . . Big signal is, nobody has been pardoned
yet.”861

On July 31, 2018, Manafort’s criminal trial began in the Eastern District of Virginia,
generating substantial news coverage.862 The next day, the President tweeted, “This is a terrible
situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before
it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry
Democrats that are doing his dirty work are a disgrace to USA!”863 Minutes later, the President
tweeted, “Paul Manafort worked for Ronald Reagan, Bob Dole and many other highly prominent
and respected political leaders. He worked for me for a very short time. Why didn’t government
tell me that he was under investigation. These old charges have nothing to do with Collusion—a
Hoax!”864 Later in the day, the President tweeted, “Looking back on history, who was treated
worse, Alfonse Capone, legendary mob boss, killer and ‘Public Enemy Number One,’ or Paul
Manafort, political operative & Reagan/Dole darling, now serving solitary confinement—although
convicted of nothing? Where is the Russian Collusion?”865 The President’s tweets about the
Manafort trial were widely covered by the press.866 When asked about the President’s tweets,
Sanders told the press, “Certainly, the President’s been clear. He thinks Paul Manafort’s been
treated unfairly.”867

On August 16, 2018, the Manafort case was submitted to the jury and deliberations began.
At that time, Giuliani had recently suggested to reporters that the Special Counsel investigation
needed to be “done in the next two or three weeks,”868 and media stories reported that a Manafort
acquittal would add to criticism that the Special Counsel investigation was not worth the time and
expense, whereas a conviction could show that ending the investigation would be premature.869

861
State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).
862
See, e.g., Katelyn Polantz, Takeaways from day one of the Paul Manafort trial, CNN (July 31,
2018); Frank Bruni, Paul Manafort’s Trial Is Donald Trump’s, Too, New York Times Opinion (July 31,
2018); Rachel Weiner et al., Paul Manafort trial Day 2: Witnesses describe extravagant clothing purchases,
home remodels, lavish cars paid with wire transfers, Washington Post (Aug. 1, 2018).
863
@realDonaldTrump 8/1/18 (9:24 a.m. ET) Tweet. Later that day, when Sanders was asked
about the President’s tweet, she told reporters, “It’s not an order. It’s the President’s opinion.” Sarah
Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2018).
864
@realDonaldTrump 8/1/18 (9:34 a.m. ET) Tweet.
865
@realDonaldTrump 8/1/18 (11:35 a.m. ET) Tweet.
866
See, e.g., Carol D. Leonnig et al., Trump calls Manafort prosecution “a hoax,” says Sessions
should stop Mueller investigation “right now”, Washington Post (Aug. 1, 2018); Louis Nelson, Trump
claims Manafort case has “nothing to do with collusion”, Politico (Aug. 1. 2018).
867
Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2018).
868
Chris Strohm & Shannon Pettypiece, Mueller Probe Doesn’t Need to Shut Down Before
Midterms, Officials Say, Bloomberg (Aug. 15, 2018).
869
See, e.g., Katelyn Polantz et al., Manafort jury ends first day of deliberations without a verdict,
CNN (Aug. 16, 2018); David Voreacos, What Mueller’s Manafort Case Means for the Trump Battle to

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On August 17, 2018, as jury deliberations continued, the President commented on the trial from
the South Lawn of the White House. In an impromptu exchange with reporters that lasted
approximately five minutes, the President twice called the Special Counsel’s investigation a
“rigged witch hunt.”870 When asked whether he would pardon Manafort if he was convicted, the
President said, “I don’t talk about that now. I don’t talk about that.”871 The President then added,
without being asked a further question, “I think the whole Manafort trial is very sad when you look
at what’s going on there. I think it’s a very sad day for our country. He worked for me for a very
short period of time. But you know what, he happens to be a very good person. And I think it’s
very sad what they’ve done to Paul Manafort.”872 The President did not take further questions.873
In response to the President’s statements, Manafort’s attorney said, “Mr. Manafort really
appreciates the support of President Trump.”874

On August 21, 2018, the jury found Manafort guilty on eight felony counts. Also on
August 21, Michael Cohen pleaded guilty to eight offenses, including a campaign-finance
violation that he said had occurred “in coordination with, and at the direction of, a candidate for
federal office.”875 The President reacted to Manafort’s convictions that day by telling reporters,
“Paul Manafort’s a good man” and “it’s a very sad thing that happened.”876 The President
described the Special Counsel’s investigation as “a witch hunt that ends in disgrace.”877 The next
day, the President tweeted, “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’
took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike
Michael Cohen, he refused to ‘break’—make up stories in order to get a ‘deal.’ Such respect for
a brave man!”878

In a Fox News interview on August 22, 2018, the President said: “[Cohen] makes a better
deal when he uses me, like everybody else. And one of the reasons I respect Paul Manafort so
much is he went through that trial—you know they make up stories. People make up stories. This

Come, Bloomberg (Aug. 2, 2018); Gabby Morrongiello, What a guilty verdict for Manafort would mean
for Trump and Mueller, Washington Examiner (Aug. 18, 2018).
870
President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).
871
President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).
872
President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).
873
President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).
874
Trump calls Manafort “very good person,” All In with Chris Hayes (Aug. 17, 2018) (transcript);
Manafort lawyer: We appreciate Trump’s support, CNN (Aug. 17, 2018)
(https://www.cnn.com/videos/politics/2018/08/17/paul-manafort-attorney-trump-jury-deliberations-
schneider-lead-vpx.cnn).
875
Transcript at 23, United States v. Michael Cohen, 1:18-cr-602 (S.D.N.Y. Aug. 21, 2018), Doc.
7 (Cohen 8/21/18 Transcript).
876
President Trump Remarks on Manafort Trial, C-SPAN (Aug. 21, 2018).
877
President Trump Remarks on Manafort Trial, C-SPAN (Aug. 21, 2018).
878
@realDonaldTrump 8/22/18 (9:21 a.m. ET) Tweet.

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whole thing about flipping, they call it, I know all about flipping.”879 The President said that
flipping was “not fair” and “almost ought to be outlawed.”880 In response to a question about
whether he was considering a pardon for Manafort, the President said, “I have great respect for
what he’s done, in terms of what he’s gone through. . . . He worked for many, many people many,
many years, and I would say what he did, some of the charges they threw against him, every
consultant, every lobbyist in Washington probably does.”881 Giuliani told journalists that the
President “really thinks Manafort has been horribly treated” and that he and the President had
discussed the political fallout if the President pardoned Manafort.882 The next day, Giuliani told
the Washington Post that the President had asked his lawyers for advice on the possibility of a
pardon for Manafort and other aides, and had been counseled against considering a pardon until
the investigation concluded.883

On September 14, 2018, Manafort pleaded guilty to charges in the District of Columbia
and signed a plea agreement that required him to cooperate with investigators.884 Giuliani was
reported to have publicly said that Manafort remained in a joint defense agreement with the
President following Manafort’s guilty plea and agreement to cooperate, and that Manafort’s
attorneys regularly briefed the President’s lawyers on the topics discussed and the information
Manafort had provided in interviews with the Special Counsel’s Office.885 On November 26, 2018,
the Special Counsel’s Office disclosed in a public court filing that Manafort had breached his plea
agreement by lying about multiple subjects.886 The next day, Giuliani said that the President had
been “upset for weeks” about what he considered to be “the un-American, horrible treatment of

879
Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded
the previous day).
880
Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded
the previous day).
881
Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded
the previous day).
882
Maggie Haberman & Katie Rogers, “How Did We End Up Here?” Trump Wonders as the White
House Soldiers On, New York Times (Aug. 22, 2018).
883
Carol D. Leonnig & Josh Dawsey, Trump recently sought his lawyers’ advice on possibility of
pardoning Manafort, Giuliani says, Washington Post (Aug. 23, 2018).
884
Plea Agreement, United States v. Paul J. Manafort, Jr., 1:17-cr-201 (D.D.C. Sept. 14, 2018),
Doc. 422.
885
Karen Freifeld & Nathan Layne, Trump lawyer: Manafort said nothing damaging in Mueller
interviews, Reuters (Oct. 22, 2018); Michael S. Schmidt et al., Manafort’s Lawyer Said to Brief Trump
Attorneys on What He Told Mueller, New York Times (Nov. 27, 2018); Dana Bash, Manafort team briefed
Giuliani on Mueller meetings, CNN, Posted 11/28/18, available at
https://www.cnn.com/videos/politics/2018/11/28/manafort-lawyers-keeping-trump-lawyers-giuliani-
updated-mueller-probe-bash-sot-nr-vpx.cnn; see Sean Hannity, Interview with Rudy Giuliani, Fox News
(Sept. 14, 2018) (Giuliani: “[T]here was a quote put out by a source close to Manafort that the plea
agreement has, and cooperation agreement has, nothing to do with the Trump campaign. . . . Now, I know
that because I’ve been privy to a lot of facts I can’t repeat.”).
886
Joint Status Report, United States v. Paul J. Manafort, Jr., (D.D.C Nov. 26, 2018), Doc. 455.

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Manafort.”887 In an interview on November 28, 2018, the President suggested that it was “very
brave” that Manafort did not “flip”:

If you told the truth, you go to jail. You know this flipping stuff is terrible. You flip and
you lie and you get—the prosecutors will tell you 99 percent of the time they can get people
to flip. It’s rare that they can’t. But I had three people: Manafort, Corsi—I don’t know
Corsi, but he refuses to say what they demanded.888 Manafort, Corsi and Roger Stone. It’s
actually very brave.889

In response to a question about a potential pardon for Manafort, the President said, “It was never
discussed, but I wouldn’t take it off the table. Why would I take it off the table?”890

3. Conduct Directed at Roger Stone

In the second half of 2018, the media reported that Roger Stone said he expected to be
charged with crimes in the Special Counsel investigation.891 In press interviews, Stone repeatedly
asserted that he would not testify against the President.892 On August 30, 2018, for example, Stone
said that he anticipated he would be “pressure[d] . . . to testify against the president” and he was
“not going to do it.”893

On November 20, 2018, the President submitted written answers to questions that had been
provided by the Special Counsel’s Office, and the President’s legal team announced that he had
done so.894 Several questions addressed the President’s communications with Stone during the

887
Stephen Collinson, Trump appears consumed by Mueller investigation as details emerge, CNN
(Nov. 29, 2018).
888
“Corsi” is a reference to Jerome Corsi, an associate of Roger Stone who was involved in efforts
to coordinate with WikiLeaks and Assange, and who stated publicly at that time that he had refused a plea
offer from the Special Counsel’s Office because he was “not going to sign a lie.” Sara Murray & Eli
Watkins, Roger Stone associate says he won’t agree to plea deal, CNN (Nov. 26, 2018).
889
Marisa Schultz & Nikki Schwab, Oval Office Interview with President Trump: Trump says
pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018). That same day, the President
tweeted: “While the disgusting Fake News is doing everything within their power not to report it that way,
at least 3 major players are intimating that the Angry Mueller Gang of Dems is viciously telling witnesses
to lie about facts & they will get relief. This is our Joseph McCarthy Era!” @realDonaldTrump 11/28/18
(8:39 a.m. ET) Tweet.
890
Marisa Schultz & Nikki Schwab, New York Post Oval Office Interview with President Trump:
Trump says pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018).
891
See, e.g., Ken Dilanian, Ex-Trump advisor Roger Stone says he expects Mueller to charge him
with a crime, NBC (Aug. 30, 2018).
892
See, e.g., Ken Dilanian, Ex-Trump advisor Roger Stone says he expects Mueller to charge him
with a crime, NBC (Aug. 30, 2018).
893
See, e.g., Ken Dilanian, Ex-Trump advisor Roger Stone says he expects Mueller to charge him
with a crime, NBC (Aug. 30, 2018).
894
11/20/18 Letter, President’s Personal Counsel to Special Counsel’s Office (transmitting written
responses of Donald J. Trump); Jordan Fabian, Trump submits written answers to Mueller, Hill (Nov. 20,

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campaign, including “Did Mr. Stone ever discuss WikiLeaks with you or, as far as you were aware,
with anyone else associated with the campaign?” and “Did Mr. Stone at any time inform you about
contacts he had with WikiLeaks or any intermediary of WikiLeaks, or about forthcoming releases
of information?”895 In his written answers, the President stated: “I spoke by telephone with Roger
Stone from time to time during the campaign. I have no recollection of the specifics of any
conversations I had with Mr. Stone between June 1, 2016 and November 8, 2016. I do not recall
discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed
WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks
was the subject of media reporting and campaign-related discussion at the time.”896

As described in Volume I, Section III.D.1, supra, and Volume II, Section II.A, supra,
several witnesses said that candidate Trump was told during the campaign that Stone had access
to WikiLeaks and could provide information about planned releases of damaging material related
to Hillary Clinton before those releases occurred. Cohen recalled a conversation in which Roger
Stone told Trump that WikiLeaks planned to release information soon, and Manafort recalled that
Trump had asked him to stay in touch with Stone about WikiLeaks. Witnesses also said that
Stone’s connection to WikiLeaks was common knowledge within the Campaign.

As described above, in an interview on November 28, 2018, one week after submitting his
written answers, the President criticized “flipping” and said that Stone (along with Manafort and
Corsi) was “very brave” in indicating he would not cooperate with prosecutors.897 On December
2, 2018, Stone told the press that there was “no circumstance” under which he would “testify
against the president.”898 He also said he had had no discussions about a pardon.899 On December
3, 2018, the President tweeted, “‘I will never testify against Trump.’ This statement was recently
made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control

2018) (quoting the President’s personal counsel as saying the President’s answers cover “issues regarding
the Russia-related topics of the inquiry”).
895
9/17/18 Letter, Special Counsel’s Office to President’s Personal Counsel (providing written
questions).
896
Written Responses of Donald J. Trump (Nov. 20, 2018), at 13-14 (Response to Question II, Part
(g)).
897
Marisa Schultz & Nikki Schwab, New York Post Oval Office Interview with President Trump:
Trump says pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018).
898
George Stephanopoulos, ‘This Week’ Transcript 12-2-18: James Baker, Colin Powell, Rep.
Adam Schiff and Roger Stone, ABC (Dec. 2, 2018).
899
George Stephanopoulos, ‘This Week’ Transcript 12-2-18: James Baker, Colin Powell, Rep.
Adam Schiff and Roger Stone, ABC (Dec. 2, 2018).

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prosecutor to make up lies and stories about ‘President Trump.’ Nice to know that some people
still have ‘guts!’”900

On January 24, 2019, a grand jury indicted Stone on charges of obstruction, witness
tampering, and making false statements.901 One of the counts charged Stone with violating 18
U.S.C. § 1001 for testifying falsely in Congress that he had never told anyone involved in the
Trump Campaign about discussions he was having during the campaign with an individual who
acted as an intermediary between him and Assange.902 After making an initial court appearance
on January 25, 2019, Stone told reporters, “There is no circumstance whatsoever under which I
will bear false witness against the president, nor will I make up lies to ease the pressure on myself.
. . . I will not testify against the President, because I would have to bear false witness.”903

That evening, Stone appeared on Fox News and indicated he had knowledge of the
President’s answers to this Office’s written questions. When asked if he had spoken to the
President about the allegation that he had lied to Congress, Stone said, “I have not” and added,
“When the President answered the written interrogatories, he correctly and honestly said Roger
Stone and I never discussed this and we never did.”904

The next day, January 26, 2019, the President tweeted, “If Roger Stone was indicted for
lying to Congress, what about the lying done by Comey . . . and soooo many others?”905 On
January 31, 2019, the President criticized the execution of the search and arrest warrants for Stone,
saying “I think that was a very sad thing for this country” and “I like Roger.”906 On February 3,
2019, the President said in an interview, “Roger is somebody that I’ve always liked.”907 When
asked whether he would pardon Stone, the President said, “I have not thought about it. It looks
like he’s defending himself very well. But you have to get rid of the Russia witch hunt because it
is indeed.”908

900
@realDonaldTrump 12/3/18 (10:48 a.m. ET) Tweet.
901
Indictment, United States v. Roger Jason Stone, Jr., 1:19-cr-18 (D.D.C. Jan. 24, 2019), Doc. 1
(Stone Indictment).
902
Stone Indictment ¶¶ 35, 43. Stone had testified before Congress on September 26, 2017, and
was asked, “Did you discuss your conversations with the intermediary with anyone involved in the Trump
campaign?” Stone responded, “I did not.” Executive Session, Permanent Select Committee on Intelligence,
U.S. House of Representatives, Interview of Roger J. Stone, Jr. (Sept. 26, 2017), at 102.
903
Devlin Barrett et al., Longtime Trump adviser Roger Stone indicted by special counsel in Russia
investigation, Washington Post (Jan. 25, 2019).
904
Former Trump 2016 Presidential Campaign Aide Roger Stone Interviewed on Fox News, CQ
Newsmaker Transcripts, at 5 (Jan. 25, 2019).
905
@realDonaldTrump 1/26/19 (8:42 a.m. ET) Tweet.
906
Peter Baker et al., Excerpts From Trump’s Interview With The New York Times, New York
Times (Feb. 1, 2019).
907
Face the Nation interview with President Trump, CBS (Feb. 3, 2019).
908
Face the Nation interview with President Trump, CBS (Feb. 3, 2019).

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Analysis

In analyzing the President’s conduct towards Flynn, Manafort, and Stone, the following
evidence is relevant to the elements of obstruction of justice:

a. Obstructive act. The President’s actions towards witnesses in the Special Counsel’s
investigation would qualify as obstructive if they had the natural tendency to prevent particular
witnesses from testifying truthfully, or otherwise would have the probable effect of influencing,
delaying, or preventing their testimony to law enforcement.

With regard to Flynn, the President sent private and public messages to Flynn encouraging
him to stay strong and conveying that the President still cared about him before he began to
cooperate with the government. When Flynn’s attorneys withdrew him from a joint defense
agreement with the President, signaling that Flynn was potentially cooperating with the
government, the President’s personal counsel initially reminded Flynn’s counsel of the President’s
warm feelings towards Flynn and said “that still remains.” But when Flynn’s counsel reiterated
that Flynn could no longer share information under a joint defense agreement, the President’s
personal counsel stated that the decision would be interpreted as reflecting Flynn’s hostility
towards the President. That sequence of events could have had the potential to affect Flynn’s
decision to cooperate, as well as the extent of that cooperation. Because of privilege issues,
however, we could not determine whether the President was personally involved in or knew about
the specific message his counsel delivered to Flynn’s counsel.

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

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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 jury deliberations that
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.

Finally, there is evidence that the President’s actions towards Stone had the potential to
affect a decision about cooperating with the government. After Stone publicly announced that he
would never provide evidence against the President’s interests, the President called Stone “very
brave” and said he had “guts!” for not “testify[ing] against Trump.”

b. Nexus to an official proceeding. The President’s actions towards Flynn, Manafort,


and Stone appear to have been connected to pending or anticipated official proceedings involving
each individual. The President’s conduct towards Flynn and Stone 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 towards 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.

c. Intent. Evidence concerning the President’s intent related to Flynn as a potential


witness is inconclusive. As previously noted, because of privilege issues we do not have evidence
establishing whether the President knew about or was involved in his counsel’s communications
with Flynn’s counsel stating that Flynn’s decision to withdraw from the joint defense agreement
and cooperate with the government would be viewed as reflecting “hostility” towards the
President. And regardless of what the President’s personal counsel communicated, the President
continued to express sympathy for Flynn after he pleaded guilty pursuant to a cooperation
agreement, stating that Flynn had “led a very strong life” and the President “fe[lt] very badly”
about what had happened to him.

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 had 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 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

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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.

We also examined the evidence of the President’s intent in making public statements about
Manafort at the beginning of his trial and when the jury was deliberating. Some evidence supports
a conclusion that 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 to 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 for the President’s comments, including
that he genuinely felt sorry for Manafort or that his goal was not to influence the jury but to
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 a question about whether he would pardon Manafort.

With regard to the President’s conduct towards Stone, there is evidence that the President
intended to reinforce Stone’s public statements that he would not cooperate with the government
when the President likely understood that Stone could potentially provide evidence that would be
adverse to the President. By late November 2018, the President had provided written answers to
the Special Counsel’s Office in which the President said he did not recall “the specifics of any call
[he] had” with Stone during the campaign period and did not recall discussing WikiLeaks with
Stone. Witnesses have stated, however, that candidate Trump discussed WikiLeaks with Stone,
that Trump knew that Manafort and Gates had asked Stone to find out what other damaging
information about Clinton WikiLeaks possessed, and that Stone’s claimed connection to
WikiLeaks was common knowledge within the Campaign. It is possible that, by the time the
President submitted his written answers two years after the relevant events had occurred, he no
longer had clear recollections of his discussions with Stone or his knowledge of Stone’s asserted
communications with WikiLeaks. But the President’s conduct could also be viewed as reflecting
his awareness that Stone could provide evidence that would run counter to the President’s denials
and would link the President to Stone’s efforts to reach out to WikiLeaks. On November 28, 2018,
eight days after the President submitted his written answers to the Special Counsel, the President
criticized “flipping” and said that Stone was “very brave” for not cooperating with prosecutors.
Five days later, on December 3, 2018, the President applauded Stone for having the “guts” not to
testify against him. These statements, as well as those complimenting Stone and Manafort while
disparaging Michael Cohen once Cohen chose to cooperate, support the inference that the
President intended to communicate a message that witnesses could be rewarded for refusing to
provide testimony adverse to the President and disparaged if they chose to cooperate.

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K. The President’s Conduct Involving Michael Cohen

Overview

The President’s conduct involving Michael Cohen spans the full period of our
investigation. During the campaign, Cohen pursued the Trump Tower Moscow project on behalf
of the Trump Organization. Cohen briefed candidate Trump on the project numerous times,
including discussing whether Trump should travel to Russia to advance the deal. After the media
began questioning Trump’s connections to Russia, Cohen promoted a “party line” that publicly
distanced Trump from Russia and asserted he had no business there. Cohen continued to adhere
to that party line in 2017, when Congress asked him to provide documents and testimony in its
Russia investigation. In an attempt to minimize the President’s connections to Russia, Cohen
submitted a letter to Congress falsely stating that he only briefed Trump on the Trump Tower
Moscow project three times, that he did not consider asking Trump to travel to Russia, that Cohen
had not received a response to an outreach he made to the Russian government, and that the project
ended in January 2016, before the first Republican caucus or primary. While working on the
congressional statement, Cohen had extensive discussions with the President’s personal counsel,
who, according to Cohen, said that Cohen should not contradict the President and should keep the
statement short and “tight.” After the FBI searched Cohen’s home and office in April 2018, the
President publicly asserted that Cohen would not “flip” 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 get a pardon or the President would do “something else” to make
the investigation end. But after Cohen began cooperating with the government in July 2018, the
President publicly criticized him, called him a “rat,” and suggested his family members had
committed crimes.

Evidence

1. Candidate Trump’s Awareness of and Involvement in the Trump Tower


Moscow Project

The President’s interactions with Cohen as a witness took place against the background of
the President’s involvement in the Trump Tower Moscow project.

As described in detail in Volume I, Section IV.A.1, supra, from September 2015 until at
least June 2016, the Trump Organization pursued a Trump Tower Moscow project in Russia, with
negotiations conducted by Cohen, then-executive vice president of the Trump Organization and
special counsel to Donald J. Trump.909 The Trump Organization had previously and

909
In August 2018 and November 2018, Cohen pleaded guilty to multiple crimes of deception,
including making false statements to Congress about the Trump Tower Moscow project, as described later
in this section. When Cohen first met with investigators from this Office, he repeated the same lies he told
Congress about the Trump Tower Moscow project. Cohen 8/7/18 302, at 12-17. But after Cohen pleaded
guilty to offenses in the Southern District of New York on August 21, 2018, he met with investigators again
and corrected the record. The Office found Cohen’s testimony in these subsequent proffer sessions to be
consistent with and corroborated by other information obtained in the course of the Office’s investigation.
The Office’s sentencing submission in Cohen’s criminal case stated: “Starting with his second meeting with
the [Special Counsel’s Office] in September 2018, the defendant has accepted responsibility not only for

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unsuccessfully pursued a building project in Moscow.910 According to Cohen, in approximately


September 2015 he obtained internal approval from Trump to negotiate on behalf of the Trump
Organization to have a Russian corporation build a tower in Moscow that licensed the Trump name
and brand.911 Cohen thereafter had numerous brief conversations with Trump about the project.912
Cohen recalled that Trump wanted to be updated on any developments with Trump Tower Moscow
and on several occasions brought the project up with Cohen to ask what was happening on it.913
Cohen also discussed the project on multiple occasions with Donald Trump Jr. and Ivanka
Trump.914

In the fall of 2015, Trump signed a Letter of Intent for the project that specified highly
lucrative terms for the Trump Organization.915 In December 2015, Felix Sater, who was handling
negotiations between Cohen and the Russian corporation, asked Cohen for a copy of his and
Trump’s passports to facilitate travel to Russia to meet with government officials and possible
financing partners.916 Cohen recalled discussing the trip with Trump and requesting a copy of
Trump’s passport from Trump’s personal secretary, Rhona Graff.917

By January 2016, Cohen had become frustrated that Sater had not set up a meeting with
Russian government officials, so Cohen reached out directly by email to the office of Dmitry

his false statements concerning the [Trump Tower] Moscow Project, but also his broader efforts through
public statements and testimony before Congress to minimize his role in, and what he knew about, contacts
between the [Trump Organization] and Russian interests during the course of the campaign. . . . The
information provided by Cohen about the [Trump Tower] Moscow Project in these proffer sessions is
consistent with and corroborated by other information obtained in the course of the [Special Counsel’s
Office’s] investigation. . . . The defendant, without prompting by the [Special Counsel’s Office], also
corrected other false and misleading statements that he had made concerning his outreach to and contacts
with Russian officials during the course of the campaign.” Gov’t Sentencing Submission at 4, United States
v. Michael Cohen, 1:18-cr-850 (S.D.N.Y. Dec. 7, 2018), Doc. 14. At Cohen’s sentencing, our Office further
explained that Cohen had “provided valuable information . . . while taking care and being careful to note
what he knows and what he doesn’t know.” Transcript at 19, United States v. Michael Cohen, 1:18-cr-850
(S.D.N.Y. Dec. 12, 2018), Doc. 17 (Cohen 12/12/18 Transcript).
910
See Volume I, Section IV.A.1, supra (noting that starting in at least 2013, several employees of
the Trump Organization, including then-president of the organization Donald J. Trump, pursued a Trump
Tower Moscow deal with several Russian counterparties).
911
Cohen 9/12/18 302, at 1-4; Cohen 8/7/18 302, at 15.
912
Cohen 9/12/18 302, at 2, 4.
913
Cohen 9/12/18 302, at 4.
914
Cohen 9/12/18 302, at 4, 10.
915
MDC-H-000618-25 (10/28/15 Letter of Intent, signed by Donald J. Trump, Trump Acquisition,
LLC and Andrey Rozov, I.C. Expert Investment Company); Cohen 9/12/18 302, at 3; Written Responses
of Donald J. Trump (Nov. 20, 2018), at 15 (Response to Question III, Parts (a) through (g)).
916
MDC-H-000600 (12/19/15 Email, Sater to Cohen).
917
Cohen 9/12/18 302, at 5.

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Peskov, who was Putin’s deputy chief of staff and press secretary.918 On January 20, 2016, Cohen
received an email response from Elena Poliakova, Peskov’s personal assistant, and phone records
confirm that they then spoke for approximately twenty minutes, during which Cohen described the
Trump Tower Moscow project and requested assistance in moving the project forward.919 Cohen
recalled briefing candidate Trump about the call soon afterwards.920 Cohen told Trump he spoke
with a woman he identified as “someone from the Kremlin,” and Cohen reported that she was very
professional and asked detailed questions about the project.921 Cohen recalled telling Trump he
wished the Trump Organization had assistants who were as competent as the woman from the
Kremlin.922

Cohen thought his phone call renewed interest in the project.923 The day after Cohen’s call
with Poliakova, Sater texted Cohen, asking him to “[c]all me when you have a few minutes to chat
. . . It’s about Putin they called today.”924 Sater told Cohen that the Russian government liked the
project and on January 25, 2016, sent an invitation for Cohen to visit Moscow “for a working
visit.”925 After the outreach from Sater, Cohen recalled telling Trump that he was waiting to hear
back on moving the project forward.926

After January 2016, Cohen continued to have conversations with Sater about Trump Tower
Moscow and continued to keep candidate Trump updated about those discussions and the status
of the project.927 Cohen recalled that he and Trump wanted Trump Tower Moscow to succeed and
that Trump never discouraged him from working on the project because of the campaign.928 In
March or April 2016, Trump asked Cohen if anything was happening in Russia.929 Cohen also

918
See FS00004 (12/30/15 Text Message, Cohen to Sater); TRUMPORG_MC_000233 (1/11/16
Email, Cohen to pr_peskova@prpress.gof.ru); MDC-H-000690 (1/14/16 Email, Cohen to
info@prpress.gov.ru); TRUMPORG_MC_000235 (1/16/16 Email, Cohen to pr_peskova@prpress.gov.ru).
919
1/20/16 Email, Poliakova to Cohen; Call Records of Michael Cohen. (Showing a 22-minute call
on January 20, 2016, between Cohen and the number Poliakova provided in her email); Cohen 9/12/18 302,
at 2-3. After the call, Cohen saved Poliakova’s contact information in his Trump Organization Outlook
contact list. 1/20/16 Cohen Microsoft Outlook Entry (6:22 a.m.).
920
Cohen 11/20/18 302, at 5.
921
Cohen 11/20/18 302, at 5-6; Cohen 11/12/18 302, at 4.
922
Cohen 11/20/18 302, at 5.
923
Cohen 9/12/18 302, at 5.
924
FS00011 (1/21/16 Text Messages, Sater & Cohen).
925
Cohen 9/12/18 302, at 5; 1/25/16 Email, Sater to Cohen (attachment).
926
Cohen 11/20/18 302, at 5.
927
Cohen 9/12/18 302, at 6. In later congressional testimony, Cohen stated that he briefed Trump
on the project approximately six times after January 2016. Hearing on Issues Related to Trump
Organization Before the House Oversight and Reform Committee, 116th Cong. (Feb. 27, 2019) (CQ Cong.
Transcripts, at 24) (testimony of Michael Cohen).
928
Cohen 9/12/18 302, at 6.
929
Cohen 9/18/18 302, at 4.

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recalled briefing Donald Trump Jr. in the spring—a conversation that Cohen said was not “idle
chit chat” because Trump Tower Moscow was potentially a $1 billion deal.930

Cohen recalled that around May 2016, he again raised with candidate Trump the possibility
of a trip to Russia to advance the Trump Tower Moscow project.931 At that time, Cohen had
received several texts from Sater seeking to arrange dates for such a trip.932 On May 4, 2016, Sater
wrote to Cohen, “I had a chat with Moscow. ASSUMING the trip does happen the question is
before or after the convention. . . . . Obviously the premeeting trip (you only) can happen anytime
you want but the 2 big guys [is] the question. I said I would confirm and revert.”933 Cohen
responded, “My trip before Cleveland. Trump once he becomes the nominee after the
convention.”934 On May 5, 2016, Sater followed up with a text that Cohen thought he probably
read to Trump:

Peskov would like to invite you as his guest to the St. Petersburg Forum which is
Russia’s Davos it’s June 16-19. He wants to meet there with you and possibly
introduce you to either Putin or Medvedev. . . . This is perfect. The entire business
class of Russia will be there as well. He said anything you want to discuss including
dates and subjects are on the table to discuss.935

Cohen recalled discussing the invitation to the St. Petersburg Economic Forum with
candidate Trump and saying that Putin or Russian Prime Minister Dmitry Medvedev might be
there.936 Cohen remembered that Trump said that he would be willing to travel to Russia if Cohen
could “lock and load” on the deal.937 In June 2016, Cohen decided not to attend the St. Petersburg
Economic Forum because Sater had not obtained a formal invitation for Cohen from Peskov.938
Cohen said he had a quick conversation with Trump at that time but did not tell him that the project
was over because he did not want Trump to complain that the deal was on-again-off-again if it
were revived.939

During the summer of 2016, Cohen recalled that candidate Trump publicly claimed that he
had nothing to do with Russia and then shortly afterwards privately checked with Cohen about the
status of the Trump Tower Moscow project, which Cohen found “interesting.”940 At some point

930
Cohen 9/12/18 302, at 10.
931
Cohen 9/12/18 302, at 7.
932
Cohen 9/12/18 302, at 7.
933
FS00015 (5/4/16 Text Message, Sater to Cohen).
934
FS00015 (5/4/16 Text Message, Cohen to Sater).
935
FS00016-17 (5/5/16 Text Messages, Sater & Cohen).
936
Cohen 9/12/18 302, at 7.
937
Cohen 9/12/18 302, at 7.
938
Cohen 9/12/18 302, at 7-8.
939
Cohen 9/12/18 302, at 8.
940
Cohen 3/19/19 302, at 2.

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that summer, Cohen recalled having a brief conversation with Trump in which Cohen said the
Trump Tower Moscow project was going nowhere because the Russian development company
had not secured a piece of property for the project.941 Trump said that was “too bad,” and Cohen
did not recall talking with Trump about the project after that.942 Cohen said that at no time during
the campaign did Trump tell him not to pursue the project or that the project should be
abandoned.943

2. Cohen Determines to Adhere to a “Party Line” Distancing Candidate Trump


From Russia

As previously discussed, see Volume II, Section II.A, supra, when questions about possible
Russian support for candidate Trump emerged during the 2016 presidential campaign, Trump
denied having any personal, financial, or business connection to Russia, which Cohen described
as the “party line” or “message” to follow for Trump and his senior advisors.944

After the election, the Trump Organization sought to formally close out certain deals in
advance of the inauguration.945 Cohen recalled that Trump Tower Moscow was on the list of deals
to be closed out.946 In approximately January 2017, Cohen began receiving inquiries from the
media about Trump Tower Moscow, and he recalled speaking to the President-Elect when those
inquiries came in.947 Cohen was concerned that truthful answers about the Trump Tower Moscow
project might not be consistent with the “message” that the President-Elect had no relationship
with Russia.948

In an effort to “stay on message,” Cohen told a New York Times reporter that the Trump
Tower Moscow deal was not feasible and had ended in January 2016.949 Cohen recalled that this
was part of a “script” or talking points he had developed with President-Elect Trump and others to
941
Cohen 3/19/19 302, at 2. Cohen could not recall the precise timing of this conversation, but said
he thought it occurred in June or July 2016. Cohen recalled that the conversation happened at some point
after candidate Trump was publicly stating that he had nothing to do with Russia. Cohen 3/19/19 302, at
2.
942
Cohen 3/19/19 302, at 2.
943
Cohen 3/19/19 302, at 2.
944
Cohen 11/20/18 302, at 1; Cohen 9/18/18 302, at 3, 5; Cohen 9/12/18 302, at 9.
945
Cohen 9/18/18 302, at 1-2; see also Rtskhiladze 4/4/18 302, at 8-9.
946
Cohen 9/18/18 302, at 1-2.
947
Cohen 9/18/18 302, at 3.
948
Cohen 11/20/18 302, at 4.
949
Cohen 9/18/18 302, at 5. The article was published on February 19, 2017, and reported that
Sater and Cohen had been working on plan for a Trump Tower Moscow “as recently as the fall of 2015”
but had come to a halt because of the presidential campaign. Consistent with Cohen’s intended party line
message, the article stated, “Cohen said the Trump Organization had received a letter of intent for a project
in Moscow from a Russian real estate developer at that time but determined that the project was not
feasible.” Megan Twohey & Scott Shane, A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump
Associates, New York Times (Feb. 19, 2017).

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dismiss the idea of a substantial connection between Trump and Russia.950 Cohen said that he
discussed the talking points with Trump but that he did not explicitly tell Trump he thought they
were untrue because Trump already knew they were untrue.951 Cohen thought it was important to
say the deal was done in January 2016, rather than acknowledge that talks continued in May and
June 2016, because it limited the period when candidate Trump could be alleged to have a
relationship with Russia to an early point in the campaign, before Trump had become the party’s
presumptive nominee.952

3. Cohen Submits False Statements to Congress Minimizing the Trump Tower


Moscow Project in Accordance with the Party Line

In early May 2017, Cohen received requests from Congress to provide testimony and
documents in connection with congressional investigations of Russian interference in the 2016
election.953 At that time, Cohen understood Congress’s interest in him to be focused on the
allegations in the Steele reporting concerning a meeting Cohen allegedly had with Russian officials
in Prague during the campaign.954 Cohen had never traveled to Prague and was not concerned
about those allegations, which he believed were provably false.955 On May 18, 2017, Cohen met
with the President to discuss the request from Congress, and the President instructed Cohen that
he should cooperate because there was nothing there.956

Cohen eventually entered into a joint defense agreement (JDA) with the President and other
individuals who were part of the Russia investigation.957 In the months leading up to his
congressional testimony, Cohen frequently spoke with the President’s personal counsel.958 Cohen

950
Cohen 9/18/18 302, at 5-6.
951
Cohen 9/18/18 302, at 6.
952
Cohen 9/12/18 302, at 10.
953
P-SCO-000000328 (5/9/17 Letter, HPSCI to Cohen); P-SCO-000000331 (5/12/17 Letter, SSCI
to Cohen).
954
Cohen 11/20/18 302, at 2-3.
955
Cohen 11/20/18 302, at 2-3.
956
Cohen 11/12/18 302, at 2; Cohen 11/20/19 302, at 3.
957
Cohen 11/12/18 302, at 2.
958
Cohen 11/12/18 302, at 2-3; Cohen 11/20/18, at 2-6. Cohen told investigators about his
conversations with the President’s personal counsel after waiving any privilege of his own and after this
Office advised his counsel not to provide any communications that would be covered by any other privilege,
including communications protected by a joint defense or common interest privilege. As a result, most of
what Cohen told us about his conversations with the President’s personal counsel concerned what Cohen
had communicated to the President’s personal counsel, and not what was said in response. Cohen described
certain statements made by the President’s personal counsel, however, that are set forth in this section.
Cohen and his counsel were better positioned than this Office to evaluate whether any privilege protected
those statements because they had knowledge of the scope of their joint defense agreement and access to
privileged communications that may have provided context for evaluating the statements they shared. After
interviewing Cohen about these matters, we asked the President’s personal counsel if he wished to provide
information to us about his conversations with Cohen related to Cohen’s congressional testimony about

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said that in those conversations the President’s personal counsel would sometimes say that he had
just been with the President.959 Cohen recalled that the President’s personal counsel told him the
JDA was working well together and assured him that there was nothing there and if they stayed on
message the investigations would come to an end soon.960 At that time, Cohen’s legal bills were
being paid by the Trump Organization,961 and Cohen was told not to worry because the
investigations would be over by summer or fall of 2017.962 Cohen said that the President’s
personal counsel also conveyed that, as part of the JDA, Cohen was protected, which he would not
be if he “went rogue.”963 Cohen recalled that the President’s personal counsel reminded him that
“the President loves you” and told him that if he stayed on message, the President had his back.964

In August 2017, Cohen began drafting a statement about Trump Tower Moscow to submit
to Congress along with his document production.965 The final version of the statement contained
several false statements about the project.966 First, although the Trump Organization continued to
pursue the project until at least June 2016, the statement said, “The proposal was under
consideration at the Trump Organization from September 2015 until the end of January 2016. By
the end of January 2016, I determined that the proposal was not feasible for a variety of business
reasons and should not be pursued further. Based on my business determinations, the Trump
Organization abandoned the proposal.”967 Second, although Cohen and candidate Trump had
discussed possible travel to Russia by Trump to pursue the venture, the statement said, “Despite
overtures by Mr. Sater, I never considered asking Mr. Trump to travel to Russia in connection with
this proposal. I told Mr. Sater that Mr. Trump would not travel to Russia unless there was a
definitive agreement in place.”968 Third, although Cohen had regularly briefed Trump on the status

Trump Tower Moscow. The President’s personal counsel declined and, through his own counsel, indicated
that he could not disaggregate information he had obtained from Cohen from information he had obtained
from other parties in the JDA. In view of the admonition this Office gave to Cohen’s counsel to withhold
communications that could be covered by privilege, the President’s personal counsel’s uncertainty about
the provenance of his own knowledge, the burden on a privilege holder to establish the elements to support
a claim of privilege, and the substance of the statements themselves, we have included relevant statements
Cohen provided in this report. If the statements were to be used in a context beyond this report, further
analysis could be warranted.
959
Cohen 11/20/18 302, at 6.
960
Cohen 11/20/18 302, at 2, 4.
961
Cohen 11/20/18 302, at 4.
962
Cohen 9/18/18 302, at 8; Cohen 11/20/18 302, at 3-4.
963
Cohen 11/20/18 302, at 4.
964
Cohen 9/18/18 302, at 11; Cohen 11/20/18 302, at 2.
965
P-SCO-000003680 and P-SCO-0000003687 (8/16/17 Email and Attachment, Michael Cohen’s
Counsel to Cohen). Cohen said it was not his idea to write a letter to Congress about Trump Tower Moscow.
Cohen 9/18/18 302, at 7.
966
P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).
967
P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).
968
P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

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of the project and had numerous conversations about it, the statement said, “Mr. Trump was never
in contact with anyone about this proposal other than me on three occasions, including signing a
non-binding letter of intent in 2015.”969 Fourth, although Cohen’s outreach to Peskov in January
2016 had resulted in a lengthy phone call with a representative from the Kremlin, the statement
said that Cohen did “not recall any response to my email [to Peskov], nor any other contacts by
me with Mr. Peskov or other Russian government officials about the proposal.”970

Cohen’s statement was circulated in advance to, and edited by, members of the JDA.971
Before the statement was finalized, early drafts contained a sentence stating, “The building project
led me to make limited contacts with Russian government officials.”972 In the final version of the
statement, that line was deleted.973 Cohen thought he was told that it was a decision of the JDA to
take out that sentence, and he did not push back on the deletion.974 Cohen recalled that he told the
President’s personal counsel that he would not contest a decision of the JDA.975

Cohen also recalled that in drafting his statement for Congress, he spoke with the
President’s personal counsel about a different issue that connected candidate Trump to Russia:
Cohen’s efforts to set up a meeting between Trump and Putin in New York during the 2015 United
Nations General Assembly.976 In September 2015, Cohen had suggested the meeting to Trump,
who told Cohen to reach out to Putin’s office about it.977 Cohen spoke and emailed with a Russian
official about a possible meeting, and recalled that Trump asked him multiple times for updates on
the proposed meeting with Putin.978 When Cohen called the Russian official a second time, she
told him it would not follow proper protocol for Putin to meet with Trump, and Cohen relayed that

969
P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).
970
P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).
971
Cohen 9/12/18 302, at 8-9. Cohen also testified in Congress that the President’s counsel
reviewed and edited the statement. Hearing on Issues Related to Trump Organization Before the House
Oversight and Reform Committee, 116th Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 24-25) (testimony
by Michael Cohen). Because of concerns about the common interest privilege, we did not obtain or review
all drafts of Cohen’s statement. Based on the drafts that were released through this Office’s filter process,
it appears that the substance of the four principal false statements described above were contained in an
early draft prepared by Cohen and his counsel. P-SCO-0000003680 and P-SCO-0000003687 (8/16/17
Email and Attachment, Cohen’s counsel to Cohen).
972
P-SCO-0000003687 (8/16/17 Draft Statement of Michael Cohen); Cohen 11/20/18 302, at 4.
973
Cohen 11/20/18 302, at 4. A different line stating that Cohen did “not recall any response to my
email [to Peskov in January 2016], nor any other contacts by me with Mr. Peskov or other Russian
government officials about the proposal” remained in the draft. See P-SCO-0000009478 (Statement of
Michael D. Cohen, Esq. (Aug. 28, 2017)).
974
Cohen 11/20/18 302, at 4.
975
Cohen 11/20/18 302, at 5.
976
Cohen 9/18/18 302, at 10-11.
977
Cohen 9/18/18 302, at 11; Cohen 11/12/18 302, at 4.
978
Cohen 9/18/18 302, at 11; Cohen 11/12/18 302, at 5.

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message to Trump.979 Cohen anticipated he might be asked questions about the proposed Trump-
Putin meeting when he testified before Congress because he had talked about the potential meeting
on Sean Hannity’s radio show.980 Cohen recalled explaining to the President’s personal counsel
the “whole story” of the attempt to set up a meeting between Trump and Putin and Trump’s role
in it.981 Cohen recalled that he and the President’s personal counsel talked about keeping Trump
out of the narrative, and the President’s personal counsel told Cohen the story was not relevant and
should not be included in his statement to Congress.982

Cohen said that his “agenda” in submitting the statement to Congress with false
representations about the Trump Tower Moscow project was to minimize links between the project
and the President, give the false impression that the project had ended before the first presidential
primaries, and shut down further inquiry into Trump Tower Moscow, with the aim of limiting the
ongoing Russia investigations.983 Cohen said he wanted to protect the President and be loyal to
him by not contradicting anything the President had said.984 Cohen recalled he was concerned that
if he told the truth about getting a response from the Kremlin or speaking to candidate Trump about
travel to Russia to pursue the project, he would contradict the message that no connection existed
between Trump and Russia, and he rationalized his decision to provide false testimony because
the deal never happened.985 He was not concerned that the story would be contradicted by
individuals who knew it was false because he was sticking to the party line adhered to by the whole
group.986 Cohen wanted the support of the President and the White House, and he believed that
following the party line would help put an end to the Special Counsel and congressional
investigations.987

Between August 18, 2017, when the statement was in an initial draft stage, and August 28,
2017, when the statement was submitted to Congress, phone records reflect that Cohen spoke with
the President’s personal counsel almost daily.988 On August 27, 2017, the day before Cohen

979
Cohen 11/12/18 302, at 5.
980
Cohen 9/18/18 302, at 11.
981
Cohen 3/19/19 302, at 2.
982
Cohen 3/19/19 302, at 2; see Cohen 9/18/18 302, at 11 (recalling that he was told that if he
stayed on message and kept the President out of the narrative, the President would have his back).
983
Cohen 9/12/18 302, at 8; Information at 4-5, United States v. Michael Cohen, 1:18-cr-850
(S.D.N.Y. Nov. 29, 2018), Doc. 2 (Cohen Information).
984
Cohen 11/20/18 302, at 4.
985
Cohen 11/20/18 302, at 4; Cohen 11/12/18 302, at 2-3, 4, 6.
986
Cohen 9/12/18 302, at 9.
987
Cohen 9/12/18 302, at 8-9.
988
Cohen 11/12/18 302, at 2-3; Cohen 11/20/18 302, at 5; Call Records of Michael Cohen
(Reflecting three contacts on August 18, 2017 (24 seconds; 5 minutes 25 seconds; and 10 minutes 58
seconds); two contacts on August 19 (23 seconds and 24 minutes 26 seconds); three contacts on August 23
(8 seconds; 20 minutes 33 seconds; and 5 minutes 8 seconds); one contact on August 24 (11 minutes 59
seconds); 14 contacts on August 27 (28 seconds; 4 minutes 37 seconds; 1 minute 16 seconds; 1 minutes 35

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submitted the statement to Congress, Cohen and the President’s personal counsel had numerous
contacts by phone, including calls lasting three, four, six, eleven, and eighteen minutes.989 Cohen
recalled telling the President’s personal counsel, who did not have first-hand knowledge of the
project, that there was more detail on Trump Tower Moscow that was not in the statement,
including that there were more communications with Russia and more communications with
candidate Trump than the statement reflected.990 Cohen stated that the President’s personal
counsel responded that it was not necessary to elaborate or include those details because the project
did not progress and that Cohen should keep his statement short and “tight” and the matter would
soon come to an end.991 Cohen recalled that the President’s personal counsel said “his client”
appreciated Cohen, that Cohen should stay on message and not contradict the President, that there
was no need to muddy the water, and that it was time to move on.992 Cohen said he agreed because
it was what he was expected to do.993 After Cohen later pleaded guilty to making false statements
to Congress about the Trump Tower Moscow project, this Office sought to speak with the
President’s personal counsel about these conversations with Cohen, but counsel declined, citing
potential privilege concerns.994

At the same time that Cohen finalized his written submission to Congress, he served as a
source for a Washington Post story published on August 27, 2017, that reported in depth for the
first time that the Trump Organization was “pursuing a plan to develop a massive Trump Tower
in Moscow” at the same time as candidate Trump was “running for president in late 2015 and early
2016.”995 The article reported that “the project was abandoned at the end of January 2016, just
before the presidential primaries began, several people familiar with the proposal said.”996 Cohen
recalled that in speaking to the Post, he held to the false story that negotiations for the deal ceased
in January 2016.997

seconds; 6 minutes 16 seconds; 1 minutes 10 seconds; 3 minutes 5 seconds; 18 minutes 55 seconds; 4


minutes 56 seconds; 11 minutes 6 seconds; 8 seconds; 3 seconds; 2 seconds; 2 seconds).
989
Cohen 11/20/18 302, at 5; Call Records of Michael Cohen. (Reflecting 14 contacts on August
27, 2017 (28 seconds; 4 minutes 37 seconds; 1 minute 16 seconds; 1 minutes 35 seconds; 6 minutes 16
seconds; 1 minutes 10 seconds; 3 minutes 5 seconds; 18 minutes 55 seconds; 4 minutes 56 seconds; 11
minutes 6 seconds; 8 seconds; 3 seconds; 2 seconds; 2 seconds)).
990
Cohen 11/20/18 302, at 5.
991
Cohen 11/20/18 302, at 5. Cohen also vaguely recalled telling the President’s personal counsel
that he spoke with a woman from the Kremlin and that the President’s personal counsel responded to the
effect of “so what?” because the deal never happened. Cohen 11/20/18 302, at 5.
992
Cohen 11/20/18 302, at 5.
993
Cohen 11/20/18 302, at 5.
994
2/8/19 email, Counsel for personal counsel to the President to Special Counsel’s Office.
995
Cohen 9/18/18 302, at 7; Carol D. Leonnig et al., Trump’s business sought deal on a Trump
Tower in Moscow while he ran for president, Washington Post (Aug. 27, 2017).
996
Carol D. Leonnig et al., Trump’s business sought deal on a Trump Tower in Moscow while he
ran for president, Washington Post (Aug. 27, 2017).
997
Cohen 9/18/18 302, at 7.

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On August 28, 2017, Cohen submitted his statement about the Trump Tower Moscow
project to Congress.998 Cohen did not recall talking to the President about the specifics of what
the statement said or what Cohen would later testify to about Trump Tower Moscow.999 He
recalled speaking to the President more generally about how he planned to stay on message in his
testimony.1000 On September 19, 2017, in anticipation of his impending testimony, Cohen
orchestrated the public release of his opening remarks to Congress, which criticized the allegations
in the Steele material and claimed that the Trump Tower Moscow project “was terminated in
January of 2016; which occurred before the Iowa caucus and months before the very first
primary.”1001 Cohen said the release of his opening remarks was intended to shape the narrative
and let other people who might be witnesses know what Cohen was saying so they could follow
the same message.1002 Cohen said his decision was meant to mirror Jared Kushner’s decision to
release a statement in advance of Kushner’s congressional testimony, which the President’s
personal counsel had told Cohen the President liked.1003 Cohen recalled that on September 20,
2017, after Cohen’s opening remarks had been printed by the media, the President’s personal
counsel told him that the President was pleased with the Trump Tower Moscow statement that had
gone out.1004

On October 24 and 25, 2017, Cohen testified before Congress and repeated the false
statements he had included in his written statement about Trump Tower Moscow.1005 Phone
records show that Cohen spoke with the President’s personal counsel immediately after his
testimony on both days.1006

4. The President Sends Messages of Support to Cohen

In January 2018, the media reported that Cohen had arranged a $130,000 payment during
the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had

998
P-SCO-000009477 - 9478 (8/28/17 Letter and Attachment, Cohen to SSCI).
999
Cohen 11/12/18 302, at 2; Cohen 9/12/18 302, at 9.
1000
Cohen 9/12/18 302, at 9.
1001
Cohen 9/18/18 302, at 7; see, e.g., READ: Michael Cohen’s statement to the Senate intelligence
committee, CNN (Sept. 19, 2017).
1002
Cohen 9/18/18 302, at 7.
1003
Cohen 9/18/18 302, at 7; Cohen 11/20/18 302, at 6.
1004
Cohen 11/20/18 302, at 6. Phone records show that the President’s personal counsel called
Cohen on the morning of September 20, 2017, and they spoke for approximately 11 minutes, and that they
had two more contacts that day, one of which lasted approximately 18 minutes. Call Records of Michael
Cohen. (Reflecting three contacts on September 20, 2017, with calls lasting for 11 minutes 3 seconds; 2
seconds; and 18 minutes 38 seconds).
1005
Cohen Information, at 4; Executive Session, Permanent Select Committee on Intelligence, U.S.
House of Representatives, Interview of Michael Cohen (Oct. 24, 2017), at 10-11, 117-119.
1006
Call Records of Michael Cohen. (Reflecting two contacts on October 24, 2017 (12 minutes 8
seconds and 8 minutes 27 seconds) and three contacts on October 25, 2017 (1 second; 4 minutes 6 seconds;
and 6 minutes 6 seconds)).

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with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign-
period payments to women.1008 However, those events, as described here, are potentially relevant
to the President’s and his personal counsel’s interactions with Cohen as a witness who later began
to cooperate with the government.

On February 13, 2018, Cohen released a statement to news organizations that stated, “In a
private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to
[the woman]. Neither the Trump Organization nor the Trump campaign was a party to the
transaction with [the woman], and neither reimbursed me for the payment, either directly or
indirectly.”1009 In congressional testimony on February 27, 2019, Cohen testified that he had
discussed what to say about the payment with the President and that the President had directed
Cohen to say that the President “was not knowledgeable . . . of [Cohen’s] actions” in making the
payment.1010 On February 19, 2018, the day after the New York Times wrote a detailed story
attributing the payment to Cohen and describing Cohen as the President’s “fixer,” Cohen received
a text message from the President’s personal counsel that stated, “Client says thanks for what you
do.”1011

On April 9, 2018, FBI agents working with the U.S. Attorney’s Office for the Southern
District of New York executed search warrants on Cohen’s home, hotel room, and office.1012 That
day, the President spoke to reporters and said that he had “just heard that they broke into the office
of one of my personal attorneys—a good man.”1013 The President called the searches “a real
disgrace” and said, “It’s an attack on our country, in a true sense. It’s an attack on what we all
1007
See, e.g., Michael Rothfeld & Joe Palazzolo, Trump Lawyer Arranged $130,000 Payment for
Adult-Film Star’s Silence, Wall Street Journal (Jan. 12, 2018).
1008
The Office was authorized to investigate Cohen’s establishment and use of Essential
Consultants LLC, which Cohen created to facilitate the $130,000 payment during the campaign, based on
evidence that the entity received funds from Russian-backed entities. Cohen’s use of Essential Consultants
to facilitate the $130,000 payment to the woman during the campaign was part of the Office’s referral of
certain Cohen-related matters to the U.S. Attorney’s Office for the Southern District of New York.
1009
See, e.g., Mark Berman, Longtime Trump attorney says he made $130,000 payment to Stormy
Daniels with his money, Washington Post (Feb. 14, 2018).
1010
Hearing on Issues Related to Trump Organization Before the House Oversight and Reform
Committee, 116th Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 147-148) (testimony of Michael Cohen).
Toll records show that Cohen was connected to a White House phone number for approximately five
minutes on January 19, 2018, and for approximately seven minutes on January 30, 2018, and that Cohen
called Melania Trump’s cell phone several times between January 26, 2018, and January 30, 2018. Call
Records of Michael Cohen.
1011
2/19/18 Text Message, President’s personal counsel to Cohen; see Jim Rutenberg et al., Tools
of Trump’s Fixer: Payouts, Intimidation and the Tabloids, New York Times (Feb. 18, 2018).
1012
Gov’t Opp. to Def. Mot. for Temp. Restraining Order, In the Matter of Search Warrants
Executed on April 9, 2018, 18-mj-3161 (S.D.N.Y. Apr. 13, 2018), Doc. 1 (“On April 9, 2018, agents from
the New York field office of the Federal Bureau of Investigation . . . executed search warrants for Michael
Cohen’s residence, hotel room, office, safety deposit box, and electronic devices.”).
1013
Remarks by President Trump Before Meeting with Senior Military Leadership, White House
(Apr. 9, 2018).

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stand for." 1014 Cohen said that after the searches he was concerned that he was "an open book,"
th at he did not want issues ar ising from th e payments to wom en to "come out," and that his false
statements to Congress were "a big concern." 10 15

A few days after the searches, the President called Cohen.1016 According to Cohen, the
President said he wanted to "check in" and asked if Cohen was okay, and the President encouraged
Cohen to " hang in there" and "stay strong ." 1017 Cohen also recalled th at following th e searches he
hear d from individuals who were in touch with the President and relayed to Cohen the President's
suppo1t for him.1018 Cohen recalled that , a friend of the President 's, reached out
(b)(6)/
to say that he was with "the Boss" in Mar-a-La o an d the President had said " he loves you" and
(b)(7)(C)-4
not to wony. 1019 Cohen recalled that1i111m11M•• for the Trnmp
Organization, told him, "th e boss loves you ." . . ., illillAllltillil a friend
of th e President's, told him, "eve1yone knows the boss has your back."

On or about April 17, 2018, Cohen began speaking with an attorney, Robe1t Costello, who
had a close relationship with Rudolph Giuliani, one of the President's personal lawyers. 1022
Costello told Cohen that he had a "back channel of communication" to Giuliani, and that Giuliani
had said the "channel" was "crncial" and "must be maintained." 1023 On April 20, 2018, the New
York Times published an article about the President's relationship with and treatment of Cohen. 1024
The President responded with a series of tweets predicting that Cohen would not "flip":

The New York Times and a third rate repo1ter ... are going out of their way to destroy
Michael Cohen an d his relationship with me in the hope that he will ' flip.' They use non­
existent 'sources' and a drnnk/drngged up loser who hates Michael, a fine person with a
wonderful family. Michael is a businessman for his own account/lawyer who I have always
liked & respected. Most people will flip if the Government lets them out of trouble, even

1014
Remarks by President Tmmp Before Meeting with Senior Milita1y Leadership, White House
(Apr. 9, 2018).
1015
Cohen, 10/ 17/ 18 302, at 11.
1016
Cohen 3/ 19/ 19 302, at 4.
1011
Cohen 3/ 19/ 19 302, at 4.
1018
Cohen 9/ 12/ 18 302, at 11.
1019
Cohen 9/ 12/ 18 302, at 11.
°Cohen 9/ 12/ 18 302, at 11.
102

1021
Cohen 9/ 12/ 18 302, at 11.
1022
4/17/ 18 Email, Citron to Cohen; 4/ 19/ 18 Email, Costello to Cohen; MC-SCO-001 (7/7/ 18
redacted billing statement from Davidoff, Hutcher & Citron to Cohen).
1023
4/21/ 18 Email, Costello to Cohen.
1024
See Maggie Habennan et al., Michael Cohen Has Said He Would Take a Bullet for Trump.
Maybe Not Anymore., New York Times (Apr. 20, 2018).

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if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the
horrible Witch Hunt and the dishonest media!1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani.1026 Costello told
Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . .
Sleep well tonight[], you have friends in high places.”1027

Cohen said that following these messages he believed he had the support of the White
House if he continued to toe the party line, and he determined to stay on message and be part of
the team.1028 At the time, Cohen’s understood that his legal fees were still being paid by the Trump
Organization, which he said was important to him.1029 Cohen believed he needed the power of the
President to take care of him, so he needed to defend the President and stay on message.1030

Cohen also recalled speaking with the President’s personal counsel about pardons after the
searches of his home and office had occurred, at a time when the media had reported that pardon
discussions were occurring at the White House.1031 Cohen told the President’s personal counsel
he had been a loyal lawyer and servant, and he said that after the searches he was in an
uncomfortable position and wanted to know what was in it for him.1032 According to Cohen, the
President’s personal counsel responded that Cohen should stay on message, that the investigation
was a witch hunt, and that everything would be fine.1033 Cohen understood based on this
conversation and previous conversations about pardons with the President’s personal counsel that
as long as he stayed on message, he would be taken care of by the President, either through a
pardon or through the investigation being shut down.1034

1025
@realDonaldTrump 4/21/18 (9:10 a.m. ET) Tweets.
1026
4/21/18 Email, Costello to Cohen.
1027
4/21/18 Email, Costello to Cohen. (b) (6), (b) (7)(A), (b) (7)(C) (b)(6)/
(b)(7)(C)-4
1028
Cohen 9/12/18 302, at 11.
1029
Cohen 9/12/18 302, at 10.
1030
Cohen 9/12/18 302, at 10.
1031
Cohen 11/20/18 302, at 7. At a White House press briefing on April 23, 2018, in response to a
question about whether the White House had “close[d] the door one way or the other on the President
pardoning Michael Cohen,” Sanders said, “It’s hard to close the door on something that hasn’t taken place.
I don’t like to discuss or comment on hypothetical situations that may or may not ever happen. I would
refer you to personal attorneys to comment on anything specific regarding that case, but we don’t have
anything at this point.” Sarah Sanders, White House Daily Briefing, C-SPAN (Apr. 23, 2018).
1032
Cohen 11/20/18 302, at 7; Cohen 3/19/19 302, at 3.
1033
Cohen 3/19/19 302, at 3.
1034
Cohen 3/19/19 302, at 3-4.

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On April 24, 2018, the President responded to a reporter’s inquiry whether he would
consider a pardon for Cohen with, “Stupid question.”1035 On June 8, 2018, the President said he
“hadn’t even thought about” pardons for Manafort or Cohen, and continued, “It’s far too early to
be thinking about that. They haven’t been convicted of anything. There’s nothing to pardon.”1036
And on June 15, 2018, the President expressed sympathy for Cohen, Manafort, and Flynn in a
press interview and said, “I feel badly about a lot of them, because I think a lot of it is very
unfair.”1037

5. The President’s Conduct After Cohen Began Cooperating with the Government

On July 2, 2018, ABC News reported based on an “exclusive” interview with Cohen that
Cohen “strongly signaled his willingness to cooperate with special counsel Robert Mueller and
federal prosecutors in the Southern District of New York—even if that puts President Trump in
jeopardy.”1038 That week, the media reported that Cohen had added an attorney to his legal team
who previously had worked as a legal advisor to President Bill Clinton.1039

Beginning on July 20, 2018, the media reported on the existence of a recording Cohen had
made of a conversation he had with candidate Trump about a payment made to a second woman
who said she had had an affair with Trump.1040 On July 21, 2018, the President responded:
“Inconceivable that the government would break into a lawyer’s office (early in the morning)—
almost unheard of. Even more inconceivable that a lawyer would tape a client—totally unheard
of & perhaps illegal. The good news is that your favorite President did nothing wrong!”1041 On
July 27, 2018, after the media reported that Cohen was willing to inform investigators that Donald
Trump Jr. told his father about the June 9, 2016 meeting to get “dirt” on Hillary Clinton,1042 the
President tweeted: “[S]o the Fake News doesn’t waste my time with dumb questions, NO, I did
NOT know of the meeting with my son, Don jr. Sounds to me like someone is trying to make up

1035
Remarks by President Trump and President Macron of France Before Restricted Bilateral
Meeting, The White House (Apr. 24, 2018).
1036
President Donald Trump Holds Media Availability Before Departing for the G-7 Summit, CQ
Newsmaker Transcripts (June 8, 2018).
1037
Remarks by President Trump in Press Gaggle, The White House (June 15, 2018).
1038
EXCLUSIVE: Michael Cohen says family and country, not President Trump, is his ‘first
loyalty’, ABC (July 2, 2018). Cohen said in the interview, “To be crystal clear, my wife, my daughter and
my son, and this country have my first loyalty.”
1039
See e.g., Darren Samuelsohn, Michael Cohen hires Clinton scandal veteran Lanny Davis,
Politico (July 5, 2018).
1040
See, e.g., Matt Apuzzo et al., Michael Cohen Secretly Taped Trump Discussing Payment to
Playboy Model, New York Times (July 20, 2018).
1041
@realDonaldTrump 7/21/18 (8:10 a.m. ET) Tweet.
1042
See, e.g., Jim Sciutto, Cuomo Prime Time Transcript, CNN (July 26, 2018).

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stories in order to get himself out of an unrelated jam (Taxi cabs maybe?). He even retained Bill
and Crooked Hillary’s lawyer. Gee, I wonder if they helped him make the choice!”1043

On August 21, 2018, Cohen pleaded guilty in the Southern District of New York to eight
felony charges, including two counts of campaign-finance violations based on the payments he
had made during the final weeks of the campaign to women who said they had affairs with the
President.1044 During the plea hearing, Cohen stated that he had worked “at the direction of” the
candidate in making those payments.1045 The next day, the President contrasted Cohen’s
cooperation with Manafort’s refusal to cooperate, tweeting, “I feel very badly for Paul Manafort
and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied
tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’—make up stories
in order to get a ‘deal.’ Such respect for a brave man!”1046

On September 17, 2018, this Office submitted written questions to the President that
included questions about the Trump Tower Moscow project and attached Cohen’s written
statement to Congress and the Letter of Intent signed by the President.1047 Among other issues,
the questions asked the President to describe the timing and substance of discussions he had with
Cohen about the project, whether they discussed a potential trip to Russia, and whether the
President “at any time direct[ed] or suggest[ed] that discussions about the Trump Moscow project
should cease,” or whether the President was “informed at any time that the project had been
abandoned.”1048

On November 20, 2018, the President submitted written responses that did not answer those
questions about Trump Tower Moscow directly and did not provide any information about the
timing of the candidate’s discussions with Cohen about the project or whether he participated in
any discussions about the project being abandoned or no longer pursued.1049 Instead, the
President’s answers stated in relevant part:

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

1043
@realDonaldTrump 7/27/18 (7:26 a.m. ET) Tweet; @realDonaldTrump 7/27/18 (7:38 a.m. ET)
Tweet; @realDonaldTrump 7/27/18 (7:56 a.m. ET) Tweet. At the time of these tweets, the press had
reported that Cohen’s financial interests in taxi cab medallions were being scrutinized by investigators.
See, e.g., Matt Apuzzo et al., Michael Cohen Secretly Taped Trump Discussing Payment to Playboy Model,
New York Times (July 20, 2018).
1044
Cohen Information.
1045
Cohen 8/21/18 Transcript, at 23.
1046
@realDonaldTrump 8/22/18 (9:21 a.m. ET) Tweet.
1047
9/17/18 Letter, Special Counsel’s Office to President’s Personal Counsel (attaching written
questions for the President, with attachments).
1048
9/17/18 Letter, Special Counsel’s Office to President’s Personal Counsel (attaching written
questions for the President), Question III, Parts (a) through (g).
1049
Written Responses of Donald J. Trump (Nov. 20, 2018).

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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 and Felix Sater and any Russian
government official regarding the Letter of Intent.1050

On November 29, 2018, Cohen pleaded guilty to making false statements to Congress
based on his statements about the Trump Tower Moscow project.1051 In a plea agreement with this
Office, Cohen agreed to “provide truthful information regarding any and all matters as to which
this Office deems relevant.”1052 Later on November 29, after Cohen’s guilty plea had become
public, the President spoke to reporters about the Trump Tower Moscow project, saying:

I decided not to do the project. . . . I decided ultimately not to do it. There would have
been nothing wrong if I did do it. If I did do it, there would have been nothing wrong. That
was my business. . . . It was an option that I decided not to do. . . . I decided not to do it.
The primary reason . . . I was focused on running for President. . . . I was running my
business while I was campaigning. There was a good chance that I wouldn’t have won, in
which case I would’ve gone back into the business. And why should I lose lots of
opportunities?1053

The President also said that Cohen was “a weak person. And by being weak, unlike other people
that you watch—he is a weak person. And what he’s trying to do is get a reduced sentence. So
he’s lying about a project that everybody knew about.”1054 The President also brought up Cohen’s
written submission to Congress regarding the Trump Tower Moscow project: “So here’s the story:
Go back and look at the paper that Michael Cohen wrote before he testified in the House and/or
Senate. It talked about his position.”1055 The President added, “Even if [Cohen] was right, it
doesn’t matter because I was allowed to do whatever I wanted during the campaign.”1056

In light of the President’s public statements following Cohen’s guilty plea that he “decided
not to do the project,” this Office again sought information from the President about whether he
participated in any discussions about the project being abandoned or no longer pursued, including
when he “decided not to do the project,” who he spoke to about that decision, and what motivated

1050
Written Responses of Donald J. Trump (Nov. 20, 2018), at 15 (Response to Question III, Parts
(a) through (g)).
1051
Cohen Information; Cohen 8/21/18 Transcript.
1052
Plea Agreement at 4, United States v. Michael Cohen, 1:18-cr-850 (S.D.N.Y. Nov. 29, 2018).
1053
President Trump Departure Remarks, C-SPAN (Nov. 29, 2018). In contrast to the President’s
remarks following Cohen’s guilty plea, Cohen’s August 28, 2017 statement to Congress stated that Cohen,
not the President, “decided to abandon the proposal” in late January 2016; that Cohen “did not ask or brief
Mr. Trump . . . before I made the decision to terminate further work on the proposal”; and that the decision
to abandon the proposal was “unrelated” to the Campaign. P-SCO-000009477 (Statement of Michael D.
Cohen, Esq. (Aug. 28, 2017)).
1054
President Trump Departure Remarks, C-SPAN (Nov. 29, 2018).
1055
President Trump Departure Remarks, C-SPAN (Nov. 29, 2018).
1056
President Trump Departure Remarks, C-SPAN (Nov. 29, 2018).

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the decision.1057 The Office also again asked for the timing of the President’s discussions with
Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he
was involved in discussions concerning the project.1058 In response, the President’s personal
counsel declined to provide additional information from the President and stated that “the President
has fully answered the questions at issue.”1059

In the weeks following Cohen’s plea and agreement to provide assistance to this Office,
the President repeatedly implied that Cohen’s family members were guilty of crimes. On
December 3, 2018, after Cohen had filed his sentencing memorandum, the President tweeted,
“‘Michael Cohen asks judge for no Prison Time.’ You mean he can do all of the TERRIBLE,
unrelated to Trump, things having to do with fraud, big loans, Taxis, etc., and not serve a long
prison term? He makes up stories to get a GREAT & ALREADY reduced deal for himself, and
get his wife and father-in-law (who has the money?) off Scott Free. He lied for this outcome and
should, in my opinion, serve a full and complete sentence.”1060 A few minutes later, the President
appeared to contrast Cohen’s conduct with Roger Stone’s, tweeting: “‘I will never testify against
Trump.’ This statement was recently made by Roger Stone, essentially stating that he will not be
forced by a rogue and out of control prosecutor to make up lies and stories about ‘President
Trump.’ Nice to know that some people still have ‘guts!’”1061

On December 12, 2018, Cohen was sentenced to three years of imprisonment.1062 The next
day, the President sent a series of tweets that said:

I never directed Michael Cohen to break the law. . . . Those charges were just agreed to by
him in order to embarrass the president and get a much reduced prison sentence, which he
did—including the fact that his family was temporarily let off the hook. As a lawyer,
Michael has great liability to me!1063

On December 16, 2018, the President tweeted, “Remember, Michael Cohen only became a ‘Rat’
after the FBI did something which was absolutely unthinkable & unheard of until the Witch Hunt
was illegally started. They BROKE INTO AN ATTORNEY’S OFFICE! Why didn’t they break
into the DNC to get the Server, or Crooked’s office?”1064

In January 2019, after the media reported that Cohen would provide public testimony in a
congressional hearing, the President made additional public comments suggesting that Cohen’s

1057
1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.
1058
1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.
1059
2/6/19 Letter, President’s Personal Counsel to Special Counsel’s Office.
1060
@realDonaldTrump 12/3/18 (10:24 a.m. ET and 10:29 a.m. ET) Tweets (emphasis added).
1061
@realDonaldTrump 12/3/18 (10:48 a.m. ET) Tweet.
1062
Cohen 12/12/18 Transcript.
1063
@realDonaldTrump 12/13/18 (8:17 a.m. ET, 8:25 a.m. ET, and 8:39 a.m. ET) Tweets (emphasis
added).
1064
@realDonaldTrump 12/16/18 (9:39 a.m. ET) Tweet.

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family members had committed crimes. In an interview on Fox on January 12, 2019, the President
was asked whether he was worried about Cohen’s testimony and responded:

[I]n order to get his sentence reduced, [Cohen] says “I have an idea, I’ll ah, tell—I’ll give
you some information on the president.” Well, there is no information. But he should give
information maybe on his father-in-law because that’s the one that people want to look at
because where does that money—that’s the money in the family. And I guess he didn’t
want to talk about his father-in-law, he’s trying to get his sentence reduced. So it’s ah,
pretty sad. You know, it’s weak and it’s very sad to watch a thing like that.1065

On January 18, 2019, the President tweeted, “Kevin Corke, @FoxNews ‘Don’t forget,
Michael Cohen has already been convicted of perjury and fraud, and as recently as this week, the
Wall Street Journal has suggested that he may have stolen tens of thousands of dollars. . . .’ Lying
to reduce his jail time! Watch father-in-law!”1066

On January 23, 2019, Cohen postponed his congressional testimony, citing threats against
his family.1067 The next day, the President tweeted, “So interesting that bad lawyer Michael Cohen,
who sadly will not be testifying before Congress, is using the lawyer of Crooked Hillary Clinton
to represent him—Gee, how did that happen?”1068

Also in January 2019, Giuliani gave press interviews that appeared to confirm Cohen’s
account that the Trump Organization pursued the Trump Tower Moscow project well past January
2016. Giuliani stated that “it’s our understanding that [discussions about the Trump Moscow
project] went on throughout 2016. Weren’t a lot of them, but there were conversations. Can’t be
sure of the exact date. But the president can remember having conversations with him about it.
. . . The president also remembers—yeah, probably up—could be up to as far as October,
November.”1069 In an interview with the New York Times, Giuliani quoted the President as saying
that the discussions regarding the Trump Moscow project were “going on from the day I
announced to the day I won.”1070 On January 21, 2019, Giuliani issued a statement that said: “My
recent statements about discussions during the 2016 campaign between Michael Cohen and
candidate Donald Trump about a potential Trump Moscow ‘project’ were hypothetical and not
based on conversations I had with the president.”1071

1065
Jeanine Pirro Interview with President Trump, Fox News (Jan. 12, 2019) (emphasis added).
1066
@realDonaldTrump 1/18/19 (10:02 a.m. ET) Tweet (emphasis added).
1067
Statement by Lanny Davis, Cohen’s personal counsel (Jan. 23, 2019).
1068
@realDonaldTrump 1/24/19 (7:48 a.m. ET) Tweet.
1069
Meet the Press Interview with Rudy Giuliani, NBC (Jan. 20, 2019).
1070
Mark Mazzetti et al., Moscow Skyscraper Talks Continued Through “the Day I Won,” Trump
Is Said to Acknowledge, New York Times (Jan. 20, 2019).
1071
Maggie Haberman, Giuliani Says His Moscow Trump Tower Comments Were “Hypothetical”,
New York Times (Jan. 21, 2019). In a letter to this Office, the President’s counsel stated that Giuliani’s
public comments “were not intended to suggest nor did they reflect knowledge of the existence or timing

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Analysis

In analyzing the President’s conduct related to Cohen, the following evidence is relevant
to the elements of obstruction of justice.

a. Obstructive act. We gathered evidence of the President’s conduct related to Cohen


on two issues: (i) whether the President or others aided or participated in Cohen’s false statements
to Congress, and (ii) whether the President took actions that would have the natural tendency to
prevent Cohen from providing truthful information to the government.

i. First, with regard to Cohen’s false statements to Congress, while there is


evidence, described below, that the President knew Cohen provided false testimony to Congress
about the Trump Tower Moscow project, the evidence available to us does not establish that the
President directed or aided Cohen’s false testimony.

Cohen said that his statements to Congress followed a “party line” that developed within
the campaign to align with the President’s public statements distancing the President from Russia.
Cohen also recalled that, in speaking with the President in advance of testifying, he made it clear
that he would stay on message—which Cohen believed they both understood would require false
testimony. But Cohen said that he and the President did not explicitly discuss whether Cohen’s
testimony about the Trump Tower Moscow project would be or was false, and the President did
not direct him to provide false testimony. Cohen also said he did not tell the President about the
specifics of his planned testimony. During the time when his statement to Congress was being
drafted and circulated to members of the JDA, Cohen did not speak directly to the President about
the statement, but rather communicated with the President’s personal counsel—as corroborated by
phone records showing extensive communications between Cohen and the President’s personal
counsel before Cohen submitted his statement and when he testified before Congress.

Cohen recalled that in his discussions with the President’s personal counsel on August 27,
2017—the day before Cohen’s statement was submitted to Congress—Cohen said that there were
more communications with Russia and more communications with candidate Trump than the
statement reflected. Cohen recalled expressing some concern at that time. According to Cohen,
the President’s personal counsel—who did not have first-hand knowledge of the project—
responded by saying that there was no need to muddy the water, that it was unnecessary to include
those details because the project did not take place, and that Cohen should keep his statement short
and tight, not elaborate, stay on message, and not contradict the President. Cohen’s recollection
of the content of those conversations is consistent with direction about the substance of Cohen’s
draft statement that appeared to come from members of the JDA. For example, Cohen omitted
any reference to his outreach to Russian government officials to set up a meeting between Trump
and Putin during the United Nations General Assembly, and Cohen believed it was a decision of

of conversations beyond that contained in the President’s [written responses to the Special Counsel’s
Office].” 2/6/19 Letter, President’s Personal Counsel to Special Counsel’s Office.

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the JDA to delete the sentence, “The building project led me to make limited contacts with Russian
government officials.”

The President’s personal counsel declined to provide us with his account of his
conversations with Cohen, and there is no evidence available to us that indicates that the President
was aware of the information Cohen provided to the President’s personal counsel. The President’s
conversations with his personal counsel were presumptively protected by attorney-client privilege,
and we did not seek to obtain the contents of any such communications. The absence of evidence
about the President and his counsel’s conversations about the drafting of Cohen’s statement
precludes us from assessing what, if any, role the President played.

ii. Second, we considered whether the President took actions that would have
the natural tendency to prevent Cohen from providing truthful information to criminal
investigators or to Congress.

Before Cohen began to cooperate with the government, the President publicly and privately
urged Cohen to stay on message and not “flip.” Cohen recalled the President’s personal counsel
telling him that he would be protected so long as he did not go “rogue.” In the days and weeks
that followed the April 2018 searches of Cohen’s home and office, the President told reporters that
Cohen was a “good man” and said he was “a fine person with a wonderful family . . . who I have
always liked & respected.” Privately, the President told Cohen to “hang in there” and “stay
strong.” People who were close to both Cohen and the President passed messages to Cohen that
“the President loves you,” “the boss loves you,” and “everyone knows the boss has your back.”
Through the President’s personal counsel, the President also had previously told Cohen “thanks
for what you do” after Cohen provided information to the media about payments to women that,
according to Cohen, both Cohen and the President knew was false. At that time, the Trump
Organization continued to pay Cohen’s legal fees, which was important to Cohen. Cohen also
recalled discussing the possibility of a pardon with the President’s personal counsel, who told him
to stay on message and everything would be fine. The President indicated in his public statements
that a pardon had not been ruled out, and also stated publicly that “[m]ost people will flip if the
Government lets them out of trouble” but that he “d[idn’t] see Michael doing that.”

After it was reported that Cohen intended to cooperate with the government, however, the
President accused Cohen of “mak[ing] up stories in order to get himself out of an unrelated jam
(Taxi cabs maybe?),” called Cohen a “rat,” and on multiple occasions publicly suggested that
Cohen’s family members had committed crimes. The evidence concerning this sequence of events
could support an inference that the President used inducements in the form of positive messages
in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the
provision of information or undermine Cohen’s credibility once Cohen began cooperating.

b. Nexus to an official proceeding. The President’s relevant conduct towards Cohen


occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s
Office for the Southern District of New York were investigating Cohen’s conduct. The President
acknowledged through his public statements and tweets that Cohen potentially could cooperate
with the government investigations.

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c. Intent. In analyzing the President’s intent in his actions towards Cohen as a


----
potential witness, there is evidence that could support the inference that the President intended to
discourage Cohen from cooperating with the government because Cohen’s information would shed
adverse light on the President’s campaign-period conduct and statements.

i. Cohen’s false congressional testimony about the Trump Tower Moscow


project was designed to minimize connections between the President and Russia and to help limit
the congressional and DOJ Russia investigations—a goal that was in the President’s interest, as
reflected by the President’s own statements. During and after the campaign, the President made
repeated statements that he had “no business” in Russia and said that there were “no deals that
could happen in Russia, because we’ve stayed away.” As Cohen knew, and as he recalled
communicating to the President during the campaign, Cohen’s pursuit of the Trump Tower
Moscow project cast doubt on the accuracy or completeness of these statements.

In connection with his guilty plea, Cohen admitted that he had multiple conversations with
candidate Trump to give him status updates about the Trump Tower Moscow project, that the
conversations continued through at least June 2016, and that he discussed with Trump possible
travel to Russia to pursue the project. The conversations were not off-hand, according to Cohen,
because the project had the potential to be so lucrative. In addition, text messages to and from
Cohen and other records further establish that Cohen’s efforts to advance the project did not end
in January 2016 and that in May and June 2016, Cohen was considering the timing for possible
trips to Russia by him and Trump in connection with the project.

The evidence could support an inference that the President was aware of these facts at the
time of Cohen’s false statements to Congress. Cohen discussed the project with the President in
early 2017 following media inquiries. Cohen recalled that on September 20, 2017, the day after
he released to the public his opening remarks to Congress—which said the project “was terminated
in January of 2016”—the President’s personal counsel told him the President was pleased with
what Cohen had said about Trump Tower Moscow. And after Cohen’s guilty plea, the President
told reporters that he had ultimately decided not to do the project, which supports the inference
that he remained aware of his own involvement in the project and the period during the Campaign
in which the project was being pursued.

ii. The President’s public remarks following Cohen’s guilty plea also suggest
that the President may have been concerned about what Cohen told investigators about the Trump
Tower Moscow project. At the time the President submitted written answers to questions from
this Office about the project and other subjects, the media had reported that Cohen was cooperating
with the government but Cohen had not yet pleaded guilty to making false statements to Congress.
Accordingly, it was not publicly known what information about the project Cohen had provided
to the government. In his written answers, the President did not provide details about the timing
and substance of his discussions with Cohen about the project and gave no indication that he had
decided to no longer pursue the project. Yet after Cohen pleaded guilty, the President publicly
stated that he had personally made the decision to abandon the project. The President then declined
to clarify the seeming discrepancy to our Office or answer additional questions. The content and
timing of the President’s provision of information about his knowledge and actions regarding the
Trump Tower Moscow project is evidence that the President may have been concerned about the
information that Cohen could provide as a witness.

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iii. The President’s concern about Cohen cooperating may have been directed
at the Southern District of New York investigation into other aspects of the President’s dealings
with Cohen rather than an investigation of Trump Tower Moscow. There also is some evidence
that the President’s concern about Cohen cooperating was based on the President’s stated belief
that Cohen would provide false testimony against the President in an attempt to obtain a lesser
sentence for his unrelated criminal conduct. The President tweeted that Manafort, unlike Cohen,
refused to “break” and “make up stories in order to get a ‘deal.’” And after Cohen pleaded guilty
to making false statements to Congress, the President said, “what [Cohen]’s trying to do is get a
reduced sentence. So he’s lying about a project that everybody knew about.” But the President
also appeared to defend the underlying conduct, saying, “Even if [Cohen] was right, it doesn’t
matter because I was allowed to do whatever I wanted during the campaign.” As described above,
there is evidence that the President knew that Cohen had made false statements about the Trump
Tower Moscow project and that Cohen did so to protect the President and minimize the President’s
connections to Russia during the campaign.

iv. Finally, the President’s statements insinuating that members of Cohen’s


family committed crimes after Cohen began cooperating with the government could be viewed as
an effort to retaliate against Cohen and chill further testimony adverse to the President by Cohen
or others. It is possible that the President believes, as reflected in his tweets, that Cohen “ma[d]e[]
up stories” in order to get a deal for himself and “get his wife and father-in-law . . . off Scott Free.”
It also is possible that the President’s mention of Cohen’s wife and father-in-law were not intended
to affect Cohen as a witness but rather were part of a public-relations strategy aimed at discrediting
Cohen and deflecting attention away from the President on Cohen-related matters. But the
President’s suggestion that Cohen’s family members committed crimes happened more than once,
including just before Cohen was sentenced (at the same time as the President stated that Cohen
“should, in my opinion, serve a full and complete sentence”) and again just before Cohen was
scheduled to testify before Congress. The timing of the statements supports an inference that they
were intended at least in part to discourage Cohen from further cooperation.

L. Overarching Factual Issues

Although this report does not contain a traditional prosecution decision or declination
decision, the evidence supports several general conclusions relevant to analysis of the facts
concerning the President’s course of conduct.

1. Three features of this case render it atypical compared to the heartland obstruction-of-
justice prosecutions brought by the Department of Justice.

First, the conduct involved actions by the President. Some of the conduct did not implicate
the President’s constitutional authority and raises garden-variety obstruction-of-justice issues.
Other events we investigated, however, drew upon the President’s Article II authority, which
raised constitutional issues that we address in Volume II, Section III.B, infra. A factual analysis
of that conduct would have to take into account both that the President’s acts were facially lawful
and that his position as head of the Executive Branch provides him with unique and powerful
means of influencing official proceedings, subordinate officers, and potential witnesses.

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Second, many obstruction cases involve the attempted or actual cover-up of an underlying
crime. Personal criminal conduct can furnish strong evidence that the individual had an improper
obstructive purpose, see, e.g., United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that
he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d
558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense.
See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction
sentencing guideline, that “obstruction of a criminal investigation is punishable even if the
prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying
crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal
interests, to protect against investigations where underlying criminal liability falls into a gray area,
or to avoid personal embarrassment. The injury to the integrity of the justice system is the same
regardless of whether a person committed an underlying wrong.

In this investigation, the evidence does not establish that the President was involved in an
underlying crime related to Russian election interference. But the evidence does point to a range
of other possible personal motives animating the President’s conduct. These include concerns that
continued investigation would call into question the legitimacy of his election and potential
uncertainty about whether certain events—such as advance notice of WikiLeaks’s release of
hacked information or the June 9, 2016 meeting between senior campaign officials and Russians—
could be seen as criminal activity by the President, his campaign, or his family.

Third, many of the President’s acts directed at witnesses, including discouragement of


cooperation with the government and suggestions of possible future pardons, occurred in public
view. While it may be more difficult to establish that public-facing acts were motivated by a
corrupt intent, the President’s power to influence actions, persons, and events is enhanced by his
unique ability to attract attention through use of mass communications. And no principle of law
excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to
intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened.

2. Although the events we investigated involved discrete acts—e.g., the President’s


statement to Comey about the Flynn investigation, his termination of Comey, and his efforts to
remove the Special Counsel—it is important to view the President’s pattern of conduct as a whole.
That pattern sheds light on the nature of the President’s acts and the inferences that can be drawn
about his intent.

a. Our investigation found multiple acts by the President that were capable of exerting
undue influence over law enforcement investigations, including the Russian-interference and
obstruction investigations. The incidents were often carried out through one-on-one meetings in
which the President sought to use his official power outside of usual channels. These actions
ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney
General’s recusal; to the attempted use of official power to limit the scope of the investigation; to
direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing
the acts collectively can help to illuminate their significance. For example, the President’s
direction to McGahn to have the Special Counsel removed was followed almost immediately by
his direction to Lewandowski to tell the Attorney General to limit the scope of the Russia
investigation to prospective election-interference only—a temporal connection that suggests that
both acts were taken with a related purpose with respect to the investigation.

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The President’s efforts to influence the investigation were mostly unsuccessful, but that is
largely because the persons who surrounded the President declined to carry out orders or accede
to his requests. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s
prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General
that the Special Counsel must be removed, but was instead prepared to resign over the President’s
order. Lewandowski and Dearborn did not deliver the President’s message to Sessions that he
should confine the Russia investigation to future election meddling only. And McGahn refused to
recede from his recollections about events surrounding the President’s direction to have the Special
Counsel removed, despite the President’s multiple demands that he do so. Consistent with that
pattern, the evidence we obtained would not support potential obstruction charges against the
President’s aides and associates beyond those already filed.

b. In considering the full scope of the conduct we investigated, the President’s actions can
be divided into two distinct phases reflecting a possible shift in the President’s motives. In the
first phase, before the President fired Comey, the President had been assured that the FBI had not
opened an investigation of him personally. The President deemed it critically important to make
public that he was not under investigation, and he included that information in his termination
letter to Comey after other efforts to have that information disclosed were unsuccessful.

Soon after he fired Comey, however, the President became aware that investigators were
conducting an obstruction-of-justice inquiry into his own conduct. That awareness marked a
significant change in the President’s conduct and the start of a second phase of action. The
President launched public attacks on the investigation and individuals involved in it who could
possess evidence adverse to the President, while in private, the President engaged in a series of
targeted efforts to control the investigation. For instance, the President attempted to remove the
Special Counsel; he sought to have Attorney General Sessions unrecuse himself and limit the
investigation; he sought to prevent public disclosure of information about the June 9, 2016 meeting
between Russians and campaign officials; and he used public forums to attack potential witnesses
who might offer adverse information and to praise witnesses who declined to cooperate with the
government. Judgments about the nature of the President’s motives during each phase would be
informed by the totality of the evidence.

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III. LEGAL DEFENSES TO THE APPLICATION OF OBSTRUCTION-OF-JUSTICE STATUTES TO


THE PRESIDENT

The President’s personal counsel has written to this Office to advance statutory and
constitutional defenses to the potential application of the obstruction-of-justice statutes to the
President’s conduct.1072 As a statutory matter, the President’s counsel has argued that a core
obstruction-of-justice statute, 18 U.S.C. § 1512(c)(2), does not cover the President’s actions.1073
As a constitutional matter, the President’s counsel argued that the President cannot obstruct justice
by exercising his constitutional authority to close Department of Justice investigations or terminate
the FBI Director.1074 Under that view, any statute that restricts the President’s exercise of those
powers would impermissibly intrude on the President’s constitutional role. The President’s
counsel has conceded that the President may be subject to criminal laws that do not directly involve
exercises of his Article II authority, such as laws prohibiting bribing witnesses or suborning
perjury.1075 But counsel has made a categorical argument that “the President’s exercise of his
constitutional authority here to terminate an FBI Director and to close investigations cannot
constitutionally constitute obstruction of justice.”1076

In analyzing counsel’s statutory arguments, we concluded that the President’s proposed


interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of
Justice and is not supported by principles of statutory construction.

As for the constitutional arguments, we recognized that the Department of Justice and the
courts have not definitively resolved these constitutional issues. We therefore analyzed the
President’s position through the framework of Supreme Court precedent addressing the separation
of powers. Under that framework, we concluded, Article II of the Constitution does not
categorically and permanently immunize the President from potential liability for the conduct that
we investigated. Rather, our analysis led us to conclude that the obstruction-of-justice statutes can

1072
6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office; see also 1/29/18
Letter, President’s Personal Counsel to Special Counsel’s Office; 2/6/18 Letter, President’s Personal
Counsel to Special Counsel’s Office; 8/8/18 Letter, President’s Personal Counsel to Special Counsel’s
Office, at 4.
1073
2/6/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2-9. Counsel has
also noted that other potentially applicable obstruction statutes, such as 18 U.S.C. § 1505, protect only
pending proceedings. 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 7-8.
Section 1512(c)(2) is not limited to pending proceedings, but also applies to future proceedings that the
person contemplated. See Volume II, Section III.A, supra.
1074
6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 1 (“[T]he President
cannot obstruct . . . by simply exercising these inherent Constitutional powers.”).
1075
6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n. 1.
1076
6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n.1 (dashes
omitted); see also 8/8/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 4 (“[T]he
obstruction-of-justice statutes cannot be read so expansively as to create potential liability based on facially
lawful acts undertaken by the President in furtherance of his core Article II discretionary authority to
remove principal officers or carry out the prosecution function.”).

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validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere
with an investigation.

A. Statutory Defenses to the Application of Obstruction-Of-Justice Provisions to


the Conduct Under Investigation

The obstruction-of-justice statute most readily applicable to our investigation is 18 U.S.C.


§ 1512(c)(2). Section 1512(c) provides:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or


attempts to do so, with the intent to impair the object’s integrity or availability for
use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts


to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The Department of Justice has taken the position that Section 1512(c)(2) states a broad,
independent, and unqualified prohibition on obstruction of justice.1077 While defendants have
argued that subsection (c)(2) should be read to cover only acts that would impair the availability
or integrity of evidence because that is subsection (c)(1)’s focus, strong arguments weigh against
that proposed limitation. The text of Section 1512(c)(2) confirms that its sweep is not tethered to
Section 1512(c)(1); courts have so interpreted it; its history does not counsel otherwise; and no
principle of statutory construction dictates a contrary view. On its face, therefore, Section
1512(c)(2) applies to all corrupt means of obstructing a proceeding, pending or contemplated—
including by improper exercises of official power. In addition, other statutory provisions that are
potentially applicable to certain conduct we investigated broadly prohibit obstruction of
proceedings that are pending before courts, grand juries, and Congress. See 18 U.S.C. §§ 1503,
1505. Congress has also specifically prohibited witness tampering. See 18 U.S.C. § 1512(b).

1. The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive Acts

Several textual features of Section 1512(c)(2) support the conclusion that the provision
broadly prohibits corrupt means of obstructing justice and is not limited by the more specific
prohibitions in Section 1512(c)(1), which focus on evidence impairment.

First, the text of Section 1512(c)(2) is unqualified: it reaches acts that “obstruct[],
influence[], or impede[] any official proceeding” when committed “corruptly.” Nothing in Section
1512(c)(2)’s text limits the provision to acts that would impair the integrity or availability of
evidence for use in an official proceeding. In contrast, Section 1512(c)(1) explicitly includes the
requirement that the defendant act “with the intent to impair the object’s integrity or availability
1077
See U.S. Br., United States v. Kumar, Nos. 06–5482–cr(L), 06–5654–cr(CON) (2d Cir. filed
Oct. 26, 2007), at pp. 15-28; United States v. Singleton, Nos. H-04-CR-514SS, H-06-cr-80 (S.D. Tex. filed
June 5, 2006).

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for use in an official proceeding,” a requirement that Congress also included in two other sections
of Section 1512. See 18 U.S.C. §§ 1512(a)(2)(B)(ii) (use of physical force with intent to cause a
person to destroy an object “with intent to impair the integrity or availability of the object for use
in an official proceeding”); 1512(b)(2)(B) (use of intimidation, threats, corrupt persuasion, or
misleading conduct with intent to cause a person to destroy an object “with intent to impair the
integrity or availability of the object for use in an official proceeding”). But no comparable intent
or conduct element focused on evidence impairment appears in Section 1512(c)(2). The intent
element in Section 1512(c)(2) comes from the word “corruptly.” See, e.g., United States v.
McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (“The intent element is important because the word
‘corruptly’ is what serves to separate criminal and innocent acts of obstruction.”) (internal
quotation marks omitted). And the conduct element in Section 1512(c)(2) is “obstruct[ing],
influenc[ing], or imped[ing]” a proceeding. Congress is presumed to have acted intentionally in
the disparate inclusion and exclusion of evidence-impairment language. See Loughrin v. United
States, 573 U.S. 351, 358 (2014) (“[W]hen ‘Congress includes particular language in one section
of a statute but omits it in another’—let alone in the very next provision—this Court ‘presume[s]’
that Congress intended a difference in meaning”) (quoting Russello v. United States, 464 U.S. 16,
23 (1983)); accord Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 777 (2018).

Second, the structure of Section 1512 supports the conclusion that Section 1512(c)(2)
defines an independent offense. Section 1512(c)(2) delineates a complete crime with different
elements from Section 1512(c)(1)—and each subsection of Section 1512(c) contains its own
“attempt” prohibition, underscoring that they are independent prohibitions. The two subsections
of Section 1512(c) are connected by the conjunction “or,” indicating that each provides an
alternative basis for criminal liability. See Loughrin, 573 U.S. at 357 (“ordinary use [of ‘or’] is
almost always disjunctive, that is, the words it connects are to be given separate meanings”)
(internal quotation marks omitted). In Loughrin, for example, the Supreme Court relied on the use
of the word “or” to hold that adjacent and overlapping subsections of the bank fraud statute, 18
U.S.C. § 1344, state distinct offenses and that subsection 1344(2) therefore should not be
interpreted to contain an additional element specified only in subsection 1344(1). Id.; see also
Shaw v. United States, 137 S. Ct. 462, 465-469 (2016) (recognizing that the subsections of the
bank fraud statute “overlap substantially” but identifying distinct circumstances covered by
each).1078 And here, as in Loughrin, Section 1512(c)’s “two clauses have separate numbers, line
breaks before, between, and after them, and equivalent indentation—thus placing the clauses
visually on an equal footing and indicating that they have separate meanings.” 573 U.S. at 359.

Third, the introductory word “otherwise” in Section 1512(c)(2) signals that the provision
covers obstructive acts that are different from those listed in Section 1512(c)(1). See Black’s Law
Dictionary 1101 (6th ed. 1990) (“otherwise” means “in a different manner; in another way, or in
other ways”); see also, e.g., American Heritage College Dictionary Online (“1. In another way;

1078
The Office of Legal Counsel recently relied on several of the same interpretive principles in
concluding that language that appeared in the first clause of the Wire Act, 18 U.S.C. § 1084, restricting its
prohibition against certain betting or wagering activities to “any sporting event or contest,” did not apply
to the second clause of the same statute, which reaches other betting or wagering activities. See
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling (Nov. 2, 2018), slip op. 7 (relying
on plain language); id. at 11 (finding it not “tenable to read into the second clause the qualifier ‘on any
sporting event or contest’ that appears in the first clause”); id. at 12 (relying on Digital Realty).

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differently; 2. Under other circumstances”); see also Gooch v. United States, 297 U.S. 124, 128
(1936) (characterizing “otherwise” as a “broad term” and holding that a statutory prohibition on
kidnapping “for ransom or reward or otherwise” is not limited by the words “ransom” and
“reward” to kidnappings for pecuniary benefits); Collazos v. United States, 368 F.3d 190, 200 (2d
Cir. 2004) (construing “otherwise” in 28 U.S.C. § 2466(1)(C) to reach beyond the “specific
examples” listed in prior subsections, thereby covering the “myriad means that human ingenuity
might devise to permit a person to avoid the jurisdiction of a court”); cf. Begay v. United States,
553 U.S. 137, 144 (2006) (recognizing that “otherwise” is defined to mean “in a different way or
manner,” and holding that the word “otherwise” introducing the residual clause in the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), can, but need not necessarily, “refer to a crime
that is similar to the listed examples in some respects but different in others”).1079 The purpose of
the word “otherwise” in Section 1512(c)(2) is therefore to clarify that the provision covers
obstructive acts other than the destruction of physical evidence with the intent to impair its
integrity or availability, which is the conduct addressed in Section 1512(c)(1). The word
“otherwise” does not signal that Section 1512(c)(2) has less breadth in covering obstructive
conduct than the language of the provision implies.

2. Judicial Decisions Support a Broad Reading of Section 1512(c)(2)

Courts have not limited Section 1512(c)(2) to conduct that impairs evidence, but instead
have read it to cover obstructive acts in any form.

As one court explained, “[t]his expansive subsection operates as a catch-all to cover


‘otherwise’ obstructive behavior that might not constitute a more specific offense like document
destruction, which is listed in (c)(1).” United States v. Volpendesto, 746 F.3d 273, 286 (7th Cir.
2014) (some quotation marks omitted). For example, in United States v. Ring, 628 F. Supp. 2d
195 (D.D.C. 2009), the court rejected the argument that “§ 1512(c)(2)’s reference to conduct that
‘otherwise obstructs, influences, or impedes any official proceeding’ is limited to conduct that is
similar to the type of conduct proscribed by subsection (c)(1)—namely, conduct that impairs the
integrity or availability of ‘record[s], documents[s], or other object[s] for use in an official
proceeding.” Id. at 224. The court explained that “the meaning of § 1512(c)(2) is plain on its
face.” Id. (alternations in original). And courts have upheld convictions under Section 1512(c)(2)
that did not involve evidence impairment, but instead resulted from conduct that more broadly
thwarted arrests or investigations. See, e.g., United States v. Martinez, 862 F.3d 223, 238 (2d Cir.
2017) (police officer tipped off suspects about issuance of arrest warrants before “outstanding
warrants could be executed, thereby potentially interfering with an ongoing grand jury
proceeding”); United States v. Ahrensfield, 698 F.3d 1310, 1324-1326 (10th Cir. 2012) (officer
disclosed existence of an undercover investigation to its target); United States v. Phillips, 583 F.3d
1261, 1265 (10th Cir. 2009) (defendant disclosed identity of an undercover officer thus preventing
him from making controlled purchases from methamphetamine dealers). Those cases illustrate
that Section 1512(c)(2) applies to corrupt acts—including by public officials—that frustrate the

1079
In Sykes v. United States, 564 U.S. 1, 15 (2011), the Supreme Court substantially abandoned
Begay’s reading of the residual clause, and in Johnson v. United States, 135 S. Ct. 2551 (2015), the Court
invalidated the residual clause as unconstitutionally vague. Begay’s analysis of the word “otherwise” is
thus of limited value.

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commencement or conduct of a proceeding, and not just to acts that make evidence unavailable or
impair its integrity.

Section 1512(c)(2)’s breadth is reinforced by the similarity of its language to the omnibus
clause of 18 U.S.C. § 1503, which covers anyone who “corruptly . . . obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administration of justice.” That clause of
Section 1503 follows two more specific clauses that protect jurors, judges, and court officers. The
omnibus clause has nevertheless been construed to be “far more general in scope than the earlier
clauses of the statute.” United States v. Aguilar, 515 U.S. 593, 599 (1995). “The omnibus clause
is essentially a catch-all provision which generally prohibits conduct that interferes with the due
administration of justice.” United States v. Brenson, 104 F.3d 1267, 1275 (11th Cir. 1997). Courts
have accordingly given it a “non-restrictive reading.” United States v. Kumar, 617 F.3d 612, 620
(2d Cir. 2010); id. at 620 n.7 (collecting cases from the Third, Fourth, Sixth, Seventh, and Eleventh
Circuits). As one court has explained, the omnibus clause “prohibits acts that are similar in result,
rather than manner, to the conduct described in the first part of the statute.” United States v.
Howard, 569 F.2d 1331, 1333 (5th Cir. 1978). While the specific clauses “forbid certain means
of obstructing justice . . . the omnibus clause aims at obstruction of justice itself, regardless of the
means used to reach that result.” Id. (collecting cases). Given the similarity of Section 1512(c)(2)
to Section 1503’s omnibus clause, Congress would have expected Section 1512(c)(2) to cover acts
that produced a similar result to the evidence-impairment provisions—i.e., the result of obstructing
justice—rather than covering only acts that were similar in manner. Read this way, Section
1512(c)(2) serves a distinct function in the federal obstruction-of-justice statutes: it captures
corrupt conduct, other than document destruction, that has the natural tendency to obstruct
contemplated as well as pending proceedings.

Section 1512(c)(2) overlaps with other obstruction statutes, but it does not render them
superfluous. Section 1503, for example, which covers pending grand jury and judicial
proceedings, and Section 1505, which covers pending administrative and congressional
proceedings, reach “endeavors to influence, obstruct, or impede” the proceedings—a broader test
for inchoate violations than Section 1512(c)(2)’s “attempt” standard, which requires a substantial
step towards a completed offense. See United States v. Sampson, 898 F.3d 287, 302 (2d Cir. 2018)
(“[E]fforts to witness tamper that rise to the level of an ‘endeavor’ yet fall short of an ‘attempt’
cannot be prosecuted under § 1512.”); United States v. Leisure, 844 F.2d 1347, 1366-1367 (8th
Cir. 1988) (collecting cases recognizing the difference between the “endeavor” and “attempt”
standards). And 18 U.S.C. § 1519, which prohibits destruction of documents or records in
contemplation of an investigation or proceeding, does not require the “nexus” showing under
Aguilar, which Section 1512(c)(2) demands. See, e.g., United States v. Yielding, 657 F.3d 688,
712 (8th Cir. 2011) (“The requisite knowledge and intent [under Section 1519] can be present even
if the accused lacks knowledge that he is likely to succeed in obstructing the matter.”); United
States v. Gray, 642 F.3d 371, 376-377 (2d Cir. 2011) (“[I]n enacting § 1519, Congress rejected
any requirement that the government prove a link between a defendant’s conduct and an imminent
or pending official proceeding.”). The existence of even “substantial” overlap is not “uncommon”
in criminal statutes. Loughrin, 573 U.S. at 359 n.4; see Shaw, 137 S. Ct. at 458-469; Aguilar, 515
U.S. at 616 (Scalia, J., dissenting) (“The fact that there is now some overlap between § 1503 and
§ 1512 is no more intolerable than the fact that there is some overlap between the omnibus clause
of § 1503 and the other provisions of § 1503 itself.”). But given that Sections 1503, 1505, and

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1519 each reach conduct that Section 1512(c)(2) does not, the overlap provides no reason to give
Section 1512(c)(2) an artificially limited construction. See Shaw, 137 S. Ct. at 469.1080

3. The Legislative History of Section 1512(c)(2) Does Not Justify Narrowing Its
Text

“Given the straightforward statutory command” in Section 1512(c)(2), “there is no reason


to resort to legislative history.” United States v. Gonzales, 520 U.S. 1, 6 (1997). In any event, the
legislative history of Section 1512(c)(2) is not a reason to impose extratextual limitations on its
reach.

Congress enacted Section 1512(c)(2) as part the Sarbanes-Oxley Act of 2002, Pub. L. No.
107-204, Tit. XI, § 1102, 116 Stat. 807. The relevant section of the statute was entitled
“Tampering with a Record or Otherwise Impeding an Official Proceeding.” 116 Stat. 807
(emphasis added). That title indicates that Congress intended the two clauses to have independent
effect. Section 1512(c) was added as a floor amendment in the Senate and explained as closing a
certain “loophole” with respect to “document shredding.” See 148 Cong. Rec. S6545 (July 10,
2002) (Sen. Lott); id. at S6549-S6550 (Sen. Hatch). But those explanations do not limit the enacted
text. See Pittston Coal Group v. Sebben, 488 U.S. 105, 115 (1988) (“[I]t is not the law that a
statute can have no effects which are not explicitly mentioned in its legislative history.”); see also
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018) (“Even if Congress did not
foresee all of the applications of the statute, that is no reason not to give the statutory text a fair
reading.”). The floor statements thus cannot detract from the meaning of the enacted text. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 457 (2002) (“Floor statements from two Senators
cannot amend the clear and unambiguous language of a statute. We see no reason to give greater
weight to the views of two Senators than to the collective votes of both Houses, which are
memorialized in the unambiguous statutory text.”). That principle has particular force where one
of the proponents of the amendment to Section 1512 introduced his remarks as only “briefly
elaborat[ing] on some of the specific provisions contained in this bill.” 148 Cong. Rec. S6550
(Sen. Hatch).

Indeed, the language Congress used in Section 1512(c)(2)—prohibiting “corruptly . . .


obstruct[ing], influenc[ing], or imped[ing] any official proceeding” or attempting to do so—
parallels a provision that Congress considered years earlier in a bill designed to strengthen
protections against witness tampering and obstruction of justice. While the earlier provision is not
a direct antecedent of Section 1512(c)(2), Congress’s understanding of the broad scope of the

1080
The Supreme Court’s decision in Marinello v. United States, 138 S. Ct. 1101 (2018), does not
support imposing a non-textual limitation on Section 1512(c)(2). Marinello interpreted the tax obstruction
statute, 26 U.S.C. § 7212(a), to require “a ‘nexus’ between the defendant’s conduct and a particular
administrative proceeding.” Id. at 1109. The Court adopted that construction in light of the similar
interpretation given to “other obstruction provisions,” id. (citing Aguilar and Arthur Andersen), as well as
considerations of context, legislative history, structure of the criminal tax laws, fair warning, and lenity. Id.
at 1106-1108. The type of “nexus” element the Court adopted in Marinello already applies under Section
1512(c)(2), and the remaining considerations the Court cited do not justify reading into Section 1512(c)(2)
language that is not there. See Bates v. United States, 522 U.S. 23, 29 (1997) (the Court “ordinarily resist[s]
reading words or elements into a statute that do not appear on its face.”).

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earlier provision is instructive. Recognizing that “the proper administration of justice may be
impeded or thwarted” by a “variety of corrupt methods . . . limited only by the imagination of the
criminally inclined,” S. Rep. No. 532, 97th Cong., 2d Sess. 17-18 (1982), Congress considered a
bill that would have amended Section 1512 by making it a crime, inter alia, when a person
“corruptly . . . influences, obstructs, or impedes . . . [t]he enforcement and prosecution of federal
law,” “administration of a law under which an official proceeding is being or may be conducted,”
or the “exercise of a Federal legislative power of inquiry.” Id. at 17-19 (quoting S. 2420).

The Senate Committee explained that:

[T]he purpose of preventing an obstruction of or miscarriage of justice cannot be fully


carried out by a simple enumeration of the commonly prosecuted obstruction offenses.
There must also be protection against the rare type of conduct that is the product of the
inventive criminal mind and which also thwarts justice.

Id. at 18. The report gave examples of conduct “actually prosecuted under the current residual
clause [in 18 U.S.C. § 1503], which would probably not be covered in this series [of provisions]
without a residual clause.” Id. One prominent example was “[a] conspiracy to cover up the
Watergate burglary and its aftermath by having the Central Intelligence Agency seek to interfere
with an ongoing FBI investigation of the burglary.” Id. (citing United States v. Haldeman, 559
F.2d 31 (D.C. Cir. 1976)). The report therefore indicates a congressional awareness not only that
residual-clause language resembling Section 1512(c)(2) broadly covers a wide variety of
obstructive conduct, but also that such language reaches the improper use of governmental
processes to obstruct justice—specifically, the Watergate cover-up orchestrated by White House
officials including the President himself. See Haldeman, 559 F.3d at 51, 86-87, 120-129, 162.1081

4. General Principles of Statutory Construction Do Not Suggest That Section


1512(c)(2) is Inapplicable to the Conduct in this Investigation

The requirement of fair warning in criminal law, the interest in avoiding due process
concerns in potentially vague statutes, and the rule of lenity do not justify narrowing the reach of
Section 1512(c)(2)’s text.1082

a. As with other criminal laws, the Supreme Court has “exercised restraint” in interpreting
obstruction-of-justice provisions, both out of respect for Congress’s role in defining crimes and in
the interest of providing individuals with “fair warning” of what a criminal statute prohibits.
Marinello v. United States, 138 S. Ct. 1101, 1106 (2018); Arthur Andersen, 544 U.S. at 703;

1081
The Senate ultimately accepted the House version of the bill, which excluded an omnibus
clause. See United States v. Poindexter, 951 F.2d 369, 382-383 (D.C. Cir. 1991) (tracing history of the
proposed omnibus provision in the witness-protection legislation). During the floor debate on the bill,
Senator Heinz, one of the initiators and primary backers of the legislation, explained that the omnibus clause
was beyond the scope of the witness-protection measure at issue and likely “duplicative” of other
obstruction laws, 128 Cong. Rec. 26,810 (1982) (Sen. Heinz), presumably referring to Sections 1503 and
1505.
1082
In a separate section addressing considerations unique to the presidency, we consider principles
of statutory construction relevant in that context. See Volume II, Section III.B.1, infra.

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Aguilar, 515 U.S. at 599-602. In several obstruction cases, the Court has imposed a nexus test that
requires that the wrongful conduct targeted by the provision be sufficiently connected to an official
proceeding to ensure the requisite culpability. Marinello, 138 S. Ct. at 1109; Arthur Andersen,
544 U.S. at 707-708; Aguilar, 515 U.S. at 600-602. Section 1512(c)(2) has been interpreted to
require a similar nexus. See, e.g., United States v. Young, 916 F.3d 368, 386 (4th Cir. 2019);
United States v. Petruk, 781 F.3d 438, 445 (8th Cir. 2015); United States v. Phillips, 583 F.3d
1261, 1264 (10th Cir. 2009); United States v. Reich, 479 F.3d 179, 186 (2d Cir. 2007). To satisfy
the nexus requirement, the government must show as an objective matter that a defendant acted
“in a manner that is likely to obstruct justice,” such that the statute “excludes defendants who have
an evil purpose but use means that would only unnaturally and improbably be successful.”
Aguilar, 515 U.S. at 601-602 (internal quotation marks omitted); see id. at 599 (“the endeavor
must have the natural and probable effect of interfering with the due administration of justice”)
(internal quotation marks omitted). The government must also show as a subjective matter that
the actor “contemplated a particular, foreseeable proceeding.” Petruk, 781 F.3d at 445. Those
requirements alleviate fair-warning concerns by ensuring that obstructive conduct has a close
enough connection to existing or future proceedings to implicate the dangers targeted by the
obstruction laws and that the individual actually has the obstructive result in mind.

b. Courts also seek to construe statutes to avoid due process vagueness concerns. See, e.g.,
McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016); Skilling v. United States, 561 U.S. 358,
368, 402-404 (2010). Vagueness doctrine requires that a statute define a crime “with sufficient
definiteness that ordinary people can understand what conduct is prohibited” and “in a manner that
does not encourage arbitrary and discriminatory enforcement.” Id. at 402-403 (internal quotation
marks omitted). The obstruction statutes’ requirement of acting “corruptly” satisfies that test.

“Acting ‘corruptly’ within the meaning of § 1512(c)(2) means acting with an improper
purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert,
impede or obstruct” the relevant proceeding. United States v. Gordon, 710 F.3d 1124, 1151 (10th
Cir. 2013) (some quotation marks omitted). The majority opinion in Aguilar did not address the
defendant’s vagueness challenge to the word “corruptly,” 515 U.S. at 600 n. 1, but Justice Scalia’s
separate opinion did reach that issue and would have rejected the challenge, id. at 616-617 (Scalia,
J., joined by Kennedy and Thomas, JJ., concurring in part and dissenting in part). “Statutory
language need not be colloquial,” Justice Scalia explained, and “the term ‘corruptly’ in criminal
laws has a longstanding and well-accepted meaning. It denotes an act done with an intent to give
some advantage inconsistent with official duty and the rights of others.” Id. at 616 (internal
quotation marks omitted; citing lower court authority and legal dictionaries). Justice Scalia added
that “in the context of obstructing jury proceedings, any claim of ignorance of wrongdoing is
incredible.” Id. at 617. Lower courts have also rejected vagueness challenges to the word
“corruptly.” See, e.g., United States v. Edwards, 869 F.3d 490, 501-502 (7th Cir. 2017); United
States v. Brenson, 104 F.3d 1267, 1280-1281 (11th Cir. 1997); United States v. Howard, 569 F.2d
1331, 1336 n.9 (5th Cir. 1978). This well-established intent standard precludes the need to limit
the obstruction statutes to only certain kinds of inherently wrongful conduct.1083

1083
In United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), the court of appeals found the
term “corruptly” in 18 U.S.C. § 1505 vague as applied to a person who provided false information to
Congress. After suggesting that the word “corruptly” was vague on its face, 951 F.2d at 378, the court

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c. Finally, the rule of lenity does not justify treating Section 1512(c)(2) as a prohibition on
evidence impairment, as opposed to an omnibus clause. The rule of lenity is an interpretive
principle that resolves ambiguity in criminal laws in favor of the less-severe construction.
Cleveland v. United States, 531 U.S. 12, 25 (2000). “[A]s [the Court has] repeatedly emphasized,”
however, the rule of lenity applies only if, “after considering text, structure, history and purpose,
there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply
guess as to what Congress intended.” Abramski v. United States, 573 U.S. 169, 188 n.10 (2014)
(internal quotation marks omitted). The rule has been cited, for example, in adopting a narrow
meaning of “tangible object” in an obstruction statute when the prohibition’s title, history, and list
of prohibited acts indicated a focus on destruction of records. See Yates v. United States, 135 S.
Ct. 1074, 1088 (2015) (plurality opinion) (interpreting “tangible object” in the phrase “record,
document, or tangible object” in 18 U.S.C. § 1519 to mean an item capable of recording or
preserving information). Here, as discussed above, the text, structure, and history of Section
1512(c)(2) leaves no “grievous ambiguity” about the statute’s meaning. Section 1512(c)(2)
defines a structurally independent general prohibition on obstruction of official proceedings.

5. Other Obstruction Statutes Might Apply to the Conduct in this Investigation

Regardless whether Section 1512(c)(2) covers all corrupt acts that obstruct, influence, or
impede pending or contemplated proceedings, other statutes would apply to such conduct in
pending proceedings, provided that the remaining statutory elements are satisfied. As discussed
above, the omnibus clause in 18 U.S.C. § 1503(a) applies generally to obstruction of pending
judicial and grand proceedings.1084 See Aguilar, 515 U.S. at 598 (noting that the clause is “far
more general in scope” than preceding provisions). Section 1503(a)’s protections extend to
witness tampering and to other obstructive conduct that has a nexus to pending proceedings. See
Sampson, 898 F.3d at 298-303 & n.6 (collecting cases from eight circuits holding that Section
1503 covers witness-related obstructive conduct, and cabining prior circuit authority). And
Section 1505 broadly criminalizes obstructive conduct aimed at pending agency and congressional
proceedings.1085 See, e.g., United States v. Rainey, 757 F.3d 234, 241-247 (5th Cir. 2014).

concluded that the statute did not clearly apply to corrupt conduct by the person himself and the “core”
conduct to which Section 1505 could constitutionally be applied was one person influencing another person
to violate a legal duty. Id. at 379-386. Congress later enacted a provision overturning that result by
providing that “[a]s used in [S]ection 1505, the term ‘corruptly’ means acting with an improper purpose,
personally or by influencing another, including by making a false or misleading statement, or withholding,
concealing, altering, or destroying a document or other information.” 18 U.S.C. § 1515(b). Other courts
have declined to follow Poindexter either by limiting it to Section 1505 and the specific conduct at issue in
that case, see Brenson, 104 F.3d at 1280-1281; reading it as narrowly limited to certain types of conduct,
see United States v. Morrison, 98 F.3d 619, 629-630 (D.C. Cir. 1996); or by noting that it predated Arthur
Andersen’s interpretation of the term “corruptly,” see Edwards, 869 F.3d at 501-502.
1084
Section 1503(a) provides for criminal punishment of:
Whoever . . . corruptly or by threats or force, or by any threatening letter or
communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or
impede, the due administration of justice.
1085
Section 1505 provides for criminal punishment of:

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Finally, 18 U.S.C. § 1512(b)(3) criminalizes tampering with witnesses to prevent the


communication of information about a crime to law enforcement. The nexus inquiry articulated
in Aguilar—that an individual has “knowledge that his actions are likely to affect the judicial
proceeding,” 515 U.S. at 599—does not apply to Section 1512(b)(3). See United States v. Byrne,
435 F.3d 16, 24-25 (1st Cir. 2006). The nexus inquiry turns instead on the actor’s intent to prevent
communications to a federal law enforcement official. See Fowler v. United States, 563 U.S. 668,
673-678 (2011).

* * *

In sum, in light of the breadth of Section 1512(c)(2) and the other obstruction statutes, an
argument that the conduct at issue in this investigation falls outside the scope of the obstruction
laws lacks merit.

B. Constitutional Defenses to Applying Obstruction-Of-Justice Statutes to


Presidential Conduct

The President has broad discretion to direct criminal investigations. The Constitution vests
the “executive Power” in the President and enjoins him to “take Care that the Laws be faithfully
executed.” U.S. CONST. ART II, §§ 1, 3. Those powers and duties form the foundation of
prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (Attorney
General and United States Attorneys “have this latitude because they are designated by statute as
the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that
the Laws be faithfully executed.’”). The President also has authority to appoint officers of the
United States and to remove those whom he has appointed. U.S. CONST. ART II, § 2, cl. 2 (granting
authority to the President to appoint all officers with the advice and consent of the Senate, but
providing that Congress may vest the appointment of inferior officers in the President alone, the
heads of departments, or the courts of law); see also Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477, 492-493, 509 (2010) (describing removal authority as
flowing from the President’s “responsibility to take care that the laws be faithfully executed”).

Although the President has broad authority under Article II, that authority coexists with
Congress’s Article I power to enact laws that protect congressional proceedings, federal
investigations, the courts, and grand juries against corrupt efforts to undermine their functions.
Usually, those constitutional powers function in harmony, with the President enforcing the
criminal laws under Article II to protect against corrupt obstructive acts. But when the President’s
official actions come into conflict with the prohibitions in the obstruction statutes, any
constitutional tension is reconciled through separation-of-powers analysis.

Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence,


obstruct, or impede the due and proper administration of the law under which any pending
proceeding is being had before any department or agency of the United States, or the due
and proper exercise of the power of inquiry under which any inquiry or investigation is
being had by either House, or any committee of either House or any joint committee of the
Congress.

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The President’s counsel has argued that “the President’s exercise of his constitutional
authority . . . to terminate an FBI Director and to close investigations . . . cannot constitutionally
constitute obstruction of justice.”1086 As noted above, no Department of Justice position or
Supreme Court precedent directly resolved this issue. We did not find counsel’s contention,
however, to accord with our reading of the Supreme Court authority addressing separation-of-
powers issues. Applying the Court’s framework for analysis, we concluded that Congress can
validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt
intent to obstruct justice. The limited effect on presidential power that results from that restriction
would not impermissibly undermine the President’s ability to perform his Article II functions.

1. The Requirement of a Clear Statement to Apply Statutes to Presidential


Conduct Does Not Limit the Obstruction Statutes

Before addressing Article II issues directly, we consider one threshold statutory-


construction principle that is unique to the presidency: “The principle that general statutes must
be read as not applying to the President if they do not expressly apply where application would
arguably limit the President’s constitutional role.” OLC, Application of 28 U.S.C. § 458 to
Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 352 (1995). This “clear
statement rule,” id., has its source in two principles: statutes should be construed to avoid serious
constitutional questions, and Congress should not be assumed to have altered the constitutional
separation of powers without clear assurance that it intended that result. OLC, The Constitutional
Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 178 (1996).

The Supreme Court has applied that clear-statement rule in several cases. In one leading
case, the Court construed the Administrative Procedure Act, 5 U.S.C. § 701 et seq., not to apply
to judicial review of presidential action. Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992).
The Court explained that it “would require an express statement by Congress before assuming it
intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.”
Id. at 801. In another case, the Court interpreted the word “utilized” in the Federal Advisory
Committee Act (FACA), 5 U.S.C. App., to apply only to the use of advisory committees
established directly or indirectly by the government, thereby excluding the American Bar
Association’s advice to the Department of Justice about federal judicial candidates. Public Citizen
v. United States Department of Justice, 491 U.S. 440, 455, 462-467 (1989). The Court explained
that a broader interpretation of the term “utilized” in FACA would raise serious questions whether
the statute “infringed unduly on the President’s Article II power to nominate federal judges and
violated the doctrine of separation of powers.” Id. at 466-467. Another case found that an
established canon of statutory construction applied with “special force” to provisions that would
impinge on the President’s foreign-affairs powers if construed broadly. Sale v. Haitian Centers
Council, 509 U.S. 155, 188 (1993) (applying the presumption against extraterritorial application
to construe the Refugee Act of 1980 as not governing in an overseas context where it could affect
“foreign and military affairs for which the President has unique responsibility”). See Application

1086
6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n. 1.

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of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 353-354


(discussing Franklin, Public Citizen, and Sale).

The Department of Justice has relied on this clear-statement principle to interpret certain
statutes as not applying to the President at all, similar to the approach taken in Franklin. See, e.g.,
Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman,
Deputy Attorney General, Re: Conflict of Interest Problems Arising out of the President’s
Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to
the Constitution, at 2, 5 (Aug. 28, 1974) (criminal conflict-of-interest statute, 18 U.S.C. § 208,
does not apply to the President). Other OLC opinions interpret statutory text not to apply to certain
presidential or executive actions because of constitutional concerns. See Application of 28 U.S.C.
§ 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 350-357 (consanguinity
limitations on court appointments, 28 U.S.C. § 458, found inapplicable to “presidential
appointments of judges to the federal judiciary”); Constraints Imposed by 18 U.S.C. § 1913 on
Lobbying Efforts, 13 Op. O.L.C. 300, 304-306 (1989) (limitation on the use of appropriated funds
for certain lobbying programs found inapplicable to certain communications by the President and
executive officials).

But OLC has also recognized that this clear-statement rule “does not apply with respect to
a statute that raises no separation of powers questions were it to be applied to the President,” such
as the federal bribery statute, 18 U.S.C. § 201. Application of 28 U.S.C. § 458 to Presidential
Appointments of Federal Judges, 19 Op. O.L.C. at 357 n.11. OLC explained that “[a]pplication
of § 201 raises no separation of powers question, let alone a serious one,” because [t]he
Constitution confers no power in the President to receive bribes.” Id. In support of that conclusion,
OLC noted constitutional provisions that forbid increases in the President’s compensation while
in office, “which is what a bribe would function to do,” id. (citing U.S. CONST. ART. II, § 1, cl. 7),
and the express constitutional power of “Congress to impeach [and convict] a President for, inter
alia, bribery,” id. (citing U.S. CONST. ART II, § 4).

Under OLC’s analysis, Congress can permissibly criminalize certain obstructive conduct
by the President, such as suborning perjury, intimidating witnesses, or fabricating evidence,
because those prohibitions raise no separation-of-powers questions. See Application of 28 U.S.C.
§ 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 357 n.11. The
Constitution does not authorize the President to engage in such conduct, and those actions would
transgress the President’s duty to “take Care that the Laws be faithfully executed.” U.S. CONST.
ART II, §§ 3. In view of those clearly permissible applications of the obstruction statutes to the
President, Franklin’s holding that the President is entirely excluded from a statute absent a clear
statement would not apply in this context.

A more limited application of a clear-statement rule to exclude from the obstruction statutes
only certain acts by the President—for example, removing prosecutors or ending investigations
for corrupt reasons—would be difficult to implement as a matter of statutory interpretation. It is
not obvious how a clear-statement rule would apply to an omnibus provision like Section
1512(c)(2) to exclude corruptly motivated obstructive acts only when carried out in the President’s
conduct of office. No statutory term could easily bear that specialized meaning. For example, the
word “corruptly” has a well-established meaning that does not exclude exercises of official power
for corrupt ends. Indeed, an established definition states that “corruptly” means action with an

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intent to secure an improper advantage “inconsistent with official duty and the rights of others.”
BALLENTINE’S LAW DICTIONARY 276 (3d ed. 1969) (emphasis added). And it would be contrary
to ordinary rules of statutory construction to adopt an unconventional meaning of a statutory term
only when applied to the President. See United States v. Santos, 553 U.S. 507, 522 (2008)
(plurality opinion of Scalia, J.) (rejecting proposal to “giv[e] the same word, in the same statutory
provision, different meanings in different factual contexts”); cf. Public Citizen, 491 U.S. at 462-
467 (giving the term “utilized” in the FACA a uniform meaning to avoid constitutional questions).
Nor could such an exclusion draw on a separate and established background interpretive
presumption, such as the presumption against extraterritoriality applied in Sale. The principle that
courts will construe a statute to avoid serious constitutional questions “is not a license for the
judiciary to rewrite language enacted by the legislature.” Salinas v. United States, 522 U.S. 52,
59-60 (1997). “It is one thing to acknowledge and accept . . . well defined (or even newly
enunciated), generally applicable, background principles of assumed legislative intent. It is quite
another to espouse the broad proposition that criminal statutes do not have to be read as broadly
as they are written, but are subject to case-by-case exceptions.” Brogan v. United States, 522 U.S.
398, 406 (1998).

When a proposed construction “would thus function as an extra-textual limit on [a statute’s]


compass,” thereby preventing the statute “from applying to a host of cases falling within its clear
terms,” Loughrin, 573 U.S. at 357, it is doubtful that the construction would reflect Congress’s
intent. That is particularly so with respect to obstruction statutes, which “have been given a broad
and all-inclusive meaning.” Rainey, 757 F.3d at 245 (discussing Sections 1503 and 1505) (internal
quotation marks omitted). Accordingly, since no established principle of interpretation would
exclude the presidential conduct we have investigated from statutes such as Sections 1503, 1505,
1512(b), and 1512(c)(2), we proceed to examine the separation-of-powers issues that could be
raised as an Article II defense to the application of those statutes.

2. Separation-of-Powers Principles Support the Conclusion that Congress May


Validly Prohibit Corrupt Obstructive Acts Carried Out Through the President’s
Official Powers

When Congress imposes a limitation on the exercise of Article II powers, the limitation’s
validity depends on whether the measure “disrupts the balance between the coordinate branches.”
Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977). “Even when a branch does
not arrogate power to itself, . . . the separation-of-powers doctrine requires that a branch not impair
another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748,
757 (1996). The “separation of powers does not mean,” however, “that the branches ‘ought to
have no partial agency in, or no controul over the acts of each other.’” Clinton v. Jones, 520 U.S.
681, 703 (1997) (quoting James Madison, The Federalist No. 47, pp. 325–326 (J. Cooke ed. 1961)
(emphasis omitted)). In this context, a balancing test applies to assess separation-of-powers issues.
Applying that test here, we concluded that Congress can validly make obstruction-of-justice
statutes applicable to corruptly motivated official acts of the President without impermissibly
undermining his Article II functions.

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a. The Supreme Court’s Separation-of-Powers Balancing Test Applies


In This Context

A congressionally imposed limitation on presidential action is assessed to determine “the


extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned
functions,” and, if the “potential for disruption is present[,] . . . whether that impact is justified by
an overriding need to promote objectives within the constitutional authority of Congress.”
Administrator of General Services, 433 U.S. at 443; see Nixon v. Fitzgerald, 457 U.S. 731,753-
754 (1982); United States v. Nixon, 418 U.S. 683, 706-707 (1974). That balancing test applies to
a congressional regulation of presidential power through the obstruction-of-justice laws. 1087

When an Article II power has not been “explicitly assigned by the text of the Constitution
to be within the sole province of the President, but rather was thought to be encompassed within
the general grant to the President of the ‘executive Power,’” the Court has balanced competing
constitutional considerations. Public Citizen, 491 U.S. at 484 (Kennedy, J., concurring in the
judgment, joined by Rehnquist, C.J., and O’Connor, J.). As Justice Kennedy noted in Public
Citizen, the Court has applied a balancing test to restrictions on “the President’s power to remove
Executive officers, a power [that] . . . is not conferred by any explicit provision in the text of the
Constitution (as is the appointment power), but rather is inferred to be a necessary part of the grant
of the ‘executive Power.’” Id. (citing Morrison v. Olson, 487 U.S. 654, 694 (1988), and Myers v.
United States, 272 U.S. 52, 115–116 (1926)). Consistent with that statement, Morrison sustained
a good-cause limitation on the removal of an inferior officer with defined prosecutorial
responsibilities after determining that the limitation did not impermissibly undermine the
President’s ability to perform his Article II functions. 487 U.S. at 691-693, 695-696. The Court
has also evaluated other general executive-power claims through a balancing test. For example,
the Court evaluated the President’s claim of an absolute privilege for presidential communications
about his official acts by balancing that interest against the Judicial Branch’s need for evidence in
a criminal case. United States v. Nixon, supra (recognizing a qualified constitutional privilege for
presidential communications on official matters). The Court has also upheld a law that provided
for archival access to presidential records despite a claim of absolute presidential privilege over
the records. Administrator of General Services, 433 U.S. at 443-445, 451-455. The analysis in
those cases supports applying a balancing test to assess the constitutionality of applying the
obstruction-of-justice statutes to presidential exercises of executive power.

Only in a few instances has the Court applied a different framework. When the President’s
power is “both ‘exclusive’ and ‘conclusive’ on the issue,” Congress is precluded from regulating
its exercise. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015). In Zivotofsky, for example, the
Court followed “Justice Jackson’s familiar tripartite framework” in Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 635-638 (1952) (Jackson, J., concurring), and held that the President’s

1087
OLC applied such a balancing test in concluding that the President is not subject to criminal
prosecution while in office, relying on many of the same precedents discussed in this section. See A Sitting
President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 237-238, 244-245
(2000) (relying on, inter alia, United States v. Nixon, Nixon v. Fitzgerald, and Clinton v. Jones, and quoting
the legal standard from Administrator of General Services v. Nixon that is applied in the text). OLC
recognized that “[t]he balancing analysis” it had initially relied on in finding that a sitting President is
immune from prosecution had “been adopted as the appropriate mode of analysis by the Court.” Id. at 244.

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authority to recognize foreign nations is exclusive. Id. at 2083, 2094. See also Public Citizen 491
U.S. at 485-486 (Kennedy, J., concurring in the judgment) (citing the power to grant pardons under
U.S. CONST., ART. II, § 2, cl. 1, and the Presentment Clauses for legislation, U.S. CONST., ART. I,
§ 7, Cls. 2, 3, as examples of exclusive presidential powers by virtue of constitutional text).

But even when a power is exclusive, “Congress’ powers, and its central role in making
laws, give it substantial authority regarding many of the policy determinations that precede and
follow” the President’s act. Zivotofsky, 135 S. Ct. at 2087. For example, although the President’s
power to grant pardons is exclusive and not subject to congressional regulation, see United States
v. Klein, 80 U.S. (13 Wall.) 128, 147-148 (1872), Congress has the authority to prohibit the corrupt
use of “anything of value” to influence the testimony of another person in a judicial, congressional,
or agency proceeding, 18 U.S.C. § 201(b)(3)—which would include the offer or promise of a
pardon to induce a person to testify falsely or not to testify at all. The offer of a pardon would
precede the act of pardoning and thus be within Congress’s power to regulate even if the pardon
itself is not. Just as the Speech or Debate Clause, U.S. CONST. ART. I, § 6, cl.1, absolutely protects
legislative acts, but not a legislator’s “taking or agreeing to take money for a promise to act in a
certain way . . . for it is taking the bribe, not performance of the illicit compact, that is a criminal
act,” United States v. Brewster, 408 U.S. 501, 526 (1972) (emphasis omitted), the promise of a
pardon to corruptly influence testimony would not be a constitutionally immunized act. The
application of obstruction statutes to such promises therefore would raise no serious separation-
of-powers issue.

b. The Effect of Obstruction-of-Justice Statutes on the President’s


Capacity to Perform His Article II Responsibilities is Limited

Under the Supreme Court’s balancing test for analyzing separation-of-powers issues, the
first task is to assess the degree to which applying obstruction-of-justice statutes to presidential
actions affects the President’s ability to carry out his Article II responsibilities. Administrator of
General Services, 433 U.S. at 443. As discussed above, applying obstruction-of-justice statutes
to presidential conduct that does not involve the President’s conduct of office—such as influencing
the testimony of witnesses—is constitutionally unproblematic. The President has no more right
than other citizens to impede official proceedings by corruptly influencing witness testimony. The
conduct would be equally improper whether effectuated through direct efforts to produce false
testimony or suppress the truth, or through the actual, threatened, or promised use of official
powers to achieve the same result.

The President’s action in curtailing criminal investigations or prosecutions, or discharging


law enforcement officials, raises different questions. Each type of action involves the exercise of
executive discretion in furtherance of the President’s duty to “take Care that the Laws be faithfully
executed.” U.S. CONST., ART. II, § 3. Congress may not supplant the President’s exercise of
executive power to supervise prosecutions or to remove officers who occupy law enforcement
positions. See Bowsher v. Synar, 478 U.S. 714, 726-727 (1986) (“Congress cannot reserve for
itself the power of removal of an officer charged with the execution of the laws except by
impeachment. . . . [Because t]he structure of the Constitution does not permit Congress to execute
the laws, . . . [t]his kind of congressional control over the execution of the laws . . . is
constitutionally impermissible.”). Yet the obstruction-of-justice statutes do not aggrandize power
in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct

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only when it is taken with the “corrupt” intent to obstruct justice. The obstruction statutes thus
would restrict presidential action only by prohibiting the President from acting to obstruct official
proceedings for the improper purpose of protecting his own interests. See Volume II, Section
III.A.3, supra.

The direct effect on the President’s freedom of action would correspondingly be a limited
one. A preclusion of “corrupt” official action is not a major intrusion on Article II powers. For
example, the proper supervision of criminal law does not demand freedom for the President to act
with the 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 personal purposes furthers, rather than hinders, the impartial and evenhanded
administration of the law. And the Constitution does not mandate that the President have
unfettered authority to direct investigations or prosecutions, with no limits whatsoever, in order to
carry out his Article II functions. See Heckler v. Chaney, 470 U.S. 821, 833 (1985) (“Congress
may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive
priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases
it will pursue.”); United States v. Nixon, 418 U.S. at 707 (“[t]o read the Art. II powers of the
President as providing an absolute privilege [to withhold confidential communications from a
criminal trial]. . . would upset the constitutional balance of ‘a workable government’ and gravely
impair the role of the courts under Art. III”).

Nor must the President have unfettered authority to remove all Executive Branch officials
involved in the execution of the laws. The Constitution establishes that Congress has legislative
authority to structure the Executive Branch by authorizing Congress to create executive
departments and officer positions and to specify how inferior officers are appointed. E.g., U.S.
CONST., ART. I, § 8, cl. 18 (Necessary and Proper Clause); ART. II, § 2, cl. 1 (Opinions Clause);
ART. II, § 2, cl. 2 (Appointments Clause); see Free Enterprise Fund, 561 U.S. at 499. While the
President’s removal power is an important means of ensuring that officers faithfully execute the
law, Congress has a recognized authority to place certain limits on removal. Id. at 493-495.

The President’s removal powers are at their zenith with respect to principal officers—that
is, officers who must be appointed by the President and who report to him directly. See Free
Enterprise Fund, 561 U.S. at 493, 500. The President’s “exclusive and illimitable power of
removal” of those principal officers furthers “the President’s ability to ensure that the laws are
faithfully executed.” Id. at 493, 498 (internal quotation marks omitted); Myers, 272 U.S. at 627.
Thus, “there are some ‘purely executive’ officials who must be removable by the President at will
if he is able to accomplish his constitutional role.” Morrison, 487 U.S. at 690; Myers, 272 U.S. at
134 (the President’s “cabinet officers must do his will,” and “[t]he moment that he loses confidence
in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to
remove him without delay”); cf. Humphrey’s Executor v. United States, 295 U.S. 602 (1935)
(Congress has the power to create independent agencies headed by principal officers removable
only for good cause). In light of those constitutional precedents, it may be that the obstruction
statutes could not be constitutionally applied to limit the removal of a cabinet officer such as the
Attorney General. See 5 U.S.C. § 101; 28 U.S.C. § 503. In that context, at least absent
circumstances showing that the President was clearly attempting to thwart accountability for
personal conduct while evading ordinary political checks and balances, even the highly limited

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regulation imposed by the obstruction statutes could possibly intrude too deeply on the President’s
freedom to select and supervise the members of his cabinet.

The removal of inferior officers, in contrast, need not necessarily be at will for the President
to fulfill his constitutionally assigned role in managing the Executive Branch. “[I]nferior officers
are officers whose work is directed and supervised at some level by other officers appointed by
the President with the Senate’s consent.” Free Enterprise Fund, 561 U.S. at 510 (quoting Edmond
v. United States, 520 U.S. 651, 663 (1997)) (internal quotation marks omitted). The Supreme
Court has long recognized Congress’s authority to place for-cause limitations on the President’s
removal of “inferior Officers” whose appointment may be vested in the head of a department. U.S.
CONST. ART. II, § 2, cl. 2. See United States v. Perkins, 116 U.S. 483, 485 (1886) (“The
constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads
of departments] implies authority to limit, restrict, and regulate the removal by such laws as
Congress may enact in relation to the officers so appointed”) (quoting lower court decision);
Morrison, 487 U.S. at 689 n. 27 (citing Perkins); accord id. at 723-724 & n.4 (Scalia, J., dissenting)
(recognizing that Perkins is “established” law); see also Free Enterprise Fund, 561 U.S. at 493-
495 (citing Perkins and Morrison). The category of inferior officers includes both the FBI Director
and the Special Counsel, each of whom reports to the Attorney General. See 28 U.S.C. §§ 509,
515(a), 531; 28 C.F.R. Part 600. Their work is thus “directed and supervised” by a presidentially-
appointed, Senate-confirmed officer. See In re: Grand Jury Investigation, __ F.3d __, 2019 WL
921692, at *3-*4 (D.C. Cir. Feb. 26, 2019) (holding that the Special Counsel is an “inferior officer”
for constitutional purposes).

Where the Constitution permits Congress to impose a good-cause limitation on the removal
of an Executive Branch officer, the Constitution should equally permit Congress to bar removal
for the corrupt purpose of obstructing justice. Limiting the range of permissible reasons for
removal to exclude a “corrupt” purpose imposes a lesser restraint on the President than requiring
an affirmative showing of good cause. It follows that for such inferior officers, Congress may
constitutionally restrict the President’s removal authority if that authority was exercised for the
corrupt purpose of obstructing justice. And even if a particular inferior officer’s position might be
of such importance to the execution of the laws that the President must have at-will removal
authority, the obstruction-of-justice statutes could still be constitutionally applied to forbid
removal for a corrupt reason.1088 A narrow and discrete limitation on removal that precluded
corrupt action would leave ample room for all other considerations, including disagreement over
policy or loss of confidence in the officer’s judgment or commitment. A corrupt-purpose
prohibition therefore would not undermine the President’s ability to perform his Article II
functions. Accordingly, because the separation-of-powers question is “whether the removal
restrictions are of such a nature that they impede the President’s ability to perform his
constitutional duty,” Morrison, 487 U.S. at 691, a restriction on removing an inferior officer for a

1088
Although the FBI director is an inferior officer, he is appointed by the President and removable
by him at will, see 28 U.S.C. § 532 note, and it is not clear that Congress could constitutionally provide the
FBI director with good-cause tenure protection. See OLC, Constitutionality of Legislation Extending the
Term of the FBI Director, 2011 WL 2566125, at *3 (O.L.C. June 20, 2011) (“tenure protection for an officer
with the FBI Director’s broad investigative, administrative, and policymaking responsibilities would raise
a serious constitutional question whether Congress had ‘impede[d] the President’s ability to perform his
constitutional duty’ to take care that the laws be faithfully executed”) (quoting Morrison, 487 U.S. at 691).

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corrupt reason—a reason grounded in achieving personal rather than official ends—does not
seriously hinder the President’s performance of his duties. The President retains broad latitude to
supervise investigations and remove officials, circumscribed in this context only by the
requirement that he not act for corrupt personal purposes.1089

c. Congress Has Power to Protect Congressional, Grand Jury, and


Judicial Proceedings Against Corrupt Acts from Any Source

Where a law imposes a burden on the President’s performance of Article II functions,


separation-of-powers analysis considers whether the statutory measure “is justified by an
overriding need to promote objectives within the constitutional authority of Congress.”
Administrator of General Services, 433 U.S. at 443. Here, Congress enacted the obstruction-of-
justice statutes to protect, among other things, the integrity of its own proceedings, grand jury
investigations, and federal criminal trials. Those objectives are within Congress’s authority and
serve strong governmental interests.

i. Congress has Article I authority to define generally applicable criminal law and apply it
to all persons—including the President. Congress clearly has authority to protect its own
legislative functions against corrupt efforts designed to impede legitimate fact-gathering and
lawmaking efforts. See Watkins v. United States, 354 U.S. 178, 187, 206-207 (1957); Chapman
v. United States, 5 App. D.C. 122, 130 (1895). Congress also has authority to establish a system
of federal courts, which includes the power to protect the judiciary against obstructive acts. See
U.S. CONST. ART. I, § 8, cls. 9, 18 (“The Congress shall have Power . . . To constitute Tribunals
inferior to the supreme Court” and “To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing powers”). The long lineage of the obstruction-of-justice
statutes, which can be traced to at least 1831, attests to the necessity for that protection. See An
Act Declaratory of the Law Concerning Contempts of Court, 4 Stat. 487-488 § 2 (1831) (making
it a crime if “any person or persons shall corruptly . . . endeavor to influence, intimidate, or impede
any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or
shall, corruptly . . . obstruct, or impede, or endeavor to obstruct or impede, the due administration
of justice therein”).

ii. The Article III courts have an equally strong interest in being protected against
obstructive acts, whatever their source. As the Supreme Court explained in United States v. Nixon,
a “primary constitutional duty of the Judicial Branch” is “to do justice in criminal prosecutions.”
418 U.S. at 707; accord Cheney v. United States District Court for the District of Columbia, 542
U.S. 367, 384 (2004). In Nixon, the Court rejected the President’s claim of absolute executive
privilege because “the allowance of the privilege to withhold evidence that is demonstrably

1089
The obstruction statutes do not disqualify the President from acting in a case simply because
he has a personal interest in it or because his own conduct may be at issue. As the Department of Justice
has made clear, a claim of a conflict of interest, standing alone, cannot deprive the President of the ability
to fulfill his constitutional function. See, e.g., OLC, Application of 28 U.S.C. § 458 to Presidential
Appointments of Federal Judges, 19 O.L.C. Op. at 356 (citing Memorandum for Richard T. Burress, Office
of the President, from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of Interest Problems
Arising out of the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-
Fifth Amendment to the Constitution, at 2, 5 (Aug. 28, 1974)).

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relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts.” 407 U.S. at 712. As Nixon illustrates, the need to
safeguard judicial integrity is a compelling constitutional interest. See id. at 709 (noting that the
denial of full disclosure of the facts surrounding relevant presidential communications threatens
“[t]he very integrity of the judicial system and public confidence in the system”).

iii. Finally, the grand jury cannot achieve its constitutional purpose absent protection from
corrupt acts. Serious federal criminal charges generally reach the Article III courts based on an
indictment issued by a grand jury. Cobbledick v. United States, 309 U.S. 323, 327 (1940) (“The
Constitution itself makes the grand jury a part of the judicial process.”). And the grand jury’s
function is enshrined in the Fifth Amendment. U.S. CONST. AMEND. V. (“[n]o person shall be held
to answer” for a serious crime “unless on a presentment or indictment of a Grand Jury”). “[T]he
whole theory of [the grand jury’s] function is that it belongs to no branch of the institutional
government, serving as a kind of buffer or referee between the Government and the people,”
United States v. Williams, 504 U.S. 36, 47 (1992), “pledged to indict no one because of prejudice
and to free no one because of special favor.” Costello v. United States, 350 U.S. 359, 362 (1956).
If the grand jury were not protected against corrupt interference from all persons, its function as
an independent charging body would be thwarted. And an impartial grand jury investigation to
determine whether probable cause exists to indict is vital to the criminal justice process.

* * *

The final step in the constitutional balancing process is to assess whether the separation-
of-powers doctrine permits Congress to take action within its constitutional authority
notwithstanding the potential impact on Article II functions. See Administrator of General
Services, 433 U.S. at 443; see also Morrison, 487 U.S. at 691-693, 695-696; United States v. Nixon,
418 U.S. at 711-712. In the case of the obstruction-of-justice statutes, our assessment of the
weighing of interests leads us to conclude that Congress has the authority to impose the limited
restrictions contained in those statutes on the President’s official conduct to protect the integrity
of important functions of other branches of government.

A general ban on corrupt action does not unduly intrude on the President’s responsibility
to “take Care that the Laws be faithfully executed.” U.S. CONST. ART II, §§ 3.1090 To the contrary,
the concept of “faithful execution” connotes the use of power in the interest of the public, not in
the office holder’s personal interests. See 1 Samuel Johnson, A Dictionary of the English
Language 763 (1755) (“faithfully” def. 3: “[w]ith strict adherence to duty and allegiance”). And
immunizing the President from the generally applicable criminal prohibition against corrupt
obstruction of official proceedings would seriously impair Congress’s power to enact laws “to
promote objectives within [its] constitutional authority,” Administrator of General Services, 433
U.S. at 425—i.e., protecting the integrity of its own proceedings and the proceedings of Article III
courts and grand juries.

1090
As noted above, the President’s selection and removal of principal executive officers may have
a unique constitutional status.

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Accordingly, based on the analysis above, we were not persuaded by the argument that the
President has blanket constitutional immunity to engage in acts that would corruptly obstruct
justice through the exercise of otherwise-valid Article II powers. 1091

3. Ascertaining Whether the President Violated the Obstruction Statutes Would


Not Chill his Performance of his Article II Duties

Applying the obstruction statutes to the President’s official conduct would involve
determining as a factual matter whether he engaged in an obstructive act, whether the act had a
nexus to official proceedings, and whether he was motivated by corrupt intent. But applying those
standards to the President’s official conduct should not hinder his ability to perform his Article II
duties. Cf. Nixon v. Fitzgerald, 457 U.S. at 752-753 & n.32 (taking into account chilling effect on
the President in adopting a constitutional rule of presidential immunity from private civil damages
action based on official duties). Several safeguards would prevent a chilling effect: the existence
of settled legal standards, the presumption of regularity in prosecutorial actions, and the existence
of evidentiary limitations on probing the President’s motives. And historical experience confirms
that no impermissible chill should exist.

a. As an initial matter, 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 [him]self
or someone else, inconsistent with official duty and the rights of others.” BALLENTINE’S LAW
DICTIONARY 276 (3d ed. 1969); see United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015);
Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). That standard
parallels the President’s constitutional obligation to ensure the faithful execution of the laws. And
virtually everything that the President does in the routine conduct of office will have a clear
governmental purpose and will not be contrary to his official duty. Accordingly, the President has
no reason to be chilled in those actions because, in virtually all instances, there will be no credible
basis for suspecting a corrupt personal motive.

That point is illustrated by examples of conduct that would and would not satisfy the
stringent corrupt-motive standard. Direct or indirect action by the President to end a criminal
investigation into his own or his family members’ conduct to protect against personal
embarrassment or legal liability would constitute a core example of corruptly motivated conduct.
So too would action to halt an enforcement proceeding that directly and adversely affected the
President’s financial interests for the purpose of protecting those interests. In those examples,

1091
A possible remedy through impeachment for abuses of power would not substitute for potential
criminal liability after a President leaves office. Impeachment would remove a President from office, but
would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law.
Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in
addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART.
I, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to
relying only on impeachment, rather than making criminal law applicable to a former President, as OLC
has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C.
at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such
prosecution once the President’s term is over or he is otherwise removed from office by resignation or
impeachment.”).

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official power is being used for the purpose of protecting the President’s personal interests. In
contrast, the President’s actions to serve political or policy interests would not qualify as corrupt.
The President’s role as head of the government necessarily requires him to take into account
political factors in making policy decisions that affect law-enforcement actions and proceedings.
For instance, the President’s decision to curtail a law-enforcement investigation to avoid
international friction would not implicate the obstruction-of-justice statutes. The criminal law
does not seek to regulate the consideration of such political or policy factors in the conduct of
government. And when legitimate interests animate the President’s conduct, those interests will
almost invariably be readily identifiable based on objective factors. Because the President’s
conduct in those instances will obviously fall outside the zone of obstruction law, no chilling
concern should arise.

b. There is also no reason to believe that investigations, let alone prosecutions, would
occur except in highly unusual circumstances when a credible factual basis exists to believe that
obstruction occurred. Prosecutorial action enjoys a presumption of regularity: absent “clear
evidence to the contrary, courts presume that [prosecutors] have properly discharged their official
duties.” Armstrong, 517 U.S. at 464 (quoting United States v. Chemical Foundation, Inc., 272
U.S. 1, 14–15 (1926)). The presumption of prosecutorial regularity would provide even greater
protection to the President than exists in routine cases given the prominence and sensitivity of any
matter involving the President and the likelihood that such matters will be subject to thorough and
careful review at the most senior levels of the Department of Justice. Under OLC’s opinion that a
sitting President is entitled to immunity from indictment, only a successor Administration would
be able to prosecute a former President. But that consideration does not suggest that a President
would have any basis for fearing abusive investigations or prosecutions after leaving office. There
are “obvious political checks” against initiating a baseless investigation or prosecution of a former
President. See Administrator of General Services, 433 U.S. at 448 (considering political checks
in separation-of-powers analysis). And the Attorney General holds “the power to conduct the
criminal litigation of the United States Government,” United States v. Nixon, 418 U.S. at 694
(citing 28 U.S.C. § 516), which provides a strong institutional safeguard against politicized
investigations or prosecutions. 1092

1092
Similar institutional safeguards protect Department of Justice officers and line prosecutors
against unfounded investigations into prosecutorial acts. Prosecutors are generally barred from
participating in matters implicating their personal interests, see 28 C.F.R. § 45.2, and are instructed not to
be influenced by their “own professional or personal circumstances,” Justice Manual § 9-27.260, so
prosecutors would not frequently be in a position to take action that could be perceived as corrupt and
personally motivated. And if such cases arise, criminal investigation would be conducted by responsible
officials at the Department of Justice, who can be presumed to refrain from pursuing an investigation absent
a credible factual basis. Those facts distinguish the criminal context from the common-law rule of
prosecutorial immunity, which protects against the threat of suit by “a defendant [who] often will transform
his resentment at being prosecuted into the ascription of improper and malicious actions.” Imbler v.
Pachtman, 424 U.S. 409, 425 (1976). As the Supreme Court has noted, the existence of civil immunity
does not justify criminal immunity. See O’Shea v. Littleton, 414 U.S. 488, 503 (1974) (“Whatever may be
the case with respect to civil liability generally, . . . we have never held that the performance of the duties
of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise
criminal deprivation of constitutional rights.”) (citations omitted).

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These considerations distinguish the Supreme Court’s holding in Nixon v. Fitzgerald that,
in part because inquiries into the President’s motives would be “highly intrusive,” the President is
absolutely immune from private civil damages actions based on his official conduct. 457 U.S. at
756-757. As Fitzgerald recognized, “there is a lesser public interest in actions for civil damages
than, for example, in criminal prosecutions.” Fitzgerald, 457 U.S. at 754 n.37; see Cheney, 542
U.S. at 384. And private actions are not subject to the institutional protections of an action under
the supervision of the Attorney General and subject to a presumption of regularity. Armstrong,
517 U.S. at 464.

c. In the rare cases in which a substantial and credible basis justifies conducting an
investigation of the President, the process of examining his motivations to determine whether he
acted for a corrupt purpose need not have a chilling effect. Ascertaining the President’s
motivations would turn on any explanation he provided to justify his actions, the advice he
received, the circumstances surrounding the actions, and the regularity or irregularity of the
process he employed to make decisions. But grand juries and courts would not have automatic
access to confidential presidential communications on those matters; rather, they could be
presented in official proceedings only on a showing of sufficient need. Nixon, 418 U.S. at 712; In
re Sealed Case, 121 F.3d 729, 754, 756-757 (D.C. Cir. 1997); see also Administrator of General
Services, 433 U.S. at 448-449 (former President can invoke presidential communications privilege,
although successor’s failure to support the claim “detracts from [its] weight”).

In any event, probing the President’s intent in a criminal matter is unquestionably


constitutional in at least one context: the offense of bribery turns on the corrupt intent to receive
a thing of value in return for being influenced in official action. 18 U.S.C. § 201(b)(2). There can
be no serious argument against the President’s potential criminal liability for bribery offenses,
notwithstanding the need to ascertain his purpose and intent. See U.S. CONST. ART. I, § 3; ART. II,
§ 4; see also Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19
Op. O.L.C. at 357 n.11 (“Application of § 201[to the President] raises no separation of powers
issue, let alone a serious one.”).

d. Finally, history provides no reason to believe that any asserted chilling effect justifies
exempting the President from the obstruction laws. As a historical matter, Presidents have very
seldom been the subjects of grand jury investigations. And it is rarer still for circumstances to
raise even the possibility of a corrupt personal motive for arguably obstructive action through the
President’s use of official power. Accordingly, the President’s conduct of office should not be
chilled based on hypothetical concerns about the possible application of a corrupt-motive standard
in this context.

* * *

In sum, contrary to the position taken by the President’s counsel, we concluded that, in
light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis
for investigating the conduct at issue in this report. In our view, the application of the obstruction
statutes would not impermissibly burden the President’s performance of his Article II function to
supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the
protection of the criminal justice system from corrupt acts by any person—including the
President—accords with the fundamental principle of our government that “[n]o [person] in this

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country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882); see
also Clinton v. Jones, 520 U.S. at 697; United States v. Nixon, supra.

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IV. 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.

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