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The Mueller Report - Vol. II: Obstruction of Justice Inquiry - pp 1 - 61.

Author: Special Counsel Robert S. Mueller, III

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

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TABLE OF CONTENTS - VOLUME II

INTRODUCTION TO VOLUME II

EXECUTIVE SUMMARY TO VOLUME II

I. BACKGROUND LEGAL AND EVIDENTIARY PRINCIPLES

A. Legal Framework of Obstruction of Justice

B. Investigative and Evidentiary Considerations

II. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION

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

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

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

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

4. After the Election, Trump Continues to Deny Any Contacts or Connections with Russia or That Russia Aided his Election

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

1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak

2. President-Elect Trump is Briefed on the Intelligence Community’s Assessment of Russian Interference in the Election and Congress Opens Election-Interference Investigations

3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Administration Officials, the Media, and the FBI

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

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

6. Flynn’s Resignation

7. The President Discusses Flynn with FBI Director Comey

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

9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn’s Discussions with Kislyak

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

1. Attorney General Sessions Recuses From the Russia Investigation

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2. FBI Director Comey Publicly Confirms the Existence of the Russia Investigation in Testimony Before HPSCI

3. The President Asks Intelligence Community Leaders to Make Public Statements that he had No Connection to Russia

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

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

1. Comey Testifies Before the Senate Judiciary Committee and Declines to Answer Questions About Whether the President is Under Investigation

2. The President Makes the Decision to Terminate Comey

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

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

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

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

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

1. The President Asks Corey Lewandowski to Deliver a Message to Sessions to Curtail the Special Counsel Investigation

2. The President Follows Up with Lewandowski

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

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

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

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

2. The President Directs Communications Staff Not to Publicly Disclose Information About the June 9 Meeting

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

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

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

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

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

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

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

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

J. The President’s Conduct Towards Flynn, Manafort, ■■■■■■■■■■■■■■■■■■

1. Conduct Directed at Michael Flynn

2. Conduct Directed at Paul Manafort

3. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

K. The President’s Conduct Involving Michael Cohen

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

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

3. Cohen Submits False Statements to Congress Minimizing the Trump Tower Moscow Project in Accordance with the Party Line

4. The President Sends Messages of Support to Cohen

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

L. Overarching Factual Issues

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

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

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

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

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

4. General Principles of Statutory Construction Do Not Suggest That Section 1512(c)(2) is Inapplicable to the Conduct in this Investigation

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

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

1. The Requirement of a Clear Statement to Apply Statutes to Presidential Conduct Does Not Limit the Obstruction Statutes

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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.” 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. The OLC opinion also recognizes that a President does not have immunity after he leaves office. 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 ■■■■■■■■■■■■■■■■■■■■■■■■■■■ 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. 1

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.1

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 Massacre2.

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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.1

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.2 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.1 McGahn told those officials that the media reports were accurate in stating that the President had directed McGahn to have the Special Counsel removed. The President then met with McGahn in the Oval Office and again pressured him to deny the reports. In the same meeting, the President also asked McGahn why he had told the Special Counsel about the President’s effort to remove the Special Counsel and why McGahn took notes of his conversations with the President. McGahn refused to back away from what he remembered happening and perceived the President to be testing his mettle.

Conduct towards Flynn, Manafort, ■■■■■■■■■■■■■■■■■■ After Flynn withdrew from a joint defense agreement with the President and began cooperating with the government, the President’s personal counsel left a message for Flynn’s attorneys reminding them of the President’s warm feelings towards Flynn, which he said “still remains,” and asking for a “heads up” if Flynn knew “information that implicates the President.” When Flynn’s counsel reiterated that Flynn could no longer share information pursuant to a joint defense agreement, the President’s personal counsel said he would make sure that the President knew that Flynn’s actions reflected “hostility” towards the President.2 During Manafort’s prosecution and when the jury in his criminal trial was deliberating, the President praised Manafort in public, said that Manafort was being treated unfairly, and declined to rule out a pardon. After Manafort was convicted, the President called Manafort “a brave man” for refusing to “break” and said that “flipping” “almost ought to be outlawed.” ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

Conduct involving Michael Cohen. The President’s conduct towards Michael Cohen, a former Trump Organization executive, changed from praise for Cohen when he falsely minimized the President’s involvement in the Trump Tower Moscow project, to castigation of Cohen when he became a cooperating witness. From September 2015 to June 2016, Cohen had pursued the Trump Tower Moscow project on behalf of the Trump Organization and had briefed candidate Trump on the project numerous times, including discussing whether Trump should travel to Russia to advance the deal. In 2017, Cohen provided false testimony to Congress about the project, including stating that he had only briefed Trump on the project three times and never discussed travel to Russia with him, in an effort to adhere to a “party line” that Cohen said was developed to minimize the President’s connections to Russia. While preparing for his congressional testimony, Cohen had extensive discussions with the President’s personal counsel, who, according to Cohen, said that Cohen should stay on message” and not contradict the President. After the FBI searched Cohen’s home and office in April 2018, the President publicly asserted that Cohen would not “flip,” contacted him directly to tell him to stay strong,” and privately passed messages of support to him. Cohen also discussed pardons with the President’s personal counsel and believed that if he stayed on message he would be taken care of. But after Cohen began cooperating with the government in the summer of 2018, the President publicly criticized him, called him a “rat,” and suggested that his family members had committed crimes.

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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.1 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 S 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(1)(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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voluntary 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 voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ 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 transition. Ultimately, while we believed that we had the authority and legal justification to issue a grand jury 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 already 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.1 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 inferred from circumstantial evidence. See, e.g., United States v. Croteau, 819 F.3d 1293, 1305 (11th Cir. 2016) (“[G]uilty knowledge can rarely be established by direct evidence. ... Therefore, mens rea elements such as knowledge or intent may be proved by circumstantial evidence.”) (internal quotation marks 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 marks omitted). The principle that intent can be inferred 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, determinations on intent are frequently reached without the opportunity to interview an investigatory subject.

Obstruction-of-justice cases are consistent with this rule. See, e.g., Edlind, 887 F.3d at 174, 176 (relying on “significant circumstantial 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 are the obstruction of justice”) (internal quotation marks, ellipses, and punctuation omitted); Quattrone, 441 F.3d at 173-174. Circumstantial evidence that illuminates intent may include a pattern of potentially obstructive 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. Standard jury 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 8 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 Russia7. 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 ■■■■■■■■■ 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 election8.

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 President9. By early 2016, he distinguished himself among Republican candidates by speaking of closer ties with Russia10, saying he would get along well with Russian President Vladimir Putin11, questioning whether the NATO alliance was obsolete12, 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 company16, 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., @realDonald Trump 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. 22■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ discussed with Campaign officials that WikiLeaks would release the hacked material. 24 Some witnesses said that Trump himself discussed the possibility of upcoming releases ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■. Michael Cohen, then-executive vice president of the Trump Organization and special counsel to Trump, recalled hearing ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ 25Cohen 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 1, 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, HOM Cohen 9/18/18 302, at 10. Cohen’s role in the candidate’s and later 17

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and ■■■■■■■■■■■■■■■■■■■■■■■■■■■26 Manafort said that shortly after WikiLeaks’s July 22, 2016 release of hacked documents, he spoke to Trump ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■; Manafort recalled that Trump responded that Manafort should ■■■■■■■■■■■■■■■■■■■■■■■keep Trump updated.27 Deputy campaign manager Rick Gates said that Manafort was getting pressure about ■■■■■■■■■ information and that Manafort instructed Gates HOM status updates on upcoming releases.28 Around the same time, Gates was with Trump on a trip to an airport ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■, and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.29 ■■■■■■■■■■■■■■■■■■■■■■■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"32and 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 ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■As explained in footnote 197 of Volume 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, ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■).

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 times.38 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 1, 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 1, 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.” 50The 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 1, 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 1, 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.” 72 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 day81

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.89Priebus 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/sup> 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

94Statement 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.

111Comey 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.1 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 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.

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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

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.128McFarland 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.131Flynn 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.

129McFarland 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.134Those 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.142Later 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

142Yates 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 again.163In 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.172Because 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 SCR0126 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 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.

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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. § 1001.191

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

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.2-8 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).

215Christie 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 briefing231 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 SCR0126 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.239Comey 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 meeting240

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." 247The 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.249The 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.260As 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 strong267

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.279 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); @realDonald Trump 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,

272See 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, ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■, and resulted in Flynn’s 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 48 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.” ).

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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.282Throughout 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

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.

285Attorney 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 which I have recused myself to the extent they exist.”); see Exec. Order No. 13775, 82 Fed. Reg. 10697 (Feb. 14, 2017).

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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

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.”

287Sessions 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?” 298Bannon 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)”; ■■■■■■■■■■■■■■■■■■ “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." 316 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

312 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 11/15/17302, 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).

316Hearing 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 testimony323 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 10/31/17302, 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 Comey331 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.330

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 340

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.

336Coats 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).

347Rogers 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.357 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.352 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.

358Rogers 6/12/17 302, at 6.

359 Coats 6/14/17 302, at 3-4.

360 SCR0126_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).

368SCR0126 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

370Comey 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.”

DMU Timestamp: April 17, 2019 03:12