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The Mueller Report - Vol. II: Obstruction of Justice Inquiry - pp 120 - 182.

Author: Special Counsel Robert S. Mueller, III

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

Overview

In addition to the interactions with McGahn described above, the President has taken other actions directed at possible witnesses in the Special Counsel’s investigation, including Flynn, Manafort, ■■■■■■■■■ and as described in the next section, Cohen. When Flynn withdrew from a joint defense agreement with the President, the President’s personal counsel stated that Flynn’s actions would be viewed as reflecting “hostility” towards the President. During Manafort’s prosecution and while the jury was deliberating, the President repeatedly stated that Manafort was being treated unfairly and made it known that Manafort could receive a pardon.■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

Evidence

1. Conduct Directed at Michael Flynn

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

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

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

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

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

831 See, e.g., Remarks by President Trump in Press Conference, White House (Feb. 16, 2018) (stating that “Flynn is a fine person” and “I don’t think [Flynn] did anything wrong. If anything, he did something right ... You know, he was just doing his job”); Interview of Donald J. Trump, NBC (May 11, 2017) (stating that Flynn is a “very good person”).

832 See Priebus 1/18/17 302, at 9-10 (the President asked Priebus to contact Flynn the week he was terminated to convey that the President still cared about him and felt bad about what happened to him; Priebus thought the President did not want Flynn to have a problem with him); McFarland 12/22/17 302, at 18 (about a month or two after Flynn was terminated, the President asked McFarland to get in touch with Flynn and tell him that he was a good guy, he should stay strong, and the President felt bad for him); Flynn 1/19/18 302, at 9 (recalling the call from Priebus and an additional call from Hicks who said she wanted to relay on behalf of the President that the President hoped Flynn was okay); Christie 2/13/19 302, at 3 (describing a phone conversation between Kushner and Flynn the day after Flynn was fired where Kushner said, “You know the President respects you. The President cares about you. I’ll get the President to send out a positive tweet about you later,” and the President nodded his assent to Kushner’s comment promising a tweet).

833 Counsel for Flynn 3/1/18 302, at 1.

834 Counsel for Flynn 3/1/18 302, at 1.

835 11/22/17 Voicemail Transcript, President’s Personal Counsel to Counsel for Michael Flynn.

836 Counsel for Flynn 3/1/18 302, at 1.

837 Counsel for Flynn 3/1/18 302, at 1.

838 Counsel for Flynn 3/1/18 302, at 1. 121

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

On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement.841 The next day, the President told the press that he was not concerned about what Flynn might tell the Special Counsel.842 In response to a question about whether the President still stood behind Flynn, the President responded, “We’ll see what happens.” 843 Over the next several days, the President made public statements expressing sympathy for Flynn and indicating he had not been treated fairly.844 On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry." 845

2. Conduct Directed at Paul Manafort

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

839 Counsel for Flynn 3/1/18 302, at 2. Because of attorney-client privilege issues, we did not seek to interview the President’s personal counsel about the extent to which he discussed his statements to Flynn’s attorneys with the President.

840 Counsel for Flynn 3/1/18 302, at 2.

841 Information, United States v. Michael T. Flynn, 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 1; Plea Agreement, United States v. Michael T. Flynn, 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 3.

842 President Trump Remarks on Tax Reform and Michael Flynn’s Guilty Plea, C-SPAN (Dec. 2, 2017).

843 President Trump Remarks on Tax Reform and Michael Flynn’s Guilty Plea, C-SPAN (Dec. 2, 2017).

844 See @realDonaldTrump 12/2/17 (9:06 p.m. ET) Tweet (“So General Flynn lies to the FBI and his life is destroyed, while Crooked Hillary Clinton, on that now famous FBI holiday “interrogation with no swearing in and no recording, lies many times ... and nothing happens to her? Rigged system, or just a double standard?” ); President Trump Departure Remarks, C-SPAN (Dec. 4, 2017) (“Well, I feel badly for General Flynn. I feel very badly. He’s led a very strong life. And I feel very badly.” ).

845 President Trump White House Departure, C-SPAN (Dec. 15, 2017). 122

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

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

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

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

846 Indictment, United States v. Paul J. Manafort, Jr. and Richard W. Gates III, 1:17-cr-201 (D.D.C. Oct, 27, 2017), Doc. 13 (“Manafort and Gates D.D.C. Indictment”); Indictment, United States v. Paul J. Manafort, Jr. and Richard W. Gates III, 1:18-cr-83 (E.D. Va. Feb. 22, 2018), Doc. 9 (“Manafort and Gates E.D. Va. Indictment”)

847 Manafort and Gates D.D.C. Indictment; Manafort and Gates E.D. Va. Indictment.

848 Gates 4/18/18 302, at 4. In February 2018, Gates pleaded guilty, pursuant to a cooperation plea agreement, to a superseding criminal information charging him with conspiring to defraud and commit multiple offenses (i.e., tax fraud, failure to report foreign bank accounts, and acting as an unregistered agent of a foreign principal) against the United States, as well as making false statements to our Office. Superseding Criminal Information, United States v. Richard W. Gates III, 1:17-cr-201 (D.D.C. Feb. 23, 2018), Doc. 195; Plea Agreement, United States v. Richard W. Gates III, 1:17-cr-201 (D.D.C. Feb. 23, 2018), Doc. 205. Gates has provided information and in-court testimony that the Office has deemed to be reliable.

849 Gates 4/18/18 302, at 4.

850 Gates 4/18/18 302, at 4. Manafort told this Office that he never told Gates that he had talked to the President’s personal counsel or suggested that they would be taken care of. Manafort also said he hoped for a pardon but never discussed one with the President, although he noticed the President’s public comments about pardons. Manafort 10/1/18 302, at 11. As explained in Volume 1, Section IV.A.8, supra, Manafort entered into a plea agreement with our Office. The U.S. District Court for the District of Columbia determined that he breached the agreement by being untruthful in proffer sessions and before the grand jury. Order, United States v. Manafort, 1:17-cr-201 (D.D.C. Feb. 13, 2019), Doc. 503.

851 Porter 5/8/18 302, at 11. Priebus recalled that the President never really liked Manafort. SeePriebus 4/3/18 302, at 11. Hicks said that candidate Trump trusted Manafort’s judgment while he worked on the Campaign, but she also once heard Trump tell Gates to keep an eye on Manafort. Hicks 3/13/18 302, at 16.

852 Porter 5/8/18 302, at 11; McGahn 12/14/17 302, at 14.

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

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

853 Remarks by President Trump in Press Gaggle, White House (June 15, 2018).

854 Remarks by President Trump in Press Gaggle, White House (June 15, 2018).

855 @realDonaldTrump 6/15/18 (1:41 p.m. ET) Tweet.

856 Chris Sommerfeldt, Rudy Giuliani says Mueller probe ‘might get cleaned up’ with ‘presidential pardons’ in light of Paul Manafort going to jail, New York Daily News (June 15, 2018).

857 Sharon LaFraniere, Judge Orders Paul Manafort Jailed Before Trial, Citing New Obstruction Charges, New York Times (June 15, 2018) (quoting Giuliani).

858 State of the Union with Jake Tapper Transcript, CNN (June 17, 2018); see Karoun Demirjian, Giuliani suggests Trump may pardon Manafort after Mueller’s probe, Washington Post (June 17, 2018).

859 State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

860 State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

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

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

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

861 State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

862 See, e.g., Katelyn Polantz, Takeaways from day one of the Paul Manafort trial, CNN (July 31, 2018); Frank Bruni, Paul Manafort’s Trial Is Donald Trump’s, Too, New York Times Opinion (July 31, 2018); Rachel Weiner et al., Paul Manafort trial Day 2: Witnesses describe extravagant clothing purchases, home remodels, lavish cars paid with wire transfers, Washington Post (Aug. 1, 2018).

863 @realDonald Trump 8/1/18 (9:24 a.m. ET) Tweet. Later that day, when Sanders was asked about the President’s tweet, she told reporters, “It’s not an order. It’s the President’s opinion.” Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2018).

864 @realDonaldTrump 8/1/18 (9:34 a.m. ET) Tweet.

865 @realDonaldTrump 8/1/18 (11:35 a.m. ET) Tweet.

866 See, e.g., Carol D. Leonnig et al., Trump calls Manafort prosecution “a hoax,” says Sessions should stop Mueller investigation “right now”, Washington Post (Aug. 1, 2018); Louis Nelson, Trump claims Manafort case has “nothing to do with collusion”, Politico (Aug. 1. 2018).

867 Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2018).

868 Chris Strohm & Shannon Pettypiece, Mueller Probe Doesn’t Need to Shut Down Before Midterms, Officials Say, Bloomberg (Aug. 15, 2018).

869 See, e.g., Katelyn Polantz et al., Manafort jury ends first day of deliberations without a verdict, CNN (Aug. 16, 2018); David Voreacos, What Mueller’s Manafort Case Means for the Trump Battle to Come, Bloomberg (Aug. 2, 2018); Gabby Morrongiello, What a guilty verdict for Manafort would mean for Trump and Mueller, Washington Examiner (Aug. 18, 2018).

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

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

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

870 President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

871 President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

872 President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

873 President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

874 Trump calls Manafort “very good person, All In with Chris Hayes (Aug. 17, 2018) (transcript); Manafort lawyer: We appreciate Trump’s support, CNN (Aug. 17, 2018) (https://www.cnn.com/videos/politics/2018/08/17/paul-manafort-attorney-trump-jury-deliberations-schneider-lead-vpx.cnn).

875 Transcript at 23, United States v. Michael Cohen, 1:18-cr-602 (S.D.N.Y. Aug. 21, 2018), Doc. 7 (Cohen 8/21/18 Transcript).

876 President Trump Remarks on Manafort Trial, C-SPAN (Aug. 21, 2018).

877 President Trump Remarks on Manafort Trial, C-SPAN (Aug. 21, 2018).

878 @realDonaldTrump 8/22/18 (9:21 a.m. ET) Tweet.

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

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

879 Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded the previous day).

880 Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded the previous day).

881 Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded the previous day).

882 Maggie Haberman & Katie Rogers, “How Did We End Up Here?” Trump Wonders as the White House Soldiers On, New York Times (Aug. 22, 2018).

883 Carol D. Leonnig & Josh Dawsey, Trump recently sought his lawyers’ advice on possibility of pardoning Manafort, Giuliani says, Washington Post (Aug. 23, 2018).

884 Plea Agreement, United States v. Paul J. Manafort, Jr., 1:17-cr-201 (D.D.C. Sept. 14, 2018), Doc. 422.

885 Karen Freifeld & Nathan Layne, Trump lawyer: Manafort said nothing damaging in Mueller interviews, Reuters (Oct. 22, 2018); Michael S. Schmidt et al., Manafort’s Lawyer Said to Brief Trump Attorneys on What He Told Mueller, New York Times (Nov. 27, 2018); Dana Bash, Manafort team briefed Giuliani on Mueller meetings, CNN, Posted 11/28/18, available at https://www.cnn.com/videos/politics/2018/11/28/manafort-lawyers-keeping-trump-lawyers-giuliani- updated-mueller-probe-bash-sot-nr-vpx.cnn; see Sean Hannity, Interview with Rudy Giuliani, Fox News (Sept. 14, 2018) (Giuliani: “[T]here was a quote put out by a source close to Manafort that the plea agreement has, and cooperation agreement has, nothing to do with the Trump campaign. ... Now, I know that because I've been privy to a lot of facts I can’t repeat.” ).

886 Joint Status Report, United States v. Paul J. Manafort, Jr., (D.D.C Nov. 26, 2018), Doc. 455.

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

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

888

Manafort, Corsi

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. It’s actually very brave.

889

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

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887 Stephen Collinson, Trump appears consumed by Mueller investigation as details emerge, CNN (Nov. 29, 2018).

888 “Corsi” is a reference to Jerome Corsi, ■■■■■■■■■■■■■■■■■■ who was involved in efforts to coordinate with WikiLeaks and Assange, and who stated publicly at that time that he had refused a plea offer from the Special Counsel’s Office because he was “not going to sign a lie.” Sara Murray & Eli Watkins, ■■■■■■■■■■■■■■■■■■ says he won’t agree to plea deal, CNN (Nov. 26, 2018).

889 Marisa Schultz & Nikki Schwab, Oval Office Interview with President Trump: Trump says pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018). That same day, the President tweeted: “While the disgusting Fake News is doing everything within their power not to report it that way, at least 3 major players are intimating that the Angry Mueller Gang of Dems is viciously telling witnesses to lie about facts & they will get relief. This is our Joseph McCarthy Era!” @realDonaldTrump 11/28/18 (8:39 a.m. ET) Tweet.

890 Marisa Schultz & Nikki Schwab, New York Post Oval Office Interview with President Trump: Trump says pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018).

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893■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

894■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

U.S. Department of Justice

Attorney Work Product

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May Contain Material Protected Under Fed. R. Crim. P. 6(e)

■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■895■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■896

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895■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

896■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

897■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

898■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

899■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

U.S. Department of Justice

Attorney Work Product

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May Contain Material Protected Under Fed. R. Crim. P. 6(e)

■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■900

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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■904

■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■905■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■906■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■907■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■908

900 ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

901■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

902■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

903■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

904■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

905 ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

906■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

907 ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

908 ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

U.S. Department of Justice

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May Contain Material Protected Under Fed. R. Crim. P. 6(e)

Analysis

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

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

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

With respect to Manafort, there is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government. The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not want Manafort to “flip” and cooperate with the government. On June 15, 2018, the day the judge presiding over Manafort’s D.C. case was considering whether to revoke his bail, the President said that he “felt badly” for Manafort and stated, “I think a lot of it is very unfair.” And when asked about a pardon for Manafort, the President said, “I do want to see people treated fairly. That’s what it’s all about.” Later that day, after Manafort’s bail was revoked, the President called it a “tough sentence” that was “Very unfair!” Two days later, the President’s personal counsel stated that individuals involved in the Special Counsel’s investigation could receive a pardon “if in fact the [P]resident and his advisors ... come to the conclusion that you have been treated unfairly”—using language that paralleled how the President had already described the treatment of Manafort. Those statements, combined with the President’s commendation of Manafort for being a “brave man” who “refused to ‘break’,” suggested that a pardon was a more likely possibility if Manafort continued not to cooperate with the government. And while Manafort eventually pleaded guilty pursuant to a cooperation agreement, he was found to have violated the agreement by lying to investigators.

The President’s public statements during the Manafort trial, including during jury deliberations, also had the potential to influence the trial jury. On the second day of trial, for example, the President called the prosecution a “terrible situation” and a “hoax” that “continues to stain our country” and referred to Manafort as a “Reagan/Dole darling” who was “serving solitary confinement” even though he was “convicted of nothing.” Those statements were widely picked up by the press. While jurors were instructed not to watch or read news stories about the case and

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May Contain Material Protected Under Fed. R. Crim. P. 6(e)

are presumed to follow those instructions, the President’s statements during the trial generated substantial media coverage that could have reached jurors if they happened to see the statements or learned about them from others. And the President’s statements during jury deliberations that Manafort “happens to be a very good person” and that “it’s very sad what they’ve done to Paul Manafort” had the potential to influence jurors who learned of the statements, which the President made just as jurors were considering whether to convict or acquit Manafort.

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b. Nexus to an official proceeding. The President’s actions towards Flynn, Manafort, ■■■■■■■■■appear to have been connected to pending or anticipated official proceedings involving each individual. The President’s conduct towards Flynn ■■■■■■■■■ principally occurred when both were under criminal investigation by the Special Counsel’s Office and press reports speculated about whether they would cooperate with the Special Counsel’s investigation. And the President’s conduct towards Manafort was directly connected to the official proceedings involving him. The President made statements about Manafort and the charges against him during Manafort’s criminal trial. And the President’s comments about the prospect of Manafort “flipping” occurred when it was clear the Special Counsel continued to oversee grand jury proceedings.

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

Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government. Before Manafort was convicted, the President repeatedly stated that Manafort had been treated unfairly. One day after Manafort was convicted on eight felony charges and potentially faced a lengthy prison term, the President said that Manafort was “a brave man” for refusing to “break” and that “flipping” “almost ought to be outlawed.” At the same time, although the President had privately told aides he did not like Manafort, he publicly called Manafort “a good man” and said he had a “wonderful family.” And when the President was asked whether he was considering a pardon for Manafort, the President did not respond directly and instead said he had “great respect for what [Manafort]’s done, in terms of what he’s gone through.” The President added that “some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.” In light of the President’s counsel’s previous statements that the investigations “might get cleaned up with some presidential pardons” and that a pardon would be possible if the President “come[s] to the conclusion that you have been treated unfairly,” the evidence supports the inference that the

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President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.

We also examined the evidence of the President’s intent in making public statements about Manafort at the beginning of his trial and when the jury was deliberating. Some evidence supports a conclusion that the President intended, at least in part, to influence the jury. The trial generated widespread publicity, and as the jury began to deliberate, commentators suggested that an acquittal would add to pressure to end the Special Counsel’s investigation. By publicly stating on the second day of deliberations that Manafort “happens to be a very good person” and that “it’s very sad what they’ve done to Paul Manafort” right after calling the Special Counsel’s investigation a “rigged witch hunt,” the President’s statements could, if they reached jurors, have the natural tendency to engender sympathy for Manafort among jurors, and a factfinder could infer that the President intended that result. But there are alternative explanations for the President’s comments, including that he genuinely felt sorry for Manafort or that his goal was not to influence the jury but to influence public opinion. The President’s comments also could have been intended to continue sending a message to Manafort that a pardon was possible. As described above, the President made his comments about Manafort being “a very good person” immediately after declining to answer a question about whether he would pardon Manafort.

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K. The President’s Conduct Involving Michael Cohen

Overview

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

Evidence

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

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

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

909 In August 2018 and November 2018, Cohen pleaded guilty to multiple crimes of deception, including making false statements to Congress about the Trump Tower Moscow project, as described later in this section. When Cohen first met with investigators from this Office, he repeated the same lies he told Congress about the Trump Tower Moscow project. Cohen 8/7/18 302, at 12-17. But after Cohen pleaded guilty to offenses in the Southern District of New York on August 21, 2018, he met with investigators again and corrected the record. The Office found Cohen’s testimony in these subsequent proffer sessions to be consistent with and corroborated by other information obtained in the course of the Office’s investigation. The Office’s sentencing submission in Cohen’s criminal case stated: “Starting with his second meeting with the [Special Counsel’s Office] in September 2018, the defendant has accepted responsibility not only for his false statements concerning the [Trump Tower] Moscow Project, but also his broader efforts through public statements and testimony before Congress to minimize his role in, and what he knew about, contacts between the [Trump Organization] and Russian interests during the course of the campaign. ... The information provided by Cohen about the [Trump Tower] Moscow Project in these proffer sessions is consistent with and corroborated by other information obtained in the course of the [Special Counsel’s Office’s] investigation. ... The defendant, without prompting by the [Special Counsel’s Office], also corrected other false and misleading statements that he had made concerning his outreach to and contacts with Russian officials during the course of the campaign.” Gov’t Sentencing Submission at 4, United States v. Michael Cohen, 1:18-cr-850 (S.D.N.Y. Dec. 7, 2018), Doc. 14. At Cohen’s sentencing, our Office further explained that Cohen had “provided valuable information ... while taking care and being careful to note what he knows and what he doesn’t know.” Transcript at 19, United States v. Michael Cohen, 1:18-cr-850 (S.D.N.Y. Dec. 12, 2018), Doc. 17 (Cohen 12/12/18 Transcript).

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unsuccessfully pursued a building project in Moscow.910 According to Cohen, in approximately September 2015 he obtained internal approval from Trump to negotiate on behalf of the Trump Organization to have a Russian corporation build a tower in Moscow that licensed the Trump name and brand.911 Cohen thereafter had numerous brief conversations with Trump about the project.912Cohen recalled that Trump wanted to be updated on any developments with Trump Tower Moscow and on several occasions brought the project up with Cohen to ask what was happening on it.913Cohen also discussed the project on multiple occasions with Donald Trump Jr. and Ivanka Trump.914

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

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

910 See Volume 1, Section IV.A.1, supra (noting that starting in at least 2013, several employees of the Trump Organization, including then-president of the organization Donald J. Trump, pursued a Trump Tower Moscow deal with several Russian counterparties).

911 Cohen 9/12/18 302, at 1-4; Cohen 8/7/18 302, at 15.

912 Cohen 9/12/18 302, at 2, 4.

913 Cohen 9/12/18 302, at 4.

914 Cohen 9/12/18 302, at 4, 10.

915 MDC-H-000618-25 (10/28/15 Letter of Intent, signed by Donald J. Trump, Trump Acquisition, LLC and Andrey Rozov, I.C. Expert Investment Company); Cohen 9/12/18 302, at 3; Written Responses of Donald J. Trump (Nov. 20, 2018), at 15 (Response to Question III, Parts (a) through (g)).

916 MDC-H-000600 (12/19/15 Email, Sater to Cohen).

917 Cohen 9/12/18 302, at 5.

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

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

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

918 See FS00004 (12/30/15 Text Message, Cohen to Sater); TRUMPORG_MC_000233 (1/11/16 Email, Cohen to pr_peskova@prpress.gof.ru); MDC-H-000690 (1/14/16 Email, Cohen to info@prpress.gov.ru); TRUMPORG_MC_000235 (1/16/16 Email, Cohen to pr_peskova@prpress.gov.ru).

919 1/20/16 Email, Poliakova to Cohen; Call Records of Michael Cohen. (Showing a 22-minute call on January 20, 2016, between Cohen and the number Poliakova provided in her email); Cohen 9/12/18 302, at 2-3. After the call, Cohen saved Poliakova’s contact information in his Trump Organization Outlook contact list. 1/20/16 Cohen Microsoft Outlook Entry (6:22 a.m.) .

920 Cohen 11/20/18 302, at 5.

921 Cohen 11/20/18 302, at 5-6; Cohen 11/12/18 302, at 4.

922 Cohen 11/20/18 302, at 5.

923 Cohen 9/12/18 302, at 5.

924 FS00011 (1/21/16 Text Messages, Sater & Cohen).

925 Cohen 9/12/18 302, at 5; 1/25/16 Email, Sater to Cohen (attachment).

926 Cohen 11/20/18 302, at 5.

927 Cohen 9/12/18 302, at 6. In later congressional testimony, Cohen stated that he briefed Trump on the project approximately six times after January 2016. Hearing on Issues Related to Trump Organization Before the House Oversight and Reform Committee, 116th Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 24) (testimony of Michael Cohen).

928 Cohen 9/12/18 302, at 6.

929 Cohen 9/18/18 302, at 4.

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

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

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

935

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

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

930 Cohen 9/12/18 302, at 10.

931 Cohen 9/12/18 302, at 7.

932 Cohen 9/12/18 302, at 7.

933 FS00015 (5/4/16 Text Message, Sater to Cohen).

934 FS00015 (5/4/16 Text Message, Cohen to Sater).

935 FS00016-17 (5/5/16 Text Messages, Sater & Cohen).

936 Cohen 9/12/18 302, at 7.

937 Cohen 9/12/18 302, at 7.

938 Cohen 9/12/18 302, at 7-8.

939 Cohen 9/12/18 302, at 8.

940 Cohen 3/19/19 302, at 2.

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

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

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

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

In an effort to “stay on message,” Cohen told a New York Times reporter that the Trump Tower Moscow deal was not feasible and had ended in January 2016.949 Cohen recalled that this was part of a “script” or talking points he had developed with President-Elect Trump and others to

941 Cohen 3/19/19 302, at 2. Cohen could not recall the precise timing of this conversation, but said he thought it occurred in June or July 2016. Cohen recalled that the conversation happened at some point after candidate Trump was publicly stating that he had nothing to do with Russia. Cohen 3/19/19 302, at 2.

942 Cohen 3/19/19 302, at 2.

943 Cohen 3/19/19 302, at 2.

944 Cohen 11/20/18 302, at 1; Cohen 9/18/18 302, at 3, 5; Cohen 9/12/18 302, at 9.

945 Cohen 9/18/18 302, at 1-2; see also Rtskhiladze 4/4/18 302, at 8-9.

946 Cohen 9/18/18 302, at 1-2.

947 Cohen 9/18/18 302, at 3.

948 Cohen 11/20/18 302, at 4.

949 Cohen 9/18/18 302, at 5. The article was published on February 19, 2017, and reported that Sater and Cohen had been working on plan for a Trump Tower Moscow “as recently as the fall of 2015” but had come to a halt because of the presidential campaign. Consistent with Cohen’s intended party line message, the article stated, “Cohen said the Trump Organization had received a letter of intent for a project in Moscow from a Russian real estate developer at that time but determined that the project was not feasible.” Megan Twohey & Scott Shane, A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump Associates, New York Times (Feb. 19, 2017).

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

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

In early May 2017, Cohen received requests from Congress to provide testimony and documents in connection with congressional investigations of Russian interference in the 2016 election.1953 At that time, Cohen understood Congress’s interest in him to be focused on the allegations in the Steele reporting concerning a meeting Cohen allegedly had with Russian officials in Prague during the campaign.954 Cohen had never traveled to Prague and was not concerned about those allegations, which he believed were provably false.955 On May 18, 2017, Cohen met with the President to discuss the request from Congress, and the President instructed Cohen that he should cooperate because there was nothing there.956

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

950 Cohen 9/18/18 302, at 5-6.

951 Cohen 9/18/18 302, at 6.

952 Cohen 9/12/18 302, at 10.

953 P-SCO-000000328 (5/9/17 Letter, HPSCI to Cohen); P-SCO-000000331 (5/12/17 Letter, SSCI to Cohen).

954 Cohen 11/20/18 302, at 2-3.

955 Cohen 11/20/18 302, at 2-3.

956 Cohen 11/12/18 302, at 2; Cohen 11/20/19 302, at 3.

957 Cohen 11/12/18 302, at 2.

958 Cohen 11/12/18 302, at 2-3; Cohen 11/20/18, at 2-6. Cohen told investigators about his conversations with the President’s personal counsel after waiving any privilege of his own and after this Office advised his counsel not to provide any communications that would be covered by any other privilege, including communications protected by a joint defense or common interest privilege. As a result, most of what Cohen told us about his conversations with the President’s personal counsel concerned what Cohen had communicated to the President’s personal counsel, and not what was said in response. Cohen described certain statements made by the President’s personal counsel, however, that are set forth in this section. Cohen and his counsel were better positioned than this Office to evaluate whether any privilege protected those statements because they had knowledge of the scope of their joint defense agreement and access to privileged communications that may have provided context for evaluating the statements they shared. After interviewing Cohen about these matters, we asked the President’s personal counsel if he wished to provide information to us about his conversations with Cohen related to Cohen’s congressional testimony about Trump Tower Moscow. The President’s personal counsel declined and, through his own counsel, indicated that he could not disaggregate information he had obtained from Cohen from information he had obtained from other parties in the JDA. In view of the admonition this Office gave to Cohen’s counsel to withhold communications that could be covered by privilege, the President’s personal counsel’s uncertainty about the provenance of his own knowledge, the burden on a privilege holder to establish the elements to support a claim of privilege, and the substance of the statements themselves, we have included relevant statements Cohen provided in this report. If the statements were to be used in a context beyond this report, further analysis could be warranted.

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

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

959 Cohen 11/20/18 302, at 6.

960 Cohen 11/20/18 302, at 2,4.

961 Cohen 11/20/18 302, at 4.

962 Cohen 9/18/18 302, at 8; Cohen 11/20/18 302, at 3-4.

963 Cohen 11/20/18 302, at 4.

964 Cohen 9/18/18 302, at 11; Cohen 11/20/18 302, at 2.

965 P-SCO-000003680 and P-SCO-0000003687 (8/16/17 Email and Attachment, Michael Cohen’s Counsel to Cohen). Cohen said it was not his idea to write a letter to Congress about Trump Tower Moscow. Cohen 9/18/18 302, at 7.

966 P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

967 P-SC0-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

968 P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)). 140

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

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

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

969 P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

970 P-SCO-00009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

971 Cohen 9/12/18 302, at 8-9. Cohen also testified in Congress that the President’s counsel reviewed and edited the statement. Hearing on Issues Related to Trump Organization before the House Oversight and Reform Committee, 116th Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 24-25) (testimony by Michael Cohen). Because of concerns about the common interest privilege, we did not obtain or review all drafts of Cohen’s statement. Based on the drafts that were released through this Office’s filter process, it appears that the substance of the four principal false statements described above were contained in an early draft prepared by Cohen and his counsel. P-SCO-0000003680 and P-SCO-0000003687 (8/16/17 Email and Attachment, Cohen’s counsel to Cohen).

972 P-SCO-0000003687 (8/16/17 Draft Statement of Michael Cohen); Cohen 11/20/18 302, at 4.

973 Cohen 11/20/18 302, at 4. A different line stating that Cohen did “not recall any response to my email [to Peskov in January 2016], nor any other contacts by me with Mr. Peskov or other Russian government officials about the proposal” remained in the draft. See P-SCO-0000009478 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

974 Cohen 11/20/18 302, at 4.

975 Cohen 11/20/18 302, at 5.

976 Cohen 9/18/18 302, at 10-11.

977 Cohen 9/18/18 302, at 11; Cohen 11/12/18 302, at 4.

978 Cohen 9/18/18 302, at 11; Cohen 11/12/18 302, at 5.

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

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

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

979 Cohen 11/12/18 302, at 5.

980 Cohen 9/18/18 302, at 11.

981 Cohen 3/19/19 302, at 2.

982 Cohen 3/19/19 302, at 2; see Cohen 9/18/18 302, at 11 (recalling that he was told that if he stayed on message and kept the President out of the narrative, the President would have his back).

983 Cohen 9/12/18 302, at 8; Information at 4-5, United States v. Michael Cohen, 1:18-cr-850 (S.D.N.Y. Nov. 29, 2018), Doc. 2 (Cohen Information).

984 Cohen 11/20/18 302, at 4.

985 Cohen 11/20/18 302, at 4; Cohen 11/12/18 302, at 2-3, 4, 6.

986 Cohen 9/12/18 302, at 9.

987 Cohen 9/12/18 302, at 8-9.

988 Cohen 11/12/18 302, at 2-3; Cohen 11/20/18 302, at 5; Call Records of Michael Cohen (Reflecting three contacts on August 18, 2017 (24 seconds; 5 minutes 25 seconds; and 10 minutes 58 seconds); two contacts on August 19 (23 seconds and 24 minutes 26 seconds); three contacts on August 23 (8 seconds; 20 minutes 33 seconds; and 5 minutes 8 seconds); one contact on August 24 (11 minutes 59 seconds); 14 contacts on August 27 (28 seconds; 4 minutes 37 seconds; 1 minute 16 seconds; 1 minutes 35 seconds; 6 minutes 16 seconds; 1 minutes 10 seconds; 3 minutes 5 seconds; 18 minutes 55 seconds; 4 minutes 56 seconds; 11 minutes 6 seconds; 8 seconds; 3 seconds; 2 seconds; 2 seconds).

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

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

989 Cohen 11/20/18 302, at 5; Call Records of Michael Cohen. (Reflecting 14 contacts on August 27, 2017 (28 seconds; 4 minutes 37 seconds; 1 minute 16 seconds; 1 minutes 35 seconds; 6 minutes 16 seconds; 1 minutes 10 seconds; 3 minutes 5 seconds; 18 minutes 55 seconds; 4 minutes 56 seconds; 11 minutes 6 seconds; 8 seconds; 3 seconds; 2 seconds; 2 seconds)).

990 Cohen 11/20/18 302, at 5.

991 Cohen 11/20/18 302, at 5. Cohen also vaguely recalled telling the President’s personal counsel that he spoke with a woman from the Kremlin and that the President’s personal counsel responded to the effect of “so what?” because the deal never happened. Cohen 11/20/18 302, at 5.

992 Cohen 11/20/18 302, at 5.

993 Cohen 11/20/18 302, at 5.

994 2/8/19 email, Counsel for personal counsel to the President to Special Counsel’s Office.

995 Cohen 9/18/18 302, at 7; Carol D. Leonnig et al., Trump’s business sought deal on a Trump Tower in Moscow while he ran for president, Washington Post (Aug. 27, 2017).

996 Carol D. Leonnig et al., Trump’s business sought deal on a Trump Tower in Moscow while he ran for president, Washington Post (Aug. 27, 2017).

997 Cohen 9/18/18 302, at 7.

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

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

4. The President Sends Messages of Support to Cohen

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

998 P-SCO-000009477 - 9478 (8/28/17 Letter and Attachment, Cohen to SSCI).

999 Cohen 11/12/18 302, at 2; Cohen 9/12/18 302, at 9.

1000 Cohen 9/12/18 302, at 9.

1001 Cohen 9/18/18 302, at 7; see, e.g., READ: Michael Cohen’s statement to the Senate intelligence committee, CNN (Sept. 19, 2017).

1002 Cohen 9/18/18 302, at 7.

1003 Cohen 9/18/18 302, at 7; Cohen 11/20/18 302, at 6.

1004 Cohen 11/20/18 302, at 6. Phone records show that the President’s personal counsel called Cohen on the morning of September 20, 2017, and they spoke for approximately 11 minutes, and that they had two more contacts that day, one of which lasted approximately 18 minutes. Call Records of Michael Cohen. (Reflecting three contacts on September 20, 2017, with calls lasting for 11 minutes 3 seconds; 2 seconds; and 18 minutes 38 seconds).

1005 Cohen Information, at 4; Executive Session, Permanent Select Committee on Intelligence, U.S. House of Representatives, Interview of Michael Cohen (Oct. 24, 2017), at 10-11, 117-119.

1006 Call Records of Michael Cohen. (Reflecting two contacts on October 24, 2017 (12 minutes 8 seconds and 8 minutes 27 seconds) and three contacts on October 25, 2017 (1 second; 4 minutes 6 seconds; and 6 minutes 6 seconds)).

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

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

On April 9, 2018, FBI agents working with the U.S. Attorney’s Office for the Southern District of New York executed search warrants on Cohen’s home, hotel room, and office.1012 That day, the President spoke to reporters and said that he had “just heard that they broke into the office of one of my personal attorneys—a good man.” 1013 The President called the searches “a real disgrace” and said, “It’s an attack on our country, in a true sense. It’s an attack on what we all

1007 See, e.g., Michael Rothfeld & Joe Palazzolo, Trump Lawyer Arranged $130,000 Payment for Adult-Film Star’s Silence, Wall Street Journal (Jan. 12, 2018).

1008 The Office was authorized to investigate Cohen’s establishment and use of Essential Consultants LLC, which Cohen created to facilitate the $130,000 payment during the campaign, based on evidence that the entity received funds from Russian-backed entities. Cohen’s use of Essential Consultants to facilitate the $130,000 payment to the woman during the campaign was part of the Office’s referral of certain Cohen-related matters to the U.S. Attorney’s Office for the Southern District of New York.

1009 See, e.g., Mark Berman, Longtime Trump attorney says he made $130,000 payment to Stormy Daniels with his money, Washington Post (Feb. 14, 2018).

1010 Hearing on Issues Related to Trump Organization Before the House Oversight and Reform Committee, 116th Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 147-148) (testimony of Michael Cohen). Toll records show that Cohen was connected to a White House phone number for approximately five minutes on January 19, 2018, and for approximately seven minutes on January 30, 2018, and that Cohen called Melania Trump’s cell phone several times between January 26, 2018, and January 30, 2018. Call Records of Michael Cohen.

1011 2/19/18 Text Message, President’s personal counsel to Cohen; see Jim Rutenberg et al., Tools of Trump’s Fixer: Payouts, Intimidation and the Tabloids, New York Times (Feb. 18, 2018).

1012 Gov’t Opp. to Def. Mot. for Temp. Restraining Order, In the Matter of Search Warrants Executed on April 9, 2018, 18-mj-3161 (S.D.N.Y. Apr. 13, 2018), Doc. 1 (“On April 9, 2018, agents from the New York field office of the Federal Bureau of Investigation ... executed search warrants for Michael Cohen’s residence, hotel room, office, safety deposit box, and electronic devices.” ).

1013 Remarks by President Trump Before Meeting with Senior Military Leadership, White House (Apr. 9, 2018).

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stand for.” 1014 Cohen said that after the searches he was concerned that he was “an open book,” that he did not want issues arising from the payments to women to “come out,” and that his false statements to Congress were “a big concern.” 1015

A few days after the searches, the President called Cohen.1016 According to Cohen, the President said he wanted to “check in” and asked if Cohen was okay, and the President encouraged Cohen to “hang in there” and “stay strong.” 1017 Cohen also recalled that following the searches he heard from individuals who were in touch with the President and relayed to Cohen the President’s support for him.1018 Cohen recalled that ■■■■■■■■■■■■■■■■■■, a friend of the President’s, reached out to say that he was with “the Boss” in Mar-a-Lago and the President had said “he loves you” and not to worry.1019 Cohen recalled that ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ for the Trump Organization, told him, “the boss loves you.” 1020 And Cohen said that ■■■■■■■■■■■■■■■■■■, a friend of the President’s, told him, “everyone knows the boss has your back.” 1021

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers.1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen1024 The President responded with a series of tweets predicting that Cohen would not “flip”:

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

1014 Remarks by President Trump Before Meeting with Senior Military Leadership, White House. (Apr. 9, 2018).

1015 Cohen, 10/17/18 302, at 11.

1016 Cohen 3/19/19 302, at 4.

1017 Cohen 3/19/19 302, at 4.

1018 Cohen 9/12/18 302, at 11.

1019 Cohen 9/12/18 302, at 11.

1020 Cohen 9/12/18 302, at 11.

1021 Cohen 9/12/18 302, at 11.

1022 4/17/18 Email, Citron to Cohen; 4/19/18 Email, Costello to Cohen; MC-SCO-001 (7/7/18 redacted billing statement from Davidoff, Hutcher & Citron to Cohen).

1023 4/21/18 Email, Costello to Cohen.

1024 See Maggie Haberman et al., Michael Cohen Has Said He Would Take a Bullet for Trump. Maybe Not Anymore., New York Times (Apr. 20, 2018).

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

1025

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

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

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

1025 @realDonaldTrump 4/21/18 (9:10 a.m. ET) Tweets.

1026 4/21/18 Email, Costello to Cohen.

1027 4/21/18 Email, Costello to Cohen. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■

1028 Cohen 9/12/18 302, at 11.

1029 Cohen 9/12/18 302, at 10.

1030 Cohen 9/12/18 302, at 10.

1031 Cohen 11/20/18 302, at 7. At a White House press briefing on April 23, 2018, in response to a question about whether the White House had “close[d] the door one way or the other on the President pardoning Michael Cohen,” Sanders said, “It’s hard to close the door on something that hasn’t taken place. I don’t like to discuss or comment on hypothetical situations that may or may not ever happen. I would refer you to personal attorneys to comment on anything specific regarding that case, but we don’t have anything at this point.” Sarah Sanders, White House Daily Briefing, C-SPAN (Apr. 23, 2018).

1032 Cohen 11/20/18 302, at 7; Cohen 3/19/19 302, at 3.

1033 Cohen 3/19/19 302, at 3.

1034 Cohen 3/19/19 302, at 3-4. 147

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

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

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

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

1035 Remarks by President Trump and President Macron of France Before Restricted Bilateral Meeting, The White House (Apr. 24, 2018).

1036 President Donald Trump Holds Media Availability Before Departing for the G-7 Summit, CQ Newsmaker Transcripts (June 8, 2018).

1037 Remarks by President Trump in Press Gaggle, The White House (June 15, 2018).

1038 EXCLUSIVE: Michael Cohen says family and country, not President Trump, is his first loyalty', ABC (July 2, 2018). Cohen said in the interview, “To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty.”

1039 See e.g., Darren Samuelsohn, Michael Cohen hires Clinton scandal veteran Lanny Davis, Politico (July 5, 2018).

1040 See, e.g., Matt Apuzzo et al., Michael Cohen Secretly Taped Trump Discussing Payment to Playboy Model, New York Times (July 20, 2018).

1041 @realDonaldTrump 7/21/18 (8:10 a.m. ET) Tweet.

1042 See, e.g., Jim Sciutto, Cuomo Prime Time Transcript, CNN (July 26, 2018).

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

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

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

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

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with

1043 @realDonaldTrump 7/27/18 (7:26 a.m. ET) Tweet; @realDonald Trump 7/27/18 (7:38 a.m. ET) Tweet; @realDonaldTrump 7/27/18 (7:56 a.m. ET) Tweet. At the time of these tweets, the press had reported that Cohen’s financial interests in taxi cab medallions were being scrutinized by investigators. See, e.g., Matt Apuzzo et al., Michael Cohen Secretly Taped Trump Discussing Payment to Playboy Model, New York Times (July 20, 2018).

1044 Cohen Information.

1045 Cohen 8/21/18 Transcript, at 23.

1046 @realDonaldTrump 8/22/18 (9:21 a.m. ET) Tweet.

1047 9/17/18 Letter, Special Counsel’s Office to President’s Personal Counsel (attaching written questions for the President, with attachments).

1048 9/17/18 Letter, Special Counsel’s Office to President’s Personal Counsel (attaching written questions for the President), Question III, Parts (a) through (g).

1049 Written Responses of Donald J. Trump (Nov. 20, 2018).

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anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen and Felix Sater and any Russian government official regarding the Letter of Intent.

1050

On November 29, 2018, Cohen pleaded guilty to making false statements to Congress based on his statements about the Trump Tower Moscow project.1051 In a plea agreement with this Office, Cohen agreed to “provide truthful information regarding any and all matters as to which this Office deems relevant.”l052 Later on November 29, after Cohen’s guilty plea had become public, the President spoke to reporters about the Trump Tower Moscow project, saying:

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

1053

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

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

1050 Written Responses of Donald J. Trump (Nov. 20, 2018), at 15 (Response to Question III, Parts (a) through (g))

1051 Cohen Information; Cohen 8/21/18 Transcript.

1052 Plea Agreement at 4, United States v. Michael Cohen, 1:18-cr-850 (S.D.N.Y. Nov. 29, 2018).

1053 President Trump Departure Remarks, C-SPAN (Nov. 29, 2018). In contrast to the President’s remarks following Cohen’s guilty plea, Cohen’s August 28, 2017 statement to Congress stated that Cohen, not the President, “decided to abandon the proposal” in late January 2016; that Cohen “did not ask or brief Mr. Trump ... before I made the decision to terminate further work on the proposal"; and that the decision to abandon the proposal was “unrelated” to the Campaign. P-SCO-000009477 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

1054 President Trump Departure Remarks, C-SPAN (Nov. 29, 2018).

1055 President Trump Departure Remarks, C-SPAN (Nov. 29, 2018).

1056 President Trump Departure Remarks, C-SPAN (Nov. 29, 2018). 150

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

In the weeks following Cohen’s plea and agreement to provide assistance to this Office, the President repeatedly implied that Cohen’s family members were guilty of crimes. On December 3, 2018, after Cohen had filed his sentencing memorandum, the President tweeted, “‘Michael Cohen asks judge for no Prison Time.’ You mean he can do all of the TERRIBLE, unrelated to Trump, things having to do with fraud, big loans, Taxis, etc., and not serve a long prison term? He makes up stories to get a GREAT & ALREADY reduced deal for himself, and get his wife and father-in-law (who has the money?) off Scott Free. He lied for this outcome and should, in my opinion, serve a full and complete sentence.” 1060■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■1061

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

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

1063

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

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

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/19 Letter, President’s Personal Counsel to Special Counsel’s Office.

1060 @realDonaldTrump 12/3/18 (10:24 a.m. ET and 10:29 a.m. ET) Tweets (emphasis added).

1061 @realDonald Trump 12/3/18 (10:48 a.m. ET) Tweet.

1062 Cohen 12/12/18 Transcript.

1063 @realDonaldTrump 12/13/18 (8:17 a.m. ET, 8:25 a.m. ET, and 8:39 a.m. ET) Tweets (emphasis added)

1064 @realDonaldTrump 12/16/18 (9:39 a.m. ET) Tweet.

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

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

1065

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

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

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

1065 Jeanine Pirro Interview with President Trump, Fox News (Jan. 12, 2019) (emphasis added).

1066 @realDonald Trump 1/18/19 (10:02 a.m. ET) Tweet (emphasis added).

1067 Statement by Lanny Davis, Cohen’s personal counsel (Jan. 23, 2019).

1068 @realDonaldTrump 1/24/19 (7:48 a.m. ET) Tweet.

1069 Meet the Press Interview with Rudy Giuliani, NBC (Jan. 20, 2019).

1070 Mark Mazzetti et al., Moscow Skyscraper Talks Continued Through “the Day I Won,” Trump Is Said to Acknowledge, New York Times (Jan. 20, 2019).

1071 Maggie Haberman, Giuliani Says His Moscow Trump Tower Comments Were “Hypothetical", New York Times (Jan. 21, 2019). In a letter to this Office, the President’s counsel stated that Giuliani’s public comments “were not intended to suggest nor did they reflect knowledge of the existence or timing of conversations beyond that contained in the President’s [written responses to the Special Counsel’s Office].” 2/6/19 Letter, President’s Personal Counsel to Special Counsel’s Office.

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Analysis

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

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

i. First, with regard to Cohen’s false statements to Congress, while there is evidence, described below, that the President knew Cohen provided false testimony to Congress about the Trump Tower Moscow project, the evidence available to us does not establish that the President directed or aided Cohen’s false testimony. 1

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

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

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

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

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

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

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

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

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c. Intent. In analyzing the President’s intent in his actions towards Cohen as a potential witness, there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.

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

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

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

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

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

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

L. Overarching Factual Issues

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

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

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

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

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

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

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

a. Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance.1 For example, the President’s direction to McGahn to have the Special Counsel removed was followed almost immediately by his direction to Lewandowski to tell the Attorney General to limit the scope of the Russia investigation to prospective election-interference only—a temporal connection that suggests that both acts were taken with a related purpose with respect to the investigation.

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

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

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

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

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

In analyzing counsel’s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.

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

1072 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office; see also 1/29/18 Letter, President’s Personal Counsel to Special Counsel’s Office; 2/6/18 Letter, President’s Personal Counsel to Special Counsel’s Office; 8/8/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 4.

1073 2/6/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2-9. Counsel has also noted that other potentially applicable obstruction statutes, such as 18 U.S.C. § 1505, protect only pending proceedings. 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 7-8. Section 1512(c)(2) is not limited to pending proceedings, but also applies to future proceedings that the person contemplated. See Volume II, Section III.A, supra.

1074 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 1 (“[T]he President cannot obstruct ... by simply exercising these inherent Constitutional powers.” ).

1075 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n. 1.

1076 6/23/17 Letter, President’s Personal Counsel to Special Counsel’s Office, at 2 n.1 (dashes omitted); see also 8/8/18 Letter, President’s Personal Counsel to Special Counsel’s Office, at 4 (“[T]he obstruction-of-justice statutes cannot be read so expansively as to create potential liability based on facially lawful acts undertaken by the President in furtherance of his core Article II discretionary authority to remove principal officers or carry out the prosecution function.” ).

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

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

The obstruction-of-justice statute most readily applicable to our investigation is 18 U.S.C. § 1512(c)(2). Section 1512(c) provides:

(c) Whoever corruptly— blockquote: (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

No template for Blockquote found.

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

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

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

First, the text of Section 1512(c)(2) is unqualified: it reaches acts that “obstruct[], influence[], or impede[] any official proceeding” when committed “corruptly.” Nothing in Section 1512(c)(2)’s text limits the provision to acts that would impair the integrity or availability of evidence for use in an official proceeding. In contrast, Section 1512(c)(1) explicitly includes the requirement that the defendant act “with the intent to impair the object’s integrity or availability

1077 See U.S. Br., United States v. Kumar, Nos. 06–5482–cr(L), 06-5654-cr(CON) (2d Cir. filed Oct. 26, 2007), at pp. 15-28; United States v. Singleton, Nos. H-04-CR-514SS, H-06-cr-80 (S.D. Tex. filed June 5, 2006).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Given the straightforward statutory command” in Section 1512(C)(2), “there is no reason to resort to legislative history.” United States v. Gonzales, 520 U.S. 1, 6 (1997). In any event, the legislative history of Section 1512(c)(2) is not a reason to impose extratextual limitations on its reach.

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

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

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

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

The Senate Committee explained that:
[T]he purpose of preventing an obstruction of or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice.

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

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

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

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

1081 The Senate ultimately accepted the House version of the bill, which excluded an omnibus clause. See United States v. Poindexter, 951 F.2d 369, 382-383 (D.C. Cir. 1991) (tracing history of the proposed omnibus provision in the witness-protection legislation). During the floor debate on the bill, Senator Heinz, one of the initiators and primary backers of the legislation, explained that the omnibus clause was beyond the scope of the witness-protection measure at issue and likely “duplicative” of other obstruction laws, 128 Cong. Rec. 26,810 (1982) (Sen. Heinz), presumably referring to Sections 1503 and 1505.

1082 In a separate section addressing considerations unique to the presidency, we consider principles of statutory construction relevant in that context. See Volume II, Section III.B.1, infra.

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

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

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

1083 In United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), the court of appeals found the term “corruptly” in 18 U.S.C. § 1505 vague as applied to a person who provided false information to Congress. After suggesting that the word “corruptly” was vague on its face, 951 F.2d at 378, the court concluded that the statute did not clearly apply to corrupt conduct by the person himself and the “core” conduct to which Section 1505 could constitutionally be applied was one person influencing another person to violate a legal duty. Id. at 379-386. Congress later enacted a provision overturning that result by providing that “[a]s used in [S]ection 1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including by making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” 18 U.S.C. § 1515(b). Other courts have declined to follow Poindexter either by limiting it to Section 1505 and the specific conduct at issue in that case, see Brenson, 104 F.3d at 1280-1281; reading it as narrowly limited to certain types of conduct, see United States v. Morrison, 98 F.3d 619, 629-630 (D.C. Cir. 1996); or by noting that it predated Arthur Andersen’s interpretation of the term “corruptly,” see Edwards, 869 F.3d at 501-502.

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

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

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

1084 Section 1503(a) provides for criminal punishment of:

Whoever ... corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.

1085 Section 1505 provides for criminal punishment of:

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

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Finally, 18 U.S.C. § 1512(b)(3) criminalizes tampering with witnesses to prevent the communication of information about a crime to law enforcement. The nexus inquiry articulated in Aguilar—that an individual has “knowledge that his actions are likely to affect the judicial proceeding,” 515 U.S. at 599—does not apply to Section 1512(b)(3). See United States v. Byrne, 435 F.3d 16, 24-25 (1st Cir. 2006). The nexus inquiry turns instead on the actor’s intent to prevent communications to a federal law enforcement official. See Fowler v. United States, 563 U.S. 668, 673-678 (2011).

* * *

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

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

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

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

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

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

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

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

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

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of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 353-354 (discussing Franklin, Public Citizen, and Sale).

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

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

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

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

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

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

2. Separation-of-Powers Principles Support the Conclusion that Congress May Validly Prohibit Corrupt Obstructive Acts Carried Out Through the President’s Official Powers

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

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

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

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

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

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

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

But even when a power is exclusive, “Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow” the President’s act. Zivotofsky, 135 S. Ct. at 2087. For example, although the President’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-148 (1872), Congress has the authority to prohibit the corrupt use of anything of value” to influence the testimony of another person in a judicial, congressional, or agency proceeding, 18 U.S.C. § 201(b)(3)—which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all. The offer of a pardon would precede the act of pardoning and thus be within Congress’s power to regulate even if the pardon itself is not. Just as the Speech or Debate Clause, U.S. CONST. ART. I, § 6, cl.1, absolutely protects legislative acts, but not a legislator’s “taking or agreeing to take money for a promise to act in a certain way... for it is taking the bribe, not performance of the illicit compact, that is a criminal act,” United States v. Brewster, 408 U.S. 501, 526 (1972) (emphasis omitted), the promise of a pardon to corruptly influence testimony would not be a constitutionally immunized act. The application of obstruction statutes to such promises therefore would raise no serious separation- of-powers issue.

b. The Effect of Obstruction-of-Justice Statutes on the President’s Capacity to Perform His Article II Responsibilities is Limited

Under the Supreme Court’s balancing test for analyzing separation-of-powers issues, the first task is to assess the degree to which applying obstruction-of-justice statutes to presidential actions affects the President’s ability to carry out his Article II responsibilities. Administrator of General Services, 433 U.S. at 443. As discussed above, applying obstruction-of-justice statutes to presidential conduct that does not involve the President’s conduct of office—such as influencing the testimony of witnesses—is constitutionally unproblematic. The President has no more right than other citizens to impede official proceedings by corruptly influencing witness testimony. The conduct would be equally improper whether effectuated through direct efforts to produce false testimony or suppress the truth, or through the actual, threatened, or promised use of official powers to achieve the same result.

The President’s action in curtailing criminal investigations or prosecutions, or discharging law enforcement officials, raises different questions. Each type of action involves the exercise of executive discretion in furtherance of the President’s duty to “take Care that the Laws be faithfully executed.” U.S. CONST., ART. II, § 3. Congress may not supplant the President’s exercise of executive power to supervise prosecutions or to remove officers who occupy law enforcement positions. See Bowsher v. Synar, 478 U.S. 714, 726-727 (1986) (“Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. ... [Because t]he structure of the Constitution does not permit Congress to execute the laws, . . . [t]his kind of congressional control over the execution of the laws . . . is constitutionally impermissible.” ). Yet the obstruction-of-justice statutes do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct

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only when it is taken with the “corrupt” intent to obstruct justice. The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests. See Volume II, Section III.A.3, supra.

The direct effect on the President’s freedom of action would correspondingly be a limited one. A preclusion of “corrupt” official action is not a major intrusion on Article II powers. For example, the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such personal purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. And the Constitution does not mandate that the President have unfettered authority to direct investigations or prosecutions, with no limits whatsoever, in order to carry out his Article II functions. See Heckler v. Chaney, 470 U.S. 821, 833 (1985) (“Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” ); United States v. Nixon, 418 U.S. at 707 (“[t]o read the Art. II powers of the President as providing an absolute privilege [to withhold confidential communications from a criminal trial]. .. would upset the constitutional balance of a workable government and gravely impair the role of the courts under Art. III”).

Nor must the President have unfettered authority to remove all Executive Branch officials involved in the execution of the laws. The Constitution establishes that Congress has legislative authority to structure the Executive Branch by authorizing Congress to create executive departments and officer positions and to specify how inferior officers are appointed. E.g., U.S. CONST., ART. I, § 8, cl. 18 (Necessary and Proper Clause); ART. II, § 2, cl. 1 (Opinions Clause); ART. II, § 2, cl. 2 (Appointments Clause); see Free Enterprise Fund, 561 U.S. at 499. While the President’s removal power is an important means of ensuring that officers faithfully execute the law, Congress has a recognized authority to place certain limits on removal. Id. at 493-495.

The President’s removal powers are at their zenith with respect to principal officers—that is, officers who must be appointed by the President and who report to him directly. See Free Enterprise Fund, 561 U.S. at 493, 500. The President’s “exclusive and illimitable power of removal” of those principal officers furthers “the President’s ability to ensure that the laws are faithfully executed.” Id. at 493, 498 (internal quotation marks omitted); Myers, 272 U.S. at 627. Thus, there are some ‘purely executive officials who must be removable by the President at will if he is able to accomplish his constitutional role.” Morrison, 487 U.S. at 690; Myers, 272 U.S. at 134 (the President’s “cabinet officers must do his will,” and “[t]he moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay”); cf. Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (Congress has the power to create independent agencies headed by principal officers removable only for good cause). In light of those constitutional precedents, it may be that the obstruction statutes could not be constitutionally applied to limit the removal of a cabinet officer such as the Attorney General. See 5 U.S.C. § 101; 28 U.S.C. § 503. In that context, at least absent circumstances showing that the President was clearly attempting to thwart accountability for personal conduct while evading ordinary political checks and balances, even the highly limited

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regulation imposed by the obstruction statutes could possibly intrude too deeply on the President’s freedom to select and supervise the members of his cabinet.

The removal of inferior officers, in contrast, need not necessarily be at will for the President to fulfill his constitutionally assigned role in managing the Executive Branch. “[I]nferior officers are officers whose work is directed and supervised at some level by other officers appointed by the President with the Senate’s consent.” Free Enterprise Fund, 561 U.S. at 510 (quoting Edmond v. United States, 520 U.S. 651, 663 (1997)) (internal quotation marks omitted). The Supreme Court has long recognized Congress’s authority to place for-cause limitations on the President’s removal of “inferior Officers” whose appointment may be vested in the head of a department. U.S. CONST. ART. II, § 2, cl. 2. See United States v. Perkins, 116 U.S. 483, 485 (1886) (“The constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads of departments] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed”) (quoting lower court decision); Morrison, 487 U.S. at 689 n. 27 (citing Perkins); accord id. at 723-724 & n.4 (Scalia, J., dissenting) (recognizing that Perkins is “established” law); see also Free Enterprise Fund, 561 U.S. at 493- 495 (citing Perkins and Morrison). The category of inferior officers includes both the FBI Director and the Special Counsel, each of whom reports to the Attorney General. See 28 U.S.C. § 509, 515(a), 531; 28 C.F.R. Part 600. Their work is thus “directed and supervised” by a presidentially- appointed, Senate-confirmed officer. See In re: Grand Jury Investigation,_F.3d_, 2019 WL 921692, at *3-*4 (D.C. Cir. Feb. 26, 2019) (holding that the Special Counsel is an “inferior officer” for constitutional purposes).

Where the Constitution permits Congress to impose a good cause limitation on the removal of an Executive Branch officer, the Constitution should equally permit Congress to bar removal for the corrupt purpose of obstructing justice. Limiting the range of permissible reasons for removal to exclude a “corrupt” purpose imposes a lesser restraint on the President than requiring an affirmative showing of good cause. It follows that for such inferior officers, Congress may constitutionally restrict the President’s removal authority if that authority was exercised for the corrupt purpose of obstructing justice. And even if a particular inferior officer’s position might be of such importance to the execution of the laws that the President must have at-will removal authority, the obstruction-of-justice statutes could still be constitutionally applied to forbid removal for a corrupt reason.1088 A narrow and discrete limitation on removal that precluded corrupt action would leave ample room for all other considerations, including disagreement over policy or loss of confidence in the officer’s judgment or commitment. A corrupt-purpose prohibition therefore would not undermine the President’s ability to perform his Article II functions. Accordingly, because the separation-of-powers question is “whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty,” Morrison, 487 U.S. at 691, a restriction on removing an inferior officer for a

1088 Although the FBI director is an inferior officer, he is appointed by the President and removable by him at will, see 28 U.S.C. § 532 note, and it is not clear that Congress could constitutionally provide the FBI director with good-cause tenure protection. See OLC, Constitutionality of Legislation Extending the Term of the FBI Director, 2011 WL 2566125, at *3 (O.L.C. June 20, 2011) (“tenure protection for an officer with the FBI Director’s broad investigative, administrative, and policymaking responsibilities would raise a serious constitutional question whether Congress had ‘impede[d] the President’s ability to perform his constitutional duty’ to take care that the laws be faithfully executed”) (quoting Morrison, 487 U.S. at 691).

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corrupt reason—a reason grounded in achieving personal rather than official ends—does not seriously hinder the President’s performance of his duties. The President retains broad latitude to supervise investigations and remove officials, circumscribed in this context only by the requirement that he not act for corrupt personal purposes. 1089

c. Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source

Where a law imposes a burden on the President’s performance of Article II functions, separation-of-powers analysis considers whether the statutory measure “is justified by an overriding need to promote objectives within the constitutional authority of Congress.” Administrator of General Services, 433 U.S. at 443. Here, Congress enacted the obstruction-of- justice statutes to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials. Those objectives are within Congress’s authority and serve strong governmental interests.

i. Congress has Article I authority to define generally applicable criminal law and apply it to all persons including the President. Congress clearly has authority to protect its own legislative functions against corrupt efforts designed to impede legitimate fact-gathering and lawmaking efforts. See Watkins v. United States, 354 U.S. 178, 187, 206-207 (1957); Chapman v. United States, 5 App. D.C. 122, 130 (1895). Congress also has authority to establish a system of federal courts, which includes the power to protect the judiciary against obstructive acts. See U.S. CONST. ART. I, § 8, cls. 9, 18 (“The Congress shall have Power ... To constitute Tribunals inferior to the supreme Court” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers'). The long lineage of the obstruction-of-justice statutes, which can be traced to at least 1831, attests to the necessity for that protection. See An Act Declaratory of the Law Concerning Contempts of Court, 4 Stat. 487-488 § 2 (1831) (making it a crime if “any person or persons shall corruptly ... endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly ... obstruct, or impede, or endeavor to obstruct or impede, the due administration of justice therein”).

ii. The Article III courts have an equally strong interest in being protected against obstructive acts, whatever their source. As the Supreme Court explained in United States v. Nixon, a “primary constitutional duty of the Judicial Branch” is “to do justice in criminal prosecutions.” 418 U.S. at 707; accord Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 384 (2004). In Nixon, the Court rejected the President’s claim of absolute executive privilege because “the allowance of the privilege to withhold evidence that is demonstrably

1089 The obstruction statutes do not disqualify the President from acting in a case simply because he has a personal interest in it or because his own conduct may be at issue. As the Department of Justice has made clear, a claim of a conflict of interest, standing alone, cannot deprive the President of the ability to fulfill his constitutional function. See, e.g., OLC, Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 O.L.C. Op. at 356 (citing Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of Interest Problems Arising out of the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty- Fifth Amendment to the Constitution, at 2, 5 (Aug. 28, 1974)).

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relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” 407 U.S. at 712. As Nixon illustrates, the need to safeguard judicial integrity is a compelling constitutional interest. See id. at 709 (noting that the denial of full disclosure of the facts surrounding relevant presidential communications threatens “[t]he very integrity of the judicial system and public confidence in the system”).

iii. Finally, the grand jury cannot achieve its constitutional purpose absent protection from corrupt acts. Serious federal criminal charges generally reach the Article III courts based on an indictment issued by a grand jury. Cobbledick v. United States, 309 U.S. 323, 327 (1940) (“The Constitution itself makes the grand jury a part of the judicial process.” ). And the grand jury’s function is enshrined in the Fifth Amendment. U.S. CONST. AMEND. V. (“[n]o person shall be held to answer” for a serious crime “unless on a presentment or indictment of a Grand Jury”). “[T]he whole theory of [the grand jury’s] function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people,” United States v. Williams, 504 U.S. 36, 47 (1992), “pledged to indict no one because of prejudice and to free no one because of special favor.” Costello v. United States, 350 U.S. 359, 362 (1956). If the grand jury were not protected against corrupt interference from all persons, its function as an independent charging body would be thwarted. And an impartial grand jury investigation to determine whether probable cause exists to indict is vital to the criminal justice process.

* * *

The final step in the constitutional balancing process is to assess whether the separation- of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article Il functions. See Administrator of General Services, 433 U.S. at 443; see also Morrison, 487 U.S. at 691-693, 695-696; United States v. Nixon, 418 U.S. at 711-712. In the case of the obstruction-of-justice statutes, our assessment of the weighing of interests leads us to conclude that Congress has the authority to impose the limited restrictions contained in those statutes on the President’s official conduct to protect the integrity of important functions of other branches of government.

A general ban on corrupt action does not unduly intrude on the President’s responsibility to “take Care that the Laws be faithfully executed.” U.S. CONST. ART II, § 3.1090 To the contrary, the concept of “faithful execution” connotes the use of power in the interest of the public, not in the office holder’s personal interests. See 1 Samuel Johnson, A Dictionary of the English Language 763 (1755) (“faithfully” def. 3: “[w]ith strict adherence to duty and allegiance”). And immunizing the President from the generally applicable criminal prohibition against corrupt obstruction of official proceedings would seriously impair Congress’s power to enact laws “to promote objectives within [its] constitutional authority,” Administrator of General Services, 433 U.S. at 425—i.e., protecting the integrity of its own proceedings and the proceedings of Article III courts and grand juries.

1090 As noted above, the President’s selection and removal of principal executive officers may have a unique constitutional status.

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Accordingly, based on the analysis above, we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.1091

3. Ascertaining Whether the President Violated the Obstruction Statutes Would Not Chill his Performance of his Article II Duties

Applying the obstruction statutes to the President’s official conduct would involve determining as a factual matter whether he engaged in an obstructive act, whether the act had a nexus to official proceedings, and whether he was motivated by corrupt intent. But applying those standards to the President’s official conduct should not hinder his ability to perform his Article II duties. Cf. Nixon v. Fitzgerald, 457 U.S. at 752-753 & n.32 (taking into account chilling effect on the President in adopting a constitutional rule of presidential immunity from private civil damages action based on official duties). Several safeguards would prevent a chilling effect: the existence of settled legal standards, the presumption of regularity in prosecutorial actions, and the existence of evidentiary limitations on probing the President’s motives. And historical experience confirms that no impermissible chill should exist.

a. As an initial matter, the term “corruptly” sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an “improper advantage for [him]self or someone else, inconsistent with official duty and the rights of others.” BALLENTINE’S LAW DICTIONARY 276 (3d ed. 1969); see United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015); Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). That standard parallels the President’s constitutional obligation to ensure the faithful execution of the laws. And virtually everything that the President does in the routine conduct of office will have a clear governmental purpose and will not be contrary to his official duty. Accordingly, the President has no reason to be chilled in those actions because, in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive.

That point is illustrated by examples of conduct that would and would not satisfy the stringent corrupt-motive standard. Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding that directly and adversely affected the President’s financial interests for the purpose of protecting those interests. In those examples,

1091 A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. I, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.” ).

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official power is being used for the purpose of protecting the President’s personal interests. In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings. For instance, the President’s decision to curtail a law-enforcement investigation to avoid international friction would not implicate the obstruction-of-justice statutes. The criminal law does not seek to regulate the consideration of such political or policy factors in the conduct of government. And when legitimate interests animate the President’s conduct, those interests will almost invariably be readily identifiable based on objective factors. Because the President’s conduct in those instances will obviously fall outside the zone of obstruction law, no chilling concern should arise.

b. There is also no reason to believe that investigations, let alone prosecutions, would occur except in highly unusual circumstances when a credible factual basis exists to believe that obstruction occurred. Prosecutorial action enjoys a presumption of regularity: absent “clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Armstrong, 517 U.S. at 464 (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15 (1926)). The presumption of prosecutorial regularity would provide even greater protection to the President than exists in routine cases given the prominence and sensitivity of any matter involving the President and the likelihood that such matters will be subject to thorough and careful review at the most senior levels of the Department of Justice. Under OLC’s opinion that a sitting President is entitled to immunity from indictment, only a successor Administration would be able to prosecute a former President. But that consideration does not suggest that a President would have any basis for fearing abusive investigations or prosecutions after leaving office. There are “obvious political checks” against initiating a baseless investigation or prosecution of a former President. See Administrator of General Services, 433 U.S. at 448 (considering political checks in separation-of-powers analysis). And the Attorney General holds “the power to conduct the criminal litigation of the United States Government,” United States v. Nixon, 418 U.S. at 694 (citing 28 U.S.C. § 516), which provides a strong institutional safeguard against politicized investigations or prosecutions. 1092

1092 Similar institutional safeguards protect Department of Justice officers and line prosecutors against unfounded investigations into prosecutorial acts. Prosecutors are generally barred from participating in matters implicating their personal interests, see 28 C.F.R. § 45.2, and are instructed not to be influenced by their “own professional or personal circumstances,” Justice Manual § 9-27.260, so prosecutors would not frequently be in a position to take action that could be perceived as corrupt and personally motivated. And if such cases arise, criminal investigation would be conducted by responsible officials at the Department of Justice, who can be presumed to refrain from pursuing an investigation absent a credible factual basis. Those facts distinguish the criminal context from the common-law rule of prosecutorial immunity, which protects against the threat of suit by “a defendant [who] often will transform his resentment at being prosecuted into the ascription of improper and malicious actions.” Imbler v. Pachtman, 424 U.S. 409, 425 (1976). As the Supreme Court has noted, the existence of civil immunity does not justify criminal immunity. See O’shea v. Littleton, 414 U.S. 488, 503 (1974) (“Whatever may be the case with respect to civil liability generally, ... we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivation of constitutional rights.”) (citations omitted).

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These considerations distinguish the Supreme Court’s holding in Nixon v. Fitzgerald that, in part because inquiries into the President’s motives would be “highly intrusive,” the President is absolutely immune from private civil damages actions based on his official conduct. 457 U.S. at 756-757. As Fitzgerald recognized, “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.” Fitzgerald, 457 U.S. at 754 n.37; see Cheney, 542 U.S. at 384. And private actions are not subject to the institutional protections of an action under the supervision of the Attorney General and subject to a presumption of regularity. Armstrong, 517 U.S. at 464.

c. In the rare cases in which a substantial and credible basis justifies conducting an investigation of the President, the process of examining his motivations to determine whether he acted for a corrupt purpose need not have a chilling effect. Ascertaining the President’s motivations would turn on any explanation he provided to justify his actions, the advice he received, the circumstances surrounding the actions, and the regularity or irregularity of the process he employed to make decisions. But grand juries and courts would not have automatic access to confidential presidential communications on those matters; rather, they could be presented in official proceedings only on a showing of sufficient need. Nixon, 418 U.S. at 712; In re Sealed Case, 121 F.3d 729, 754, 756-757 (D.C. Cir. 1997); see also Administrator of General Services, 433 U.S. at 448-449 (former President can invoke presidential communications privilege, although successor’s failure to support the claim “detracts from [its] weight”).

In any event, probing the President’s intent in a criminal matter is unquestionably constitutional in at least one context: the offense of bribery turns on the corrupt intent to receive a thing of value in return for being influenced in official action. 18 U.S.C. § 201(b)(2). There can be no serious argument against the President’s potential criminal liability for bribery offenses, notwithstanding the need to ascertain his purpose and intent. See U.S. CONST. ART. I, § 3; ART. II, § 4; see also Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. at 357 n.11 (“Application of § 201[to the President] raises no separation of powers issue, let alone a serious one.”).

d. Finally, history provides no reason to believe that any asserted chilling effect justifies exempting the President from the obstruction laws. As a historical matter, Presidents have very seldom been the subjects of grand jury investigations. And it is rarer still for circumstances to raise even the possibility of a corrupt personal motive for arguably obstructive action through the President’s use of official power. Accordingly, the President’s conduct of office should not be chilled based on hypothetical concerns about the possible application of a corrupt-motive standard in this context.

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In sum, contrary to the position taken by the President’s counsel, we concluded that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that “[n]o [person] in this

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country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882); see also Clinton v. Jones, 520 U.S. at 697; United States v. Nixon, supra.

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IV. CONCLUSION

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state1. 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.

DMU Timestamp: April 17, 2019 03:12