April 2019 to June 2019
In April 2019, the DOJ releases a redacted version of special counsel Robert Mueller’s final report. The report is missing any counterintelligence findings from federal law enforcement, all grand jury testimony compiled by the special counsel’s office, and all information about the fourteen criminal investigations referred to other jurisdictions by Mueller and his team. The report does, however, provide overwhelming evidence that the Trump campaign colluded with Kremlin agents, even as it notes that it cannot establish beyond a reasonable doubt that the campaign conspired with the IRA or GRU in particular. A thousand former federal prosecutors of both parties opine in a public letter that the report proves that Trump obstructed justice—an impeachable offense.
On April 18, 2019, a redacted version of special counsel Robert Mueller’s final report (the “Mueller Report”) is released to the public. All told, the Department of Justice has made 946 redactions from Mueller’s 448-page document, totaling approximately 8 percent of the report, according to CNN.1 Because most of the redactions are in the report’s first volume, a 198-page document that focuses on the possibility of a pre-election Trump-IRA or Trump-GRU conspiracy to commit computer crimes or defraud the United States—and because even the redactions in the second, obstruction-of-justice-focused volume of the report appear to be those items most relevant to the “conspiracy” question—approximately 15 percent of the information needed to understand the results of the special counsel’s conspiracy probe has been elided from the report. A separate analysis of the report by the Wall Street Journal concludes that 12 percent of the report has been redacted, meaning that nearly 20 percent of the material relevant to the special counsel’s conspiracy investigation has been removed.2 The report contains no counterintelligence findings, quotations from grand jury testimony, or evidence critical to ongoing federal investigations; it lacks, too, any information that President Trump’s attorney general, William Barr, deemed overly embarrassing to parties not charged with any crime.3 Though Federal Rule of Criminal Procedure 6(e) allows Barr to seek a court order to release all grand jury transcripts from the special counsel’s investigation, he declines to do so, implying under oath in May 2019 testimony before Congress that he believes—erroneously—that Rule 6(e) is a prohibition against publishing grand jury materials under any and all circumstances.4
Prior to the release of the Mueller Report, Barr had issued a four-page letter summarizing his view of the report’s conclusions and declaring that, in his estimation, President Trump had not committed obstruction of justice; he relies in part on his legal opinion that there can be no obstruction of justice without an underlying crime. It will later be revealed that Mueller sent a letter to the Department of Justice in response to Barr’s prefatory letter, complaining that the attorney general’s summary had failed to “capture the context, nature, and substance” of the special counsel office’s “work and conclusions,” and that the result of Barr’s errors was “public confusion about critical aspects of the results of [the] investigation.”5 Mueller adds that Barr’s actions “threaten[] to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the [conspiracy and obstruction] investigations.”6 The near-universal opinion of legal scholars in reaction to Barr’s claim that obstruction cannot be charged without an underlying crime is that, as a matter of long-standing legal precedent, the attorney general is incorrect.7
Despite the report explicitly distinguishing between “conspiracy,” the narrow statutory offense the special counsel’s office investigated, and “collusion,” a lay term with broad implications that Mueller did not consider in his nearly two years of work, Barr will falsely declare at a press conference after the report’s release that the report found “no collusion” between Trump or his campaign and Russian nationals. “As [Trump] said from the beginning, there was, in fact, no collusion,” Barr declares.8 As discussed earlier (see Introduction), “collusion” is a term under whose umbrella many criminal statutes may be considered to reside, including a number outside the purview of the special counsel’s investigation, such as bribery, aiding and abetting, solicitation of foreign campaign donations, and money laundering.9
Volume 1 of the Mueller Report addresses a narrow question: whether the special counsel’s office found proof beyond a reasonable doubt of any of four pre-election crimes, specifically conspiracy to commit computer crimes, conspiracy to defraud the United States, criminal violations of the Foreign Agents Registration Act (FARA), or a criminal violation of the ban on foreign campaign donations (though this last assessment is applied by the special counsel only to the June 9, 2016, meeting at Trump Tower between Paul Manafort, Donald Trump Jr., Jared Kushner, and several individuals connected to the Russian government).10 The volume does not consider other federal criminal statutes undergirded by “collusive” contact between Americans and foreign nationals. Nor does it apply any standard of proof besides the highest standard in U.S. law, “beyond a reasonable doubt”; as the report includes no counterintelligence findings, it does not apply the much lower “preponderance of the evidence” standard—the standard relevant to the identification of compromised persons and the redress of ongoing national security threats—to any of the events considered by the report.11 As noted by Fordham law professor Jed Shugerman in the New York Times, “preponderance of the evidence” is likewise the appropriate standard of proof for a noncriminal proceeding like impeachment, whose ultimate penalty is merely loss of employment and authority rather than loss of liberty.12
On the first page of the report, the special counsel’s office announces that its investigation “established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts.”13 The report adds that the “investigation established that several individuals affiliated with the Trump Campaign lied to the [special counsel’s] Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.”14 Explaining in detail the nature of the “material impairment” caused by Trump campaign deception, the report notes that “the investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation … [because] [s]ome individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information … in light of Department of Justice policies. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators … [and] [e]ven when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete … [a]nd the Office faced practical limits on its ability to access relevant evidence as well—numerous witnesses and subjects lived abroad, and documents were held outside the United States. Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts. Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”15 According to CNN, the report identifies a minimum of seventy-seven lies told by Trump campaign aides, advisers, and associates, many on matters the truth of which the special counsel’s office was never able to ascertain. Other possible lies or half-truths—including the hundreds of instances in which Trump, his campaign staff, or transition officials told Congress or the special counsel they “couldn’t recall” a fact investigators might have expected a witness to recall—had to be left “as is” in the report.16
The special counsel’s office notes that it “did not … investigate every public report of a contact between the Trump Campaign and Russian-affiliated individuals and entities.”17 An appendix to the report lists fourteen federal criminal cases that have been referred to other federal jurisdictions and prosecutors for further consideration and possible prosecution; only two of these referred cases are revealed to the public, however, with summaries of the rest being redacted in their entirety.18 Given the narrow scope of the main inquiry, it is unsurprising that “the Office periodically identified evidence of potential criminal activity that was outside the scope of the Special Counsel’s authority … [which] the Office referred … to appropriate law enforcement authorities.”19 As of summer 2019, it is therefore unknown whether any of these referred but unnamed cases involve non-conspiracy “collusive” activity connected to the Trump campaign, transition, or administration.
One indication of the limited scope of the report is that in its 448 pages, MBZ’s name appears only four times, Thomas Barrack’s name just twice, and Michael Flynn Jr.’s and Abdel Fattah el-Sisi’s names but once each. Other names, like Bijan Kian or Ekim Alptekin, appear only in appendices. Among the many names relevant to Trump and his inner circle’s acts of international collusion that appear nowhere in the body of the Mueller Report are Elliott Broidy, Mohammed bin Salman (MBS), Mohammed bin Nayef, Joel Zamel, Yousef al-Otaiba, Jon Iadonisi, Jamal Khashoggi, Mohammed Dahlan, Ahmed al-Assiri, Saud al-Qahtani, Alexander Rovt, George Birnbaum, Eli Groner, Benjamin Netanyahu, Dmitry Rybolovlev, Alexander Nix, Mark Turnbull, Jho Low, Howard Lorber, David Pecker, Hamad bin Jassim bin Jaber Al Thani (HBJ), Franklin Haney, Viktor Vekselberg, Curt Weldon, Andrii Artemenko, Dana Rohrabacher, Nastya Rybka (Anastasia Vashukevich), Prince Salman bin Hamad (the crown prince of Bahrain), Alexander Torshin, Maria Butina, Lisa Korbatov, Matthew Whitaker, Randy Credico, Hussain Sajwani, Ahmed al-Rumaihi, and King Salman of Saudi Arabia. Indeed, the kingdom of Saudi Arabia is mentioned only once in the report—a passing reference to a flight President Trump took that departed from Riyadh.
The special counsel’s office acknowledges that during the course of its nearly two-year investigation into the 2016 Trump campaign it “identif[ied] foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission … not all of which is contained in this Volume.”20 Consequently, the report does not reveal whether, under the preponderance of the evidence (“more likely than not”) standard used in counterintelligence cases to determine the likelihood of an individual posing a national security threat, Donald Trump or any individuals still in the White House as of the summer of 2019—for instance, Jared Kushner—present a danger to the United States by virtue of having been compromised, for any reason and in any fashion, by a foreign power or entity.21 Finally, the report notes that it discovered evidence that “other Russian entities” besides the two government actors whose possible role in a Trump-Russia conspiracy it considered—the IRA and the GRU—“engaged in active measures operations targeting the United States” during the 2016 presidential campaign, and that this evidence has been “shared … with other offices in the Department of Justice and FBI” for further review.22
These numerous and significant investigative limitations and obstacles noted, the special counsel’s office reports that it has not established beyond a reasonable doubt that the Trump campaign engaged in a before-the-fact conspiracy with either the Internet Research Agency or Russian military intelligence. These two specific allegations had, notwithstanding the report’s emphasis on them, been largely absent from major-media discourse in the two years preceding the report’s release. One reason for the special counsel’s particular focus on these two possible crimes is that it limited itself to “the framework of conspiracy law” and to interactions between Trump, his aides, his allies, his advisers, and his associates with Russian government entities rather than with Russian nationals generally (or with nationals of other countries, whether in government service or not).23
While not finding sufficient evidence—in the evidence available to the special counsel’s office—to establish a criminal conspiracy beyond a reasonable doubt, the report does identify “a series of contacts between Trump Campaign officials and individuals with ties to the Russian government … [these] contacts consisted of business connections, offers of assistance to the Campaign, invitations for candidate Trump and Putin to meet in person, invitations for Campaign officials and representatives of the Russian government to meet, and [meetings on] policy positions seeking improved U.S.-Russian relations.”24 The report finds, too, that in June 2016, as the revelation of Russian hacking was becoming public, “the Campaign anticipated receiving information from Russia that could assist candidate Trump’s electoral prospects,” specifically in the form of “official documents and information that would incriminate” Clinton.25 Weeks later, shortly after WikiLeaks posted thousands of emails stolen from the DNC on its website, and just after “public reporting that U.S. intelligence agencies had ‘high confidence’ that the Russian government was behind the theft of emails and documents from the DNC,” candidate Trump publicly asked the Russian government to conduct further hacks to locate and publish any Clinton emails it could find. By July 31, 2016, these events, coupled with two more of great significance—Papadopoulos telling an Australian diplomat the Trump campaign knew the Kremlin had Clinton emails, and months of intelligence from seven allied intelligence agencies revealing previously unknown “contacts between Trump’s inner circle and Russians”—had led to an FBI investigation into “potential coordination between the Russian government and individuals associated with the Trump Campaign.”26 The nations whose intelligence agencies the FBI relied upon in opening an investigation of the Trump campaign are France, the United Kingdom, the Netherlands, Australia, Germany, Estonia, and Poland.27
Despite its narrow legal scope, the report implies that, while it did not find pre-election violations of conspiracy law in the Trump-Russia contacts it identified, it cannot say the same of the notion of “two parties [the Trump campaign and the Kremlin] taking actions that were informed by or responsive to the other’s actions or interests.”28 Consequently, the report is silent as to the commission, by members of the Trump campaign, of felonies that do not require a “tacit or express agreement”—which the federal conspiracy statute does—but instead can be violated when “two parties tak[e] actions … informed by or responsive to the other’s actions or interests,” such as in the federal bribery and aiding and abetting statutes.29
As to allegations that Trump sought to thwart, through deceitful words and clandestine actions, any federal investigation of his, his family’s, and his associates’ pre-election ties to the Kremlin and Kremlin agents—as well as encouraging deceit, secrecy, and malfeasance by his subordinates—the Mueller Report concludes that “the evidence does point to a range of … possible personal motives animating the president’s conduct … [including] uncertainty about whether certain events … could be seen as criminal activity by the President, his campaign, or his family.”30 It adds that the special counsel considered not only “whether the President had a motive [to obstruct justice] related to Russia-related matters that an FBI field investigation could uncover” but also whether Trump was afraid of “other conduct that could come to light as a result of the FBI’s Russian-interference investigation,” including, but not limited to, revelations regarding pre-election “campaign-finance offenses”—a category that would include not only hush-money payments made to former mistresses but payments made illegally to Trump, or on Trump’s behalf, by foreign nations during the 2016 presidential campaign or presidential transition.31 Mueller concludes that “the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.”32 The special counsel’s reference to “a thorough FBI investigation” seems to acknowledge that the Mueller Report is not, in itself, that investigation. As to other possible offenses Trump may have believed could be revealed as a result of the Russia investigation, Mueller notes that Trump felt the investigation was specifically hindering his ability to execute his preferred foreign policy in three locations around the world: Russia, China, and the Middle East.33
The Middle East may well have been of particular concern to the president during the week the special counsel was appointed. Trump’s references, in conversations with aides, to losing some of his “authority with foreign leaders” because of his status as the subject of a federal criminal investigation would likely have included the two foreign leaders he was scheduled to meet in Riyadh just forty-eight hours after Mueller’s appointment: King Salman of Saudi Arabia and his son, Mohammed bin Salman.34 Mueller notes that Trump, during the period of time reviewed by the special counsel’s office, was also “particularly” concerned about the state of his relationship with Vladimir Putin, an observation seemingly confirmed by Trump having told Sergey Lavrov and Sergey Kislyak in the Oval Office the day after he fired FBI director James Comey that “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.… I’m not under investigation.”35 Notably, the Oval Office meeting with Lavrov and Kislyak—which Trump and Putin had agreed upon during a May 2 phone call—was officially confirmed by the White House and the Kremlin on the very day Trump decided to fire Comey.36
The decision to terminate Comey’s employment had led White House counsel Don McGahn’s chief of staff, Annie Donaldson, to write in her early May 2017 notes, “Is this the beginning of the end?”—a statement she later explained to Mueller as referring to the end of Trump’s presidency.37 Donaldson’s concern may have been caused in part by the fact that Trump had previously told McGahn that a president has the “authority to terminate [an FBI director] without cause,” which the White House counsel’s office may have read as a confession that Trump did not believe he had any legally permissible cause to fire Comey.38 Trump’s advisers, including Steve Bannon, had previously told the president that he “could not fire Comey” because he had waited too long to do so to credibly claim that Comey’s performance during the Obama administration was the cause of his dismissal.39
As to whether Trump’s conduct in this and other episodes in which he sought to thwart the investigation of his campaign, transition, and administration constitutes felony obstruction or felony witness tampering, the report concludes that while both statutes are fully applicable to presidential conduct—a legal premise to which the president’s counsel had strenuously objected—it will nevertheless “not … make a traditional prosecutorial judgment” on the grounds that there are constitutional remedies other than indictment when a president misbehaves.40 However, the report underscores that it “does not exonerate” Trump of allegations of obstruction and witness tampering, and that, while acts that aim to corruptly interfere with ongoing federal investigations need not successfully cause interference to be criminal, “the President’s efforts to influence the [Russia] investigation were mostly unsuccessful … largely because the persons who surrounded the President declined to carry out orders or accede to his requests”—an observation suggesting that the natural effect of Trump’s orders and requests would indeed have been significant interference with the special counsel’s investigation had they been carried out.41
The report emphasizes that one of the obstacles Mueller faced in investigating Trump-Russia ties was the president himself. After the special counsel’s office submitted written questions for Trump—the president having broken his promise to speak to the office face-to-face just a year after making that promise in the White House Rose Garden—Mueller records that he “informed [Trump’s] counsel of the insufficiency of [the president’s] responses,” noting both that some were “incomplete or imprecise” and that “the President stated on more than 30 occasions that he ‘does not recall’ or ‘remember’ or have an ‘independent recollection’ of [the] information called for.”42 Mueller further opines that the president “declined” to either answer follow-up questions, have his recollection “refresh[ed]” by investigators, or let investigators “clarify the extent or nature of his lack of recollection.”43 This refusal stood even when the special counsel informed the president, who had consistently declared his innocence as to all allegations involving Russia and obstruction of justice, that his written answers were on the whole “inadequate.”44
Writing on the president’s “inadequate” responses to its interrogatories, the special counsel’s office observes that “In his written answers, the President did not provide details about the timing and substance of his discussions with Cohen about the [Trump Tower Moscow] project and gave no indication that he had decided to no longer pursue the project. 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 to answer additional questions.”45 One of the most important questions the special counsel asked Trump was whether he had participated in a money-for-policy quid pro quo with the Kremlin: “Did you intend to communicate … at any … time during the campaign a willingness to lift sanctions and/or recognize Russia’s annexation of Crimea if you were elected? What consideration did you give to lifting sanctions and/or recognizing Russia’s annexation if you were elected? Describe who you spoke with about this topic, when, the substance of the discussion(s).”46 Trump refused to offer any answers to these questions at all, one of the few cases in which he did not even attempt a reply.47
In his written answers to the special counsel’s interrogatories, Trump also denies any knowledge of pre-election conversations his family or anyone connected to his campaign may have had establishing a quid pro quo with nations other than Russia—for instance, Saudi Arabia, the UAE, or Israel—telling the special counsel, “I have no recollection of being told during the campaign that any foreign government or foreign leader had provided, wished to provide, or offered to provide tangible support to my campaign.”48 By his answer, Trump expresses that not only did his son Don conceal from him any information about his June 9, 2016, Trump Tower meeting with Kremlin agents for the entirety of the 2016 campaign, but that Don took the same tack with respect to his meeting with Nader, Prince, Miller, and Zamel at Trump Tower on August 3, 2016.
Trump offers the same response with respect to whether his friend and longtime adviser Roger Stone ever told him, during any of their numerous phone calls during the campaign, about the critical information he had received regarding the timing of WikiLeaks’ release of stolen Democratic materials: “I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the[ir] release.… I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with [WikiLeaks, Guccifer 2.0, or DCLeaks] … regarding the content or timing of release of hacked emails.”49 In fact, Trump told Mueller he had “no recollection of any of the specifics of any conversations I had with Mr. Stone between June 1, 2015, and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign.”50 Trump’s answer to another question indicates that, just as he claimed his son had never told him about his June 9 or August 3 meetings at Trump Tower, Don Jr. also had withheld from his father—despite discussing it with other members of the campaign—his September 2016 contacts with WikiLeaks, with Trump telling Mueller, “I do not recall being aware during the campaign of any communications between [Stone, Don Jr., Manafort, or Gates] … and anyone I understood to be a representative of WikiLeaks.”51
Michael Cohen’s voluminous testimony to the contrary, Trump tells Mueller—under penalty of a federal felony—that he “do[es] not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the [Trump-Rozov] Letter of Intent.”52 Just so, despite his years-long relationship with the Agalarov family, whose patriarch has received one of the highest civilian honors the Kremlin can bestow—and indeed received it directly from Putin’s hand—Trump tells the special counsel that he has “no meaningful relationship with people in power in Russia.”53 Nor was Trump, by his own account, in any way advised by Paul Manafort on issues relating to either Ukraine or Russia, despite Manafort’s expertise on these topics being a key part of the job application he sent to Trump in late February 2016, and Trump and Manafort having stayed in contact for months while Manafort was discussing Ukraine and sanctions relief with a former Russian intelligence agent: “I do not remember Mr. Manafort communicating to me any particular positions Ukraine or Russia would want the United States to support.”54 Trump’s insistence that he never spoke to Manafort about either Ukraine or Russia, contradicted by major-media reporting, would leave open, if true, the question of why Trump was so concerned by the possibility of Manafort “flip[ping]” on him in the Russia investigation.55
Despite eighteen of his family members and closest political aides and associates having direct pre-election contact with Russian nationals—Manafort, Flynn, Gates, Trump Jr., Kushner, Papadopoulos, Page, Sessions, Gordon, Stone, Caputo, Prince, Cohen, Hicks, Sater, (Avi) Berkowitz, social media director Dan Scavino, and even his daughter Ivanka—Trump tells the special counsel that he “do[es] not recall being told during the campaign of efforts by Russian officials to meet with me or with senior members of my campaign.”56 At least one of these individuals, Cohen, has made public statements, as well as statements to the special counsel, contradicting Trump’s account, while others have offered accounts of varying improbability about having kept all their pre-election contacts with Russian nationals from the GOP presidential candidate.
Trump’s inability to recall any information of substance about his conversations with key advisers during the presidential campaign mirrors his son’s inability to recall many of his own conversations during the campaign. In his testimony before the Senate Judiciary Committee, Trump Jr. told the senators he “couldn’t remember” or “didn’t know” the answer to a question 186 times.57
Apropos of this litany of accounts of Trump being kept in the dark by members of his inner circle, the Mueller Report details the president’s habit of communicating the fact that he is “pleased” with a Russia-probe witness’s public statements or testimony either directly, through counsel, or on social media; in the narrative of events outlined by the report, both Michael Cohen and Jared Kushner receive such a message from the president.58 In the case of Cohen’s congressional testimony, the report further details how Trump’s personal counsel ensured that additional “communications with Russia and more communications with candidate Trump” would be elided from Cohen’s sworn statement.59 According to Cohen, Trump’s attorney told him to “stay on message and not contradict the president” by “keeping Trump out of the narrative,” and that Cohen listing in his statement all his contacts with Russia on Trump’s behalf—as requested by Congress—would unacceptably “muddy the water.”60 Cohen told Mueller that he consequently lied to Congress, a federal felony, because “it was what he was expected to do” by Trump and his legal team.61 Moreover, Cohen’s joint defense agreement with Trump’s legal team allowed the team to unilaterally remove from Cohen’s draft of his statement sentences such as “The [Trump Tower Moscow] building project led me to make limited contacts with Russian government officials,” even as sentences that were manifestly untrue—such as Cohen’s claim he could “not recall any response to any email to [Putin lieutenant Dmitry Peskov], nor any other contacts by me with Mr. Peskov or other Russian government officials”—were left untouched by Trump’s lawyers.62 This conduct mirrors Trump’s removal of potentially inculpatory evidence from his son Don’s statement about his June 9, 2016, meeting with Kremlin agents in Trump Tower. In that instance, candidate Trump personally “delet[ed] a line [in the statement] that acknowledged that the [June 9] meeting was with ‘an individual who [Trump Jr.] was told might have information helpful to the campaign.’”63
Among the Trump team’s interferences with Cohen’s congressional testimony, perhaps most startling was its insistence that Cohen not reveal to Congress that Trump “told Cohen to reach out to Putin’s office” about “a meeting between Trump and Putin in New York during the 2015 United Nations General Assembly,” as well asking him to hide the additional fact that, after his 2015 directive to Cohen to connect him with Putin, Trump “asked him multiple times for updates on the proposed meeting.”64 The private meeting Trump sought with Putin would have occurred while Trump was being aided by a Kremlin intermediary, Felix Sater, in negotiations to build a tower in Moscow that could net Trump—whose total net worth in 2015 was $4.5 billion, per Forbes—more than $1 billion in revenue. The idea of effectuating such a deal during a presidential election was so unprecedented and deeply problematic that Putin’s office had to scold Trump through his attorney, telling Cohen that “it would not follow proper protocol for Putin to meet with Trump.”65 Putin would instead meet with Trump’s top national security advisor, Michael Flynn, in Moscow ninety days later.
According to Cohen, Trump was also responsible for his removing from his congressional testimony a May 2016 discussion he had with Trump about whether Trump would travel to Russia during the presidential campaign to complete negotiations over his $1 billion Russian tower, a trip Trump told Cohen he would take—regardless, apparently, of any effect on his presidential campaign—if the tower deal was “lock[ed] and load[ed]” for him by Cohen. “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,” according to the report.66
As recounted by the special counsel’s office, throughout Cohen’s interactions with Trump’s attorneys he was told that he would be “protected” by Trump, and Trump would “[have] his back,” but only if he “stayed on message” and never “went rogue”—in other words, never contradicted the “script” or “talking points” Cohen said he had “developed with President-Elect Trump and others” to put reporters off the scent of the Trump Tower Moscow project.67 According to Mueller’s summary of Cohen’s statements to the special counsel’s office, Trump “knew [the talking points] were untrue.”68 According to the report, “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.”69 All told, Cohen briefed Trump on the project six times between February and June 2016—after numerous briefings from the fall of 2015 through January 2016—with some of those briefings being initiated by Trump and some involving Cohen updating Trump on his contacts with the Kremlin.70
The report presents Trump as someone who angrily denies—even in private conversation—having done things he knows he has done. For instance, in February 2018, according to the Mueller Report, Trump told Rob Porter that a New York Times story about him wanting to fire Mueller was “bullshit” when his actions and words in other contexts confirm that he knew the Times story was true.71 At another point, the report recounts Trump calling White House counsel Don McGahn a “lying bastard” for accurately memorializing Trump’s conduct in notes he produced as part of his professional work product.72 Despite Trump’s subsequent protestations in public and in private, the Mueller Report details how he did indeed “discuss[] ‘knocking out Mueller’” from the Russia probe by means of what his own advisers termed “silly,” “not real,” and “ridiculous” accusations of a conflict of interest.73
The report underscores, moreover, that Trump took many of his actions in the face of strenuous opposition and contrary advice by both his top advisers and his legal team. After a Trump-Comey phone call in April 2017, Donaldson wrote in her notes that the “[president] Called Comey—[on the] Day we told him not to?”74 The next month, McGahn explicitly told Trump any attempt to “knock[] out Mueller” would be “another fact used to claim obstruction of justice” by the president; nevertheless, Trump persisted in his clandestine efforts to engineer Mueller’s ouster.75 The month after that, “the President made … calls to McGahn [about firing Mueller for alleged conflicts of interest] after McGahn had specifically told the President that the White House Counsel’s Office—and McGahn himself—could not be involved in pressing conflicts claims and the President should consult with his personal counsel if he wished to raise conflicts.”76 This pattern of behavior results in a report that finds that Trump on multiple occasions acted “against the advice of White House advisers” who had told him that his planned actions “could be perceived as improper interference in an ongoing investigation”—in other words, obstruction of justice.77 In establishing Trump’s state of mind following such admonitions, Mueller notes that in at least one instance Trump engaged in problematic behavior “even though he knew [attorneys from the White House counsel’s office] had advised against” it.78 Deputy director of the National Security Agency Richard Ledgett, a recipient of one of Trump’s inappropriate, advised-against phone calls, called the resultant conversation “the most unusual thing that he had experienced in 40 years of government service.”79
In all, the report paints the picture of a man surrounded by two types of aides, allies, and associates: those who will maintain under any circumstances that they have never transmitted inculpatory information to Trump or received any such information from him, and those who have given or received such information and will reveal it, but only under subpoena and even then only after great effort has been expended by law enforcement. Meanwhile, Trump himself is cast as a man who—even in his private dealings—fluidly underwrites his self-narrative with a lifetime of venal instincts and is perpetually rewriting his own actions, once they are completed, to eliminate from his personal history any hint of malfeasance. Taken as a whole, the report suggests that if at any time Trump had knowledge of the Red Sea Conspiracy he quite possibly could have eliminated it from his memory, and if at any time any of his aides, allies, or associates had any such knowledge they might well either deny transmitting it to their boss or, if in legal extremis, grudgingly acknowledge doing so and provide only the barest fraction of the inculpatory information in their possession. The need for the public to see a detailed counterintelligence report on the pre- and post-election actions of Trump and his inner circle in the areas of Russian and Middle Eastern affairs—a report that would, presumably, have access to methods of intelligence-gathering able to circumvent both idiosyncratic memory loss and misguided loyalty—is underscored by the contents of the Mueller Report.
Just so, the report explicitly commends its evidence to Congress for further consideration, stating that “Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office”—one of the report’s several unambiguous references to the process of impeachment.80 The special counsel’s office declares that its refusal to make a “traditional prosecution or declination decision” is based in part on its fear of “preempt[ing] constitutional processes for addressing presidential misconduct,” another apparent reference to impeachment, given that a subsequent footnote raises the possibility of a president being “removed from office … by impeachment” as a means of redressing presidential malfeasance without a DOJ prosecution.81 The self-declared purpose of the report’s obstruction investigation is, therefore, to “preserve the evidence” relating to that federal offense.82 “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” the report observes, notably declining to make any such statement.83
The report’s declared inability to establish beyond a reasonable doubt “that the President was involved in an underlying crime related to Russian election interference” leaves untouched the question of whether Trump in 2015, 2016, or 2017 either established a money-for-policy quid pro quo with Russian or Middle Eastern individuals—of which quid pro quo Russian election interference would have been merely a symptom rather than the cause—or, alternatively or in addition, aided and abetted Russian, Saudi, Emirati, or Israeli election interference by promising policy rewards, sanctions relief, or future payment to foreign nationals he knew were already in the midst of such illicit activities.84