OBSTRUCTION & COVERUP

Let us begin by committing ourselves to the truth

to see it like it is, and tell it like it is,

to find the truth, to speak the truth,

and to live the truth.

– Richard M. Nixon, August 8, 1968

Richard Nixon ironically spoke these words while accepting the RNC nomination for President, six years (almost to the day) prior to his resignation from the presidency to avoid being impeached for obstruction of justice and other crimes related to the Watergate scandal.  The Washington Post reporter Bob Woodward later observed that when you understand Nixon’s participation in  the coverup, “you understand that Richard Nixon lied. That he was a criminal.” The facts show that Trump is going down the same path as Nixon.

The attempts by Trump and his team to derail the investigations into their suspected collusion with Russia in attacking our election process are chargeable as federal and state crimes of obstruction of justice. Trump’s firing of officials leading the investigations, the memory lapses, misrepresentations, and failures to disclose show that there is something Trump and his team desperately want to hide. Indeed, if this were a criminal trial, prosecutors would allege that the President has been displaying “consciousness of guilt” — that he was acting in a way no innocent person would act, the reddest of red flags signaling obstruction of justice.

What Is Obstruction of Justice?

There is no specific Federal crime of “obstruction of justice,” which instead is the general description of a series of offenses representing the variety of corrupt ways in which perpetrators may stop or delay investigations and trials. Obstruction doesn’t happen in a vacuum. Thus, the law punishes people who try to stop questions about their suspected illegal or unethical behavior or that of others, and there are numerous serious questions being asked about President Trump’s and his advisers’ behavior — with good reason.

Obstruction of Flynn & Russia Investigations

An early and ardent supporter of Donald Trump, Lt. General Michael Flynn, who led chants of “Lock Her Up!” during the campaign, was appointed national security adviser shortly after Trump took office. Flynn’s meteoric rise in Trump’s orbit ended abruptly when he was forced to resign just 24 days into his job.

There is evidence that Trump appointed Michael Flynn as his National Security Adviser even though he, Vice President Mike Pence, White House counsel Donald McGahn, and other members of Trump’s administration knew from their internal vetting process and other sources that: 1) Flynn had worked as a paid lobbyist for Turkey; 2) he was under investigation for it; 3) in December 2015, he had been paid to attend an event in Moscow where he sat next to Putin and delivered a speech critical of the U.S.; and 4) he had lied on government disclosure forms about his contacts with foreign government officials and his lobbying work as to obtain access to classified national security information. Flynn’s lies violated at least two criminal statutes – 18 USC 1001 (making false statements) and 22 USC 611 (failing to register as a foreign agent).

Within 48 hours after the election, President Obama warned Trump about the danger of appointing FlynnOn November 18, 2016, Rep. Elijah Cummings, Ranking Member of the House Oversight Committee, sent a letter to Vice President-elect Mike Pence, who was leading the Trump transition with Flynn, about Flynn’s failure to disclose lobbying for Turkey and his trip to Moscow, on disclosure forms he filled out to gain access to classified information. Even before that, it had been reported in the media that Flynn’s firm was paid by Turkey to lobby on its behalf, and on election day, Flynn’s pro-Turkey op-ed appeared in The Hill. Flynn even told White House Counsel Donald McGahn on January 4 that he was under investigation for the illegal lobbying. Yet incredibly, Pence continued to claim he first learned about Flynn’s lobbying from media reports, and as late as mid-May, Pence was still denying prior knowledge of Flynn’s illegal acts.

Covering up Flynn’s lies was not only a national security risk, it was obstruction of justice.  Trump, Pence, and other advisers obstructed, conspired to obstruct, or both, by misleading another to delay or hinder communication of information to law enforcement about the commission or possible commission of a Federal offense. (18 USC 1512[b][3]).  Trump, Pence, and others have now “lawyered up.” 

Trump and his team also falsely denied knowledge that Flynn had illegally discussed sanctions against Russia with the Russian Ambassador before the inauguration and the likelihood that Trump would lift them. On January 12, David Ignatius reported in The Washington Post, citing to a senior government official who said that Flynn had phoned the Russian Ambassador “several times” on December 29, the same day President Obama levied sanctions against 35 Russian intelligence operatives in retaliation for Russian cyber interference with the 2016 presidential election. The next day, Reuters confirmed Ignatius’ revelation, reporting that, according to three sources, Flynn had made five phone calls to the ambassador between the time sanctions were being imposed and Putin’s unexpected decision to forgo reprisals. Responding to reports and questions from the press, Trump administration officials gave conflicting and changing stories about Flynn’s calls, but consistently denied that Flynn had discussed sanctions.  

On January 26, Acting Attorney General Sally Yates met with White House Counsel Donald McGahn to inform the White House that before the inauguration, while still a private citizen, Flynn had been caught in “routine surveillance” by the FBI discussing U.S. sanctions with the Russian Ambassador and that Flynn had lied to Vice President Pence about it. Under the Logan Act, private citizens are barred from discussing foreign policy with any foreign government with the intent to influence the action of the foreign government in relation to any dispute with the United States. Two days earlier, Flynn had falsely denied to the FBI that he had discussed sanctions with the ambassador.

Trump’s Press Secretary Sean Spicer confirmed that “immediately after the Department of Justice [Yates] notified the White House Counsel [McGahn] of the [Flynn] situation, the White House Counsel briefed the President and a small group of senior advisors.” Inexplicably, Flynn remained in his position, with the highest attainable level of security clearance, for three more weeks, before he was forced to resign.

The following day, on January 27, Yates returned to the White House at McGahn’s request to answer additional questions, none of which displayed the least concern about Flynn’s security clearance and the risk he posed to the U.S. McGahn was more concerned with finding out what the Justice Department (DOJ) knew and what they were going to do about it. Yates explained that Flynn was at risk of being blackmailed by the Russians. She also arranged to get him the evidence DOJ was relying on.

Instead of firing Flynn or suspending his security clearance, Trump fired Sally Yates on January 30, ostensibly over her decision not to enforce the travel ban executive order. Then, Trump and his team closed ranks. Indeed, the day after learning that Flynn had lied and was a security risk, Flynn was in the Oval Office with Pence, Priebus, Bannon, and Spicer while Trump spoke to PutinThe New York Times reported that as late as February 10, three days before Flynn was fired, Trump was still conferring with Flynn daily, was claiming that he had not seen reports about Flynn discussing sanctions with the Russian ambassador, and promising to “look into it.” This was obstruction of justice. (1512[b][3], 1512[c][2]).

Trump also endeavored to get FBI Director James Comey in line. Comey testified to Congress about Trump’s increasingly brazen pressure tactics. First, Trump arranged to have dinner alone with Comey on January 27, the evening after Yates’ second meeting with McGahn. At that dinner, after asking if Comey wanted to stay on as FBI Director, Trump insisted, “I need loyalty, I expect loyalty.” Comey testified that he understood Trump to be asking for a quid pro quo. He did not accede to Trump’s demand.

Flynn remained the National Security Adviser with full security clearance until February 13, when he was forced to resign shortly after the Washington Post reported on Yates’ warning to the White House about him. The official explanation was that Flynn was fired for lying to the Vice President. Touting the same narrative, Trump stated at a press conference on February 16 that Flynn didn’t do anything wrong in discussing sanctions with the Russian ambassador. Asked why the White House did not act on Yates’ warning, Press Secretary Spicer said that McGahn had decided DOJ did not “have the goods” on Flynn. In fact, “the goods” consisted of an FBI recording of Flynn illegally discussing sanctions with the Russian Ambassador and lying about it, failing to disclose lobbying for Turkey and income from Russia, and that he was being investigated by the FBI for those foreign lobbying activities. All this occurred before Trump was even sworn in as President. An Administration not actively trying to hide something would have removed Flynn from his post immediately.

Trump then actively attempted to stop the investigation into Flynn. On February 14, Trump had another meeting alone with Comey. After Sessions, Priebus, and other advisers did as they were told and left the room, Trump told Comey that Flynn hadn’t done anything wrong in speaking with the Russians, and “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

Later in March, when Yates was supposed to testify before the House Intelligence Committee, the White House and DOJ attempted to stop her by claiming her testimony would be privileged, and the hearing was canceled. On May 8, before Yates was scheduled to testify before Senate investigators,  Trump tweeted out suggestions that the panel ask her if she had leaked classified information to reporters about her warnings to the White House counsel. This tweet could potentially be interpreted as an attempt by the President to harass Yates or to intimidate her into either not testifying at all or not testifying truthfully, a violation of 18 USC 1512(b). Trump’s Press Secretary, Sean Spicer, has said that Trump’s tweets are, indeed, his official statements as President.

The evidence also supports the inference that when Trump fired Comey, he was also trying to shut down a Grand Jury in Virginia that was investigating his presidential campaign’s contacts with Russia. On May 3, Comey testified to the Judiciary Committee that two groups of U.S. attorneys in the Department of Justice were involved in the probe into Russian influence in the election and other matters: the national security branch of the Justice Department in Washington and the U.S. Attorney’s office for the Eastern District of Virginia. On May 8, Trump tweeted “The Russia-Trump collusion story is a total hoax.” The next day, CNN reported that the Grand Jury had issued subpoenas to some of Flynn’s associates. Trump fired Comey hours later. This is evidence that Trump corruptly endeavored to obstruct, influence or impede a Grand Jury (18 USC 1503).1 

The day after Comey’s ouster, in an Oval Office meeting, Trump confided in Russian officials and a journalist from Russia Today that firing Comey relieved “great pressure.” Trump is reported to have told the Russians, “I just fired the head of the F.B.I. He was crazy, a real nut job.” (U.S. reporters were barred from the event.) Then a day later, Trump admitted in a TV interview with NBC’s Lester Holt that he fired Comey because of the “Russia thing.”

Trump and his team committed obstruction of justice, (18 USC 1505), by corruptly2 endeavoring3 to obstruct, influence, or impede the Congressional and FBI investigations, of Michael Flynn.4

Trump has abused and misused his executive power. His attempts to obstruct did not end with the firing of Yates and Comey.  He later engaged in a campaign to discredit Comey and the FBI in a series of defamatory tweets and public statements.  He also implied that he had tapes of his conversations with Comey, later acknowledging that he had only been trying to intimidate Comey before his testimony to the Senate Intelligence Committee.

Other Acts of Obstruction in Flynn and Russia Investigations

Trump Tries to Pressure Directors Coats and Rogers

Like Comey, Director of National Intelligence Dan Coats and Director of the National Security Agency Admiral Mike Rogers have also described attempts by  Trump to influence the Russia investigation. According to CNN, multiple sources have said that Trump had asked each of them to publicly refute the notion that he or his campaign affiliates colluded with the Russians. Both Directors apparently depicted the same interactions with Trump before a closed Senate Intelligence Committee hearing. Neither man complied with Trump’s requests.  

The offense of obstruction of justice does not require the prosecution to prove that Trump succeeded, only that a reasonable person would conclude that Trump’s “suggestions” to Coats and Rogers amounted to a corrupt attempt to obstruct, influence, or impede any of the ongoing investigations (18 USC 1503, 1505). Trump clearly attempted to influence the investigations by having Coats and Rogers make exculpatory statements about Trump, such as stating that there is no evidence of collusion with the Russians. If either had made such a statement publicly, the  investigations could have been irreparably harmed or, at a minimum, seriously delayed. As a result, the credibility of prior and future witnesses of lesser stature would likely have been questioned, grand jurors evaluation of evidence could have been influenced, and Republican Members of Congress already on the fence could have been influenced to push back against the investigations.

Trump Tries to Influence Special Counsel

Trump has also attempted to interfere with Special Counsel Mueller’s investigation by publicly trying to discredit Mueller and Deputy Attorney General Rod Rosenstein, on whom the job of firing Mueller would actually fall.  Indeed, under the Code of Federal Regulations, only Rosenstein, as Acting Attorney General for the Russia investigations, can fire Special Counsel Mueller. Since President Trump would have to order Rosenstein to fire Mueller, whose refusal could result in his own firing, the purpose of Trump’s public show of disapproval of Mueller and Rosentein was to ensure that they both understood their positions were at risk.  

Reince Priebus Tries to Pressure FBI

While the most direct attempts to obstruct the ongoing investigations appear to have been made by Trump himself, there is also evidence that White House Chief of Staff Reince Priebus obstructed justice in February, by improperly contacting FBI officials to request they publicly refute news reports of contacts between Russia and the Trump campaign. Comey refused.

Trump and Team Keep Kushner’s Non-Disclosure Quiet

On June 21, Rep. Cummings sent a letter to the White House citing “parallel concerns” about the security clearance for Kushner, Trump’s son-in-law and senior adviser. Cummings wrote that Kushner had failed to disclose his pre-election calls and meetings with the Russian Ambassador, as well as a meeting with the CEO of a state-run Russian bank subject to US sanctions. It was recently reported that Kushner also failed to report a $285 million dollar loan to his firm from Deutsche Bank on his financial disclosure form. Kushner got the loan just before election day and he personally guaranteed it. Under an existing executive order, employees are supposed to have their security clearance suspended while allegations like these are investigated. There are investigations into Kushner’s non-disclosures by the FBI, Congress and the Special Counsel.

Obstruction of Investigations Into Fox News and Conflicts

The obstruction is not limited to Trump and his team’s connections with Russia. The Chief Federal prosecutor in Manhattan, Preet Bharara, convened a Grand Jury to investigate alleged sexual harassment at Fox News, and hush money allegedly paid. The existence of the Grand Jury investigation had been disclosed in a state court proceeding the month before Bharara was fired, and subpoenas had been issued to witnesses to appear and testify. Bharara was also investigating seemingly improper stock trades by Trump’s Secretary of Health and Human Services, Tom Price. Bharara’s office was responsible for any government investigation of Trump’s accusation of wiretapping by the Obama administration, and any allegations regarding Trump Tower are within its jurisdiction.

On March 11, 2017, Trump fired Bharara in the midst of these investigations, although he had previously told him that he could keep his job. (18 USC 1503, 1505). Trump is apparently considering Marc L. Mukasey to replace Bharara. Mukasey, a criminal defense attorney and former Federal prosecutor, previously represented Roger Ailes, founder and CEO of Fox News and a Trump associate, who had helped Trump prepare for the Republican debates during the campaign. Mukasey is also a former law partner of Trump advocate Rudy Giuliani at a law firm that has represented the Kushner family in real estate matters. The replacement of Bharara by Mukasey would create a strong inference that Trump intended to remove Bharara due to his investigations into Trump and Trump-related matters, and replace him with someone who would be more sympathetic to Trump, if not directly within his control.

The facts strongly suggest there was a coordinated effort by Trump and members of his administration to obstruct and cover up. We want answers. The American people deserve answers. Trump may operate as if the law does not apply to him, but that is not how our country works. In America, nobody is above the law. That is what makes us great.

 

 

Notes

  1. Someone violates 18 USC 1503 when he  “corruptly” “endeavors to influence, intimidate, or impede” a grand jury, or “the due administration of justice.”
  2. “Corruptly” is defined as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” (18 USC 1515[b]).
  3. Courts have consistently held that “endeavor” denotes a lesser threshold of purposeful activity than “attempt.”# The government only needs to prove that “the endeavor [has] the ‘natural and probable effect’ of interfering with the due administration of justice.”# Princeton’s Wordnet defines “endeavor” as an “earnest and conscientious activity intended to do or accomplish something.”
  4. Under the D.C. Circuit decision United States v Kelley, 36 F.3d 1118 (D.C. Cir. 1994), “[f]or an investigation to be considered a proceeding…it must be more than a ‘mere police investigation.’” The counterintelligence focus of the FBI investigation would make it a “proceeding” covered by 18 USC 1512 because the FBI counterintelligence investigation extends beyond “mere police investigation.”
By | 2017-07-12T15:29:49+00:00 June 28th, 2017|

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