Conduct Directed at Roger Stone

¶In the second half of 2018, the media reported that Roger Stone said he expected to be charged with crimes in the Special Counsel investigation.⁸⁹¹⁸⁹¹ See, e.g., Ken Dilanian, Ex-Trump advisor Roger Stone says he expects Mueller to charge him with a crime, NBC (Aug. 30, 2018). In press interviews, Stone repeatedly asserted that he would not testify against the President.⁸⁹²⁸⁹² See, e.g., Ken Dilanian, Ex-Trump advisor Roger Stone says he expects Mueller to charge him with a crime, NBC (Aug. 30, 2018). On August 30, 2018, for example, Stone said that he anticipated he would be "pressure[d] . . . to testify against the president" and he was "not going to do it."⁸⁹³⁸⁹³ See, e.g., Ken Dilanian, Ex-Trump advisor Roger Stone says he expects Mueller to charge him with a crime, NBC (Aug. 30, 2018).

¶On November 20, 2018, the President submitted written answers to questions that had been provided by the Special Counsel's Office, and the President's legal team announced that he had done so.⁸⁹⁴⁸⁹⁴ 11/20/18 Letter, President's Personal Counsel to Special Counsel's Office (transmitting written responses of Donald J. Trump); Jordan Fabian, Trump submits written answers to Mueller, Hill (Nov. 20, 2018) (quoting the President's personal counsel as saying the President's answers cover "issues regarding the Russia-related topics of the inquiry"). Several questions addressed the President's communications with Stone during the campaign, including "Did Mr. Stone ever discuss WikiLeaks with you or, as far as you were aware, with anyone else associated with the campaign?" and "Did Mr. Stone at any time inform you about contacts he had with WikiLeaks or any intermediary of WikiLeaks, or about forthcoming releases of information?"⁸⁹⁵⁸⁹⁵ 9/17/18 Letter, Special Counsel's Office to President's Personal Counsel (providing written questions). In his written answers, the President stated: "I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1, 2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time."⁸⁹⁶⁸⁹⁶ Written Responses of Donald J. Trump (Nov. 20, 2018), at 13-14 (Response to Question II, Part (g)).

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

¶As described above, in an interview on November 28, 2018, one week after submitting his written answers, the President criticized "flipping" and said that Stone (along with Manafort and Corsi) was "very brave" in indicating he would not cooperate with prosecutors.⁸⁹⁷⁸⁹⁷ 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). On December 2, 2018, Stone told the press that there was "no circumstance" under which he would "testify against the president."⁸⁹⁸⁸⁹⁸ George Stephanopoulos, 'This Week' Transcript 12-2-18: James Baker, Colin Powell, Rep. Adam Schiff and Roger Stone, ABC (Dec. 2, 2018). He also said he had had no discussions about a pardon.⁸⁹⁹⁸⁹⁹ George Stephanopoulos, 'This Week' Transcript 12-2-18: James Baker, Colin Powell, Rep. Adam Schiff and Roger Stone, ABC (Dec. 2, 2018). On December 3, 2018, the President tweeted, "'I will never testify against Trump.' This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about 'President Trump.' Nice to know that some people still have 'guts!'"⁹⁰⁰⁹⁰⁰ @realDonaldTrump 12/3/18 (10:48 a.m. ET) Tweet.

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¶On January 24, 2019, a grand jury indicted Stone on charges of obstruction, witness tampering, and making false statements.⁹⁰¹⁹⁰¹ Indictment, United States v. Roger Jason Stone, Jr., 1:19-cr-18 (D.D.C. Jan. 24, 2019), Doc. 1 (Stone Indictment). One of the counts charged Stone with violating 18 U.S.C. § 1001 for testifying falsely in Congress that he had never told anyone involved in the Trump Campaign about discussions he was having during the campaign with an individual who acted as an intermediary between him and Assange.⁹⁰²⁹⁰² Stone Indictment ¶¶ 35, 43. Stone had testified before Congress on September 26, 2017, and was asked, "Did you discuss your conversations with the intermediary with anyone involved in the Trump campaign?" Stone responded, "I did not." Executive Session, Permanent Select Committee on Intelligence, U.S. House of Representatives, Interview of Roger J. Stone, Jr. (Sept. 26, 2017), at 102. After making an initial court appearance on January 25, 2019, Stone told reporters, "There is no circumstance whatsoever under which I will bear false witness against the president, nor will I make up lies to ease the pressure on myself. . . . I will not testify against the President, because I would have to bear false witness."⁹⁰³⁹⁰³ Devlin Barrett et al., Longtime Trump adviser Roger Stone indicted by special counsel in Russia investigation, Washington Post (Jan. 25, 2019).

¶That evening, Stone appeared on Fox News and indicated he had knowledge of the President's answers to this Office's written questions. When asked if he had spoken to the President about the allegation that he had lied to Congress, Stone said, "I have not" and added, "When the President answered the written interrogatories, he correctly and honestly said Roger Stone and I never discussed this and we never did."⁹⁰⁴⁹⁰⁴ Former Trump 2016 Presidential Campaign Aide Roger Stone Interviewed on Fox News, CQ Newsmaker Transcripts, at 5 (Jan. 25, 2019).

¶The next day, January 26, 2019, the President tweeted, "If Roger Stone was indicted for lying to Congress, what about the lying done by Comey . . . and soooo many others?"⁹⁰⁵⁹⁰⁵ @realDonaldTrump 1/26/19 (8:42 a.m. ET) Tweet. On January 31, 2019, the President criticized the execution of the search and arrest warrants for Stone, saying "I think that was a very sad thing for this country" and "I like Roger."⁹⁰⁶⁹⁰⁶ Peter Baker et al., Excerpts From Trump's Interview With The New York Times, New York Times (Feb. 1, 2019). On February 3, 2019, the President said in an interview, "Roger is somebody that I've always liked."⁹⁰⁷⁹⁰⁷ Face the Nation interview with President Trump, CBS (Feb. 3, 2019). When asked whether he would pardon Stone, the President said, "I have not thought about it. It looks like he's defending himself very well. But you have to get rid of the Russia witch hunt because it is indeed."⁹⁰⁸⁹⁰⁸ Face the Nation interview with President Trump, CBS (Feb. 3, 2019).

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¶Analysis

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

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

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

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

¶The President's public statements during the Manafort trial, including during jury deliberations, also had the potential to influence the trial jury. On the second day of trial, for example, the President called the prosecution a "terrible situation" and a "hoax" that "continues to stain our country" and referred to Manafort as a "Reagan/Dole darling" who was "serving solitary confinement" even though he was "convicted of nothing." Those statements were widely picked up by the press. While jurors were instructed not to watch or read news stories about the case and 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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¶Finally, there is evidence that the President's actions towards Stone had the potential to affect a decision about cooperating with the government. After Stone publicly announced that he would never provide evidence against the President's interests, the President called Stone "very brave" and said he had "guts!" for not "testify[ing] against Trump."

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

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

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

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

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

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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