False Statements and Obstruction of the Investigation

False Statements and Obstruction of the Investigation

¶The Office determined that certain individuals associated with the Campaign lied to investigators about Campaign contacts with Russia and have taken other actions to interfere with the investigation. As explained below, the Office therefore charged some U.S. persons connected to the Campaign with false statements and obstruction offenses.

Overview Of Governing Law

¶False Statements. The principal federal statute criminalizing false statements to government investigators is 18 U.S.C. § 1001. As relevant here, under Section 1001(a)(2), it is a crime to knowingly and willfully "make[] any materially false, fictitious, or fraudulent statement or representation" "in any matter within the jurisdiction of the executive . . . branch of the Government." An FBI investigation is a matter within the Executive Branch's jurisdiction. United States v. Rodgers, 466 U.S. 475, 479 (1984). The statute also applies to a subset of legislative branch actions—viz., administrative matters and "investigation[s] or review[s]" conducted by a congressional committee or subcommittee. 18 U.S.C. § 1001(c)(1) and (2); see United States v. Pickett, 353 F.3d 62, 66 (D.C. Cir. 2004).

¶Whether the statement was made to law enforcement or congressional investigators, the government must prove beyond a reasonable doubt the same basic non-jurisdictional elements: the statement was false, fictitious, or fraudulent; the defendant knew both that it was false and that it was unlawful to make a false statement; and the false statement was material. See, e.g., United States v. Smith, 831 F.3d 1207, 1222 n.27 (9th Cir. 2017) (listing elements); see also Ninth Circuit Pattern Instruction 8.73 & cmt. (explaining that the Section 1001 jury instruction was modified in light of the Department of Justice's position that the phrase "knowingly and willfully" in the statute requires the defendant's knowledge that his or her conduct was unlawful). In the D.C. Circuit, the government must prove that the statement was actually false; a statement that is misleading but "literally true" does not satisfy Section 1001(a)(2). See United States v. Milton, 8 F.3d 39, 45 (D.C. Cir. 1993); United States v. Dale, 991 F.2d 819, 832-33 & n.22 (D.C. Cir. 1993). For that false statement to qualify as "material," it must have a natural tendency to influence, or be capable of influencing, a discrete decision or any other function of the agency to which it is addressed. See United States v. Gaudin, 515 U.S. 506, 509 (1995); United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010).

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¶Perjury. Under the federal perjury statutes, it is a crime for a witness testifying under oath before a grand jury to knowingly make any false material declaration. See 18 U.S.C. § 1623. The government must prove four elements beyond a reasonable doubt to obtain a conviction under Section 1623(a): the defendant testified under oath before a federal grand jury; the defendant's testimony was false in one or more respects; the false testimony concerned matters that were material to the grand jury investigation; and the false testimony was knowingly given. United States v. Bridges, 717 F.2d 1444, 1449 n.30 (D.C. Cir. 1983). The general perjury statute, 18 U.S.C. § 1621, also applies to grand jury testimony and has similar elements, except that it requires that the witness have acted willfully and that the government satisfy "strict common-law requirements for establishing falsity." See Dunn v. United States, 442 U.S. 100, 106 & n.6 (1979) (explaining "the two-witness rule" and the corroboration that it demands).

¶Obstruction of Justice. Three basic elements are common to the obstruction statutes pertinent to this Office's charging decisions: an obstructive act; some form of nexus between the obstructive act and an official proceeding; and criminal (i.e., corrupt) intent. A detailed discussion of those elements, and the law governing obstruction of justice more generally, is included in Volume II of the report.

Application to Certain Individuals

George Papadopoulos

¶Investigators approached Papadopoulos for an interview based on his role as a foreign policy advisor to the Trump Campaign and his suggestion to a foreign government representative that Russia had indicated that it could assist the Campaign through the anonymous release of information damaging to candidate Clinton. On January 27, 2017, Papadopoulos agreed to be interviewed by FBI agents, who informed him that the interview was part of the investigation into potential Russian government interference in the 2016 presidential election.

¶During the interview, Papadopoulos lied about the timing, extent, and nature of his communications with Joseph Mifsud, Olga Polonskaya, and Ivan Timofeev. With respect to timing, Papadopoulos acknowledged that he had met Mifsud and that Mifsud told him the Russians had "dirt" on Clinton in the form of "thousands of emails." But Papadopoulos stated multiple times that those communications occurred before he joined the Trump Campaign and that it was a "very strange coincidence" to be told of the "dirt" before he started working for the Campaign. This account was false. Papadopoulos met Mifsud for the first time on approximately March 14, 2016, after Papadopoulos had already learned he would be a foreign policy advisor for the Campaign. Mifsud showed interest in Papadopoulos only after learning of his role on the Campaign. And Mifsud told Papadopoulos about the Russians possessing "dirt" on candidate Clinton in late April 2016, more than a month after Papadopoulos had joined the Campaign and been publicly announced by candidate Trump. Statement of Offense ¶¶ 25-26, United States v. George Papadopoulos, No. 1:17-cr-182 (D.D.C. Oct. 5, 2017), Doc. 19 ("Papadopoulos Statement of Offense").

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¶Papadopoulos also made false statements in an effort to minimize the extent and importance of his communications with Mifsud. For example, Papadopoulos stated that "[Mifsud]'s a nothing," that he thought Mifsud was "just a guy talk[ing] up connections or something," and that he believed Mifsud was "BS'ing to be completely honest with you." In fact, however, Papadopoulos understood Mifsud to have substantial connections to high-level Russian government officials and that Mifsud spoke with some of those officials in Moscow before telling Papadopoulos about the "dirt." Papadopoulos also engaged in extensive communications over a period of months with Mifsud about foreign policy issues for the Campaign, including efforts to arrange a "history making" meeting between the Campaign and Russian government officials. In addition, Papadopoulos failed to inform investigators that Mifsud had introduced him to Timofeev, the Russian national who Papadopoulos understood to be connected to the Russian Ministry of Foreign Affairs, despite being asked if he had met with Russian nationals or "[a]nyone with a Russian accent" during the campaign. Papadopoulos Statement of Offense ¶¶ 27-29.

¶Papadopoulos also falsely claimed that he met Polonskaya before he joined the Campaign, and falsely told the FBI that he had "no" relationship at all with her. He stated that the extent of their communications was her sending emails—"Just, 'Hi, how are you?' That's it." In truth, however, Papadopoulos met Polonskaya on March 24, 2016, after he had joined the Campaign; he believed that she had connections to high-level Russian government officials and could help him arrange a potential foreign policy trip to Russia. During the campaign he emailed and spoke with her over Skype on numerous occasions about the potential foreign policy trip to Russia. Papadopoulos Statement of Offense ¶¶ 30-31.

¶Papadopoulos's false statements in January 2017 impeded the FBI's investigation into Russian interference in the 2016 presidential election. Most immediately, those statements hindered investigators' ability to effectively question Mifsud when he was interviewed in the lobby of a Washington, D.C. hotel on February 10, 2017. See Gov't Sent. Mem. at 6, United States v. George Papadopoulos, No. 1:17-cr-182 (D.D.C. Aug. 18, 2017), Doc. 44. During that interview, Mifsud admitted to knowing Papadopoulos and to having introduced him to Polonskaya and Timofeev. But Mifsud denied that he had advance knowledge that Russia was in possession of emails damaging to candidate Clinton, stating that he and Papadopoulos had discussed cybersecurity and hacking as a larger issue and that Papadopoulos must have misunderstood their conversation. Mifsud also falsely stated that he had not seen Papadopoulos since the meeting at which Mifsud introduced him to Polonskaya, even though emails, text messages, and other information show that Mifsud met with Papadopoulos on at least two other occasions—April 12 and April 26, 2016. In addition, Mifsud omitted that he had drafted (or edited) the follow-up message that Polonskaya sent to Papadopoulos following the initial meeting and that, as reflected in the language of that email chain ("Baby, thank you!"), Mifsud may have been involved in a personal relationship with Polonskaya at the time. The false information and omissions in Papadopoulos's January 2017 interview undermined investigators' ability to challenge Mifsud when he made these inaccurate statements.

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¶Given the seriousness of the lies and omissions and th eir effect on the FBl's investigation, th e Office charged Papadopoulos with making false statements to the FBI, in violation of 18 U.S.C. § 1001. Infon nation, United States v. George Papadopoulos, No. l: 17-cr-182 (D.D.C. Oct. 3, 2017), Doc. 8. On October 7, 2017, Papadopoulos pleaded guilty to that charge pursuant to a plea agreement. On September 7, 2018, he was sentenced to 14 days of imprisonment, a $9,500 fine, and 200 hours of community service.

¶ii. fWfW!WfPfWi

Michael Flynn

¶Michael Flynn agreed to be interviewed by the FBI on Januaiy 24, 2017, four days after he had officially assumed his duties as National Security Advisor to the President. During the interview, Flynn made several false statements pertaining to his communications with the Russian ambassador.

¶First, Flynn made two false statements about his conversations with Russian Ambassador Kislyak in late December 2016, at a time when the United States had imposed sanctions on Russia for interfering with the 2016 presidential election an d Russia was considering its response. See Flynn Statement of Offense. Flynn told the agents that he did not ask Kislyak to refrain from escalating the situation in response to the United States's imposition of sanctions. That statement was false. On December 29, 2016, Flynn called Kislyak to request Russian restrnint. Flynn made th e call immediately after speaking to a senior Transition Team official (K.T. McFarland) about what to communicate to Kislyak. Flynn then spoke with McFai·land again after the Kislyak call to repo1i on the substance of that conversation. Flynn also falsely told the FBI that he did not remember a follow-up conversation in which Kislyak stated that Russia had chosen to moderate its response to the U.S. sanctions as a result of Flynn's request. On December 31 , 2016, Flynn in fact had such a conversation with Kislyak, and he again spoke with McFai·land within hours of the call to relay the substance of his conversation with Kislyak. See F~ynn Statement of Offense ~ 3.

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¶Second, Flynn made false statements about calls he had previously made to representatives of Russia and other countries regarding a resolution submitted by Egypt to the United Nations Security Council on December 21, 2016. Specifically, Flynn stated that he only asked the countries' positions on how they would vote on the resolution and that he did not request that any of the countries take any particular action on the resolution. That statement was false. On December 22, 2016, Flynn called Kislyak, informed him of the incoming Trump Administration's opposition to the resolution, and requested that Russia vote against or delay the resolution. Flynn also falsely stated that Kislyak never described Russia's response to his December 22 request regarding the resolution. Kislyak in fact told Flynn in a conversation on December 23, 2016, that Russia would not vote against the resolution if it came to a vote. See Flynn Statement of Offense ¶ 4.

¶Flynn made these false statements to the FBI at a time when he was serving as National Security Advisor and when the FBI had an open investigation into Russian interference in the 2016 presidential election, including the nature of any links between the Trump Campaign and Russia. Flynn's false statements and omissions impeded and otherwise had a material impact on that ongoing investigation. Flynn Statement of Offense ¶¶ 1-2. They also came shortly before Flynn made separate submissions to the Department of Justice, pursuant to FARA, that also contained materially false statements and omissions. Id. ¶ 5. Based on the totality of that conduct, the Office decided to charge Flynn with making false statements to the FBI, in violation of 18 U.S.C. § 1001(a). On December 1, 2017, and pursuant to a plea agreement, Flynn pleaded guilty to that charge and also admitted his false statements to the Department in his FARA filing. See id.; Plea Agreement, United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 3. Flynn is awaiting sentencing.

Michael Cohen

¶Michael Cohen was the executive vice president and special counsel to the Trump Organization when Trump was president of the Trump Organization. Information ¶ 1, United States v. Cohen, No. 1:18-cr-850 (S.D.N.Y. Nov. 29, 2018), Doc. 2 ("Cohen Information"). From the fall of 2015 through approximately June 2016, Cohen was involved in a project to build a Trump-branded tower and adjoining development in Moscow. The project was known as Trump Tower Moscow.

¶In 2017, Cohen was called to testify before the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI), both of which were investigating Russian interference in the 2016 presidential election and possible links between Russia and the presidential campaigns. In late August 2017, in advance of his testimony, Cohen caused a two-page statement to be sent to SSCI and HPSCI addressing Trump Tower Moscow. Cohen Information ¶¶ 2-3. The letter contained three representations relevant here. First, Cohen stated that the Trump Moscow project had ended in January 2016 and that he had briefed candidate Trump on the project only three times before making the unilateral decision to terminate it. Second, Cohen represented that he never agreed to travel to Russia in connection with the project and never considered asking Trump to travel for the project. Third, Cohen stated that he did not recall any Russian government contact about the project, including any response to an email that he had sent to a Russian government email account. Cohen Information ¶ 4. Cohen later asked that his two-page statement be incorporated into his testimony's transcript before SSCI, and he ultimately gave testimony to SSCI that was consistent with that statement. Cohen Information ¶ 5.

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¶Each of the foregoing representations in Cohen's two-page statement was false and misleading. Consideration of the project had extended through approximately June 2016 and included more than three progress reports from Cohen to Trump. Cohen had discussed with Felix Sater his own travel to Russia as part of the project, and he had inquired about the possibility of Trump traveling there—both with the candidate himself and with senior campaign official Corey Lewandowski. Cohen did recall that he had received a response to the email that he sent to Russian government spokesman Dmitry Peskov—in particular, that he received an email reply and had a follow-up phone conversation with an English-speaking assistant to Peskov in mid-January 2016. Cohen Information ¶ 7. Cohen knew the statements in the letter to be false at the time, and admitted that he made them in an effort (1) to minimize the links between the project and Trump (who by this time was President), and (2) to give the false impression that the project had ended before the first vote in the Republican Party primary process, in the hopes of limiting the ongoing Russia investigations. Id.

¶Given the nature of the false statements and the fact that he repeated them during his initial interview with the Office, we charged Cohen with violating Section 1001. On November 29, 2018, Cohen pleaded guilty pursuant to a plea agreement to a single-count information charging him with making false statements in a matter within the jurisdiction of the legislative branch, in violation of 18 U.S.C. § 1001(a)(2) and (c). Cohen Information. The case was transferred to the district judge presiding over the separate prosecution of Cohen pursued by the Southern District of New York (after a referral from our Office). On December 7, 2018, this Office submitted a letter to that judge recommending that Cohen's cooperation with our investigation be taken into account in sentencing Cohen on both the false-statements charge and the offenses in the Southern District prosecution. On December 12, 2018, the judge sentenced Cohen to two months of imprisonment on the false-statements count, to run concurrently with a 36-month sentence imposed on the other counts.

Roger Stone

¶As explained more fully in Volume I, Section III.D.1, supra, Roger Stone is a long-time Trump associate, worked for the Trump Campaign briefly in 2015, and remained in contact with senior Campaign officials through the campaign period. By no later than the summer of 2016, Stone communicated with the Campaign about upcoming WikiLeaks releases of hacked materials that were expected to harm Hillary Clinton's candidacy. Indictment ¶ 5, United States v. Roger Jason Stone, Jr., No. 1:19-cr-18 (D.D.C. Jan. 24, 2019), Doc. 1 ("Stone Indictment"). Stone sent author Jerome Corsi messages urging him to "[g]et to" Assange at the Ecuadorian Embassy in London, and received back correspondence from Corsi passing along "word [that] friend in embassy plans 2 more dumps" in the summer and fall. Stone Indictment ¶ 13. Stone spoke publicly about access to Assange and, after radio host Randy Credico interviewed Assange, Stone asked Credico to contact and obtain information from Assange. Stone Indictment ¶¶ 14-15. And in early October 2016, Stone assured individuals involved in the Campaign that a WikiLeaks release was imminent. Stone Indictment ¶ 16.

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¶When asked to appear before HPSCI and provide documents, Stone caused a letter to be submitted to HPSCI in May 2017 stating that he had no relevant records. Stone Indictment ¶ 19. During his testimony before HPSCI in September 2017, Stone testified in pertinent part that he did not have emails with third parties about Assange or any documents referring to Assange; that his references in August 2016 to being in contact with Assange had been references to communications with a single "intermediary," whom Stone later identified as Credico; that Stone did not ask this intermediary to communicate anything to Assange or to do anything on Stone's behalf; that the intermediary did not communicate via text message or email about WikiLeaks with Stone; and that Stone had never discussed his conversations with the intermediary with anyone in the Trump Campaign. Stone Indictment ¶¶ 20-22, 25, 29, 31, 35. Each of these statements was false. Stone had in his custody or control email communications with Corsi and Credico about Assange and WikiLeaks. Stone's August 2016 public statements about access to Assange were not solely about communications through Credico, who had not yet interviewed or met Assange at the time. Stone had asked Credico to pass along a message to Assange and find out information from him. Stone and Credico had communicated extensively over text message about WikiLeaks. And Stone had discussed his contacts to Assange and an imminent WikiLeaks release with the Trump Campaign, including in the days leading to the October 7, 2016 release of the Podesta emails. Stone Indictment ¶¶ 23, 28, 30, 32, 35.

¶After falsely telling Congress that Credico was his lone "intermediary" or "go-between," Stone repeatedly contacted Credico in an effort to prevent Credico from contradicting Stone's statements to HPSCI. Between November and December 17, 2017, Stone texted Credico urging him to "[s]tonewall" and "[p]lead the Fifth," and stating that he should do a "Frank Pentangeli" before HPSCI, a reference to a character in the The Godfather: Part II who testified before a congressional committee and claimed not to know information incriminating a mafia figure in perjury before the same committee. Stone Indictment ¶¶ 36-38. In 2018, after Credico advised HPSCI that he would invoke his Fifth Amendment rights, Stone continued to contact Credico, calling him "a rat" and stating that he would "take that dog"—a reference to Credico's support dog—"away" from him. Stone Indictment ¶ 39.

¶Based on the foregoing conduct, on January 24, 2019, a grand jury in the District of Columbia returned a seven-count indictment charging Stone with one count of obstructing and endeavoring to obstruct a congressional proceeding, in violation of 18 U.S.C. § 1505; five counts of making false statements to Congress, in violation of 18 U.S.C. § 1001(a) and (c); and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(1). Stone Indictment. Stone has entered a plea of not guilty to all charges and is currently pending trial.

Jeff Sessions

¶As set forth in Volume I, Section IV.A.6, supra, the investigation established that, while a U.S. Senator and a Trump Campaign advisor, former Attorney General Jeff Sessions interacted with Russian Ambassador Kislyak during the week of the Republican National Convention in July 2016 and again at a meeting in Sessions's Senate office in September 2016. The investigation also established that Sessions and Kislyak both attended a reception held before candidate Trump's foreign policy speech at the Mayflower Hotel in Washington, D.C., in April 2016, and that it is possible that they met briefly at that reception.

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¶The Office considered whether, in light of these interactions, Sessions committed perjury before, or made false statements to, Congress in connection with his confirmation as Attorney General. In January 2017 testimony during his confirmation hearing, Sessions stated in response to a question about Trump Campaign communications with the Russian government that he had "been called a surrogate at a time or two in that campaign and I didn't have – did not have communications with the Russians." In written responses submitted on January 17, 2017, Sessions answered "[n]o" to a question asking whether he had "been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day." And, in a March 2017 supplement to his testimony, Sessions identified two of the campaign-period contacts with Ambassador Kislyak noted above, which had been reported in the media following the January 2017 confirmation hearing. Sessions stated in the supplemental response that he did "not recall any discussions with the Russian Ambassador, or any other representatives of the Russian government, regarding the political campaign on these occasions or any other occasion."

¶Although the investigation established that Sessions interacted with Kislyak on the occasions described above and that Kislyak mentioned the presidential campaign on at least one occasion, the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions. With respect to Sessions's statements that he did "not recall any discussions with the Russian Ambassador . . . regarding the political campaign" and he had not been in contact with any Russian official "about the 2016 election," the evidence concerning the nature of Sessions's interactions with Kislyak makes it plausible that Sessions did not recall discussing the campaign with Kislyak at the time of his statements. Similarly, while Sessions stated in his January 2017 oral testimony that he "did not have communications with Russians," he did so in response to a question that had linked such communications to an alleged "continuing exchange of information" between the Trump Campaign and Russian government intermediaries. Sessions later explained to the Senate and to the Office that he understood the question as narrowly calling for disclosure of interactions with Russians that involved the exchange of campaign information, as distinguished from more routine contacts with Russian nationals. Given the context in which the question was asked, that understanding is plausible.

¶Accordingly, the Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and thus insufficient to obtain or sustain a conviction for perjury or false statements. Consistent with the Principles of Federal Prosecution, the Office therefore determined not to pursue charges against Sessions and informed his counsel of that decision in March 2018.

Others Interviewed During the Investigation

¶The Office considered whether, during the course of the investigation, other individuals interviewed either omitted material information or provided information determined to be false. Applying the Principles of Federal Prosecution, the Office did not seek criminal charges against any individuals other than those listed above. In some instances, that decision was due to evidentia1y hurdles to proving falsity. In others, the Office detennined that the witness ultimately provided truthful infonnation and that considerations of culpability, dete1Tence, and resource­ preservation weighed against prosecution. See Justice Manual § 9-27.220, 9-27.230. Below we describe briefl our decisions as to three of those individuals:

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. We also considered three other individuals interviewed - but do not address them here because they are involved in

¶aspects of ongoing investigations or active prosecutions to which their statements to this Office may be relevant.

¶[Redacted: (b) (6), (b) (7)(C)]

¶When initially interviewed by the Office regarding Ill role · ' - and other matters, ' · ' rovided information that a eare res ects.

¶cnmma c arges m a sea e cnmma comp amt m t e stem 1stn ct o irgmia ased on criminal conduct separately refened by this Office. (The refened conduct does not relate to Russia, the 2016 election, or the Trnmp Campaign). For all of these reasons, the Office detennined not to charg .

¶iRfRIBfPi&i

¶[Redacted: (b) (3), (b) (6), (b) (7)(C)]

¶I • I . . . I . I I . . I . . I I I . . I I a reasonable doubt that e1t er strand o testunony constitute an mtenbonal alsehood that v10lated 18 U.S.C. § 1001.

¶[Redacted: (b) (6), (b) (7)(C)] was mterv1ewe agam in that fmal interview showed that : · earlier statements to the FBI were at a minimum incomplete. The Office concluded that it did not ave sufficient evidence t!fflovebeyond a reasonable doubt th at1pfffpf8jfi 1

¶1ad intentionally made false statements during · earlier interviews.

¶Report On The Investigation Into

Russian Interference In The 2016 Presidential Election Volume II of II

¶Special Counsel Robert S. Mueller, III

¶Submitted Pursuant to 28 C.F.R. § 600.8(c)

Washington, D.C. March 2019

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• TABLE OF CONTENTS – VOLUME II INTRODUCTION TO VOLUME II — 1

• EXECUTIVE SUMMARY TO VOLUME II — 3

• I. BACKGROUND LEGAL AND EVIDENTIARY PRINCIPLES — 9

• A. Legal Framework of Obstruction of Justice — 9

• B. Investigative and Evidentiary Considerations — 12

• II. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION — 15

• A. The Campaign's Response to Reports About Russian Support for Trump — 15

• 1. Press Reports Allege Links Between the Trump Campaign and Russia — 16
• 2. The Trump Campaign Reacts to WikiLeaks's Release of Hacked Emails — 17
• 3. The Trump Campaign Reacts to Allegations That Russia was Seeking to Aid Candidate Trump — 18
• 4. After the Election, Trump Continues to Deny Any Contacts or Connections with Russia or That Russia Aided his Election — 21

• B. The President's Conduct Concerning the Investigation of Michael Flynn — 24

• 1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak — 24
• 2. President-Elect Trump is Briefed on the Intelligence Community's Assessment of Russian Interference in the Election and Congress Opens Election-Interference Investigations — 27
• 3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Administration Officials, the Media, and the FBI — 29
• 4. DOJ Officials Notify the White House of Their Concerns About Flynn — 31
• 5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump has Dinner with FBI Director Comey — 32
• 6. Flynn's Resignation — 36
• 7. The President Discusses Flynn with FBI Director Comey — 38
• 8. The Media Raises Questions About the President's Delay in Terminating Flynn — 41
• 9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn's Discussions with Kislyak — 42

• C. The President's Reaction to Public Confirmation of the FBI's Russia Investigation — 48

• 1. Attorney General Sessions Recuses From the Russia Investigation — 48

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• 2. FBI Director Comey Publicly Confirms the Existence of the Russia Investigation in Testimony Before HPSCI — 52
• 3. The President Asks Intelligence Community Leaders to Make Public Statements that he had No Connection to Russia — 55
• 4. The President Asks Comey to "Lift the Cloud" Created by the Russia Investigation — 57

• D. Events Leading Up To and Surrounding the Termination of FBI Director Comey — 62

• 1. Comey Testifies Before the Senate Judiciary Committee and Declines to Answer Questions About Whether the President is Under Investigation — 62
• 2. The President Makes the Decision to Terminate Comey — 64

• E. The President's Efforts to Remove the Special Counsel — 77

• 1. The Appointment of the Special Counsel and the President's Reaction — 78
• 2. The President Asserts that the Special Counsel has Conflicts of Interest — 80
• 3. The Press Reports that the President is Being Investigated for Obstruction of Justice and the President Directs the White House Counsel to Have the Special Counsel Removed — 84

• F. The President's Efforts to Curtail the Special Counsel Investigation — 90

• 1. The President Asks Corey Lewandowski to Deliver a Message to Sessions to Curtail the Special Counsel Investigation — 90
• 2. The President Follows Up with Lewandowski — 92
• 3. The President Publicly Criticizes Sessions in a New York Times Interview — 93
• 4. The President Orders Priebus to Demand Sessions's Resignation — 94

• G. The President's Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials — 98

• 1. The President Learns About the Existence of Emails Concerning the June 9, 2016 Trump Tower Meeting — 98
• 2. The President Directs Communications Staff Not to Publicly Disclose Information About the June 9 Meeting — 100
• 3. The President Directs Trump Jr.'s Response to Press Inquiries About the June 9 Meeting — 101
• 4. The Media Reports on the June 9, 2016 Meeting — 103

• H. The President's Further Efforts to Have the Attorney General Take Over the Investigation — 107

• 1. The President Again Seeks to Have Sessions Reverse his Recusal — 107
• 2. Additional Efforts to Have Sessions Unrecuse or Direct Investigations Covered by his Recusal — 109

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• I. The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel — 113

• 1. The Press Reports that the President Tried to Fire the Special Counsel — 113
• 2. The President Seeks to Have McGahn Dispute the Press Reports — 114

• J. The President's Conduct Towards Flynn, Manafort, and Stone — 120

• 1. Conduct Directed at Michael Flynn — 120
• 2. Conduct Directed at Paul Manafort — 122
• 3. Conduct Directed at Roger Stone — 128

• K. The President's Conduct Involving Michael Cohen — 134

• 1. Candidate Trump's Awareness of and Involvement in the Trump Tower Moscow Project — 134
• 2. Cohen Determines to Adhere to a "Party Line" Distancing Candidate Trump From Russia — 138
• 3. Cohen Submits False Statements to Congress Minimizing the Trump Tower Moscow Project in Accordance with the Party Line — 139
• 4. The President Sends Messages of Support to Cohen — 144
• 5. The President's Conduct After Cohen Began Cooperating with the Government — 148

• L. Overarching Factual Issues — 156

• III. LEGAL DEFENSES TO THE APPLICATION OF OBSTRUCTION-OF-JUSTICE STATUTES TO THE PRESIDENT — 159

• A. Statutory Defenses to the Application of Obstruction-Of-Justice Provisions to the Conduct Under Investigation — 160

• 1. The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive Acts……… — 160
• 2. Judicial Decisions Support a Broad Reading of Section 1512(c)(2) — 162
• 3. The Legislative History of Section 1512(c)(2) Does Not Justify Narrowing Its Text… — 164
• 4. General Principles of Statutory Construction Do Not Suggest That Section 1512(c)(2) is Inapplicable to the Conduct in this Investigation — 165
• 5. Other Obstruction Statutes Might Apply to the Conduct in this Investigation — 167

• B. Constitutional Defenses to Applying Obstruction-Of-Justice Statutes to Presidential Conduct — 168

• 1. The Requirement of a Clear Statement to Apply Statutes to Presidential Conduct Does Not Limit the Obstruction Statutes — 169

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• 2. Separation-of-Powers Principles Support the Conclusion that Congress May Validly Prohibit Corrupt Obstructive Acts Carried Out Through the President's Official Powers — 171

• a. The Supreme Court's Separation-of-Powers Balancing Test Applies In This Context — 172

• b. The Effect of Obstruction-of-Justice Statutes on the President's Capacity to Perform His Article II Responsibilities is Limited — 173

• c. Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source — 176

• 3. Ascertaining Whether the President Violated the Obstruction Statutes Would Not Chill his Performance of his Article II Duties — 178

• IV. CONCLUSION — 182

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