In the close to fifteen months since the appointment, his office has secured guilty verdicts or pleas from four Trump campaign officials: Flynn, Manafort, Papadopoulos, and Rick Gates, the former deputy chairman of the Trump campaign. Two other people, Alex van der Zwaan, a former lawyer for Manafort, and Richard Pinedo, who assisted in Russian election interference, also pleaded guilty to federal crimes. Twenty-six Russians (a subset of the thirty-four previously mentioned) and three companies have also been indicted, as detailed in Chapter 3.
In 2018, two other investigations relating to President Trump were launched. In New York, federal prosecutors independent of Mueller raided the office of Michael Cohen, President Trump’s sometime personal lawyer and fixer, who had also worked for the Trump Organization before the election. In August 2018, he pleaded guilty to eight federal crimes, including campaign finance violations, tax fraud, and bank fraud. Separately, the Manhattan district attorney’s office announced it was looking into possible criminal violations by the Trump Organization stemming from facts uncovered in the Cohen matter, and the New York state tax authority launched a probe into whether the Trump Foundation had violated criminal tax law. Months earlier, the state’s attorney general also brought a civil action against the foundation for numerous improprieties.
Like every American, President Trump is presumed innocent. He has a battery of constitutional rights available to him. He can and has hired numerous lawyers to deal with these investigations. He might even be able to use some of his reelection campaign funds to pay for them. Unlike most Americans, President Trump has additional protections. Some of his legal bills are footed by the American taxpayer. He may have the ability to assert executive privilege in some instances to keep some material from investigators and, in contrast to every other American, may even be able to avoid prosecution while in office, a possibility that two Justice Department legal memos advocate. Not satisfied with such rights and privileges to protect himself, President Trump may have impeachably abused his power by trying to block and interfere with our justice system.
How President Trump Appears to Have Prevented, Obstructed, or Impeded the Administration of Justice
President Trump’s apparent interference with investigations and prosecutions concerning him began quickly after he was sworn into office. He has employed a broad range of tactics:
First, he has attempted to influence law enforcement officials and has used or threatened to use his power to hire and fire them to coerce them.
Second, he has caused a witness in a law enforcement inquiry to issue misleading statements.
Third, he has attempted to influence other witnesses or targets of the investigation through promises of pardons or by attempting to intimidate and retaliate against them.
Fourth, he has engaged in a persistent barrage of verbal attacks to discredit the investigations and the investigators and has utilized harassing techniques to damage law enforcement agencies and personnel.
Fifth, he has abused his authority to gain access to sensitive investigative documents and information relating to him.
Sixth, he has demanded DOJ investigations of political opponents to advance his narrow political agenda and divert the investigations from their central objective, and abused the powers of his presidency to retaliate in other ways against and injure people he regards as his personal or political enemies.
Interference with Law Enforcement Officials and Abuse of Power to Intimidate Officials for Personal and Corrupt Reasons
A key example of President Trump’s interference is his firing of FBI director Comey. It is highly reminiscent of President Nixon’s order to fire the special Watergate prosecutor for seeking damaging White House tapes. As we have seen, that firing triggered the impeachment inquiry against President Nixon.
On February 13, 2017, President Trump fired Flynn, who had moved from a role on the campaign to national security adviser, one of the most sensitive and powerful jobs in the administration, involving access to the nation’s most important secrets. Flynn was fired by President Trump for purportedly lying to Vice President Mike Pence about a telephone conversation he had in late December 2016 with Sergey Kislyak, the Russian ambassador to the United States.
This was no standard-issue firing for workplace dishonesty. The call had been made public shortly after President Trump’s inauguration, and rumors that Kislyak and Flynn had discussed relaxing US sanctions against Russia abounded, threatening a huge scandal days into the new presidency. Since President-elect Trump had not yet been sworn in, a promise to modify US policy would have been a grave breach of protocol, if not of the constitutional order. Worse, some asked, were Flynn’s suggestions part of a payoff to Russia in thanks for its assistance to Trump in the election?
Flynn had reportedly told the vice president that the call was a simple courtesy and that he had just wished the ambassador happy holidays. It was a lie. He had in fact discussed sanctions with Kislyak—specifically, that the incoming administration might look favorably on changing them.
Flynn’s exposure was far greater than just being caught in a fib. As noted above, he was already under investigation by the FBI for secretly working as a paid lobbyist for Turkey during the campaign. Flynn had told prospective White House counsel Donald McGahn II about the investigation in early January, before the inauguration. Moreover, Flynn had been questioned at the White House by the FBI. He lied to them, potentially a felony, and there were recordings to prove it: Kislyak was under surveillance by the American intelligence community. Worse yet, DOJ officials had told McGahn multiple times that they were worried that Flynn might be vulnerable to blackmail from Russia over the Kislyak call: the Russians knew he was lying to the vice president, the public, and the press and could threaten to expose his lies. Flynn nevertheless stayed in office for eighteen days; President Trump fired him on February 13 only after word of the blackmail potential was leaked to the Washington Post.
At the time, President Trump probably knew he was at risk in the Flynn matter. Not only had he hired a national security adviser who had been surreptitiously on the payroll of Turkey, who was being investigated by the Justice Department for it, and who had lied to the vice president and the FBI, but he had kept Flynn in office after being alerted Flynn could be blackmailed. The peril may even have extended beyond the scandal it brought his White House. Flynn may have had intimate, and damaging, knowledge of the campaign’s activities in 2016, potentially including overtures, conversations, or coordination with Russian actors. In December 2015, he was in Russia on a paid trip and was seated beside President Putin at a dinner; across from the two men was Green Party presidential candidate Jill Stein, later investigated by the Senate Intelligence Committee for possible “collusion with the Russians.” The occasion for the dinner was the tenth anniversary of RT, the TV network.
The day after Flynn’s dismissal, President Trump met in the Oval Office with James Comey, Attorney General Jeff Sessions, and others. According to Comey, President Trump asked the others to leave in order to talk privately with him. President Trump allegedly told Comey that Flynn did nothing wrong in speaking to the Russian ambassador and added: “I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy. I hope you can let this go.” Comey later testified before the Senate Intelligence Committee that he took President Trump’s remarks “as a direction.” President Trump’s directive was not about an idle possibility. Just before the Oval Office meeting, then-Chief of Staff Reince Priebus and McGahn had told President Trump that Flynn was under investigation by the FBI, according to a memorandum prepared by McGahn. The next day, Priebus called Comey and FBI deputy director Andrew McCabe and asked them to rebut press stories about Trump campaign ties to Russia and possibly to discuss what the FBI knew of those connections.
The request for leniency with Flynn came less than three weeks after President Trump and Comey had shared a private dinner at the White House, at which, according to Comey, President Trump asked w
hether he was planning to stay on. President Trump then twice asked for a pledge of loyalty. Comey replied that he would provide honesty.
On March 20, 2017, Comey testified before the House Intelligence Committee and confirmed that the Department of Justice was investigating Russia’s interference in the election and its possible ties to the Trump campaign. Moreover, he rebutted President Trump’s claims, made earlier that month, that President Barack Obama had wiretapped Trump. On March 30, President Trump called Comey, asking him to “lift the cloud” of the investigation. Comey’s contemporaneous memos of the call show that President Trump was fixated on his personal involvement in the investigation. He told Comey he had nothing to do with Russia, that he was not involved with hookers in Russia, and that he was suing Christopher Steele, author of a report (the Steele dossier) provided to the FBI detailing possible Trump-Russia connections. (He did not sue Steele.) Twelve days later, President Trump called Comey, again asking him to lift the cloud, “because I have been very loyal to you, very loyal; we had that thing you know,” according to Comey’s memo. Comey and senior FBI staff listening to the call interpreted President Trump’s language as “a veiled threat.” It was the last time President Trump and Comey spoke.
On May 3, 2017, Comey testified before the Senate Judiciary Committee. He again confirmed the Russia investigation and said that he felt “mildly nauseous” to think that his public comments about the Clinton email investigation had affected the outcome of the election. President Trump fired Comey six days later. Publicly, at first, President Trump claimed that Comey was fired for mishandling the FBI investigation into Hillary Clinton’s use of a private email server while she was secretary of state. The president pointed to a memorandum he had asked the deputy attorney general, Rod Rosenstein, to prepare on the issue. The day after Comey’s firing, however, President Trump met privately with Russian ambassador Kislyak and Russian foreign minister Sergey V. Lavrov in the Oval Office, where he is reported to have told the two: “I just fired the head of the F.B.I. He was crazy, a real nut job,” according to a leaked report of the meeting. “I faced great pressure because of Russia. That’s taken off,” the president added. He also reportedly assured the two that he was not under investigation.
Then, on May 11, he told Lester Holt that when he fired Comey, “this Russia thing” was on his mind. Although he had asked Sessions and Rosenstein to tell him what the “case” against Comey was, he told Holt he was going to fire Comey “regardless of the recommendation [from Rosenstein]. … And in fact when I decided to do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story.”
As the impeachment articles against Nixon make clear, a president who fires the person heading the investigation for self-protection purposes likely commits an impeachable offense.
Other Interference
James Comey is the most prominent but not the only senior law enforcement officer President Trump has attempted to pressure, coerce, or control regarding the Russia investigations. Shortly after Comey’s March 20, 2017, testimony, President Trump once again cleared the Oval Office after a meeting to have a private conversation with people about the Russia investigation. This time, he kept Director of National Intelligence Dan Coats and Mike Pompeo, then CIA director, in the room. He asked Coats to persuade Comey to back off Flynn. A few days later, President Trump called Coats and National Security Administration Director Admiral Mike Rogers to urge them to deny the existence of any evidence of collusion during the 2016 election. Both reportedly regarded the request as inappropriate.
Some of President Trump’s most relentless efforts to influence the Russia investigations focused on the attorney general of the United States, the nation’s top law enforcement officer. On March 2, 2017, Jeff Sessions recused himself from investigations relating to Russia and the 2016 campaign. He did so after consulting with Justice Department ethics officials and after revelations that he had had several meetings with Russians that he had not disclosed to the Senate during testimony on the matter. The decision, which President Trump knew of beforehand, took supervision of the various Russia probes out of the hands of a man the president regarded as a loyalist. Before the decision was finalized, President Trump directed his White House counsel to tell Sessions not to recuse himself, and shortly after the recusal, at a dinner at Mar-a-Lago, he reportedly berated Sessions for recusing himself and asked him to reverse the decision. Sessions refused.
On May 17, 2017, upon learning of Mueller’s appointment, made by Deputy Attorney General Rosenstein in light of Sessions’s recusal, President Trump accused Sessions of “disloyalty” for failing to stay in charge of the Russia investigation. He attacked Sessions repeatedly, until Sessions submitted his resignation, which President Trump rejected. Many believed that President Trump wanted to force Sessions to resign so that he could replace him with someone who would not have to recuse himself and who would fire special counsel Robert Mueller. Press reports indicate President Trump changed his mind and kept Sessions on only after he realized that the Senate would turn on him if Sessions were forced out.
Reince Priebus, President Trump’s former chief of staff, explained to ABC News in June 2017, “He feels like that [Sessions’s recusal] was a—the first sin, the original sin, and he feels slighted by it. … He doesn’t like it, and he’s not going to let it go.” President Trump also reportedly told Priebus in late July to obtain Sessions’s resignation.
The attacks against Sessions continued in 2018. In February, the president publicly scolded Sessions for a decision to refer allegations of possible FBI misconduct relating to the Russia investigation to an internal review process rather than a criminal prosecutor. President Trump objected; he wanted FBI agents criminally prosecuted and complained that the internal process was led by an Obama-era appointee. “DISGRACEFUL,” he tweeted. Sessions responded in a statement: “As long as I am the Attorney General, I will continue to discharge my duties with integrity and honor, and this Department will continue to do its work in a fair and impartial manner according to the law and Constitution.” The implications are clear: Sessions saw the president’s relentless attacks as an effort to push him to act in an unfair and biased manner.
President Trump’s attacks escalated in August 2018 as the Manafort trial began. On the third day of the trial, he began telling his attorney general to shut down the Mueller inquiry. He tweeted: “This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further.”
Shortly after a jury convicted Manafort of eight crimes and after Cohen pleaded guilty to eight crimes, President Trump publicly threatened that he might simply take over the investigation himself. In an interview with Reuters, he said: “I’ve decided to stay out. Now I don’t have to stay out. I can go in, and I could do whatever—I could run it if I want. But I decided to stay out,” he said. “I’m totally allowed to be involved if I wanted to be. So far, I haven’t chosen to be involved. I’ll stay out.”
President Trump then turned to Sessions, in an interview with Fox & Friends, indicating that personal loyalty, or its lack, was the ultimate criterion for hiring or firing the attorney general. When asked whether he was going to fire Sessions, President Trump replied: “Even my enemies say that Jeff Sessions should have told you that he was going to recuse himself and then you wouldn’t have put him in. He took the job and then he said, ‘I’m going to recuse myself.’ I said, ‘What kind of a man is this?’ And by the way, he was on the campaign. You know, the only reason I gave him the job is because I felt loyalty. He was an original supporter.”
Hours after the interview aired, Sessions issued a statement: “While I am Attorney General, the actions of the Department of Justice will not be improperly influenced by political considerations.” As with the February 2018 statement, the clear implication is that the attorney general felt the president was attempting to interfere wrongfully and politically with th
e administration of justice.
Sessions has not been the only high-ranking DOJ target of the president’s vitriol. Deputy Attorney General Rod Rosenstein, who is overseeing the Russia investigation, has faced the president’s ire as well. And according to press reports, Mueller, too, has faced the threat of termination. In June 2017, President Trump reportedly ordered Mueller’s firing, a directive thwarted only when White House counsel McGahn threatened to resign. President Trump reportedly gave a similar order in December 2017, when word spread that Mueller had subpoenaed records from one of the president’s top bankers, Deutsche Bank, which has provided financing for at least three of the Trump Organization’s largest properties. Deutsche Bank would have been of particular interest to Mueller, because it was in the midst of an investigation into a $10 billion Russian money-laundering scheme involving its Moscow, New York, and London branches; the bank eventually agreed to pay roughly $630 million in penalties.
President Trump also has apparently tried to influence more than just Department of Justice proceedings. During the summer of 2017, he reportedly complained to Senate majority leader Mitch McConnell in a private phone call that he was failing to shield him from the Senate inquiry into Russian collusion with the Trump campaign. President Trump also called Senator Richard Burr, chair of the Senate Intelligence Committee, and told him it was time to move on with respect to the committee’s Russia investigation. President Trump called other members of that committee and other senators, urging them to pressure Burr to end the committee’s inquiry. At that point, according to Newsweek, President Trump had approached seven officials with a request either to speed up or end the Russian investigations.
The Case for Impeaching Trump Page 8