c. Intent. Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement. In the week leading up to Comey’s May 3, 2017, Senate Judiciary Committee testimony, the President told McGahn that it would be the last straw if Comey did not set the record straight and publicly announce that the President was not under investigation. But during his May 3 testimony, Comey refused to answer questions about whether the President was being investigated. Comey’s refusal angered the President, who criticized Sessions for leaving him isolated and exposed, saying “You left me on an island.” Two days later, the President told advisors he had decided to fire Comey and dictated a letter to Stephen Miller that began with a reference to the fact that the President was not being investigated: “While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship . . . .” The President later asked Rosenstein to include “Russia” in his memorandum and to say that Comey had told the President that he was not under investigation. And the President’s final termination letter included a sentence, at the President’s insistence and against McGahn’s advice, stating that Comey had told the President on three separate occasions that he was not under investigation.
The President’s other stated rationales for why he fired Comey are not similarly supported by the evidence. The termination letter the President and Stephen Miller prepared in Bedminster cited Comey’s handling of the Clinton email investigation, and the President told McCabe he fired Comey for that reason. But the facts surrounding Comey’s handling of the Clinton email investigation were well known to the President at the time he assumed office, and the President had made it clear to both Comey and the President’s senior staff in early 2017 that he wanted Comey to stay on as director. And Rosenstein articulated his criticism of Comey’s handling of the Clinton investigation after the President had already decided to fire Comey. The President’s draft termination letter also stated that morale in the FBI was at an all-time low and Sanders told the press after Comey’s termination that the White House had heard from “countless” FBI agents who had lost confidence in Comey. But the evidence does not support those claims. The President told Comey at their January 27 dinner that “the people of the FBI really like [him],” no evidence suggests that the President heard otherwise before deciding to terminate Comey, and Sanders acknowledged to investigators that her comments were not founded on anything.
We also considered why it was important to the President that Comey announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia. The President told Comey that the “cloud” of “this Russia business” was making it difficult to run the country. The President told Sessions and McGahn that foreign leaders had expressed sympathy to him for being under investigation and that the perception he was under investigation was hurting his ability to address foreign relations issues. The President complained to Rogers that “the thing with the Russians [was] messing up” his ability to get things done with Russia, and told Coats, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” The President also may have viewed Comey as insubordinate for his failure to make clear in the May 3 testimony that the President was not under investigation.
Other evidence, however, indicates that the President wanted to protect himself from an investigation into his campaign. The day after learning about the FBI’s interview of Flynn, the President had a one-on-one dinner with Comey, against the advice of senior aides, and told Comey he needed Comey’s “loyalty.” When the President later asked Comey for a second time to make public that he was not under investigation, he brought up loyalty again, saying “Because I have been very loyal to you, very loyal, we had that thing, you know.” After the President learned of Sessions’s recusal from the Russia investigation, the President was furious and said he wanted an Attorney General who would protect him the way he perceived Robert Kennedy and Eric Holder to have protected their presidents. The President also said he wanted to be able to tell his Attorney General “who to investigate.”
In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts. In addition, some witnesses said that Trump was aware that ███ ███ ████ ███ Harm to Ongoing Matter ██████ ██████████ ███████ ████ ██ at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases. More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.
Finally, the President and White House aides initially advanced a pretextual reason to the press and the public for Comey’s termination. In the immediate aftermath of the firing, the President dictated a press statement suggesting that he had acted based on the DOJ recommendations, and White House press officials repeated that story. But the President had decided to fire Comey before the White House solicited those recommendations. Although the President ultimately acknowledged that he was going to fire Comey regardless of the Department of Justice’s recommendations, he did so only after DOJ officials made clear to him that they would resist the White House’s suggestion that they had prompted the process that led to Comey’s termination. The initial reliance on a pretextual justification could support an inference that the President had concerns about providing the real reason for the firing, although the evidence does not resolve whether those concerns were personal, political, or both.
E. The President’s Efforts to Remove the Special Counsel
Overview
The Acting Attorney General appointed a Special Counsel on May 17, 2017, prompting the President to state that it was the end of his presidency and that Attorney General Sessions had failed to protect him and should resign. Sessions submitted his resignation, which the President ultimately did not accept. The President told senior advisors that the Special Counsel had conflicts of interest, but they responded that those claims were “ridiculous” and posed no obstacle to the Special Counsel’s service. Department of Justice ethics officials similarly cleared the Special Counsel’s service. On June 14, 2017, the press reported that the President was being personally investigated for obstruction of justice and the President responded with a series of tweets criticizing the Special Counsel’s investigation. That weekend, the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre an
d instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed.
Evidence
1. The Appointment of the Special Counsel and the President’s Reaction
On May 17, 2017, Acting Attorney General Rosenstein appointed Robert S. Mueller, III, as Special Counsel and authorized him to conduct the Russia investigation and matters that arose from the investigation. The President learned of the Special Counsel’s appointment from Sessions, who was with the President, Hunt, and McGahn conducting interviews for a new FBI Director. Sessions stepped out of the Oval Office to take a call from Rosenstein, who told him about the Special Counsel appointment, and Sessions then returned to inform the President of the news. According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.” The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, “How could you let this happen, Jeff?” The President said the position of Attorney General was his most important appointment and that Sessions had “let [him] down,” contrasting him to Eric Holder and Robert Kennedy. Sessions recalled that the President said to him, “you were supposed to protect me,” or words to that effect. The President returned to the consequences of the appointment and said, “Everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.”
The President then told Sessions he should resign as Attorney General. Sessions agreed to submit his resignation and left the Oval Office. Hicks saw the President shortly after Sessions departed and described the President as being extremely upset by the Special Counsel’s appointment. Hicks said that she had only seen the President like that one other time, when the Access Hollywood tape came out during the campaign.
The next day, May 18, 2017, FBI agents delivered to McGahn a preservation notice that discussed an investigation related to Comey’s termination and directed the White House to preserve all relevant documents. When he received the letter, McGahn issued a document hold to White House staff and instructed them not to send out any burn bags over the weekend while he sorted things out.
Also on May 18, Sessions finalized a resignation letter that stated, “Pursuant to our conversation of yesterday, and at your request, I hereby offer my resignation.” Sessions, accompanied by Hunt, brought the letter to the White House and handed it to the President. The President put the resignation letter in his pocket and asked Sessions several times whether he wanted to continue serving as Attorney General. Sessions ultimately told the President he wanted to stay, but it was up to the President. The President said he wanted Sessions to stay. At the conclusion of the meeting, the President shook Sessions’s hand but did not return the resignation letter.
When Priebus and Bannon learned that the President was holding onto Sessions’s resignation letter, they became concerned that it could be used to influence the Department of Justice. Priebus told Sessions it was not good for the President to have the letter because it would function as a kind of “shock collar” that the President could use any time he wanted; Priebus said the President had “DOJ by the throat.” Priebus and Bannon told Sessions they would attempt to get the letter back from the President with a notation that he was not accepting Sessions’s resignation.
On May 19, 2017, the President left for a trip to the Middle East. Hicks recalled that on the President’s flight from Saudi Arabia to Tel Aviv, the President pulled Sessions’s resignation letter from his pocket, showed it to a group of senior advisors, and asked them what he should do about it. During the trip, Priebus asked about the resignation letter so he could return it to Sessions, but the President told him that the letter was back at the White House, somewhere in the residence. It was not until May 30, three days after the President returned from the trip, that the President returned the letter to Sessions with a notation saying, “Not accepted.”
2. The President Asserts that the Special Counsel has Conflicts of Interest
In the days following the Special Counsel’s appointment, the President repeatedly told advisors, including Priebus, Bannon, and McGahn, that Special Counsel Mueller had conflicts of interest. The President cited as conflicts that Mueller had interviewed for the FBI Director position shortly before being appointed as Special Counsel, that he had worked for a law firm that represented people affiliated with the President, and that Mueller had disputed certain fees relating to his membership in a Trump golf course in Northern Virginia. The President’s advisors pushed back on his assertion of conflicts, telling the President they did not count as true conflicts. Bannon recalled telling the President that the purported conflicts were “ridiculous” and that none of them was real or could come close to justifying precluding Mueller from serving as Special Counsel. As for Mueller’s interview for FBI Director, Bannon recalled that the White House had invited Mueller to speak to the President to offer a perspective on the institution of the FBI. Bannon said that, although the White House thought about beseeching Mueller to become Director again, he did not come in looking for the job. Bannon also told the President that the law firm position did not amount to a conflict in the legal community. And Bannon told the President that the golf course dispute did not rise to the level of a conflict and claiming one was “ridiculous and petty.” The President did not respond when Bannon pushed back on the stated conflicts of interest.
On May 23, 2017, the Department of Justice announced that ethics officials had determined that the Special Counsel’s prior law firm position did not bar his service, generating media reports that Mueller had been cleared to serve. McGahn recalled that around the same time, the President complained about the asserted conflicts and prodded McGahn to reach out to Rosenstein about the issue. McGahn said he responded that he could not make such a call and that the President should instead consult his personal lawyer because it was not a White House issue. Contemporaneous notes of a May 23, 2017, conversation between McGahn and the President reflect that McGahn told the President that he would not call Rosenstein and that he would suggest that the President not make such a call either. McGahn advised that the President could discuss the issue with his personal attorney but it would “look like still trying to meddle in [the] investigation” and “knocking out Mueller” would be “[a]nother fact used to claim obst[ruction] of just[ice].” McGahn told the President that his “biggest exposure” was not his act of firing Comey but his “other contacts” and “calls,” and his “ask re: Flynn.” By the time McGahn provided this advice to the President, there had been widespread reporting on the President ‘s request for Comey’s loyalty, which the President publicly denied; his request that Comey “let[] Flynn go,” which the President also denied; and the President ‘s statement to the Russian Foreign Minister that the termination of Comey had relieved “great pressure” related to Russia, which the President did not deny.
On June 8, 2017, Comey testified before Congress about his interactions with the President before his termination, including the request for loyalty, the request that Comey “let[] Flynn go,” and the request that Comey “lift the cloud” over the presidency caused by the ongoing investigation. Comey’s testimony led to a series of news reports about whether the President had obstructed justice. On June 9, 2017, the Special Counsel’s Office informed the White House Counsel’s Office that investigators intended to interview intelligence community officials who had allegedly been asked by the President to push back against the Russia investigation.
On Monday, June 12, 2017, Christopher Ruddy, the chief executive of Newsmax Media and a longtime friend of the President’s, met at the White House with Priebus and Bannon. Ruddy recalled that they told him the President
was strongly considering firing the Special Counsel and that he would do so precipitously, without vetting the decision through Administration officials. Ruddy asked Priebus if Ruddy could talk publicly about the discussion they had about the Special Counsel, and Priebus said he could. Priebus told Ruddy he hoped another blow up like the one that followed the termination of Comey did not happen. Later that day, Ruddy stated in a televised interview that the President was “considering perhaps terminating the Special Counsel” based on purported conflicts of interest. Ruddy later told another news outlet that “Trump is definitely considering” terminating the Special Counsel and “it’s not something that’s being dismissed.” Ruddy’s comments led to extensive coverage in the media that the President was considering firing the Special Counsel.
White House officials were unhappy with that press coverage and Ruddy heard from friends that the President was upset with him. On June 13, 2017, Sanders asked the President for guidance on how to respond to press inquiries about the possible firing of the Special Counsel. The President dictated an answer, which Sanders delivered, saying that “[w]hile the president has every right to” fire the Special Counsel, “he has no intention to do so.”
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