Those words and actions by Trump did not constitute obstruction of justice for several reasons. First, Mueller was not removed, so there was no obstructive act. The special counsel investigation proceeded uninterrupted. Second, it was not an attempt to obstruct because the law does not criminalize thoughts and discussions. Third, the president’s intent was not improper, as the law requires. Conversations show that he sincerely believed Mueller was conflicted and could not render a fair conclusion to the investigation. Trump’s expressed concerns seem legitimate and do not form a corrupt purpose. Fourth, the investigation uncovered evidence that Trump did not necessarily want to remove Mueller but “simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention.”237 Finally, even if Mueller were removed, a replacement would be named. The report admits that the work of the special counsel would not have stopped.
When the story of the Trump-McGahn conversations was leaked to the media, the president denied their accurate portrayal and asked his counsel to deny them as well. Trump and McGahn disagreed over whether the reporting was factual. If the president genuinely believed that the story was incorrect, his intent was not improper. But this is largely irrelevant to any consideration of obstruction of justice, because media reports are not official investigations or legal proceedings. Obstructing the press is not a crime, although it tends to be a Washington preoccupation.
Trump Tower Moscow Project
As noted earlier, the concept of constructing a commercial and residential tower in Moscow was an undertaking that Trump considered and then abandoned in 2016. Mueller found no evidence of a criminal “collusion” conspiracy. But he did explore the lie that Trump’s personal lawyer Michael Cohen had told to Congress about whether the president had directed him to give such false testimony. If true, it would have constituted a conspiracy to obstruct justice.
Cohen was the driving force behind the building proposal. He had personal financial incentives attached to the deal should it ever be consummated. But the obstacles proved to be insurmountable. The potential project fell apart in the spring and summer 2016. During the campaign, Trump insisted he had “no deals” and no investments in Russia. This was true. No deal had been struck. Discussions pursuant to a “letter of intent” had collapsed. On his own, Cohen began telling reporters that “the Trump Tower Moscow deal was not feasible and had ended in January 2016.” That was untrue. It had ended months later, in May or June. But Cohen peddled that deception because, according to the Mueller Report, he thought “it limited the period when candidate Trump could be alleged to have a relationship with Russia to an earlier point in the campaign.”238 Cohen then repeated the same lie, and several others, to Congress when he submitted a statement in August 2017.
It is puzzling why Cohen would lie about something that is not a crime, until you consider that deceit is second nature to the disgraced lawyer who pleaded guilty to crimes including lying to Congress and fraud. Prosecutors portrayed him as a prodigious liar and cheat. However, the special counsel found that the president had not been a party to Cohen’s mendacity. The report concluded that the evidence “does not establish that the President directed or aided Cohen’s false testimony.”239 The specifics of this story will be scrutinized in a later chapter.
Evidence in Trump’s Favor
In his report, Mueller recognized several factors that militated in favor of Trump and against any finding of an obstruction of justice offense.
First, many of “the President’s acts were facially lawful” during the exercise of his constitutional powers.240
Second, “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.”241 Though not dispositive, it is compelling evidence of the lack of criminal intent. Why would a person obstruct or cover up a noncrime?
Third, many of the president’s actions and statements had “occurred in public view.”242 People rarely obstruct in a conspicuous manner; discreet acts of interference are the norm.
Fourth, the FBI and special counsel investigations were not actually obstructed.243 They continued to their conclusions. Trump had never asserted executive privilege. He had voluntarily handed over 1.4 million pages of documents and made all witnesses available to the special counsel. He had allowed his White House counsel to spend roughly thirty hours being interviewed, even though all of the McGahn-Trump conversations were privileged. The president’s devotion to transparency was unprecedented.
A consistent underlying thread of evidence runs through the Mueller Report: the president was confident that he had not “colluded” with Russia and was being wrongfully targeted by investigators who were partisan and unfair. The probe itself was eroding his ability to govern. Quite often, Trump chose to avail himself of public forums to defend against what he perceived to be false accusations driven by political motivations. That was his right under the First Amendment. In fact, it was his only option. He was facing a one-sided investigation.
Conclusion
Mueller tried but failed to find evidence of a conspiracy with Russia. None existed, and the special counsel was forced to admit the obvious. Yet when it came to obstruction of justice, he turned the burden of proof upside down and refused to make the decision that he owed to the president and the American people. Inverting this time-honored standard and effectively forcing Trump to prove his own innocence is not how the rule of law works. Along the way, Mueller ignored rampant acts of gross misconduct at his former haunt, the FBI. Perhaps out of loyalty to the institution, he turned a blind eye to corrupt behavior by senior officials there, whom he knew all too well. Those misdeeds formed the basis of his probe. Yet his silence on those matters was deafening. Long after he realized that there had been no “collusion,” he persisted in a feckless investigation of obstruction. Mueller came to symbolize the “witch hunt” that was originated by his longtime friend and colleague James Comey.
It was wrong of Mueller to hire a contingent of political partisans. It was a mistake to issue a nearly two-hundred-page report on obstruction of justice that alleged noncriminal wrongdoing. Selective inferences and ambiguities are not empirical evidence. It was equally inappropriate for him to try to influence congressional debate by composing what amounted to an impeachment referral. That was way beyond his authority and a shameful abuse of his power. Only when agitation to remove the president began to wane did Mueller elect to hold a news conference to fan the flames of impeachment. That was reprehensible.
Robert Charles, who once served as assistant secretary of state and is a former naval intelligence officer and litigator, posed an important question for Mueller:
How is it that your report omits inquiry into origins of collusion allegations you were commissioned to investigate? And how do you explain your recent behavior—which appears aimed at clearing the FBI and intentionally encouraging impeachment?244
Mueller didn’t want to talk about it, as he made plain in his brief statement to the media and the American public.
If the special counsel could not render a credible finding of obstruction, he should have said so and remained silent. Instead, Mueller repudiated established constitutional principles, adulterated the law of obstruction, and perverted due process. He produced a magnum opus that stands as an egocentric monument to the miscarriage of justice. Together with his partisan prosecutors, he rewrote more than two centuries of US jurisprudence by tainting Trump with the presumption of guilt. His tenure as special counsel was disgraceful.
To those who have long been suspicious of Mueller’s tactics, dating back to his tenure as FBI director, his report came as no surprise. Representative Louie Gohmert, who for years has carefully tracked and questioned Mueller’s “sordid history of illicitly targeting innocent people,” produced and published a seventy-five-page compilation of what he described as chronic misconduct.245 He rendered that verdict a full year before the conclusion of the special counsel investigation:
Judgi
ng by Mueller’s history, it doesn’t matter who he has to threaten, harass, prosecute or bankrupt to get someone to be willing to allege something—anything—about our current President, it certainly appears Mueller will do what it takes to bring down his target, ethically or unethically, based on my findings.246
Former governor Chris Christie was prescient in his metaphorical description of Robert Mueller as “a trained assassin.” I agree that Mueller’s report reads like a “hit job.”
Chapter 6
The Media Witch Hunt
SCARECROW: I haven’t got a brain . . . only straw.
DOROTHY: How can you talk if you haven’t got a brain?
SCARECROW: I don’t know. But some people without brains do an awful lot of talking, don’t they?
DOROTHY: Yes, I guess you’re right.
—THE WIZARD OF OZ, 1939
I think the media has been hurt by this political witch hunt hoax, maybe more than anybody else. The Democrats and the media had a partnership. They were deranged. They were totally deranged. They really did try to take away an election. It’s the greatest con job in the history of American politics.
—AUTHOR’S INTERVIEW WITH PRESIDENT DONALD J. TRUMP, OVAL OFFICE, WHITE HOUSE, JUNE 25, 2019
Call him the “Typhoid Mary” of the Steele “dossier.” David J. Kramer, a middle-aged man with a reddish beard, wire-rimmed glasses, and a serious demeanor, injected the virus of the Russia conspiracy into the bloodstream of the American mainstream media and triggered an infection so extreme that the patient nearly died.
A Harvard graduate and student of US-Russia geopolitics for thirty years, Kramer epitomized the Washington middle-level denizen dubbed “deep state.” He’d worked in academia, in think tanks, at the US State Department, and at the McCain Institute. He sat on the board of directors of the prestigious Halifax International Security Forum, which hosts an annual conference attended by top civilian and military experts from around the world.
The mid-November 2016 conference held in Halifax, Nova Scotia, buzzed with excitement. Trump had just won the presidency and was viewed by many attendees, including Kramer, as a frightening wild card. During a break in proceedings on Saturday, November 19, Sir Andrew Wood, a former UK ambassador to Russia, pulled Kramer aside. The two men often shared articles and information about Russia by email with like-minded scholars.
“He said he was aware of information that he thought I should be aware of and that Senator McCain might be interested in,” Kramer later said in a deposition.1 Wood had not seen the material himself, but “he had been told that some information had been gathered that pointed to possible collusion” with the Russians by President-elect Trump.
Kramer had deep suspicions about Trump’s ability to counter Putin’s dangerous aggressions. Just a few days before the conference, he had coauthored a story for Politico titled, “How Trump’s Victory Could Give Russia Another Win.”2 He contended that Putin posed an “existential threat” to Western democracies and that “controversy about ties to Russia shadowed Trump throughout the campaign.”
Not only did he write about the threat, he took action. In July 2016, he had been one of about two dozen national security experts who had signed an open letter to Congress asking for an investigation into the hacking of the DNC by Russia.3 And he had signed another open letter saying that Trump “lacked the character” to be president.4 When approached by the esteemed Sir Andrew with secret dirt on Trump, Kramer was eager to help. “I believe that he felt that I was the best person he knew to act as a conduit to get to Senator McCain,” Kramer said.
As senior director for human rights and democracy at the McCain Institute since 2014, Kramer had gotten to know the senator well. He was working on a book about Russia to be published by the McCain Institute in mid-2017. And it so happened that McCain was attending that year’s annual meeting. Kramer sought out the senator and delivered Wood’s tantalizing message. McCain was intrigued. Later that day, the senator and his top staffer, Christian Brose, met with Kramer and Wood in a private room. Wood explained that a London source with the “utmost credibility” had gathered evidence revealing Trump’s ties to Putin and the existence of a sexually depraved video that could expose Trump to Kremlin blackmail. The senator, who had a long-standing feud with Trump, asked Kramer if he would go to London to meet the source. After Kramer agreed, Wood revealed that the informant was a former MI6 spy.
On Sunday, November 28, Kramer flew to London, so keen to oblige that he used his own air miles to book the flight and paid the airport fees himself. It felt a bit cloak and dagger. On Monday morning, he was met at Heathrow by Christopher Steele, who was wearing a blue coat and carrying a copy of the Financial Times, as had been prearranged. The Cambridge-educated former spy looked like his name: distinguished, with gray hair and a confident manner.
Steele took Kramer to his home in Surrey. He said that his firm had been engaged to look into Trump’s business dealings in Russia to find any compromising material on the real estate tycoon. He did not reveal who had hired him but stressed several times that he did not tailor the information for the client or “sugarcoat it or shape it one way or the other.” Just the facts. He handed over a lengthy document comprising sixteen or seventeen memos. Kramer took about an hour to read hair-raising, salacious details of Trump’s corruption, sexual perversion, and cronyism outlined by Steele’s numerous high-level Russian sources.
Steele assured him that although the memos needed to be corroborated and verified, “based on the sources and based on his own company’s track record, he felt that at least he had the best sources possible to provide [the] information.” In other words, this was solid material, not rumor or gossip. He assured Kramer that there was video proof of the “golden shower” allegation. However, despite his James Bond level of expertise, Steele had no idea how to obtain the video. Steele explained that he had approached an “FBI person” in Europe to share what he had found and hoped that the agency would take a serious look at it. If Senator McCain weighed in, that would give the FBI an “additional prod” to take this seriously. That’s why he had reached out to Kramer through Wood.
Kramer felt honored to be singled out as someone with enough clout to provide the material to McCain, then the chairman of the Senate Committee on Armed Services. He had no idea that Steele had been trying for months to manipulate the FBI, the State Department, and media sources to get his “dossier” into the public domain. Nor did he know that although the FBI had used the “dossier” to obtain a FISA warrant on Carter Page, the agency had ended its relationship with Steele on November 1 because of his numerous conversations with the media and lying about them to the FBI.5 And there were clear indications that his sources and methods were problematic.
During a meeting with Kathleen Kavalec, deputy assistant secretary of state, on October 11, 2016, Steele had expressed his intense desire to get the information into the public domain by his deadline: election day. In a memo she sent to the FBI, Kavalec wrote that Steele had cited a “technical/human operation run out of Moscow targeting the election” that recruited émigrés in the United States to do “hacking and recruiting.” Steele had told her that they were paid through the Russian Consulate in Miami, which Kavalec noted did not exist.6 That was a red-flag warning to the FBI that Steele was unreliable as a source and that his “dossier” was likely a lie. If a State Department official, untrained in the techniques of uncovering deception, could accurately size up Steele as a fabricator during the course of just one brief meeting, the FBI must have known that its paid informant was selling false evidence. Yet ten days later the Bureau and the DOJ used Steele’s suspect document as the basis for a warrant to spy on a Trump campaign associate.
During his meeting with Kramer, Steele refused to give him a copy of the “dossier” memos to carry back on the airplane. Too risky. But he promised that one would be given to him after he returned home by Glenn Simpson, who had hired him. They had never met, but Kramer knew of Simpson’s rep
utation as a former writer for the Wall Street Journal who had written extensively about Russia. After fewer than twelve hours on the ground in London, Kramer flew back home to Washington—a whirlwind trip at considerable expense just so the supposed supersecret agent Steele could sell him on the reliability and grave national importance of the evidence against Trump.
On Tuesday, November 29, at 5:00 p.m., Kramer met with Simpson, who handed over two copies of the “dossier,” one with more redactions than the other. Kramer still didn’t realize that he was being set up. Simpson did admit to Kramer that he had spoken to the New York Times. But he did not disclose that he and Steele had also talked to the Washington Post, Mother Jones, CNN, ABC, and The New Yorker. His efforts thus far had yielded only a few stories.
Gradually, Simpson and Steele had discovered the key to spreading the hoax: journalists had trouble reporting out the allegations because they weren’t true, but they could report truthfully that the government was looking into something. Of the tens of thousands of Russia stories about to push everything else off the front page for years, nearly all of them would be about the search for proof, rather than actual proof.
Former Newsweek reporter Michael Isikoff had published an article for Yahoo! News on September 23, 2016, about Carter Page’s trip to Russia titled “U.S. Intel Officials Probe Ties Between Trump Adviser and Kremlin,” relying on anonymous sources—clearly Steele and Simpson.7 On the same day, Julia Ioffe wrote a story for Politico, “Who Is Carter Page? The Mystery of Trump’s Man in Moscow.”8 On October 31, David Corn published a story in Mother Jones that was the first to surface Steele’s existence, “A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump.”9 Steele was not named.
Corn passed a copy of the “dossier” to his longtime friend James Baker, then FBI general counsel, who later told Congress that the Bureau had been aware that Simpson was shopping the documents to many people in government and media in an effort to “elevate” the “dossier’s” profile. “I know that David was anxious to get this into the hands of FBI,” Baker said.10 The three stories included quotes from a blistering letter to Comey, written by Senate minority leader Harry Reid, demanding an investigation of Trump-Russia ties, also instigated by the Steele “dossier.” But the topic didn’t catch fire in the wider media. Corn was known as a partisan activist, it was easy to dismiss the grandstanding Reid, and solid journalists who tried to corroborate the “dossier’s” contents failed.
Witch Hunt Page 28