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The Mueller Report’s ‘Smoking Gun’ on Obstruction of Justice

Win McNamee/Getty Images
Robert Mueller at a Department of Justice ceremony upon his retirement as then director of the FBI, Washington, D.C., August 1, 2013

It is only two sentences in a report of some 448 pages. As yet unnoticed, these lines provide the strongest new evidence uncovered by Robert Mueller’s investigators that President Donald Trump may have indeed obstructed justice. Two people directly involved in the case told me that several of the special counsel’s prosecutors privately considered this information to be a “smoking gun” suggesting that the president acted criminally. 

That section of the Mueller report—which also refers to former FBI Director James Comey, former National Security Adviser Michael Flynn, then White House Counsel Don McGahn II, and the former Russian ambassador to the United States, Sergey Kislyak—reads as follows:

By the time the President spoke to Comey about Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn’s statements to senior White House officials about his contacts with Kislyak were not true and that Flynn had told the same version of events to the FBI. McGahn also informed the President that Flynn’s conduct could violate 18 USC §1001. [US Code Title 18 § 1001 is the federal statute that makes it a felony to lie to the FBI or other federal investigators, a crime that Flynn did indeed later plead guilty to.]

The significance of this section is that Trump’s personal attorneys have always defended the president by arguing to the special counsel that Trump did not know that Flynn was under criminal investigation for lying to the FBI about his conversations with Kislyak. For nearly nine months, despite my own reporting for the Daily that contradicted their story, the Trump legal team’s version—that Trump did not understand Flynn was under investigation when he leaned on Comey—largely prevailed. That was until the Mueller report finally laid to rest this fiction.

The central incident in any potential obstruction case, described on page 46 of Volume II of the Mueller report, is well known: Comey had alleged that Trump had pressured him, while the two men were alone in the Oval Office, on February 14, 2017, to shut down an FBI investigation of Trump’s former national security adviser, Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go,” Comey testified the president said to him. 

Despite Trump’s denial that he said this to Comey, the special counsel concluded that “substantial evidence corroborates Comey’s account.” An obstruction of justice is an effort to “corruptly” impede or interfere with an ongoing criminal investigation. The special counsel uncovered evidence that Trump did exactly that. But for Trump or anyone else to obstruct justice, the law also requires that there must be a “nexus to a proceeding,” meaning that anyone attempting to stymie investigators must clearly have understood that whomever they were attempting to protect was under criminal investigation.

On July 31, 2018, the Daily disclosed that the special counsel had that evidence: as I reported, witness statements and records demonstrated that President Trump did, in fact, know that Flynn was under criminal investigation when he pressured Comey to shut down the FBI’s investigation of him. That evidence included “highly confidential White House records and testimony by some of President Trump’s own top aides—[which] provides some of the strongest evidence to date implicating the president of the United States in an obstruction of justice.” 

Two of President Trump’s defense attorneys, Jay Sekulow and Rudy Giuliani, then fed denials that the Daily’s story was accurate to reporters for at least half a dozen major news organizations, while publicly declining to comment on the record. When asked about the Daily’s story on ABC’s This Week with George Stephanopoulos, Sekulow responded: “I’m not at liberty to discuss that.”

Several sources have told me, however, that McGahn told investigators that he’d told the president that Flynn was under investigation for lying to the FBI just before the Oval Office encounter when Trump pressured Comey to end the investigation. These same sources have also told me that Annie Donaldson, the chief of staff to McGahn, provided Mueller’s investigators with notes she made detailing what McGahn had dictated to her after he spoke to the president. A timeline put together by McGahn and two other White House attorneys further partially corroborated McGahn’s account.

A person close to McGahn told me that McGahn “clearly understood that what he was telling Mueller could end up as the legal basis in part for the president to be prosecuted… or as the grounds for impeachment.” Extraordinarily, no one on the president’s legal team knew the extent of McGahn’s cooperation with prosecutors at the time. “[McGahn] was quite anxious that he was going to be found out,” this same person told me. “But that day never came.” This may, ironically, have worked in the president’s favor, my source noted: “Say the president found out what McGahn was up to, and threatened him, which is the president’s first impulse… McGahn would have had to immediately tell [investigators], because that type of behavior might be construed as an obstruction or witness intimidation.”

Mueller’s report noted that a decision by the Justice Department’s Office of Legal Counsel (OLC) precluded a sitting president’s being indicted while in office, and further added: “Apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern.” In the end, Mueller did not recommend criminal charges be brought against the president for obstruction. In his report, Mueller explained:

If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state… The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.

The only means of legal accountability for a felonious president, Mueller suggested, was impeachment:

The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

With the delivery of the Mueller report, even partly redacted as it is, Congress now has firm evidence, based on testimony from the White House Counsel and others, of a clear “nexus to a proceeding” and “corrupt intent” in the president’s conduct in pressuring Comey to end the investigation of Flynn. Not only does the Mueller report not exonerate Trump of obstruction of justice, but it has also given Congress a clear path to pursue the charge.