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US. Department of Justice
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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(a)

Washington, DC.

March 2019

U.S. Department of Justice
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TABLE OF CONTENTS VOLUME II






INTRODUCTION To VOLUME 11 ..... . 1
EXECUTIVE SUMMARY To VOLUME II . 3
1. BACKGROUND LEGAL AND EVIDENTIARY PRINCIPLES. 9
A. Legal Framework of Obstruction of Justice... ..................... 9

B. Investigative and Evidentiary Considerations .............................................................. 12

11. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION ...................................................... 1 5
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

l. 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. DO] 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 KT. 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 ofthe 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
l. The Appointment ofthe 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
l. The President Learns About the Existence of Emails Concerning the June
9, 2016 Trump Tower Meeting ............................................................................. 98
2. The President Directs Communications StaffNot 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 .......................................................................................................... 1 13

1. The Press Reports that the President Tried to Fire the Special Counsel ............. 1 13

2. The President Seeks to Have McGahn Dispute the Press Reports ..................... 114

J. The President’s Conduct Towards Flynn, Manafort, m ................................ 120
1. Conduct Directed at Michael Flynn .................................................................... 120

2. Conduct Directed at Paul Manafort .................................................... ' ................ 122

3. ....................................................................... 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 .....
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 ofhis Article II Duties ................................. 178
IV. CONCLUSION ......................................................................................................................... 182

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INTRODUCTION TO VOLUME 11

This report is submitted to the Attorney General pursuant to 28 C.F.R. § 600.8(c), which
states that, “[a]t the conclusion of the Special Counsel’s work, he . . . shall provide the Attorney
General a confidential report explaining the prosecution or declination decisions [the Special
Counsel] reached.”

Beginning in 2017, the President ofthe United States took a variety of actions towards the
ongoing FBI investigation into Russia’s interference in the 2016 presidential election and related
matters that raised questions about whether he had obstructed justice. The Order appointing the
Special Counsel gave this Office jurisdiction to investigate matters that arose directly from the
FBI’s Russia investigation, including whether the President had obstructed justice in connection
with Russia-related investigations. The Special Counsel’s jurisdiction also covered potentially
obstructive acts related to the Special Counsel’s investigation itself. This Volume of our report
summarizes our obstruction-of—justice investigation of the President.

We first describe the considerations that guided our obstruction-of—justice investigation,
and then provide an overview of this Volume:

First, a traditional prosecution or declination decision entails a binary determination to
initiate or decline a prosecution, but we determined not to make a traditional prosecutorial
judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment
or criminal prosecution ofa sitting President would impermissibly undermine the capacity of the
executive branch to perform its constitutionally assigned functions” in violation of “the
constitutional separation of powers.”1 Given the role of the Special Counsel as an attorney in the
Department ofJustice and the framework ofthe Special Counsel regulations, see 28 U.S.C. § 515;
28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising
prosecutorial jurisdiction. And 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 and potentially preempt constitutional processes for addressing presidential misconduct.2

Second, while the OLC opinion concludes that a sitting President may not be prosecuted,
it recognizes that a criminal investigation during the President’s term is permissible.3 The OLC
opinion also recognizes that a President does not have immunity after he leaves office.4 And if
individuals other than the President committed an obstruction offense, they may be prosecuted at
this time. Given those considerations, the facts known to us, and the strong public interest in

1A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222,
222, 260 (2000) (OLC Op.).

2 See U.S. CONST. Art. I § 2, cl. 5; § 3, cl. 6; cf. OLC Op. at 257-258 (discussing relationship
between impeachment and criminal prosecution of a sitting President).

3 OLC Op. at 257 n.36 (“A grand jury could continue to gather evidence throughout the period of
immunity”).

4 OLC Op. at 255 (“Recognizing an immunity from prosecution for a sitting President would not
preclude such prosecution once the President’s term is over or he is otherwise removed from office by
resignation or impeachment”).

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safeguarding the integrity of the criminal justice system, we conducted a thorough factual
investigation in order to preserve the evidence when memories were fresh and documentary
materials were available.

Third, we considered whether to evaluate the conduct we investigated under the Justice
Manual standards governing prosecution and declination decisions, but we determined not to apply
an approach that could potentially result in ajudgment that the President committed crimes. The
threshold step under the Justice Manual standards is to assess whether a person’s conduct
“constitutes a federal offense.” U.S. Dep’t of Justice, Justice Manual § 9-27.220 (2018) (Justice
Manual). Fairness concerns counseled against potentially reaching that judgment when no charges
can be brought. The ordinary means for an individual to respond to an accusation is through a
speedy and public trial, with all the procedural protections that surround a criminal case. An
individual who believes he was wrongly accused can use that process to seek to clear his name. In
contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought,
affords no such adversarial opportunity for public name—clearing before an impartial adjudicator.5

The concerns about the fairness of such a determination would be heightened in the case
of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report,
could carry consequences that extend beyond the realm of criminal justice. OLC noted similar
concerns about sealed indictments. Even if an indictment were sealed during the President’s term,
OLC reasoned, “it would be very difficult to preserve [an indictment’s] secrecy,” and if an
indictment became public, “[t]he stigma and opprobrium” could imperil the President’s ability to
govern.”6 Although a prosecutor’s internal report would not represent a formal public accusation
akin to an indictment, the possibility ofthe report’s public disclosure and the absence ofa neutral
adjudicatory forum to review its findings counseled against potentially determining “that the
person’s conduct constitutes a federal offense.” Justice Manual § 9-27.220.

Fourth, if we had confidence after a thorough investigation of the facts that the President
clearly did not commit obstruction ofjustice, we would so state. Based on the facts and the
applicable legal standards, however, we are unable to reach that judgment. 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. Accordingly, while this report does
not conclude that the President committed a crime, it also does not exonerate him.

:1: 4: *

This report on our investigation consists of four parts. Section 1 provides an overview of
obstruction-of-justice principles and summarizes certain investigatory and evidentiary
considerations. Section 11 sets forth the factual results of our obstruction investigation and
analyzes the evidence. Section 111 addresses statutory and constitutional defenses. Section IV
states our conclusion.

5 For that reason, criticisms have been lodged against the practice of naming unindicted co-
conspirators in an indictment. See United States v. Briggs, 514 F.2d 794, 802 (5th Cir. 1975) (“The courts
have struck down with strong language efforts by grand juries to accuse persons of crime while affording
them no forum in which to vindicate themselves”); see also Justice Manual § 9-11.130.

6 OLC Op. at 259 & 11.38 (citation omitted).

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EXECUTIVE SUMMARY T0 VOLUME 11

Our obstruction-of-justice inquiry focused on a series of actions by the President that
related to the Russian-interference investigations, including the President’s conduct towards the
law enforcement officials overseeing the investigations and the witnesses to relevant events.

FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION
The key issues and events we examined include the following:

The Campaign ’s response to reports about Russian support for Trump. During the 2016
presidential campaign, questions arose about the Russian government’s apparent support for
candidate Trump. After WikiLeaks released politically damaging Democratic Party emails that
were reported to have been hacked by Russia, Trump publicly expressed skepticism that Russia
was responsible for the hacks at the same time that he and other Campaign officials privately
sought information about any further planned WikiLeaks
releases. Trump also denied having any business in or connections to Russia, even though as late
as June 2016 the Trump Organization had been pursuing a licensing deal for a skyscraper to be
built in Russia called Trump Tower Moscow. Afier the election, the President expressed concerns
to advisors that reports of Russia’s election interference might lead the public to question the
legitimacy ofhis election.

Conduct involving FBI Director Comey and Michael Flynn. In mid-January 2017,
incoming National Security Advisor Michael Flynn falsely denied to the Vice President, other
administration officials, and FBI agents that he had talked to Russian Ambassador Sergey Kislyak
about Russia’s response to U.S. sanctions on Russia for its election interference. On January 27,
the day after the President was told that Flynn had lied to the Vice President and had made similar
statements to the FBI, the President invited FBI Director Comey to a private dinner at the White
House and told Comey that he needed loyalty. On February 14, the day after the President
requested Flynn’s resignation, the President told an outside advisor, “Now that we fired Flynn, the
Russia thing is over.” The advisor disagreed and said the investigations would continue.

Later that afternoon, the President cleared the Oval Office to have a one-on-one meeting
with Comey. Referring to the FBI’s investigation of Flynn, the President said, “I hope you can
see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this
go.” Shortly after requesting Flynn’s resignation and speaking privately to Comey, the President
sought to have Deputy National Security Advisor K.T. McFarland draft an internal letter stating
that the President had not directed Flynn to discuss sanctions with Kislyak. McFarland declined
because she did not know Whether that was true, and a White House Counsel’s Office attorney
thought that the request would look like a quid pro quo for an ambassadorship she had been offered.

The President’s reaction to the continuing Russia investigation. In February 2017,
Attorney General Jeff Sessions began to assess whether he had to recuse himself from campaign-
related investigations because of his role in the Trump Campaign. In early March, the President
told White House Counsel Donald McGahn to stop Sessions from recusing. And after Sessions
announced his recusal on March 2, the President expressed anger at the decision and told advisors
that he should have an Attorney General who would protect him. That weekend, the President
took Sessions aside at an event and urged him to “unrecuse.” Later in March, Comey publicly

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disclosed at a congressional hearing that the FBI was investigating “the Russian govemment’s
efforts to interfere in the 2016 presidential election,” including any links or coordination between
the Russian government and the Trump Campaign. In the following days, the President reached
out to the Director of National Intelligence and the leaders of the Central Intelligence Agency
(CIA) and the National Security Agency (N SA) to ask them what they could do to publicly dispel
the suggestion that the President had any connection to the Russian election—interference effort.
The President also twice called Comey directly, notwithstanding guidance from McGahn to avoid
direct contacts with the Department of Justice. Comey had previously assured the President that
the FBI was not investigating him personally, and the President asked Comey to “lifi the cloud”
ofthe Russia investigation by saying that publicly.

The President’s termination of Camey. On May 3, 2017, Comey testified in a
congressional hearing, but declined to answer questions about whether the President was
personally under investigation. Within days, the President decided to terminate Comey. The
President insisted that the termination letter, which was written for public release, state that Comey
had informed the President that he was not under investigation. The day of the firing, the White
House maintained that Comey’s termination resulted from independent recommendations from the
Attorney General and Deputy Attorney General that Comey should be discharged for mishandling
the Hillary Clinton email investigation. But the President had decided to fire Comey before
hearing from the Department of Justice. The day after firing Comey, the President told Russian
officials that he had “faced great pressure because of Russia,” which had been “taken off” by
Comey’s firing. The next day, the President acknowledged in a television interview that he was
going to fire Comey regardless of the Department of Justice’s recommendation and that when he
“decided to just do it,” he was thinking that “this thing with Trump and Russia is a made-up story.”
In response to a question about whether he was angry with Corncy about the Russia investigation,
the President said, “As far as I’m concerned, I want that thing to be absolutely done properly,”
adding that firing Comey “might even lengthen out the investigation.”

The appointment ofa Special Counsel and effarts to remove him. On May 17, 2017, the
Acting Attorney General for the Russia investigation appointed a Special Counsel to conduct the
investigation and related matters. The President reacted to news that a Special Counsel had been
appointed by telling advisors that it was “the end of his presidency” and demanding that Sessions
resign. Sessions submitted his resignation, but the President ultimately did not accept it. The
President told aides that the Special Counsel had conflicts of interest and suggested that the Special
Counsel therefore could not serve. The President’s advisors told him the asserted conflicts were
meritless and had already been considered by the Department of Justice.

On June 14, 2017, the media reported that the Special Counsel’s Office was investigating
whether the President had obstructed justice. Press reports called this “a major turning point” in
the investigation: while Comey had told the President he was not under investigation, following
Comey’s firing, the President now was under investigation. The President reacted to this news
with a series of tweets criticizing the Department of Justice and the Special Counsel’s
investigation. On June 17, 2017, the President called McGahn at home and directed him to call
the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be
removed. McGahn did not carry out the direction, however, deciding that he would resign rather
than trigger what he regarded as a potential Saturday Night Massacre.


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