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US. Department of Justice

WNWWWW

had not backed down and would not budge.828 Following the Oval Office meeting, the President’s
personal counsel called McGahn’s counsel and relayed that the President was “fine” with
McGahn.829

Analysis

In analyzing the President’s efforts to have McGahn deny that he had been ordered to have
the Special Counsel removed, the following evidence is relevant to the elements of obstruction of
justice:

a. Obstructive act. The President’s repeated efforts to get McGahn to create a record
denying that the President had directed him to remove the Special Counsel would qualify as an
obstructive act ifit had the natural tendency to constrain McGahn from testifying truthfully or to
undermine his credibility as a potential witness ifhe testified consistently with his memory, rather
than with what the record said.

There is some evidence that at the time the New York Times and Washington Post stories
were published in late January 2018, the President believed the stories were wrong and that he had
never told McGahn to have Rosenstein remove the Special Counsel. The President correctly
understood that McGahn had not told the President directly that he planned to resign. In addition,
the President told Priebus and Porter that he had not sought to terminate the Special Counsel, and
in the Oval Office meeting with McGahn, the President said, “I never said to fire Mueller. I never
said ‘firc.’” That evidence could indicate that the President was not attempting to persuade
McGahn to change his story but was instead offering his own—but different—recollection of the
substance of his June 2017 conversations with McGahn and McGahn’s reaction to them.

Other evidence cuts against that understanding of the President’s conduct. As previously
described, see Volume II, Section II.E, supra, substantial evidence supports McGahn’s account
that the President had directed him to have the Special Counsel removed, including the timing and
context of the President’s directive; the manner in which McGahn reacted; and the fact that the
President had been told the conflicts were insubstantial, were being considered by the Department
of Justice, and should be raised with the President’s personal counsel rather than brought to
McGahn. In addition, the President’s subsequent denials that he had told McGahn to have the
Special Counsel removed were carefully worded. When first asked about the New York Times
story, the President said, “Fake news, folks. Fake news. A typical New York Times fake story.”
And when the President spoke with McGahn in the Oval Office, he focused on whether he had
used the word “fire,” saying, “I never said to fire Mueller. I never said ‘fire’” and “Did I say the
word ‘fire’?” The President’s assertion in the Oval Office meeting that he had never directed
McGahn to have the Special Counsel removed thus runs counter to the evidence.

In addition, even ifthe President sincerely disagreed with McGahn’s memory of the June
17, 2017 events, the evidence indicates that the President knew by the time of the Oval Office

8” McGahn 3/8/18 302, at 5. Kelly did not recall discussing the Oval Office meeting with the
President after the fact. Kelly 8/2/18 302, at 2. Handwritten notes taken by Kelly state, “Don[:] Mueller
discussion in June. Bannon Priebus - came out okay.” WH000017685 (Kelly 2/6/18 Notes).

829 McGahn 3/8/18 302, at 5 (agent note).

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