Jack - Mueller Report - Pt. 10

Episode Date: July 26, 2019

Join the hosts of the award-winning Mueller, She Wrote podcast as they dissect the Mueller Report. This week we cover volume 2, pages 1-14 and dive deeper into the covfefe of obstructions with added context from Mueller's historic testimony this week. 

Hi, I'm Harry Lickman, host of Talking Feds. Around table, the brings together prominent figures from government law and journalism for a dynamic discussion of the most important topics of the day. Each Monday, I'm joined by a slate of Feds favorites and new voices to break down the headlines and give the insider's view of what's going on in Washington and beyond. Plus, Sidebar is explaining important legal concepts read by your favorite celebrities. Find Talking Fedswear every you get your podcasts. So to be clear, Mr. Trump has no financial relationships with any Russian oligarchs.

That's what he said. That's what he said. That's what I said. That's obviously what our position is. I'm not aware of any of those activities. I have been called a surrogate at a time of truth in that campaign, and I didn't have, not have communications with the Russians. What do I have to get involved with Putin

for having nothing to do with Putin? I've never spoken to him. I don't know anything about a mother than he will respect me. Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. So, it is political. You're a communist! No, Mr. Green. Communism is just a red herring. Like all members of the oldest profession, I'm a capitalist. Hello and welcome to Mueller, she wrote,

and this is our special coverage of the Mueller Report as we do page by page analysis and bring it to you contextually, with swears. The first nine episodes can be found on our main feed, and they're all about Russian contacts with the Trump campaign. This week, the day after Mueller's public testimony, actually, to the House Judiciary and Intelligence committees, we are starting volume two of the report. And this volume is on obstruction of justice.

So today, we're going to cover the first 14 pages of volume two, which includes the introduction, the executive summary, and section one, the background, legal and evidentiary principles, which is comprised of the legal framework for obstruction of justice, where we break down what, you know, what makes obstruction of justice, obstruction of justice, and the investigative and evidentiary considerations. So there's a lot of technical stuff in this. I'm gonna break it down for you in like layman's terms so that it's easy to understand that's what we're here for. So how are you guys doing with me today? As always Jalice Johnson and Jordan Coburn? Hello doing good. Yeah, what's up? Yeah, it's getting hotter. It is in the world

In the world Everywhere yeah, temperature wise. It's also politically. Yeah, it's getting politically Litt yeah, I'm trying to make a stupid pun there, but yeah, I'm quite worried politics Yeah, global warming, you know hoax hoax weather. Oh, yeah, it's all big hoax. Yes, yes, but didn't quite work. Politics. Global warming, you know, hoax weather. Oh yeah, it's all big hoax. Yes, yes. But yeah, we're sweating. So, that's how that's going.

And the House Intelligence Committee testimony yesterday was mostly about the Russian contact stuff, which is what we covered in parts one through nine. But it was the first three hours with the House Judiciary Committee that focused more on what's in volume two, which we're starting today. And that's the obstruction of justice aspects of the investigation. So assuming you've already reviewed the table of contents and read the syllabus, read the class syllabus, let's get started on page one of volume two with a Mueller report. Let's do it.

So the opening statement Mueller tells us the reason he's writing his report. And that's because of the rule that states he must write a report. And it actually says he has to provide a confidential report explaining the prosecution and declination decisions that he reached during his investigation. And we were all kind of wondering when the report came out or before it came out, how he was going to do that, because all he really had to do, it could have been a 20-page report, and he could have just listed who he prosecuted and who he did not. And he didn't even have to go into why or tell the full story. So we

actually got a really, really good robust report from him. More than what I thought we were going to get. So here we are going and it's going to take us 20 episodes to get through it, but it is important. And if you haven't read it, you guys have read it. So never mind, you're not the target market. Mueller says at the beginning of 2017, Trump took actions towards the ongoing FBI investigation into Russian interference that raised questions as to whether he obstructed justice and that Mueller had jurisdiction to investigate obstruction

and he had jurisdiction to investigate whether Trump obstructed the Mueller investigation itself. So not just the obstruction of the FBI crossfire hurricane investigation, but he breaks this into two parts and we'll get into that later. But also obstruction of his own of Mueller's investigation. So he had the jurisdiction to do both of those things. And that was spelled out in those public kind of memorandums that said what jurisdiction Mueller has. And it's also spelled out in the rules of the special council and several other places.

So there shouldn't be any question as to whether or not he can look into this. So volume two summarizes those obstruction investigations. So again, this is a summary. This isn't all of the obstructions of justice, which we call the cafe of obstructions. which we call the Caffé-Fa of abstractions. That's right. Collective plural, yeah. For abstractions of justice. And in this introduction, Mueller first describes the considerations that guided his investigation and then provides an overview of the volume.

So we have four considerations here. First, this is where Mueller says he determined not to make a traditional prosecutorial judgment in the case of obstruction. And there's a lot of controversy about this, right? And he based this decision on a long standing Department of Justice Office of Legal Counsel Finding or Opinion that the indictment or criminal

prosecution of a sitting president would undermine the capacity of the executive branch and the government, or the president to perform its constitutionally assigned functions in violation of the constitutional separation of powers. So Mueller accepted that and agreed with its findings apart from constitutionality. So I don't know if he necessarily, he's basically saying, I can't tell you whether or not I agree with this memo or this policy, this office of legal counts policy, but I followed it. And that's what he said.

And that's why we didn't get an indictment out of him for the president. Second, and this is probably even the more controversial part, he says, even though he can't indict a president, the OLC memo says an investigation is permissible. And a lot of Republicans asked about that. Why'd you bother investigating like the guy from Wisconsin? If you knew you couldn't indict him, why'd you bother investigating? This answers that question. And it notes that the president does not have immunity after he leaves office as well. This is Republican Ken Buck asked Mueller if Trump could be indicted when he leaves office.

And Trump and Mueller says yes. You sure can. So Trump and then he clarified. So the president of the United States can be undied for obstruction of justice after he leaves office. Yep, that's correct. Thanks for clarifying. Yeah, we're all like, whoa, that means he's guilty. Yeah, it's pretty great. Trump was considered.

Oh, thanks, considered. And Trump was asked about this after the hearings. And he called it fake news and said that Mueller had corrected that statement. But he did not. He was conflating that with another correction made about that he made about the president obstructing justice. And he wanted to clarify the president did all the things that he outlined, but that he would not make a determination per the OLC memo.

That's what Mueller was saying. And that was the correction that he made during the hearings, something about, with Ted Lou's line of questioning, not what Ken Buck said. Yeah. I interpreted it as Lou said, so the reason you did not indict him was because of the OLC memo. And he said, yes, which he probably immediately was like, oh, fuck that, that, or we had a suggestion.

Maybe it was like a 40-in-slip, right? But something that made him come back around and say, I was not trying to say that he definitively would have been indicted. Had he not been a sitting president? Right. But it does seem like that's what is the case. Because he's basically saying, oh yeah, the only reason I didn't indict him was because of the memo. And then you know Bill Barr picked up the phone and called somebody and said,

And that's why... Objection. Yeah. Objection from over here. And that's why Mueller was like, okay, I didn't reach that decision. That's what they should have said. that's why. Objection. Objection from over here. And that's why Mueller was like, OK, I didn't reach that decision. That's what they should have said. Right.

But yeah, indicating you can indict him after he leaves office, presumes he's a criminal. So that he didn't, he hasn't redacted that statement yet. I thought he would correct it or amend it, but he has not. And that's interesting. Mueller says with regard, I just love it. If Bill Barr was like, you got to change a statement,

he's like, no, I'm not going to eat shit. Yeah, that would be interesting. I'm not saying that that happened. I'm just dreaming. Mueller says with regard to the OLC permitting an investigation despite the inability to indict Trump that he conducted an investigation in order to preserve the evidence when memories were fresh

and documentary materials were available. So we've said that on multiple occasions. And that is one of the reasons that the OLC memo allows you to continue to investigate, even if you're not going to indict somebody. And then third, Mueller considered whether to even call what Trump did obstruction of justice. And this is another thing that people are like, that Democrats are mad about. Like, why didn't you just say you could accuse him of obstructing justice without inditing him for it? Why didn't you just at least say it?

And Mueller determined that because of fairness concerns, he did not want to reach that judgment when no charges could be brought. Because he couldn't bring charges, he didn't want to accuse him of it. And this isn't in the memo, this is just... Mueller. Yeah. But he's saying that since he can't indict, he didn't want to say Trump committed obstruction of justice because the ordinary means for an individual to respond to an accusation like that is through a speedy public trial where witnesses can be cross-examined and the individual can defend themselves.

Oh, he knows that his testimony would be used as evidence against Trump and he thinks that would be unfair for his personal opinion. No, because there won't be a trial. He can't indict him so there won't be a trial. So he can't accuse him publicly because it's unfair because he has no way to defend himself through law. Right, but even later, he knows people are going to want to try to get him after he's out of office.

So I wonder why he wouldn't just say it now. Like it seems like he's just afraid of that being used. No, it's Trump down the line. Yeah, no, no, it's specifically because Trump, it would be unfair to Trump if he accused him of that because Trump wouldn't be able to face as accuser and have cross examinations and have a jury of his, you know, until way later to have due process. Yeah, that makes sense. Yeah.

Or maybe not later though, right? Right. It's exactly not. It's not like. It's exactly not like. It's exactly not like. It's exactly not like rolls out and passes, then he can't do that at all. Yep.

So he wasn't even going to do it. And that was his reason. And again, that's not in the OLC memo. That is just what Muller decided to do. He said, it's not, he bent over backwards to be fair to Trump. Right. That's what it seems like. Because he could have come out and said, oh, he committed obstruction of justice. Yeah, I know I would.

Um, he's Mueller. But he really honestly so conservative he felt that because the man doesn't have the means to defend himself through due process of a trial because it can't be undited, it would not be fair. Okay. So, um, I don't get that, but sure, what I mean, that's nice. But, you know, but at least if Trump is prosecuted after he gets out of office, he can't come back and say that he was treated unfairly.

Yeah, that's a good point. Yeah, I mean, Mueller would basically be triggering, pulling the trigger on a constitutional crisis right there if he came out and said anything definitively, while citing the Oval Sea opinion, it's like, well, here's this information, but here's also this information that says I can't indict him even if I wanted to. So good luck with that. And why? I mean, honestly, I, yeah, that's, that's the only thing that I feel like I would do differently

if I could in his position. It could jeopardize actual prosecution after Trump gets out. Like you were talking about that could make that, it could make that an appealable case. And you don't want to fuck with that. Right. So you want to be able to prosecute Trump once he's out of office.

So that kind of holds that case together for him a little bit. But he didn't say that in here. I don't know if he was thinking that or not. And we'll never know because he didn't answer the question. But he goes on to say the fairness issue would be heightened in this case, because he's a sitting president, where accusations of crimes, even in a sealed report, could carry consequences that extend beyond the realm

of criminal justice. So it's just totally unfair, bro. The Office of Legal Counsel also noted similar concerns about sealed indictments. Even if an indictment were sealed during the President's term, it would be very difficult to preserve secrecy, and if it became public, the stigma could imperil the President's ability to govern. Now whether you agree with that constitutionality or not, it's a rule and Mueller followed it.

So. Yeah, makes sense. And finally, fourth, and here's the bombshell. 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. But 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. Basically, he broke the law so hard. It makes it difficult for us to say he's innocent. Yeah, that's impressive. And accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

And this paragraph on page two, volume two, will be printed, I think, in history books for generations. And it will be the focus of special counsel's testimony to the House Judiciary or it was. It was a big focus of that because a lot of Republicans were like, it's not your job to exonerate. And he's like, I didn't. And he's like, yeah, but you can't even say that you didn't. He's like, but I can't indict. But then you wanted me to say, then you said I was, you know, I,

I'm not saying that he, to for not drawing a conclusion. Yeah, it seems like both sides want Mueller to be more direct. And Mueller's like, I'm not going to tell either of you what you want. I'm just going to lay out the facts and let you think for yourself and, you know, do get out or whatever. Yeah. Yeah. Basically, I'm done.

Congress is your turn. Totally. Yeah. It's pretty much how it goes. So this is simple. He can't say the president committed a crime. So he said the next best thing. The president did not commit a crime. Double negative. Mueller then gives an overview of the report saying section one provides an overview of obstruction of justice principles and summarizes certain investigatory and evidentiary considerations. Section two is the factual results and analysis of obstruction evidence. Section 3 goes over the statutory and constitutional defenses. And what that means is that when Trump's lawyers say,

the Constitution says they can do anything and the laws don't prevent me. Well, he puts a whole section in here about why that's wrong. And section 4 states his conclusions. So we're going to continue with the executive summary and then we'll go into Section 1. Sound good? Sounds good. Word. So Mueller's investigation focused on a series of actions by the president that related to the Russia probe. That's the underlying crime if you want one. And this includes his conduct with law enforcement and witnesses to relevant events. So let's go over those key events that begin at the top of page three. This is the cafe of obstructions.

Right. Okay. The first is the campaign's response to public reporting about Russia supporting the Trump campaign. This goes to Trump denying Russia interfered while simultaneously seeking information about planned WikiLeaks releases. Like, you know, Russia didn't interfere. Hey, ones that WikiLeaks thing coming out. Exactly. What? The redaction here is for

harm doing ongoing matter. Likely says from Roger Stone, because we're talking about wiki leaks and that's an ongoing matter. And it possibly man-of-fort who may have had contact with Julian Assange. We don't know yet. Or junior. I was going to say, yeah, maybe junior. Could be. I know Stone for sure. And additionally, Trump lied about having business contacts with Russia despite trying to build a Trump tower Moscow with which both Jr. and Cohen lied about for him. And Mueller notes here that Trump's possible motivation or intent, which is that reports of Russian interference might lead us to question the legitimacy of his

election. So what if it's Cohen, because he's definitely got ongoing matters? It could be, but I'm still thinking it's Rajent's stone. Yeah, yeah. But what's really funny here is that he's so caught up in his legitimacy, you know, member of the electoral map, he hung on Copics's desk. Oh, yeah, I dropped office. And it's just, he holds it closer to him, and it's more important to him than like his testicles.

And I think they might be inextricably linked. But that is what brought him down in the intent, because he's like, well, I wasn't, I was just mad. I wasn't trying to cover up a crime, but we'll go into a little bit later about circumstantial evidence and intent and the entirety of the case looking at all of the issues. And the fact that he was worried about the legitimacy

of his presidency gives him motive to obstruct justice into the investigation into the Russian election. Oh, yes. It's just a sweet irony. And nobody really picked up on that in the news cycle when this report came out, but it's like, it's he was crying and like, you're so worried about your dick

that you broke the law protecting your dick. That's so fun to me. Next is the conduct involving Komi and Flynn, and we know what happened here, right? In mid-January before Trump took office, Flynn lied to Pence and the FBI about talking to Kislyak, about Russia's response to the Obama sanctions, the ones that were imposed for election interference. And I think that

gets missed sometimes too. But the day after Trump was told about Flynn's lives, the day after he invited Komi to a private dinner and asked Komi for loyalty. And then on Valentine's Day, the day after the president asked Flynn to resign, which I don't think he did, he told an advisor, now that we fired Flynn, the rush of thing is over. And the advisor said, no, bro, investigation keeps going. It's not, nope, that's not firing. No.

And keep in mind that there's evidence, like I said, that Trump did not fire Flynn. And the book fear, remember we covered this in our book review. Yes. Fear by Bob Woodward, I think. A source told Woodward that Trump said, let's say we fired Flynn. That sounds better than what? I don't know, because they didn't put that in the book. Like, what really happened?

We still don't know. But it does call into question what happened to Flynn in those 18 days between learning that he lied depends on the FBI and his eventual departure from the administration. All I don't know what happened, but I don't think he was fired. Yeah, I agree. It seems like a cover up, but what are they covering up? That's the idea, right? Exactly.

The same day that same advisor told Trump the investigation would continue, the president cleared the Oval Office after a meeting, except for comies, like you stay behind. And I remember reading, it's not in the report, but I remember reading the sessions, really wanted to stay and pre-bus was like, no, take us out, you know? But he was like, get the fuck out and session stayed anyway and sessions like, don't you want me here? And he's like, no, get the fuck out. And because knowing, leaving him alone with a director of the investigation into him was a bad fucking idea. Yeah, yeah, he was like, Dobby is free.

Yeah, get the fuck out. Yeah, that's like a frickin trap, dude. 100% a trap, except it was not a trap. It was just when he knew he would walk into. Yeah, you know, it was not set by anybody. Yeah, it's the person. No one set the trap. Yeah, he just...

Trump has given Coleman a song. He creates his own trap and walks into it. Comey is free. Oh my God. Great. So anyway, Trump said to Comey, I hope you can see you were your way clear to letting this go to letting Flingo. He's a good guy. I hope you can let this go. And that is exactly why Sessions didn't want to leave the room because that right there is an obstructive act. We called it when it happened when it was publicly reported. And now it's right here in Muller's report

as one of the obstructive acts. Yeah. Would you even give sessions that much credit though to even know that that was going to happen in the heat? I don't even believe he used to do something about what happened. I can't. I feel like he more just wanted to be included. That seems to be. I don't know. That seems to be a trend with the AGs and deputy AGs. The way he was described though in the book, it seemed like he was nervous. I felt like he knew, I felt like, mm, don't suck that guy's dead. Yeah, I guess I got more of that sense from Priebus

than I did. Okay. Yeah, Priebusians, smarter. Yeah, I think so too. I agree, but Sessions is a lawyer and he did correctly recuse himself from the investigation, which comes up here too. At the Council of Ethics lawyers though, right?

But people have ignored those fuckers in the past. True. And, currently. Yeah, that's true. Hello, Mastery fucking Whitaker. Yeah. You'll have to pin me down to get me to accept that session's made a good decision.

That's what I'm really feeling. I feel you. I feel you. Trump also sought to have Flynn's deputy, KT McFarland, drafted an internal letter stating the president had not directed Flynn to discuss sanctions with Kisley Act. McFarland declined because she didn't know if that was sketch or not.

And a lawyer in the White House Council's office thought that it would look like Squid Pro Crow, which is what we call a Squid Pro Crow, for offering McFarland an ambassador ship that she recently got. So it'd be like, I'll give you an ambassador to Singapore. Have you write me this letter? Hey, hey, hey, hey, hey, hey, and she's like, no, do you know, not bra sketch. So Trump asked Flynn to talk to Russia about sanctions. Then found out Flynn was being investigated for lying about it.

Then told the public he fired him. Found out that firing Flynn didn't kill the investigation. He asked Komi to let it go. found out that firing Flynn didn't kill the investigation. He asked Komi to let it go. Then he offered Flynn's deputy and ambassador ship in exchange for creating a false record that Trump didn't ask Flynn to talk to the Russians about the sanctions Obama implemented for helping elect Trump. Nothing to see here. No big deal.

That's my summary. That's not Mueller's summary. There's a lot of stuff in there that we don't know to be afraid of. Yeah, you're paraphrasing. On the third action, having to do with Trump's reaction to continuing Russian investigation and sessions considering recusal from the Russian investigation because of his participation in the Trump campaign, right?

Remember, he's like, I got to go. So in March, Trump told the White House Council Don McGand to stop sessions from recusing, because he heard wind. He heard tell that the racist possum was going to recuse himself. And when sessions recused on March 2nd, like the next day, Trump was so pissed, he exploded with anger, he told his advisors that he should have an AG who would protect him. This isn't in the report, but I believe he said something about Roy Cone. I need my Roy Cone and he said something about Eric Holder protecting Obama. And that weekend, Trump took sessions aside at

an event and urged him to unrecuse himself, which is not a thing. Yeah, could you unfuck us? Yeah, undoubtedly. And later that month, Komi testified that the FBI was investigating Russian efforts to interfere in the 2016 election, including any links to the Trump campaign. That prompted Trump to reach out to the DNI, director of national intelligence, and the directors of the CIA and the NSA, to ask them to publicly announce Trump didn't have anything to do with the Russian interference. And he also called Komi twice, even though McGann told him not to, he's like, don't have direct contact with the Department of Justice,

bro. Prebus told him that too. That's not in the report, but that was in Prebus' notes. And Komi had previously told Trump the FBI was not investigating him personally, and the President asked Komi to lift the cloud of the Russia investigation by publicly exonerating him. And then on page four, we're on to the next action, the firing of Jim Komi. So on May 3rd, in public testimony, Komi would not answer whether Trump himself was under investigation. This is later after he said he wasn't. And because basically when he was under investigation, Komi couldn't

say that anymore. So within days, Trump fired Komi. The president insisted the termination letter, which was written for public release, a state that the Komi told him he was not under investigation. And the day of the firing, the White House said he was fired based on independent recommendations from Sessions and Rosenstein that Komi was fired for his mishandling of the Hillary Clinton email investigation. But the president decided to fire Komi before hearing from the DOJ. The day after he fired Komi, he told Russian officials in the Oval Office that he faced great pressure because of Russia, which had been taken off by firing Komi.

And he caught, I think he called him a crackpot, too, or something, called him a name. And the next day, Trump admitted in a TV interview with Lester Holt. Lester Holt's name isn't in this. I just know it. He was going to fire Komi regardless, you know, and he said when he decided I just to do it. I was thinking that this Russia thing with Trump and Russia is a made-up story. And that was the famous Lester Holt interview. Everyone was like, what? And when Lester Holt asked him if he was angry with Komi

about the investigation, Trump said, as far as I'm concerned, I want that thing to be absolutely done properly, adding that firing Komi might even lengthen the investigation. Yeah, you know why? Because you know it's fucking bullshit and illegal. That's why it would lengthen the investigation. That's consciousness of guilt right there.

That goes toward intent. And I wouldn't be surprised when he breaks down the three criteria that that comes up as proving that he had knowing intent that or that he was corrupt. Yes. In his decision. Why else would he say that? Because I'm hesitant to believe that that is why he would say that. But I can't think of another reason as to why he would say that. He was trying to defend himself saying, oh, I wasn't trying to shut down the investigation. Fire and Komi would make it worse. Hmm, you know, I think that's probably what his thought was. Oh, I see.

Okay, so you're saying he's just going to deny that he did the thing that he didn't say that if he did do it, it would have done the thing that it did. Yeah, like it would have been crazy if it did that right. Okay, totally. Totally. Yeah, I think. Yeah. Uh, on to the next obstruction event. The bottom of page four regarding the efforts

to remove special counsel. This has to be weird to write about yourself. Although I don't think that Mueller himself probably wrote this entire report. I think he, it was written by his staff and he probably okayed it and signed it and went through it and had it explained to him. And people are giving him shit about that too.

Like, did you even write the report? Did you even write your statement? He's like, I'm not talking about that. Yeah. So it's a 19-year-old. And you made him Mueller who wrote it. Who wrote it? Who wrote it?

You know, I mean, he was in charge of the whole thing. He was the conductor of the train. He's not, that's why you have 19 people on your staff who are expert lawyers. Anyway, Rosenstein appointed Mueller on May 17. I think in great part due to pressure by Andrew McCabe to preserve the independence of the FBI and to protect the investigation.

That's not in the report. I'm just going by what we read in the threat by Andrew McCabe. And Trump's reaction was, oh fuck, this is the end of my presidency, I'm fucked. And he demanded a resignation from Sessions immediately. Sessions submitted his resignation, but Trump ultimately did not accept it. The president told AIDS Mueller was conflicted

and could not serve, and his advisors told him the conflicts were meritless, and they'd already been vetted by the Department of justice and rod Rosenstein before he was appointed like uh... thanks but we thought of that we know you don't vet people but we've that people right and so he probably just thought like anyone he hires no one looked into it do you think if

snoop dad was there instead of bar or sorry if bar was there instead of Snoop Dag, it would have gone differently from the beginning. I do, but only because it seems like their intentions were slightly different. Rosenstein was just trying to, I guess, survive and then bar is like a straight up, you know, like hitman at Seamings or, you know,

whatever, goon of Trump's. Yeah, or this could have been before bar set his, you know, 19 page memo to the Department of Justice Yeah, or this could have been before Barr sent his, you know, 19 page memo to the Department of Justice about how the president is above all. I don't know if he always thought that way, or if he became to think that way so that he could get this job and be this pit bull, he might not have been,

because a lot of people were surprised when Barr came in and started breaking the law and doing impeachable things and acting effectively. This by his. You know, past his checkered past. Oh, yes, I guess we shouldn't all be terribly surprised. Yeah. Like even Chuck Rosenberg and Andrew Torres,

like people we know were like, we thought he was an institutionalist, like Rosenstein. Yeah, even Malew is his friend recently before all this went down. So he forgave him for the 90s, I guess everyone else did too. They're like, we all make mistakes. So we're getting for the 90s. Oh, I was born the 90s. Sorry, different buddy. The internet forgives snow one. That's true. It's very true. It sucks for millennials. I grew up on the internet

big. Oh yeah. I've been on Facebook since like the sixth grade. Yeah, since I was 12, right? Yeah. There's my 30s, okay. Yeah, I pretended I was a college student. Yeah. That was basically it. Yeah, that's true.

I guess I started on MySpace, and then I switched over to Facebook and I was going to my school. I was being like, MySpace was in its heyday when I was just turning 30. Yeah. Whoa. I used to spend hours deciding what my profile song would be. Yeah.

And who my top eight friends were, and then they expanded it to 12 and made my life harder. God, I know, I know. That's half 12 friends. Yeah, that was hard for me. My 30 year old life. Huh. Can you imagine who like a Trump's top eight was at the time? Oh, that would be cute.

At that time or now, because now it would be easier for me to guess. Back then it would be Ep. At that time or now, because now it would be easier for me to get back then and be Epstein. He wrote Stone. Yeah, Clinton, Bill. Yeah. When? You took me off your job, babe. What the hell is going on?

I know you're getting off the top. For a broiding. Definitely. Yeah. Not liking good. What a great group of folks. So on June 14th, we'll go back here that the meter reported that Mueller was investigating whether Trump obstructed justice. We all found out on June 14th about a little less than

a month after he was appointed. And Trump reacted with a series of tweets criticizing the Department of Justice and Mueller. And on June 17th, the president called McGann at home and directed him to call Rosenstein and say that the special counsel had conflicts of interest and must be removed. Even those advisors have already told him, they've been vetted, they're not, they're meritless. McGann did not carry out the direction

and went and packed, went to his office that night, packed his stuff up and was gonna resign. And he, he told Mueller he was gonna resign rather than trigger a potential Saturday night massacre, which is during Watergate, Nixon fired the special counsel, and then the Attorney General resigned, and the deputy Attorney General resigned,

and the solicitor general is finally the one who, well, I'm sorry, Nixon asked the Attorney General to fire the special counsel. He resigned in protest, asked the deputy, who became the acting, he resigned that same night, then finally the resigned in protest asked the deputy who became the acting. He resigned that same night. Then finally the solicitor general is the one who fired Archibald Cox. And then that was the sound in the massacre. Yeah, yeah, a bunch of other people, I think, resigned in protest too, but those are the big ins. So he's like, I'm not going to be part of this.

Holy fuck, I'm going to resign because I'm not not gonna kick this off. But that sounds like it would kick it off, but whatever. The beginning of the end, yeah. Right. So page five, on page five, and the next obstructive act, this has to do with Trump's attempts to curtail the Mueller investigation, not Fire Mueller, but like limit his investigation.

Courtaugh sounds like a QA to say obstructive. Yeah, a tweet and curtail. And this is a part where two days after he asked McGand to say obstructed. Yeah, per tale. And this is a part where two days after he asked McGand to fire Mueller and he refused. He asked private citizen and former campaign chair Cory Lewandowski to tell sessions to publicly announce that even though he was recused Jeff Sessions, the investigation was very unfair to Trump and he also told him to order Mueller to only move forward with investigating election meddling in future elections.

Lewandowski said he understood what Trump wanted, what wanted sessions to do, but a month later he still hadn't done it. Lewandowski hadn't delivered the message. So Trump asked him for a status update and he said, I'll do it soon, soon boss soon. But hours after that meeting, Trump publicly criticized sessions in a New York Times interview and then issued a series of tweets threatening sessions as job, I remember when those came out. Lewandowski didn't want to deliver Trump's message no more. So he asked Rick Dearborn to do it. He's passing the buck to Rick.

Of Dearborn and Mashburn. Of Dearborn and Mashburn. Passing the buck to Deer. Yeah, that's great. They're looking awful. Garfunkel in it. Yeah, very cute. And so, yeah, he's deer born of deer born in mashburn, two of the guys who were responsible for changing the RNC platform to be ease up on the anti-Russia hates Ukraine language. For sure. So yeah, they didn't want to say that they were going to give lethal weapons to Ukraine, but just assistance where needed.

They wanted to ease up. So, for Russia. They don't have to die, so be it. On Russia's behalf, yeah, because they wanted to, you know, they were the annexation of Crimea. We also imposed sanctions, Obama did for that. So, everything that Obama did. So Lewandowski, this is actually a thing that

I'm not completely clear on. He asked sessions to come out and say that the whole thing was unfair after he was already recused. And then he also was ordered to ask sessions to tell Mueller that he couldn't investigate anything. And unless it was a future thing, not that he asked him to directly go talk to Mueller. Okay, that makes so much more sense. Up until this point, I understood that as him saying he was supposed to go to Mueller directly as Lewandowski. Oh, yeah. No.

But I mean, my as well, you're going to a recused attorney general. Right. Yeah, yeah, yeah. It's still, yeah. Yeah, I mean, it's still obviously completely ridiculous, but you probably would have, but Lewandowski probably had no idea how to find Mueller himself, so... Yeah. I mean, but he wouldn't have though, right?

Because he didn't do any of it. No, he didn't. And then he asked Dearborn to do it, and Dearborn wouldn't do it either. He's like, I know I'm just Dearborn, but fuck you. So the next obstructive act is Trump's effort to prevent public disclosure of evidence. And this has to do with his efforts to lie to the public about the purpose of the June 9th, 2016 Trump Tower meeting. And he did this with Hope Hicks and Junior in tow. So not only on several occasions, did he direct AIDS

not to publicly disclose the emails that set up the Trump Tower meeting, but he also dictated the statement from Air Force One on the way back from the G20 summit, I think, that Trump Jr. Because New York Times asked Trump Jr. what the meeting was about and Trump, and Trump dictated to Trump Jr. with hope, Hicks on the phone. And that guy, Rafale, Josh Rafale was there, I think. And he quit the babysitter.

No, it's, yeah, him. And then there was another lawyer who quit, that was on Air Force one. Yeah, in protest. They were not gonna be around this It's very illegal. Yeah, yeah, like this is obstruction of justice. They said the words And so this ended up in in this in the Mueller report as well and is one of the crimes of obstruction committed by the President Interfering by altering that statement. Yeah, and. And it also probably helps go toward intent. And basically saying that this wasn't a meeting about getting Russian dirt or Russian dirt on Hillary, this was a meeting about Russian adoption.

Adoptions, yes. And that's when we started just referring to sanctions as adoptions because that's what it is. Yeah, yeah, colloquially, right? Yes, colloquially, very good, very good. I learned something. It's the same thing. Yeah.

We were making fun of yesterday in an episode that Doug Collins, very good, very good. Learned something. It's the same thing. We were making fun of yesterday in an episode that Doug Collins, a Republican, was trying to get Mueller to say that collusion and coordination or conspiracy mean the same thing. By reading him a part of a sentence in his report, it was part of a larger paragraph describing why he didn't use the word collusion that said sometimes collusion

and conspiracy colloquial we mean the same thing. And I don't think a lot of people, you know, Trump supporters would understand the doctoral level meaning of the word colloquial and you just presented it in the perfect, perfect fashion. Yeah. You taught us all. People on Twitter were like, I learned something from HG. You used it in a sentence. Nice. Now use it in a play. Yeah. And I don't know how to spell it.

Let's see here. So in the next obstructive act has to do with Trump's further efforts to have sessions take control of the investigation. So we tried again, right? So because it's early summer, because it was back in March that he wanted him to unrecuse. But now we're in summer. And Trump called sessions again to ask him to unrecuse, but session said no.

And then later in October, now we're in the fall, Trump asked sessions to investigate Clinton. And then in December, shortly after Flynn flipped, Trump told sessions that if he unrecused and took back supervision of the muller probe, he would be considered a hero and he added, I'm not going to do anything or direct you to do anything. And that's consciousness of guilt right there. And I'm sure this is in the report because that goes toward corrupt intent. He told sessions he just wanted to be treated fairly. Sessions assured the president that he never saw anything improper and there was a whole new leadership team, but he's not going to unrecus

himself. So he tried to comfort the orange man, but didn't work to know to know of ale. The next act of obstruction. Starts at the bottom of page five and it goes into page six and it outlines the efforts to have McGann deny that he ordered him to fire Mueller. Basically after Trump told McGann to fire Mueller and McGann almost resigned rather than carry out that order, Trump directed White House officials to tell McGann, he's too much of a coward to tell McGann this himself, to create a false document stating he had not been ordered to have Mueller fired.

And McGann told those advisors that Trump did tell him to fire Mueller, so he's not gonna write that thing. It's falsifying records. And then Trump met with McGann after that and pressured him to deny it and asked him why he told the special counsel, Trump asked him to fire Mueller. And why McGann took notes of his conversations with Trump. And McGann refused to back away from what he remembered

happening and perceived Trump to be testing his metal or testing his loyalty. Yeah, yeah. Tim, that happened. And that's creating a false document. That's not something that, because a lot of times, times Trump and his lawyers say I'm just doing my constitutional duty under article two of The of the Constitution I can fire Komi. That's my constitutional power Oh for whatever reason I can do whatever the fuck I want

But you can't say that the Constitution protects the president's ability to file false documents in the record. So yeah, it's a hard argument to make. This goes outside of that, and I think that that's why they brought this specific event of obstruction or action of obstruction up in Mueller's testimony and kind of stuck on it for a while. The Dems wanted to know, falsifying documents, you know, that's huge. And it lies outside of the president's core constitutional powers and responsibility.

Yeah, if you're climbing, I can't be an excuse, you know, right. That too, but, and also, but this specifically, because he was climbing when he fired Komi, because he had corrupt intent. But that's within his article two powers to fire whoever he wants. This is not anywhere in the cost of fucking Tusion. Yeah. unless he could make the legal argument that by him doing that was going to somehow preserve the union in a way that only the president could see fit to seek out, right? I can't hire you. Yeah, but that's that that would be something. It's lower than Jasek. But that's something that would come through an impeachment

proceedings, right? Yeah, yeah. If that actually happened. Who? But I bet, I mean, that's like, that's the biggest loophole they have. So, in the court of law after he loses the 2020 election. Yes. Yeah, well that's an interesting, so if they're, yeah, okay, this is like a whole other conversation,

I guess, but yeah, I'll remember this for later. We talk about charging him after his presidency. Yeah, yeah, put it in the parking lot as they say on corporate conference calls. Nice. On to page six and the obstructive acts surrounding the conduct toward Flynn Manafort and redacted. Now I thought the redacted name here was Cohen because I know that Trump said a lot of public stuff about Flynn being a good guy and Manafort being a good guy and stay strong. And I thought the third one was Cohen because he said a lot of things publicly about Cohen, but it's not because Cohen is covered in the next paragraph as is all

the stuff that Trump said about him publicly. But what if Flynn and Manifort haven't commented? Trump supported them. They pleaded, well, Flynn didn't plead not guilty, but he supported him. Dangle Plint. Yeah. My good point. So I think, and keep in mind, our redaction guesses are just guesses based on public reporting and what we know of the investigation. We make no guarantees about our assertions of what's behind these redaction bars. We should do like a well of flat live. Yeah, like redacted edition.

Yeah, yeah, from the Mueller report. I think this is stone, and I'll tell you why in a minute. So going into the Flynn thing, after Flynn withdrew from his joint defense agreement, Mueller writes that Trump's lawyer called Flynn's lawyer to remind him about how much Trump likes Flynn and asked for a heads up about what Flynn was telling Mueller. And Flynn's lawyer told Trump's lawyer, who we now know to be John Dowd, but is not mentioned by name here, he might come up later, that he can't share that information anymore

because they aren't part of that joint defense agreement. And since this report was released, the judge in Flynn's case, Judge Sullivan ordered that voicemail, released to the public, it's available for you to hear. Go look it up, John Dowd boy, team's the Flynn.

Yeah, put it in there right in between, you know, Richelble, Deila, Habitual and Peacaboo. There you go, yeah,, little rain tone for you. He threatened Flynn and dangled a pardon, pretty blatantly. And then regarding Manafort, who pleaded not guilty, Trump praised him and said, stay strong. Said during his trial that he was being treated unfairly

and he wouldn't rule out a pardon. And after he was convicted, Trump called Manafort a brave man for refusing to break and said that flipping almost should be outlawed. And they brought that up and yesterday's testimony too. Like should flipping be outlawed? He's like, no, we would have no, we would have no court case. Right, right.

It's so funny how like Trump was cheering Mueller on, or Maniford on like, you know, stay strong, you'll let the man get to you, you know, and Trump is the man. He is the man. In every way. So this isn't in the report,, but on December in December 2018, after a tirade of comments about Michael Cohen saying, Cohen made up stories about Trump, he called himself in the third person Trump. Trump tweeted about stone, quote, it's nice to know that some people still have guts. Trump also said about stone that he will not be forced by

a rogue and out of control prosecutor. It sounds like an out of control rapist to make up lies and stories about the president. So my guess about this redacted sentence is that it says in December 2018, Trump tweeted about Roger Stone who had pleaded not guilty that it's nice to know that some people still have guts or something to that effect. Right. It's just a guess, but that's what I think is going to be there because the other two are kind of along the same lines. He's also not a prosecutor. This is so annoying that people keep saying

that. Well, like that's not a shooter. It was the phrase, but you're right. He's an investigator. But that's not as bright like a prosecutor or someone that gets brought on to a case, right? That's like, this is a person that is going to sue somebody or is going to criminally charge somebody or go after them. Right. Right. And it's some of them. But there's a different team. Yes. And there's a difference. Right, and it's some of them, but it was a pretty good. But there's a difference. Oh, you're right. Yes. And there's a difference between being like the subject of an investigation versus someone

who is blatantly going to be essentially attacked in a courtroom by a prosecutor and a predetermined prosecutorial argument. This is like he was starting out as an investigator and these people, a lot of people became subjects throughout the course of all of his work. So just to label him as a prosecutor is starting off on like a very biased and sure, ultimately he becomes representative of a prosecutorial body. But like they didn't. They didn't. They didn't give him the full power of a US attorney, which is a prosecutor.

Exactly. But that's not his, but that's not his initial point. So, special counsel actually be a better way to describe him than special counsel. Currently, they're called special counsel. Before they were called special prosecutors, they've been called special investigators, but they all sort of fall under whatever the rules are for that moment. Yeah. I think special counsel is what you call him. He's a charge of a group of prosecutors.

It takes the politics out of it, right? It's more engaging for the prosecutor. Because calling him a prosecutor literally is like, hey, wait a second, why are they bringing someone in? It's like they predetermined he was going to be, you know, prosecuted, and that's not how it was at all. No. It's like he was just being investigated

and very quickly turned into a prosecution situation. And that's what this is. It's the Mueller investigation It's not the Mueller prosecution. Yeah, now there was the Manafort prosecution that came out of the Mueller investigation There was a Cohen prosecution that came out of the Mueller investigation you investigate and then you hand off to US attorneys and Prosecutes, but he had all of his guys underneath him with full power of US attorney To prosecute on his behalf so he didn't have to give it to US attorney's offices to do the prosecuting.

Yeah, when it became necessary. Yeah, as it, as the grand jury returned indictments. Yeah. That's when the prosecutors take over. Yes. And it's no longer molars. Right. And like if someone comes and robs you or something,

it's like, you're gonna, you're gonna get a prosecutor on your side to try to punish them for the full extent of the law right off the bat. But here was like, we're going to investigate to see if you did rob this person. Yeah. And the detective is not the prosecutor. Yeah. You know what I mean? Even if they have the power to effectively turn into one.

Yeah, and there were so many memes and gifts that were like having Mueller and his FBI jacket arresting Trump. And I guess that probably really pissed Mueller off. I liked it. I liked him too, but he's like, that's not my job. You know, he also chose to not prosecute. That's another big difference. If you're a prosecutor in the general, you know, more normal sense, you're 100% going

to be prosecuting every single subject that comes across your way. Whereas Mueller has a whole section in both of these volumes where he decides where he did and did not decide to effectively go through with prosecution. Yep. He investigates, granjury decides to bring charges and his prosecutors prosecute. Everybody's got a job. So then, then here's why I didn't think that redaction was Cohen. We have a whole thing about Michael Cohen. This is about Trump's obstructive conduct involving Cohen.

Trump's conduct changed from praise for him when he lied about Trump-Tower Moscow to castigation. I like that he used that word. When he became a cooperating witness, as we know in 2017 Cohen provided false testimony to Congress about when the Trump-Tower Moscow negotiations ended, we also know that when prepping his statement for Congress about Trump Tower Moscow, Cohen was advised by Trump, Jared,

and Ivanka's lawyers to stay on message with Trump's false timeline, or also to not mention Ivanka, which isn't in here. And after the FBI raided Cohen's home and office in April 2018, Trump publicly said Cohen would never flip. He was loyal and even called him directly to say, stay strong. Cohen also discussed pardons with Trump's lawyers and believed if he lied for Trump, he would be taken care of quote unquote. But after Cohen flipped, Trump

called him a rat and suggested that his family members had committed crimes. Something else left out of this report is Matt Ga Gates tweeted about this. Remember when he tweeted that thing? About Cohen's father and wife. Cohen's mistress. Cohen's father-in-law who's mobbed up and finding out about his daughter, you know, Cohen's wife and Cohen having a fair stuff. Who I bet your father-in-law, the mobbed up dangerous violent guy, would love to hear about that.

You're going to have some discussions. That was weird. That's not in this report, but I don't think he was investigating Matt Gaetz. But Matt Gaetz is currently under investigation under the Florida Bar Association and the House Ethics Committee. That started a couple weeks ago. Oh, yeah. I also feel like that stuff came out right when the report was probably kind of wrapping up in their office. Yeah. Yeah. Yeah. I don't think it would have necessarily been in here, but even if it could have been in here, the timing was passed due.

So that's the list of cafe-fae, of the cafe-fae of obstructions. We determined in an early episode the collective noun for obstructions of justice is a cafe-fae, so we're going to continue to use it. This is a pretty comprehensive list, but we also kept a list of all of the obstructions of justice and all these are on it, but we had a few more that weren't included in the report.

I don't know why. Maybe he couldn't find all three or produce enough evidence, but they're not mentioned in here. Also, this report is a summary, so they might be in the underlying documents, the ones that Jerry Nadler and Adam Schiff were trying to get right now. Some instructions not included in Mueller's report are when Trump went after the Komi five, right? That's the top FBI guys that Komi shared his contemporaneous notes with about Trump's

loyalty ask and request to let Flynn, the Flynn thing go. And they include Bente Bodich, Ribicki, or Ribicki, McCabe Baker and Gattis. And I know that six, we added the sixth beetle, Bente, after he was removed from his job. There was also the time Trump pressured Burr, Senator Burr, and asked other senators to pressure Senator Burr, who is the chair of the House, no, the Senate Intel Committee. He was just subpoenaed. DTJ?

Yep. To stop the Senate Intel Committee investigation. He is, yes, he is the one who subpoenaed Donald Trump Jr. So he pressured Burr. Trump also told Prebus he spoke to Komi about exonerating him. Trump also pressured Tom Tillis to drop his legislation that would have protected the special council. Then there was the time Trump asked sessions to release one negative news story per day

about Komi. Then there was a time he fired Sally Yates as the acting Attorney General after she came over her on fire warning that Flynn was compromised by the Russians. Then there was a time Trump asked McCabe for loyalty and asked who his wife voted for and called his wife a loser. That was when he was acting director of the FBI. Then there was a time he reassigned Baker, the General Counsel of the FBI, and the time he fired McCabe the day before his retirement and ordered an investigation into him. He also tried to get Christopher Raid a fire McCabe. I also fired Ribicki.

He let Prebus go, and then there was the time he ordered Nunez to target McCabe, Ribicki and Baker. And then there was the time he conspired with Nunez on his memo, discrediting those investigating him. And there was that time he forced Rachel brand out, and then he tried to block the dem memo response to Nunez's Les Mass memo. So those are just a few more obstructions that we were tracking that aren't in this report. That should be his segment.

And then there was the time. So there's just so many examples. You can really get into it. You should have him if you wanted to. Yeah. And anyone who's been listening to us since the beginning knows about all these instances, how we've talked about them, and we were compiling our list of cafe-fae of obstructions. So who's continuing to investigate his conduct right now?

The time period that exceeds past the timeline covered in the Mueller report. Mueller, sure. Congress. Congress, if you want to hire us. Definitely. Yeah. Because I feel like some of those things happened after, again, when it would seem like the report and its findings kind of start to cut off a little bit.

Senate and Tulson at Judiciary, House Judiciary. Yeah. That kind of stuff. I don't even know. I mean, their play, it's pretty full, too. These might not even be things that are being looked into. They might be in the molar investigative materials and weren't brought up in the obstruction of justice,

but could be added to articles of impeachment. I hope Nancy, if you're listening. So yeah, I don't know. Honestly, I don't know. It should be Congress, though, because Mueller has basically said anything that has to do with obstruction, Congress, your turn. All right, guys, top of page seven, Mueller reminds us

that he didn't make a decision about the facts, but that his evidence supports several general statements about the president's conduct. And back to the instances of obstruction outlined in the report, Mueller says there are several features of Trump's conduct that distinguish it from typical obstruction of justice cases. And this is where Mueller basically counters the arguments

put forth by Trump's lawyers and Trump and Trump allies. The first thing is that some of his acts involve facially lawful acts within Trump's article 2 authority, such as firing Komi, which I was talking to you about a second ago, Jolisa. That falls under his constitutional duties and it raises constitutional questions that Mueller says he'll get into in a minute. Further, because Trump is the head of the executive branch, he has unique and powerful means

of influencing official proceedings, subordinating off, sorry, influencing official proceedings, subordinate officers and potential witnesses, all of which are relevant to obstruction of justice analyses, right? Secondly, unlike cases in which the subject engages in obstruction to cover up a crime, the evidence Mueller obtained did not establish that Trump was involved in an underlying crime. Although obstruction statutes do not require proof of such a crime, the absence of that evidence makes the analysis of Trump's intent and requires other possible motives for his conduct. It affects the analysis of Trump's intent.

Third, many of Trump's acts directed at witnesses, including discouraging, cooperating with law enforcement and dangling pardons, took place in public view, and that is unusual. But no principle of law excludes public acts from obstruction. If the likely effect of public acts is to influence witnesses or subborn perjury, the harm to the justice system's integrity is still the same. So he's saying, normally smart people cover this shit up, but you did it right out in front of me, you walked out with your pants down, and I just want to let you know it's still illegal. Mueller goes on to say that although the axiomvestigated involves secret stuff, the overall pattern of Trump's conduct toward the investigation can shed light on the nature of his intent. Specifically, the actions Mueller investigated can be divided into two phases, and this is what I was talking about earlier.

They reflect, it kind of reflects a possible shift in the president's motives between these two phases of obstruction. The first phase covers everything up to the firing of Comey and the second phase after, and with the appointment of Mueller, because at that point Trump knew he was under investigation. So his motives changes. Judgments about Trump's motives during each phase would be informed by the totality of the evidence. So the way he acted before Comey was fired is informed by his actions after Mueller was appointed.

Totally. And vice versa. For the section of statutory and constitutional defenses on the bottom of page seven, Mueller tells us that Trump's lawyers said Trump could not obstruct justice because he's the law and because of his constitutional powers outland in Article 2. And recently Trump said on TV, at a rally, Article 2 lets me do anything I want. And that's frightening. This section is where Mueller says, nah, no, bro, you can't commit a crime. No one's been in the law. That's the thing. And none of Trump's legal defenses provide a basis for declining, for him to decline, to decline to investigate.

So he's like, none of your arguments will stop me from doing this. More specifically, he then cites sections 1503, 1505 and certain sections of 1512. Well, of what text is this? This is a SC, this is legal federal law. Okay. Federal law.

It's just like a general document, basically, for the president. Like, one thousand and one is lying. No, these are federal criminal laws. Okay. Across the board for an in-end, 1503 and all this stuff addresses the president specifically or... Abstruction of justice, specifically. Got it.

Thank you. Specifically, 1512 shows no reason to narrow the provision to cover only conduct that impairs the integrity of available evidence as Trump's lawyers have claimed. That's what that one covers, an obstruction of justice. In 1503 and 1505, offer protection against obstructive acts directed at a pending grand jury, which Mueller had. And then, so the 1503,505 are obstructing the Mueller investigation. 1512 is obstructing, you know, trying to cover up subborn perjury, fucking with the integrity of evidence.

And then 1512B protects prosecution of conduct intended to prevent or hinder the communication to law enforcement of information related to a federal crime. So that's when you try to also witness tamper like by telling Flynn, you know, you're a good guy and you're going to pardon, I'm going to pardon you. That could inhibit or hinder the communication to law enforcement of information. Totally. Mueller then talks about Trump's legal defense regarding the Constitution. Mueller says that since the Department of Justice and the courts have not definitively resolved the issues regarding Trump being the head of the executive branch.

He examines the issues instead through the framework established by SCOTUS and their precedent governing the separation of powers. So both the Department of Justice and Trump's lawyers have recognized that the president is subject to statutes that prohibit obstruction by bribing a witness or suborning perjury because that conduct does not implicate his constitutional authority. And that's what I was talking about early about creating that false document or bribing witnesses, even Trump's attorneys agree that's got nothing to do with constitutional authority. But with respect to whether Trump can obstruct

justice by exercising powers granted to him by the Constitution and Article 2, Mueller concludes that Congress has the authority to prohibit a president's corrupt use of his authority. Congress, He says Congress here, and that's really important because he's saying, yes, you can fire Comey granted you the powers under Article 2, but if you do it corruptly, Congress has the authority to prohibit it. Yeah. I mean, it's pretty plain and simple. Why would the representative of a body that's supposed to be entirely separate from the executive branch, essentially be able to make those judgments that should be Congress. Yes.

Very fundamentally, it just seems like that should be Congress in the first place. Right. And basically what he's saying here is because of the separation of powers doctrine, which and from Scotus precedent about the separation of powers, Congress has that authority to prohibit you from doing that shitty shit, even though Article 2 allows you to do it. That doesn't fall under the purview of bribing witnesses or dangling pardons or the other shit that you did. That's just plain old obstruction of justice in Section 1512, but this, you can't do this

either. And the reason is is because of the separation of powers doctrine, not because of normal obstruction of justice law. Mueller goes on to say that the Constitution does not immunize the president from obstructing justice. The separation of powers doctrine authorizes Congress to protect official proceedings, including those of the courts and grand juries, like myself, Mueller, from corrupt, obstructive acts, regardless of the source.

Mueller also concluded that any inroad on presidential authority, or any detriment to presidential authority that would occur from prohibiting corrupt acts, does not undermine the president's ability to fulfill his duties. The term corruptly is a high standard, and it requires concrete evidence that a person acted with intent to obtain an improper advantage. A perclusion of corrupt official action does not interfere with the president's rights to exercise his article to powers either.

More than concludes that Congress may apply the obstruction laws to the president's corrupt exercise of his powers in accordance with our constitutional system of checks and balances, and the principle that no one is above the law, not even the president. This is his toss the mic to the Congress moment. Absolutely. One of them, there's others.

In conclusion, since Mueller did not make traditional prosecutorial judgments, he also did not draw any ultimate conclusions about the president's conduct. Quote, the evidence we obtained about the president's actions and intent presents difficult issues that we would need to be resolved if we were making a traditional prosecutorial judgment. But we're not. At the same time, 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. based on the facts and applicable legal standards, we weren't able to reach that judgment accordingly, while the report does not conclude that the president committed a crime, it also does not exonerate him. Ding ding. That's a repeat from that earlier conclusion. Definitely. All right. Now, here we'll go through this part really quick.

This is the legal framework stuff. And it starts on page 9. Part A is the framework of obstruction. This is a summary of the law interpreting the elements of obstruction statutes. It does not address the unique constitutional issues that arise in inquiry and to act by the president. This is just the obstruction of justice statutes. Those issues are discussed later in the report and we briefly discovered them a little bit in the constitutional defense section, but he goes off on it much in more detail later. But here Mueller tells us about the three elements relevant to obstruction laws. First there must be an obstructive act, such as asking Cory Lewandowski to tell sessions to limit the investigation into, you know, to future elections only. Second element is a nexus to a pending or contemplated official proceeding. So even the thought of an

official proceeding counts and nexus means a connection to. So this means the act, the destructive act has to be connected to an official proceeding, like a grand jury proceeding or the law. And the molar probe is a grand jury proceeding. So in the Lewandowski example, Trump wanted to limit the molar investigation, which is an official proceeding So that links his obstructive act to an official proceeding. It seems like the first requirement would sort of warrant the second, right? It does. I don't think I don't know how you could obstruct justice without an official proceeding Yeah, otherwise what are you trooping about? proceeding? Yeah. Otherwise, what are you trooping about? If you're not obstructing an official proceeding, what do you just stand in somebody's way?

Yeah. That's not an illegal view. I guess maybe that's if someone tried to point to some other conduct that a defendant had or something and it's like, well, even though that's bad, that's not really related to what's going on here in the courts. Possibly. Yeah. I don't they seem inextricably linked, don't they? The final element is the act has to have been done corruptly and thus provides the intent for obstruction of justice.

It means you did it knowingly and dishonestly or with improper motive. And this requires proof that the individual was conscious of wrongdoing. Like a weekend at Bernie's situation here. We knew he was dead. Never seen it. Oh, don't.

I only know the scene where they dress them up and they put the glasses. That's the scene. That's the whole movie. Oh, okay. There you go. Spoiler alert. I think I've seen this movie referenced. Okay, yeah.

Oh, and they just morbidly dress them up and a mask creates as a comedy. Yeah, yeah. With children? I think there might be children in the movie. Oh, okay. But they do this in order to be able to continue to have a party at a mansion and to meet his rich daughter. I see.

Wow, that's dark. Yeah, it sounds really creepy. I love it. I love it. I love it. But it's probably done hold up. Right, right. So the Mueller also covers witness tampering in this section.

That's a crime when you knowingly use intimidation or corruptly persuade another person or engage in misleading conduct toward another person with intent to influence delay or prevent the testimony of any person in an official proceeding or to hinder delay or prevent the communication to the law enforcement officer. And that's with that part that I was talking about with Flynn. When the charge is acting with intent to hinder delay or prevent communication or information for law enforcement, that second part, the nexus to a proceeding does not apply because the obstructive act is aimed at the communication of information, not at impeding an official

proceeding. So this is where you call it Flynn, you say, don't, don't flip, you know, and don't tell Mueller the babysitter's dead. Don't trip, don't flip, you know, and don't tell Mueller the babysitter's dead. Don't trip, don't flip. And then, and then he doesn't, Flynn there is not obstructing or obstructing an official proceeding. He's obstructing Flynn who is trying to not communicate to the law. So he says that's when it's tampering.

Yeah. Yeah. In witness tampering, when it's preventing someone from communicating with law enforcement, you don't need the nexus for artificial proceeding. That counts because he has indirect nexus. Yeah, indirect nexus. Nexus by proxy. Noise. Noise. A lot of x's.

Yeah, it's a cool phrase. It has a little lexicon. Yeah. Oh, another x. Oh, hey, lexicon. Lexicon, nexus by proxy. Yes. Oh X has never gotten so much use

More than stuff is extreme. Oh damn More than talks about attempts and endeavors and and these are the laws covering the concept that you don't have to complete The act I think to be guilty of it simply attempting or endeavoring to commit a substance a substantive the act, I think, to be guilty of it, simply attempting or endeavoring to commit a substance, a substantive offense counts, and he cites relevant case law here. And then on to page 12, and the investigative evidentiary considerations, Mueller says after he was appointed, he obtained evidence that about the following events related to potential obstruction of justice by Trump, the loyalty asked from Comey after the president found out Flynn lied to the FBI. Trump asking Comey to let the Flynn thing go. Trump asking Comey to publicly exonerate him. Trump pressuring the DNI,

NSA and CIA directors. Trump's TV interview with Holt, where he said Russia was on his mind. And Trump dictating junior statement about the 2016 Trump term meeting. You know what Trump needs? One of those little flip books where you can grant someone like a freemessager like, you know, like, I think they sell them out like gift shops. Yeah, and he's like here, here's one like a blank statement letting someone, let something go. I don't know, it's simply a good merch idea. I can't quite see.

I see one thing. I thought you meant like, you like obstruct justice nine times the 10th one's free. Oh, see, that could work too. Yeah, in the same way, just like, oh, yeah, I don't know. Yeah, like one of those weird monocles. Yeah, a little blank checks to do whatever you like. Like coupons. Yeah, loyalty asks the same way. Just like, oh, yeah, I don't know. Yeah, like one of those weird monotonyes. Yeah, a little blank checks to just do whatever you want.

Oh, yeah, like coupons. Yeah, loyalty-esque. One of those. Yeah, yeah, totally. One free loyalty-esque. Absolutely. Yeah, but not as president, just, you know, as Trump. We could, so it was for Valentine's Day,

especially surrounding Flynn, because that's when he... Oh, that's perfect. Yeah, yeah, yeah. He's making weird changes. You can exchange the coupons for a Cindy Yang coupon. Oh, no. No, thank you. Well, I'm all for a nice pun. That was all consensual, right? Yeah, I'm coming down to that. I don't know. I know. Okay. We don't know yet, but all right. We'll take that joke with a grain of something. Hopefully. But that joke applies only to consensual sex work. Thank you. I appreciate.

Uh, top of page 13 Mueller tells us he sought an interview with the president after more than a year the president declined to be interviewed because he's so open and transparent more than anyone else. This is, there's been a redacted sentence or two for grand jury considerations and I'm wondering who testified to the grand jury about Trump not agreeing to an interview. Maybe it was Bannon. I don't know. I don't know who's under there.

But as we know, the president agreed to written questions, but not about obstruction and not about events during the transition. He really wanted to cover those up. He wouldn't let anybody testify about that either. And he got really mad when Mueller was able to get all the transition emails, remember? And here is where Mueller says that even though he had

the authority to subpoena the president, he ultimately decided not to. Mueller says Trump would have fought it. It could have taken far too long considering he had enough evidence to understand relevant events and to make certain assessments like he's guilty without Trump's testimony. And that right there indicates he had enough evidence to charge him with crimes, but didn't because of the OLC memo. Otherwise, what would that even mean? You don't, you have enough evidence to do what? To write a report. So he says,

he goes into more detail about this decision in appendix C at the end of the report. But that was very telling to me. When he's like, well, I would take too long and I had enough evidence on Trump. For what? Hmm. What enough evidence to what?

Yeah, yeah, which crime? You would just, you know, spitballin'. What would you need evidence for? Hmm, what would one gather evidence for? I'd like to solve the puzzle. It's like, for fun. For C R. For funsies. I, yeah.

Grimes. Muller then talks about establishing men's rea in obstruction cases and that the knowledge can be proved by circumstantial evidence. Any sites relevant case law? What does that mean again? Circumstantial evidence? I'll tell you here. It means that you don't have to have an email from the president

saying, help me obstruct justice You can take his behavior his pattern of behavior is consciousness of guilt Circumstantial evidence. So smoking gun smoking gun is actually literally circumstantial evidence But circumstantial evidence wasn't enough to establish guilt in the volume one Investigation that's for obstruction. I know. I'm just thinking, so then did circumstantial evidence not apply? No, but what he was investigating in... Correct, because member of Nans Raya is what they didn't have. And circumstantial evidence doesn't cover that when you're doing that shit.

And that's why they were missing those key pieces of evidence in volume one. He also wants to make sure we know that the determinations of intent are frequently reached without an interview hinting here that the applicable circumstantial evidence he obtained would be enough to charge Trump without interviewing him. And he goes on to cite several obstruction case law that supports that assertion. So he's like, I didn't need to interview him because I had enough evidence to, I don't know, have a party. He then says that credibility judgments can be made based on facts and circumstantial evidence and that standard grand jury instructions include factors for assessing credibility,

which include whether a witness has a reason to lie, whether the witness has a good memory, whether the witness has an opportunity to observe the events, whether the witness's testimony was corroborated by others, and whether anything the witness said or wrote contradicts their own previous, shit they said or wrote. So sad he could get a testimony by the accident. Oh, I know.

I know, it's frustrating, but he's saying here that he literally has so much evidence that he could be convicted of crimes that he did not need to interview him for it. Oh, for, yeah. Because we kept saying that over and over again, we're like, he's got to get to the intent and you can only do that through an interview. Nope, he's got plenty of evidence without it to have a party.

But it doesn't mean anything if Congress doesn't take it. Correct. Unless you can use it after he leaves office and somebody can run with all this in the process. So we wouldn't even need to flip the Senate as long as Trump loses in 2020 to prosecute him. OK, great. Yeah, because at that point, Congress has jack shit to do with his, really,

promulgated trials. We could get a hope and change guy in there who wants to look forward only and not backwards and not prosecute anybody for war crimes. And I'm not really talking about anyone specific at all. Would it, would it like a, would it like a, it wouldn't be Congress, though, that would be charging him after he's out of office it would be like a department of justice something yeah they'll be waiting oh they probably have a countdown calendar but they might not they might say we're gonna look forward we're gonna unite the country yeah because

charging him would only divide the country well no one it's a freaking state dude that's there's already 50 divisions just go for it exactly she's talking about state attorney yeah I'm talking about the department justice in sdny okay but tish will still be likely around so there's that yeah yeah well sorry i guess i guess when i say sdny i feel like there's a public perception that it's very much respective to the state specifically and it's not they don't think of it federally right i don't think people in general think of sdny even though technically it has like federal jurisdiction.

I don't think so. But it's mostly about, yeah, it's not Congress, it's not Congress doing it. It's, it's like draw a thick line between SDNY and the Southern District of Georgia and the Southern District of California between that and the New York Attorney General and the California Attorney General.

Because state crimes are part and a bull where federal crimes are not, no matter what state district, they're tried or in, whether it's New York or Georgia or whatever, if it's part of the Department of Justice, if it's part of the U.S. Attorney's Office is part of the Department of Justice, which Bill Barr looks at now,

and state AGs can't bring federal crimes. Oh, so Tisha's under the state. That's state attorney general. Good, okay, okay. But you can't bring a federal crime. Oh, so Tisha's under the state. That's, oh, she's saying. She's saying, good, okay, okay. But she can't bring a federal crime. Yes, cool. She can't charge anyone with federal crimes. Right, but she can do them with state charges,

which can be pardoned, so that's great. If they, if they broke state law. But, okay. He definitely did. Not related to this stuff necessarily, but, hopefully, that's the end. That's the end. No, because these obstruction of justice charges

are all federal crimes. Right, but the other, so it, it would have to be an SCNY. Yeah, like the yeah, or DC or something. Yeah, so yeah, it's part I can't what about Cohen and that means that the president would have to instruct and be okay with his the new president Let's say Elizabeth Warren points Kamala Harris as the attorney general. They'd all have to be cool with prosecuting Trump or I'd like to believe that yeah That sounds good another one. I really want her to be the attorney general.

I would love that. Yeah. Okay. So otherwise, let's say if Republicans get nominated in 2020, then STNY conceivably is not going to do it. But New York AG or like a state AG want that wants to go after him. They can't bring him on federal crimes, but they could bring him on state crimes after he's out of the presidency. Yeah, they can actually do it now. They can actually bring him up on state crimes now, because they don't have the office of legal counsel memo over their head, because they're not part of the Department of Justice, but no one's ever brought charges against state charges against a president unless it's a civil suit, which she's done several of, but she's never filed criminal charges. No, I don't think anyone's filed. I don't want to say ever, but it's unusual to file state criminal charges against a sitting president or vice president,

but there's nothing stopping her. I don't think there was really anything stopping the Southern District of New York either, but they do have, but it is bar and he has that Office of Legal Council memo saying you can't indict a sitting president. So, but that doesn't apply to the state. She might need just like, you look encouragement from the people. She should have like a podcast for her. But it seems pretty down though, right? Yeah. She does. She does. She's already investigating the shit out of them.

And I wouldn't be surprised if she drops some charges. Anya. And then we'll see how that goes through the courts. Mm-hmm. That'd be interesting. And finally, guys, Mueller defends the use of contemporaneous written notes. Even though Trump says, no, don't take notes. No, but legally, contemporaneous written notes are really, really strong evidence. Oh, witnesses,

recitation of his account before he had any motive to lie and witness his false description of an encounter implying consciousness of wrongdoing. Any site's case lost supporting all three of those components as evidence. So, guys, that is it. That is part 10. Whoo. So you know, first part of volume two. And we will be back next week, getting into the factual breakdown of everything that went down. And now that we've had Mueller's testimony, we can integrate that into it too. So join us for that. I think it'll be fun. Thursday nights, whenever we get done editing it. We don't have a set time, but we'll get it to you shortly. So any final thoughts? No, just have a great weekend, guys.

Mm-hmm. Word. Yes. Alright, I've been A.G. I've been Jolison Johnson. I've been Jorin Coburn. And we'll see you in Chicago. I mean, this is Molochie wrote. Molochie wrote is produced and engineered by AG with editing and logo designed by Jolissa Johnson. Our marketing consultant and social media manager is Sarah Lee Steiner and our subscriber and communications director is Jordan Coburn. Fact checking and research by AG and research assistants by Jolissa Johnson and Jordan Coburn. Our merchandising managers are Sarah Least Diner and Sarah Hershberger Valencia, our web design and branding, our by Joelle Reader with Moxie Design Studios,

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