Over 35 years ago, a young Yale Law School professor explained “Why the President (Almost) Always Wins in Foreign Affairs.” After decades of experience as an executive branch lawyer and scholar, Yale’s now Sterling Professor of International Law Harold Hongju Koh has adapted his theory of the “National Security Constitution” for the 21^st century in his new book. The “National Security Constitution,” according to Koh, “rests upon a simple notion: that the power to conduct American foreign policy is not exclusively presidential, but is a power shared among the president, the Congress, and the courts” (1). But this ideal of “balanced institutional participation” in national security policy-making has gotten badly out of balance. Koh’s diagnosis of the pathologies in the U.S. constitutional system for national security policy-making runs like this: “When national security threats arise, weak and strong presidents alike have institutional incentives to monopolize the response; Congress has incentives to acquiesce; and courts have incentives to defer” (2). This description covers many, but not all, of the dysfunctions in national security policy-making.

In a forthcoming article, we warn of another kind of concern with U.S. foreign relations and national security policy-making, one born not of congressional acquiescence but of unbridled congressional enthusiasm for executive branch policies. We deem these situations examples of “frictionless government.”

Frictionless government occurs when there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the President. In frictionless government, the usual tensions between congressional and executive desires disappear; the contentious partisan interactions between Republicans and Democrats quiet; and the often fractious inter-agency negotiations within the executive branch are streamlined. The disappearance of partisan, interbranch, and interagency checks can amplify cognitive biases that often arise in decision making, including groupthink, and result in governmental actions that spark or escalate conflict, trigger actions by U.S. adversaries that undercut U.S. security goals, and unlawfully target domestic constituencies perceived to be linked to foreign adversaries.

In adding to the picture of ways foreign affairs policymaking can go wrong, we aim to ensure that it more often goes right. Koh’s story and ours both highlight situations in which actors outside the Executive either cannot or will not naturally introduce friction into policymaking at a time when friction would improve those policies. It is not surprising, then, that our concern about frictionless government leads us to turn to some of the same entities that Koh suggests for restoring checks and balances more broadly and to some similar suggestions for specific reforms.

Youngstown and Category 1 Complacency

The lodestar for Koh’s ideal of “balanced institutional participation” in national security decision-making is Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (14). Jackson recognized that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He famously set out a tripartite framework for assessing exercises of presidential power. In Category 1, “the President acts pursuant to an express or implied authorization of Congress,” and “his authority is at its maximum.” In Category 2, the President acts without “either a congressional grant or denial of authority,” placing him in a “zone of twilight.” And in Category 3, where the President takes acts “incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”

Much of the concern over unconstrained presidential actions has focused on presidential actions in Categories 2 and 3. This focus is understandable, since those categories are most indicative of potential presidential power grabs—that is, aggressive claims of executive authority without the support of or over the opposition of Congress. To his credit, Koh goes further, interrogating just how the President ends up in Category 1 in some cases. Koh points out that Presidents have often construed laws such as the War Powers Resolution and International Emergency Economic Powers Act (IEEPA), which were designed to constrain executive actions, as authorizations instead (92). And he argues that “Congress has usually acquiesced in what the president has done, through legislative myopia, inadequate drafting, ineffective legislative tools, or lack of political will” (92). He places a share of blame on the courts as well, including for invalidating legislative vetoes in key statutes that Congress intended to check the Executive and for declining to adjudicate other disputes.

But even Koh’s more nuanced account risks complacency about Youngstown Category 1. Many recent congressional enactments related to national security are aimed not at constraining the President, but at empowering him. This isn’t congressional acquiescence; it’s a congressional shove. Congress is putting the President into Category 1 not by accident or because of court disruption of a statutory scheme, but precisely because there is bipartisan support in Congress for the executive branch to do more and faster to address perceived national security threats. Category 1 cases, Jackson said, are “supported by the strongest of presumptions and the widest latitude of judicial interpretation,” but they can still go wrong.

The Risks of Frictionless Government

In our forthcoming article, we examine three historical examples of frictionless situations and the resulting harms they caused: the internment of Japanese-Americans in the wake of the attack on Pearl Harbor; the aftermath of the Gulf of Tonkin incident, which led to the Gulf of Tonkin Resolution and deep U.S. involvement in the Vietnam War; and the policies that followed the September 11 attacks. These examples illustrate instances in which policies produced in frictionless situations were deeply flawed.

Decisionmakers sometimes relied on faulty factual premises that went unchallenged. Or they embraced xenophobic or racist beliefs. Or they sought short-term gains at the cost of longer-term strategic goals. And yet all of these policies rested on or were supported by statutes that Congress passed by wide margins, with bipartisan support, and with the encouragement of the White House.

To be clear, not all frictionless situations inexorably lead to poor foreign policy choices: the contemporary case study of the response to Russia’s full-scale invasion of Ukraine provides a counterpoint. Nevertheless, as Amy Zegart put it, “When everyone’s agreeing, you shouldn’t be comforted. You should be worried.”

By that metric, current U.S. policymaking with respect to China is worrisome. China policy has been a rare area of bipartisan agreement in the midst of an otherwise deeply fractured political environment. In this context, Congress has consistently urged the Executive to go further, passing new authorities for the Executive to deploy and urging the Executive to do more with existing programs.

The historical examples of frictionless government illustrate a range of reasons to be concerned, which is why we think it is important to ask skeptical questions of the government, even—or perhaps especially—in settings in which Congress is not simply acquiescing to executive action, but affirmatively pushing the Executive to act. Perhaps the most significant concern is the risk that the United States will unintentionally slide into war or escalate a conflict.

Robert Jervis famously conceptualized a “spiral model” of international conflict, in which actions by states that are simply seeking to enhance their own security create a vicious circle of security competition. When the United States hastily takes steps to improve its own security, adversaries may perceive these steps as aggressive and react to having their security reduced in ways that could make the outbreak of conflict more likely.

A second category of harms from frictionless government comes from the reactions of countries targeted by U.S. policies—reactions that can undercut the policy goals the United States intends to achieve. The U.S. use of economic tools of national security provides an example. The incautious imposition of sanctions or export controls, driven by strong pressure from Congress or from public fervor about an outside threat, might stimulate their targets to avoid the U.S. financial system or to develop indigenous industries faster than they otherwise would in order to have an alternative source of products not subject to U.S. restrictions.

Finally, several of the historical examples we explore illustrate that it is easy in frictionless times for Congress to enact new laws or for the Executive to deploy existing statutes in ways that unlawfully target domestic constituencies perceived to have links to foreign adversaries. Although civil liberties may return to their prior equilibrium once friction re-enters the system, affected individuals suffer real harm during the frictionless period, and the United States can suffer long-term reputational damage.

In sum, while there are undoubtedly reasons to worry about undue accretions of executive power when the President is acting in Youngstown Categories 2 or 3 or dubiously claiming to be in Category 1, even instances where the President is clearly in Category 1 can be deeply problematic when the political branches and political parties are all aligned in pursuit of a policy. Whereas Koh focuses on “reduc[ing] the isolation that currently surrounds executive-branch activities” (267) in some cases, we cannot lose sight of the risks when the Executive is not isolated at all, but is instead surrounded by enthusiastic external cheerleaders.

Where Do We Go from Here?

Concern about unchecked government action, whether by a unilateralist Executive (as Koh and others discuss) or by a deeply empowered and encouraged one (in our frictionless government scenarios), naturally leads to calls for reimposing checks and balances. The difficulty, of course, is how exactly to do so.

We propose reliance on both friction imposed by the political branches on themselves (or on each other) and sources of friction external to the U.S. government. Self-imposing friction in advance of foreign policy crises could serve as precommitment devices for the political branches. A range of techniques could fulfill this role. For example, the Executive could require dissent by having someone within the Executive play the role of “devil’s advocate,” pressure-testing policy choices that have garnered too much unanimity. Other efforts could foster dissent by diffusing to other agencies a mechanism like the State Department’s long-standing “dissent channel,” which allows employees to communicate contrary views to department leaders without fear of retaliation.

Another technique is for executive officials or Congress to mandate reason-giving to justify policy choices. Reason-giving can improve the quality of decisions, deter abuses, and ensure adherence to legal standards. A final technique of self-imposed friction is to build in policy off-ramps. Such off-ramps might take the form of sunset clauses in statutory authorizations or periodic review of policies that might lead decision-makers to reconsider policies made at a time of broad consensus and with undue speed at a later time, when cooler heads may prevail.

Some of these techniques of self-imposed friction may also guard against a unilateralist Executive, and for that reason, we see overlap with some of Koh’s robust suggestions for reform in his book’s closing chapters. Koh supports strengthening the Executive’s internal checks and balances, and we agree that the Executive would benefit from a more adversarial approach that fosters contestation in foreign policy decision-making (266-68). Koh also pushes for the establishment of a “joint committee on national security” in Congress to become “a core group of expert members on national security matters” (275), advised by a “congressional legal adviser” (278). Such institutions could force greater reason-giving by the President. Koh envisions a Congress with these institutions engaging in “adversarial” review of executive branch legal opinions and presidential national emergency declarations (under a revised version of IEEPA).

Of course, there would remain a risk that the congressional joint committee on national security might not serve as a counterweight to the Executive, but rather could become an enabler in situations of frictionlessness. The committee members’ status within Congress as the branch’s experts could lead other potential congressional counterweights to defer to the committee, which might itself defer to the Executive. Care must be taken to ensure that efforts to solve one problem don’t inadvertently exacerbate another.

The risks posed by the collapse of interagency, partisan, and interbranch checks leads us to turn, as Koh does (295-96), to potential sources of friction external to the U.S. government as well. These potential external counterweights, including state and local governments, foreign governments, and private companies, are all imperfect checks. Each has its own interests, separate and apart from serving as checks to U.S. government policies. In some cases, those interests may be adverse to those of the United States; in others, their interests may lead them to accelerate frictionlessness rather than check it. U.S. states are arguably exacerbating frictionlessness with respect to China policy today, adopting investment restrictions and drone bans that go beyond those of the federal government.

Nonetheless, in some situations of frictionless government, external actors may step in to provide friction or nudge entities within the U.S. government to reactivate as internal sources of friction. They may create friction by filing litigation that brings courts into the picture, by lobbying legislators, or by highlighting domestic economic consequences of government decisions. Or they may leverage their role as necessary partners to federal government policy implementation to raise concerns or slow roll implementation.

Layering different kinds of friction is crucial. In any given case, one or more of the checks may fail. Checks that may restrain a unilateralist Executive, such as empowering Congress structurally to push back effectively, can still fail in situations of frictionlessness, where Congress lacks the policy or political incentives to restrain the Executive.

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In his Conclusion, Koh quotes Justice Brandeis’s dissent in Myers v. United States for the point that “the purpose of separation of powers is ‘not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy’” (329). Considering both the story Koh tells about executive unilateralism, congressional acquiescence, and judicial deference, and the story we tell about situations of frictionless government reveals that friction is, for one reason or another, too often lacking in acute moments of foreign policy-making. With the benefit of hindsight on the 20th century and nearly the first quarter of the 21st, we can see that friction is in fact not inevitable. It is, however, still crucial.

IMAGE: The U.S. Capitol in Washington, D.C., U.S. Photographer: Sarah Silbiger/Bloomberg

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For foreign relations and national security cases though, any effects are more likely to be ripples than waves. The Supreme Court has long given weight to the executive branch’s views in foreign relations and national security cases based on functional justifications – like executive branch expertise and access to information – that the Court today emphasizes are consistent with the Administrative Procedure Act (APA), which governs how many agencies create regulations and enforce laws.

For several decades, Chevron’s two-step test was synonymous with the idea of judicial deference to agency statutory interpretations. Chevron specified that judges should first determine “whether Congress has directly spoken to the precise question at issue,” and if so, “give effect to the unambiguously expressed intent of Congress.” If the statute, however, was “silent or ambiguous,” then courts would give effect to the agency’s “reasonable interpretation,” even if it was not the one the court itself would have chosen. The Supreme Court has not been subtle in its growing signals of discontent with Chevron. As the Court today notes, it has not relied on the doctrine since 2016, and even before then, it did not rely on Chevron in some cases where the framework by its terms applied (Op. at 32). More recently, the Court has used the “Major Questions Doctrine” to sidestep Chevron deference to agency statutory interpretations in cases involving questions of “deep ‘economic and political significance.’”

In foreign relations and national security-related cases, however, the Supreme Court has traditionally deferred to the executive branch and has often done so for reasons separate and apart from Chevron. For example, in a case about application of the material support to terrorism statute, the Supreme Court noted that “when it comes to collecting evidence and drawing factual inferences in this area, ‘the lack of competence on the part of the courts is marked,’ … and respect for the Government’s conclusions is appropriate.” In an earlier case challenging the executive’s denial of a security clearance, the Court similarly explained that “it is not reasonably possible for an outside non-expert body [i.e., the Court] to review the substance of such a judgment” or to “determine what constitutes an acceptable margin of error in assessing the potential risk.” These sorts of functionalist reasons for courts to give weight to executive branch views on foreign relations and national security-related issues are consonant with the long-standing Skidmore deference that the Court reaffirmed in its opinion today.

In Skidmore v. Swift & Co., the Court noted that courts may give weight to the views of an executive branch administrator though how much weight “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Roberts’s opinion for the Court in Loper Bright emphasizes that, as judges “exercise independent judgment in determining the meaning of statutory provisions,” they “may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. Such interpretations ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA.” (citing Skidmore (Op. at 16)). 

In foreign relations and national security-related cases, judges often emphasize their comparative lack of institutional competence vis-à-vis the executive, and so going forward, the Court’s reemphasis of the Skidmore factors suggests that deference to the executive will continue – for many of the same reasons it has all along. As the Chief Justice noted, an agency’s interpretation of a statute “may be especially informative ‘to the extent it rests on factual premises within [the agency’s] expertise” (Op. at 25). While that caveat may ultimately soften the blow of Chevron’s demise throughout administrative law, it is especially likely to apply to many foreign relations and national security-related cases.

In addition to its emphasis on the Skidmore factors, the Court also took pains to note that some statutes authorize an agency to “exercise a degree of discretion,” such as by “giv[ing] meaning to a particular statutory term” or “regulat[ing] subject to the limits imposed by a term or phrase that ‘leaves agencies with flexibility’” (Op. at 17). Some of the key statutes that underpin the executive’s national security efforts likely fall within this category. Consider, for example, the International Emergency Economic Powers Act (IEEPA), which underlies the vast U.S. economic sanctions regime, among other things. IEEPA authorizes the President to exercise a plethora of emergency powers whenever he declares a national emergency “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” The breadth of this delegation has drawn criticism from some quarters, but it undoubtedly does grant the executive branch considerable discretion.

If foreign relations and national security issues escape the tumult prompted by Chevron’s overruling, such exceptionalism would not itself be exceptional. The Court has engaged in “foreign affairs exceptionalism” for some time, analyzing foreign affairs-related issues “in distinct ways as a matter of function, doctrine, or methodology.” Even Justices who are most committed to the project of reining in the administrative state seem willing to carve out foreign relations-related issues. In explaining his vision for a reinvigorated non-delegation doctrine to limit congressional delegations of authority to the executive branch, Justice Neil Gorsuch nonetheless identified areas where delegations would remain permissible, including where Congress and the executive have overlapping constitutional authorities and where the exercise of delegated authority depends on executive factfinding – citing foreign relations-related examples to support both.

How the Court’s decision will play out in many areas of administrative law remains to be seen. The Court today vacated the two circuit court opinions below in Loper Bright and its companion case, Relentless Inc. v. Dep’t of Commerce, because they applied Chevron to interpret the Magnuson-Stevens Fishery Conservation and Management Act and deferred to agency interpretations. But the implications for foreign relations and national security-related cases seem less momentous. As a purely descriptive matter, the renewed primacy of Skidmore seems likely to inure to the executive’s benefit with respect to foreign affairs and national security. Whether that is normatively desirable is a separate – and much debated – question.

IMAGE: A view of the U.S. Supreme Court on June 5, 2023, in Washington, D.C.  (Photo by Alex Wong/Getty Images)

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In the past year, the U.S. Committee on Foreign Investment in the United States (CFIUS) reviewed a record number of transactions for national security concerns. In July, the U.K. government blocked its first transaction under a new investment screening law—the National Security and Investment Act (NSIA)—that took effect in January. Also in July, the Biden administration endorsed the development of a mechanism to screen outbound investment from the United States to countries of concern, particularly China. Although Congress ultimately omitted a broad outbound investment screening mechanism from the CHIPS and Science Act passed in August, bipartisan support for such a mechanism suggests it may move forward in another form.

All of these developments are examples of what we call “national security creep”: the recent expansion of national security-related review and regulation of cross-border investments to allow government intervention in more transactions than ever before. As we explain in a forthcoming Columbia Law Review essay, national security creep raises both theoretical and practical questions for regulators, judges, deal parties, and scholars—all of which suggest that countries ramping up their national security review of investments should take care to do so thoughtfully and as transparently as possible.

The Expanding Reach of National Security-Related Investment Reviews

National security creep is part and parcel of a bipartisan shift to frame economic issues—among many others—in security terms. Both the Trump and Biden administrations have emphasized that “economic security is national security.” Scholars have termed this a move to a “new geoeconomic world order, characterized by great power rivalry between the United States and China and the clear use of economic tools to achieve strategic goals.” Competition between the United States and China has come to focus in large part on technology—both developing it and protecting it from cybersecurity threats.

Against this backdrop, three recent major developments relating to cross-border investment screening exemplify national security creep.

1. CFIUS’s Increasing Scope: CFIUS has reviewed inbound investments for security concerns for decades, but the scope and frequency of its reviews are increasing. Two recent high-profile CFIUS actions have involved apps: CFIUS required a Chinese company to unwind its acquisition of the dating app Grindr in 2019, and former President Trump ordered TikTok’s Chinese parent company, ByteDance, to divest itself of Musical.ly in 2020. Clearly, CFIUS’s interest has expanded well beyond traditional security-related companies, like defense contractors. And in the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), Congress legislatively expanded CFIUS’s jurisdiction to include certain real estate transactions and some non–controlling investments in businesses involved with critical technologies, critical infrastructure, or sensitive personal data of U.S. citizens.
2. Global Diffusion of CFIUS-Like Processes: National security screening of investments is not unique to the United States. Indeed, the U.S. government has actively encouraged allies to establish such screening processes. Numerous countries have established new or strengthened existing security-focused screening processes in the past few years. For example, the U.K. NSIA came into effect in January 2022, Australia overhauled its investment screening system effective in 2021, and the European Union’s adoption of a regulation on screening foreign direct investment in 2019 prompted numerous E.U. member states to impose screening mechanisms.
3. Increased U.S. Restrictions on Outbound Investment: National security-based restrictions are also not limited to investment into the United States. The U.S. government has expressed increasing concern about investments flowing from the United States to China in particular. National Security Adviser Jake Sullivan has warned about “the impact of outbound U.S. investment flows that could circumvent the spirit of export controls or otherwise enhance the technological capacity of our competitors in ways that harm our national security.” The Trump administration imposed and the Biden administration continued (in somewhat amended form) a prohibition on investments by U.S. persons in entities linked to China’s military. Broader outbound investment screening has garnered bipartisan support and may be adopted in some form by the executive branch or Congress.

Taken together, these actions and the broad understandings of national security that underpin them render more deals than ever before subject to screening and even prohibition on national security grounds.

The Potential Role of the Courts 

As the executive’s claims about national security push further into the economic realm, companies caught up in regulatory actions may turn to the courts. Indeed, some already have. Two Chinese companies won preliminary injunctions against their inclusion on the Trump administration’s investment ban list. Judges tend to defer to the executive branch on national security-related factual and legal claims, leading scholars to identify a phenomenon of “foreign affairs exceptionalism.” But will this deference survive as executive claims with respect to national security shift focus from issues like terrorism to long-term tech competition?

How judges approach the executive’s factual and legal claims in cases brought by companies will determine how much of an independent check courts are on executive uses of broad delegated powers from Congress. Three main possibilities emerge. First, judges might simply accept the executive’s claims about the new scope of national security issues and defer accordingly, with the result that the scope of deference to the executive quietly expands further into the economic realm. A second possibility is that the executive’s ever broader claims about what falls within the ambit of national security cause judges to become more skeptical of and less deferential to executive national security claims across the board, resulting in a constriction of deference. A final possibility is that judges begin to bifurcate their treatment of national security claims and cases, treating more traditional national security issues with their customary deferential approach, while treating economically focused national security claims more skeptically or less deferentially.

Judges’ approaches may well vary based on their judicial philosophies, but companies deciding to challenge (or not) security-related restrictions imposed on them will determine whether judges have an opportunity to weigh in at all. As security reviews begin to catch companies well beyond those that consider themselves key national security players, governments should be prepared for legal challenges and the possibility of a more skeptical, searching review by the judiciary.

Implications for Contract Theory

From a theoretical perspective, national security creep also adds new uncertainty to deals, upending well-understood notions about how regulation affects deal costs.

In the contract theory literature, many scholars have argued that the cost of a contract includes both its ex ante design costs and its ex post litigation costs. When regulators intervene, they almost always intervene ex ante. With very rare exceptions, for instance, antitrust authorities are involved in divestiture and other mitigation decisions before deals close. Moreover, the rationales and outcomes of regulatory intervention are often relatively transparent.

National security review, however, is different. CFIUS can review and unwind deals even after the deal closes, meaning that regulatory costs are not cabined to the ex ante design part of the deal timeline. Moreover, because CFIUS review is shrouded in secrecy, parties have a harder time planning for the uncertainty of national security review.

Longer Term Consequences of National Security Creep

Because the expansion of national security reviews of investment is recent and ongoing, the longer term consequences are difficult to predict, but policymakers should be mindful of some possibilities.

First, there is a risk of blowback from investment screening processes. For example, it is not clear whether or how the U.S. government, in urging other countries to establish CFIUS-like processes, has considered the risks and costs of such processes being used against U.S. investors or that U.S. companies have considered the risks to their investments from such global diffusion of screening processes. Another blowback risk comes from China. As more countries stand up investment screening processes with the more-or-less explicit goal of mitigating risk from Chinese investments, might China respond by forcing countries effectively to choose between Chinese investment and investment by the United States and its allies?

Second, because CFIUS review is so unpredictable—it can happen after a deal closes, there is relatively little public information about why or how CFIUS intervened in previous deals, and mitigations can rise to the level of ordering divestiture—deal parties might be motivated to hide CFIUS-triggering information from regulators. A related concern is that well-heeled deal parties can seek repeat-player counsel that can guide them through the CFIUS process, while less well-heeled parties cannot—leading to a market where access to national security clearance for deals is held in the hands of a few private lawyers.

Finally, what effect will national security creep have on overall deal volume? Intuitively, increased regulatory costs of national security reviews may chill deals involving countries imposing such review. That’s not necessarily a bad thing if the chill deters deals that would raise legitimate national security concerns, but the chill may not be so perfectly tailored. On the other hand, proliferation of security review processes could potentially decrease regulatory friction if clearance of an investor or a deal in one country were effectively transferable to allied countries.

Recent legal changes in the United States and abroad ensure that national security creep in investment review remains in significant flux. This post and our essay aim to begin a conversation about these developments by highlighting their potential domino effects and unintended consequences. In the near term, we offer some words of advice and caution.

We urge executive branch decision-makers to wield their tremendous authority judiciously. They should act to protect national security as necessary but also be aware of the possible ripple effects of their actions for a broad range of issues, including investor disclosures and treatment of U.S. investors abroad. Executive officials should also be more transparent and speak publicly about the nature of the national security concerns they are attempting to address with national security screening of investments. Doing so would help to bolster the legitimacy of regulatory actions. As the nature of national security concerns evolves, Congress, the judiciary, the public, and scholars all need to be part of the conversation.

IMAGE via Getty Images.

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Some hints have emerged about what the United States may be doing to help Ukraine on cybersecurity. In congressional testimony last month, National Security Agency Director and Commander of Cyber Command Gen. Paul Nakasone said, “We had ‘hunt forward’ teams from U.S. Cyber Command in Kyiv. We worked very, very closely with a series of partners at NSA and the private sector to be able to provide that information.” He noted the engagement had been long-standing in saying, “We’ve worked very, very hard with Ukraine over the past several years.” And in testimony earlier this week, he explained that “a series of assumptions” the Russians “may have made,” “coupled with the defensive capabilities” the United States has built with Ukraine have contributed to the relative lack of significant successful cyber operations against Ukraine in recent weeks.

What’s more, the New York Times reported in early March that “[h]idden away on bases around Eastern Europe, forces from United States Cyber Command known as ‘cybermission teams’ are in place to interfere with Russia’s digital attacks and communications.” What exactly that such teams have done is not clear.

In addition to whatever may be happening in secret, the United States is also taking publicly announced actions that seem designed to make life more difficult for Russian cyber actors, both those working for the state and those with murkier associations.

In the takedown of the botnet linked to the GRU, DOJ acted pursuant to federal court authorization. In doing so, the department explained that it

copied and removed [“Cyclops Blink”] malware from vulnerable internet-connected firewall devices that Sandworm used for command and control (C2) of the underlying botnet. Although the operation did not involve access to the Sandworm malware on the thousands of underlying victim devices worldwide, referred to as “bots,” the disabling of the C2 mechanism severed those bots from the Sandworm C2 devices’ control.

Attorney General Merrick Garland emphasized that officials “disable[d] the GRU’s control over” compromised devices “before the botnet could be weaponized.” DOJ noted that in addition to releasing an advisory about the malware in conjunction with the UK’s National Cyber Security Centre, “the FBI has been attempting to provide notice to owners of infected … devices in the United States and, through foreign law enforcement partners, abroad” either directly or through internet service providers when the owner of an infected device is not publicly known.

This is not the first time the United States has engaged in a botnet takedown, and, as DOJ’s announcement notes, it’s not even the first one against a botnet operated by the GRU, though in announcing the prior botnet takedown in 2018, DOJ did not explicitly name the Russian government.

Now though, DOJ isn’t shy about targeting Russian government officials directly. An indictment unsealed on March 24 charged “an employee of a Russian Ministry of Defense research institute and his co-conspirators” with efforts to “damage critical infrastructure outside the United States, thereby causing two separate emergency shutdowns at a foreign targeted facility” and attempting similar hacks in the United States. The indictment reportedly relates to a 2017 hack that disabled safety systems at Saudi Arabia’s Petro Rabigh oil refinery. Another indictment unsealed the same day charged “three officers of Russia’s Federal Security Service (FSB) and their co-conspirators” with “target[ing] and compromis[ing] the computers of hundreds of entities related to the energy sector worldwide.” The indictments address conduct between 2012 and 2018—actions DOJ termed “two historical hacking campaigns.” One suspects that the decision to go public with the charges now, when the United States and allies are using many avenues to ratchet up pressure on Russia, is no coincidence.

Separately, the Treasury Department announced on April 5 that its Office of Foreign Assets Control, working with international partners, “sanctioned the world’s largest and most prominent darknet market, Hydra Market (Hydra), in a coordinated international effort to disrupt proliferation of malicious cybercrime services, dangerous drugs, and other illegal offerings available through the Russia-based site.” According to Treasury, “Hydra’s offerings have included ransomware-as-a-service, hacking services and software, stolen personal information, counterfeit currency, stolen virtual currency, and illicit drugs,” and Treasury’s investigation has “identified approximately $8 million in ransomware proceeds that transited Hydra’s virtual currency accounts.” Treasury also sanctioned Garantex, a virtual currency exchange that processed “over $100 million in transactions … associated with illicit actors and darknet markets, including nearly $6 million from Russian [ransomware-as-a-service] gang Conti and also including approximately $2.6 million from Hydra.” The announcement went out of its way to highlight that Garantex operated out of the same Moscow building as two previously sanctioned cryptocurrency exchanges and noted that the sanctions are part of an effort to “further cut off avenues for potential sanctions evasion by Russia.”

To whom is the U.S. government communicating, and what it is saying?

There are multiple audiences when the U.S. government attributes hacking campaigns to foreign governments or imposes sanctions, and these latest moves are no exception. They communicate to the targeted individuals and to the Russian government and other entities how much visibility the United States has into who is behind hacking campaigns and supposedly anonymous cryptocurrency transactions. The sanctions announcement in particular also seems intended for consumption by third parties who might consider helping Russia evade the massive sanctions that have been imposed since the invasion. And to accompany the March 24 indictments, the State Department announced rewards of up to $10 million from its Rewards for Justice program for “information leading to the identification or location of” the defendants. These efforts may not deter Russian state or non-state actors, but they can increase risks for bad actors and those who might deal with them going forward and certainly create friction for malicious operations—at least for a while. (Past botnet takedowns have not kept the botnets down for long.)

Outside of the specific Russia-Ukraine context, the latest botnet takedown fits into a broader shift by the U.S. government to treat issues like ransomware, cryptocurrency, and botnets as national security concerns, not purely law enforcement matters. In announcing the botnet takedown, U.S. Attorney for the Western District of Pennsylvania Cindy K. Chung stated, “Such activities are not only criminal but also threaten the national security of the United States and its allies.” In announcing ransomware indictments and the recovery of some funds paid as ransoms, Garland similarly said in November, “Cybercrime is a serious threat to our country: to our personal safety, to the health of our economy, and to our national security.” The national security framing suggests an attempted unity of effort between agencies across the U.S. government and between the cybersecurity actions that are publicly announced — like the botnet takedowns, indictments, and sanctions — and other actions that are kept secret. In this vein, U.S. Cyber Command has reportedly acted both against botnets and against ransomware gangs. Whether the national security framing and the whole-of-government approach that accompanies it will be effective at improving U.S. cybersecurity remains to be seen.

The post Friction, Framing & U.S. Cybersecurity-Related Actions Against Russia appeared first on Just Security.

In a January 5 statement, the FBI, CISA, ODNI, and the NSA characterized the SolarWinds incident as “an intelligence gathering effort” by “an Advanced Persistent Threat (APT) actor, likely Russian in origin.” Both before and after this statement, questions arose about whether the United States would respond to an intrusion that was “just espionage.” In a February 17 press briefing, Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger seemed to say that it was not “just espionage”; rather, she said, “when there is a compromise of this scope and scale, both across government and across the U.S. technology sector to lead to follow-on intrusions, it is more than a single incident of espionage; it’s fundamentally of concern for the ability for this to become disruptive.” But the question remained, if the United States wanted to condemn the SolarWinds incident, what line could it draw that wouldn’t open the United States up to charges of hypocrisy?

The administration didn’t provide a line, but instead provided a cluster of factors that, taken together, made the SolarWinds hack worthy of a public response in a way that, for example, the 2015 Office of Personnel Management hack was not. Multifactor tests are not unusual for the Executive Branch, but the lack of clarity about the necessity and relative weight of various factors is less than ideal in this context where the administration is communicating internationally about acceptable and unacceptable state behavior. The administration’s commitment to providing training to foreign policymakers on publicly attributing cyberattacks is, however, a very promising sign for expanding the range of states engaged in defining the rules of state behavior in cyberspace.

A Multi-Factor Test for Responding to Cyber Incidents

So what are the factors?

The White House Fact Sheet cited the scope of the compromise and the burden it imposed on the private sector:

The SVR’s compromise of the SolarWinds software supply chain gave it the ability to spy on or potentially disrupt more than 16,000 computer systems worldwide. The scope of this compromise is a national security and public safety concern. Moreover, it places an undue burden on the mostly private sector victims who must bear the unusually high cost of mitigating this incident.

The Treasury Department Press Release added more factors, including Russia’s history of “disruptive cyber operations,” risk to the supply chain, and theft of red team tools—the intrusion into FireEye that caused discovery of the whole operation. The Release explained:

This intrusion compromised thousands of U.S. government and private sector networks. The scope and scale of this compromise combined with Russia’s history of carrying out reckless and disruptive cyber operations makes it a national security concern. The SVR has put at risk the global technology supply chain by allowing malware to be installed on the machines of tens of thousands of SolarWinds’ customers. Victims of the compromise include the financial sector, critical infrastructure, government networks, and many others. Further, this incident will cost businesses and consumers in the United States and worldwide millions of dollars to fully address.

Additionally, the SVR stole “red team tools,” which mimic cyber attacks to help customers better protect themselves, from a U.S. cyber security company. These tools, if made public or used offensively by the SVR or other actors, would create additional opportunities for malign actors to target computer systems worldwide.

In a press call Thursday afternoon, a senior administration official pointed to “three core reasons” the United States “saw the need to make clear that this behavior was unacceptable”:

First, that broad scope and scale of the compromise, it’s a national security and public safety concern.

Second, as you noted, the speed with which an actor can move from espionage to degrading or disrupting a network is at the blink of an eye, and a defender cannot move at that speed.  And given the history of Russia’s malicious activity in cyberspace and their reckless behavior in cyberspace, that was a key concern.

And finally, the hack placed an undue burden on the mostly private-sector victims who must bear the unusually high costs of mitigating this incident.

Putting all of these statements together, the SolarWinds incident is not “just espionage” and warrants a response due to a combination of the scope and scale of the compromise, the burden imposed on the private sector, risk of escalation into disruptive behavior, risk to the global supply chain, and theft of red team tools. In a post in December, I highlighted the risk of escalation into a disruptive attack as a reason the United States should break its usual silence on espionage-focused intrusions, so I was glad to see it appear as a factor in the press call (though the quoted statement is unclear about whether the risk of escalation is specific to this incident or applies to Russian actions more generally). The statements so far do not clarify whether all of these features are required or the relative importance of the various factors.

To be sure, the Executive Branch loves a good multifactor test. Consider the Office of Legal Counsel’s long-standing approach to determining whether congressional authorization is required for uses of military force. OLC considers whether the military operations (1) “serve sufficiently important national interests” to justify action, and (2) whether the operations “would be sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war.’” Or consider then-State Department Legal Adviser Harold Hongju Koh’s 2011 congressional testimony on why the Obama administration’s actions in Libya did not constitute “hostilities” for purposes of the War Powers Resolution. Koh cited four factors—the limited mission, limited exposure of U.S. armed forces, limited risk of escalation, and limited military means—and concluded that “[h]ad any of these elements been absent in Libya, or present in different degrees, a different legal conclusion might have been drawn.” These tests, however, apply domestically to the allocation of authorities between Congress and the President.

A lack of clarity about the necessity and relative importance of various factors in a multifactor test may be more problematic when deployed internationally, particularly in a context where the United States is attempting to set norms or law about appropriate state behavior. The choice of a cluster over a line, a standard over a rule, isn’t surprising given the difficulty (really, impossibility) of distinguishing the SolarWinds incident from past hacking campaigns based on a single characteristic. As Bobby Chesney points out, it’s “possible—probable even—that there are diverse views” across different government agencies about “which redline, if any, the SolarWinds Orion campaign crossed.”

But at the same time, it highlights that there remains important work to be done to better define the lessons other states should take from the U.S. actions and from confirmatory attributions by allies. Canada, for example, confirmed that it also assesses that the SVR is responsible for the SolarWinds hack, but in addition to the cost of mitigations for the private sector, it cited a potential additional factor, namely that the intrusion “may have undermined public confidence in downloading software updates,” a point that Microsoft has also made with respect to the SolarWinds incident. Rep. Jim Langevin (D-RI) noted that “[t]he SolarWinds incident . . . had all the trappings of traditional espionage that, while unfortunate, has not historically been outside the bounds of responsible state behavior” and “encourage[d] the President and Secretary of State Antony Blinken to fully explain the contours of their new policy that seems to focus on Russia’s reckless history of attacks like NotPetya and the immense cleanup costs associated with SolarWinds.” Langevin is right that more explanation would be helpful in clarifying when exactly the United States will react to cyber intrusions and what exactly it regards as out of bounds.

Capacity Building on Public Attribution

Another piece of the White House’s announcement today has received less attention than the sanctions, but may be very important in the long run. The White House announced that it will train foreign governments’ policymakers on publicly attributing cyber incidents and on the application of international law to cyberspace:

We are providing a first-of-its kind course for policymakers worldwide on the policy and technical aspects of publicly attributing cyber incidents, which will be inaugurated this year at the George C. Marshall Center in Garmisch, Germany. We are also bolstering our efforts through the Marshall Center to provide training to foreign ministry lawyers and policymakers on the applicability of international law to state behavior in cyberspace and the non-binding peacetime norms that were negotiated in the United Nations and endorsed by the UN General Assembly.

It is notable that this will be training not just on the technical side of determining who is responsible for a cyber intrusion, but also on making such attributions public. I’ve argued that public attributions of cyberattacks are pieces of the effort to define rules of the road for cyberspace because they provide evidence of the state practice required to establish customary international law. Engaging in capacity building to expand the number of states that engage in credible, public attributions is a very promising development.

Image: President Joe Biden announces new economic sanctions against the Russia government from the East Room of the White House on April 15, 2021 in Washington, DC. Biden announced sanctions against 32 companies and individuals that are aimed at choking off lending to the Russian government and in response to the 2020 hacking operation that breached American government agencies and some of the nation’s largest companies. (Photo by Chip Somodevilla/Getty Images)

The post SolarWinds: Accountability, Attribution, and Advancing the Ball appeared first on Just Security.

While the full scope of the compromises and their implications are not yet known, the U.S. government’s public reactions have been muted and bureaucratic. On Sunday, the Cybersecurity and Infrastructure Security Agency (CISA) issued an emergency directive instructing agencies to “disconnect or power down” the affected SolarWinds products. On Tuesday, the National Security Council spokesperson simply announced that pursuant to Presidential Policy Directive-41, a “Cyber Unified Coordination Group (UCG) has been established to ensure continued unity of effort across the United States Government in response to a significant cyber incident.” On Wednesday, the FBI, CISA, and the Office of the Director of National Intelligence issued a joint statement indicating, “This is a developing situation, and while we continue to work to understand the full extent of this campaign, we know this compromise has affected networks within the federal government.” And on Thursday, CISA released an alert flagging that it “has evidence of initial access vectors, other than” SolarWinds.

One New York Times story highlighted that “it was hard to know which was worse: that the federal government was blindsided again by Russian intelligence agencies, or that when it was evident what was happening, White House officials said nothing.” Two of the story’s authors continued this line of commentary on Twitter. David Sanger said, “Remarkable that the US government has said nothing in public about one of the biggest attacks on US Govt in memory, other than ‘we are looking at it.’” Nicole Perlroth noted, “The silence is deafening.”

While President Trump’s failures to condemn Russia are nothing new, here the absence to date of executive branch attribution and condemnation of the intrusions may be strategic silence—following a playbook the executive branch has used in the immediate aftermath of past cyber intrusions by foreign governments, at least when those breaches involve traditional espionage. In such situations, what is there to say? Espionage alone doesn’t violate international law, and the United States does it too. In this case, however, strategic silence may not serve the United States well. The scale of these intrusions is massive, and they pose a significant risk of further disruption.

Silence after State Spying

Official executive branch silence in the wake of a foreign government’s cyber intrusions follows a well-trodden path. Perhaps the best example was the 2015 hack of the Office of Personnel Management (OPM), which compromised the personal information of more than 20 million people and involved the exfiltration of sensitive personnel files, including background check information. The first public attribution by the executive branch famously came several weeks after the breach was announced when Director of National Intelligence James Clapper said: “You have to kind of salute the Chinese for what they did. If we had the opportunity to do that, I don’t think we’d hesitate for a minute.”

Therein lies the issue. The OPM hack was hugely damaging for the United States. In a July 2020 speech FBI Director Christopher Wray cited the OPM hack, among others, and alleged that “the data China stole is of obvious value as they attempt to identify people for secret intelligence gathering.” The current hacks are likely to be even worse because they appear to be much more far-ranging, both within and outside the U.S. government. But so far, they also seem to be focused on spying – using sophisticated techniques to ensure “long-term access” to targets and exfiltrating data, but so far as the public is aware, stopping there. Would the United States “hesitate for a minute” to pursue the same access against foreign targets? As Jack Goldsmith asked this week, “is what the Russians did to U.S. government networks different from what the National Security Agency does on a daily basis?”

Preventing Escalation?       

Despite these issues, there may be reason for the United States to break its silence here: There is a serious risk that the intrusions could go beyond “just espionage.” Information Technology  security staff all across the country and world are surely working to try to kick the hackers out of their networks. But while those efforts continue, there is the possibility that espionage could escalate to disruption and destruction, which would raise very different legal issues.

Former Trump homeland security adviser Thomas P. Bossert warned in an op-ed., “The actual and perceived control of so many important networks could easily be used to undermine public and consumer trust in data, written communications and services. In the networks that the Russians control, they have the power to destroy or alter data, and impersonate legitimate people.”

As bad as the “just espionage” version of the intrusions is, the possibilities Bossert warns about would be far worse in both their nature and potential scope given the many non-governmental entities that are likely on the victim list. Breaking strategic silence to quickly attribute the intrusions and warn against any further actions could help to bring about the least bad version of the story that’s still being written.

Of course, public silence doesn’t necessarily mean government inaction. The U.S. government may very well be responding in ways it does not make public. The announced policy of the Department of Defense is to “defend forward to disrupt or halt malicious cyber activity at its source, including activity that falls below the level of armed conflict.” Such actions have previously targeted Russian actors, taking the Internet Research Agency troll farm offline in an effort to defend the 2018 midterm elections.

In a statement released Thursday, President-elect Joe Biden promised to “make cybersecurity a top priority at every level of government,” and warned that “a good defense isn’t enough; we need to disrupt and deter our adversaries from undertaking significant cyber attacks in the first place.” He suggested that his administration will “do that by, among other things, imposing substantial costs on those responsible for such malicious attacks, including in coordination with our allies and partners.”

Whether “substantial” can be made substantial enough is a big, open question, but perhaps the clearest lesson of this week is that the United States has a lot more work to do on its defense.

IMAGE: Russia’s President Vladimir Putin (L) and US President Donald Trump arrive for a group photo at the G20 Summit in Osaka on June 28, 2019.  (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

The post “Strategic Silence” and State-Sponsored Hacking: The US Gov’t and SolarWinds appeared first on Just Security.

But the relationship of these and other cyberattack attributions to international law is not well understood.

Attributions interact with international law in at least in two ways. First, cyberattack attribution announcements could explicitly say that particular cyberattacks violate international law. To date, however, attributions do not typically call out cyberattacks as international law violations. At most, they characterize cyberattacks as violations of international norms. In a press conference on the latest attribution, for example, Assistant Attorney General John Demers alleged, “state-sponsored theft of intellectual property and knowingly providing . . . safe havens for cyber criminals . . . run afoul of norms of acceptable state behavior in cyberspace.” Although this may represent a missed opportunity to clarify the primary legal rules for state behavior in cyberspace (that is, what states can and can’t do), attributions can influence international law in another way that’s less obvious but equally important. Cyberattack attributions can foster agreement on secondary international law rules about how to accuse states of cyberattacks—should states have to give evidence to support cyberattack attributions or not?

In a new article, I argue that states should establish a customary international law requirement that governments that make public attributions of cyberattacks to other states must provide enough evidence to enable crosschecking or corroboration of their attributions. Let me explain why.

States and commentators have been working for more than a decade to establish norms of responsible behavior and to clarify how existing rules of CIL apply in cyberspace. Reports from the U.N. Group of Governmental Experts, speeches by government officials, and scholarly efforts like the Tallinn Manual have all contributed to this project. But fundamentally, the process of creating customary international law requires the application of law to facts. In the murky world of cyberoperations, facts about state behavior have been hard to come by. Cyberattack victims and the principal perpetrators may be the only entities that know an attack has occurred (and sometimes victims may not realize they have suffered an attack), victims may keep mum about attacks, attacking states usually don’t publicize their actions, and identifying particular perpetrators is technically challenging. Public attributions of state-sponsored cyberattacks have become one of the best sources of information the public has about state behavior in cyberspace.

Understanding state behavior matters because it is one of two components of customary international law, which requires (1) general and consistent state practice that is (2) undertaken out of a sense of legal obligation (opinio juris). Because attributions feed into the assessment of state practice for setting the primary rules of state behavior—the rules about what states can and can’t do—it’s important that they are accurate. One way to ensure accuracy and also improve public acceptance of attributions is to provide evidence to support the accusations. This argument is familiar from other contexts. Think of administrative agency records compiled and publicly disclosed to support rulemaking. Transparency and reason-giving strengthen the legitimacy and accuracy of agency action by allowing for public contestation.

To ensure the accuracy and credibility of cyberattack attributions, I argue in the article that states publicly attributing cyberattacks to other states should provide sufficient evidence to enable cross-checking and corroboration of the attribution by other states, private companies, and academic researchers. There are significant attribution capabilities outside governments that can help to confirm (or refute) government accusations. Some of the most significant attributions in recent years, including Russia’s 2016 hacking of the Democratic National Committee, have come first from the private sector and later been confirmed by governments.

To be sure, some states and other constituencies may credit even unsupported attributions, such as those made by their allies. But such “trust us” attributions are unlikely to fully persuade anyone besides close allies. Building broader coalitions to accept attributions and ultimately condemn the underlying cyberattacks will require greater transparency.

States that make public cyberattack attributions have already gone some way toward providing evidence. The amount of evidence disclosed has generally increased over time since the initial thinly supported attribution of the Sony Pictures hack to North Korea. The amount of evidence that the United States provides also tends to vary by the format in which the attribution is made—Department of Homeland Security technical alerts include more detail than press releases, and indictments are usually somewhere in between. Often the United States rolls out multiple attribution mechanisms over time. In the 2016 election interference case, for example, the United States initially attributed the attack to Russia in October 2016 in a joint statement from the Department of Homeland Security and Office of the Director of National Intelligence, and followed up later with sanctions against Russia’s Federal Security Service (FSB), Main Intelligence Directorate (GRU), and individual GRU officers, among others. Then in July 2018, Special Counsel Robert Mueller released an indictment charging individual GRU officers with hacking election-related targets.

But even as states provide some evidence to support their attributions, they have taken the position that they give evidence purely as a matter of policy, not due to a legal requirement. Then-State Department Legal Adviser Brian Egan explained in a 2016 speech,

[D]espite the suggestion by some States to the contrary, there is no international legal obligation to reveal evidence on which attribution is based prior to taking appropriate action. There may, of course, be political pressure to do so, and States may choose to reveal such evidence to convince other States to join them in condemnation, for example.  But that is a policy choice—it is not compelled by international law.

In a 2018 speech, U.K. Attorney General Jeremy Wright agreed, stating “[t]here is no legal obligation requiring a state to publicly disclose the underlying information on which its decision to attribute hostile activity is based.” France and the Netherlands have taken similar positions. In other words, although state practice might now support at least some evidence-giving, opinio juris is lacking. That can and should change.

States considering cyberattack attributions shouldn’t discount the potentially potent combination of attributions and disinformation campaigns. Establishing a norm of evidence-free attributions invites ill-substantiated, mistaken, and even deliberately false accusations that will be difficult for accused states to refute. That could be highly problematic for particular states faced with specific accusations, and more broadly, inaccurate-but-difficult-to-refute attributions also risk causing confusion about state practice in cyberspace. Mistaken or deliberately false attributions could be used to claim that states believe certain actions to be permissible, which could distort or corrupt attempts to establish norms of responsible behavior or rules of customary international law for states in cyberspace.

Establishing a new customary international law rule to require evidence-giving to support attributions will require states to overcome some hesitancy about revealing sources and methods used to secure intelligence information. On the other hand, for states already engaged in making attributions, recognizing evidence-giving as a legal rule rather than just a policy choice would require more of a change in legal conception than a shift in behavior. States making attributions already give some evidence, sometimes quite a bit, and attributions by companies and academic institutes show that government sources and methods are not always necessary to make attributions. States already engaged in public attributions have an opportunity to use their first-mover advantage to set a standard for evidence-giving that could be similar to their existing practice. The process for doing so is straightforward. If a few states with significant cyberattack capabilities or high-profile victim states were to adopt and begin advocating for an evidentiary standard, they could start the ball rolling on setting a norm in favor of evidence giving that could harden over time into a customary international law rule that states entering the attribution business later would have to meet.

As explained in the article, international law rules on evidence-giving to support accusations are not well settled even in more conventional contexts, like the use of force in self-defense. If a specific evidentiary rule can be established in the cyberattack attribution context, that rule could eventually morph into a more generally applicable rule of customary international law. But for now, the interplay between cyberattack attributions and the still unsettled rules for state behavior in cyberspace make establishing an evidentiary standard in the cyberattack context an important first step.

Photo credit: Operations at U.S. Army Cyber Command (ARCYBER) headquarters, Fort Belvoir, Va., May 15, 2019. (Photo by Bill Roche)

The post Cyberattack Attribution and International Law appeared first on Just Security.

Introduction
Ryan Goodman, Co-Editor-in-Chief, Just Security

Volume I

1. The Special Counsel’s Investigation
Joshua Geltzer

2. Legal Standards and Evidentiary Considerations
Asha Rangappa

3. Russian “Active Measures” Social Media Campaign and Criminal Charges against 13 Russian Nationals and 3 Russian Entities
Kristen Eichensehr

4. Russian Hacking and Dumping Operations and Criminal Charges against 12 Russian Military Intelligence Officials
Jennifer Daskal

5. Trump Campaign Interest in Hacked Materials
Joshua Geltzer

6. Links and Contacts with Russia: Michael Cohen and Trump Tower Moscow
Kate Brannen

7. Links and Contacts with Russia: George Papadopoulos
Kate Brannen

8. Links and Contacts with Russia: Carter Page
Kate Brannen

9. Links and Contacts with Russia: Trump Tower June 2016 Meeting
Kate Brannen and Ryan Goodman

10. Links and Contacts with Russia: Paul Manafort
Rita Siemion

11. Links and Contacts with Russia: Michael Flynn
Barbara McQuade

12. Links and Contacts with Russia, Additional Individuals
Asha Rangappa

13. Charging Decisions: The Foreign Agent Registration Act
Jennifer Daskal

14. Charging Decisions: Accepting Information from Foreign Officials (campaign finance law)
Paul Seamus Ryan

15. Charging Decisions: False Statements and Obstruction of the Investigation
Barbara McQuade

Volume II

1. Setting the Stage: Investigation of a Sitting President and Overarching Factual Issues
Ryan Goodman

2. Legal Framework for Obstruction of Justice: Elements and Case Law
Asha Rangappa

3. Trump’s Response to Reports of Russian Support
Joshua Geltzer

4. Incident One: Shielding Flynn
Mimi Rocah

5. Incident Two: Pressuring FBI Director Comey and the Intelligence Chiefs
Barbara McQuade

6. Incident Three: Firing FBI Director Comey
Mimi Rocah

7. Incident Four: Efforts to Remove Special Counsel Mueller
Renato Mariotti

8. Incident Five: Efforts to Curtail the Special Counsel Investigation
Barbara McQuade

9. Incident Six: Efforts to Prevent Disclosure of Emails about the June 9, 2016 Trump Tower Meeting with Russians
Andy Wright

10. Incident Seven: Efforts to Have Attorney General Sessions Take Over the Investigation
Andy Wright

11. Incident Eight: Ordering White House Counsel McGahn to Deny that the President Tried to Fire the Special Counsel
Joyce Vance

12. Incident Nine: Conduct Toward Michael Flynn and Paul Manafort
Elie Honig

13. Incident Ten: Conduct Toward Michael Cohen
Elie Honig

14. Prebuttal I: Response to Possible Statutory Defenses
Joshua Geltzer

15. Prebuttal II: Response to Possible Constitutional Defenses
Harry Litman

Epilogue
George T. Conway III

Appendix: Additional Writings by Our Experts

Introduction to the Expert Summaries
By Ryan Goodman, Co-editor-in-chief, Just Security

At the time of publishing this online resource, the House Judiciary Committee is ramping up investigations that now include consideration of impeachment of President Donald J. Trump. We at Just Security believe that it is accordingly more important than ever for Americans to be familiar with the contents of the Special Counsel’s Report on the Investigation into Russian Interference in the 2016 Presidential Election. To that end, we have created a digestible summary of the Report, broken down into 30 sections, which can be read in five to 10 minutes each. Each summary aims to present, in clear and straightforward language and without additional analysis or commentary, the findings of the Special Counsel as he presented them to the Attorney General.

These summaries are relevant not only to current congressional processes, but also for the historical record. The Special Counsel’s investigation is significant for understanding the events of 2016 and the conduct of the President toward the investigation. There will surely be many lessons drawn from the Special Counsel’s Report in the years ahead. We have thus undertaken this project with the goal of providing an easily accessible resource for the present moment and far beyond it.

Our summaries are not intended to be a substitute for reading the Report itself, but rather as a helpful guide to the main themes, characters, and takeaways in the full Report. We hope that these summaries will render the original text more accessible for the general reader — much like reading a plot summary of a Shakespeare text makes following along with the play itself much easier. We also hope that this collection will serve as a convenient reference for journalists, commentators, and the general public when the events and individuals described in the Report are covered in the course of the House Judiciary Committee’s investigation. We hope this resource will also serve as a convenient reference for the study of American legal history over time.

A few editorial notes about our summaries are in order. First, while we have generally followed the sequence of the investigative findings provided by the Special Counsel, we have in some cases combined information on the same topic or person found in different sections of the report into a single summary. The relevant pages of the original Report are listed at the top of each summary for reference. Second, the Report is so carefully written that the same sentences, phrases or clauses are sometimes repeated verbatim in the summaries in order to accurately convey the Special Counsel’s meaning. Quotation marks are used only when the Report itself used quotation marks, for example, in referring to a specific statement by a White House official or other witness. Again, the pages at the top of each summary should be considered the citations for all of the material contained therein.

Finally, we were fortunate and thrilled to have the best legal minds come together in this effort. The author of each summary is listed on his or her respective byline. Just Security would like to extend our enormous gratitude to the following individuals, who were critical to the swift, informed, articulate presentation of these summaries:

Kate Brannen*
George Conway
Jennifer Daskal
Kristen Eichensehr
Joshua Geltzer*
Ryan Goodman*
Elie Honig
Harry Litman
Renato Mariotti
Barbara McQuade
Asha Rangappa*
Mimi Rocah
Paul Seamus Ryan
Rita Siemion
Joyce Vance
Andy Wright

*Lead editors on the project.

Return to Table of Contents

Volume 1.1

The Special Counsel’s Investigation
(pp. 1, 11-13)

By Joshua Geltzer

The Russian government interfered in America’s 2016 presidential election in sweeping and systematic fashion, including by directing the hacking of the Democratic National Committee (DNC), yielding documents later released by WikiLeaks. After a foreign government contacted the FBI in July 2016 regarding a suggestion made by Trump campaign adviser George Papadopoulos that the campaign had received offers of Russian assistance, the FBI opened an investigation into possible cooperation between the campaign and the Russian government. In October 2016, the Department of Homeland Security and the Office of the Director of National Intelligence publicly attributed the DNC hack, among others, to the Russian government. By early 2017, several congressional committees were investigating Russian election interference.

The “Report on the Investigation into Russian Interference in the 2016 Presidential Election” represents the culmination of Robert S. Mueller III’s work from 2017 to 2019 as the Special Counsel at the U.S. Department of Justice investigating Russian election interference. It was written by the Special Counsel’s Office and presented to Attorney General William P. Barr in order to explain the Office’s decisions to prosecute specific individuals and not to prosecute other individuals after over two years of investigative and legal work.

The Special Counsel’s work was governed by Justice Department regulations promulgated in 1999. Those regulations allow the attorney general to appoint a special counsel to oversee a criminal investigation when doing so (1) would avoid a conflict of interest for others at the Justice Department and (2) “would be in the public interest.”

Deputy Attorney General Rod Rosenstein appointed the Special Counsel “to investigate Russian interference with the 2016 presidential election and related matters.” The appointment called for the Special Counsel specifically to continue the Russia-related counterintelligence investigation whose existence then-FBI Director James Comey had confirmed publicly in congressional testimony and “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.” Moreover, the appointment order authorized the Special Counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” “any matters that arose or may arise directly from the investigation,” and “any other matters” otherwise within the scope set out by the special counsel regulations.

Additionally, the order appointing the Special Counsel referred specifically to the section of the Justice Department regulations that provided the Office with “authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” The Special Counsel’s authority to investigate “any matters that arose … directly from the investigation” permitted the Special Counsel to investigate these same sorts of crimes—such as obstruction of justice—even if they were committed before the Special Counsel took over the Russia investigation, such as while it was still being overseen at the FBI by Comey.

In addition to his order appointing the Special Counsel, Rosenstein subsequently provided two memoranda clarifying the scope of the Special Counsel’s work. The first indicated that the Special Counsel had been authorized since his appointment specifically to investigate three Trump campaign officials—Carter Page, Paul Manafort, and George Papadopoulos—including whether they engaged in criminal activity through their links to the Russian government as it attempted to interfere in the 2016 election. The same memorandum also confirmed the Special Counsel’s authority to investigate a range of other matters, such as additional allegations involving Manafort and Papadopoulos as well as allegations against Trump’s former national security advisor, Michael Flynn. The second clarifying memorandum confirmed the Special Counsel’s authority to investigate a range of additional matters, including activities of Trump associates Michael Cohen, Richard Gates, and Roger Stone, as well as allegations that, during his Attorney General confirmation process, Jeff Sessions had made false statements to the U.S. Senate.

Guided by these instructions, the Special Counsel made use of the substantial evidence already collected before his appointment while also obtaining significantly more evidence, including both classified and unclassified information. During the course of the Special Counsel’s work, two district courts—one in Washington, D.C., and another in Virginia—confirmed the broad scope of the Special Counsel’s mandate in the course of denying challenges to criminal charges brought by the Office. When the Special Counsel identified evidence of potential criminal activity that fell outside his mandate, he consulted with Rosenstein’s office and referred it to other law enforcement authorities, such as other parts of the Justice Department.

The Special Counsel’s team included, at its peak, 19 attorneys as well as support staff. It also included approximately 40 FBI agents, intelligence analysts, forensic experts, and additional staff. The Office issued more than 2,800 subpoenas, executed nearly 500 search-and-seizure warrants, and interviewed approximately 500 witnesses.

The nature of the investigation that the Special Counsel took over—a counterintelligence investigation—meant that, in addition to pursuing criminal charges, it was clear from the outset that the Office would identify foreign intelligence and counterintelligence information relevant to law enforcement’s efforts to understand foreign influence in the United States and, in turn, to attempt to mitigate it. The FBI personnel who worked with the Office conveyed that information to the FBI throughout the Special Counsel’s tenure, and the Office met regularly with the FBI’s Counterintelligence Division. The FBI embedded with the Special Counsel’s team personnel whose mission was specifically to review results of the investigation and then to summarize and disseminate information of foreign intelligence and counterintelligence interest. That work on identifying foreign influence—rather than potential criminal charges—is beyond the scope of the Report.

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Volume 1.2

Legal Standards and Evidentiary Considerations
(pp. 2-3, 9-10, 174, 180-181)

By Asha Rangappa

This Report consists of two volumes. Volume I describes the results of the Special Counsel’s investigation into Russia’s interference in the 2016 presidential election and Russia’s interactions with the Trump campaign. Volume II involves the President’s conduct with regard to the FBI’s investigation, and his actions toward the Special Counsel. The legal framework used in that investigation are stated separately in Volume II.

The actions and events described in the Report are based on evidence that the Special Counsel’s Office believed to be substantial and credible. When the Office was confident that the evidence met this standard, the Report indicates that the investigation “established” those actions and events took place. At times, the Report may indicate the absence or conflict in the evidence for an event. If a set of facts was not established, that does not mean that there was no evidence of those facts.

The Office was not always able to obtain a full picture of the activities of the subjects of the investigation. In some instances, witnesses and documents located outside of the United States presented practical obstacles to obtaining evidence. In other instances, the Office was limited in obtaining information because of internal Department of Justice policies, legally privileged communications, or individuals invoking their Fifth Amendment rights. In addition, some individuals provided false or incomplete information during their interviews or testimony. The investigation established that several individuals associated with the Trump Campaign lied to the Office and to Congress, and those lies materially impaired the investigation of Russian election interference. Finally, the Office became aware that some individuals who were interviewed or investigated — including some individuals associated with the Trump Campaign — deleted relevant communications using encrypted applications.

As a result, while the events described in the report are accurate and complete to the greatest extent possible, the obstacles described above presented gaps in the available information. It is possible that the unavailable information would illuminate or change the picture of events presented in the Report.

In deciding whether to charge individuals investigated in the course of the Special Counsel investigation, the Office first considered two factors based on the Department of Justice Manual: (1) whether the conduct of the individual(s) constituted a federal offense; and (2) whether the admissible evidence would be sufficient to obtain and sustain a conviction for that offense. The latter would entail convincing a jury beyond a reasonable doubt that an individual committed a crime. If these criteria were met, the Office then considered whether a prosecution would serve a substantial federal interest, if they could be effectively prosecuted in another jurisdiction, or if any non-criminal alternatives to prosecution existed.

The Office uncovered evidence of numerous links between members of the Trump Campaign and individuals with ties to the Russian government. In evaluating whether these links constituted a federal offense, the Office did not employ the concept of “collusion,” which is not a crime under the U.S. criminal code or a term of art under federal criminal law. Rather, the Office used conspiracy law, which is the federal crime that most closely matches the dictionary definition of collusion, and which is defined under several different federal statutes. The Office also defined “coordination” — a term that appears in the Order appointing the Special Counsel — as “an agreement — tacit or express — between the Trump campaign and the Russian government on election interference.” Under this definition, coordination would require “more than the two parties taking actions that were informed by or responsible to the other’s actions or interests.”

Based on these definitions, the investigation did not establish that the contacts between the Trump Campaign and individuals tied to Russia knowingly or intentionally participated in a conspiracy against the United States. With regard to a conspiracy to violate campaign finance statutes, the Office concluded that unresolved legal questions and factual considerations would present difficulties in proving a willful violation of the law. The Office charged two individuals, Paul Manafort and Richard Gates, for violating the Foreign Agent Registration Act in their work on behalf of Ukraine. Several individuals intentionally made false statements about their contacts with Russian agents or took steps to obstruct the Office’s investigation, and in some cases were charged with making false statements and obstructing justice.

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Volume 1.3

Russian “Active Measures” Social Media Campaign and Criminal Charges against 13 Russian Nationals and 3 Russian Entities
(pp. 14-35,* 174*)

By Kristen Eichensehr

“Active measures” are “operations conducted by Russian security services aimed at influencing the course of international affairs.” The Internet Research Agency, LLC (IRA) and Concord Management and Consulting LLC and Concord Catering (collectively “Concord”) are Russian entities funded by Russian businessman Yevgeniy Viktorovich Prigozhin, who has ties to Russian President Vladimir Putin and was sanctioned by the U.S. Treasury Department in 2016. In the first major indictment arising out of the Special Counsel’s investigation, a grand jury in the District of Columbia indicted the IRA, Concord, and 13 associated individuals for violating U.S. laws while attempting to interfere in the 2016 election.

As early as 2014, the IRA sought to influence public opinion through online media and forums. IRA employees called “specialists” operated Facebook, YouTube, and Twitter accounts and later added Tumblr and Instagram accounts. The IRA accounts initially posed as individual U.S. persons, but by 2015, the IRA created larger social media groups and public pages that claimed affiliation with U.S. groups, like the Tennessee Republican Party, or posed as fictitious U.S. groups.

In February 2016, IRA internal documents referenced supporting the Trump Campaign and opposing Hillary Clinton’s campaign, and the IRA’s social media accounts took actions throughout the election season to support the Trump Campaign. According to congressional testimony from Facebook General Counsel Colin Stretch, the IRA purchased 3,500 advertisements on Facebook, and posts by IRA-controlled accounts reached at least 29 million U.S. persons, and perhaps as many as 126 million people.

The IRA was also active on Twitter. IRA employees operated individual accounts that posted original content and also communicated directly with U.S. Twitter users. Some of the accounts gained tens of thousands of followers, and their tweets received significant attention from Twitter users, as well as from U.S. media outlets that quoted IRA tweets as reactions of real U.S. persons. Numerous high-profile U.S. persons, including former U.S. Ambassador to Russia Michael McFaul, Sean Hannity, and Michael Flynn Jr., also retweeted or responded to the IRA accounts. The IRA also engaged in botnet activity on Twitter. According to Twitter, the company notified approximately 1.4 million people who Twitter believed may have been in contact with an IRA-controlled account, and in January 2018, it publicly identified 3,814 accounts linked to the IRA.

The IRA’s activities were not limited to cyberspace. In June 2014, two IRA employees traveled to the United States to gather intelligence. The IRA also organized dozens of political rallies in the United States. To do so, the IRA would announce an event, send direct messages to its social media followers inviting them to attend, and recruit U.S. persons as event coordinators. Some rallies drew hundreds of attendees, and the Trump Campaign posted about one on its Facebook page. The IRA also targeted and recruited U.S. persons to amplify its messages on social media and to perform political acts (such as walking around New York City dressed up as Santa Claus with a Trump mask).

In addition, the IRA made contact with the Trump Campaign. The interactions took two forms. First, Trump Campaign members and surrogates, including Donald J. Trump Jr., Kellyanne Conway, Flynn, and then-candidate Trump’s personal Twitter account, promoted IRA-controlled content on social media by, for example, retweeting it. Second, IRA employees posing as U.S. conservative activists contacted Trump Campaign affiliates to coordinate pro-Trump rallies in the United States. The Office did not uncover evidence that any Trump Campaign official understood the requests were coming from foreign nationals.

On February 16, 2018, a federal grand jury returned an indictment charging the IRA, Concord, and 13 Russian nationals, including Prigozhin, with conspiracy to defraud the United States. Some defendants were also charged with conspiracy to commit wire fraud and bank fraud and with aggravated identity theft. Concord entered an appearance in U.S. court and moved to dismiss the charges. The district court denied Concord’s motions to dismiss, and the case remains pending.

The Office did not bring charges against Trump Campaign officials because the investigation did not reveal that such officials knew they were communicating with Russian nationals engaged in the criminal conspiracy, and therefore, they lacked the knowledge or criminal purpose required to charge them. One U.S. national, however, was charged for IRA-related conduct. On February 12, 2018, Richard Pinedo pleaded guilty to identity fraud for supplying false or stolen bank account numbers that allowed the IRA conspirators to access U.S. online payment systems, but Pinedo was unaware of the identity of the IRA members to whom he sold the bank account numbers.

* Some of these pages are heavily redacted due to harm to an ongoing matter.

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Volume 1.4

Russian Hacking and Dumping Operations and Criminal Charges against 12 Russian Military Intelligence Officials
(pp. 36-50, 173, 175-179*)

By Jennifer Daskal

Two military units of the Russian Federation’s Main Intelligence Directorate of the General Staff (GRU) carried out highly sophisticated, targeted, and successful hacking and dumping operations between March and October 2016. The operation was done in order to undermine Hilary Clinton’s candidacy and influence the outcome of the presidential election. Ultimately, the GRU stole hundreds of thousands of emails and documents from individuals associated with the Clinton Campaign, Democratic National Committee (DNC), and Democratic Congressional Campaign Committee (DCCC), tens of thousands of which were ultimately released via WikiLeaks, as well as the GRU-created “DCLeaks” and “Guccifer 2.0.”

The GRU-led attacks began in March 2016, as part of a sophisticated and ultimately successful spear phishing campaign, pursuant to which GRU officials obtained access to numerous email accounts of Clinton Campaign employees and volunteers, including those of Campaign Chairman John Podesta. By August 12, 2016, the GRU — using credentials stolen from a DCCC employee during a spear phishing operation — gained access to the DCCC computer network, which included 29 different DCCC computers. From there, GRU officers were able to access more than 30 computers on the DNC network, including the DNC mail server and file server.

Once access was established, the GRU officers installed malware into the affected computers, enabling them to log keystrokes and thereby uncover passwords, internal communications, and sensitive personal information; take screenshots; and gather other data. This data was then transferred from the DNC and DCCC computers to GRU-controlled computers leased within the United States.

This first tranche of email releases took place in April 2016, and included internal correspondence related to the Clinton Campaign, fundraising files, and personal information obtained from email accounts of individuals associated with Clinton’s campaign. Documents were initially posted on the GRU-created website “DCLeaks.” A DCLeaks Facebook account, Twitter account, and Gmail account also were used to disseminate documents and communicate with reporters.

On June 16, 2016 — a day after the DNC publicly announced the breach of its networks — GRU officials created a WordPress blog using the persona of Guccifer 2.0. Over the next four months, Guccifer 2.0 released thousands of stolen DNC and DCCC documents in a series of blog posts, including opposition research, internal policy documents, analysis of specific congressional races, and fundraising material. Guccifer 2.0 engaged in targeted releases as well—sending a congressional candidate documents related to the candidate’s opponent and sharing Florida-related data, stolen from the DCCC, with a U.S. blogger covering Florida politics.

Communications between the GRU and WikiLeaks in order to coordinate their activities began in mid-June 2016. On June 29, 2016, the GRU attempted to send WikiLeaks a large encrypted data file. On July 14, 2016, a GRU transfer of a large data file with the name “wk dnc link I .txt.gpg” was successful. WikiLeaks confirmed receipt on July 18, 2016. On July 22, WikiLeaks released of over 20,000 emails and other documents stolen form the DNC. The release appears to have been timed carefully: It was 3 days in advance of the Democratic National Convention.

On October 7, 2016, the same day that an Access Hollywood video surfaced of Donald Trump making politically damaging comments about women, WikiLeaks released its initial tranche of Podesta’s emails. Over the next month, WikiLeaks released some 50,000 documents stolen from Podesta’s personal email account. These included private speeches given by Clinton, internal Clinton Campaign communications, and correspondence related to the Clinton Foundation. Other releases followed.

The Trump Campaign showed interest in the WikiLeaks releases. This included Trump’s July 26, 2016, statement: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” referring to the emails stored on Clinton’s personal server while she was Secretary of State. Within five hours of that statement, the GRU began to target email accounts associated with Clinton’s personal office.

The GRU also made contact through the Guccifer 2.0 persona, via Twitter, with a former Trump Campaign member. In three instances between August and September 2016, the GRU sent private messages to that individual. Details of these interactions are redacted, due to harm to an ongoing matter.

In July 2018, 12 Russian GRU military officials were charged in a 12-count indictment for their roles in the hacking and release operations designed to influence the 2016 election. Specifically, they were charged with conspiring to hack into DNC, DCCC, and Clinton Campaign computers, in violation of the Computer Fraud and Abuse Act, and for committing identify theft and conspiring to commit money laundering in the process, along with other charges. All 12 defendants remain at-large.

Overall, the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government, including Russian offers of assistance. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Trump Campaign coordinated or conspired in those Russian election interference efforts.

Several pages that address a related charging decision are redacted on the ground that they pose harm to an ongoing matter. At least one other possible charge – a violation of the Computer Fraud and Abuse Act – was considered and ultimately rejected.

Finally, the Office ruled out bringing charges on the theory that the post-hacking dissemination of stolen emails could constitute trafficking in or receipt of stolen property under the National Stolen Property Act. Several federal courts have understood the Act to apply only to tangible items—not the dissemination of stolen emails—which would make prosecution potentially risky.

* These pages, which include charging and declination decisions related to the Russian hacking and dumping operations, are heavily redacted due to harm to an ongoing matter.

See also Volume 1.5: Trump Campaign Interest in Hacked Materials

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Volume 1.5

Trump Campaign Interest in Hacked Materials
(pp. 51-65*)

By Joshua Geltzer

The Trump Campaign showed interest in WikiLeaks’ releases of hacked materials throughout the summer and fall of 2016. In June 2016, WikiLeaks’ Julian Assange claimed in an interview to “have emails relating to Hillary Clinton which are pending publication.” But the Trump Campaign was frustrated that the Clinton emails had not been found. Conversations about the emails—and, ultimately, their release—involved Rick Gates, Paul Manafort, Michael Cohen, and Donald Trump himself.

Moreover, by late summer 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on WikiLeaks’ possible release of the Clinton emails. At one point, Trump specifically told Gates that more releases of damaging information would be coming.

Conservative political commentator Jerome Corsi asked Trump associate Ted Malloch to put Corsi in touch with Assange to arrange an interview. While Malloch did not do so, he and Corsi did have multiple discussions about WikiLeaks. In one conversation, Corsi told Malloch that the release of the emails of Clinton Campaign Chairman John Podesta was coming, after which “we” would be in the driver’s seat.

On October 7, 2016, the Washington Post published an Access Hollywood video that captured comments Trump had made years earlier and that was expected to adversely affect the Trump Campaign. Less than an hour after the video’s publication, WikiLeaks released the first set of Podesta’s emails hacked by the Russians.

Corsi later said that he thought that he had told people on a conference call that the Access Hollywood tape was forthcoming and, additionally, had sent a tweet asking whether anyone could contact Assange; but Corsi then said that perhaps he had done nothing. The Office was unable to find evidence of any such tweet or to identify anyone who indicated having received non-public information about the tape from Corsi or having contacted WikiLeaks on October 7 after a conversation with Corsi.

Donald Trump Jr., however, did have direct electronic communications with WikiLeaks during the campaign. In September 2016, WikiLeaks was told that an anti-Trump website was about to launch, and sent Trump Jr. a direct message on Twitter previewing its launch and providing the password for it. Trump Jr. emailed senior Trump Campaign staff, indicating, “I got a weird Twitter DM from wikileaks,” and sharing what he had received. After the website launched the following day, Trump Jr. sent a direct message to WikiLeaks expressing his thanks.

The next month, WikiLeaks sent additional direct messages to Trump Jr., including writing that it was “great to see you and your dad talking about our publications. Strongly suggest your dad tweets this link if he mentions us wlsearch.tk.” WikiLeaks added that the link would help Trump in “digging through” leaked emails and stated, “we just released Podesta emails Part 4.” Two days later, Trump Jr. publicly tweeted the link.

Additionally, the Trump Campaign engaged in persistent efforts to enlist Trump associates to identify the 30,000 emails from Clinton’s private server that the media had reported as permanently destroyed. One of those was Henry Oknyansky, a Florida-based Russian, with whom Stone met in person in May 2016 along with Alexei Rasin, a Florida-based Ukrainian. Rasin offered to sell Stone derogatory information on Clinton that Rasin claimed to possess. Stone refused.

The Trump Campaign also engaged in other efforts to obtain the Clinton emails. Trump stated publicly in July 2016 that he hoped that Russia would “find the 30,000 emails that are missing,” then privately and repeatedly asked Trump Campaign associates to find the emails. In response, Michael Flynn contacted multiple people in an effort to do so. Those included Barbara Ledeen, a Senate staffer who had previously sought the emails and who kept Flynn updated throughout summer 2016 on her efforts, as well as Peter Smith, an investment advisor active in Republican politics who also attempted to obtain the emails.

In December 2015, before Flynn’s request, Ledeen emailed to Smith a 25-page proposal to obtain the emails consisting of three phases: two stages of open-source analysis, then a third phase of checking with certain intelligence services to determine if any had been able to access Clinton’s server. Smith ultimately declined to participate in Ledeen’s proposed initiative.

After Trump’s July 2016 public statement, Smith tried to locate the Clinton emails himself, creating a company, raising money, and recruiting security experts. Smith claimed to others involved in the effort that he was in contact with hackers with “ties and affiliations to Russia,” who had access to the emails and that his efforts were coordinated with the Trump Campaign. He provided updates on his efforts to Flynn and Trump Campaign co-chairman Sam Clovis; and a document that Smith used for fundraising indicated that his work was “in coordination” with the Trump Campaign.

In September 2016, Smith and Ledeen reconnected about their efforts, with Ledeen claiming to have obtained from the “dark web” deleted Clinton emails. A technology advisor determined that the emails were not authentic. Investigation of a backup of Smith’s computer found two files downloaded from WikiLeaks and originally attached to emails received by Podesta, with creation dates prior to their release by WikiLeaks; but analysis indicated that the creation dates did not reflect when the files were downloaded to Smith’s computer. Smith continued to send emails claiming, for example, a “tug-of-war going on within WikiLeaks over its planned releases,” but no additional emails were in fact released. Smith also drafted emails claiming contact with Russian hackers, but that remains unsubstantiated.

All told, the Trump Campaign displayed interest in the work of the Russian government to obtain, through hacking, emails associated with the Clinton Campaign, Democratic National Committee, and Democratic Congressional Campaign Committee and to disseminate information from those emails through WikiLeaks and fictitious online personas.

* Some of these pages are heavily redacted due to harm to an ongoing matter and revelation of investigative techniques.

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Volume 1.6

Links and Contacts with Russia: Michael Cohen and Trump Tower Moscow
(pp. 66-79, 195-197)

By Kate Brannen

Between 2013 and 2016, the Trump Organization pursued the development of a Trump-branded property in Russia. The pursuit of this deal involved several Trump Organization employees, including Donald Trump, who was president of the company at the time, as well as several Russian contacts, including Russian government representatives.

From 2015 until the middle of 2016, Michael Cohen spearheaded the project and reported on its progress to Trump and others at the company. When first questioned about the project, he lied to Congress and the Office, saying the Trump Organization’s pursuit of Trump Tower Moscow ended in January 2016. Instead, the company was still trying to make the deal happen as late as June 2016. Cohen also lied about the extent to which he kept Trump informed of the project’s progress and whether he and Trump had discussed traveling to Moscow for it. Cohen also misled investigators about the communications he had with a Russian government official about it.

The first attempt at the project began after the 2013 Miss Universe Pageant in Moscow, which the Trump Organization organized with the Crocus Group, a Russian real estate company owned by Aras Agalarov. Donald Trump Jr. was the primary negotiator for the Trump Organization, while Agalarov’s son, Emin, and Irakli “Ike” Kaveladze represented the Crocus Group. Both companies negotiated a letter of intent (LOI) in early 2014; and, in February 2014, Ivanka Trump toured the proposed site with Emin during a visit to Moscow. But, beginning in fall 2014, members of the Trump organization became less responsive to Crocus Group correspondence, and, by the end of November, the project appeared to have stalled.

A second run at the project began in summer 2015, when Felix Sater, a New York-based real estate advisor who had worked previously with the Trumps, contacted Cohen, who, at the time, was special counsel to Donald Trump. Sater reached out on behalf of I.C. Expert Investment Company, a Russian real-estate development corporation controlled by Andrei Vladimirovich Rozov. The plan was for I.C. Expert to construct the building and license the name and brand from the Trump Organization. Cohen received approval from Trump to negotiate directly with I.C. Expert, and he kept Trump, Ivanka and Donald Jr. apprised of the discussions.

Between October and November 2015, the Trump Organization and I.C. Expert completed an LOI for a Trump Tower Moscow. Per the LOI, the Trump Organization stood to earn substantial sums over the lifetime of the project, including a $4 million “up-front fee” prior to groundbreaking, without the company having to assume significant liabilities or financing commitments.

The day after the Trump Organization returned the signed LOI, Sater emailed Cohen, writing:

Buddy our boy can become President of the USA and we can engineer it. I will get all of Putins team to buy in on this, I will manage this process ….

The next step entailed getting buy-in from the Russian government, which Sater and Cohen thought necessary for the project.

About a month after the LOI was signed, the wife of a man named Dmitry Klokov, an executive at a large Russian electricity company, emailed Ivanka Trump offering assistance with the Trump Campaign. She forwarded the email to Cohen, who followed up with Klokov, but Cohen was confused about his identity, mistakenly thinking Klokov was a former Olympic weightlifter after a quick Google search.

In conversations with Cohen, Klokov offered the Campaign “political synergy” and recommended that Cohen travel to Russia to speak with him and an unidentified intermediary. He said this could lead to a meeting in Russia between Trump and an individual Klokov described as “our person of interest,” later identified as Russian President Vladimir Putin.

Cohen and Klokov disagreed over whether these trips should be done officially and with a formal invitation, which was Cohen’s preference. Klokov thought the Trump organization should pursue these meetings between Trump and Putin outside of the business track, and that the rewards of such a meeting for Trump’s company would come in time. In the end, Cohen rejected Klokov’s assistance and did not appear to bring his offer to the attention of the Campaign, instead continuing to work with Sater, who Cohen understood was working his own Russian government contacts.

But, by late December 2015, Cohen was frustrated with Sater’s lack of progress and started trying to make contact with the Russian government himself. He tried emailing Dmitry Peskov, the Russian government’s press secretary, seeking to connect with Putin’s chief of staff. But he incorrectly typed the email address and the message was never delivered. In January 2016, he sent a message to info@prpress.gov.ru, requesting a conversation and meetings with appropriate people to discuss Trump Tower Moscow. He also emailed Peskov’s correct address.

Cohen first told Congress and the Office that, when he received no answer to these inquiries in January 2016, he dropped the project. But he later admitted this was untrue: Elena Poliakova, Peskov’s personal assistant, wrote back to Cohen, and they later spoke on the phone for 20 minutes. Cohen asked for help with the project, and, according to him, Poliakova asked detailed questions, took notes, and said that she would need to follow up with others in Russia.

After that, Cohen did not recall anything further from Poliakova or others in the Russian government, and the Office did not find any evidence of it. However, Sater texted Cohen the next day and said, “[c]all me when you have a few minutes to chat … It’s about Putin they called today.” He then sent Cohen multiple versions of a draft invitation to Moscow, which noted the “working visit” would be to discuss the project and to coordinate a future visit by Trump.

Cohen did not travel to Russia, but discussions about when he and Trump might be able to do so continued. Cohen let Sater know that Cohen could travel to Moscow before the Republican National Convention in July but Trump’s visit would need to wait until after he officially became the Republican nominee. Sater kept pressing Cohen to commit to a trip, inviting him to the St. Petersburg International Economic Forum in June and indicating he could potentially meet Putin then. Cohen initially responded positively, but, according to Cohen, he became worried that Russian officials were not as interested in meeting with him as Sater had suggested. On June 14, 2016, Cohen met Sater in the lobby of the Trump Tower in New York to tell him that Cohen would not be traveling to Moscow at that time.

Trump and Ivanka had also been invited to attend the Forum by Russia’s deputy prime minister. Trump’s attendance at the Forum was also pursued by Robert Foresman, a New York-based investment banker-began who said he had been asked by Anton Kobyakov, a Russian presidential aide, to see if Trump could speak at the event. The Office found no evidence that the Campaign followed up with Foresman.

Discussions about a Trump trip to Moscow had also taken place in 2015, when Sater told Cohen he was arranging a trip with Evgeny Dvoskin, who had been indicted in the U.S. for stock fraud and was now an executive at a Russian bank under U.S. sanctions. That trip never happened.

After initially lying to Congress and the Office, Cohen admitted to investigators that he discussed the idea of traveling to Moscow twice with Trump, and both times Trump expressed interest; but scheduling conflicts seemed to preclude him from going. Cohen eventually pleaded guilty to making false statements about Trump Tower Moscow. The Office recommended to the judge that Cohen’s cooperation with the investigation be taken into account when he was sentenced.

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Volume 1.7

Links and Contacts with Russia: George Papadopoulos
(pp. 80-94,* 192-194)

By Kate Brannen

George Papadopoulos was a foreign policy advisor to the Trump Campaign from March 2016 to early October 2016. While Papadopoulos kept the Campaign informed of his many interactions and exchanges about the Russian government’s outreach to him, he said he could not recall whether he told the Campaign about his most consequential conversation.

That conversation occurred in April 2016 in London, when a man named Joseph Mifsud, a professor who claimed to have high-level contacts within the Russian government, told Papadopoulos that he had learned during a recent trip to Moscow that the Russian government had obtained “dirt” on Hillary Clinton in the form of thousands of emails. Other Trump Campaign officials could not recall whether Papadopoulos had shared this information with them or stated, with varying degrees of certainty, that he had not. No documentary evidence was found to show he had shared this information with the Campaign.

However, Papadopoulos did share the details of this conversation with people outside of the Trump Campaign. He admitted to the FBI that he told the then-Greek foreign minister that Russia had obtained Clinton-related emails. A different foreign government told the FBI on July 26, 2016, that Papadopoulos had also suggested to one of its representatives that the Trump Campaign had received indications from the Russian government that it could help the Campaign by anonymously releasing “dirt” it had collected on Clinton. Based on this information, the FBI opened its investigation of potential coordination between Russia and the Trump Campaign a few days later.

When Papadopoulos was first questioned by the FBI in January 2017, he lied about his conversations with Mifsud and two other Russian contacts, concealing the timing, extent and nature of these exchanges. Most notably, he claimed that his conversations with Mifsud all happened before he joined the Trump Campaign.

In fact, Papadopoulos first met Mifsud in early March 2016, shortly after Papadopoulos joined the Trump Campaign as a foreign policy advisor. Mifsud was affiliated with the London Centre of International Law Practice, where Papadopoulos had taken a job in February 2016. While starting his new job in London, Papadopoulos reached out to the Trump Campaign, expressing an interest in joining.

After conducting minimal vetting, Sam Clovis, the Trump Campaign’s national co-chair and chief policy advisor, made Papadopoulos a foreign policy advisor. On March 21, Trump publicly named Papadopoulos a foreign policy advisor, describing him as an “excellent guy.”

At their first meeting, Mifsud, a Maltese national who maintained a number of Russian contacts in London, told Papadopoulos that he could help him with introductions to contacts within the Russian government. Mifsud’s contacts included someone who had been employed by the Internet Research Agency, which participated in the social media campaign to influence the 2016 election.

In London, Mifsud introduced Papadopoulos to Olga Polonskaya, whom Papadopoulos first understood to be Putin’s niece before learning that was inaccurate. When questioned about her, Papadopoulos lied to the FBI and said that he had met Polonskaya before joining the Trump Campaign.

After he met Polonskaya, Papadopoulos quickly emailed the Campaign’s foreign policy advisory team with the subject line: “Meeting with Russian leadership–including Putin.” Papadopoulos explained that the Russians were eager to set up a meeting, even between Putin and Trump, if there was interest.

Clovis responded to the email, counseling Papadopoulos to proceed with caution and not to make any commitments to his new Russian contacts. Clovis closed his email, “More thoughts later today. Great work.”

Papadopoulos flew to Washington, D.C., for a March 31 meeting of Trump’s foreign policy team. Sen. Jeff Sessions and Trump led the meeting. When it was Papadopoulos’ turn to speak, he discussed a potential meeting with Russian officials. Trump expressed interest in the idea of meeting Putin. Papadopoulos returned to London with the understanding that the Campaign was supportive of his efforts to arrange a meeting with the Russian government.

Papadopoulos met again with Mifsud in London on April 12, 2016. After that, Mifsud traveled to Moscow. There, he introduced Papadopoulos over email to Ivan Timofeev, a member of the Russian International Affairs Council. They spoke several times over Skype and email about setting up a meeting between the Campaign and Russian officials.

On April 26, 2016, the day after he returned from Moscow, Mifsud met with Papadopoulos. There, Mifsud told Papadopoulos that he had learned that the Russians had obtained “dirt” on Clinton.

Throughout this time and into the summer of 2016, Papadopoulos kept the Campaign apprised of his efforts to arrange a meeting between the Campaign and Russian government officials. Paul Manafort, a senior Campaign official at the time, forwarded one of these updates from Papadopoulos to another Campaign official with the note: “Let[’]s discuss. We need someone to communicate that [Trump] is not doing these trips. It should be someone low level in the Campaign so as not to send any signal.”

Papadopoulos’ Russian contacts also included exchanges on LinkedIn and in person with Sergei Millian. Millian, an American citizen and native of Belarus, introduced himself as the president of the “New York-based Russian American Chamber of Commerce” and claimed that he had “insider knowledge and direct access to the top hierarchy in Russian politics.” They met more than once in New York City that summer. In August 2016, Millian told Papadopoulos via Facebook message that he would share with him “a disruptive technology that might be instrumental in your political work for the Campaign.” Papadopoulos did not recall this happening. After the election, both men met to discuss business opportunities for Papadopoulos in Russia and arranged to meet in Washington, D.C., when they both attended Trump’s inauguration. Their contacts were not fully explored, however, because Millian remained out of the country for the duration of the Office’s investigation and refused to be interviewed.

Papadopoulos was eventually arrested for lying to the FBI and conducted several more interviews in the summer and fall of 2017. His lies harmed the investigation, such as by leaving investigators without accurate information when Mifsud lied to them multiple times during a February 2017 interview.

* Lengthy passages on these pages are redacted due to grand jury information.

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Volume 1.8

Links and Contacts with Russia: Carter Page
(pp. 95-102,* 166-167,* 183)

By Kate Brannen

Carter Page worked on the Trump Campaign from January 2016 through September 2016, primarily as a foreign policy advisor. Before that, he had extensive experience living and working in Russia. After he moved back to the United States, Russian intelligence officials approached him and formed relationships with him in 2008 and again in 2013.

Russian intelligence took advantage of Page’s interest in business opportunities in Russia, noting in a recorded conversation in 2013 that “it’s obvious that he wants to earn lots of money.” Page met with a Russian intelligence official working under diplomatic cover multiple times in New York City. Page provided his thoughts, as well as documents, about the energy industry. The Russian intelligence officer with whom he met was later charged by the U.S. government with conspiracy to act as an unregistered agent of a foreign government. The criminal complaint included descriptions of his conversations with Page, who was described as “Male-1.” Page told the FBI that he knew the men were members of the Russian intelligence services but said the information he had provided them was immaterial.

After joining the Trump Campaign, Page worked on briefing memos and talking points on Russia and talked up his high-level Russian contacts. He proposed that Trump meet with Russian President Vladimir Putin and suggested that he would be able to set up such a meeting. He advocated pro-Russian foreign policy positions and, in July 2016, traveled to Russia, where he met with Russian government officials.

Planning for his trip began in April 2016, when he was invited to give a speech at the July 2016 commencement ceremony at the New Economic School in Moscow, an honor previously bestowed on President Barack Obama in 2009. Page suggested to the Campaign that Trump give the speech instead of him, but Corey Lewandowski, who was the Campaign manager at the time, disagreed and told Page that if he did travel to Russia it would be in his personal capacity, not as a representative of the Trump campaign.

As Page’s trip to Moscow approached, Russian Press Secretary Dmitry Peskov was asked in an email from a New York-based public relations consultant whether he wanted to introduce Page to any Russian government officials on Page’s Moscow trip. Peskov replied, “I have read about [Page]. Specialists say that he is far from being the main one. So I better not initiate a meeting in the Kremlin.”

During Page’s public speeches in Moscow, he criticized U.S. foreign policy toward Russia. Afterward, he shook hands and talked with Russian Deputy Prime Minister Arkady Dvorkovich, who attended the event. While in Moscow, Page also met with Andrey Baranov, the head of investor relations at Rosneft, a Russian energy company. Page said they discussed “immaterial non-public” information, as well as Page’s involvement in the Trump campaign, although he could not recall the details. He also discussed potential business opportunities with Tatneft, another Russian energy company.

While in Moscow, Page emailed several Campaign officials telling them about his conversations, including a “private” one he said that head conducted with Dvorkovich. Page told the Campaign that he had talked with Russian legislators as well as “senior members of the Presidential Administration.” But it remains unclear whether these descriptions of his meetings and conversations in Moscow were accurate.

After the trip to Moscow, Page started attracting a lot of press coverage in the United States, so much so that the Campaign tried to distance itself from him, downplaying his role. After it was reported that U.S. intelligence officials were investigating Page, the Trump Campaign formally removed him on September, 24, 2016. He later tried to get a job in the Trump administration, inflating his credentials and campaign experience. Trump’s Transition Team ignored his application.

In December 2016, Page traveled again to Moscow in an apparent attempt to secure business opportunities for himself. Although Page was traveling in his personal capacity, Konstantin Kilimnik, Paul Manafort’s longtime business associate who the FBI assesses to have ties to Russian intelligence, reported to Manafort in an email that, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DT on a range of issues of mutual interest, including Ukraine.” Dvorkovich met with Page again on this trip, and asked him if Page could help him connect with members of the Trump Transition Team.

In the end, the Office decided not to bring charges against Page because it did not find sufficient evidence to establish beyond a reasonable doubt that Page acted as an agent of the Russian government or that he coordinated with the Russian government in its efforts to interfere with the 2016 presidential election. However, the Foreign Intelligence Surveillance Court issued warrants on four separate occasions to conduct surveillance on Page based on a finding of probable cause that he was an agent of a foreign power. This is a different (and lower) standard than the one governing the Office’s decision on whether to bring criminal charges against him.

* Lengthy passages on these pages are redacted due to grand jury information.

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Volume 1.9

Links and Contacts with Russia: Trump Tower June 2016 Meeting
(pp. 110-122*)

By Kate Brannen and Ryan Goodman

In early June 2016, Donald Trump Jr. responded enthusiastically to an offer to meet with a Russian attorney who could provide derogatory information about Hillary Clinton from the Russian government.

The offer came from Emin Agalarov, the son of Aras Agalarov, a Russian real-estate developer with whom the Trumps had done business before. Aras had ties to Putin as well as Russia’s Prosecutor General Yuri Chaika. Trump had paired up with the Agalarovs to work on the 2013 Miss Universe pageant in Moscow and had also previously pursued the development of a Trump Moscow real-estate project with them. Aras expressed interest in Trump’s campaign. In an email drafted by Goldstone to Trump Jr. on February 29, 2016, Aras passed on his “congratulations” for Trump’s winning in the primary and an “offer” of his “support and that of many of his important Russian friends and colleagues[,] especially with reference to U.S./Russian relations.”

On June 3, 2016, Emin Agalarov called Robert Goldstone, his publicist who had served as an intermediary between the Agalarovs and the Trumps when they had worked together in the past. During the call, Emin conveyed to Goldstone that the attorney was a prosecutor and that the information that could interest the Trumps concerned Clinton. The lawyer was Natalia Veselnitskaya, who maintained a relationship with the government throughout this period. She had previously worked as a prosecutor for the Russian government and, more recently, lobbied against the U.S. Magnitsky Act, which imposed sanctions and travel restrictions on Russian officials suspected of human rights abuses. In December 2018, she was indicted for allegedly lying to a federal district court in separate litigation about her relationship to the Russian Prosecutor General’s Office.

After the phone call with Emin, Goldstone emailed Trump Jr., telling him that Emin had just called him and had asked him to contact Trump Jr. about “something very interesting.” The email went on to say:

The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin.

Goldstone asked what would be the best way to handle this and whether he should also share it with candidate-Trump, noting that it was “ultra sensitive so wanted to send to you first.” Within minutes, Trump Jr. emailed back, saying he should speak to Emin about it first, and ended his message saying, “If it’s what you say I love it especially later in the summer.”

It took a few days before Trump Jr. and Emin Agalarov finally spoke on the phone, but phone records show they had multiple brief calls on June 6 and June 7. On June 6, Aras Agalarov called Ike Kaveladze, who had represented his company before in its dealings with the Trumps, and asked him to attend a meeting in New York with the Trump Organization. Kaveladze, who attended the June 9 meeting in Trump Tower, told the Office that Aras had told him the purpose of the meeting was to discuss the Magnitsky Act. When Kaveladze later learned that senior Trump Campaign officials would attend the meeting, he checked in with one of Emin’s assistants who said the purpose of the meeting was to convey “negative information on Hillary Clinton.”

On the day of the June 9 Trump Tower meeting, Veselnitskaya invited Rinat Akhmetshin, a Soviet-born U.S. lobbyist who had previously worked on issues related to the Magnitsky Act, to lunch, along with Anatoli Samochornov, a Russian-born translator who had worked with Veselnitskaya before. After lunch, the group went to Trump Tower for the meeting with the senior members of the Trump Campaign.

Conduct of the meeting

According to witnesses, eight people attended the meeting: Trump Jr., Manafort, Kushner, Kaveladze, Samochornov, Akhmetshin, Goldstone, and Veselnitskaya. The Office spoke to everyone by Trump Jr. and Veselnitskaya, who declined to be interviewed voluntarily.

At the meeting, which lasted about 20 minutes, Veselnitskaya discussed how certain Americans doing business in Russia — including the Ziff brothers — had broken the laws there and had then donated their profits to the Democratic National Committee or the Clinton Campaign. Trump Jr. asked follow-up questions about how any of this could be tied directly to the Clinton Campaign, to which Veselnitskaya gave an unsatisfying answer.

Akhmetshin then spoke about the Magnitsky Act and how Russia had prohibited the U.S. adoption of Russian children in response to its passage. Trump Jr. said that his father was still a private citizen but that the issue could be revisited if and when he became president. Kushner grew aggravated during the course of the conversation, sending a text to Manafort describing the experience as a “waste of time.” He then left before the meeting was over.

In press interviews and congressional testimony, Veselnitskaya told a very different story than the other people who attended the meeting, seemingly misrepresenting what she discussed during the meeting and how she had introduced herself.

After the meeting, Goldstone apologized to Trump Jr. With Veselnitskaya next to him, Kaveladze first told Aras that the meeting had gone well, but later told Aras that the meeting was a waste of time. Kaveladze also told his teenage daughter in an email that the “meeting was boring. The Russians did not have any bad info on Hilary[sic].”

In his congressional testimony, Trump Jr. said he thought he should listen to what Goldstone and his colleagues had to offer, and depending on what if any information was provided at the meeting he could then “consult with counsel to make an informed decision as to whether to give it any further consideration.”

Awareness of the meeting within the Campaign

Senior members of the Campaign discussed the meeting before it occurred. On June 8, 2016, Trump Jr. forwarded the entirety of his correspondence with Goldstone to Manafort and Kushner under the subject line, “FW: Russia – Clinton – private and confidential,” adding a note that the “[m]eeting got moved to 4 tomorrow at my offices.” Kushner corresponded with his assistant about the meeting beforehand, and Manafort acknowledged receipt of Trump Jr.’s email in writing.

Rick Gates, who was the deputy campaign manager, told the Office that in the days before June 9 Trump Jr. announced at a meeting of senior campaign staff that he had a lead on negative information about the Clinton Foundation. Gates believed Trump Jr. said the information was from a group in Kyrgyzstan that he was introduced to by a friend. According to Gates, Manafort warned the group that the meeting would likely not yield vital information and they should be careful.

Michael Cohen recalled that on June 6 or 7 Trump Jr. may have told candidate Trump about an upcoming meeting to receive adverse information about Clinton, though Cohen did not recall Trump Jr. stating that the meeting was connected to Russia. In testimony, Trump Jr. said he did not inform his father about the meeting beforehand. President Trump told the Office that he has “no recollection of learning at the time” of the meeting, and the Office found no documentary evidence showing that he was made are of the meeting beforehand.

Post-June 9 events

After the election, Veselnitskaya and Aras made additional efforts to follow up on the meeting in reference to the Magnitsky Act, but the investigation did not identify evidence that the Trump Transition Team responded.

In June 9, 2017, attorneys representing the Trump Organization started contacting participants of the June 9, 2016 meeting. In an email sent to Emin on June 27, 2017, Goldstone said he was “interviewed” by Trump attorneys about the June 9 meeting who were “concerned because it links Don Jr. to officials from Russia–which he has always denied meeting.”

The June 9 meeting became public in July 2017. On July 10, 2017, Alan Futerfas, outside counsel for the Trump Organization and, subsequently, personal counsel for Trump Jr., sent Goldstone a proposed statement for Goldstone to issue. The proposed statement read: “I can definitively state that the statements I have read by Donald Trump Jr. are 100% accurate. … Ms. Veselnitskaya mostly talked about the Magnitsky Act and Russian adoption laws.” In response, Goldstone proposed a different statement which asserted that he had been asked “by [his] client in Moscow – Emin Agalarov – to facilitate a meeting between a Russian attorney (Natalia Veselnitzkaya [sic]) and Donald Trump Jr. The lawyer had apparently stated that she had some information regarding funding to the DNC from Russia.” Goldstone never released either statement.

An organization controlled by Veselnitskaya offered to pay $90,000 of Samochornov’s fees, an offer that Samochornov understood was conditioned on his making statements consistent with Veselnitskaya. He declined the offer, telling the Office he did not want to perjure himself.

* Lengthy passages on these pages are redacted due to grand jury information.

See also Volume 1.14: Charging Decisions: Accepting Information from Foreign Officials and Volume 2.9: Incident Six: Efforts to Prevent Disclosure of Emails about the June 9, 2016 Trump Tower Meeting with Russians

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Volume 1.10

Links and Contacts with Russia: Paul Manafort
(pp. 129-140,* 182-183)

By Rita Siemion

Paul Manafort joined the Trump Campaign in late March 2016, initially as the Campaign’s convention manager, believing that a relationship with the Campaign would be financially beneficial to him if Trump won the presidency. On May 19, 2016, he was promoted to campaign chairman and chief strategist. Manafort continued in that role until he resigned from the Campaign in mid-August 2016 amid negative media reports about his political consulting work for a pro-Russian political party in Ukraine.

Manafort’s Russian contacts during and after the campaign stem from his prior consulting for a Russian oligarch named Oleg Deripaska from 2005 to 2009, and his political consulting work from 2005 to 2015 for a pro-Russian political party in Ukraine.

In 2005, Manafort began working for Deripaska, who oversaw a global empire of aluminum and power companies and maintained close ties to Vladimir Putin. Manafort’s company earned tens of millions of dollars from its work for Deripaska, which included installing friendly political officials in countries where Deripaska had business interests and briefing the Kremlin about the benefits the work could confer on “the Putin government.” Manafort’s company was also loaned millions of dollars by Deripaska. In 2007, Deripaska invested in a fund created by Manafort to pursue investments in Eastern Europe. When the fund failed, a litigation dispute between Manafort and Deripaska soured their business relationship.

Deripaska had previously introduced Manafort to a Ukrainian oligarch who hired him as a political consultant, including for work supporting the Party of Regions, a political party in Ukraine aligned with Russia. Manafort became a trusted advisor to Viktor Yanukovych, the Party of Regions candidate who became President of Ukraine in 2010 and remained in power until 2014, when he fled to Russia amidst political unrest.

Manafort stayed in touch with these Russian and Ukrainian contacts during the campaign period through a Russian national named Konstantin Kilimnik, a longtime Manafort employee with ties to Russian intelligence. Manafort instructed Rick Gates, his deputy on the Campaign and a longtime employee, to provide Kilimnik with regular updates on the status of the Trump Campaign, including internal polling data, details of Manafort’s role in the Campaign, and the prospects for a Trump victory. Manafort expected Kilimnik to share the information provided by Gates with other oligarchs in Ukraine as well as with Deripaska. Manafort also offered to provide private briefings to Deripaska.

Manafort also met in person with Kilimnik twice during the campaign period. The first meeting took place in New York on May 7, 2016, during which Manafort provided Kilimnik with information on the Trump Campaign and discussed the political situation in Ukraine. The second meeting took place in New York on August 2, 2016. Kilimnik requested the meeting to deliver a message from Yanukovych, who was then living in Russia. The message was about a plan to resolve the political problems in Ukraine by creating a republic in eastern Ukraine with Yanukovych as its leader. Manafort acknowledged the plan as a “backdoor” for Russian control and that U.S. support was required for the plan to succeed.

During this August 2 meeting, Manafort also briefed Kilimnik on the state of the Trump Campaign and the plan to win the election, including discussion of the Campaign’s messaging, internal polling data, and battleground states Michigan, Wisconsin, Pennsylvania, and Minnesota. They also discussed Manafort’s litigation and soured business relationship with Deripaska and how Manafort might be able to obtain payment for his political consulting work in Ukraine that remained unpaid.

The investigation did not uncover evidence of Manafort’s passing along information about the Ukrainian peace plan to Donald Trump or anyone else in the Campaign or later in the administration. But the Office did not have access to all of Manafort’s electronic communication and Manafort repeatedly lied to the Office and the grand jury about the Ukrainian plan and his meetings with Kilimnik.

While the Office also could not determine with certainty Manafort’s purpose in sharing internal polling data with Kilimnik, Manafort told Gates that his role in the Campaign would be “good for business” and potentially a way to be made whole for his political consulting work in Ukraine. Manafort also claimed that by sharing campaign information, Deripaska might end the litigation and repair their soured business relationship. Because of questions about Manafort’ s credibility and the Office’s limited ability to gather evidence on what happened to the polling data after it was sent to Kilimnik, the Office could not assess what Kilimnik, or those he shared it with, did with the internal Campaign information. The Office also did not identify evidence of a connection between Manafort’s sharing of polling data and Russia’s interference in the election, which had already been reported by U.S. media outlets at the time of the August 2 meeting. The investigation did not establish that Manafort otherwise coordinated with the Russian government on its election-interference efforts.

Accordingly, while the investigation uncovered extensive evidence that Manafort’s pre-campaign work for the Ukrainian government violated the Foreign Agent’s Registration Act (FARA), the investigation did not yield evidence that was likely to be enough for proving beyond a reasonable doubt that Manafort, or any other Campaign officials, acted as an agent of the Russian government or at its direction, control or request, during the relevant period.

* Some passages on these pages are redacted due to grand jury information.

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Volume 1.11

Links and Contacts with Russia: Michael Flynn
(pp. 160-61, 167-173, 194-195, with additional information in Vol. 2, pp. 24-26)

By Barbara McQuade

Incoming National Security Advisor Michael Flynn dealt with Russia on two sensitive matters during the transition: a United Nations Security Council vote and the Russian government’s reaction to the imposition of U.S. sanctions for interfering in the 2016 election.

In late November, Flynn and Jared Kushner met with the Russian Ambassador Sergey Kislyak in Trump Tower, on the request of the Ambassador. Their discussion included U.S. policy toward Syria, and Kislyak proposed having Russian generals brief Transition Team members on a secure communications line. Kushner said the Transition Team offices did not have a secure line and proposed using secure facilities at the Russian Embassy. The Ambassador immediately rejected the proposal.

First, on December 21, 2016, Egypt submitted a resolution to the U.N. Security Council requiring Israel to cease settlement activities in Palestinian territory. The media speculated that the Obama Administration would not oppose the resolution.

According to Flynn, the Transition Team wanted to support Israel by opposing the resolution. On December 22, Trump and Transition Team members contacted foreign officials to determine their views and rally opposition. Jared Kushner led the effort, and Flynn was responsible for Russia. After a phone call with Kushner, Flynn called Kislyak. According to Flynn, he requested that Russia vote against or delay the resolution. Later that day, Trump spoke with Egyptian President Abdel Fattah al-Sisi, and Egypt postponed the vote.

On December 23, the resolution was resubmitted. Kislyak informed Flynn that Russia would not vote against the resolution. The resolution passed 14-0, with the United States abstaining.

Second, on December 28, President Obama imposed sanctions on nine Russian individuals and entities, expelled 35 Russian officials, and closed two Russian compounds in the United States. Trump and the Transition Team feared that the sanctions would harm the United States’ relationship with Russia. Trump, K.T. McFarland, Steve Bannon, Reince Priebus, and other Transition officials were staying at the Mar-a-Lago club in Palm Beach, Florida. Flynn was vacationing in the Dominican Republic, but was in daily contact with McFarland, his incoming deputy.

On December 29, McFarland exchanged emails with Transition Team members about the sanctions. McFarland believed she told Bannon and Priebus that Flynn was scheduled to talk to Kislyak that night. Flynn said he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago. He spoke with Transition Team member Michael Ledeen and McFarland for 20 minutes each regarding what to communicate to Kislyak.

McFarland sent an email to Transition Team members about the sanctions and informed them that “Gen [F]lynn is talking to russian ambassador this evening.” About an hour after sending the email, McFarland briefed Trump, Bannon, Priebus, Sean Spicer, and others on the sanctions and possible Russian responses. Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election (according to the FBI Interview with McFarland). McFarland said yes, and Trump expressed doubt that it was the Russians. Trump opined that the sanctions provided him with leverage over the Russians. Priebus recalled that McFarland may have mentioned that the sanctions situation could be “cooled down” and not escalated. McFarland recalled that someone may have told Trump at the end of the meeting that Flynn was speaking to the Russian ambassador that evening. Priebus thought it was possible that McFarland mentioned Flynn’s scheduled call at the meeting, but he was not certain.

Flynn called Kislyak and asked that Russia not escalate the situation, not get into a “tit for tat,” and respond to the sanctions in only a reciprocal manner. The investigation did not identify evidence that Trump asked Flynn to make any request to Kislyak.

Flynn reported to McFarland by phone on his call with Kislyak, stating that Russia would not retaliate because they wanted a good relationship with the incoming Administration. McFarland gave Flynn a summary of her briefing with Trump.

The next day, Putin released a statement that Russia would not retaliate. Trump tweeted, “Great move on delay (by V. Putin).” Flynn then sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. Flynn told the Office that he omitted from his message the topic of sanctions because it could be perceived as interfering with the Obama administration’s foreign policy.

On December 31, Kislyak called Flynn and told him the request had been received at the highest levels and that Russia would not retaliate. Flynn later told McFarland that he believed his phone call had made a difference. Flynn recalled discussing the sanctions with Bannon on New Year’s Day and that Bannon appeared to know about Flynn’s conversation with Kislyak. Bannon recalled meeting with Flynn that day, but told investigators that he did not remember discussing sanctions with Flynn. Two days later, Flynn met with Trump and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling Trump about the substance of his calls with Kislyak.

The FBI interviewed Flynn on January 24, 2017, four days after he became national security advisor. During the interview, Flynn made two false statements. First, Flynn said he did not ask Kislyak to refrain from escalating the situation in response to sanctions. Second, Flynn stated that did not ask any countries to take any particular action on the U.N. resolution.

Flynn made these false statements when the FBI had an open investigation into Russian election interference, including the nature of any links between the Trump Campaign and Russia. Flynn’s false statements and omissions impeded and otherwise had a material impact on that ongoing investigation. They also came shortly before Flynn made submissions to the Department of Justice, pursuant to the Foreign Agent Registration Act (FARA), that also contained materially false statements and omissions.

The Special Counsel charged Flynn with making false statements to the FBI. On December 1, 2017, Flynn pleaded guilty. He awaits sentencing.

The investigation also produced evidence of violations of FARA by Flynn. Those potential violations concerned Turkey, not Russia, and were resolved when Flynn admitted to the facts in the Statement of Offense that accompanied his guilty plea.

The investigation did not yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or subject to the direction or control of the government of Russia, under 18 U.S.C. § 951. As a result, the Special Counsel did not charge any other Trump Campaign official with violating FARA or Section 951, or attempting or conspiring to do so, based on contacts with the Russian government or a Russian principal.

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Volume 1.12

Links and Contacts with Russia, Additional Individuals
(pp. 103-110, 123-126, 127-129, 144-166,* 197-198)

By Asha Rangappa

Several contacts between individuals associated with the Trump Campaign and Russia occurred during the week of Republican National Convention, after the Convention, and during the post-election and transition period. During and after the Convention, these contacts occurred with Russian Ambassador Sergey Kislyak or the Russian Embassy.

Immediately after the 2016 election, Russian government officials, as well as Russian businessmen with ties to the Russian government, began making outreach to the Campaign and transition team through multiple channels. These businessmen included Petr Aven and Kirill Dmitriev, two members of Russian President Vladimir Putin’s inner circles of wealthy “oligarchs” who meet on a quarterly basis with Putin. Aven advised the Office that in the quarterly meeting immediately following the 2016 election, Putin was concerned about additional U.S. sanctions against Russia and that Aven took Putin’s words to mean that he was expected to reach out to the incoming Trump administration to establish communication channels. Aven’s understanding of his directive was consistent with the Office’s observations of Dmitriev, who referred to Putin as his “boss” and also undertook outreach to the new administration.

The Report lists the following contacts between the Russian Embassy or Russian businessmen with close ties to Putin, and with the following individuals:

J.D. Gordon: Gordon was a senior campaign advisor on policy and national security. Gordon met Kislyak at a conference during the week of the Convention (July 18-21, 2016), in which Gordon and Sessions delivered speeches, and spoke with Kislyak briefly after the speeches and at the reception. Gordon was responsible for diluting a proposed amendment to the Republican Party platform from providing “lethal” assistance to Ukraine to providing only “appropriate” assistance. Following the Convention, Kislyak invited Gordon to breakfast at his residence, which Gordon declined. The Office determined that Gordon’s contacts with Kislyak were brief and non-substantive, and also did not establish that Gordon either spoke to or was directed by Trump himself to make the policy change.

Jeff Sessions: Then-Senator Sessions, a Trump Campaign surrogate, also attended and delivered a speech at the same conference as Gordon. Following his speech, Sessions spoke with Kislyak as well as other ambassadors at the conference. He advised the Office that he spoke only for a few minutes and did not recall the substance of the conversation. In September 2016, Sessions met with Kislyak in his Senate office, at the ambassador’s request, and in the presence of two Senate aides. The meeting lasted for 30 minutes. Kislyak made additional attempts to arrange meetings with Sessions, which Sessions declined.

The Office considered whether Sessions committed perjury or made false statements to Congress based on his confirmation testimony and subsequent written statements denying contacts with Russia. The Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and declined to charge him with these offenses. The Office also concluded that there was no evidence that Kislyak conversed with Sessions at an event at the Mayflower Hotel where they were mutually present or at later events hosted by the Center for the National Interest.

Jared Kushner: Kushner was a senior campaign and transition advisor. Immediately following the election, Kislyak reached out to Kushner to request a meeting, which Kushner took at Trump Tower on November 30, 2016. The meeting was attended by Michael Flynn and lasted approximately 30 minutes. Kushner asked Kislyak for a person with direct contact with Putin to direct future communications, and also asked Kislyak if they could use the secure communications channel at the Russian Embassy to communicate.

Kushner declined a second meeting with Kislyak, but through Kislyak met Sergey Gorkov, a Russian businessman with direct ties to Putin. Gorkov is the owner of the Russian-owned bank Vnesheconombank (VEB), which is under U.S. Treasury sanctions. Kushner, who had ongoing business interests, including an upcoming debt obligation, claimed that the discussion involved diplomatic issues, but VEB claimed it involved business – the investigation did not resolve the conflict in these accounts. Gorkov had previously advised a bank colleague that he would be “reporting back to Putin” after the meeting. Gorkov followed up with Kushner to advise him that “the information about the meeting had a very positive response!”

Hope Hicks: Hicks was the Trump Campaign press secretary. Hicks received a call at 3 a.m. on election night purporting to be on behalf of Putin. She requested an email to confirm that it was the Kremlin making the request. Hicks received an email the following morning from an official at the Russian Embassy, with a message from Putin to President-elect Trump. After checking with Kushner, Hicks conveyed the email to transition officials. A formal call between Trump and Putin occurred five days later.

Erik Prince: Prince was a Campaign supporter and frequently visited transition offices at Trump Tower after the election. After receiving a message on election night from an unnamed individual who wrote, “Putin has won,” Dmitriev requested a meeting with transition officials through an intermediary. The intermediary was George Nader, a senior advisor to Crown Prince Mohammed bin Zayed of the United Arab Emirates (UAE). Nader arranged a meeting between Dmitriev and Prince to take place in the Seychelles, and assured Dmitriev that Prince “wielded influence” with the incoming administration. The meeting took place in January 2017 and at it, they discussed cooperation and conflict resolution and Russian involvement in Libya. Prince and Dmitriev had a second meeting, after which, according to Prince, he debriefed campaign strategist Steve Bannon. Bannon advised the Office that he and Prince never discussed Dmitriev. The Office was unable to resolve the conflict between these accounts because communications between Prince and Bannon during this time period had not been preserved.

Rick Gerson: Gerson is a hedge fund manager and friend of Kushner who had no formal role in the Trump transition, but helped arrange meetings between transition members and foreign officials like former British Prime Minister Tony Blair and bin Zayed. Gerson met Dmitriev through a U.A.E. national security advisor, initially to discuss a joint business venture. Dmitriev also presented Gerson with a reconciliation plan between the U.S. and Russia and asked Gerson to share it with Kushner, which he did. Dmitriev solicited feedback from Gerson on the proposal on behalf of “his boss” and followed up with Gerson after Trump’s post-election call with Putin to acknowledge that the plan played a role in the success of that call. Gerson did not have further contact with Dmitriev after their business deal stalled in March 2017.

Dmitri Simes: Simes is the CEO of the Center for the National Interest (CNI), a think tank in Washington, D.C., with expertise on the Russian government. Simes advised the Trump Campaign, through Kushner, on how to respond to the Clinton Campaign’s attacks on Trump regarding Russia-related matters. Following the election, Aven attempted to establish contact with the Trump transition team through Richard Burt, a former U.S. ambassador who worked at Alfa-Bank, which Aven owned. Burt attempted to arrange a meeting between Aven and the Trump transition team through Simes, but Simes discouraged such a meeting in light of the attention on Russian election hacking in the press and in Congress. Aven continued to receive pressure from Putin to make contact with the Trump administration.

* Lengthy passages on these pages are redacted due to grand jury information and revelation of investigative techniques.

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Volume 1.13

Charging Decisions: The Foreign Agent Registration Act
(pp. 181-183)

By Jennifer Daskal

Other than the pre-existing charges involving Paul Manafort, Robert Gates, and Michael Flynn, there was insufficient evidence to charge other Trump Campaign associates for working on behalf of or conspiring to work on behalf of Russia.

Two federal statutes regulate work conducted by people in the United States on behalf of a foreign government. One statute – 18 U.S.C. 951 – generally requires advance notice to the Attorney General for those working under the direction or control of a foreign government.

The other statute—known as the Foreign Agent Registration Act, 22 U.S.C. 611 et seq. – is aimed at those engaged in political and economic activities, such as lobbying or promotion of foreign propaganda and foreign economic interests. It thus applies the Attorney General-notification requirement to anyone who engages in specified activities, including raising or distributing money or other things of value, acting as a political consultant, or engaging in political activities on behalf of a foreign principle. The definition of foreign principle includes foreign governments, foreign political parties, and other foreign entities—a wider array of foreign actors than that covered by 18 U.S.C 951.

Manafort and Gates were charged with violations of the Foreign Agent Registration Act for their failure to disclose their pre-campaign work as agents of the government of Ukraine. They pleaded guilty to those charges. Flynn also was separately accused of violating the Foreign Agent Registration Act based on activities conducted on behalf of Turkey; Flynn admitted to the underlying facts as part of his December 2017 guilty plea for making false statements.

The Special Counsel did not, however, find sufficient evidence to charge any Trump Campaign officials as working under the direction or control of Russia or any of its officials. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials acted as agents of the Russian government during the relevant time period.

The Special Counsel separately investigated whether Papadopoulos acted as an unregistered agent or under the direction of control of Israel. While finding significant ties between Papadopoulos and Israel, the Office concluded that there was not enough to sustain a criminal charge beyond a reasonable doubt.

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Volume 1.14

Charging Decisions: Accepting Information from Foreign Officials (campaign finance law)
(pp. 183-190*)

By Paul Seamus Ryan

The Office’s investigation examined efforts or offers by foreign nationals to provide negative information about presidential candidate Hillary Clinton to the Trump Campaign or to distribute that information to the public. The Office considered whether two of those efforts in particular—a June 9, 2016, meeting at Trump Tower in New York and an effort related to an ongoing DOJ matter that is consequently redacted from the Report—constituted prosecutable violations of campaign-finance laws. The Office determined that the evidence was insufficient to charge either incident as a criminal violation.

The U.S. government has a compelling interest in limiting foreign national participation in, or influence over, the U.S. political process. Federal law prohibits foreign nationals from making contributions in U.S. elections, and prohibits anyone from soliciting, accepting, or receiving such contributions.

“Contribution” is defined in law to include any gift of money or anything of value for the purpose of influencing an election. The term “expenditure” is defined to include any purchase or payment for the purpose of influencing an election. And “foreign national” is defined to include foreign governments and individuals who are not citizens or legal permanent residents of the U.S.

To establish a criminal campaign-finance violation, the government must prove beyond a reasonable doubt that the defendant acted “knowingly and willfully”—i.e., that the defendant knew generally that his conduct was unlawful. A criminal violation of the foreign national contribution prohibition requires proof of an aggregate value of $2,000 or more.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 2016 Trump Tower meeting. On June 3, 2016, Robert Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov an “offer” from Russia’s “Crown prosecutor” to “the Trump campaign” of “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.’s] father.” The email described this as “very high level and sensitive information” that is “part of Russia and its government’s support to Mr. Trump-helped along by Aras and Emin.” Trump Jr. responded: “if it’s what you say I love it especially later in the summer.” Through follow-up conversations, Trump Jr. and Emin Agalarov scheduled a meeting with Russian representatives that was attended by Trump Jr., Paul Manafort, and Jared Kushner.

These email communications and the meeting that followed could implicate the federal law ban on foreign national contributions to U.S. candidates. Trump Jr. received an offer purportedly from a Russian government official to provide “official documents and information” to the Trump Campaign for the purposes of influencing the presidential election. Trump Jr. appeared to have accepted that offer and to have arranged a meeting to receive those materials. The email chain also suggests that Kushner and Manafort were aware of that purpose and attended the meeting anticipating receipt of information helpful to the Campaign from Russian sources.

The Office considered whether this evidence would establish any of several possible crimes: a conspiracy to violate the foreign contribution ban, the illegal solicitation of a foreign contribution, or the acceptance of a promise to make a foreign-source contribution.

There are reasonable arguments that the offered information would constitute a “thing of value”—i.e., a “contribution” under the law. Federal Election Commission regulations recognize the value to a campaign of at least some forms of information including, for example, membership lists, mailing lists and polling data, even when the value of these materials may be nominal or difficult to ascertain. Candidate-related opposition research given to a campaign could constitute a “contribution” under the law. Political campaigns frequently conduct and pay for opposition research. However, no court decision has treated the provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign finance law and such an interpretation could raise First Amendment questions.

Even assuming that the promised information constituted a “thing of value” subject to the foreign national contribution ban, the Office determined that the government would not be likely to obtain a conviction for two other reasons. First, the Office lacked evidence likely to prove beyond a reasonable doubt that these individuals acted with knowledge that their conduct was illegal. Second, the government would have difficulty proving that the value of the promised information exceeded the $2,000 threshold for a criminal violation and/or the $25,000 threshold for felony punishment. Evidence of the value of the offered information would likely be unavailable, especially given that the offered information apparently was not produced.

Taking into account the need to establish that the meeting participants knew their activities were illegal, combined with the difficulty in establishing the monetary value of the offered information, the Office decided not to pursue criminal campaign-finance charges for the events culminating in the June 9, 2016, Trump Tower meeting.

The Office’s analysis of an effort by foreign nationals to distribute information harmful to Clinton to the public is redacted from the Report because it relates to an ongoing DOJ matter. However, the Office determined that the evidence was not sufficient to charge either incident as a criminal violation.

* Some of these pages are heavily redacted due to harm to an ongoing matter.

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Volume 1.15

Charging Decisions: False Statements and Obstruction of the Investigation
(pp. 191-196)

By Barbara McQuade

The Special Counsel determined that individuals associated with the Trump Campaign lied to investigators about contacts with Russia and took other actions to interfere with

the investigation. The Special Counsel charged George Papadopoulos, Michael Flynn, and Michael Cohen with false statements.

George Papadopoulos

Under federal law (18 U.S.C. § 1001(a)(2)) it is a crime to knowingly and willfully “make[] any materially false, fictitious, or fraudulent statement or representation” “in any matter within the jurisdiction of the executive … branch of the Government,” such as an FBI investigation. The statute also applies to an investigation conducted by a congressional committee.

In January 2017, investigators interviewed Papadopoulos. He lied about the timing, extent, and nature of his communications with Joseph Mifsud, a Maltese national who was a professor in London. Papadopoulos acknowledged that Mifsud told him the Russians had “dirt” on Clinton in the form of “thousands of emails,” but Papadopoulos stated that those communications occurred before he joined the Campaign. He told investigators that it was a “very strange coincidence” to be informed of the dirt on Clinton before he started working for the Campaign. In fact, these communications occurred in April 2016, more than a month after Papadopoulos had joined the Campaign. Mifsud showed interest in Papadopoulos only after learning of his role on the Campaign.

Papadopoulos also lied to minimize the extent and importance of his communications with Mifsud. In fact, Papadopoulos engaged in extensive communications over months with Mifsud about foreign policy issues, including efforts to arrange a “history making” meeting between the Trump Campaign and Russian officials.

In addition, Papadopoulos failed to inform investigators that Mifsud had introduced him to Ivan Timofeev, a member of the Russian International Affairs Council, despite being asked if he had met with Russian nationals or “[a]nyone with a Russian accent” during the campaign.

Papadopoulos also falsely claimed that he had met Olga Polonskaya before he joined the Campaign, and told the FBI that he had no relationship with her. In truth, Mifsud introduced Polonskaya to Papadopoulos as a student with connections to Russian President Vladimir Putin on March 24, 2016, after he had joined the Campaign. During the campaign, Papadopoulos emailed and spoke with her over Skype numerous times about a foreign policy trip to Russia.

Papadopoulos’s false statements hindered investigators when Mifsud was interviewed in a Washington, D.C., hotel on February 10, 2017. Mifsud denied having advance notice of the Clinton emails, falsely denied seeing Papadopoulos since introducing him to Polonskaya, and omitted that he had drafted a message that Polonskaya sent to Papadopoulos. Papadopoulos’s lies prevented investigators from challenging Mifsud’s inaccurate statements.

As a result, the Special Counsel charged Papadopoulos with false statements. On October 7, 2017, Papadopoulos pleaded guilty. He was sentenced to 14 days’ imprisonment, a $9,500 fine, and 200 hours of community service.

Michael Flynn

The FBI interviewed Michael Flynn on January 24, 2017, four days after he had become national security advisor. Flynn made false statements regarding his communications with Russian ambassador Sergey Kislyak.

Flynn told agents that he did not ask Kislyak to refrain from retaliating against the United States for imposing sanctions against Russia. In fact, on December 29, 2016, Flynn called Kislyak to request Russian restraint. Flynn also made false statements regarding a resolution of the United Nations Security Council. Flynn stated that he did not request that any country take any particular action on the resolution. In truth, on December 22, 2016, Flynn called Kislyak and requested that Russia vote against or delay the resolution.

Flynn’s false statements impeded the investigation. The Special Counsel charged Flynn with making false statements. On December 1, 2017, Flynn pleaded guilty and also admitted to making false statements to the Department of Justice in his filing under the Foreign Agent Registration Act.

Michael Cohen

Michael Cohen was the executive vice president and special counsel to the Trump

Organization. Between fall 2015 and June 2016, Cohen sought to build a development known as Trump Tower Moscow. In 2017, Cohen testified before the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI), which were investigating Russian interference in the 2016 presidential election and possible links between Russia and the presidential campaigns. Before testifying, Cohen sent a statement to both committees.

The statement contained three false representations. First, Cohen stated that the Trump Tower Moscow project had ended in January 2016 and that he had briefed Trump on the project only three times. In fact, consideration of the project had extended through at least June 2016 and included more than three briefings to Trump. Second, Cohen represented that he never agreed to travel to Russia for the project and never considered asking Trump to travel for the project. In truth, Cohen had discussed travel to Russia for the project and he had inquired about Trump traveling there. Third, Cohen stated that he did not recall any response to an email he had sent to a Russian government spokesman Dmitry Peskov. In fact, Cohen recalled that he had received a reply and had a follow-up phone conversation with an English-speaking assistant to Peskov in January 2016.

Cohen knew these statements were false, and admitted making them to minimize links to Trump and to give the false impression that the project had ended before the first Republican primary votes, in hopes of limiting the Russia investigations.

The Special Counsel charged Cohen with false statements. On November 29, 2018, Cohen pleaded guilty. The case was transferred to the district judge assigned to Cohen’s case in the Southern District of New York. On December 12, 2018, the judge sentenced Cohen to two months’ imprisonment on the false-statements count, to run concurrently with a 36-month sentence imposed on the other counts.

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Volume 2.1

Setting the Stage: Investigation of a Sitting President and Overarching Factual Issues
(pp. 1-2, 12-15, C1-C2, 158)

By Ryan Goodman

Decision point: Whether could indict a sitting President

Because this case involves a sitting President, the Office did not make a traditional prosecution or declination decision, which would involve a binary choice — to initiate or decline a prosecution. In 2000, the Justice Department’s Office of Legal Counsel (OLC) issued an opinion finding that indictment of a sitting President would undermine the Executive Branch’s capacity to govern in violation of “the constitutional separation of powers.” Because the Special Counsel is an attorney in the Department of Justice, the Office accepted the OLC’s legal conclusion.

Apart from the OLC’s constitutional view, the Office recognized that a federal accusation that the President engaged in criminal wrongdoing would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct (footnote cites to Impeachment Clauses of the Constitution and OLC’s discussion of relationships between impeachment and criminal investigation of a sitting President).

The OLC opinion, however, concludes that it is permissible to conduct a criminal investigation during a President’s time in office and to indict a President after he leaves office. If individuals other than the President committed obstruction crimes, they may be prosecuted at the present time. Given those considerations and the facts known to the Special Counsel’s Office, the Office decided to conduct a thorough factual investigation to preserve the evidence when memories were fresh and documentary materials were available.

Decision point: Whether to make a prosecutorial judgement of criminal wrongdoing in internal report

Principles of fairness counseled against even a prosecutorial judgment that crimes were committed in an internal Justice Department report. As the OLC reasoned when excluding the option of a sealed indictment, it would be very difficult to preserve the secrecy of such an action against a sitting President. The results of public disclosure of a prosecutorial judgment would, once again, undermine the President’s ability to govern. Although an internal report would not represent a formal public accusation akin to an indictment, the absence of a neutral adjudicatory forum to review the prosecutor’s findings counseled against potentially determining that the President’s conduct constituted a federal offense.

Finally, if the Office had confidence that the President clearly did not commit obstruction of justice, the Office would so state. Based on the facts and the applicable legal standards, however, the Office is unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Decision point: Whether to subpoena the President’s testimony

Beginning in December 2017, the Office sought a voluntary in-person interview with President Trump on topics relevant to both Russian election interference and obstruction. The Office told the President’s counsel that “[a]n interview with the President is vital to our investigation,” that the Office “carefully considered the constitutional and other arguments raised by … counsel, and they d[id] not provide us with reason to forgo seeking an interview,” and that the Office was offering “numerous accommodations to aid the President’s preparation and avoid surprise.”

After more than a year of discussion, the President declined an in-person interview. The President agreed to provide written answers to questions on Russia-related topics, but declined to answer any questions on obstruction or on events during the transition.

On Sept. 17, 2018, the Office submitted written questions to the President on Russia-related topics. On Nov. 20, 2018, the President submitted written replies. The Office informed the President’s counsel that those responses were insufficient in several respects. The Office noted, among other things, that the President stated on more than 30 occasions that he “does not ‘recall’ or ‘remember’ or have an ‘independent recollection’” of information. The Office informed the President’s counsel that the written responses “demonstrate the inadequacy of the written format,” and again requested an in-person interview.

The Office believed it had the legal authority and justification to issue a grand jury subpoena to obtain the President’s testimony, but chose not to do so. That decision was based on consideration of the substantial delay resulting from constitutional litigation at a late stage of the investigation. The decision was also based on the significant body of evidence already obtained from other sources that allowed the Office to draw factual conclusions describing and explaining President Trump’s actions and intent.

Criminal intent is often inferred from circumstantial evidence, which is a necessity given that an individual can decline to testify based on his Fifth Amendment right against compelled self-incrimination. Accordingly, determinations on intent are often reached without the opportunity to interview an investigatory subject.

Overarching factual issues

Although the Office does not reach a traditional prosecution or declination decision, some general conclusions may be stated to understand the factual findings.

First, some of the conduct did not implicate the President’s constitutional authority and raises garden-variety obstruction-of-justice issues. Other events investigated, however, drew upon the President’s Article II authority. Those events require the factual analysis to consider whether the President’s actions were facially lawful and that his being the head of the Executive Branch gives him unique powers to influence official proceedings, subordinate officers, and potential witnesses.

For an analysis of the constitutional issues, see Volume 2.15 (Response to Possible Constitutional Defenses).

Second, while many obstruction cases involve the attempt to cover up an underlying crime, criminal obstruction can also be motivated to protect other personal interests, to protect against investigations where criminal liability is uncertain, and to avoid the revelation of personally embarrassing information. The injury to the integrity of the criminal justice system is the same regardless of whether a person committed an underlying crime.

In this investigation, the evidence points to a range of personal motives animating the President. These include his concerns that the investigation would call into question the legitimacy of his election and potential uncertainty about whether specific events – such as advance notice of WikiLeaks’ releases and the June 9, 2016 Trump Tower meeting with Russians – could be seen as criminal activity by the President, his campaign, and his family.

Third, although the events investigated involved discrete acts and the following analysis is broken down into different incidents, it is important to view the President’s pattern of conduct as a whole. Actions in one incident, for example, form a pattern with actions in other incidents. Considering the pattern as a whole sheds light on the President’s intent. Considering certain acts collectively can also shed light on their significance.

Finally, the investigation of obstruction can be divided into two distinct phases relevant to the President’s possible motives. In the first phase, before the President fired FBI Director Comey, he had been assured that the FBI had not opened an investigation on him personally. In the second phase, however, the President was made aware that investigators were conducting an obstruction of justice inquiry into his own conduct.

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Volume 2.2

Legal Framework for Obstruction of Justice: Elements and Case Law
(pp. 9-12)

By Asha Rangappa

The order appointing the Special Counsel provided the Office with jurisdiction to investigate the crime of obstruction of justice committed in the course of the investigation. The Office collected and analyzed evidence of obstruction of justice based on the elements of this crime, but the Office did not come to a final prosecutorial decision on this issue.

Obstruction of justice, which is codified in several statutes, ordinarily consists of three elements: 1) an obstructive act; 2) a nexus between the obstructive act and an official proceeding; and 3) a corrupt intent. The summary of law for each element of this offense is presented below. Obstruction of justice that arises from official acts by the President raises unique constitutional issues, which are not discussed here but addressed later in this Report.

The law governing witness tampering and attempts to obstruct justice or commit other offenses are also discussed below.

Obstructive act: Case law governing obstruction of justice indicates that the statute reaches all conduct, however employed, which prevents the administration of justice. It includes any effort, however subtle or concealed, that “blocks, makes difficult, or hinders” a proceeding. An act that is otherwise legal or in an actor’s authority may constitute obstruction of justice if it is undertaken with an improper motive.

Nexus to a pending or official proceeding: Obstruction of justice must be connected to an “official proceeding.” This can include judicial or grand jury proceedings, a federal agency proceeding, or a congressional inquiry or investigation. A proceeding does not need to be in progress for obstruction to occur, but a relationship in “time, causation, or logic” must be shown between the action and the proceeding that was to be obstructed.

Objectively, the defendant’s actions must be likely to obstruct justice. Subjectively, the defendant must have contemplated a particular proceeding when committing the obstructive act. Obstruction of justice may be committed indirectly, through a third party, if it is foreseeable that the third party would act on the defendant’s communications to the third party.

Corruptly: A defendant must act with a specific intent to obstruct justice, namely, “knowingly or dishonestly,” or “with an improper motive.” An improper motive includes an intent to “subvert, impede, or obstruct” a proceeding or “consciousness of wrongdoing” in undertaking an action or to influence another person. A corrupt intent is demonstrated if the defendant acted with an intent to advantage himself or someone else, “inconsistent with official duty and the rights of others.”

Witness tampering: One obstruction of justice statute includes a specific prohibition that forbids tampering with a witness. This includes knowingly intimidating, corruptly persuading, or engaging in misleading conduct toward another person to “influence, delay, or prevent” that person’s testimony in an official proceeding. Conduct that is intended to “hinder, delay, or prevent” the communication of information to a law enforcement officer also constitutes witness tampering.

Actions that fall within the scope of the statute do not need to be coercive in nature, or explicit. Urging a witness to state that he does not recall a fact, when he does recall it, also falls under witness tampering. The nexus to an official proceeding, moreover, is more relaxed than in obstruction of justice because the action is focused on the communication of information to officials or investigators, rather than to the proceeding itself. Finally, the intent requirements is met even if the defendant’s conduct was lawful, as long as the “sole intention” was to encourage or influence the witness to lie.

Attempts and endeavors: The obstruction of justice statutes prohibit attempts to obstruct justice as well as an “endeavor” to obstruct justice. An attempt to obstruct justice includes an intent to obstruct combined with an “overt act” towards that goal. An endeavor is even broader than an attempt, and this crime can be completed even if the prosecution is unable to prove that the administration of justice was actually impeded or obstructed.

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Volume 2.3

Trump’s Response to Reports of Russian Support
(pp. 15-23*)

By Joshua Geltzer

During the 2016 U.S. presidential campaign, the media raised questions about possible connections between the Trump Campaign and Russia. The scrutiny began as Donald Trump took a uniquely pro-Russia stance among Republican primary contenders and increased as the U.S. press reported that Russian political analysts perceived Trump as favorable to Russia. Moreover, U.S. media reported on ties between Trump Campaign advisors and Russia, including Michael Flynn appearing regularly on RT (a Russian government-funded television network) and sitting next to Vladimir Putin at an RT gala in Moscow; Carter Page having links to a Russian state-run gas company; and Paul Manafort having done work for Russian-backed former Ukrainian president Viktor Yanukovych. The press also raised questions during the Republican National Convention about the Trump Campaign’s involvement in changing the Republican Party’s stance on arming Ukraine against Russia.

These questions intensified based on the Trump Campaign’s reactions to WikiLeaks’ release of Democratic Party emails that were damaging to the Clinton Campaign and were reported to have been obtained via hacking by Russia. Those reports of Russian responsibility began with a June 2016 announcement by a cybersecurity firm that had conducted in-house analysis for the Democratic National Committee indicating that Russian government hackers had infiltrated the Committee’s computer and obtained access to documents. The next month—a day before the Democratic National Convention began—WikiLeaks posted thousands of hacked documents revealing sensitive internal Campaign deliberations. Hillary Clinton’s campaign manager soon publicly contended that Russia had arranged release of the emails to help Trump, and days later the New York Times reported that U.S. intelligence agencies had told the White House of their high confidence that the Russian government was responsible for the hacking. Trump Campaign aides reacted enthusiastically to these reports. Some witnesses told the Office that Trump himself discussed the possibility of upcoming releases of emails, including, at one point, specifically telling Rick Gates that more releases would be coming. By summer 2016, the Trump Campaign was planning a communications strategy based on the possible release of Clinton emails by WikiLeaks.

In response to public questions about connections to Russia, the Trump Campaign began by rejecting suggestions that Russia was seeking to aid Trump. Trump himself said that the notion that Russia had hacked the emails was unproven and added that it would give him “no pause” if Russia had, in fact, obtained Clinton’s emails. Trump added, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” He also confirmed his pro-Russia policy orientation.

In addition to denying that Russia was trying to help Trump or had hacked the emails, Trump denied any connections to Russia, repeating five times at a press conference, “I have nothing to do with Russia.” Trump said that he had been interested in working with Russian companies but “it never worked out,” adding that “we had a major developer … that wanted to develop property in Moscow and other places. But we decided not to do it.” This was untrue: The Trump Organization had been pursuing building a Trump Tower Moscow from around September 2015 through June 2016, and Trump himself was regularly updated on developments regarding the project, including possible trips to Moscow to make progress on the deal. Michael Cohen, who led the project for Trump, regarded Trump’s denial of any business dealings in Russia as untrue, and spoke with Trump after the press conference. Trump told Cohen that Trump Tower Moscow was not yet a deal and said, “Why mention it if it is not a deal?”

In response to the questions raised publicly about its links to Russia, the Trump Campaign sought to distance itself from Russian contacts. Manafort was asked to resign amidst media coverage of his ties to a pro-Russian political party in Ukraine and links to Russian business, and Page’s association with the Campaign was terminated after the media reported on his connections to Russia.

After WikiLeaks released the first set of stolen emails from Clinton Campaign Chairman John Podesta and the federal government announced that Russia had directed the recent hacks, vice presidential candidate Mike Pence was asked whether the Trump Campaign was “in cahoots” with WikiLeaks. He responded, “Nothing could be further from the truth.”

After Trump’s election, he and his campaign continued to deny any connections with Russia, with Trump Campaign spokesperson Hope Hicks, for example, specifically denying any contacts between the Campaign and Russia. Dismissing press reports that U.S. intelligence agencies had concluded that Russia interfered in the election to help Trump’s candidacy, Trump said that the intelligence community had “no idea if it’s Russia or China or somebody. It could be somebody sitting in a bed some place.” After the Obama administration announced sanctions against Russian individuals and entities in response to Russia cyber operations aimed at the election, Trump said, “I think we ought to get on with our lives,” though he soon indicated that he would meet with intelligence community leaders for a briefing on Russian interference. After that briefing, the intelligence community released a public version of its assessment, concluding with high confidence that Russia had intervened in the election to harm Clinton’s electability and with a clear preference for Trump.

Days later, BuzzFeed published allegations about Trump’s Russia connections compiled by former British intelligence officer Christopher Steele. Trump called the release “an absolute disgrace” and said, “I have no dealings with Russia.” According to Trump advisors, such as Hicks, Gates, Sean Spicer, and Reince Priebus, Trump viewed stories about his connections to Russia, investigations into Russia, and the intelligence community assessment of Russian interference as a threat to the legitimacy of his electoral victory.

* Passages on these pages are redacted due to harm to an ongoing matter.

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Volume 2.4

Incident One: Shielding Flynn
(pp. 24-48)

By Mimi Rocah

On December 29, 2016, the same day the Obama administration announced that it was imposing sanctions and other measures on Russia in response to its interference in the 2016 election, incoming National Security Advisor Michael Flynn called Russian Ambassador Sergey Kislyak and requested that Russia respond to the sanctions without escalation. The next day, Russian President Vladimir Putin announced that Russia would not take retaliatory measures. On Dec. 31, Kislyak called Flynn to tell him that his message had been received at the highest levels and Russia would not retaliate. Flynn talked to K.T. McFarland, the incoming deputy national security advisor; Steve Bannon and possibly President-elect Donald Trump about his call to Kislyak and the impact it had.

On January 12, 2017, a Washington Post column reported that Flynn and Kislyak had communicated on the day the sanctions had been announced. The piece questioned whether Flynn had said something to “undercut U.S. sanctions,” and whether he had possibly violated the Logan Act, a law that prohibits private citizens from negotiating with foreign governments on behalf of the U.S. government without authorization. Trump was angry at this press coverage and incoming Chief of Staff Reince Priebus directed Flynn to “kill the story.” Flynn directed McFarland to call the Washington Post journalist and say that no discussion of sanctions had occurred in the call between him and Kislyak. McFarland did this (knowing it wasn’t true).

When Priebus and other incoming administration officials, including Vice President Mike Pence and Press Secretary Sean Spicer, questioned Flynn about the Washington Post column, he maintained that he hadn’t discussed sanctions with Kislyak. Accordingly, administration officials repeated this publicly. In addition, the FBI interviewed Flynn on January 24, 2017, and he falsely claimed that he had not asked Kislyak to refrain from escalation and claimed not to remember the follow-up conversation. Justice Department officials realized that these untrue statements made Flynn susceptible to potential blackmail by Russia because he lied. DOJ officials told White House Counsel Don McGahn about Flynn’s potentially compromising position with Russia and that he had been interviewed by the FBI. McGahn relayed this information to Trump and discussed the possible criminal statutes at issue for Flynn.

On January 27, Trump invited FBI Director James Comey to dinner that evening. Trump and Comey had previously spoken on January 6 during an intelligence briefing on Russian interference in the election after which Comey informed Trump of allegations in the Steele Dossier about Trump. Despite warnings from advisors that he should not dine alone with Comey and that he should not talk about Russia, Trump did both. During the dinner, Trump repeatedly brought up Comey’s future, questioning him if he wanted to stay on as FBI director. At one point, Trump stated “I need loyalty, I expect loyalty.” Comey said that he would get “honesty” and “honest loyalty.” When this account became public, Trump disputed it.

On February 9, after further reporting emerged about Flynn’s conversations with Kislyak, McGahn and Priebus recommended to Trump that Flynn be terminated.

On February 14, the day after Flynn resigned, Trump spoke with New Jersey Governor Chris Christie and told him, “Now that we fired Flynn, the Russia thing is over.” Christie disagreed. Trump asked Christie to call Comey and tell him that Trump said “he’s part of the team.” Christie did not do that.

Later that afternoon, after a meeting with Comey and other officials, Trump cleared the room so that he and Comey would be alone. Trump told Comey that Flynn was terminated because he had lied to Pence, not because he did anything wrong in talking to Kislyak and said, “I hope you can see your way clear to letting this go, letting Flynn go. He is a good guy. I hope you can let this go.”

Trump then asked Priebus to ask McFarland to create an internal email stating that Trump had not directed Flynn to call Kislyak about sanctions. Priebus asked McFarland to do this but she seemed uncomfortable, saying she didn’t know whether Trump had directed Flynn to make those calls to Kislyak. Trump also asked Priebus to reach out to Flynn and let him know Trump still cared about him, which Priebus did. After news reports that Flynn had offered to testify before FBI and Congress in exchange for immunity, Trump tweeted his support for him and asked McFarland to pass a message to Flynn to “stay strong.”

Legal Analysis

Trump has repeatedly disputed Comey’s accounts of their one-on-one meetings and specifically the “direction” he gave regarding Flynn. However, “substantial evidence” corroborates Comey’s account and, specifically backs up that Trump directed him to “let[] Flynn go.” As for obstruction of justice, this act had the requisite “nexus to a proceeding” because the evidence “suggests his (Trump’s) awareness that Flynn could face criminal exposure and was at risk of prosecution.”

As to intent, there was mixed evidence as to whether Trump had a “personal stake” in the outcome of an investigation into Flynn. It is not clear whether Trump knew ahead of time about Flynn’s conversation with Kislyak and, therefore, it’s not clear Flynn had damaging information about Trump. However, Trump connected the investigation of Flynn to questions about Russian interference and the legitimacy of his election as president. And the circumstances – clearing the room, denying he had asked Comey to “let[] Flynn go,” asking McFarland to deny Trump’s involvement were “irregular” – suggest that this was not a proper exercise of prosecutorial discretion by Trump.

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Volume 2.5

Incident Two: Pressuring FBI Director Comey and the Intelligence Chiefs
(pp. 48-62)

By Barbara McQuade

In February 2017, the Department of Justice analyzed whether Attorney General Jeff Sessions should recuse from the Russia investigation. On March 2, 2017, the President called White House Counsel Don McGahn and urged him to tell Sessions not to recuse. McGahn argued against recusal with Sessions, Sessions’ chief of staff, and Senate Majority Leader Mitch McConnell. That afternoon, Sessions announced his recusal.

On March 3, the President met with McGahn, Steve Bannon, and other advisors. The President expressed anger at McGahn about the recusal and wanted McGahn to talk to Sessions, but McGahn said that DOJ ethics officials had weighed in on the decision. Bannon recalled that the President was very angry and that he screamed at McGahn that Sessions was weak.

That weekend, Sessions and McGahn flew to Mar-a-Lago. Sessions recalled that the President pulled him aside and suggested that Sessions should “unrecuse.”

On March 9, Comey briefed congressional leaders about the FBI’s investigation of Russian interference in the elections. Notes taken by Annie Donaldson, McGahn’s chief of staff, state: “POTUS in panic/chaos … Need binders to put in front of POTUS. (1) All things related to Russia.” A week later, McGahn’s office was in contact with Sen. Richard Burr (R-N.C.), chairman of the Senate Select Committee on Intelligence, and appears to have received information from Burr about the FBI investigation.

On March 20, Comey testified before the House Permanent Select Committee on Intelligence that the FBI was investigating Russia’s efforts to interfere in the election, including any links between the Trump Campaign and Russia. Comey declined to answer whether President Trump was under investigation. Advisors recalled that the President was upset by the suggestion that he was under investigation.

At the President’s urging, McGahn contacted Acting Attorney General Dana Boente on March 21, to publicly correct the misperception that the President was under investigation. Boente declined.

On March 22, the President asked Director of National Intelligence Dan Coats and CIA Director Mike Pompeo to publicly state that no link existed between him and Russia. Coats said it was not his role to do so. Pompeo did not recall that meeting, but recalled that the President regularly urged officials to make such statements.

On March 25, the President called Coats and complained about the investigations. Coats advised the President to let the investigations run their course. Coats later testified to Congress that he had “never felt pressure to intervene” in the investigation.

On March 26, the President called NSA Director Adm. Michael Rogers. The President asked Rogers if he could publicly refute the stories about Russia. Deputy Director of the NSA Richard Ledgett, who was present, said it was the most unusual thing he had experienced in years of government service. Ledgett prepared a memorandum documenting the President’s request, and placed it in a safe. But Rogers did not perceive the President’s request to be an order, and the President did not ask Rogers to push back on the Russia investigation itself. Rogers testified to Congress that he had never been directed to do anything inappropriate.

On March 30, the President called Comey, asking him to “lift the cloud.” Comey explained that the FBI was investigating as quickly as possible, and that congressional leaders were aware that the FBI was not investigating the President. The President said that if there was “some satellite” who did something, “it would be good to find that out” but that he himself had not done anything wrong, and he hoped Comey would find a way to get that fact out.

On April 11, the President called Comey to follow up. Comey responded that he had relayed the request to Boente, and he informed the President that such a request should go from White House Counsel to DOJ leadership. The President said he would take that step, and then said, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

Obstruction of justice requires proof of three elements: an obstructive act, nexus to an official proceeding, and corrupt intent.

With regard to an obstructive act, the evidence shows that the President repeatedly reached out to intelligence leaders to discuss the FBI investigation. But witnesses said that the officials did not interpret these requests as directives to improperly interfere with the investigation.

Regarding nexus to an official proceeding, Comey’s testimony had confirmed that the FBI was investigating Russian election interference.

Finally, even though the evidence does not establish that the President asked intelligence leaders to interfere with the investigation, the President’s intent is relevant to understanding his motivation. The evidence shows that the President sought to dispel any suggestion that he was under investigation or had links to Russia. The President attempted to prevent Sessions’ recusal, and told advisors that he wanted an attorney general who would protect him, the way he perceived Robert Kennedy and Eric Holder had done when they were in the job. The President talked about being able to direct criminal investigations, saying, “You’re telling me that Bobby and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?”

The evidence indicated that the President was angered by the existence of the investigation and public reporting that he was under investigation, which he believed was not true based on Comey’s representations. The President complained that if people thought Russia helped him with the election, it would detract from what he had accomplished, would harm his ability to govern, and was hurting foreign relations, particularly with Russia.

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Volume 2.6

Incident Three: Firing FBI Director Comey
(pp. 62-77)

By Mimi Rocah

FBI Director James Comey was scheduled to testify before Congress on May 3, 2017. Leading up to that testimony, President Donald Trump continuously told to advisors that he wanted Comey to make public that the President was not personally under investigation. At the hearing, Comey declined to do that. In addition, Comey stated that it made him “mildly nauseous to think that we (the FBI) might have had some impact on the election” (referring to his statement just before the election about reopening the investigation into Hillary Clinton’s emails) but that “even in hindsight” he “would make the same decision.” Over the next few days, Trump repeatedly brought up Comey and the idea of firing him to advisors.

Soon after Comey’s testimony, Trump directed White House senior advisor Stephen Miller to draft a termination letter for Comey. In its opening sentence, the draft letter stressed that Comey had informed Trump three times “that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship.” The letter stated that Trump, members of both political parties and the “American Public,” had “lost faith in you as Director of the FBI.” The four-page letter also critiqued Comey’s judgment and conduct.

White House Counsel Don McGahn and others urged Trump to allow Comey to resign but Trump insisted Comey should be fired. Trump directed Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein to draft a memo to the President recommending that because Comey had refused to confirm that the President was not personally under investigation, he should be terminated. Rosenstein responded that that reason was not the basis of his recommendation and that he did not think the Russia investigation should be mentioned. Trump told Rosenstein to include it anyway. Rosenstein told colleagues that his reasons for replacing Comey were not the same as the President’s reasons.

On May 9, 2017, Sessions delivered a letter to the White House recommending that Comey be terminated based on the memo written by Rosenstein. The memo in turn said that Comey should be fired because of his handling of the Clinton email investigation. The White House Counsel’s Office determined that the original termination letter mentioning Russia should “[n]ot see the light of day” and the press team was directed to state that Comey had been fired solely for the reasons stated by Rosenstein and Sessions. A statement was put out by the White House on May 9 stating that Comey had been terminated based on the “clear recommendations” of Rosenstein and Sessions. When Trump subsequently wanted to put out a statement that the firing was Rosenstein’s idea, Rosenstein would not go along with it.

The next day, Trump boasted in the Oval Office to the Russian ambassador and foreign minister: “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off….I’m not under investigation.” On May 11, Trump was interviewed by NBC’s Lester Holt. Trump told his communications team ahead of time that he was going to say what really happened. During the interview, Trump said,

“I was going to fire regardless of recommendation…. [Rosenstein] made a recommendation. But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it….And in fact, when I decided to just do it, I said to myself – I said, you know, this Russia thing with Trump and Russia is a made up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.”

Legal Analysis

The act of firing Comey, could be considered an obstructive act, on the one hand, because it had the potential to affect a successor FBI Director’s actions with respect to the Russia investigation. However, such an act would not necessarily prevent or impede the institution of the FBI from continuing its investigation, as the White House acknowledged after Comey’s firing. Comey’s firing could be linked to the then on-going FBI investigation of Russian’s interference in the election as well as to any potential criminal investigation of Flynn, of which Trump was well-aware.

As to the President’s intent, it was clear that the catalyst for Comey’s firing was his unwillingness to state publicly that the President was not personally under investigation, despite repeated requests. Why was that important to President Trump? It may have interfered with his ability to address foreign relation issues and questions about the legitimacy of his election. But, there was also evidence that Trump wanted to protect himself from an investigation into his campaign because such an investigation could uncover facts about the campaign and Trump personally that he could have understood to be crimes or that would cause political or personnel problems for him. For example, though Trump had several times during and after the election said that he had no connection to Russia, his company was pursuing, with his approval, the development of Trump Tower Moscow through June 2016.

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Volume 2.7

Incident Four: Efforts to Remove Special Counsel Mueller
(pp. 77-90)

By Renato Mariotti

President Donald Trump attempted to remove Special Counsel Robert Mueller from his position, a move that could have seriously crippled the investigation into Trump and his associates.

Mueller was appointed special counsel by then-Acting Attorney General Rod Rosenstein on May 17, 2017. Rosenstein made the appointment because then-Attorney General Jeff Sessions had recused himself from overseeing the Russia investigation based upon the advice of career ethics officials.

Rosenstein first told Sessions that he had appointed Mueller during a phone call, which Sessions stepped out of the Oval Office to take. When Sessions told Trump that a special counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.”

Trump then became angry and lashed out at Sessions for recusing himself, stating, “How could you let this happen, Jeff?” Trump said Sessions had “let [him] down,” claiming that Sessions was “supposed to protect me.” Trump said that Mueller’s appointment ruined his presidency, and that it was the “worst thing that ever happened to me.”

Trump then tried to force Sessions to resign. Although Sessions offered to do so, Trump refused, but kept Sessions’ letter of resignation in his pocket. Priebus told Sessions that the President’s holding onto his letter was not good because it would serve as a kind of “shock collar” that the President could use whenever he wanted. Priebus said Trump had “DOJ by the throat.”

In the days to come, Trump asserted that Mueller had supposed “conflicts of interest.” Trump advisor Steve Bannon told Trump the supposed conflicts were “ridiculous,” while White House Counsel Don McGahn and others described them as “silly” and “not real.”

Trump tried to push McGahn to call Rosenstein to complain about the false conflicts of interest, presumably in an effort to push out Mueller, but McGahn refused to do so.

On June 12, 2017, Trump told a longtime friend that he was considering firing Mueller. A day later, Trump’s personal attorneys contacted the Office and raised concerns about the false conflicts.

On June 14, the Washington Post published an article revealing that Mueller was investigating Trump for obstructing justice. A day later, on June 15, Trump tweeted about how he was under investigation.

Then, on June 17, 2017, Trump directed McGahn to have Mueller removed, telling him “you gotta do this.” McGahn didn’t follow through on Trump’s order because he said he didn’t want to start another “Saturday Night Massacre,” the infamous Watergate episode that hastened the end of Richard Nixon’s presidency.

Trump then followed up, calling McGahn a second time and telling him something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” He told McGahn that “Mueller has to go” and “Call me back when you do it.”

Because McGahn did not want to be involved in firing Mueller, he decided to resign. He told his chief of staff, his lawyer, Bannon, and then-White House Chief of Staff Reince Priebus about hit decision to resign. But, ultimately, McGahn ignored Trump’s order and Trump did not take action against McGahn.

It’s clear that Trump knew, when he ordered McGahn to fire Mueller, that doing so could be considered a crime. Weeks earlier, McGahn advised Trump that doing so would look like he was “trying to meddle in the investigation” and “knocking out Mueller” would be “another fact used to claim obstruction of justice.”

Even if firing Mueller, the man who was investigating him, would not end the investigation completely, it could still qualify as an obstructive act. That’s because the removal of Mueller would have clearly set the investigation back. And all of the facts and circumstances above, including Trump’s clear directives to McGahn, demonstrated that he actually tried to remove Mueller.

It is clear that by June 17, 2017, Trump knew his conduct was under investigation by Mueller. After all, he said so publicly himself.

Substantial evidence also indicates that Trump’s attempts to remove Mueller were linked to Mueller’s oversight of the investigation of Trump’s obstruction of justice. The evidence strongly indicates that the news that an investigation of Trump’s obstruction of justice had been opened is what led Trump to call McGahn to have Mueller fired.

Although Trump’s attempt to obstruct justice by firing Mueller was unsuccessful, even unsuccessful attempts to obstruct justice are crimes. Trump’s repeated calls to McGahn and strong language indicate that he was serious about getting rid of Mueller. Those calls also show that he tried to use his official power as president to fire Mueller, instead of going through his personal attorneys, as McGahn told him he should do.

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Volume 2.8

Incident Five: Efforts to Curtail the Special Counsel Investigation
(pp. 90-98)

By Barbara McQuade

On June 19, 2017, the President met alone in the Oval Office with former campaign manager Corey Lewandowski, and dictated a message for Lewandowski to deliver to Attorney General Jeff Sessions. The message directed Sessions to announce that the President was being treated unfairly, that there should be no Special Counsel, that the President had done nothing wrong, and that Sessions would restrict the investigation to future elections.

Lewandowski wanted to pass the message to Sessions in person rather than by phone. He did not want to meet at the Department of Justice because he did not want a public log of his visit. Because of scheduling conflicts, he did not convey the message.

Lewandowski then asked Rick Dearborn, a White House official, to pass a message to Sessions. Lewandowski believed Dearborn would be a better messenger because he was in government and had a longstanding relationship with Sessions.

On July 19, the President again met with Lewandowski in the Oval Office. The June 9, 2016 meeting between Russians and Trump campaign officials had recently become public. Lewandowski said the message would be delivered soon. The President told Lewandowski that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired.

Upon departing, Lewandowski saw Dearborn and gave him a typewritten version of the message. Dearborn later told Lewandowski that he had handled the situation, but did not actually deliver the message. Dearborn did not want to ask where it came from or think further about doing anything with it. He also did not keep a copy of the typewritten notes.

Later that day, the President gave an interview to the New York Times criticizing Sessions’ decision to recuse. The President said that if Sessions had told him he would recuse, Trump “would have picked somebody else” for Attorney General.

On July 21, the Washington Post reported that U.S. intelligence intercepts showed that Sessions had discussed campaign-related matters with the Russian ambassador, contrary to his public comments. That evening, Priebus called Sessions’ Chief of Staff Jody Hunt, who told Priebus that the President would have to fire Sessions because Sessions would not quit.

On July 22, the President told Priebus that he had to get Sessions to resign immediately. The President said that the country had lost confidence in Sessions and the negative publicity was intolerable. Priebus replied they would never get a new Attorney General confirmed and that the Department of Justice and Congress would turn their backs on the President, but the President suggested he could make a recess appointment.

Priebus called McGahn for advice. McGahn told Priebus not to follow the President’s order and said that they should consult personal counsel, with whom they had attorney-client privilege. McGahn and Priebus discussed resigning rather than firing Sessions.

That afternoon, the President followed up with Priebus about demanding Sessions’ resignation. Later in the day, Priebus called the President and explained that it would be a calamity if Sessions resigned because Acting Attorney General Rod Rosenstein and Associate Attorney General Rachel Brand would likely also resign and no one else could get confirmed. The President agreed to hold off until after the Sunday shows the next day, to prevent attention to the firing.

By the end of that weekend, the President agreed not to ask Sessions to resign. Over the next several days, the President tweeted about Sessions, calling him “weak” and “beleaguered.” According to Hunt, Sessions prepared another resignation letter and carried it with him whenever he went to the White House.

In analyzing the President’s conduct, the following evidence is relevant to the elements of obstruction of justice:

1. Obstructive act. The President sought to send Sessions a message through Lewandowski, a private citizen, to disregard his recusal, which was based on a DOJ ethics review, and have Sessions declare that he knew “for a fact” that “there were no Russians involved with the campaign” because he “was there,” and that the President “hasn’t done anything wrong.” These directives indicate that Sessions was being instructed to end the investigation into the President and his campaign, and limit the investigation to future elections.

2. Nexus to an official proceeding. At time of the President’s initial meeting with Lewandowski, the grand jury investigation was public knowledge.

3. Intent. Substantial evidence indicates that the President’s effort to have Sessions limit the investigation to future elections was intended to prevent scrutiny of the President’s and his campaign’s conduct. The directive to Lewandowski came just two days after the President had ordered McGahn to remove the Special Counsel, which followed reports that the President was personally under investigation for obstruction of justice. The President raised the matter with Lewandowski again just days after the June 9, 2016 meeting between Russians and senior campaign officials had been publicly disclosed.

The manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski, a private citizen, alone in the Oval Office. The President also did not contact the Acting Attorney General, who had just testified that there was no cause to remove the Special Counsel. Instead, the President tried to use Sessions to restrict the investigation when Sessions was recused.

One month later, the President met with Lewandowski, still pursuing the request. The President attacked Sessions in the New York Times. Four days later, the President directed Priebus to obtain Sessions’ resignation. That evidence raises an inference that the President wanted Sessions to realize that his job was at stake as he evaluated whether to comply with the President’s direction to publicly announce that, notwithstanding his recusal, he was going to confine the investigation to future elections.

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Volume 2.9

Incident Six: Efforts to Prevent Disclosure of Emails About the June 9, 2016 Trump Tower Meeting with Russians
(pp. 98-107)

By Andy Wright

In May 2017, the Trump Camaign received a document request from the Senate Intelligence Committee asking for a description of all meetings between individuals associated with the Trump Campaign and any individuals “formally or informally affiliated with the Russian government or Russian business interests.” By June 2017, President Trump became aware of emails setting up the June 9, 2016 meeting between senior campaign officials and Russians who offered derogatory information on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” In mid June, senior Administration officials became aware about emails arranging a meeting between a Russian attorney and Donald Trump, Jr., Jared Kushner, and Paul Manafort. Those emails promised that the Russian attorney would “provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia.” During the meeting, the Russian attorney claimed that funds derived from criminal activities had been funneled to Hillary Clinton and other Democrats. According the President Trump’s written answers to Mueller’s office, he had no recollection of learning about the meeting until after the election.

As public scrutiny increased, President Trump made numerous attempts to prevent those emails from becoming public. White House communications advisors recalled discussing the inevitability of disclosure of the emails with Jared Kushner and Ivanka Trump. They recommended release of the emails to the press. On June 22, Kushner tried to show the emails to President Trump before Kushner produced them to Congress, but the President said he did not want to know about it, according to Hope Hicks’ interview with the FBI. A week later, the President told Hope Hicks that he wanted only one lawyer to have access to the emails so they would not leak. Hicks recalled that Kushner told the President that the meeting was about Russian adoptions. President Trump later rejected a release proposal and told Hicks and Ivanka Trump that they should not go to the press. The President was insistent that he did not want to know the details. During that conversation, he asked for Kushner’s deadline to provide the emails to Congress and said “leave it alone” until the deadline.

The following week, President Trump then dictated a false statement about the meeting to be issued by Donald Trump, Jr. On July 7, the New York Times contacted the White House about a story it planned to publish on the June 9 meeting and the President directed Hicks not to comment. Later that day, President Trump and Hicks met again about the story. Hicks recalls that the President asked her what the meeting was about, and she said that she had been told it was about Russian adoptions. President Trump told Hicks, “then just say that.”

Hicks showed the President a draft statement that included a reference to the Russian offer to provide “information helpful to the campaign.” The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.

After that meeting, Hicks texted Trump Jr. a revised statement. Trump, Jr. asked for the statement to read that they “primarily” discussed Russian adoption because the Russian lawyer “started with some Hillary thing which was bs and some other nonsense we shot down fast.” Hicks wrote back, “I think that’s right too but boss man worried it invites a lot of questions.” Trump, Jr. responded, “If I don’t have it in there it appears as though I’m lying later when they inevitably leak something.” The word “primarily” was included in the statement sent to the Times.

The Times then published the story with Trump, Jr.’s statement and a quote from Mark Corallo of the President’s legal team suggesting that the meeting might have been a setup by the people behind the Steele dossier. Corallo planted a similar story in Circa News. When President Trump and Hicks criticized Corallo for his statement, Corallo told them he was concerned that Trump, Jr.’s statement was inaccurate and a document existed that would contradict it. Corallo’s contemporaneous notes indicate Hicks said, “only a few people have it. It will never get out,” and he told the FBI that he is “100% confident” Hicks said that on the call. Hicks told investigators she did not recall making that statement, that she always believed the emails would leak, but she might have been channeling the President on the phone call because President Trump clearly thought the emails would not leak.

On July 11, Trump, Jr. posted redacted images of the emails on his Twitter account after learning the New York Times was about the publish them. Later that day, the media reported that President Trump was personally involved in the drafting of Trump Jr.’s statement. Members of the President’s personal legal team then inaccurately denied President Trump’s involvement, while the White House press secretary minimized his involvement. Later, President Trump denied he knew anything about the meeting with Russians at the time it occurred, and said that most people would take a meeting from a foreign government if it contained “information on your opponent.”

The President engaged in at least three acts between June 29, 2017 and July 9, 2017 designed to preclude disclosure or distort the contents of the emails about the June 9, 2016 meeting. Each of these acts were directed at the press, and they would only become obstructive acts under the criminal statutes if they were designed hide information from, or mislead, federal investigators or congressional committees. For the same reason, it would be difficult to show a sufficient connection between the President’s subterfuge and the pending grand jury and congressional investigations to constitute obstruction of justice. Similarly, while President Trump demonstrated intent to hide the emails from the public, the evidence does not establish that the President intended to prevent the Special Counsel’s Office or Congress from obtaining the emails.

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Volume 2.10

Incident Seven: Efforts to Have Attorney General Sessions Take Over the Investigation
(pp. 107-113)

By Andy Wright

From summer 2017 through 2018, President Donald Trump sought to have Attorney General Jeff Sessions reverse his recusal, retake control of the Russian investigation, and investigate Hillary Clinton. Between May 2017 and his July 19, 2017, New York Times interview in which he publicly criticized Sessions for his recusal, the President took a number of steps to have Sessions reverse his recusal decision.

After the Special Counsel’s appointment, Trump called Sessions at home and asked him to “unrecuse.” The President said he wanted Sessions to direct the Department of Justice to investigate and prosecute Hillary Clinton. Sessions neither reversed his recusal nor ordered an investigation of Clinton.

In early July 2017, the President asked White House Staff Secretary Rob Porter for an assessment of Associate Attorney General Rachel Brand; specifically, whether she was good, tough, and “on the team.” He also asked whether Brand would be interested in supervising the Special Counsel’s investigation or wanted to be attorney general someday. At that time, Brand would have assumed responsibility for the Special Counsel investigation if Deputy Attorney General Rod Rosenstein were removed. The President followed up with Porter several times on Brand’s response, but, due to discomfort, Porter had never reached out to Brand.

During that period, the President frequently complained to White House Counsel Don McGahn about Sessions, and noted that if Sessions were no longer attorney general, the Special Counsel would report to his replacement without a recusal. Per Hope Hicks, the President viewed Sessions’ recusal as an act of disloyalty.

Later, in October 2017, Trump told Sessions the Department of Justice was not investigating individuals and events that it should, including Clinton’s emails. Two days later, the President started tweeting his displeasure that the Department was not investigating Clinton. On December 6, the President pulled Sessions aside after a Cabinet meeting to suggest that if Sessions would “unrecuse” he would “be a hero.” According to Porter, Trump also told Sessions: “Dershowitz says POTUS can get involved. Can order AG to investigate. I don’t want to get involved. I’m not going to get involved. I’m not going to do anything or direct anything. I just want to be treated fairly.” Sessions responded: “We are taking steps, whole new leadership team. Professionals; will operate according to law.”

Over the next several months, Trump continued to criticize Sessions in tweets and media interviews. He also appeared to publicly encourage Sessions to take action in the Russia investigation despite Sessions’ recusal. On November 7, 2018, the day after the midterm elections, the President fired and replaced Sessions.

To violate the obstruction of justice statute, the evidence would have to establish that the President’s efforts to reverse Sessions’ recusal would naturally impede the Russia investigation. The duration of the President’s efforts and public criticism of Sessions would be relevant to determining whether those could be obstructive acts with the statute’s required connection to the grand jury’s Russia investigation. There is evidence that the President intended to have Sessions reverse his recusal in order to restrict the scope of the Special Counsel’s investigation. By the summer of 2017, the President was aware he was under investigation for obstruction of justice, and that his son, son-in-law, and former campaign manager were under investigation as well.

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Volume 2.11

Incident Eight: Ordering White House Counsel McGahn to Deny that the President Tried to Fire the Special Counsel
(pp. 113-120)

By Joyce Vance

In June 2017, President Donald Trump ordered White House Counsel Don McGahn to fire Special Counsel Robert Mueller. In January 2018, after the New York Times reported on Trump’s orders to McGahn, Trump unsuccessfully tried to get McGahn to deny it had happened.

Trump made four attempts to get McGahn to deny Trump had ordered him to have Mueller fired. The first was a call from Trump’s personal counsel to McGahn’s attorney, asking for a statement denying the order to fire Mueller and denying McGahn had threatened to quit, which the Times had also reported. McGahn’s attorney responded that his client would not make such a statement because the story was accurate in its reporting that Trump wanted Mueller fired.

Next, Trump asked White House Press Secretary Sarah Sanders to contact McGahn. McGahn told her there was no need to respond to the story and that some of it was accurate.

A few days later, Trump told White House Staff Secretary Rob Porter that the New York Times story was “bullshit” and denied trying to terminate Mueller. He directed Porter “to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel,” according to Porter’s testimony. Trump wanted McGahn to write a letter “for our records” that would say the New York Times report was inaccurate and told Porter he might “have to get rid of” McGahn if he wouldn’t do it. Porter told McGahn he needed to write a letter denying he was ordered to terminate Mueller and McGahn declined, saying the reports were true. McGahn told Porter he had planned to quit rather than carry out Trump’s order, although he had not told Trump this. McGahn dismissed Trump’s threat to fire him, telling Porter the optics would be bad, and declining to put anything in writing. Porter told White House Chief of Staff John Kelly about his conversation with McGahn.

The next Day, Kelly set up a meeting for McGahn to discuss the Times article with Trump in the Oval Office. The President’s personal counsel called McGahn’s attorney ahead of the meeting and said McGahn “could not resign no matter what happened in the meeting.”

Trump told McGahn the story didn’t look good and needed to be corrected. He denied telling McGahn to “fire” Mueller. McGahn told Trump that the story was correct, except insofar as it said he had told Trump he would quit if ordered to fire Mueller. McGahn told Trump he remembered being told to “Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel.” Trump denied saying it. McGahn told Trump he would not issue a correction. Trump also asked McGahn why he told the Office about the incident and why he took notes of their meetings. McGahn told Trump he had to tell the truth because there was no attorney-client privilege between them and he took notes because he was a “real lawyer.” Trump objected and said that he had had a lot of great lawyers “like Roy Cohn” and that they did not take notes.

Prosecutors must prove three elements to establish obstruction of justice: an obstructive act, a nexus to an official proceeding and intent.

1. Obstructive act: Trump’s four attempts to get McGahn to refute the Times story are obstructive acts if they tend to deter McGahn from testifying truthfully or undermine his credibility as a witness if he subsequently were called as a witness and testified to what he remembered, rather than to a record he created at Trump’s direction. The Office concluded there was substantial evidence that supported McGahn’s account that Trump directed him to have Mueller removed. Trump focused on the fact that he had not actually used the word “fire” to get McGahn to change his story, but by the time they met, Trump was aware McGahn did not believe the Times story was false. Trump persisted in trying to get McGahn to “repudiate facts that McGahn had repeatedly said were accurate.”

2. Nexus to an official proceeding: To establish nexus, prosecutors must show Trump’s actions would tend to affect an official proceeding or interfered with the communication of information to investigators. By January of 2018, when these events took place, Trump was aware the Office was using a grand jury. It was foreseeable McGahn might be called upon again to testify in the ongoing investigation and/or in court proceedings that might result from it.

3. Intent: Trump acted with the intent to influence McGahn’s account of events so as to discourage further scrutiny of Trump. Trump continued to pressure McGahn after it was clear McGahn believed his own memory of events. Trump even suggested he would fire McGahn if he didn’t refute the story. Trump’s conduct and statements showed his understanding and displeasure that his effort to fire Mueller would be part of an obstruction of justice investigation.

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Volume 2.12

Incident Nine: Conduct Toward Michael Flynn and Paul Manafort
(pp. 120-34*)

By Elie Honig

The Special Counsel evaluated conduct by President Donald Trump toward potential witnesses in the Special Counsel’s investigation, including former National Security Advisor Michael Flynn and former Campaign Chair Paul Manafort (and a third person whose name is redacted under the “harm to ongoing matter” classification).

Michael Flynn

Flynn resigned from his position as National Security Advisor in February 2017, while he was under FBI investigation. After Flynn’s resignation, Trump publicly made positive comments about Flynn, describing him as a “wonderful man,” “a fine person,” and a “very good person.” Trump also told advisors to pass private messages to Flynn conveying that Trump still cared about Flynn and encouraging him to stay strong.

In late November 2017, Flynn began cooperating with the Special Counsel. Around the same time, Flynn withdrew from a joint defense agreement with Trump. Upon learning of Flynn’s withdrawal and potential cooperation, Trump’s personal counsel left a voicemail for Flynn’s counsel. Trump’s counsel said that Flynn likely had begun cooperating; claimed that if Flynn had “information that implicates the President, then we’ve got a national security issue;” asked for “some kind of heads up” to “protect[] all of our interests;” and reiterated Trump’s “feelings towards Flynn, and that still remains.” When Flynn’s attorneys responded that Flynn would no longer share information, Trump’s attorney was indignant and vocal in his disagreement. Trump’s counsel promised to notify the President of Flynn’s actions and said that Flynn’s actions would be viewed as “hostility” toward Trump. Flynn’s attorneys understood these comments as an attempt to make Flynn reconsider his cooperation.

On December 1, 2017, Flynn pleaded guilty to making false statements to the FBI, pursuant to a cooperation agreement. The next day, a reporter asked the President whether he still stood by Flynn. Trump replied, “We’ll see what happens.” Over the next several days, Trump made public statements expressing sympathy for Flynn, arguing that he had been treated unfairly. In mid-December, when asked if he would consider a pardon for Flynn, Trump responded, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens.” Trump added that “people are very, very angry” at the FBI and Justice Department.

The Special Counsel considered whether Trump’s conduct toward Flynn could satisfy the three legal elements of obstruction of justice. First, Trump’s actions could constitute an “obstructive act” if they had the natural tendency to influence Flynn’s decision to cooperate and the extent of that cooperation. The sequence of events — from Trump’s private and public messages to Flynn before he began to cooperate with the Special Counsel’s Office to Trump’s personal counsel subsequent correspondence with Flynn’s counsel — could have affected Flynn’s cooperation with the Special Counsel’s investigation. Second, Trump’s actions related to an “official proceeding” because Flynn was under widely-known criminal investigation. Third, Trump’s “intent” was inconclusive primarily because privilege issues prevented a determination whether Trump authorized or knew about his personal counsel’s communications with Flynn’s counsel.

Paul Manafort

In January 2018, Manafort and his deputy Rick Gates each faced two federal indictments. Manafort told Gates that he had communicated with Trump’s counsel; it would be stupid to plead guilty; and they should “sit tight” and “we’ll be taken care of.”

As the case proceeded, Trump discussed with aides whether Manafort knew any damaging information and might cooperate with the Special Counsel. Meanwhile, Trump publicly claimed Manafort was being treated unfairly. When asked if he was considering a pardon, Trump responded, “I don’t want to talk about that… But look, I do want to see people treated fairly.” In the following days, Trump’s personal counsel Rudy Giuliani gave a series of interviews in which he publicly raised the possibility of a Manafort pardon, stating, for example, “When the whole thing is over, things might get cleaned up with some presidential pardons.” Manafort told the Special Counsel’s Office that he hoped for a pardon.

On August 1, 2018, the day after Manafort’s trial started, Trump publicly attacked the Special Counsel (“This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now…”), at one point sarcastically comparing the case to the prosecution of notorious mob boss Al Capone. As the jury deliberated, Trump publicly called the investigation a “rigged witch hunt.” Trump added that the trial is “very sad” and Manafort “happens to be a very good person.” Manafort’s attorney publicly thanked Trump for his support.

On August 21, 2018, the jury convicted Manafort. The same day, Michael Cohen pleaded guilty to federal offenses including a campaign finance crime he said occurred “with, and at the direction of, a candidate for federal office.” That day, Trump tweeted, “I feel very badly for Paul Manafort and his wonderful family… unlike Michael Cohen, he refused to ‘break’ – make up stories in order to get a ‘deal.’ Such respect for a brave man!” Trump later stated publicly that “flipping” was “not fair” and “almost ought to be outlawed.” When asked if he would pardon Manafort, Trump responded, “I have great respect for what he’s done, in terms of what he’s gone through.”

On September 14, 2018, Manafort pleaded guilty to additional charges pursuant to a cooperation agreement. Over the following months, Manafort’s attorneys regularly briefed Trump’s attorneys on the topics Manafort discussed with the Special Counsel. On November 26, 2018, the Special Counsel disclosed publicly that Manafort had breached his cooperation agreement by lying about multiple subjects. When asked if he would pardon Manafort, Trump responded, “It was never discussed, but I wouldn’t take it off the table.”

Trump’s conduct could satisfy the three legal elements of obstruction of justice. First, Trump’s actions could constitute an “obstructive act” because they had the potential to influence Manafort’s decision whether to cooperate — by making clear Trump did not want Manafort to cooperate and by holding out the possibility of a pardon. Further, Trump’s public statements during the Manafort trial had the potential to influence the jury. Second, Trump’s actions related to an “official proceeding” because Manafort was under indictment and on trial. Third, Trump had corrupt “intent” because Trump intended to encourage Manafort not to cooperate and some evidence supports that he intended, at least in part, to influence the jury.

* Lengthy passages on these pages concerning a third individual are redacted due to harm to an ongoing matter.

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Volume 2.13

Incident Ten: Conduct Toward Michael Cohen
(pp. 134-156)

By Elie Honig

The Trump Tower Moscow Project

From September 2015 through at least June 2016, the Trump Organization tried to build a Trump Tower Moscow in Russia. Cohen obtained approval from Trump in September 2015 to pursue the project. Thereafter, Cohen routinely briefed Trump on the project — including the fact that Cohen had spoken with somebody “from the Kremlin” — and Trump at times asked Cohen for updates. In late 2015, Trump signed a letter of intent that specified highly lucrative terms for the Trump Organization. Cohen described it as a $1 billion deal.

Although Cohen continued to brief Trump regularly on the project through June 2016, Trump — who by then was a leading candidate for the Republican nomination — publicly claimed he had nothing to do with Russia. Even as questions emerged about possible Russian support for Trump, he denied any personal, financial or business connections to Russia. Cohen understood this as the “party line” or “message” for Trump’s senior advisors.

After Trump won the election, the media asked Cohen about the Trump Tower Moscow project. Cohen worried that truthful answers would undermine Trump’s prior false denials. So, after consultation with Trump, Cohen falsely told the media that the Trump Tower Moscow deal had ended in January 2016 — an early point in the campaign, before primary voting began and Trump eventually became the presumptive nominee.

In May 2017, Cohen received requests from Congress for information about Russian election interference. Cohen spoke with Trump and Trump’s personal counsel about his Congressional testimony. Trump’s counsel encouraged Cohen to stay on message, and assured Cohen that he would be protected if he remained in a joint defense agreement with Trump, but would not be protected if he “went rogue.” Trump’s counsel reminded Cohen that Trump loved him and had his back if he stayed on message.

In August 2017, Cohen submitted a false written statement to Congress. Cohen falsely claimed Trump Tower Moscow negotiations ended in January 2016 (rather than June 2016); that Trump had never considered travelling to Russia (when in fact he had discussed it with Cohen); and that Cohen spoke with Trump about the project only three times (when in fact Cohen briefed Trump many more times).

As he drafted his false statement, Cohen spoke almost daily with Trump’s counsel, who had no firsthand knowledge of the matter but suggested several revisions and deletions favorable to Trump. An early draft included a sentence, “The building project led me to make limited contacts with Russian government officials.” Cohen also told Trump’s counsel that there were more communications with Trump about the deal than the draft statement reflected. Trump’s counsel assured Cohen that Trump appreciated Cohen, and that Cohen should stay on message and not contradict Trump, and there was no need to muddy the water.

Cohen spoke to the President more generally about how he planned to stay on message in his testimony, which Cohen believed they both understood would require false testimony. Cohen orchestrated the public release of his opening statement to Congress to let other potential witnesses know what Cohen was saying so they could follow the same message. Trump’s counsel told Cohen that the President was pleased with his statement to Congress.

Hush Money Payments Investigation Turns to Cohen

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly disclosing a prior affair with Trump. After speaking with Trump about the matter, Cohen falsely told the media that he had made the payment on his own, without involvement by the Trump Organization or Campaign, and without reimbursement. Trump’s counsel later texted Cohen that Trump “says thanks for what you do.”

On April 9, 2018, the FBI executed search warrants on Cohen’s residences and office. Trump publicly supported Cohen (calling him “a good man”) and complained about the searches (calling them “a real disgrace” and “an attack on our country, in a true sense”). Trump called Cohen and encouraged him to “hang in there” and “stay strong.” Others reached out to Cohen to convey that Trump “loves you” and “has your back.” Trump tweeted that “I have always liked & respected” Cohen, who would not “flip if the Government lets them out of trouble.”

After the searches, Cohen asked Trump’s personal counsel about the possibility of a pardon. Cohen understood based on conversations with the President’s counsel that as long as he stayed on message, he would be taken care of by the President by a pardon or the investigation being shut down.

Cohen Cooperates

In July 2018, the media reported that Cohen had signaled his willingness to cooperate with Special Counsel. Later that month, the media reported on the existence of a recording Cohen had made of a conversation between Cohen and Trump about hush money payments to a second woman who had an affair with Trump. Trump then tweeted an attack on the Special Counsel’s investigation and on Cohen, stating that Cohen had illegally taped him and “is trying to make up stories in order to get himself out of an unrelated jam.”

In August 2018, Cohen pleaded guilty to eight felony charges, including two counts relating to the hush money payments. Cohen stated under oath in court that he made the payments “at the direction of the candidate.” Trump then sent a tweet contrasting Manafort’s refusal to cooperate with Cohen’s cooperation, praising Manafort for “refusing to ‘break’ — make up stories in order to get a ‘deal.’” Trump publicly called Cohen “a weak person” who was “lying” to get a reduced sentence. Trump also publicly implied that Cohen’s family members had committed crimes, and called Cohen a “Rat.”

Legal Analysis

Regarding the Trump Tower Moscow project, there is insufficient evidence that Trump directed or aided Cohen’s false testimony to Congress about the Trump Tower Moscow project — in part because attorney-client privilege issues prevented a determination whether and to what extent Trump’s personal counsel communicated with Trump about Cohen’s preparation of the false testimony.

Regarding Cohen’s cooperation, the evidence could constitute obstruction of justice. First, Trump committed an “obstructive act” because he tried to encourage Cohen not to cooperate and then attacked and intimidated Cohen after he began cooperating. Second, Trump’s conduct toward Cohen implicated an “official proceeding” because Trump knew that various prosecutors were investigating Cohen and others. Third, the evidence could support the inference that the president “intended” to discourage Cohen from cooperating because Cohen’s testimony could “shed adverse light” on Trump’s conduct and statements. Further, Trump’s statements about Cohen and his family members could be viewed as an effort to retaliate against Cohen and chill further testimony adverse to the President.

See also Volume 1.6: Links and Contacts with Russia: Michael Cohen and Trump Tower Moscow

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Volume 2.14

Prebuttal I: Response to Possible Statutory Defenses
(pp. 159-168)

By Joshua Geltzer

President Donald Trump’s lawyer has argued that a core federal law criminalizing obstruction of justice does not cover Trump’s actions. That argument is contrary to the position that the Justice Department has taken in litigation and, moreover, is unsupported by principles of statutory construction or decisions by federal courts. Overall, given the breadth of that statute and other federal laws criminalizing obstruction of justice, there is no merit to the argument that the conduct at issue in the Special Counsel’s investigation falls outside the scope of federal obstruction laws.

The relevant provision of law, 18 U.S.C. § 1512(c)(2), states:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The Department of Justice has taken the position in litigation that this statutory provision states a broad, independent, and unqualified prohibition on obstruction of justice. While defendants have argued that subsection (c)(2) should be read to cover only acts that would impair the availability or integrity of evidence because that is subsection (c)(1)’s focus, strong arguments weigh against so limiting (c)(2)’s scope.

Those arguments start with the statutory text itself. That text of (c)(2) is broad and unqualified, with nothing limiting the provision’s reach to acts that would impair the integrity or availability of evidence for use in an official proceeding—a notable omission, given the limitation along those lines included in (c)(1) and other federal laws. The intent required to violate (c)(2) is limited to acting “corruptly,” without additional intent required.

The structure of the statute confirms this understanding. That structure makes clear that (c)(2) defines an offense independent from the one described in (c)(1) and not so limited, including through the use of separate numbers and line breaks; the use of “or” (rather than “and”) between the two provisions; and the inclusion of an independent “attempt” prohibition in each of the two provisions.

Additionally, the use of “otherwise” at the beginning of (c)(2) confirms that it establishes an offense independent from the one described in (c)(1). That word signals coverage of activity other than what is already covered by (c)(1), rather than suggesting somehow that (c)(2) is narrower.

Consistent with this understanding of the statute’s text and structure, federal courts have not limited (c)(2) to conduct that impairs evidence, instead reading it to cover obstructive acts in any form. For example, the U.S. District Court for the District of Columbia explicitly rejected the notion that (c)(2)’s scope “is limited to conduct that is similar to the type of conduct proscribed by subsection (c)(l)—namely, conduct that impairs the integrity or availability of ‘record[s], documents[s], or other object[s] for use in an official proceeding.’” United States v. Ring, 628 F. Supp. 2d 195, 224 (D.D.C. 2009). Moreover, courts have upheld convictions under (c)(2) that did not involve evidence impairment but instead resulted from conduct that more broadly thwarted arrests or investigations.

Overall, (c)(2) serves a distinct function in the federal obstruction-of-justice statutes: It captures corrupt conduct, other than document destruction, that has the natural tendency to obstruct contemplated as well as pending proceedings. Under that reading, (c)(2) overlaps with other obstruction statutes, but it does not render them superfluous, as they apply in circumstances where (c)(2) does not.

The legislative history of (c)(2) provides no basis for narrowing its reach, especially as its language parallels a provision that Congress had considered years before (c)(2)’s adoption when assessing a bill designed to strengthen protections against witness tampering and obstructing justice. The general requirement that criminal statutes provide fair warning of the behavior that they proscribe also does not justify narrowing (c)(2)’s scope, given that courts have required to for (c)(2) violations a nexus between the obstructive activity and particular, foreseeable official proceedings. The general requirement of avoiding impermissible vagueness in the criminal law is satisfied by (c)(2)’s demand that one acted “corruptly” to violate it, and courts consistently have rejected challenges on vagueness grounds. And the rule of lenity, which resolves ambiguities in criminal laws in favor of the less-severe construction, is irrelevant here given the lack of ambiguity in the first place with respect to the proscribed activity.

Furthermore, regardless of whether (c)(2) applies to Trump’s behavior, other federal criminal statutes would apply to such conduct in pending proceedings, provided that remaining statutory requirements are satisfied. Those statutes criminalize obstruction of pending judicial and grand jury proceedings; obstruction of pending agency and congressional proceedings; and witness tampering.

In sum, given the breadth of (c)(2) and other obstruction statutes, an argument that the conduct at issue in the Special Counsel’s investigation falls outside the scope of the obstruction laws lacks merit.

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Volume 2.15

Prebuttal II: Response to Possible Constitutional Defenses
(pp. 168-182)

By Harry Litman

Although the President has broad authority under Article II to direct criminal investigations, that authority coexists with Congress’s Article I power to enact laws that protect against corrupt efforts to undermine their functions.

The President’s personal counsel has argued that “the President’s exercise of his constitutional authority … to terminate an FBI Director and to close investigations … cannot constitutionally constitute obstruction of justice.”

As a preliminary matter, the obstruction statutes don’t require a “clear statement” in order to apply to the President. Those statutes raise no separation of powers questions were it to be applied to the President, since the Constitution does not authorize the President to engage in obstruction of justice. Nor is it tenable to adopt an unconventional meaning of a statutory term—such as “corruptly”–only when applied to the President

Turning to the separation of powers analysis that the President’s argument engages, the Supreme Court’s case law prescribes a balancing test for resolution of potential conflicts according to separation-of-powers principles.

The first prong of the balancing test is the degree to which applying obstruction-of-justice statutes to presidential actions affects the President’s ability to carry out his Article II responsibilities. The answer with respect to corrupt influence of witness testimony is not at all: the President has no more right than other citizens to impede official proceedings in that manner.

A different analysis applies to the President’s action in curtailing criminal investigations or prosecutions, or removing law enforcement officials, because those actions involve the exercise of executive discretion which Congress may not supplant. Yet the obstruction -of-justice statutes do not aggrandize power in Congress or usurp executive authority. Instead, those statutes impose a discrete limitation on conduct only when it is taken with the “corrupt” intent to obstruct justice.

The same is true of the President’s broad but not unfettered authority to remove Executive Branch officials involved in the execution of the laws. The removal of inferior officers need not necessarily be at will for the President to fulfill his constitutionally assigned role in managing the Executive Branch. Where the Constitution permits Congress to impose a good-cause limitation on the removal of an Executive Branch officer, it equally should permit Congress to bar removal for the corrupt purpose of obstructing justice.

The final step in the constitutional balancing process is to assess whether the separation- of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article II functions. In the case of the obstruction-of-justice statutes, Congress has the authority to impose the limited restrictions contained in those statutes on the President’s official conduct to protect the integrity of important functions of other branches of government, including Congress’s own proceedings, grand jury investigations, and federal criminal trials. What’s more, the concept of “faithful execution” in Article II connotes the use of the President’s power in the interest of the public, not in the office holder’s personal interests. Accordingly, a general ban on corrupt action does not unduly intrude on the President’s responsibility to faithfully execute the laws of the land.

The impeachment clause does not provide a sufficient remedy because it would result only in the removal of a President from office, and not address the underlying culpability of the conduct or serve the purposes of the criminal law.

Several safeguards would prevent an investigation into whether the President violated the obstruction statutes from chilling the performance of his Art II duties. These include the existence of settled legal standards, the presumption of regularity in prosecutorial actions, and the existence of evidentiary limitations on probing the President’s motives. And historical experience confirms that no impermissible chill should exist. Finally, the “corruptly” requirement sets a demanding standard.

Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding for the purpose of protecting the President’s financial interests.

In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings.

There is also no reason to believe that investigations, let alone prosecutions, would occur except in highly unusual circumstances when a credible factual basis exists to believe that obstruction occurred. While the Justice Department’s Office of Legal Counsel opinion leaves room for possible prosecution of a former President by a successor Administration, there are political checks against initiating a baseless investigation or prosecution of a former President.

Finally, history provides no reason to believe that any asserted chilling effect justifies exempting the President from the obstruction laws. As a historical matter, Presidents have very seldom been the subjects of grand jury investigations. And it is rarer still for circumstances to raise even the possibility of a corrupt personal motive for arguably obstructive action through the President’s use of official power.

In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person-including the President-accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law” (citing Supreme Court cases including Clinton v. Jones and United States v. Nixon).

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Epilogue

By George T. Conway III

Four hundred and forty-eight pages. Two thousand, three hundred and seventy-five footnotes. About 16,500 lines of text, and roughly 200,000 words. And downloaded, the Justice Department reports, nearly 800 million times.

With all the exposure it received, and given its manifest importance, you might have thought that more people would have read some or all of the Mueller report. But it seems that few have, including many members of Congress. No doubt for some, the size of the report and the sprawling nature of its subject has much to do with that. Which is why we assembled this remarkable team to summarize it all here.

The summaries distill the report to a manageable size; even so, the report’s sprawling nature is made clear. But the report’s ultimate significance can be boiled down even further—to an essence that every citizen should understand, and, ultimately, one that speaks to the obligations and duties of a president of the United States.

That essence is this. In 2016, the United States was attacked. Not its ships or its soldiers, and not with missiles or bombs. Our democracy was attacked, by a hostile foreign government, through the use of technology, lies, and deception. In “sweeping and systematic fashion,” the report tells us, the Russian government interfered in an American presidential election, seeking to affect its result, and to undermine public confidence in our politics. Whether the attack did the former will be debated for a long time, but it certainly did the latter, and all patriotic Americans ought to agree: We must do everything we can to see that it never happens again.

To that end, it was the job of the executive branch, led by the President—first President Barack Obama, and then President Donald Trump—to find out exactly what happened. America’s intelligence agencies all agreed, and still do: The Russians did interfere. In particular, they tried to help Trump and hurt candidate Hillary Clinton. The question was, exactly what did the Russians do, and how did they do it?

That was the core of the job that former FBI Director Robert Mueller was assigned—to conduct a counterintelligence investigation. To be sure, his mandate as special counsel was broader, and included a prosecutorial focus: If he uncovered crimes, he could charge them. And in particular, given some unusual links between some in the Trump Campaign and agents of Russia—including a campaign manager with financial ties to a Russian oligarch and Russian-backed Ukrainians, and a foreign policy advisor whom a court found to be an “agent of a foreign power,” namely Russia—Special Counsel Mueller’s job was also to find out the extent of those links. (The report, while finding no chargeable criminal conspiracy involving Trump campaign aides and the Russians, and not addressing the nonlegal concept of “collusion,” in the end found many more such links.)

For his part, the job of the President was to protect the nation. That meant allowing the investigation to proceed to its rightful conclusion, indeed supporting it, and letting the chips falling where they may.

But Trump didn’t see it that way. From the outset, he looked at the investigation in terms of how it affected him personally, and not in terms of how it impacted the country. From the outset, he tried to affect its outcome.

Ironically, his effort made the investigation more about himself than it ever had to be. Trump fired an FBI director because the FBI director wouldn’t make a public statement Trump wanted about his status in the investigation—and then bragged about the firing to, of all people, the foreign minister of the Russian Federation and its ambassador to the United States.

The President relentlessly attacked the investigation over the course of two years. And he tried to sharply curtail it, and even kill it altogether. Repeatedly. The President particularly hated that it made it seem he hadn’t actually won the great election victory of which he liked to boast.

The President tried to fire the special counsel. He directed his White House counsel to tell the acting attorney general that the special counsel could not serve because of a contrived, nonexistent conflict of interest, and thus had to go. The White House counsel, putting the law and the nation’s interests above the President’s personal interests, refused, packed up his office, and threatened to resign.

The President tried to get the attorney general, who had recused himself from the investigation, to unrecuse himself, so that the attorney general could get rid of the special counsel. Trump repeatedly and personally urged the attorney general to reverse his recusal, a recusal recommended by ethics lawyers, but the attorney general, likewise putting the law and the nation’s interests above the president’s personal interests, refused.

Trump urged a political ally, a former campaign aide not in the government, to surreptitiously tell the attorney general that the investigation should be limited to future election interference only. Trump brutally attacked the attorney general on Twitter, and in the press, for recusing himself.

The President also tried to affect the cooperation and testimony of witnesses. Through public statements, for example, Trump encouraged a former campaign manager, on trial for fraud, to refuse to cooperate with the government that the president himself heads. Making matters worse, Trump’s conduct toward witnesses raised the specter of an abuse of his official powers: If he and his personal lawyers didn’t outright dangle pardons to witnesses, they came very close.

The President did much more than this, but all of this is more than enough: He committed the crime of obstructing justice—multiple times. The report doesn’t specifically draw this conclusion, but it goes through the legal analysis step by step, and the result, at least for several of the incidents the report describes, is clear. Trump’s conduct satisfies the three essential elements of obstruction: (1) an obstructive act, meaning anything that could impede the course of justice; (2) a nexus, meaning a temporal, causal, or logical connection, to a pending or contemplated or official proceeding; and (3) corrupt intent.

It doesn’t matter that the investigation may have gone on unimpeded—the statute actually refers to, and thus explicitly covers, “attempts” to “obstruct[], influence[], or impede[]” a proceeding. It also doesn’t help Trump that Article II of the Constitution gives him the power to hire and fire executive officials, and to exercise executive powers, including the power to decide what to investigate and prosecute. This is because the Constitution doesn’t give a president the power to exercise those powers “corruptly” to obstruct justice, which is what the statute, by its terms, prohibits.

And the President did just that. He certainly acted corruptly. He wanted to impede and end an investigation for his own personal reasons, not for the benefit of the nation. Officials around him knew it, which is why they refused to do his bidding, and even grew so alarmed they consulted personal counsel apparently for fear that Trump was potentially putting them into personal legal jeopardy. And Trump’s own behavior betrayed that even knew he was acting corruptly. Why else, for example, would Trump enlist a private intermediary to deliver a secret threatening oral message to the attorney general of the United States? Why else would he castigate a White House lawyer for having taken notes about what he had asked to the lawyer to do?

Indeed, the report shows that Trump even obstructed justice about obstructing justice. When the media reported that he had asked his White House counsel to take steps to get rid of Mueller, Trump tried to get the counsel to lie about it. The counsel refused. Not only that, Trump tried to get the counsel to create a false document about it. The counsel refused to do that as well. Still, trying to get a witness to adopt a false story, or to create a false record, about a matter under investigation, constitutes classic obstruction. Trump brazenly did both.

Yet, in the end, the ultimate importance of the Mueller report doesn’t stem from whether it shows specific elements of a particular subsection of the Criminal Code, even one prohibiting obstruction, have been satisfied. To be sure, for the President of the United States—sworn by oath to take care that the nation’s laws are faithfully executed—to commit a crime, and a federal crime at that, is awful. And for him to commit a crime that involves an attempt to pervert justice is absolutely reprehensible.

But there is actually more at stake here, something far more fundamental. The people of the United States of America have the right to expect far more of a president than merely that he not be provably a criminal. They have the right to expect of a president what the Framers expected—and what the Constitution demands.

The Framers understood the presidency—not just the presidency, but all public offices, and especially the presidency—to be a fiduciary position, a position of trust. As one recent scholarly work has put it, the “original design”—the “vision of the framers”—was that the President “is supposed to act like a fiduciary.” As illustrated by a trustee of a trust, a classic example of a fiduciary, a fiduciary must subordinate his interests to those of the beneficiaries he is called upon to serve. If he or she doesn’t do that, then on a sufficient showing, an appropriate authority—historically, a court of equity—could remove the trustee.

In the case of a president, the trust is the nation’s federal government, and the beneficiaries are its people. The President is called upon to “pursue the public interest in a good faith republican fashion rather than pursuing his self-interest.” In particular, given his constitutional duty to faithfully execute the laws, the President “must diligently and steadily execute Congress’s commands” as embodied in federal law. The special counsel’s report shows Trump disregarded that duty—indeed, that he showed contempt for it almost whenever he could. Called upon to protect the nation against an attack from a foreign power, he acted principally to protect himself. Indeed, although it is not in the report, Trump, sitting beside the principal perpetrator of this attack just a few weeks ago, effectively mocked his solemn duties to the nation before the world.

The Framers laid out the standard by which the President’s compliance with his fiduciary obligations must be judged—as well as who must do the judging. The standard is “high crimes and misdemeanors.” That term was not meant merely to incorporate the criminal statute books. It is a legal term of art, packing in centuries of Anglo-American parliamentary history. At its core, as another scholar has explained, “the phrase denotes breaches of fiduciary duties” by public officials. And the Framers charged the Congress of the United States with enforcing that standard.

If the Mueller report demonstrates one thing, it is that President Trump utterly failed to carry out his duties under the Constitution—that indeed, he shamelessly abjured them. It is time for members of Congress to do their duties and to hold the President to account.

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Appendix: Additional Writings by Our Experts

General

Kate Brannen, Moments in Mueller’s Testimony You Might Have Missed, Just Security, July 26, 2019

Kristen Eichensehr, Cyberattack Attribution and the Virtues of Decentralization, Just Security, July 3, 2019

Joshua A Geltzer, Decoding What Barr Really Said About Letting the Public See the Mueller Report, Just Security, January 16, 2019

Ryan Goodman, A Side-by-Side Comparison of Barr’s vs Mueller’s Statements about Special Counsel Report, Just Security, June 5, 2019

Elie Honig, William Barr Threw His Credibility in the Gutter, CNN, April 21, 2019

Elie Honig, Mueller’s Message:  Congress, It’s Your Turn, CNN, May 29, 2019

Harry Litman, Five Things We Learned from Mueller’s First Round of Questioning, Washington Post,  July 24, 2019

Harry Litman, Mueller’s Greatest Failing is Trump’s Greatest Triumph, Washington Post, July 23, 2019

Harry Litman, William Barr is Making Trump’s Obsession His Own, Washington Post,  July 24, 2019

Harry Litman, Trump’s Case for Executive Privilege is Strained at Best, Washington Post,  May 8, 2019

Harry Litman, Mueller Probe Laid Bare Grave Institutional Failures, Washington Post,  April 18, 2019

Harry Litman, If Congress Wants Unredacted Mueller Report, Here’s How to Get It,Washington Post,  April 16, 2019

Harry Litman, William Barr’s Testimony Was a Terrible Self-Inflicted Wound, Washington Post,  April 12, 2019

Renato Mariotti, William Barr Has Some Explaining To Do, Politico Magazine, March 24, 2019

Renato Mariotti, How Trump Could Be Prosecuted After the White House, Politico Magazine, June 6, 2019

Barbara McQuade, No Red Line: Follow the Money, ACS Blog, July 27, 2017

Barbara McQuade, What to Know About the Shadowy Nunes Memo, Detroit Free Press, February 5, 2018

Barbara McQuade, Will Trump Pardon Manafort? President Must Weight the Risks, Detroit Free Press, March 16, 2018

Barbara McQuade, Michael Flynn Wasn’t Railroaded He Just Played Himself, The Daily Beast, December 18, 2018

Barbara McQuade, Mueller’s Seething Message: This Isn’t a Hoax, This is a Crime, The Daily Beast, May 30, 2019

Barbara McQuade, William Barr Delivers Chilling Message to FBI for Trump, The Daily Beast, May 15, 2019

Barbara McQuade and Joyce Vance, Mueller’s Report May Be Completed, But His Work Isn’t Done And That’s What We Told Congress, NBCTHINK, June 18, 2019

Barbara McQuade and Joyce Vance, Mueller Report: Breaking Down the Biggest Myths, Time, July 8, 2019

Barbara McQuade, Robert Mueller Testimony on Trump and Russia: Devastating Facts That Point to Impeachment, USA Today, July 24, 2019

Barbara McQuade, Men are from Mars, Prosecutors are from Venus,, ACS Blog, July 24, 2019

Asha Rangappa, What Happens Next with the Mueller Report?, TIME, May 3, 2019

Mimi Rocah, Robert Mueller’s Congressional Testimony Matters, Here’s Why, NBCNewscom June 29, 2019

Joyce White Vance, Time, Why the Mueller Report Shouldn’t Be the Final Word on Trump, Russia and Obstruction of Justice, TIME, April 19, 2019

Joyce White Vance, If Only We Had Heard From Robert Mueller Before William Barr’s Spin, USA Today May 30, 2019

Joyce White Vance, This Might Be the Most Important Exchange in the Mueller Testimony, Time, July 25, 2019

Andy Wright and Just Security, Q&A on House-Justice Dept Showdown Over Release of Unredacted Mueller Report and Contempt of Congress, Just Security, May 8, 2019

Andy Wright, Can Congress Subpoena Trump to Testify?, Just Security, November 27, 2018

Volume I: Russian Interference and the Trump Campaign

Joshua Geltzer and Ryan Goodman, Mueller Hints at a National-Security Nightmare, New York Times, April 19, 2019

Ryan Goodman, Guide to the Mueller Report’s Findings on “Collusion,” Just Security, April 29, 2019

Ryan Goodman, Testimony to Senate Judiciary Committee on Election Interference, June 12, 2018

Barbara McQuade, Mueller Exposed Trump’s Biggest Betrayal, New York Magazine, April 22, 2019

Alex Finley, Asha Rangappa, and John Sipher, Collusion Doesn’t Have to Be Criminal to be an Ongoing Threat, Just Security, December 15, 2017

Asha Rangappa, Trump’s Moscow Deal is Exactly What the Framers Worried About, Politico, December 9, 2018

Asha Rangappa, The FBI Can’t Neutralize a National Security Threat if the President is the Threat, The Washington Post, January 13, 2019

Asha Rangappa, How Barr and Trump Use a Russian Disinformation Tactic, The New York Times, April 19, 2019

Paul Seamus Ryan, The Smoking Gun for Donald Trump Jr and the Trump Campaign Committee, Just Security, July 13, 2017

Paul Seamus Ryan, Trump Campaign in Legal Jeopardy Over Manafort’s Sharing Data with Russian Agent, Just Security, January 10, 2019

Paul Seamus Ryan, Roger Stone Indictment Implicates Trump Campaign in Election Law Violations, Just Security, January 25, 2019

Volume II: Obstruction of Justice

Jennifer Daskal, Trump Tried To Obstruct Justice But He Was Too Inept To Do It, The Washington Post, April 19, 2019

Ryan Goodman, Mueller’s Message: The Obstruction That Nearly Halted Criminal Case Against Russians, Just Security, May 29, 2019

Ryan Goodman and John T. Nelson, Mueller Hearing Risks Narrowing the Range of Impeachable Offenses, Just Security, July 23, 2019

Ryan Goodman and Alex Potcovaru, All the President’s Lawyers: A Chart of Misconduct and Possible Crimes Revealed by Mueller Report, Just Security, May 14, 2019

Neal Katyal and Joshua A Geltzer, Barr Tried To Exonerate Trump That’s Not How the Special Counsel Rules Work, The Washington Post, April 19, 2019

Renato Mariotti, The Obstruction Case Against Trump That Barr Tried To Hide, Politico Magazine, April 19, 2019

Barbara McQuade, Testimony to House Judiciary Committee Hearing on the Mueller Report, June 10, 2019

Barbara McQuade, Not Mere Process Crimes, False Statements Prosecutions are Serious, Just Security, December 20, 2018

Barbara McQuade, How President Trump’s Comments on ‘Flipping’ Witnesses Undermine Law Enforcement, Lawfare, September 1, 2018

Barbara McQuade, Barr Sounds More and More Like Trump’s Roy Cohn, The Daily Beast, April 10, 2019

Barbara McQuade, Mueller Report Offers Road Map on Obstruction Despite Barr, Congress May Use It, USA Today, April 20, 2019

Barbara McQuade, Forget Roy Cohn Future Presidents Will Ask ‘Where’s My Bill Barr?’, The Daily Beast, April 20, 2019

Barbara McQuade, Did Trump and His Team Successfully Obstruct Mueller’s Investigation?, Just Security, June 25, 2019

Asha Rangappa, The Forgotten Reason Congress Needs to See the Mueller Report, Politico, Politico, April 9, 2019

Mimi Rocah and Renato Mariotti, If Trump Weren’t President, He Would Already Be Charged, The Daily Beast, April 28, 2019

Mimi Rocah and Elie Honig, Republican Attempts to Defend Trump and Barr’s ‘No Obstruction’ Decree Are Pathetic, USA Today, June 12, 2019

Mimi Rocah & Elie Honig Manafort’s Choices: Work With Mueller, Wish for a Trump Pardon, or Die in Prison, Daily Beast August 18, 2018

Joyce White Vance, Testimony to House Judiciary Committee Hearing on the Mueller Report, June 10, 2019

Return to Table of Contents

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As cyber operations by both states heat up, non-governmental actors may play pivotal roles, not just as potential victims and collateral damage from states’ actions, but also as accusers of states. Non-governmental actors have attributed previous cyberactivities to Iranian-government linked actors and played an important role in investigating the Stuxnet attack on Iranian nuclear centrifuges. As I discuss in an essay published last week in the American Journal of International Law Unbound, non-governmental parties play an important role in the current decentralized system of publicly attributing cyberattacks to states.

An Uptick in Attributions 

After years of handwringing about whether attribution of cyberattacks was possible, both governmental and non-governmental parties have publicly attributed cyberattacks to states in recent years. In February 2013, Mandiant—now part of the cybersecurity company FireEye—made a splash by publishing a detailed report accusing Unit 61398 of China’s People’s Liberation Army (PLA) of hacking 141 companies. The United States followed over a year later by indicting five PLA members for hacking U.S. companies to steal intellectual property. The last two years saw a significant uptick in governments attributing cyberattacks to other governments, including coordinated attributions by the United States, United Kingdom, and other allies of the WannaCry ransomware to North Korea and of attacks on chemical weapons investigators and antidoping authorities to Russia.

But more consistent than governmental attributions have been public attributions by non-governmental institutions, including companies, like FireEye and Crowdstrike, and other entities, including the Citizen Lab at the University of Toronto and the Electronic Frontier Foundation.

Differences between Governmental and Non-Governmental Attributions

As my essay details, non-governmental attributions differ from their governmental counterparts in several ways.

1. Non-governmental attributions tend to be faster. Crowdstrike, for example, publicly attributed the 2016 hack of the Democratic National Committee to Russia months before the U.S. government did.
2. Because governments are often unwilling to disclose intelligence sources and methods, non-governmental attributions are often more detailed than government accusations. Non-governmental attributions typically provide indicators of compromise and other technical information that enable security professionals to take defensive actions on their own systems.
3. Non-governmental actors have different incentives than governments, so they have outed a broader range of governments and addressed a wider variety of cyberattacks. Governmental attributions often focus on disruptive attacks, like WannaCry, or intellectual property theft. But non-governmental attributions, like those by Citizen Lab, have also unmasked cyberespionage operations with human rights implications. Non-governmental actors have also attributed cyberattacks in circumstances, like the Office of Personnel Management breach, where governments, perhaps for diplomatic, security, or political reasons, have chosen to keep silent.
4. Non-governmental attributions may have different motivations than governmental ones. Especially for companies that publish attributions, publicly outing state-sponsored attacks is good for business, demonstrating the companies’ skills and sparking positive press coverage.
5. The consequences of publicly attributing a state-sponsored cyberattack differ based on the nature of the attributor. Governments face pressure to combine the attribution with responsive actions, whether indictments, sanctions, cyber operations, or even kinetic responses (if the initial cyberattack amounted to an armed attack). Non-governmental attributors aren’t responsible for such follow up.

The proliferation of non-governmental attributions carries with it some obvious risks. For example, a company launching an accusation against a government may spark diplomatic consequences—consequences that will be largely borne by the company’s home government (often the United States)—which could disrupt ongoing negotiations or other priorities. The detailed nature of many non-governmental attributions could also set expectations for the amount and kind of evidence governments should put forth, and governments may have difficulty meeting those expectations without compromising intelligence sources and methods.

At the same time, non-governmental attributions also offer some clear benefits. Prominent among them is greater transparency about what states are doing in cyberspace. This transparency comes from the faster, more detailed, and more diverse non-governmental attributions.

The Underappreciated Virtues of Decentralization

Several proposals in recent years have suggested centralizing attribution of state-sponsored cyberattacks in a new international entity. For example, the Atlantic Council has proposed a states-only council to do both attribution of cyberattacks and adjudication of related interstate disputes. Microsoft has suggested a multistakeholder body, including both states and non-governmental experts, modeled on the International Atomic Energy Agency. And researchers at the RAND Corporation have proposed a “Global Cyber Attribution Consortium” that, in contrast to the Atlantic Council proposal, would exclude governments entirely.

While these proposals have significant appeal, the differing features of governmental and non-governmental attributions highlighted above suggest some virtues in decentralization, and reasons to preserve a role for a multiplicity of attributors even alongside a future attribution entity.

To give just one example, having multiple and different kinds of attributors can capture the benefits of both speed and credibility, with some attributors publicizing attributions comparatively quickly and others over time adding their confirmations (or debunking earlier inaccurate attributions). The attributions of the DNC hack to Russia unfolded in this gradual, calibrated way: Crowdstrike attributed the intrusion to Russia in a blog post in June 2016; other researchers confirmed the attribution within weeks; the U.S. government confirmed the attribution in a statement in October and with economic sanctions (and other responses) in December 2016; Special Counsel Robert Mueller indicted Russian intelligence officers for the hacking in July 2018; and in October 2018, Australia,New Zealand, and the United Kingdom piled on with attributions of the DNC hack to Russia.

*          *          *

Cyber intrusions are already playing a significant role in the unfolding situation between the United States and Iran. Whether the respective governments choose to publicize the cyber-related aspects of their tense relations or not, non-governmental actors will be monitoring and quite likely publicizing both governments’ operations.

The full AJIL Unbound symposium on cyber attribution is available here, and in addition to my essay, it includes contributions from Monica Hakimi, William C. Banks, Berenice Boutin, Lorraine Finlay & Christian Payne, and Chimène I. Keitner.

IMAGE: A laptop displays a message after being infected by a ransomware as part of a worldwide cyberattack on June 27, 2017. The global ransomware cyberattack hit more than 200,000 victims in more than 150 countries. (Photo by ROB ENGELAAR/AFP/Getty Images)

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In response to the passage of the national emergency resolution, Trump immediately tweeted “VETO!” and followed up with a formal veto. He is expected to veto the Yemen resolution too. The conflicts between Congress and the President over these resolutions tee up an important question: what do we do with vetoed bills?

The Constitution’s bicameralism and presentment requirements mean that the resolutions cannot be binding law without presidential concurrence. Yet, it is also deeply unsatisfying to say they are nullities, irrelevant to the ongoing separation of powers struggles between the legislature and executive. After all, a majority vote of both houses of Congress has a significant democratic pedigree: such votes are all that is required from the legislature to create supreme U.S. law (so long as the President agrees).

Here’s a possible solution: a Youngstown canon. When Congress passes a bill or resolution by a majority of both houses and the act is prevented from becoming law by a presidential veto, then the expressed congressional opposition to the President’s view should be used to narrowly construe the statutory or constitutional authority the President is claiming when that authority is ambiguous. Doing so respects Congress’s clearly expressed position, while also complying with the Constitution, as interpreted by the Supreme Court in INS v. Chadha.

A Youngstown Canon

The canon draws on Justice Jackson’s famous tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer. In Youngstown, Jackson posited that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Jackson defined three categories. In Category 1, “the President acts pursuant to an express or implied authorization of Congress, [and] his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Category 2 involves a “zone of twilight” where “the President acts in absence of either a congressional grant or denial of authority, [and] he can only rely upon his own independent powers.” In Category 3, “the President takes measures incompatible with the expressed or implied will of Congress, [and] his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

The vetoed joint resolutions come close to Category 3, but not quite. As a formal matter, there is an awkwardness to treating a congressional expression of opposition that is not binding law as equivalent to congressional action that the Constitution instructs would be binding: a resolution passed with a supermajority of both houses of Congress over the President’s veto (like the War Powers Resolution itself). In the recent joint resolutions, Congress hasn’t succeeded in perfecting its opposition to the President by passing a statute because of the President’s veto and the lack of supermajorities in Congress. The House on Tuesday failed to override Trump’s veto of the termination of the national emergency.

The basic intuition of Category 3 survives, however, in the proposed Youngstown canon. Judges, executive branch lawyers, and commentators should consider Congress’s clearly expressed opposition to presidential policy by narrowly construing the underlying sources of authority on which the executive is relying when those sources are ambiguous. In the national emergency context, that would mean narrowly construing the authority granted to the President by the National Emergencies Act, and in the Yemen conflict context, that would mean narrowly construing the President’s constitutional power to use force unilaterally.

The Case for the Youngstown Canon

The proposed Youngstown canon provides a way to give some effect to congressional actions in defense of the separation of powers, while also complying with Supreme Court precedent. In INS v. Chadha in 1983, the Supreme Court invalidated a legislative veto, explaining that the “legislative power of the Federal Government” can only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure”—namely, the bicameralism and presentment requirements in Article I of the Constitution. The reasoning of Chadhahas been understood to invalidate numerous legislative vetoes that Congress included in myriad statutes. Significantly, both the National Emergencies Act and the War Powers Resolution, as Congress initially drafted and adopted them, included legislative vetoes.

After Chadha, Congress has been forced to rely instead on joint resolutions, which are subject to bicameralism and presentment (and thus to presidential veto). The proposed canon complies with Chadha because it does not purport to treat the vetoed bills as binding law. Rather, it uses the vetoed bills as an interpretive gloss on the underlying statute or constitutional provisions from which the President claims power.

The justification for applying the Youngstown canon may be particularly strong in cases where Congress is attempting to respond to the disruption caused by Chadha. In the National Emergencies Act, for example, Congress intended to police its delegation to the President by preserving the ability to rein in the President though a procedure that was not subject to presidential veto. The Supreme Court upset this expectation in Chadha. Using the Youngstown canon to take into account Congress’s later attempts via joint resolution to restrain the President keeps faith with the intent of Congress in passing the Act not to delegate unlimited power. In other circumstances, including questions of constitutional power, theYoungstown canon may contribute to a historical gloss or congressional acquiescence inquiry, helping to make clear, for example, that Congress has not acquiesced in or approved of a particular claim of presidential power.

Notably, the Supreme Court has relied on less apposite congressional action in identifying congressional authorization to put the President in Category 1 of Youngstown. In Dames & Moore v. Regan in 1981, the Supreme Court considered the validity of presidential actions related to the end of the Iran Hostage crisis, including whether the President had authority to suspend claims against Iran that were pending in U.S. courts. The Court concluded that although two statutes that the President cited as authority did not authorize the suspension of the claims, they were nonetheless relevant “in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case.” If statutes in the general vicinity of a claimed presidential power, but not directly on point, can render a President in Youngstown Category 1, then vetoed bills that express clear congressional opposition to a specific claimed presidential authority should at least be relevant to construing the scope of that authority when it is otherwise ambiguous.

The Youngstown canon could have immediate effect in the various lawsuits brought to challenge the national emergency declaration and anticipated border wall. Other commentators have suggested ways that congressional opposition could have indirect or atmospheric effects on the lawsuits, including, for example, helping to allay concerns that judges might have about political backlash for ruling against the President. The Youngstown canon is a more direct way to account for Congress’s actions. It can also serve as a counterpoint to the Trump Administration’s anticipated claims that Congress’s partial funding of “border fencing” in a budget deal to end the government shutdown signifies congressional support for broader border wall construction.

Taking Congress’s views into account in the war powers context is a bigger lift. The issue is unlikely to end up in court—or at least to be decided on the merits by a court—which leaves executive branch lawyers as the most likely interpreters of the scope of the President’s authority to continue the involvement of U.S. armed forces in hostilities in Yemen. Nonetheless, those lawyers also have a duty to uphold the Constitution, not just to serve their client, and taking into account Congress’s opposition to the President’s claim of war powers is consistent with that responsibility.

Building on my prior work on Youngstown, I am exploring other potential applications and implications of the Youngstown canon in a new project. The canon could apply far beyond statutory schemes disrupted by Chadha, and judges’ use of it could incentivize greater congressional action to protect its institutional prerogatives against presidential power grabs. The border wall and Yemen cases are not the only situations where the Youngstown canon would have force, but they’re surely a good start.

IMAGE: WASHINGTON, DC – MARCH 15: U.S. President Donald Trump holds an executive veto, his first as president, in the Oval Office of the White House March 15, 2019 in Washington, DC. President Trump vetoed the congressional resolution that blocks his national emergency declaration on the southern border. (Photo by Alex Wong/Getty Images)

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