By Suzann Thompson
The Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volume II, discusses laws concerning obstruction of justice and the evidence needed to prove it. A person who takes substantial steps to hide their own or anyone else’s role in some wrongdoing is committing obstruction of justice. People obstruct justice to avoid responsibility or embarrassment.
By the spring of 2017, the FBI had opened an inquiry into Russian meddling in the 2016 presidential election. The U.S. House and Senate intelligence committees and Senate Judiciary Committee also were looking into Russian interference. (Vol. I, p. 8) President Donald Trump worried that this would cause people to question the legitimacy of his presidency.
The Obama Administration placed economic sanctions on Russia in retaliation for Russian interference in the election. Russia did not react to the situation as expected, in part because incoming National Security Advisor Michael Flynn phoned Russian Ambassador Sergey Kislyak in December 2016, requesting “that Russia not escalate the situation.” (Vol. I, pp. 168-171)
On January 12, 2017, a newspaper article reported Flynn and Kislyak’s communications. Citing Russia’s unusually calm response to U.S. sanctions, the reporter noted the timing of Flynn’s call to Kislyak, and wondered if Flynn had tried to undercut the sanctions.
President-Elect Trump was upset about the newspaper article and let Flynn know. Flynn asked his deputy K. T. McFarland to tell the newspaper that he never spoke to Kislyak about sanctions. She did.
Two weeks later, Sally Yates, then Acting Attorney General, told White House Counsel Don McGahn about Flynn’s lies. She emphasized that the Russians knew Flynn lied and could compromise him. McGahn informed the President.
The President identified FBI Director James Comey as the person who might help him deal with the situation, so he invited Comey to dinner on January 27. The President talked about Comey’s future and said he expected loyalty from Comey.
Flynn resigned on February 13. The next day, at lunch with New Jersey Governor Chris Christie, President Trump expressed relief that Flynn was gone. “Now that we fired Flynn, the Russia thing is over,” he said. (Vol. II, p. 38)
That afternoon, Comey and other officials briefed the President on homeland security. The President dismissed everyone but Comey, and said, “I hope you can see your way clear to letting this go, to letting Flynn go.” (Vol II, p. 40)
The Special Counsel’s Office analyzed the President’s reaction to the Flynn investigation, using the framework of obstruction-of-justice law. The law requires a prosecutor to prove the “obstructive act, nexus to a proceeding, and intent.” (Vol. II, p. 15)
Obstructive Act: The President asked Comey to “let this go,” meaning he wanted Comey to drop the investigation into Michael Flynn’s activities. His goal was to hinder the FBI from examining Flynn’s questionable or illegal behavior.
Nexus or Connection to a Proceeding: McGahn informed the President that Flynn probably violated the law. By asking Comey to “let this go,” Trump hoped to stop any judicial proceeding relating to Flynn’s possible illegal conduct.
Intent: The President wanted investigations into and media coverage of “the Russia thing” to stop. Trump didn’t want anyone to think his presidency was illegitimate.
FBI Director Comey confirmed the FBI’s Russia investigation on March 20, 2007, but did not name any specific person under investigation. This did not stop anyone from speculating which individuals, including the President, might be under investigation.
President Trump wanted the Department of Justice to say that he was not under investigation. He contacted the Director of National Intelligence and the National Security Agency Director, asking them to state publicly that he had no ties to Russia. Against advice from McGahn, the President contacted Comey and told him “We need to get that fact out” that the President was not personally under investigation. (Vol. II, p. 58)
Analysis: The President’s requests to officials to make public statements that he had no links to Russia and had done nothing wrong, was an obstructive act. He knew the FBI was conducting a Russia investigation and that the FBI would explore whether crimes were committed, which provides the nexus to a judicial proceeding.
The President’s intent was to stop any discussion of his links to Russia. He thought the investigation made his foreign relations efforts with Russia more difficult. He didn’t want people to think Russia helped him win the election.
The Report has much more detail about these instances of obstruction of justice. Please read it or listen to it for yourself.