Report on the Investigation into Russian Interference in the 2016 Presidential Election – Volume 2

This episode covers the “Introduction to Volume 2,” pages 1 to 2, from Volume 2 of the “Report on the Investigation into Russian Interference in the 2016 Presidential Election.” This volume provides details toward whether the President had obstructed justice in connection with the FBI’s Russia-related investigations.

Music by Lee Rosevere

This episode covers the “Executive Summary to Volume 2,” pages 3 to 8, from Volume 2 of the “Report on the Investigation into Russian Interference in the 2016 Presidential Election.” The executive summary provides an overview of the investigation’s focus on a series of actions by the President related to the Russian-interference investigations, and an overview of the constitutional issues raised by the Special Counsel.

Executive Summary to Volume II (0:58)

1. Factual results of the obstruction investigation (1:16)
2. The Campaign’s response to reports about Russian support for Trump (1:23)
   1. Conduct involving FBI Director Comey and Michael Flynn (2:17)
   2. The President’s reaction to the continuing Russia investigation (3:47)
   3. The President’s termination of Comey (5:11)
   4. The appointment of a Special Counsel and efforts to remove him (6:30)
   5. Efforts to curtail the Special Counsel’s investigation (7:56)
   6. Efforts to prevent public disclosure of evidence (9:19)
   7. Further efforts to have the Attorney General take control of the investigation (10:19)
   8. Efforts to have McGahn deny that the President had ordered him to have the Special Counsel removed (11:17)
   9. Conduct towards Flynn, Manafort, and Stone (12:12)
   10. Conduct involving Michael Cohen (13:18)
   11. Overarching factual issues (14:47)
3. Statutory and Constitutional defenses (17:18)
   1. Statutory defenses (17:35)
   2. Constitutional defenses (18:27)
4. Conclusion (21:01)

Music by Lee Rosevere

This section explains the basic elements that are common to most of the relevant obstruction statutes and provides definitions relevant to events discussed in Section II relating to potential issues of obstruction of justice. This episode covers the “Background Legal and Evidentiary Principles,” pages 9 to 14, from Volume 2 of the “Report on the Investigation into Russian Interference in the 2016 Presidential Election.”

Background Legal and Evidentiary Principles (0:27)

1. Legal Framework of Obstruction of Justice (0:32)
   1. Obstructive act (2:01)
   2. Nexus to a pending or contemplated official proceeding (2:36)
   3. Corruptly (4:24)
   4. Witness tampering (4:43)
   5. Attempts and endeavors (6:14)
2. Investigative and Evidentiary Considerations (7:20)

Music by Lee Rosevere

Part 1 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, from pages 15-24, first provides and introduction to the section and then offers an overview of how Russia became an issue in the 2016 presidential campaign. It then details, in four subsections, how Trump and his campaign responded to these issues.

II. Factual Results of the Obstruction Investigation (1:23)

II.A. The Campaign’s Response to Reports About Russian Support for Trump (3:14)

1. Press Reports Allege Links Between the Trump Campaign and Russia (4:15)
2. The Trump Campaign Reacts to WikiLeaks’s Release of Hacked Emails (5:36)
3. The Trump Campaign Reacts to Allegations That Russia was Seeking to Aid Candidate Trump (8:04)
4. After the Election, Trump Continues to Deny Any Contacts or Connections with Russia or That Russia Aided his Election (12:23)

Music by Lee Rosevere

Part 2 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, from pages 24-48, offers evidence surrounding Michael Flynn’s false statements about his conversations with the Russian Ambassador and the resulting FBI investigation. It provides details on President Trump’s interactions with FBI Director Comey when Comey said the President asked for his loyalty.

The President’s Conduct Concerning the Investigation of Michael Flynn Evidence (0:08)

1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak (1:28)
2. President-Elect Trump is Briefed on the Intelligence Community’s Assessment of Russian Interference in the Election and Congress Opens Election Interference Investigations (5:54)
3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Administration Officials, the Media, and the FBI (8:31)
4. DOJ Officials Notify the White House of Their Concerns About Flynn (11:41)
5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump has Dinner with FBI Director Comey (14:04)
6. Flynn’s Resignation (18:32)
7. The President Discusses Flynn with FBI Director Comey (21:52)
8. The Media Raises Questions About the President’s Delay in Terminating Flynn (25:14)
9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn’s Discussions with Kislyak (26:38) 

Analysis (29:16)

1. Obstructive act (29:25)
2. Nexus to a proceeding (33:32)
3. Intent (34:50)

Music by Lee Rosevere

Part 3 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 48-62, documents the days following the confirmation of the FBI’s investigation into Russian interference and the President’s reaction and the importance he placed on getting the word out that he wasn’t personally under investigation. 

The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation (0:10)

1. Attorney General Sessions Recuses From the Russia Investigation (1:02)
2. FBI Director Comey Publicly Confirms the Existence of the Russia Investigation in Testimony Before HPSCI (6:26)
3. The President Asks Intelligence Community Leaders to Make Public Statements that he had No Connection to Russia (11:43)
4. The President Asks Comey to “Lift the Cloud” Created by the Russia Investigation (16:42)

Analysis (20:15)

1. Obstructive act (20:28)
2. Nexus to a proceeding (21:50)
3. Intent (22:26)

Music by Lee Rosevere

Part 4 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 62-77, provides the details surrounding the President’s decision to fire the FBI Director and the circumstances surrounding his request for Comey’s “loyalty.”

Events Leading Up To and Surrounding the Termination of FBI Director Comey (1:00)

1. Comey Testifies Before the Senate Judiciary Committee and Declines to Answer Questions About Whether the President is Under Investigation (2:30)
2. The President Makes the Decision to Terminate Comey (5:45)

Analysis (21:25)

1. Obstructive act (21:33)
2. Nexus to a proceeding (23:44)
3. Intent (25:29)

Music by Lee Rosevere

Part 5 of 12 from Section II. Clean version. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 77-90, documents the reaction of the President when he heard the Special Counsel had been appointed, his efforts to point out conflicts of interest, and steps McGahn took when he felt he had no choice but to resign his position in the administration.

Note: This section contains explicit language. This is the clean version made available through most podcast outlets, so that it can continue to be available as widely as possible. The explicit version is below.

The President’s Efforts to Remove the Special Counsel (0:40)

1. The Appointment of the Special Counsel and the President’s Reaction (1:58)
2. The President Asserts that the Special Counsel has Conflicts of Interest (5:55)
3. The Press Reports that the President is Being Investigated for Obstruction of Justice and the President Directs the White House Counsel to Have the Special Counsel Removed (11:38)

Analysis (17:50)

1. Obstructive act (18:00)
2. Nexus to a proceeding (21:37)
3. Intent (23:22)

Music by Lee Rosevere

Part 5 of 12 from Section II. Explicit version. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 77-90, documents the reaction of the President when he heard the Special Counsel had been appointed, his efforts to point out conflicts of interest, and steps McGahn took when he felt he had no choice but to resign his position in the administration.

Note: This section contains explicit language.

The President’s Efforts to Remove the Special Counsel (0:40)

1. The Appointment of the Special Counsel and the President’s Reaction (1:58)
2. The President Asserts that the Special Counsel has Conflicts of Interest (5:55)
3. The Press Reports that the President is Being Investigated for Obstruction of Justice and the President Directs the White House Counsel to Have the Special Counsel Removed (11:38)

Analysis (17:50)

1. Obstructive act (18:00)
2. Nexus to a proceeding (21:37)
3. Intent (23:22)

Music by Lee Rosevere

Part 6 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 90-98, discusses direction from the President, intended for Attorney General Sessions, to deliver a speech announcing limitations on the Special Counsel to limit the scope to investigating election meddling for future elections only.

The President’s Efforts to Curtail the Special Counsel Investigation (0:10)

1. The President Asks Corey Lewandowski to Deliver a Message to Sessions to Curtail the Special Counsel Investigation (1:00)
2. The President Follows Up with Lewandowski (3:47)
3. The President Publicly Criticizes Sessions in a New York Times Interview (5:50)
4. The President Orders Priebus to Demand Sessions’s Resignation (7:24)

Analysis (11:46)

1. Obstructive act (12:02)
2. Nexus to a proceeding (13:12)
3. Intent (13:48)

Music by Lee Rosevere

Part 7 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 98-107, focuses primarily on the communications strategy around the June 9, 2016 meeting at Trump Tower, including the President’s involvement around crafting Trump Jr.’s response and avoiding a proactive strategy recommended by Hope Hicks.

The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials (0:08)

1. The President Learns About the Existence of Emails Concerning the June 9, 2016 Trump Tower Meeting (0:51)
2. The President Directs Communications Staff Not to Publicly Disclose Information About the June 9 Meeting (3:32)
3. The President Directs Trump Jr.’s Response to Press Inquiries About the June 9 Meeting (6:04)
4. The Media Reports on the June 9, 2016 Meeting (10:15)

Analysis (14:04)

1. Obstructive act (14:15)
2. Nexus to a proceeding (16:35)
3. Intent (17:15) 

Music by Lee Rosevere

Part 8 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 107-113, provides additional evidence regarding the President’s efforts to have Jeff Sessions unrecuse and take over the Russia investigation.

The President’s Further Efforts to Have the Attorney General Take Over the Investigation (0:08)

1. The President Again Seeks to Have Sessions Reverse his Recusal (0:31)
2. Additional Efforts to Have Sessions Unrecuse or Direct Investigations Covered by his Recusal (3:16)

Analysis (9:00)

1. Obstructive act (9:14)
2. Nexus to a proceeding (10:51)
3. Intent (11:27)

Music by Lee Rosevere

Part 9 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 113-120, analyzes the President’s efforts to have McGahn deny that he had been ordered to have the Special Counsel removed.

Note: This section contains explicit language. This is the clean version made available through most podcast outlets, so that it can continue to be available as widely as possible. The explicit version is posted below.

The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel (0:37)

1. The Press Reports that the President Tried to Fire the Special Counsel (1:46)
2. The President Seeks to Have McGahn Dispute the Press Reports (3:09) 

Analysis (8:50)

1. Obstructive act (9:01)
2. Nexus to a proceeding (12:48)
3. Intent (14:54)

Music by Lee Rosevere

Part 9 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 113-120, analyzes the President’s efforts to have McGahn deny that he had been ordered to have the Special Counsel removed.

Note: This section contains explicit language.

The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel (0:09)

1. The Press Reports that the President Tried to Fire the Special Counsel (1:17)
2. The President Seeks to Have McGahn Dispute the Press Reports (2:39)

Analysis (8:20)

1. Obstructive act (8:31)
2. Nexus to a proceeding (12:18)
3. Intent (14:24)

Music by Lee Rosevere

Part 10 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 120-134, details the President’s conduct toward Michael Flynn, Paul Manafort and Roger Stone.

The President’s Conduct Towards Flynn, Manafort, and Stone (0:58)

1. Conduct Directed at Michael Flynn (1:51)
2. Conduct Directed at Paul Manafort (4:46)
3. Conduct Directed at Roger Stone (15:12)

Analysis (19:44)

1. Obstructive act (19:55)
2. Nexus to a proceeding (23:58)
3. Intent (24:23)

Music by Lee Rosevere

Part 11 of 12 from Section II. Factual Results of the Obstruction Investigation. This subsection of Volume 2, pages 134-156, details the President’s conduct toward Michael Cohen with regard to Cohen’s involvement in the Trump Tower Moscow Project, his statements to attempt to distance Trump from Russia, and conduct by the President once Cohen began cooperating with the Special Council.

The President’s Conduct Involving Michael Cohen (1:00)

1. Candidate Trump’s Awareness of and Involvement in the Trump Tower Moscow Project (2:52)
2. Cohen Determines to Adhere to a “Party Line” Distancing Candidate Trump From Russia (8:57)
3. Cohen Submits False Statements to Congress Minimizing the Trump Tower Moscow Project in Accordance with the Party Line (10:43)
4. The President Sends Messages of Support to Cohen (20:42)
5. The President’s Conduct After Cohen Began Cooperating with the Government (26:44)

Analysis (37:07)

1. Obstructive act (37:16)
   1. Whether the President or others aided or participated in Cohen’s false statements to Congress (37:38)
   2. Whether the President took actions that would have the natural tendency to prevent Cohen from providing truthful information to the government (40:35)
2. Nexus to a proceeding (42:47)
3. Intent (43:08)

Music by Lee Rosevere

Part 12 of 12 from Section II. Factual Results of the Obstruction Investigation. The final subsection of Volume 2, pages 156-159, states that the President’s actions appear to divide into two distinct phases that show a possible shift in the President’s motives around the time of firing Comey. It also states that the President’ s efforts to influence the investigation were mostly unsuccessful, and was largely due to people surrounding the President declining to carry out orders.

Music by Lee Rosevere

Part 1 of 2 from Section III. Legal Defenses to the Application of Obstruction-of-Justice Statutes to the President. This subsection of Volume 2, pages 159-168, provides legal background of the obstruction-of-justice statute most readily applicable to the Special Counsel’s investigation: Section 1512(c)(2) of 18 U.S.C.

Legal Defenses to the Application of Obstruction-of-Justice Statutes to the President (0:29)

Statutory Defenses to the Application of Obstruction-Of-Justice Provisions to the Conduct Under Investigation (2:41)

1. The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive Acts (4:39)
2. Judicial Decisions Support a Broad Reading of Section 1512(c)(2) (7:58)
3. The Legislative History of Section 1512(c)(2) Does Not Justify Narrowing Its Text (12:11)
4. General Principles of Statutory Construction Do Not Suggest That Section 1512(c)(2) is Inapplicable to the Conduct in this Investigation (15:28)
5. Other Obstruction Statutes Might Apply to the Conduct in this Investigation (19:42)

Music by Lee Rosevere

Part 2 of 2 from Section III. Legal Defenses to the Application of Obstruction-of-Justice Statutes to the President. This subsection of Volume 2, pages 168-182, explores how constitutional tension is reconciled through separation-of-powers analysis when the President’s official actions come into conflict with the prohibitions in the obstruction-of-justice statutes.

Constitutional Defenses to Applying Obstruction-Of-Justice Statutes to Presidential Conduct (0:09)

1. The Requirement of a Clear Statement to Apply Statutes to Presidential Conduct Does Not Limit the Obstruction Statutes (1:56)
2. Separation-of-Powers Principles Support the Conclusion that Congress May Validly Prohibit Corrupt Obstructive Acts Carried Out Through the President’s Official Powers (7:29)
   1. The Supreme Court’s Separation-of-Powers Balancing Test Applies In This Context (8:24)
   2. The Effect of Obstruction-of-Justice Statutes on the President’s Capacity to Perform His Article II Responsibilities is Limited (11:54)
   3. Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source (18:02)
3. Ascertaining Whether the President Violated the Obstruction Statutes Would Not Chill his Performance of his Article II Duties (22:01)

Music by Lee Rosevere

The final subsection of Volume 2 is merely one paragraph on page 182 from the report and restates what was in the Introduction and Executive Summary, “While this report does not conclude that the President committed a crime, it also does not exonerate him.”

The podcast closes out with thanks to our Executive Producers and Associate Producers who initially helped to support this effort as well as others who helped provide value to this effort in some way.

Music by Lee Rosevere