Previously undisclosed evidence in the possession of Special Counsel Robert Mueller—including highly confidential White House records and testimony by some of President Trump’s own top aides—provides some of the strongest evidence to date implicating the president of the United States in an obstruction of justice. Several people who have reviewed a portion of this evidence say that, based on what they know, they believe it is now all but inevitable that the special counsel will complete a confidential report presenting evidence that President Trump violated the law. Deputy Attorney General Rod Rosenstein, who oversees the special counsel’s work, would then decide on turning over that report to Congress for the House of Representatives to consider whether to instigate impeachment proceedings.
The central incident in the case that the president obstructed justice was provided by former FBI Director James B. Comey, who testified that Trump pressed Comey, in a private Oval Office meeting on February 14, 2017, to shut down an FBI criminal investigation of Trump’s former national security adviser, Lt. Gen. Michael Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go,” Comey has testified the president told him.
In an effort to convince Mueller that President Trump did not obstruct justice, the president’s attorneys have argued that the president could not have broken the law because the president did not know that Flynn was under criminal investigation when he pressured Comey to go easy on Flynn. In a confidential January 29 letter to the special counsel first reported by The New York Times, two of the president’s attorneys, John Dowd (who no longer represents Trump) and Jay Sekulow, maintained that the president did not obstruct justice because, even though Flynn had been questioned by the FBI, Trump believed that the FBI investigation was over, and that Flynn had been told that he’d been cleared.
On its face, this is a counter-intuitive argument—for if Trump believed that Flynn had been cleared and was no longer under investigation, there would have been no reason for the president to lean on Comey to end the FBI’s investigation—telling Comey that Trump hoped that Comey would be able to “see your way clear to letting this go.” Yet Trump’s attorneys have pursued this line of argument with the special counsel because perjury and obstruction cases depend largely on whether a prosecutor can demonstrate the intent and motivation of the person they want to charge. It’s not enough to prove that the person under investigation attempted to impede an ongoing criminal investigation; the statute requires a prosecutor to prove that the person did so with the corrupt intent to protect either himself or someone else from prosecution.
If, therefore, Trump understood the legal jeopardy that Flynn faced, that would demonstrate such intent—and make for a much stronger case for obstruction against the president. Conversely, if Trump believed that Flynn was no longer under criminal investigation, or had been cleared, the president could not have had corrupt intent. But previously undisclosed evidence indicates just the opposite—that President Trump was fully informed that Flynn was the target of prosecutors.
I have learned that a confidential White House memorandum, which is in the special counsel’s possession, explicitly states that when Trump pressured Comey he had just been told by two of his top aides—his then chief of staff Reince Priebus and his White House counsel Don McGahn—that Flynn was under criminal investigation. This memo, the existence of which I first disclosed in December in Foreign Policy, was, as one source described it to me, “a timeline of events [in the White House] leading up to Flynn’s resignation.” It was dated February 15, 2017, and was prepared by McGahn two days after Flynn’s forced resignation and one day after Trump’s meeting with Comey. As I reported, research for the memo was “primarily conducted by John Eisenberg, the deputy counsel to the president and legal adviser to the National Security Council,” who, in turn, was “assisted by James Burnham, another White House counsel staff member.”
During my reporting, I was allowed to read the memo in its entirety, as well as other, underlying White House records quoted in the memo, such as notes and memos written by McGahn and other senior administration officials. My reporting for this story is also based on interviews with a dozen former and current White House officials, attorneys who have interacted with Mueller’s team of investigators, and witnesses questioned by Mueller’s investigators.
In arguing in their January 29 letter that Trump did not obstruct justice, the president’s attorneys Dowd and Sekulow quoted selectively from this same memo, relying only on a few small portions of it. They also asserted that even if Trump knew there had been an FBI investigation of Flynn, Trump believed that Flynn had been cleared. Full review of the memo flatly contradicts this story.
The memo’s own statement that Trump was indeed told that Flynn was under FBI investigation was, in turn, based in part on contemporaneous notes written by Reince Priebus after discussing the matter with the president, as well as McGahn’s recollections to his staff about what he personally had told Trump, according to other records I was able to review. Moreover, people familiar with the matter have told me that both Priebus and McGahn have confirmed in separate interviews with the special counsel that they had told Trump that Flynn was under investigation by the FBI before he met with Comey.
The sequence of events that led first to the firing of Flynn and subsequently to the president’s pleading his case with Comey began on December 29, 2016. On that day, after Trump had been elected president but not yet taken office, Flynn had several phone conversations with the then Russian ambassador to the United States, Sergey Kislyak. Flynn counseled Kislyak during these conversations not to retaliate against the US for economic sanctions imposed that day against Russia by the outgoing Obama administration. The sanctions were imposed to punish Russia for covertly intervening in the 2016 presidential election with the purpose of helping to defeat Hillary Clinton and helping Trump win.
On January 12, 2017, Washington Post columnist David Ignatius disclosed that US intelligence agencies had intercepted the phone calls, although Ignatius’s sources did not disclose the specifics of what either Flynn or Kislyak said. Vice President Mike Pence was immediately enlisted to defend Flynn. Flynn assured Pence that he never spoke to Kislyak about sanctions, whereupon Pence repeated those denials on Fox News and CBS’s Face the Nation. Flynn was then also questioned by the FBI about the phone calls, but once again denied that he had ever spoken to Kislyak about sanctions.
On January 20, Donald Trump was inaugurated as the forty-fifth president of the United States. On January 24, on only his fourth day in his new post as national security adviser, Michael Flynn was interviewed by FBI agents who were conducting a counterintelligence and criminal investigation of the ties between Trump campaign officials and Russia. (Flynn since pleaded guilty, in December of last year, to federal criminal charges that he lied to the FBI when he denied discussing sanctions with Kislyak. As part of his plea agreement, Flynn agreed to cooperate with the special counsel’s investigation.)
Two days later, Acting Attorney General Sally Yates met with White House counsel Don McGahn. One of the things they discussed was the FBI’s interview of Flynn. The McGahn timeline memorialized what McGahn says Yates told him about Flynn’s FBI interview thus:
Yates… indicated on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had [already] made to… the Vice President.
Yates met with McGahn primarily to warn him that US intelligence agencies had intercepted phone calls between Flynn and Kislyak, and that they had discussed sanctions. Yates pointed out that Vice President Pence, based on assurances he said Flynn had given him, had publicly denied that Flynn had discussed sanctions with Kislyak—something that the Russians knew but Flynn would want to conceal, thus making Flynn “compromised,” she warned, and vulnerable to blackmail. “Mr. McGahn asked me how he [Flynn] did [during his FBI interview],” Yates testified to a Senate Judiciary subcommittee in May 2017. “I specifically declined to answer that,” Yates explained to senators, because of the ongoing criminal investigation.
Later that same day, McGahn briefed the president about what he had learned from Yates, according to confidential White House records and interviews. McGahn apparently made no contemporaneous notes of what he told the president. Reince Priebus was also present for this briefing, according to the same records. The McGahn timeline demonstrates that President Trump was clearly informed during that meeting that Flynn was under criminal investigation by the FBI. Trump directed McGahn to find out more, including any information about the criminal investigation of Flynn, before deciding on a course of action. The McGahn timeline recounts: “Part of [our] concern was a recognition by McGahn that it was unclear from the meeting with Yates whether or not an action could be taken without jeopardizing an ongoing investigation.”
A person with first-hand knowledge told me that during interviews with the special counsel, both McGahn and Priebus confirmed that they had informed Trump during this meeting that Flynn was being investigated by the FBI. Further, according to three current and former administration officials, McGahn also relayed to President Trump that Flynn had told the FBI the same false story he’d earlier told Pence (that Flynn had never spoken to Kislyak about sanctions). Because Trump and McGahn knew of Flynn’s misstatements to the FBI, they would have understood the legal jeopardy Flynn was in: it is a felony to lie to the FBI—precisely the federal criminal charge Flynn would later plead guilty to.
Additionally, my sources say that the special counsel also interviewed the two White House attorneys, John Eisenberg and James Burnham, who helped draft the McGahn memo, in which they, too, concluded that Trump was told that Flynn was under FBI investigation. Both men said that they questioned McGahn while researching the timeline; one of them independently recalled McGahn’s contemporaneously telling the president that Flynn had been interviewed by the FBI. (In October 2017, Burnham left the White House to go to work as senior counsel in the Justice Department’s Civil Division.)
The next day, on January 27, McGahn summoned Yates back to the White House to follow up. According to the testimony Yates gave to the Senate Judiciary committee in May 2017, Yates said that McGahn “was concerned that taking action [against Flynn] might interfere with the FBI investigation.” Yates responded by telling McGahn that “it wouldn’t really be fair of us to tell you this and then expect you to sit on your hands,” in reference to Flynn’s misleading Pence about Flynn’s contacts with Kislyak.
Trump’s knowledge of the criminal investigation of Flynn is central to the special counsel’s obstruction case because of what Trump’s action later that same day, January 27, might reveal about his intent and motivation. It was then that the president called Director Comey and invited him to dinner that evening at the White House. Comey has testified to the Senate Intelligence Committee that he did not understand until he arrived that he and the president would be dining alone. At this dinner, Trump suggested to Comey that his job might not be secure, leading Comey to believe that Trump was attempting to “create some sort of patronage relationship,” something that was very troubling to Comey “given the FBI’s traditionally independent status.” Comey testified that:
A few moments later the president said, “I need loyalty, I expect loyalty.” I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence.
On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.
Priebus then “specifically asked Flynn whether he was interviewed by the FBI,” the timeline says. In response, “Flynn stated that FBI agents met with him to inform him that their investigation was over.” That claim, of course, was a lie. The FBI never told Flynn their investigation of him was over. Shortly thereafter, Vice President Pence, Priebus, and McGahn recommended that Flynn be fired.
On February 13, faced with the prospect of being fired by Trump, Flynn resigned as national security adviser. The next morning, after an Oval Office meeting with the vice president, the attorney general, the deputy CIA director, and other national security and law enforcement officials, the president asked FBI Director Comey to remain behind. Once they were alone, Trump allegedly pressured Comey to shut down the FBI’s investigation of Flynn. Comey has testified that Trump said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy.” The president then repeated: “I hope that you can let this go.”
The next day, McGahn, Eisenberg, and Burnham completed work on their timeline memo of the events leading up to Michael Flynn’s forced resignation. The memo said nothing about the president’s conversation the day before with Comey. The three White House lawyers would later tell the special counsel that Donald Trump had not consulted with them first.
In arguing that the president did nothing wrong, Trump defense attorneys John Dowd and Jay Sekulow, in both informal conversations and later in formal correspondence with the special counsel, relied on the false statements of Flynn to Priebus, McGahn, and Eisenberg that the FBI had closed out their investigation of him. In the attorneys’ reasoning, if Trump had no reason to think that Flynn was under criminal investigation when he allegedly pressured Comey to go easy on Flynn, the president did not obstruct justice. More broadly, Sekulow and Dowd argued in correspondence with the special counsel that the “White House’s understanding” was that “there was no FBI investigation that could conceivably have been impeded” at the time of Trump’s White House meeting with Comey.
But Sekulow and Dowd’s account of these conversations is partial and misleading. In fact, there is no information or evidence that Flynn’s false assertions were ever relayed to the president. (The White House refused to answer questions from me about the president’s version of what he was told during the meeting.) More importantly, even if they were relayed to the president, Flynn should no longer have had any credibility with the president’s aides.
Flynn’s statements that the FBI had cleared him were obviously self-serving and unreliable—made by someone who had just admitted misleading the vice president regarding his conversations with Russia’s ambassador to the US. Indeed, Trump himself said he fired Flynn for misleading the vice president when Flynn resigned. And Trump tweeted last December, the day after Michael Flynn pleaded guilty for lying to investigators, that: “I had to fire General Flynn because he lied to the Vice President and the FBI.”
Aside from McGahn, Eisenberg, and Burnham, the special counsel has interviewed five other attorneys who currently work for the White House counselor or have previously done so, according to administration records. Underscoring just how important these witnesses are, the special counsel has interviewed a total of twenty White House officials; of that number, eight have worked for the White House counsel. Two people familiar with the matter have told me that these witnesses have been asked, among other things: about the McGahn timeline; what McGahn contemporaneously told them regarding his briefings of the president; and more specifically, whether McGahn indicated to them that he had informed the president that Flynn had been interviewed by the FBI and was under federal criminal investigation.
Sources have identified for me two other White House attorneys who have been interviewed by the special counsel. One is Uttam Dhillon, who has served the Trump administration as deputy White House counsel and deputy assistant to the president (on July 2, Dhillon was named by Attorney General Jeff Sessions to be the acting administrator of the Drug Enforcement Administration). Dhillon was a central participant in discussions with the president on whether to fire James Comey as FBI director—with Dhillon advising Trump not to do so. The special counsel has also interviewed Ann Donaldson, who is both the chief of staff to the White House counsel and special counsel to the president. Because so many attorneys working for the White House counsel have been witnesses in the special counsel’s investigation, and because their testimony will clearly be crucial in determining whether the president obstructed justice, Don McGahn took the extraordinary step last summer of recusing his entire staff from advising the president further about the Russia investigation.
The February 15 memo, combined with accounts given to the special counsel by Priebus and McGahn, constitutes the most compelling evidence we yet know of that Donald Trump may have obstructed justice. In an effort to persuade the American people that the president has done nothing wrong, Trump and his supporters have blamed those they identify as their political adversaries—from President Barack Obama to Jim Comey, and including entire institutions such as the FBI and CIA, and an ill-defined “Deep State.” But the most compelling evidence that the president may have obstructed justice appears to come from his own most senior and loyal aides. The greatest threat to his presidency is not from his enemies, real or perceived, but from his allies within the White House.