7. The President Discusses Flynn with FBI Director Corney
On February 14, 2017, the day after Flynn’s resignation, the President had lunch at the White House with New Jersey Governor Chris Christie.215 According to Christie, at one point during the lunch the President said, “Now that we fired Flynn, the Russia thing is over.”216 Christie laughed and responded, “No way.”217 He said, “this Russia thing is far from over” and “[w]e’ll be here on Valentine’s Day 2018 talking about this.”218 The President said, “[w]hat do you mean? Flynn met with the Russians. That was the problem. I fired Flynn. It’s over.”219 Christie recalled responding that based on his experience both as a prosecutor and as someone who had been investigated, firing Flynn would not end the investigation.220 Christie said there was no way to make an investigation shorter, but a lot of ways to make it longer.221 The President asked Christie what he meant, and Christie told the President not to talk about the investigation even if he was frustrated at times.222 Christie also told the President that he would never be able to get rid of Flynn, “like gum on the bottom of your shoe.”223
Towards the end of the lunch, the President brought up Corney and asked if Christie was 225 still friendly with him.224 Christie said he was. The President told Christie to call Corney and tell him that the President “really like[s] him. Tell him he’s part of the team.”226 At the end of the lunch, the President repeated his request that Christie reach out to Comey.227 Christie had no intention of complying with the President’ s request that he contact Comey.228 He thought the President’s request was “nonsensical” and Christie did not want to put Corney in the position of having to receive such a phone call.229 Christie thought it would have been uncomfortable to pass on that message.230
At 4 p.m. that afternoon, the President met with Corney, Sessions, and other officials for a homeland security briefing.231 At the end of the briefing, the President dismissed the other attendees and stated that he wanted to speak to Corney alone.232 Sessions and senior advisor to the President Jared Kushner remained in the Oval Office as other participants left, but the President excused them, repeating that he wanted to speak only with Comey.233 At some point after others had left the Oval Office, Priebus opened the door, but the President sent him away.234
According to Corney’s account of the meeting, once they were alone, the President began the conversation by saying, “I want to talk about Mike Flynn.”235 The President stated that Flynn had not done anything wrong in speaking with the Russians, but had to be terminated because he had misled the Vice President.236 The conversation turned to the topic of leaks of classified information, but the President returned to Flynn, saying “he is a good guy and has been through a lot.”237 The President stated, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”238 Corney agreed that Flynn “is a good guy,” but did not commit to ending the investigation of Flynn.239 Corney testified under oath that he took the President’s statement “as a direction” because of the President’s position and the circumstances of the one-on-one meeting. 240
Shortly after meeting with the President, Corney began drafting a memorandum documenting their conversation.241 Corney also met with his senior leadership team to discuss the President’s request, and they agreed not to inform FBI officials working on the Flynn case of the President’s statements so the officials would not be influenced by the request.242 Corney also asked for a meeting with Sessions and requested that Sessions not leave Corney alone with the President again.243
8. The Media Raises Questions About the President’s Delay in Terminating Flynn
After Flynn was forced to resign, the press raised questions about why the President waited more than two weeks after the DOJ notification to remove Flynn and whether the President had known about Flynn’s contacts with Kislyak before the DOJ notification.244 The press also continued to raise questions about connections between Russ ia and the President’s campaign.245 On February 15, 2017, the President told reporters, “General Flynn is a wonderful man. I think he’s been treated very, very unfairly by the media.”246 On February 16, 2017, the President held a press conference and said that he removed Flynn because Flynn “didn’ t tell the Vice President of the United States the facts, and then he didn’t remember. And that just wasn’ t acceptable to me.”247 The President said he did not direct Flynn to discuss sanctions with Kislyak, but “it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’ s his job.”248 In listing the reasons for terminating Flynn, the President did not say that Flynn had lied to him.249 The President also denied having any connection to Russia, stating, “I have nothing to do with Russia. I told you, I have no deals there. I have no anything.”250 The President also said he “had nothing to do with” WikiLeaks’s publication of information hacked from the Clinton campaign.251
9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn’s Discussions with Kislyak
On February 22, 2017, Priebus and Bannon told McFarland that the President wanted her to resign as Deputy National Security Advisor, but they suggested to her that the Administration could make her the ambassador to Singapore.252 The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256 Priebus understood that McFarland was not comfortable with the President’s request, and he recommended that she talk to attorneys in the White House Counsel’s Office.257
McFarland then reached out to Eisenberg.258 McFarland told him that she had been fired from her job as Deputy National Security Advisor and offered the ambassadorship in Singapore but that the President and Priebus wanted a letter from her denying that the President directed Flynn to discuss sanctions with Kislyak.259 Eisenberg advised McFarland not to write the requested letter.260 As documented by McFarland in a contemporaneous “Memorandum for the Record” that she wrote because she was concerned by the President’s request: “Eisenberg . .. thought the requested email and letter would be a bad idea-from my side because the email would be awkward. Why would I be emailing Priebus to make a statement for the record? But it would also be a bad idea for the President because it looked as if my ambassadorial appointment was in some way a quid pro quo.”261 Later that evening, Priebus stopped by McFarland’ s office and told her not to write the email and to forget he even mentioned it.262
Around the same time, the President asked Priebus to reach out to Flynn and let him know that the President still cared about him.263 Priebus called Flynn and said that he was checking in and that Flynn was an American hero. 264 Priebus thought the President did not want Flynn saying bad things about him.265
On March 31, 2017, following news that Flynn had offered to testify before the FBI and congressional investigators in exchange for immunity, the President tweeted, “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!”266 In late March or early April, the President asked McFarland to pass a message to Flynn telling him the President felt bad for him and that he should stay strong.267
Analysis
In analyzing the President’s conduct related to the Flynn investigation, the following evidence is relevant to the elements of obstruction of justice:
a. Obstructive act. According to Corney’s account of his February 14, 2017 meeting in the Oval Office, the President told him, “I hope you can see your way clear to letting this go, to letting Flynn go …. I hope you can let this go.” In analyzing whether these statements constitute an obstructive act, a threshold question is whether Corney’s account of the interaction is accurate, and, if so, whether the President’s statements had the tendency to impede the administration of justice by shutting down an inquiry that could result in a grand jury investigation and a criminal charge.
After Corney’s account of the President’ s request to “let[] Flynn go” became public, the President publicly disputed several aspects of the story. The President told the New York Times that he did not “shoo other people out of the room” when he talked to Corney and that he did not remember having a one-on-one conversation with Comey.268 The President also publicly denied that he had asked Corney to “let[] Flynn go” or otherwise communicated that Corney should drop the investigation of Flynn.269 In private, the President denied aspects of Corney’s account to White House advisors, but acknowledged to Priebus that he brought Flynn up in the meeting with Corney and stated that Flynn was a good guy.270 Despite those denials, substantial evidence corroborates Corney’s account.
First, Corney wrote a detailed memorandum of his encounter with the President on the same day it occurred. Corney also told senior FBI officials about the meeting with the President that day, and their recollections of what Corney told them at the time are consistent with Corney’s account.271
Second, Corney provided testimony about the President’s request that he ” let[] Flynn go” under oath in congressional proceedings and in interviews with federal investigators subject to penalties for lying under 18 U.S.C. § I 00 l . Corney’s recollections of the encounter have remained consistent over time.
Third, the objective, corroborated circumstances of how the one-on-one meeting came to occur support Corney’s description of the event. Corney recalled that the President cleared the room to speak with Corney alone after a homeland security briefing in the Oval Office, that Kushner and Sessions lingered and had to be shooed out by the President, and that Priebus briefly opened the door during the meeting, prompting the President to wave him away. While the President has publicly denied those details, other Administration officials who were present have confirmed Corney’s account of how he ended up in a one-on-one meeting with the President.272 And the President acknowledged to Priebus and McGahn that he in fact spoke to Corney about Flynn in their one-on-one meeting.
Fourth, the President’s decision to clear the room and, in particular, to exclude the Attorney General from the meeting signals that the President wanted to be alone with Corney, which is consistent with the delivery of a message of the type that Corney recalls, rather than a more innocuous conversation that could have occurred in the presence of the Attorney General.
Finally, Corney’s reaction to the President’s statements is consistent with the President having asked him to “let[] Flynn go.” Corney met with the FBI leadership team, which agreed to keep the President’ s statements closely held and not to inform the team working on the Flynn investigation so that they would not be influenced by the President’ s request. Corney also promptly met with the Attorney General to ask him not to be left alone with the President again, an account verified by Sessions, FBI Chief of Staff James Rybicki, and Jody Hunt, who was then the Attorney General’s chief of staff.
A second question is whether the President’s statements, which were not phrased as a direct order to Corney, could impede or interfere with the FBI’s investigation of Flynn. While the President said he “hope[d]” Corney could “let[] Flynn go,” rather than affirmatively directing him to do so, the circumstances of the conversation show that the President was asking Corney to close the FBl’s investigation into Flynn. First, the President arranged the meeting with Corney so that they would be alone and purposely excluded the Attorney General, which suggests that the President meant to make a request to Corney that he did not want anyone else to hear. Second, because the President is the head of the Executive Branch, when he says that he ” hopes” a subordinate will do something, it is reasonable to expect that the subordinate will do what the President wants. Indeed, the President repeated a version of”let this go” three times, and Corney testified that he understood the President’s statements as a directive, which is corroborated by the way Corney reacted at the time.
b. Nexus to a proceeding. To establish a nexus to a proceeding, it would be necessary to show that the President could reasonably foresee and actually contemplated that the investigation of Flynn was likely to lead to a grand jury investigation or prosecution.
At the time of the President’s one-on-one meeting with Corney, no grand jury subpoenas had been issued as part of the FBI’s investigation into Flynn. But Flynn’s lies to the FBI violated federal criminal law, <Redacted> and resulted in Flynn’s prosecution for violating 18 U .S.C. § 100 I. By the time the President spoke to Corney about Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn’ s statements to senior White House officials about his contacts with Kislyak were not true and that Flynn had told the same version of events to the FBI. McGahn also informed the President that Flynn’ s conduct could violate 18 U.S.C. § l 001. After the Vice President and senior White House officials reviewed the underlying information about Flynn’s calls on February 10, 2017, they believed that Flynn could not have forgotten his conversations with Kislyak and concluded that he had been lying. In addition, the President’s instruction to the FBI Director to “let[] Flynn go” suggests his awareness that Flynn could face criminal exposure for his conduct and was at risk of prosecution.
c. Intent. As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’ s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge. In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance of his calls with Kislyak and said they may have made a difference in Russia’s response, and Flynn recalled talking to Bannon in early January 2017 about how they had successfully ” stopped the train on Russia’s response” to the sanctions. It would have been reasonable for Flynn to have wanted the President to know of his communications with Kislyak because Kislyak told Flynn his request had been received at the highest levels in Russia and that Russia had chosen not to retaliate in response to the request, and the President was pleased by the Russian response, calling it a ” [g]reat move.” And the President never said publicly or internally that Flynn had lied to him about the calls with Kislyak.
But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’ s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017. The evidence also does not establish that Flynn otherwise possessed information damaging to the President that would give the President a personal incentive to end the FBI’ s inquiry into Flynn’ s conduct.
Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.” Flynn’s firing occurred at a time when the media and Congress were raising questions about Russia’s interference in the election and whether members of the President’s campaign had colluded with Russia. Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election. The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before meeting one-on-one with Corney, the President told Christie that firing Flynn would put an end to the Russia inquiries. And after Christie pushed back, telling the President that firing Flynn would not end the Russia investigation, the President asked Christie to reach out to Corney and convey that the President liked him and he was part of “the team.” That afternoon, the President cleared the room and asked Corney to “let[] Flynn go.”
We also sought evidence relevant to assessing whether the President’ s direction to Corney was motivated by sympathy towards Flynn. In public statements the President repeatedly described Flynn as a good person who had been harmed by the Russia investigation, and the President directed advisors to reach out to Flynn to tell him the President “care[d]” about him and felt bad for him. At the same time, multiple senior advisors, including Bannon, Priebus, and Hicks, said that the President had become unhappy with Flynn well before Flynn was forced to resign and that the President was frequently irritated with Flynn. Priebus said he believed the President’s initial reluctance to fire Flynn stemmed not from personal regard, but from concern about the negative press that would be generated by firing the National Security Advisor so early in the Administration. And Priebus indicated that the President’s post-firing expressions of support for Flynn were motivated by the President’s desire to keep Flynn from saying negative things about him.
The way in which the President communicated the request to Corney also is relevant to understanding the President’s intent. When the President first learned about the FBI investigation into Flynn, he told McGahn, Bannon, and Priebus not to discuss the matter with anyone else in the White House. The next day, the President invited Corney for a one-on-one dinner against the advice of an aide who recommended that other White House officials also attend. At the dinner, the President asked Corney for ” loyalty” and, at a different point in the conversation, mentioned that Flynn had judgment issues. When the President met with Corney the day after Flynn’s termination-shortly after being told by Christie that firing Flynn would not end the Russia investigation-the President cleared the room, even excluding the Attorney General, so that he could again speak to Corney alone. The President’s decision to meet one-on-one with Corney contravened the advice of the White House Counsel that the President should not communicate directly with the Department of Justice to avoid any appearance of interfering in law enforcement activities. And the President later denied that he cleared the room and asked Corney to ” let[] Flynn go”-a denial that would have been unnecessary if he believed his request was a proper exercise of prosecutorial discretion.
Finally, the President’s effort to have McFarland write an internal email denying that the President had directed Flynn to discuss sanctions with Kislyak highlights the President’ s concern about being associated with Flynn’s conduct. The evidence does not establish that the President was trying to have McFarland lie. The President’s request, however, was sufficiently irregular that McFarland-who did not know the full extent of Flynn’ s communications with the President and thus could not make the representation the President wanted-felt the need to draft an internal memorandum documenting the President’s request, and Eisenberg was concerned that the request would look like a quid pro quo in exchange for an ambassadorship.
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215 Christie 2/13/19 302, at 2-3; SCR0l2b_000022 (President’s Daily Diary, 2/14/17).
216 Christie 2/13/19 302, at 3.
217 Christie 2/13/19 302, at 3.
218 Christie 2/13/19 302, at 3. Christie said he thought when the President said “the Russia thing” he was referring to not just the investigations but also press coverage about Russia. Christie thought the more important thing was that there was an investigation. Christie 2/13/19 302, at 4.
219 Christie 2/13/19 302, at 3.
220 Christie 2/13/19 302, at 3.
221 Christie 2/13/19 302, at 3. 38
222 Christie 2/13/19 302, at 3-4.
223 Christie 2/13/19 302, at 3. Christie also recalled that during the lunch, Flynn called Kushner, who was at the lunch, and complained about what Spicer had said about Flynn in his press briefing that day. Kushner told Flynn words to the effect of, “You know the President respects you. The President cares about you. I’ll get the President to send out a positive tweet about you later.” Kushner looked at the President when he mentioned the tweet, and the President nodded his assent. Christie 2/13/19 302, at 3. Flynn recalled getting upset at Spicer’s comments in the press conference and calling Kushner to say he did not appreciate the comments. Flynn 1/19/18 302, at 9.
224 Christie 2/13/19 302, at 4.
225 Christie 2/13/19 302, at 4.
226 Christie 2/ 13/19 302, at 4-5.
227 Christie 2/13/19 302, at 5.
228 Christie 2/13/19 302, at 5.
229 Christie 2/13/19 302, at 5.
2300Christie 2/13/19 302, at 5.
231 SCRO I 26_000022 (President’s Daily Diary, 2/14/17); Corney 11/15/17 302, at 9.
232 Corney 11115/17 302, at 1 0; 2/ 14/17 Corney Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4); Priebus I 0/13/17 302, at 18 (confirming that everyone was shooed out “like Corney said” in his June testimony).
233 Corney 11/15/17 302, at 10; Corney 2/14/17 Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). Sessions recalled that the President asked to speak to Corney alone and that Sessions was one of the last to leave the room; he described Corney’s testimony about the events leading up to the private meeting with the President as “pretty accurate.” Sessions 1 / 17/18 302, at 6. Kushner had no recollection of whether the President asked Corney to stay behind. Kushner 4/11/18 302, at 24.
234 Corney 2/ 14/17 Memorandum, at 2; Priebus I 0/13/ 17 302, at 18.
235 Corney 11/15/17 302, at 10; Corney 2/14/17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4).
236 Corney 2/14/ 17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 5).
237 Corney 1 l /15/ 17 302, at IO; Corney 2/14/ 17 Memorandum, at 2; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 5).
238 Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 5); Corney 2/14/17 Memorandum, at 2. Corney said he was highly confident that the words in quotations in his Memorandum documenting this meeting were the exact words used by the President. He said he knew· from the outset of the meeting that he was about to have a conversation of consequence, and he remembered the words used by the President and wrote them down soon after the meeting. Corney 11/1 5/17 302, at 10-11.
239 Corney 11/15/17 302, at IO; Corney 2/14/ 17 Memorandum, at 2.
240 Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 31) (testimony of James B. Corney, former Director of the FBI). Corney further stated, “I mean, this is the president of the United States, with me alone, saying, ‘l hope’ this. I took it as, this is what he wants me to do.” Id.; see also Corney 11/15/17 302, at 10 (Corney took the statement as an order to shut down the Flynn investigation).
241 Corney 11/15/17 302, at 11; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the record of James B. Corney, former Director of the FBI, at 5).
242 Corney 11 / 15/17 302, at 11; Rybicki 6/9/17 302, at 4; Rybicki 6/22/17 302, at 1; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the record of James B. Corney, former Director of the FBI, at 5-6).
243 Corney 11/15/ 17 302, at 11; Rybicki 6/9/17 302, at 4-5; Rybicki 6/22/ 17 302, at 1-2; Sessions 1/17/18 302, at 6 (confirming that later in the week following Corney’s one-on-one meeting with the President in the Oval Office, Corney told the Attorney General that he did not want to be alone with the President); Hunt 2/1/18 302, at 6 (within days of the February 14 Oval Office meeting, Corney told Sessions he did not think it was appropriate for the FBI Director to meet alone with the President); Rybicki 11/21/18 302, at 4 (Rybicki helped to schedule the meeting with Sessions because Corney wanted to talk about his concerns about meeting with the President alone); Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the record of James B. Corney, former Director of the FBI, at 6).
244 See, e.g., Sean Spicer, White House Daily Briefing, C-SPAN (Feb. 14, 2017) (questions from the press included, “if [the President] was notified 17 days ago that Flynn had misled the Vice President, other officials here, and that he was a potential threat to blackmail by the Russians, why would he be kept on for almost three weeks?” and ” Did the President instruct [Flynn] to talk about sanctions with the [Russian ambassador]?”). Priebus recalled that the President initially equivocated on whether to fire Flynn because it would generate negative press to lose his National Security Advisor so early in his term. Priebus 1 /18/ 18 302, at 8.
245 E.g., Sean Sullivan et al., Senators from both parties pledge to deep en probe of Russia and the 2016 election, Washington Post (Feb. 14, 2017); Aaron Blake, 5 times Donald Trump’s team denied contact with Russia, Washington Post (Feb. 15, 2017); Oren Darell, Donald Trump’s ties to Russia go back 30 years, USA Today (Feb. 15, 2017); Pamela Brown et al., Trump aides were in constant touch with senior Russian officials during campaign, CNN (Feb. 15, 2017); Austin Wright, Camey briefs senators amid furor over Trump-Russia ties, Politico (Feb. 17, 2017); Megan Twohey & Scott Shane, A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump Associates, New York Times (Feb. 19, 2017).
246 Remarks by President Trump and Prime Minister Netanyahu ofisrael in Joint Press Conference, White House (Feb. 15, 2017).
247 Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).
248 Remarks by President Trump in Press Conference, White House (Feb. 16, 2017). The President also said that Flynn’s conduct “wasn’t wrong – what he did in terms of the information he saw.” The President said that Flynn was just “doing the job,” and “if anything, he did something right.”
249 Remarks by President Trump in Press Conference, White House (Feb. 16, 2017); Priebus 1/18/18 302, at 9.
250 Remarks by President Trump in Press Conference, White House (Feb. 16, 2017). 251 Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).
252 KTMF _ 00000047 (McFarland 2/26/17 Memorandum for the Record); McFarland 12/22/17 302, at 16-17.
253 See Priebus 1/18/18 302, at 11; see also KTMF _00000048 (McFarland 2/26/17 Memorandum for the Record); McFarland 12/22/17 302, at 17.
254 Priebus 1 I I 8/ 18 302, at 1 1.
255 KTMF _ 00000048 (McFarland 2/ 26/ 17 Memorandum for the Record); McFarland 12/22/17 302, at 17. 4
