After the release of Special Counsel Robert Mueller‘s Russia report, most of the oxygen and ink has been spent analyzing Mueller’s obstruction volume as it pertained to President Donald Trump and whether anyone other than the president would have been charged with a crime. What hasn’t received nearly as much attention were the details in the report about Trump attorneys’ conduct over the course of the investigation. That changed on Tuesday.
The Just Security legal blog put together a “comprehensive account of the Mueller Report’s references to potential wrongdoing by President Trump’s personal lawyers,” even though the Mueller Report, in many instances, did not name the attorneys. This was apparently done by matching up the dates in the Mueller Report with publicly searchable information on which lawyers were representing Trump on what matters, and when. NYU Law Professor Ryan Goodman and Special Assistant to the Executive Director of the Reiss Center on Law and Security at NYU School of Law Alex Potcovaru compiled the document we are about to discuss.
Some familiar names and incidents popped up throughout the nine-page chart. Trump attorneys, both current and former, who were mentioned: Michael Cohen, Rudy Giuliani, Marc Kasowitz, Jay Sekulow, John Dowd — even Jane Raskin and Marty Raskin. The events described by Mueller and contextualized by Just Security occurred between June 13. 2017 and Nov. 28, 2018.
The key events mostly had to do with: the lawyers’ involvement in drafting Cohen’s admitted lie to Congress about the Trump Tower Moscow venture known as the “Moscow Project”; asking attorneys for fired National Security Adviser Michael Flynn (also an admitted felon) for a “heads up” on information “implicating” Trump; communication with former White House counsel Don McGahn; and pardon dangling to the likes of former Trump campaign chairman Paul Manafort (a doubly-convicted felon also facing state charges). (Note: any page numbers we mention from here on out refer to pages from Vol. II of the Mueller Report.)
What Was That Trump Tower Meeting All About?
Remember when Jay Sekulow said Trump played no role in Donald Trump Jr.‘s statement about the purpose of the infamous 2016 Trump Tower meeting with a Russian lawyer for “dirt” on Hillary Clinton, and White House Press Secretary Sarah Sanders later contradicted this? Mueller did.
The claim: Trump lawyer falsely said Trump played no role in Trump Jr.’s statement about Trump Tower meeting.
Mueller’s facts, pages 104-105:
On July 11, 2017, Trump Jr. posted redacted images of the emails setting up the June 9 meeting on Twitter; the New York Times reported that he did so “[a]fter being told that The Times was about to publish the content of the emails.” Later that day, the media reported that the President had been personally involved in preparing Trump Jr. ‘ s initial statement to the New Y ork Times that had claimed the meeting “primarily” concerned “a program about the adoption of Russian children.” Over the next several days, the President’s personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr.’s statement (emphasis ours). After consulting with the President on the issue, White House Press Secretary Sarah Sanders told the media that the President “certainly didn’t dictate” the statement, but that “he weighed in, offered suggestions like any father would do.
Mueller included a footnote linking to a Sekulow appearance on CNN, in which Sekulow said, “I wasn’t involved in the statement drafting at all nor was the President.”
“I’m assuming that was between Mr. Donald Trump Jr. and his lawyers. I’m sure his lawyer was involved, that’s how you do it. To put this on the President, I think, is absolutely incorrect,” he said.
Cohen and Kasowitz were also representing Trump at the time.
Moscow Project Statements
You may remember that BuzzFeed News claimed that Mueller would allege that Trump “directed” Cohen to lie to Congress about his business ventures in Russia. The Special Counsel’s Office disputed this after the story spread like wildfire and said it was “inaccurate.” In the end, Mueller did not say that Trump directed the lie, but he did detail what led up to Cohen lying under oath and what happened after it.
Back in the middle of August 2017, Trump’s personal counsel was involved in the drafting of Cohen’s statement because there was a joint defense agreement (JDA) in place. As Law&Crime noted before, “In or around July 2017, the Trump Organization entered into an agreement with Mr. Cohen under which the Trump Organization agreed to indemnify Mr. Cohen and, separately, to pay for his attorneys’ fees and costs in connection with Mr. Cohen’s representation and defense in the [Mueller] Investigations and other matters.”
Trump stopped paying Cohen’s legal bills in June 2018, the month before Cohen decided to turn on Trump and “put [his] family and country first.” Cohen currently resides at the Otisville Correctional Facility in New York.
The claims: 1) Trump lawyer told Cohen the JDA would protect him if he stayed “on message”; 2) lawyers part of the JDA edited Cohen’s admitted lie to Congress, and removed a line saying “The building project led me to make limited contacts with Russian government officials.”
Mueller’s facts, pages 139-141:
In the months leading up to his congressional testimony, Cohen frequently spoke with the President’s personal counsel. Cohen said that in those conversations the President’s personal counsel would sometimes say that he had just been with the President. Cohen recalled that the President’s personal counsel told him the JDA was working well together and assured him that there was nothing there and if they stayed on message the investigations would come to an end soon. At that time, Cohen’s legal bills were being paid by the Trump Organization, and Cohen was told not to worry because the investigations would be over by summer or fall of 2017. Cohen said that the President’s personal counsel also conveyed that, as part of the JDA, Cohen was protected, which he would not be if he “went rogue.” Cohen recalled that the President’s personal counsel reminded him that “the President loves you” and told him that if he stayed on message, the President had his back. In August 2017, Cohen began drafting a statement about Trump Tower Moscow to submit to Congress along with his document production. The final version of the statement contained several false statements about the project…. … Cohen’s statement was circulated in advance to, and edited by, members of the JDA. Before the statement was finalized, early drafts contained a sentence stating, “The building project led me to make limited contacts with Russian government officials.” In the final version of the statement, that line was deleted. Cohen thought he was told that it was a decision of the JOA to take out that sentence, and he did not push back on the deletion. Cohen recalled that he told the President’s personal counsel that he would not contest a decision of the JDA.
Cohen, Dowd, Kasowitz and Sekulow were reportedly all representing Trump at the time. The Mueller Report did not specify who the counsel referred to here. When Cohen admitted that he lied, he said that he had done so to be “consistent with Individual-1’s political messaging and to be loyal to Individual-1 [Trump].”
Another claim related to this, dating back to Aug. 2017, page 141: Sekulow reviewed, made changes to Cohen’s written statement to Congress.
Cohen also testified in Congress that the President’s counsel reviewed and edited the statement. Hearing on Issues Related to Trump Organization Before the House Oversight and Reform Committee, 16th Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 24-25) (testimony by Michael Cohen). Because of concerns about the common interest privilege, we did not obtain or review all drafts of Cohen’s statement. Based on the drafts that were released through this Office’s filter process, it appears that the substance of the four principal false statements described above were contained in an early draft prepared by Cohen and his counsel. P-SC0-0000003680 and P-SC0-0000003687 (8/16/ 17 Email and Attachment, Cohen’s counsel to Cohen). (Vol. 2, p. 141, n. 971)
Regarding this, Cohen identified Sekulow by name during testimony before Congress.
A third and fourth claim related to the Moscow Project statement: In Aug. 2017, Trump lawyers tell Cohen what not to say in Russia statement; Trump lawyers determine mentioning attempt to set up a meeting with Vladimir Putin was not relevant.
Mueller’s facts, pages 141-143:
Between August 18, 2017, when the statement was in an initial draft stage, and August 28, 2017, when the statement was submitted to Congress, phone records reflect that Cohen spoke with the President’s personal counsel almost daily. On August 27, 2017, the day before Cohen submitted the statement to Congress, Cohen and the President’s personal counsel had numerous contacts by phone, including calls lasting three, four, six, eleven, and eighteen minutes. Cohen recalled telling the President’s personal counsel, who did not have first-hand knowledge of the project, that there was more detail on Trump Tower Moscow that was not in the statement, including that there were more communications with Russia and more communications with candidate Trump than the statement reflected. Cohen stated that the President’s personal counsel responded that it was not necessary to elaborate or include those details because the project did not progress and that Cohen should keep his statement short and “tight” and the matter would soon come to an end. Cohen recalled that the President’s personal counsel said “his client” appreciated Cohen, that Cohen should stay on message and not contradict the President, that there was no need to muddy the water, and that it was time to move on. Cohen said he agreed because it was what he was expected to do.
Cohen anticipated he might be asked questions about the proposed Trump-Putin meeting when he testified before Congress because he had talked about the potential meeting on Sean Hannity’s radio show. Cohen recalled explaining to the President’s personal counsel the “whole story” of the attempt to set up a meeting between Trump and Putin and Trump’s role in it. Cohen recalled that he and the President’s personal counsel talked about keeping Trump out of the narrative, and the President’s personal counsel told Cohen the story was not relevant and should not be included in his statement to Congress.
Dowd, Sekulow and Cohen’s names came up in connection with the above-described events.
Two more claims: Cohen spoke with Trump’s personal counsel “immediately after” he lied to Congress on Oct. 24 and Oct. 25, 2017; Trump was happy about Cohen’s statement to Congress.
Mueller’s facts, pages 144 and 155 respectively:
On October 24 and 25, 2017, Cohen testified before Congress and repeated the false statements he had included in his written statement about Trump Tower Moscow. Phone records show that Cohen spoke with the President’s personal counsel immediately after his testimony on both days.
Cohen recalled that on September 20, 2017, the day after he released to the public his opening remarks to Congress—which said the project “was terminated in January of 2016″— the President’s personal counsel told him the President was pleased with what Cohen had said about Trump Tower Moscow.
Sekulow and Dowd were representing Trump at the time.
Flynn, Manafort, McGahn and More Cohen
Mueller also detailed communications between Trump lawyers and Team Flynn, Trump lawyers and Team Manafort, and Trump lawyers and Don McGahn’s legal team.
The claim: Trump’s personal counsel asked Flynn’s lawyer for “heads up” if any information was going to implicate Trump in wrongdoing.
Mueller’s facts, page 6:
On or shortly after Nov. 24, 2017 Personal counsel asks Flynn attorney for “heads up” on info implicating the President; says refusal to discuss reflects “hostility” and promises to convey to Trump. Cohen Dowd Sekulow After Flynn withdrew from a joint defense agreement [JDA] with the President and began cooperating with the government, the President’s personal counsel left a message for Flynn’s attorneys reminding them of the President’s warm feelings towards Flynn, which he said “still remains,” and asking for a “heads up” if Flynn knew “information that implicates the President.” When Flynn’s counsel reiterated that Flynn could no longer share information pursuant to a joint defense agreement, the President’s personal counsel said he would make sure that the President knew that Flynn’s actions reflected “hostility” toward the President.
The claim: In Jan. 2018, Manafort told his former associate Rick Gates (who pleaded guilty in the Mueller probe and has cooperated in multiple ongoing investigations) that Trump’s personal counsel assured him they would be “taken care of.”
This, of course, goes back to the open discussion of a possible Manafort pardon. Trump and Manafort, as with Cohen, did have had a joint defense agreement in place; it was known that their lawyers were communicating about what Mueller was up to.
Mueller’s facts, page 123:
In Jan. 2018, Manafort tells Gates that Trump’s personal counsel said they will be “taken care of,” and tells Gates it was stupid to plead. Cohen Dowd Sekulow Manafort told Gates that he had talked to the President’s personal counsel and they were “going to take care of us.” Manafort told Gates it was stupid to plead, saying that he had been in touch with the President’s personal counsel and repeating that they should “sit tight” and “we’ll be taken care of.” Gates asked Manafort outright if anyone mentioned pardons and Manafort said no one used that word.
Cohen, Dowd and Sekulow were representing Trump at the time.
The claim: In Jan. 2018, Trump lawyers asked Don McGahn to deny that he had tried to fire Mueller.
Mueller’s facts, page 114:
Personal counsel conveys Trump request to McGahn’s to make statement denying Trump had asked McGahn to fire Mueller. Cohen Dowd Sekulow On January 26, 2018, the President’s personal counsel called McGahn’s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest. McGahn’s attorney spoke with McGahn about that request and then called the President’s personal counsel to relay that McGahn would not make a statement. McGahn’s attorney informed the President’s personal counsel that the Times story was accurate in reporting that the President wanted the Special Counsel removed. Accordingly, McGahn’s attorney said, although the article was inaccurate in some other respects, McGahn could not comply with the President’s request to dispute the story.
Notably, McGahn told Trump’s attorneys that he could not dispute a New York Times report saying that McGahn threatened to quit after Trump asked him to get Mueller fired.
The Mueller report said that McGahn was on the receiving end of orders from the president, on two occasions, to go Deputy Attorney General Rod Rosenstein and ask that Mueller be fired.
McGahn disobeyed Trump’s orders because he was afraid that a “Saturday Night Massacre” was a real threat. Mueller said that Trump’s attempts to influence the investigation were “mostly unsuccessful” precisely because White House staffers, McGahn included, “declined to carry out orders.”
Trump has denied directing McGahn to get Mueller canned.
“As has been incorrectly reported by the Fake News Media, I never told then White House Counsel Don McGahn to fire Robert Mueller, even though I had the legal right to do so. If I wanted to fire Mueller, I didn’t need McGahn to do it, I could have done it myself,” he said.
McGahn has resisted a subpoena from Congress to testify and may be held in contempt as soon as a week from now.
The claim: After April 2018 FBI raids, Trump attorneys assured Cohen that he would be taken care of and floated the possibility of a pardon.
Mueller’s facts, page 147:
Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down.
Again, Cohen, Dowd and Sekulow were representing Trump at the time.
The claim: On June 15 and 17, 2018, Giuliani publicly dangled Manafort pardons after Manafort was jailed pre-trial in Virginia.
Mueller’s facts, pages 124 and 127:
Immediately following the revocation of Manafort’s bail, the President’s personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?” In a CNN interview two days later, Giuliani said, “I guess I should clarify this once and for all. . . . The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation …. When it’s over, hey, he’s the president of the United States. He retains his pardon power. Nobody is taking that away from him.” Giuliani rejected the suggestion that his and the President’s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were “certainly not intended that way.”
Two months later (August 23, 2018), Giuliani confirmed that Trump had asked for advice about pardons for Manafort and others:
The next day, Giuliani told the Washington Post that the President had asked his lawyers for advice on the possibility of a pardon for Manafort and other aides, and had been counseled against considering a pardon until the investigation concluded. (Vol. 2, p. 127) 18) Nov. 27, 2018 Giuliani says Trump upset about treatment of Manafort.
Giuliani was, of course, representing Trump at the time.
If you’ve read this far, you’re probably asking what’s going to come of all of this?
New York University Law School Professor and legal ethics expert Stephen Gillers, who happens to have penned an article for Just Security discussing Trump attorneys’ potential liability, told Law&Crime that lawyer discipline is a greater risk than criminal prosecution, especially while Trump is still in office.
“The risk of criminal prosecution during the Trump administration is probably nil,” Gillers said. “Thereafter, it will depend on what an investigation reveals. The risk of lawyer discipline is higher because it’s a state, not a federal function.”
Gillers argued noted in his article on the subject that obstruction, as is always the case, requires proving corrupt intent beyond a reasonable doubt (“knowingly and dishonestly with the specific intent to subvert, impede or obstruct”).
“And if the President’s personal counsel knowingly aided Cohen’s false congressional testimony, they can be equally guilty of lying to Congress. 18 U.S.C. §§1505, 1512, & 1515,” he noted.
But Gillers also pointed out that, beyond criminal legal jeopardy, attorney misconduct is still sanctionable at the state level:
Conduct that obstructs justice can also run afoul of lawyer ethics rules. In New York, for example, where some of the President’s lawyers are admitted, it is a violation to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(d) (also in the rules of other U.S. jurisdictions). Justice is what Mueller was administering through grand jury and court proceedings. Obstructing justice is, of course, “prejudicial to the administration of justice.” It is also a violation of the New York rules for a lawyer to engage in conduct that “adversely reflects” on his or her “fitness.” Rule 8.4(h). The Report’s findings show possible violations of both rules. Pardons are no defense to bar professional discipline.
It was also reported on Tuesday that House Democrats are investigating lawyers connected to Trump and the Trump family.
You can read the chart in full below.
Chart of Mueller Report’s R… by on Scribd
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