You Be the Jury: The Case for Obstruction of Justice, Starring Mike PencePhoto by Jeff Swensen/Getty Politics Features Mike Pence
Last week I examined the obstruction case against sub-doofuses Donald Trump Jr. and Jared Kushner related to the ongoing Trump Tower cover-up. You can check that article out here. This week I’m going to rewind the clock and play some oldies but goldies: Sally Yates; Reince Priebus; Don McGahn; James Comey; and the guest of honor, Vice President Mike Pence.
In fact, I’m going to build an entire obstruction case around one guy: Mike Flynn. And it’s not looking good for VP. (It’s also not looking great for P, but we already knew that.)
First, I’m no lawyer. But I’ve spoken about this investigation with former federal prosecutors, one of whom, Elizabeth de la Vega, worked with Mueller for four years. The following isn’t their projection, it’s my own work, but after seeking their counsel, I feel good enough about my footing to say this is what a federal prosecutor would likely look at to build an obstruction case built around the Comey firing.
It’s surprisingly strong. No? That’s where you come in, dear reader: You’re gonna be the grand jury. Tell me if these guys deserve to be tried by their peers. First, though, I gotta give you some instructions.
But You Can’t Prove It!
First, you’ve got to know what obstruction of justice is. It’s not very well defined. Here’s the actual language of the law:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication… influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
The focus today: Corrupt intent.
First, let’s talk common sense. When it comes to gauging someone’s intent, of course we can’t ever truly know what’s in their heart. The only things we have to go on are what someone has said and done and how they’ve reacted to events. We infer intent like this every day (it’s the only way we can), and that’s what federal grand juries do, too.
The prosecutor’s job is to take proven facts, stack them against one another, and construct a compelling narrative out of them that will convince a jury. There’s no DNA evidence of someone’s truest soul that will prove their intent with scientific certainty, and this is where common sense comes in. Consider the following.
Is your S.O. cheating on you? Did they not come home until late last Thursday? Gave you a weird excuse? Well, that in itself doesn’t mean much. But what if they don’t come home until late three, four times a week? What if some of the explanations are contradictory? What if they smell like they’ve been drinking? Start showering every night they’ve been out late? What if they’re constantly texting but seem like they’re shielding it? What if they’re sexually distant for a few days? For a few weeks? For a few months?
When it comes time to convince a grand jury there’s reason to believe a crime has been committed, context matters. Circumstantial evidence matters. The whole concept, as de la Vega put it, is what matters.
This is why federal judges literally instruct juries to use common sense. They also, so I just learned, instruct juries to give direct evidence and circumstantial evidence equal weight. And we’ve got a shitload. To make it easy for you to skim (as a juror you wouldn’t, but as an American you would), I’ve bolded everything that reinforces corrupt intent.
Letter of the Law
We start with Trump’s original draft of his letter to fire Comey. This got axed before it made it to daylight, but it’s the first hard evidence of Trump’s original intent in writing.
(We also have Trump contradicting himself and basically everyone in the White House on national TV.)
Importantly, though, the letter also ropes in the people who read, responded, and reacted to it. Enter Don McGahn, Kushner, Priebus, and Pence. They all saw the first version of the letter, and all of them but Priebus strongly supported Trump’s decision to fire Comey. One of those names might look unfamiliar: Don McGahn, White House counsel (the lawyer who represents the Office of the President).
When Trump first showed the letter to McGahn, he flipped and blocked him from using it because he thought the contents were “problematic.” This indicates the White House counsel, whose job it is to vet the legality of such things, thought Trump’s original letter suggested criminal intent. (Pro tip: Don’t write angry.)
Mueller might not be able to find out what McGahn actually said to Trump about the letter, but he does know that McGahn found Trump’s letter problematic and blocked it. Mueller can use this fact to help establish that Trump’s intent to fire Comey could have been criminal (see: definition of obstruction).
In fact, McGahn himself supported Trump’s initial decision. Importantly, though, McGahn suggested that Trump scrap the letter and have Sessions and Rosenstein write recommendations first. Obviously those guys didn’t write theirs “first.” Trump did, and McGahn knew it.
McGahn is in the thick of it, but it gets worse from here.
McGahn then reportedly gave copies of his own markup of Trump’s “problematic” letter to Jeff Sessions and Deputy AG Rod Rosenstein before they drafted their recommendations. This suggests he was giving them instructions to cover up the President’s original intent. Already now we have several people implicated in an effort to mask original intent, possibly including Sessions (who had to recuse himself from the Russia investigation) and even Rosenstein.
Oh yeah: Other people implicated here who supported Trump’s decision to fire Comey include Mike Pence (who got a copy of the original letter), Stephen Miller (who wrote the letter with Trump), Jared Kushner, and – ding ding ding! – Ivanka Trump, who spent the weekend before the firing with Trump, Kushner (who urged the firing), and Steven Miller (who drafted Trump’s first memo).
These people might all be witnesses and possibly defendants in an obstruction case.
But what does any of this have to do with Mike Flynn, you ask? Let’s go back to Valentine’s Day.
And don’t forget to keep track of the bold stuff.
A Town Called Hope
After Trump fired Comey in May, we learned Comey wrote several memos documenting a series of interactions he had with Trump that he found bizarre and “troubling.” These memos can also be used to reinforce Trump’s pattern of corrupt intent, and the most relevant ones (that we know about; some are still classified) involve how Trump wanted Comey to treat the case of Mike Flynn. Perhaps the most famous of these asks was on Valentine’s Day, when Trump told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go.” Those words are a major focal point of the investigation, but first let’s back up a few weeks.
On January 27 Trump invited Comey to a private dinner where he told him “I expect loyalty.”
Prosecutors avoid nit-picking semantics because those arguments are designed to erase context and, the defense would hope, put some fuzz on the bigger story. Instead of arguing about what this “expectation” could mean, a prosecutor would show you that this dinner didn’t happen in a vacuum. An array of events that surround the dinner strongly suggest Trump’s request for loyalty was at best an attempt to influence an investigation and at worst a threat.
The day before Trump’s dinner with Comey, acting Attorney General Sally Yates met at the White House with White House Counsel Dan McGahn. Yates called the meeting to tell him that Michael Flynn had lied about his conversations with Sergey Kislyak. The Vice President had then related this same lie to the American people.
After the conversation with Yates, McGahn briefed Donald Trump. A few weeks later Sean Spicer read a White House statement about this:
“Immediately after the Department of Justice notified the White House counsel of the situation, the White House counsel briefed the president and a small group of senior advisors… When the President heard the information as presented by White House Counsel, he instinctively thought that General Flynn did not do anything wrong, and the White House Counsel’s review corroborated that.“
Note here that Sean Spicer was just named a person of interest for Mueller.
Though McGahn doubtlessly didn’t question Donald Trump’s finely honed sense of ethics, he had Yates come back the next day (Jan. 27) so he could find out for himself if Flynn did anything wrong. Yates refused to comment on the criminality, but told McGahn Flynn was compromised and the White House should take action. That is, that they should fire Flynn. And guess who expressed his concern with obstructing justice here? The White House Counsel. (Paul Ryan’s spineless excuse that Trump was “new at this” doesn’t hold up for a number of reasons, one of them being that Don McGahn, White House Counsel, wasn’t new to it.)
That sure doesn’t sound much like a high-powered lawyer who had truly concluded the night before (per White House statement) that Flynn “did not do anything wrong.” McGahn then asked Yates to provide evidence of Flynn’s conduct, and Yates consented: “We told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning.”
That same day (the day after McGahn told Trump there was an open FBI investigation into Michael Flynn, and the same day McGahn asked Yates for evidence) the President invited the FBI Director to dinner and asked for his loyalty.
The next Monday, Yates gave McGahn the evidence as promised. That evening the President fired her (ostensibly for blocking his Muslim ban over the weekend, which indeed proved unconstitutional).
For the next two weeks the White House didn’t do anything about Flynn, even though Yates had all but told them they should and the Vice President had lied to America.
Then when the Flynn story finally leaked, the President said he hadn’t heard about the report but would “look into it.” This contradicts the later White House statement that McGahn had “immediately” informed the President. A few days after that Trump fired Flynn, reason given that Flynn had lied to Vice President Pence; but again, Trump had known about that for weeks.
The day after Trump fired Flynn (Valentine’s Day) he called another meeting with Comey. Others in the meeting included Reince Priebus, Jeff Sessions, Jared Kushner, and yes, Mike Pence. At one point the President had everyone leave the room but Comey. Kushner lingered, but eventually left. Trump then told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go.”
With the additional context, we can see a few things. First, Trump made two requests of Comey immediately adjacent to major developments regarding Flynn. Not only that, but the accounts from Trump, Comey, the White House, McGahn, and Sally Yates’s congressional testimony (under oath) contradict each other (and often themselves) wildly. Lastly, before Sally Yates testified, Trump fired off a tweet designed to intimidate her.
Note also that Mike Pence, who had told the lie about Flynn, was in the V-Day meeting. We’ve been led to believe that Pence is an innocent, that he’d been kept in the dark about Flynn the whole time. In fact, Pence is central to the Flynn obstruction conspiracy. Let’s have a look at him.
First, remember that Pence was involved in Trump’s decision to fire Comey. He received a copy of Trump’s initial letter, which went on about Comey’s handling of the Russia investigation, and he urged Trump to fire Comey. Glenn Thrush of the New York Times said Pence was actually one of the strongest backers of the decision.
Yet after Trump fired Comey, Mike Pence went up to the Capitol so he could knowingly lie on TV and say Trump didn’t fire Comey because of Russia; he fired him based on DOJ recommendations.
This means we can expect Mueller will want to question Mike Pence about the President’s intent in his decision to fire Comey. So: Why might Pence have wanted Trump to fire Comey?
The Flynn investigation also involves – ding ding ding! – Mike Pence. Recall that not only did Pence assure the American people on multiple occasions that Flynn hadn’t spoken about sanctions with Kislyak, Pence was also the head of the transition team. Pence is implicated in any cover-up and would have hella incentive to, in Thrush’s words, be one the most forceful proponents for removing Comey.
Now, note that Thrush also said (in the excerpt above) that contrary to what Pence and the White House have said, he was involved in White House discussions about the investigation into Flynn’s lie; Pence has denied this one, too.
We can expect Mueller will want to ask Pence about how the Flynn investigation factored into his support of Trump’s decision to fire Comey.
Sorry; Still Not Done with Pence
Pence’s involvement in the Flynn-Trump-Comey mess actually goes back several months.
When Trump named Flynn as his National Security Adviser (in November) Pence ran the transition team. But only a few weeks before Flynn was nominated he published (on Election Day, believe it or not) an article that promoted Turkish interests in the United States. Flynn had also made $500,000 representing Turkish interests during the campaign, but he still didn’t register as a foreign agent. Flynn’s vulnerability as a foreign agent was well-known in November. In fact, Rep. Elijah Cummings, a Democrat, wrote a letter directly to Pence in November to warn him about Flynn’s misconduct and nomination to NSA. Pence’s spokespeople, incredibly, denied Pence had heard anything about any of this.
Note also that Pence was the head of the transition in December when Flynn and Kushner met Kislyak in Trump Tower, and when Kushner tried to set up a backchannel to the Kremlin through Russian intelligence offices, and when Flynn spoke about sanctions with Kislyak later that month. Pence denied knowing about any these things.
And then on January 4, Michael Flynn told Don McGahn (who was at the time the lead attorney for the transition) that he, Michael Flynn, was under DOJ investigation for acting as a foreign agent. A couple days later, Flynn’s lawyers met with more transition team lawyers to discuss this. Sources close to Pence say he somehow didn’t know about this, either.
1. Either Pence knew about Flynn and covered it up for months; or
2. McGahn (and all transition lawyers, even those reporting to Pence) never told Pence any of this, despite the fact Pence ran the transition team and McGahn was the team’s lead legal official.
Could you as a juror believe it’s possible that none of the transition team’s lawyers, including the lead lawyer and Pence’s lawyers, were engaged in a plan to never tell Pence (or Trump, for that matter) that the man nominated to be National Security Adviser was under DOJ investigation for being an unregistered foreign agent?
So either Pence is toast, or the fucking White House counsel is central to the Flynn cover-up, is perhaps guilty of malpractice, and is part of the White House’s larger conspiracy to obstruct justice. Yet no one, including the supposedly maligned Pence, has called for McGahn to resign.
So it’s all right there for you: January 4. Flynn, McGahn, Pence, and Trump. Everything else can play out from this date.
Now imagine you’re a juror: Why the hell would the transition’s legal team, led by the future White House Counsel, choose to keep Flynn’s admission a secret? It’d come out sooner or later. And why would McGahn also choose to keep this one specific piece of information about Flynn from both Pence and Trump, but then choose to tell Trump that Flynn was under FBI investigation for his call with Kislyak? And why did McGahn and all the transition lawyers never tell Pence anything about Flynn, ever? Why did the entire White House never tell Pence?
Either Pence is as deep in this as everyone else, or he’s one of the most incompetent managers in all of government.
But this ties Trump in, too. Mueller would also want to know why the President himself kept this critical information from his Vice President for weeks. After all, the President said he fired Flynn because Flynn lied to Pence. This means one of two things: First, Trump did tell Pence that Flynn lied to him, which, because Trump lied to the American people about that, would be another overt act in the corrupt intent pattern; the other option is that Trump truly didn’t tell Pence, which, keeping this secret from his own White House would be another overt act in the corrupt intent pattern.
Corrupt Intent and the Whole Concept
None of this behavior makes any sense for any reason other than key people in the White House (one of them the President and one the chief White House lawyer) were all connected in an astoundingly consistent pattern of lies and cover-ups that, when combined and put into this narrative, scream corrupt intent. All knowing participants here (Trump, Pence, Priebus, Kushner, McGahn, Miller, and even Ivanka) could be charged in conspiracy and then prosecuted if a grand jury finds probable cause. At the minimum, I expect they’ll all be witnesses.
But yes, that’s right: The grand jury doesn’t have to agree there is corrupt intent; it just has to decide that there’s probable cause of corrupt intent. If so, they send the case on to court. So what do you say? Does this merit a trial?
Of course it does.