With the much anticipated FISA-abuse memo expected to drop any second, the media are attempting to refocus the narrative onto possible obstruction of justice by President Trump and his subordinates.
Thursday, the New York Times led with a lengthy report on the Mueller investigation’s curiosity about a statement crafted under the president’s direction last July. It concerned the now infamous Trump Tower meeting a year earlier — i.e., on June 9, 2016 — between top Trump-campaign officials Donald Trump Jr., Jared Kushner, and Paul Manafort and a Russian contingent led by the Kremlin-connected lawyer Natalia Veselnitskaya.
To cut to the chase, Mueller appears to be homing in on the question of whether there was a conspiracy to obstruct justice.
While President Trump was deeply involved in the drafting of the statement, it was ultimately issued by a lawyer in the name of Don Jr., to whom the Times had directed its questions about the Trump Tower meeting. The statement was untrue and ill-considered. Worse, it conflicted with another misleading version of the Trump Tower meeting that the president’s legal team simultaneously provided to a different media outlet, Circa. As the Times report correctly asserts, both versions sought to conceal the true purpose of the Trump Tower meeting, namely: to obtain damaging information about Hillary Clinton from Russian-government sources.
It is not a crime to lie to journalists. From this premise, some Trump-friendly commentators have reasoned that the false statements about the meeting given by Trump subordinates to the Times and Circa have no relevance to Special Counsel Robert Mueller’s inquiry. This is wrong.
To prove obstruction under the circumstances, Mueller would need to establish that Trump and others intended to conceal from congressional and law-enforcement investigators information about contacts with Russia. Making false statements to journalists about the purpose of the meeting is probative of some measure of intent to conceal that purpose. It is therefore relevant to Mueller’s inquiry, even though establishing that Trump had a purpose to mislead the press does not prove that he intended to mislead probes conducted by the FBI or congressional committees.
The Times report indicates that Mueller may be trying to make that leap by exploring discussions among Trump-team members about the false statements they made. In particular, he is homing in on an assertion by Trump spokeswoman Hope Hicks to the effect that emails leading up to the Trump Tower meeting would never become public. The statement attributed to Ms. Hicks is elliptical, subject to different interpretations. She apparently denies making it at all, a denial that is suspect in light of the context of the alleged statement (a discussion about whether a lie would be discovered) and of a Trump pattern (first deny embarrassing revelations, later clarify that they are not problematic even if true).
Here is what happened.
The Times was preparing to break its story about the 2016 Trump Tower meeting as President Trump was flying home from the G-20 summit in Germany. The Times asked pointed questions about what the meeting was about, and what the participants expected the meeting to be about. The latter question is important because the participants expected it to yield Hillary dirt — information the Russians purportedly had that might incriminate Trump’s opponent. While considering how to respond to the Times’ questions, the Trump team did not yet know that the paper’s reporters were already aware of this.
On Air Force One, the president is said to have taken control over the drafting of a responsive statement. He was working closely with Ms. Hicks, who was in touch by text with Don Jr. in New York. Don Jr.’s lawyer, Alan Garten, was involved, too, but Marc Kasowitz, the president’s personal lawyer, was not.
Rather than either declining comment or coming clean, President Trump reportedly insisted on a statement emphasizing that the meeting was about Russian adoptions — i.e., American adoptions of Russian babies that the Putin regime had suspended in retaliation for Congress’s enactment of the Magnitsky Act (which uses forfeiture to punish Russian operatives for the torture and murder of Sergei Magnitsky, who exposed a major fraud). Sensing that some wiggle room might eventually be needed, Don Jr. insisted on including the qualification that the meeting was “primarily” about adoption of Russian children. This is what the statement issued to the Times said.
Meanwhile, unbeknownst to the president and his subordinates consulting on the statement to the Times, Trump’s legal team was having a similar conversation with Circa. Mark Corallo, then the spokesman for the legal team, told Circa that the meeting had been set up “to discuss a Russian policy.” Rather than paint the Trump Tower meeting as wholly innocent, Corallo stated that the Russians present — including the lawyer, Ms. Veselnitskaya — had “misrepresented who they were and who they worked for.” This was apparently a reference to the fact that Veselnitskaya was working with Fusion GPS, the research firm we now know was behind the Steele dossier commissioned by the Clinton campaign.
Mueller is right to investigate this incident. Still, though unsavory, that form of collusion is not criminal.
I note that Veselnitskaya’s connection to Fusion GPS appears to have involved their joint work on a Magnitsky Act case brought by the Justice Department, not on the Steele dossier. Nonetheless, the Times says Corrallo was “suggesting” to Circa that the Trump Tower meeting “might have been set up by Democratic operatives.”
These conflicting accounts given to the Times and Circa, each misleading in a different way, led to recriminations between the White House and Trump’s legal team. According to unnamed sources familiar with his version of events, Corallo was accused by Hicks of trafficking in conspiracy theories that would only draw more attention to the Trump-Russia storyline.
A conference call was quickly arranged for three participants: Corallo, Hicks, and President Trump. Corallo was troubled that no lawyers were involved; typically, lawyers are included in such discussions so that confidentiality can later be claimed under the attorney–client privilege.
Corallo’s position was that it was the White House that had botched the statement to the Times. As he saw it, documents existed that proved that the true purpose of the Trump Tower meeting was to obtain political dirt on Mrs. Clinton. This was surely true: The Times in fact was about to report on the emails by which Don Jr. set up the meeting with Kremlin-connected Russians in order to obtain what was purported to be information inculpatory of Clinton.
At the time, though, these emails had not been publicly disclosed. When Corallo argued that they were likely to become public, Hicks reportedly countered that the emails “will never get out.”
It is this statement on which the Mueller investigation is said to be focused.
Corallo has reportedly told people that Hicks’s statement alarmed him because she may have been suggesting that the emails could be withheld from government investigators. Corallo’s interpretation is not implausible, but it is extravagant. The statement does not mention withholding. The statement was made in the context of a conversation about what the press would find out, not what government investigators might learn. Moreover, Corallo himself has told sources that the sinister interpretation is not the only one or necessarily the most likely one. It could just have been a case of Hicks being naïve: She simply may not have understood that it was inevitable the emails would come to light.
It was indeed inevitable. Not only was the Times hot on the trail; Congress had demanded information about the Trump Tower meeting from Don Jr., Kushner, and Manafort. Their lawyers were readying the emails for delivery to the relevant committees.
According to the Times’ sources, Corallo recalls that he abruptly cut off the conference call when President Trump asked about the nature of the emails. He thought quite enough had already been said in Trump’s presence, and urged the president to consult with his lawyers to get information instead of continuing the discussion without them.
Here, it is worth pausing to note that one need not succeed in impeding an investigation in order to be guilty of obstructing justice. A person who has the requisite corrupt intent is criminally liable if he or she endeavors to influence or obstruct a congressional or criminal investigation. (See sections 1505 and 1510 of the federal penal code.) Furthermore, one can conspire to obstruct justice. It is never necessary for a prosecutor to prove that a conspiracy succeeded in achieving its criminal objective, because the crime is the agreement to violate the law, not the carrying out of the violation.
Standing alone, Hicks’s assertion that the emails “will never get out” — or, better, the more sinister of Corallo’s alternative interpretations of that assertion — is woefully insufficient to establish a conspiracy or attempt to obstruct justice. Indeed, the fact that the Don Jr. emails were apparently being prepared for disclosure to Congress implies that Hicks was making an uninformed statement of opinion, not a wink-wink allusion to a corrupt ongoing plot. And President Trump’s reported need to ask about the nature of the emails implies that he may not have known about them at all.
Like so much of what we’ve seen in the collusion/obstruction investigations, this episode makes one wince. The president and his subordinates decided to try to mislead experienced reporters. They did so after apparently deliberating for hours over what to say, under circumstances in which (a) it was nigh certain that the truth would come out and (b) Trump did not consult with his own lawyers before the statement was issued. It is an embarrassing display of poor character and ineptitude.
Congress, however, has yet to make criminal stupidity a crime.
Mueller is right to investigate this incident, particularly given its close relation to the Trump Tower meeting, the most solid known evidence of Trump “collusion” with Russia during the 2016 election. Still, though unsavory, that form of collusion is neither criminal nor suggestive of Trump complicity in Russia’s cyber-espionage against the 2016 election. Similarly, Hope Hicks’s unsavory statement is highly unlikely to prop up an obstruction prosecution.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.