The New York Times is reporting additional details about the drafting on Air Force One of the false statement that Donald Trump, Jr. provided to the press about the June 9, 2016 Trump Tower campaign meeting with Russians, as well as a previously undisclosed conversation among the President and his aides the following day concerning the potential risks and ramifications of the false statement. One participant in this later conversation will reportedly reveal everything he knows to Special Counsel Bob Mueller—that is Mark Corallo, who served as a spokesman for Mr. Trump’s legal team at the time. The conversation reportedly included a suggestion by White House Communications Director Hope Hicks that the Donald Trump Jr. emails setting up the Russia meeting “will never get out.” Corallo reportedly resigned shortly after the episode due to his concerns that it involved an obstruction of justice.
So, what are the legal implications of these new revelations? Let’s discuss.
1. What are the implications for the obstruction of justice Investigation?
The New York Times report continues to add to the accumulation of evidence that could shed light on the President’s intent when he took actions that interfered with the investigation of his 2016 campaign. As such, and contrary to belief of some unnamed “lawyers” referenced in the article, this information is directly relevant to Mueller’s investigation and will certainly be of interest to the special counsel when he questions the President.
Specifically, these new revelations show the President’s direct engagement with efforts to provide a false narrative about his campaign’s interactions with the Russians. In establishing Trump’s intent, it will be important to show what he knew when he asked FBI Director James Comey to go easy on Michael Flynn, when he asked senior intelligence officials to get Comey to drop the case, and when he later fired Comey. Trump might very well claim that as a presidential candidate and now President, he operates at such a high altitude and cannot be aware of all of the details of his campaign, the investigation, and the actions of his staff. These new revelations show, however, that when the President was literally flying at 30,000 feet, he was very much involved in the details of drafting a false statement about the particularities of a meeting between his campaign and the Russians.
What’s more, the Air Force One episode helps to show the “there there.” A perspective that is beginning to emerge is that Mueller will not be able to put forward an obstruction allegation (either as a criminal charge or in a report as a possible basis for impeachment) absent substantive charges, because it will be most unlikely to secure a conviction for obstruction without a showing that some real crime was being hidden or protected. While it is true that an obstruction charge is strengthened by proof of underlying wrongdoing, it does not necessarily follow that absence of proof beyond a reasonable doubt of an underlying crime dooms the obstruction charge. In any event, this episode shows that the President very badly wanted to hide the involvement of the Russians in his campaign. We don’t yet know why, whether it was to hide a crime or for political reasons. But what’s clear is he wanted it kept secret. That is the “there there” for the obstruction allegations. It helps show that when the President interfered with the investigation, it was not because he thought it was a waste of time and there was nothing to find, but rather because information existed that he did not want to come to light (whether because it showed criminal activity or would be politically damaging). That bolsters the obstruction case.
2. What are the implications for the collusion investigation?
Although lying to the media is not itself obstruction, such acts are relevant because they can help provide circumstantial evidence of knowledge of wrongdoing. The President and his associates apparently tried to cover up the Trump Tower meeting because they knew it was illicit or would be widely understood as illicit. This points not only the president’s state of mind, but also Don Jr. and others—exposing them to greater liability for potential campaign finance violations. To be clear, it may be that Trump and his team sought to hide the information because they thought it politically embarrassing, but Mueller will want to assess whether this information, together with everything else he has learned, points to an awareness that the campaign violated federal law. At bottom the important point is that Mueller’s team may be plowing into the Air Force One events as part of the investigation of Russian interference. Much of the commentary following the New York Times story focuses exclusively instead on the obstruction case. That’s likely missing the full picture.
3. Does the reporting potentially reveal new crimes?
Potentially the biggest bombshell, depending on what else is learned by Mueller’s investigation, involves a potential new type of obstruction of justice: concealing evidence. Based on the Times reporting, the White House communications director may have raised the idea of hiding incriminating campaign emails from investigators, the President actively participated in that conversation, and the President took the lead role in drafting a false statement that appears to have relied on the assumption that the emails “will never get out.” . An unambiguous federal criminal statute is relevant here (18 USC 1519):
“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”
One question is whether the FBI or Congress (or both) had, by that time (July 2017), asked the campaign to preserve materials such as these emails and not to destroy any documents that may be relevant to the Russia investigations. If so, it would significantly amplify the legal exposure of the individuals involved. The Times notes, and we should too, that Hicks’ lawyer issued a statement saying the idea that she “ever suggested that emails or other documents would be concealed or destroyed is completely false.”
In terms of how such acts could be charged, the alleged episode reveals a direct role played by Hicks, Trump Jr., and others. It raises the prospect that these individuals could be charged for obstruction of justice, based on these and related events, even if the president himself could not be indicted while in office. That then raises the prospect that Donald Trump could be named as an unindicted co-conspirator in the indictment and prosecution of others. No, President Trump would not be formally charged in such a scenario, but the political repercussions for his administration and the country would be enormous.
Further, these events may implicate two people in making false statements to the FBI or Congress. First, if Hicks has, in an interview with the office of the special counsel, made statements about the newly reported conversations that are now proven to be intentionally false or material omissions, she would have likely committed a felony. Second, the details of the episode probably reveal whether the President had already known about the June 9 Trump Tower meeting or was being told about it for the first time. That could very clearly show that Trump Jr. lied to Congress when he told the Senate Judiciary Committee he had never told his father about the Trump Tower meeting around the time it occurred in June 2016.
Mueller may ultimately not indict either Hicks or Trump Jr. for lying to federal authorities, but he could still use their potential criminal liability to compel them to cooperate (“to flip” and incriminate others).
4. What are the evidentiary considerations involved here?
The New York Times reports that Corallo “told colleagues he was alarmed … that [Hicks] had said it in front of the president without a lawyer on the phone and that the conversation could not be protected by attorney-client privilege,” and that “Mr. Corallo cut off the conversation and urged the president to continue the discussion with his lawyers.” The notion that adding a lawyer to the conference call would protect the conversation from later inquiry on privilege grounds is almost certainly wrong (see Andy Wright’s analysis of this topic). First, the lawyer would have to be representing everyone on the call. Second, if the call involved the suggestion of document concealment or destruction or creating a false narrative that would later be provided to investigators, then the crime-fraud exception would apply. If anything, the idea to get lawyers on the call for the purpose of trying to shield the conversation is yet another piece of evidence that the actors were engaging in legally significant wrongdoing. That said, perhaps Trump and Hicks would say the fact that they did not have lawyers in the call shows they did not think they were treading close to illegal behavior.
Further, as an evidentiary matter, Corallo had direct knowledge of all these events, and is a cooperating witness who can testify about all these facts. Corallo also contemporaneously told several people about the events and memorialized it in written notes, all of which will bolster the reliability of his account. What also caught our eye is that during the key meeting, “Ms. Hicks was sending frequent text messages to Donald Trump Jr., who was in New York.” Mueller’s team should be able to get a hold of those communications.
In sum, this latest revelation potentially adds significantly to the Mueller’s investigation. The Times reports that “Some lawyers and witnesses who have sat in or been briefed on the interviews have puzzled over Mr. Mueller’s interest in the episode. … [S]ome of Mr. Trump’s advisers argue that Mr. Mueller has no grounds to ask the president about the statement [drafted on Air Force One] and say he should refuse to discuss it.” There’s no reason to be so puzzled any longer, and the President’s refusal to discuss the episode with Mueller will not fly in any court of law.