[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
LESSONS FROM THE MUELLER REPORT: PRESIDENTIAL OBSTRUCTION AND OTHER
CRIMES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 10, 2019
__________
Serial No. 116-24
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
38-182 WASHINGTON : 2019
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
C O N T E N T S
----------
JUNE 10, 2019
OPENING STATEMENTS
Page
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 4
WITNESSES
John Dean, Former White House Counsel
Oral Testimony............................................... 8
Prepared Testimony........................................... 10
Joyce White Vance, Former U.S. Attorney for the Northern District
of Alabama
Oral Testimony............................................... 18
Prepared Testimony........................................... 20
John Malcolm, Vice President, Institute for Constitutional
Government, Director of the Meese Center for Legal and Judicial
Studies and Senior Legal Fellow, The Heritage Foundation
Oral Testimony............................................... 29
Prepared Testimony........................................... 31
Barbara McQuade, Former U.S. Attorney for the Eastern District of
Michigan
Oral Testimony............................................... 41
Prepared Testimony........................................... 43
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
An article for the record submitted by the Honorable Matt Gaetz,
a Representative from the State of Florida..................... 70
A report for the record submitted by the Honorable Sheila Jackson
Lee, a Representative from the State of Texas.................. 125
Slides for the record submitted by the Honorable Jerrold Nadler,
Chairman, Committee on the Judiciary........................... 130
An article for the record submitted by the Honorable Jerrold
Nadler, Chairman, Committee on the Judiciary................... 140
APPENDIX
A statement for the record submitted by the Honorable Sylvia
Garcia, a Representative from the State of Texas............... 146
LESSONS FROM THE MUELLER REPORT: PRESIDENTIAL OBSTRUCTION AND OTHER
CRIMES
----------
MONDAY, JUNE 10, 2019
House of Representatives
Committee on the Judiciary
Washington, DC.
The committee met, pursuant to call, at 2:10 p.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler
[chairman of the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson of Georgia, Deutch, Bass, Cicilline, Swalwell,
Lieu, Raskin, Jayapal, Demings, Correa, Scanlon, Garcia,
Neguse, McBath, Stanton, Mucarsel-Powell, Escobar, Collins,
Sensenbrenner, Chabot, Gohmert, Jordan, Ratcliffe, Roby, Gaetz,
Johnson of Louisiana, Biggs, McClintock, Lesko, Reschenthaler,
Cline, Armstrong, and Steube.
Staff Present: Aaron Hiller, Deputy Chief Counsel; Arya
Hariharan, Oversight Counsel; David Greengrass, Senior Counsel;
John Doty, Senior Advisor; Lisette Morton, Director of Policy,
Planning, and Member Services; Madeline Strasser, Chief Clerk;
Moh Sharma, Member Services and Outreach Advisor; Susan Jensen,
Parliamentarian/Senior Counsel; Will Emmons, Professional Staff
Member; Sarah Istel, Oversight Counsel; Matt Morgan, Counsel;
Brendan Belair, Minority Staff Director; Bobby Parmiter,
Minority Deputy Staff Director/Chief Counsel; Jon Ferro,
Minority Parliamentarian/General Counsel; Carlton Davis,
Minority Chief Oversight Counsel; Ashley Callen, Minority
Oversight Counsel; Danny Johnson, Minority Oversight Counsel;
Jake Greenberg, Minority Oversight Counsel; and Erica Barker,
Minority Chief Legislative Clerk.
Chairman Nadler. The Judiciary Committee will come to
order.
Without objection, the chair is authorized to declare
recesses of the committee at any time.
We welcome everyone to today's hearing on ``Lessons from
the Mueller Report: Presidential Obstruction and Other
Crimes.''
I will now recognize myself for an opening statement.
Just over 2 years ago, Special Counsel Robert Mueller was
charged with conducting a full and thorough investigation of
the Russian Government's efforts to interfere in the 2016
Presidential election, unquote, including an examination of,
quote, any links and/or coordination between the Russian
Government and individuals associated with the campaign of
President Donald Trump and any matters that arose or may arise
directly from the investigation, close quote.
He concluded, in his own words, quote, Russian intelligence
officers who were part of the Russian military launched a
concerted attack on our political system. Those officers used
sophisticated cyber techniques to hack into computers and
networks used by the Clinton campaign. They stole private
information and then released that information through fake
online identities and through the organization WikiLeaks.
We now know that the Russian Government timed their
operation to interfere with our election to harm the candidacy
of Secretary Clinton and to benefit the Trump campaign.
Separately, the special counsel concluded that Russian
entities, quote, engaged in a social media operation where
Russian citizens posed as Americans in order to interfere in
the election, close quote.
Using fake identities on social media platforms like
Facebook and Twitter, these operatives planned rallies in favor
of the President and spread lies about Secretary Clinton made
to look like legitimate media. Again, these activities
represent a direct attack on our democratic process.
With respect to these two specific operations by the
Russian Government, the special counsel did not find sufficient
evidence to charge Trump campaign officials with conspiracy
against the United States.
He did, however, document at least 171 contacts between
members of the Trump campaign and transition team and the
Russian Government. Sixteen Trump campaign officials are known
to have direct communications with Russian agents.
Representatives of the Trump campaign exchanged emails and
phone calls and held face-to-face meetings with high-level
Russian Government officials, Russian oligarchs, and even some
of the hackers the special counsel accused of working to sway
the election.
There can be no question that Congress must investigate
this direct attack on our democratic process. I believe that
Ranking Member Collins agrees that we must do so without delay.
In a letter he sent last month, he urged the committee to call
Robert Mueller to testify, during the Memorial Day recess, if
necessary, both for the sake of transparency and, quote, for
the American public to learn the full contours of the special
counsel's investigation, close quote.
In a letter he sent last week, the ranking member again
asked us to examine, quote, the threat Russia and other
nefarious actors have played and may continue to play in our
elections, close quote.
Over the course of the coming weeks, this committee will do
just that. We will examine the effects of foreign influence on
our elections. I hope that we will hear testimony from the
special counsel as well.
But the country cannot hope to understand the Russian
Government's attack on our democratic system if we do not also
investigate who stood to benefit from that attack and the
extent to which the Trump campaign may have welcomed it.
Similarly, we cannot fully understand the special counsel's
work without also discussing President Trump's repeated
attempts to undermine it. In his report, the special counsel
describes 10 separate incidents in which the President
attempted to change the scope or direction of the investigation
or to end it altogether.
At one point, President Trump ordered White House Counsel
Don McGahn to fire the special counsel. Later, he asked McGahn
to write a letter stating that the incident never happened.
McGahn said he would rather resign.
At different stages, he asked Attorney General Jeff
Sessions to unrecuse, in quotes, himself and to step in to
direct the investigation away from the President's conduct.
And, of course, the President's public statements about
this investigation before and after the results of the Mueller
report are, at best, at odds with the evidence laid out in the
report itself. There can be no question that this committee
must investigate this behavior as well.
Today's hearing is the first in a series of hearings
designed to unpack the work of the special counsel and related
matters. We have a responsibility to do this work, to follow
the facts where they lead, to make recommendations to the whole
House as circumstances warrant, and to craft legislation to
make certain no President, Democrat or Republican, can ever act
in this way again.
Our witnesses today include three former Federal
prosecutors, each of whom has considerable experience weighing
the kind of evidence laid out by the special counsel in his
report and in his indictments of 34 individuals, including
President Trump's National Security Advisor, his campaign
manager, his deputy campaign manager, and his personal
attorney.
Our panel also includes Mr. John Dean, who served as White
House counsel to President Nixon and who became a critical
witness for prosecutors and congressional investigators
attempting to respond to President Nixon's attempt to obstruct
the Department of Justice and the FBI.
We will rely on the expertise of these witnesses to help
draw our own conclusions about the findings of the special
counsel and other evidence before us today. We will do so
mindful of the House rules that prevent us from making
inappropriate personal references to the President, to members
of this committee, and to other Members of Congress.
But the rules of decorum in the House of Representatives
are a shield, not a sword. The rules are designed to focus the
debate on the facts and the law and can, therefore, help us
discuss the findings of the special counsel with the
seriousness they deserve. The rules are not, however, an
opportunity to avoid discussing serious allegations of
misconduct altogether.
I know that the ranking member and I disagree on any number
of topics, including on what conclusions we should draw from
the facts laid out by the special counsel. For example, in his
last letter, he argued that President Trump has been, quote,
vindicated, unquote, by the special counsel's report. I cannot
agree with that conclusion. Neither, I believe, could the
special counsel, given his insistence that his report, quote,
does not exonerate the President, close quote.
But I also know that the ranking member and I agree on the
seriousness of the attack on our elections and that we must
work together to make it more difficult for any President to
ignore the danger that presented itself in 2016.
That work continues in this hearing room today, and it
continues at the Department of Justice later this afternoon,
where this committee will begin to review some of the documents
that Attorney General Barr previously denied us.
I am pleased that we have reached an agreement to review at
least some of the evidence underlying the Mueller report,
including interview notes, firsthand accounts of misconduct,
and other critical evidence, and that this material will be
made available without delay to members of the committee on
both sides of the aisle.
As a result, I see no need to resort to the criminal
contempt statute to enforce our April 19 subpoena, at least for
now, so long as the Department upholds its end of the bargain.
But our arrangement with the Department does not extend to
the full scope of our request for the full Mueller report and
its underlying materials, including grand jury information, nor
does it extend to our demand that Don McGahn, a key fact
witness, testify before this committee. Our work will,
therefore, continue tomorrow on the House floor when we
consider Chairman McGovern's resolution to authorize this
committee to enforce its subpoena through civil litigation.
It is my expectation that, as a result of this
authorization, Mr. McGahn will testify here before long, and
between now and then, we still have an obligation to
investigate the deeply troubling evidence outlined by the
special counsel--not merely the portions that implicate Russian
nationals, as some have suggested, but the entire report,
including the volume that lays out some of the President's
troubling behavior.
The committee's work is serious. We should delay it no
further. We should conduct ourselves in a manner that is
consistent with the rules of the House and worthy of this
chamber.
And even if we cannot agree to draw the same conclusions
from the evidence, we should at least proceed with a common
understanding: We were attacked. We were attacked by a foreign
adversary. President Trump's campaign took full advantage of
the attack when it came. The descriptions of obstruction of
justice in Volume II go to the heart of our legal system.
If we can agree on this common set of our facts as our
starting place and agree to follow the facts and the law where
they take us, I believe we can make a great deal of progress in
this hearing today.
I thank the panel for being here today, and I look forward
to your testimony.
Before we proceed further, I want to note for the record
that the gentlelady from Pennsylvania, Ms. Dean, is unable to
be with us today due to a death in the family. She very much
wanted to participate in today's hearing, and I did not want
anyone to misinterpret her absence.
It is now my pleasure to recognize the ranking member of
the Judiciary Committee, the gentleman from Georgia, Mr.
Collins, for his opening statement.
Mr. Collins. Thank you, Mr. Chairman.
And I appreciate, especially, the last. And I would extend
my prayers and thoughts to Ms. Dean as well. I'm just a little
over--a little under a year, in fact--Monday, this week, will
be 1 year from losing my mother. So for all of us, we go
through that, and it's an expression of love.
However, I will come to this hearing today and say that we
are continuing--I appreciate the chairman's understanding. I
appreciate the chairman outlining a great deal of the basic
conclusion that was an affirmative conclusion from the Mueller
investigation that was the foreign interference and the Russian
part of this.
What is amazing, though--and I agree with the chairman's
assessment of being attacked, and it's something we've known
the Russians were always a part. For some of us, we've been
talking about the Russians for a long time in that. But it's
about priorities.
And here's my question about priorities in coming to this
hearing, and the question of priorities is: If we were
attacked, as the chairman just said, then the priority should
be to go to the battlefield on the attack where we were
attacked on and not run by the sideshow to hear from the
commentators.
We should actually go to the one that the--Mr. Mueller
actually said was, we have a problem here. We're showing you,
actually using documents here, how can we firm up our
elections, how can we do away with foreign interference, how
can we do that. It's about priorities.
And I think what has happened here is the chairman is
showing the priorities. The priorities were, from November
2016, it appears that we have an issue with who got elected
President. And we thought the Mueller investigation would solve
this for us, and it really did not, even after a lot of
discussion. We're going to hear a lot about that today in the
discussion that we have.
But it goes back to priorities and priorities of bringing
what we focus on and how we focus on it.
And if you look at the witnesses today and you discuss what
was actually just went on for a while, we're not bringing
Russia front and center, we're not bringing the threats to our
election front and center--although I appreciate the chairman
reading the letters that I send him and understanding what we
could actually be working on. And I'm wanting to move forward
there.
But, however, here we come with some folks that are great
folks--you're wonderful on TV. I could catch your testimony on
TV. In fact, by the way, I could this morning.
I'm a Republican. I believe that you use everything that
you've got, do as much business as you want and generate as
much as you want to work for yourself. But I don't believe it
is the priority of this committee to have to come and hear from
those who are not a part of the Mueller investigation, who are
not a part of this, pontificating on things that you can do on
TV, like all of us get a chance to do occasionally, but not
here on a hearing.
But then we get--and I'm sort of reminded of the Russia
priority issue, because just a few years ago it was brought up,
and one of our candidates talked about Russia being a threat,
and the former President, Mr. Obama, said, you know, that the
1980s are asking for their foreign policy back. Well, guess
what. This committee is now hearing from the 1970s, and they
want their star witness back.
In fact, it's very difficult for one of the witnesses here
today, for many of us who can actually trace the distrust in
government back to the witness here today--the 1970s star of
obstruction.
In fact, I'll take it a little bit further. For those of us
who've been looking into this for a while and wonder how we got
started here and for those of us who've heard me discuss the
fact that many on our committee on our side discuss the fact of
the corrupt cabal, what we see, of Strzok, Page, McCabe, Comey,
and others, how we actually got started here, I believe that
they have the godfather here today, Mr. Dean.
In fact, they probably had a picture of, how do we actually
use the governmental resources to interfere in other people's
campaigns? Mr. Dean is the godfather. They may have even had a
picture of you, knowing how you do it. And that is here today,
again, to talk about a President that, obviously, you don't
like and interview in ways that you had pled guilty to.
I appreciate your right to be here, and I appreciate your
right to share it anywhere else, but don't appreciate the fact
that here we are again with priorities in this committee turned
upside down.
It is interesting to me--and I applaud the chairman for
finally getting accommodation process from the Department of
Justice that he could've had a long time ago. I'm glad we got
it there. Now maybe we can move forward. Maybe we can being to
put this committee in order.
But I would just go back and just say that I would ask my
chairman, on who we do agree on some things--hopefully,
tomorrow, we're actually going to have a bill we agree on, the
9/11 bill.
But while we continue this part, asking opinions from
commentators promoting their agendas, my question is this: At
the end of the day, for these not here, they're here commenting
on a report, I go back to what the chairman asked, and he said,
well, we may get there. And I said, it was, we hope--I think
were the exact words just a moment ago--hope to have Robert
Mueller. Hope.
This committee is obsessed with a document in which they
could talk to the author, and we seem to not want to go there.
We are hot and heavy to get everybody else here, but we don't
want to go there. Because, at the end of the day, the Mueller
document, in spite of his standing up in statements, stated
there was no collusion, which is where it started. Where it
started, there was that contact, and there was no charged
obstruction.
But here we are again today. Here we are, looking at it as
we go forward. Why? Because there is an obsession. There's
another election around the corner, and that other election is
simply being played out here. How can we damage the President?
Because we don't like the cards that we've got to run for
reelection on, with the economy and other things happening.
So, Mr. Chairman, we're here again. I believe the
priorities are wrong, but you've called the priorities. So,
now, let the show begin.
I yield back.
Chairman Nadler. Thank you, Mr. Collins.
I will now introduce today's witnesses.
John Dean was the White House counsel under President
Richard Nixon. He is most well-known for his role as a
principal witness during the Senate Watergate hearings, where
his testimony was later fully corroborated as to its
truthfulness by the revelations in President Nixon's White
House tapes.
Prior to his time in the White House, Mr. Dean served as
the Republican chief counsel of this committee as well as the
associate director of the National Commission on Reform of
Federal Criminal Laws. He has a B.A. from the College of
Wooster, and he received his J.D. from the Georgetown
University Law Center.
Joyce White Vance served as the U.S. attorney for the
Northern District of Alabama from 2009 to 2017. She also served
on the Attorney General's Advisory Committee and was the co-
chair of its Criminal Practice Subcommittee. She is currently a
distinguished professor of the practice of law at the
University of Alabama School of Law. Ms. Vance received her
bachelor's degree from Bates College and a J.D. from the
University of Virginia Law School.
John Malcolm is the vice president for the Institute for
Constitutional Government and director of the Meese Center for
Legal and Judicial Studies at The Heritage Foundation. He also
serves as chairman of the Federalist Society's Criminal Law
Practice Group. From 2001 to 2004, Mr. Malcolm served as a
deputy attorney general in the Department of Justice. He
received his bachelor's degree from Columbia College, my alma
mater, and a J.D. from Harvard Law School.
Barbara McQuade served as the U.S. attorney for the Eastern
District of Michigan from 2010 to 2017. She also served as vice
chair of the Attorney General's Advisory Committee and co-
chaired its Terrorism and National Security Subcommittee. She
is currently a professor from practice at the University of
Michigan Law School. Mr. McQuade received her bachelor's degree
from the University of Michigan and her J.D. at the University
of Michigan Law School.
We welcome our distinguished witnesses, and we thank you
for participating in today's hearing.
Now, if you would please rise, I will begin by swearing you
in.
Raise your right hands.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record show that the witnesses answered in the
affirmative.
Thank you, and please be seated.
Please note that your written statements will be entered
into the record in their entirety. Accordingly, I ask that you
summarize your testimony in 5 minutes.
To help you stay within that time, there is a timing light
on your table. When the light switches from green to yellow,
you have 1 minute to conclude your testimony. When the light
turns red, it signals your 5 minutes have expired.
I will be a little loose in interpreting that 5 minutes for
the witnesses, not necessarily for the members.
Mr. Dean, you may begin.
TESTIMONY OF JOHN DEAN, FORMER WHITE HOUSE COUNSEL; JOYCE WHITE
VANCE, FORMER U.S. ATTORNEY FOR THE NORTHERN DISTRICT OF
ALABAMA; JOHN MALCOLM, VICE PRESIDENT, INSTITUTE FOR
CONSTITUTIONAL GOVERNMENT, DIRECTOR OF THE MEESE CENTER FOR
LEGAL AND JUDICIAL STUDIES AND SENIOR LEGAL FELLOW, THE
HERITAGE FOUNDATION; AND BARBARA MCQUADE, FORMER U.S. ATTORNEY
FOR THE EASTERN DISTRICT OF MICHIGAN
TESTIMONY OF JOHN DEAN
Mr. Dean. Chairman Nadler, Ranking Member Collins, the last
time I appeared before your committee was July 11, 1974, during
the impeachment inquiry of Richard Nixon. Clearly, I'm not here
today as a fact witness. I accepted the invitation to come here
today because I hope I can give a little historical perspective
on the Mueller report.
In many ways, the Mueller report is to President Trump what
the so-called Watergate roadmap, officially titled ``The Grand
Jury Report and Recommendation Concerning Transmission of
Evidence to the House of Representatives,'' was to President
Richard Nixon. Stated a little differently, Special Counsel
Mueller has provided this committee with a roadmap.
Drawing from my testimony, I'd like to offer a few--
actually, just one I'm going to focus on--parallels I find with
the Mueller report. I have laid out in my prepared statement
six examples. Those examples are illustrative rather than
exhaustive. But let me turn to the sixth. And anybody who has
any question about the prior five, I'm happy to address.
The sixth is the Mueller report's effort regarding the
influence of witnesses with pardons. As the citation shows,
it's spread out throughout the report.
Mr. Mueller addresses the question of whether President
Trump dangled pardons or offered favorable treatment to Michael
Cohen, Paul Manafort, Michael Cohen, and Roger Stone, whose
name is actually redacted but, based on educated conjecture, I
think that's pretty clear who it is. And the question is
whether, in return for their pardons, they agreed to--or the
suggestion of a pardon--he was seeking them to keep their
silence and how they coordinated with investigators.
But, also, the Mueller report offers a very powerful legal
analysis, that notwithstanding the fact that the pardon power
is one of the most unrestricted Presidential powers, it cannot
be used for improper purposes. And I give the cite of that
argument.
What's interesting is Richard Nixon, who used the pardon in
a similar way, recognized that it was improper. For example, in
December of 1972, Chuck Colson went in to see the President to
get a pardon--a commitment for Howard Hunt, who he had been
responsible in bringing into the White House and whose wife had
recently died in a crash and felt he couldn't withstand a trial
and didn't want to spend the rest of his life in jail, so he
was seeking a pardon assurance from Chuck Colson.
The President reluctantly agreed to do that. And when Hunt
was given the word, the so-called Cuban Americans who were part
of the Watergate operation, they also took their cue from Hunt
and pled.
In my March 21st conversation with Nixon, we got into the
subject of pardons, and he, at that point, said he very clearly
understood, to grant pardons, it would be wrong. I cite the
actual exchange from that conversation.
One that I did not cite in here is, I learned in a later
tape that Ehrlichman had been asked by the President to offer
me a pardon, to protect me and hopefully encourage me from not
breaking rank. Ehrlichman knew that was wrong, so he didn't
offer that pardon.
In one of my last conversations with Richard Nixon, he told
me in a very peculiar manner, getting up from his desk in the
EOB office and going across the office and in a stage whisper
saying to me, ``John, I made a mistake in talking to Colson
about clemency for Hunt, didn't I?'' And I said, ``Yes, Mr.
President. That was probably obstruction of justice.''
When Haldeman and Ehrlichman were departing, they pled with
the White House that they be given pardons. I think because
Nixon knew he could only compound his situation at that point,
that he refused to even entertain the request.
Mr. Dean. Finally, let me close on the note--and I explain
this at some length--that I certainly hope Don McGahn is a key
witness before this committee. Because of my testimony, the
model code of the ABA today makes very clear in the Rule 1.13
that Mr. McGahn represents not Donald Trump but the Office of
the President. His client is the Office of the President. And I
think he owes that office his testimony before this committee.
Thank you.
[The statement of Mr. Dean follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Thank you.
Professor Vance.
TESTIMONY OF JOYCE WHITE VANCE
Ms. Vance. Good afternoon, Chairman Nadler, Ranking Member
Collins, and members of the committee. Thank you for calling
this hearing and for giving me the opportunity to testify and
answer your questions.
Let me cut right to the chase, because I am a law
professor, and so I'll start with some basic legal context. The
Federal principles of prosecution direct prosecutors to indict
a case only if they believe they can obtain and sustain a
conviction. That means obtain a conviction at trial, sustain it
on appeal.
The Mueller report sets out the three elements prosecutors
have to be able to prove for each charge of obstruction of
justice they would potentially bring: an obstructive act, a
nexus between that act and an official proceeding, and a
corrupt intent. So those are the three elements prosecutors
would have to be able to prove beyond a reasonable doubt at
trial.
Because the special counsel followed DOJ policy and
guidance in memos issued by the Office of Legal Counsel that
prohibit indicting a sitting President, the report analyzed the
evidence it contained without making an ultimate decision as to
whether the evidence was sufficient to indict.
Now, people can debate the merits of that position that's
taken by the Office of Legal Counsel in the memo, but as long
as that memo is in effect, it binds DOJ lawyers--and Robert
Mueller, in his consideration--committed to following the law.
I have reviewed Volume II of the special counsel's report,
which lays out the evidence collected while investigating 10
potential instances of obstruction of justice. And based on my
years of experience as a prosecutor, if I was assessing that
evidence as to a person other than a sitting President who's
covered by the OLC memo, the facts contained in that report
would be sufficient to prove all of the elements necessary to
charge multiple counts of obstruction of justice. The evidence
is not equivocal, nor is the charging decision a close call.
And I would be willing to personally indict the case and to try
the case. I would have confidence that the evidence would be
sufficient to obtain a guilty verdict and to win on appeal.
Here's what I see, as a prosecutor reading this report.
There is an attack by a foreign country on our country and on
our elections, and on multiple occasions the President tried to
thwart it, curtail it, or end it completely either by removing
Mueller outright or by interfering with his ability to gather
evidence.
Here are some examples of the President's behavior,
documented by witness testimony and evidence collected by the
special counsel.
In the middle of the investigation, the President ordered
his White House counsel to fire the special counsel. When that
effort to fire the counsel became the subject of news reports,
the President asked his White House counsel to lie about it and
to create a false record to back up the lie.
When the White House counsel declined to carry out his
orders, the President moved outside of government, asking his
former campaign manager to get the Attorney General to unrecuse
and to restrict the investigation to interference in future
elections--in other words, no investigation into the
President's conduct, the conduct of his associates, or the
conduct of Russia in attacking our elections.
When the President's campaign manager refused to carry out
this order, the President began to pressure the Attorney
General personally, telling him in the Oval Office that he
would be a hero if he unrecused himself and making clear at the
same time that he would be fired if he didn't carry out the
President's demands. And he was ultimately fired.
The President pressured multiple aides, including General
Flynn, Manafort, and Cohen, not to cooperate with the
investigation. He dangled the possibility of pardons if they
didn't cooperate with the investigation. The President's
personal counsel told his former campaign manager, Manafort,
that he would be taken care of if he sat tight and refused to
cooperate.
This is some of what I see in the report. Based on my
experience of more than 25 years as a Federal prosecutor, I
support the conclusion that more than 1,000 of my former
colleagues came to and that I cosigned in a public statement
last month, saying that if anyone other than a President of the
United States committed this conduct, he would be under
indictment today for multiple acts of obstruction of justice.
The Mueller report has an extensive discussion, a layout of
legal analysis about why a President is not above the law, this
theory that we've discussed about a unitary Executive and the
scope of Presidential power. But you don't have to be a legal
expert to understand that in this country no one is above the
law. If you or I had committed this same conduct, we would've
been charged by now.
So the task before this committee and Congress is not an
easy one. It doesn't bring me any pleasure to have to discuss
these facts. I suspect it does not bring you pleasure to have
to consider them. But I am honored and sobered to have this
opportunity to contribute to your work, and I hope I can be
helpful in answering any questions that you have.
Thank you very much, Mr. Chairman.
[The statement of Ms. Vance follows:]
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Chairman Nadler. Thank you.
Mr. Malcolm.
TESTIMONY OF JOHN MALCOLM
Mr. Malcolm. Chairman Nadler, Ranking Member Collins, and
distinguished Members of Congress, I am the vice president of
the Institute for Constitutional Government at The Heritage
Foundation. I have also served as a deputy assistant attorney
general and assistant United States attorney and associate
independent counsel and as criminal defense attorney.
Special Counsel Mueller deserves a lot of credit for
conducting a thorough investigation. While Volume I of his
report chronicles in detail how the Russians attempted to
interfere in our election and concludes that no one in the
Trump campaign was involved in that unlawful effort, I am less
enthusiastic about Volume II.
Under the applicable regulations, it was the special
counsel's duty to provide the Attorney General with a
confidential report explaining the prosecution or declination
decisions reached by him. By not making a traditional
prosecutorial judgment with respect to the obstruction-of-
justice allegations, Mr. Mueller failed to fulfill that duty.
While governing OLC opinions provide that a sitting
President cannot be indicted, there was nothing to preclude the
special counsel from stating that the evidence would be
sufficient to convict the President of obstruction of justice
if that's what he believed.
By not doing so, the special counsel put the Attorney
General in the difficult situation of having to make that
decision. Here, General Barr's determination that the evidence
is insufficient to establish that the President attempted to
obstruct justice is eminently reasonable.
While it is possible for someone to obstruct justice who
did not commit the offense that is under investigation, it is
extremely rare. In the overwhelming majority of cases,
individuals who attempt to obstruct justice do so because they
know darn well that they've committed a crime and fear that the
investigation will uncover that fact.
Moreover, it is almost invariably the case that someone
attempting to obstruct an investigation also engages in other
nefarious activities, such as destroying evidence, suborning
perjury, bribing witnesses, or threatening them with bodily
harm.
Here, the President provided over a million pages of
documents, allowed key members of his staff to be interviewed,
and submitted written answers to questions. These are not the
actions of someone attempting to obstruct an ongoing
investigation, despite being clearly maddened by its existence.
In obstruction-of-justice cases, the most difficult thing
to establish is that the accused acted with a corrupt intent--
that is, for an illegitimate purpose. When someone destroys
evidence or threatens witnesses, this task is relatively
straightforward. Not so here.
The President had perfectly legitimate reasons to be
exasperated by the cloud hanging over his Presidency from this
investigation and for wishing it to come to a speedy
conclusion. The investigation caused some to question the
legitimacy of his election, because the allegations involve
claims that high-level people in his campaign engaged in a
conspiracy with Russia to steal the election. The President
repeatedly expressed concerns that the investigation was
hampering his ability to govern and to engage in foreign
relations, especially with Russia.
President Trump might well have concluded that the
investigation should be curtailed or even terminated, because
it was impeding his ability to do the job that the American
people elected him to do. Such an alternative non-corrupt
motive, rather than naked self-interest, might also explain his
conduct.
Further, adopting Mueller's legal theory could have a
chilling effect on a President, who might well hesitate before
engaging in some controversial action, such as removing an
official, signing an Executive order, or issuing a pardon, out
of fear that his subjective intent might be questioned at some
point in the future by a prosecutor, perhaps a politically
motivated one, undertaking a criminal investigation.
For this reason, the law requires that Congress issue a
clear statement before a generally worded statute, such as the
one that Mr. Mueller relied upon, can be applied to the
President. No such clear statement exists here.
To be sure, OLC has stated that some statutes, such as the
bribery statute, can be applied to the President. However,
while it is easy to disentangle facially criminal acts, such as
paying a bribe or threatening a witness, from legitimate
exercises of Presidential authority, the same cannot be said of
many of the acts that were investigated by the special counsel,
such as criticizing the fairness of the investigation, asking
subordinates to publicly defend him, removing an official, or
contemplating issuing a pardon, each of which may have been
undertaken for a mixed motive or an entirely pure one. Deciding
which is which would inevitably interfere with the President's
ability to serve the Nation as he sees fit in the exercise of
his Article II powers, thereby raising profound separation-of-
powers issues.
While it is certainly true that no man, including the
President of the United States, is above the law, it is equally
true that the President occupies a unique position in our
constitutional structure and that some laws apply differently
to him, and some don't apply at all, at least when there has
been no clear statement by Congress that the law should apply
to him or when doing so might impinge upon the exercise of his
constitutional prerogatives.
I thank you for inviting me here to testify today, and I
look forward to answering any questions you might have.
[The statement of Mr. Malcolm follows:]
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Chairman Nadler. Thank you very much.
Professor McQuade.
TESTIMONY OF BARBARA MCQUADE
Ms. McQuade. Thank you, Chairman Nadler, Ranking Member
Collins, and distinguished members of this committee. I am
honored to be here today, and thank you for the opportunity to
talk with you about obstruction of justice.
I've read the special counsel's report, and, to me, the
most significant finding in that report is that Russia
interfered with our election in sweeping and systematic
fashion. And through that lens, I will share two observations--
first, about what happened and, second, about why that matters.
First, the conduct described in the report constitutes
multiple crimes of obstruction of justice. It's supported by
evidence of guilt beyond a reasonable doubt. And I'm confident
that if anyone other than a sitting President committed this
conduct that person would be charged with crimes.
Second, why does that matter? Well, the obstruction
described in the report created a risk to our national
security. It was designed to prevent investigators from
learning all of the facts about an attack on our country by a
hostile foreign adversary.
Let me explain each of those observations briefly.
First, what happened. The special counsel's report
describes 10 episodes of potential obstruction of justice. And
with regard to four of those episodes, the special counsel
found substantial evidence for all three elements of
obstruction of justice.
Those obstruction crimes include: requesting that White
House Counsel Don McGahn remove Robert Mueller as special
counsel; asking Don McGahn to falsely deny public reports about
that order and to create a false document to support that lie.
It includes reports of efforts to persuade Attorney General
Jeff Sessions to reverse his recusal decision, which would've
been unethical, and to publicly announce that the Russia
investigation would focus on future elections only. It also
talks about efforts to influence the testimony of Paul
Manafort, a former campaign chairman.
Let me focus on just one of those incidents, and that's the
incident where the report describes persistent efforts to
curtail the special counsel's investigation by directing
Attorney General Sessions to reverse his recusal decision and
to limit the investigation to future elections.
President Trump asked various intermediaries, including
Corey Lewandowski, who was at that point a private citizen, to
convey a message to Mr. Sessions, but, ultimately, none of them
did it. But for the acts of those associates, Mr. Trump would
have limited the investigation to future elections. That would
have prevented Mr. Mueller from learning the facts about
Russian interference in the 2016 election--essential to our
national security.
And although Mr. Mueller's investigation did not establish
the crime of conspiracy against the Trump campaign, under
Federal statutes, proof of underlying crime is not required to
prove obstruction. And there's a very important reason for
that. That's because it's the interference in the quest for the
truth that the law prohibits.
And let's not forget that the investigation did establish
sufficient facts to charge 37 defendants with crimes, including
Russian intelligence officials. And that's despite the fact
that some people, including the President, refused to talk to
Mr. Mueller.
The report says that some people lied to the special
counsel, some deleted communications, and some used encrypted
applications to conceal their conversations. As the report
says, given these gaps, the office cannot rule out the
possibility that unavailable information would shed additional
light. This body has the power to obtain additional
information.
The report identified possible motives, including personal
embarrassment, the possibility that his conduct amounted to
crimes, and the legitimacy of his election.
And, second, why it matters. If Mr. Trump had been
successful in limiting the scope of the investigation to future
elections, that would've harmed our national security by
shielding Russia's conduct in attacking the 2016 election. But
for the conduct of other individuals, Mr. Trump would have
thwarted Mr. Mueller's efforts. By seeking to curtail the
investigation, President Trump committed an act that threatened
the national security of this country.
As Robert Mueller concluded in his report, he reiterated
that the central allegation of our indictments were that
multiple and systematic efforts to interfere with our election
occurred. That allegation deserves the attention of every
American.
I hope to answer your questions to give that allegation the
attention that it deserves. Thank you.
[The statement of Ms. McQuade follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Thank you very much.
We will now proceed under the 5-minute rule with questions.
I will begin by recognizing myself for 5 minutes.
Mr. Dean, as you are no doubt aware, the committee
subpoenaed former White House Counsel Don McGahn to produce
White House documents shared with him and his counsel over the
course of the special counsel's investigation and to testify
before the committee on May 21.
At the direction of the White House, Mr. McGahn has not
produced any documents. Additionally, the White House, while it
has not formally invoked executive privilege over any specific
information Mr. McGhan's testimony may cover, has nonetheless
instructed him not to appear at all, merely because it may
implicate the privilege.
Do you agree with the White House, or does Mr. McGahn still
have a legal obligation to appear before the committee? And if
so, why?
Mr. Dean. I have also read the OLC opinion of May 20 that
says that a White House employee or a former White House
employee has total immunity from testifying or appearing before
Congress. That pushes the outer limit further than I have ever
seen it pushed.
And while they cite me in that memo, for two memos I
received, both of those instances, the witness did appear. The
Flanigan memo, for example, it was arranged that he would come
to Congress. In other instances, when Henry Kissinger was asked
to appear, we found a middle ground to have a meeting in Blair
House. So there are solutions to this if the parties want to
cooperate.
So I think this is a smokescreen at this point, and I hope
that the committee will pierce it, because I think it's
important.
Chairman Nadler. Thank you.
Professor McQuade, on page 1 of Volume II of the Mueller
report, the special counsel described the legal and policy
considerations that guided his investigation. The special
counsel begins by noting that his team determined not to make a
traditional prosecutorial judgement and that his office
accepted the Department of Justice OLC conclusion, which states
that an indictment of a sitting President would, quote,
impermissibly undermine the capacity of the executive branch to
perform its constitutionally assigned functions, close quote.
The special counsel, however, made clear, as well, that a
Federal indictment of a sitting President would also
potentially preempt constitutional processes for addressing
Presidential misconduct and specifically referenced Congress'
Article I powers.
What do you make of Special Counsel Mueller's reference
here to Congress' separate authority?
Ms. McQuade. I think that what Mr. Mueller was doing there
was being incredibly deferential. Because he was bound by the
Office of Legal Counsel opinion that said he could not indict a
sitting President, he thought it would be improper to even make
an accusation that would disparage President Trump, because he
did not want to step on the powers of Congress, which alone has
the power of impeachment.
Chairman Nadler. So do you agree with the special counsel
that Congress has an independent duty to investigate possible
misconduct of malfeasance by executive branch officials,
including the President, even if that's a do-over of the
Mueller report?
Ms. McQuade. Yes, I do. And I don't know that I would even
call it a do-over. I think it's a separate inquiry that this
body has a responsibility to conduct.
Chairman Nadler. Thank you.
Now, returning to the Mueller report, the special counsel
specifically notes that he pursued his obstruction-of-justice
investigation in order to preserve evidence and protect the
integrity of future investigations.
The special counsel's report states, quote, while the OLC
opinion concludes that a sitting President may not be
prosecuted, it recognizes that a criminal investigation during
the President's term is permissible. The OLC opinion also
recognizes that a President does not have immunity after he
leaves office. And if individuals other than the President
committed an obstruction offense, they may be prosecuted at
this time.
Given those considerations, the facts known to us, and the
strong public interest in safeguarding the integrity of the
critical justice system, we conducted a thorough, factual
investigation in order to preserve the evidence when memories
are fresh and documentary materials were available, close
quote.
Now, Professor Vance, what is your reaction to the special
counsel's inclusion of this language in the report?
Ms. Vance. This language, I think, explains what we all
know to be true. There has been a little bit of complaint that
Special Counsel Mueller, once he realized he couldn't indict a
sitting President, should not have continued to investigate.
This language indicates that that's not the case. It was
important to investigate while memories were fresh and evidence
could be obtained. And that's because a President is not immune
for all time from prosecution, only while he's in office.
So Mueller could've been investigating for future
prosecutors when the President was no longer in office. He
could've been investigating information about other people,
other than the President, who might have participated in
crimes. There were abundant reasons for this investigation to
continue, this investigation into the criminal justice
implications of the President's conduct.
Chairman Nadler. Thank you.
Finally, Ms. McQuade, the Mueller report also acknowledges
that Congress has the authority to prohibit a President's
corrupt use of his authority in order to protect the integrity
of the administration of justice. The special counsel further
observed that, under applicable Supreme Court precedent, the
Constitution does not categorically and permanently immunize a
President from obstructing justice through the use of his
Article II powers. The Separation of Powers Doctrine authorizes
Congress to protect official proceedings, including those of
courts and grand juries, from corrupt obstructive acts
regardless of their source, unquote.
As such, the special counsel concluded that, quote,
Congress may apply the obstruction laws to the President's
corrupt exercise of the powers of office in accordance with our
constitutional system of checks and balances and the principle
that no person is above the law.
Do you agree with the special counsel's conclusion that the
Constitution permits Congress to prohibit a President's corrupt
act exercised of the powers of his or her office? And if so,
why?
Ms. McQuade. Yes, Chairman. There is an extensive section
in Robert Mueller's report that talks about that. It addresses
that theory that was first advanced by William Barr in the 19-
page memo that he submitted to Congress last summer taking the
view that Congress cannot limit the President because of
separation of powers.
But I think the ultimate conclusion is that the President
does not have just the power to execute the laws but the
Constitution requires that he faithfully execute the laws. And
that means that he cannot act corruptly. He must always act in
the best interests of the country.
And so, yes, I do agree on that theory.
Chairman Nadler. Thank you.
My time has expired. I'll now recognize the ranking member,
the gentleman from Georgia, Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Interesting last comment there. We may get back to that,
this issue of faithful and how that actually turns out.
But I do want to go back to something that you and
Professor Vance have both talked about, and it's this issue of,
did Mueller investigation--were they going to charge or not
charge based on OLC opinions. It's an interesting concept,
especially when you go back to not--it was the final charge for
Mueller, but them to Bill Barr himself, when actually giving
the report, the ultimate charging authority here.
And it said in the letter, the first letter that came from
the Attorney General, it said, after reviewing the special
counsel's final report on these issues, consulting with
department officials, including Office of Legal Counsel, and
applying the principles of Federal prosecution that guide our
charging decisions, the Deputy Attorney General, Rod
Rosenstein, and I have concluded that the evidence developed
during the special counsel investigation is not sufficient to
establish that the President committed an obstruction of
justice offense. And our determination was made without regard
to or based upon any limitations based on the considerations
surrounding the indictment.
Interesting, this has been discussed later on, because it
became the--after the discussion, there was a joint statement
put out by the Attorney General's Office and by the Special
Counsel's Office that said this: The Attorney General has
previously stated the special counsel repeatedly affirmed that
he was not saying that but for the OLC opinion he would've
found the President obstructed justice. The special counsel
report and his statement today make clear that the office
concluded that it would not reach a determination one way or
the other about whether the President committed a crime. And
there's no conflict between these statements.
So I think the interesting part that is coming along here
is this discussion on the fact that it does appear, and you can
take one part saying he was bound by this, and you can--but the
Attorney General made it very clear that when he looked at it--
and it was up to him if he wanted to move forward with charges.
He chose not to charge because Mueller had gave it to him, and
took into account the special counsel's determination, and then
later on with the special counsel himself saying that he wasn't
going to charge either way and was not bound by this opinion.
My question becomes, though: You've got great opinions,
both of you, on these issues of obstruction, but, again, as I
said before in the start of this, the main priority--and you
both mentioned this--was the Russian interference in our
elections.
Ms. McQuade, I have a quote, and it was a tweet from you
that says: Hey, Mueller, look over here. @Maddow has found the
collusion. Follow the sanctions. If this whole cable news
doesn't work out for you, Rachel, you have a real future in the
FBI.
This was December 1, 2018.
I have a question. Yes or no, do you and Rachel Maddow have
evidence of collusion that the special counsel didn't have?
Ms. McQuade. Well, you know, ``collusion'' is an
interesting term, Congressman Collins, and it's a term that
Robert Mueller in his report says I didn't use, because it's
kind of confusing. And so, ultimately, after reading his
report, what he says is: I wasn't able to establish the crime
of conspiracy.
But he did document numerous contacts between Russia and
the Trump campaign. In fact, right at the very beginning of the
report, at page 1----
Mr. Collins. And, Ms. McQuade, I want to jump in here,
because I agree with--and you can report the report. You just
made an interesting comment, though, in which many of us have
said about this issue of collusion, which there was not.
But I've had many, even Members of Congress and others
continue this--that there was collusion in plain sight; the
President's committed a crime. And when you just stated the
original process here--but my question is--I'm assuming it's a
``no''--you don't have any more information or evidence than we
have here.
John Dean, just----
Ms. McQuade. I'm sorry, is that a question? May I answer?
Mr. Collins. No, that was--I've got a minute and 57. I'm
bound by the 5-minute----
Ms. McQuade. Refer to page 1 of the report.
Mr. Collins. And I've read it. Thanks.
Mr. Dean, interesting, you talked about the issue of
pardon. But, actually, in the Mueller report itself, when it
talked about the pardon--and you discussed it where Nixon said
he shouldn't have. The actual quote on page 122 of this was ``I
don't want to talk about pardons for Flynn yet.'' In fact, the
President actually said ``I don't want''--he never offered a
pardon. He didn't want to talk about it.
So, again, here's our issue here. And you made the best of
all of the concerning of this right now when you started off
saying ``I am not a fact witness.'' Neither are others. We're
simply here conjecturing opinions in law school, and for those
of us writing notes feverishly, I feel like, Professor, we're
back in law school again.
But at the end of the day, where we're heading with this
is--the concern that I have is that we have--going back, and
the discussion was here for later on, what does this committee
have that Robert Mueller didn't have? What does this committee
have? When you go through the, literally, 19 lawyers, 40 FBI
agents, 2,800 subpoenas--we barely can get through most of our
workweek without stopping up.
So I think the question and concern for most of here is,
this not a redo, as the chairman--it is a redo from a less--
weaker position and simply goes back to what has always been
said here: This is a political consideration, not a criminal,
because we're not an investigative--there's plenty more that I
would like to have answered here. We just, unfortunately, are
bound by our times on this.
And, with that, I'll have to yield back to the chairman.
Mr. Dean. Mr. Chairman, may I----
Chairman Nadler. The gentleman's time has expired.
The witness may answer the question.
Mr. Dean. Yeah, the question was addressed to me. And I
think that this committee does have a role, and it is adding
something that the special counsel could not, and that's public
education.
This report has not been widely read in the United States.
It's not even been widely read in the Congress, from some of my
conversations. But I think it's a very important function that
the committee is serving by bringing these matters to public
attention.
Mr. Collins. I appreciate that and for the educational
purposes. I really meant it more as a statement and not a
question.
Chairman Nadler. The gentleman's time has now expired.
The gentlelady from California, Ms. Lofgren, is recognized
for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
On May 17, 2017, Deputy Attorney General Rosenstein
appointed the special counsel. And on page 8 of Volume II of
the report, it states, and I quote: In the days following the
special counsel's appointment, the President repeatedly told
advisors, including Priebus, Bannon, and McGahn, that Special
Counsel Mueller had conflicts of interest.
On page 81, the report states, and again I quote: Bannon
recalled telling the President that the reported conflicts were
ridiculous and that none of them was real or could come close
to justifying precluding Mueller from serving as special
counsel.
On May 23, the Justice Department cleared the special
counsel of any conflicts, and on page 81 of Volume II, it
describes the President's reaction, quote: The President
complained about the asserted conflicts and prodded McGahn to
reach out to Rosenstein about the issue. McGahn said he
responded that he could not make such a call and the President
should instead consult his personal lawyer because it was not a
White House issue.
Mr. Dean, you recalled that you were here last July 11,
1974. I was here, too, working for my predecessor, Don Edwards,
who was a member of the Judiciary at this time.
You have extensive experience as the counsel for the White
House. Understanding the role of White House counsel, why would
McGahn refer the President to private counsel?
Mr. Dean. Because what's happened since my day in the White
House is, the American Bar Association developed a rule, Rule
1.13, which makes it very clear in representation of an
organization that the client are not the constituents of the
organization or the person--or who runs the organization or
people who run the organization; it is the organization.
As a result, Mr. McGahn represents not Donald Trump, but he
represents the Office of the President. So he has a very
different client.
He also, apparently, from press reports, has advised the
President that he has no attorney-client privilege. So that's
why I--I would assume is the reason he referred the President
to outside counsel to deal with these issues.
Ms. Lofgren. Thank you.
The report goes on to cite contemporaneous notes taken by
Mr. McGahn on May 23. On pages 81 and 82 of Volume II, it says,
quote: McGahn advised that the President could discuss the
issue with his personal attorney, but it would look like still
trying to meddle in the investigation, and knocking out Mueller
would be another fact used to claim obstruction of justice.
Professor Vance, what is your reaction to this exchange
between the President and the White House counsel?
Ms. Vance. This entire set of facts, Congresswoman, is very
troubling. Because remember where we are at this point in time.
We have a special counsel who's just been appointed to
investigate Russian interference with the election. And now,
suddenly, we have a President who's looking for reasons to
remove him.
And the reason that the President lands on is, well, this
special counsel have has some conflicts. He shouldn't be
permitted to run an investigation into me. He engaged in some
representation with some other lawyers who represented me. We
once had a squabble about a golf course. There were a couple of
issues that the President raised. And those issues were
examined by the Justice Department, and the Justice Department
cleared Special Counsel Mueller. So there has never been,
legally, a conflict with Special Counsel Mueller's
participation in this case.
But the President persisted here. And as you have discussed
with Mr. Dean, that was referred on to the President as a
matter he should take up his personal lawyer, not to continue
discussing with the White House counsel.
And this repeated fallback by the President to the notion
that he should be able to somehow conflict the special counsel
out of his job was receiving strong pushback. So the
President's continued persistence here, at least in my
judgment, forms one of the acts of obstruction, ultimately
resulting in the President taking affirmative steps to have
Special Counsel Mueller fired.
But this entire colloquy that you refer to is very
instructive on the issue of the President's intent at this
point in time.
Ms. Lofgren. Thank you, Professor.
Professor McQuade, do you see it similarly? What's your
reaction to this?
Ms. McQuade. It is. And I think one of the things that's
important, I know the report is long at 448 pages, but it
really is important to read the whole report. And I would urge
everyone here to do so if they have not yet had an opportunity,
and members of the public. Because even though only a handful
of the obstructive acts were found to have met each and every
element of obstruction of justice, I think it's really
important to see the whole context of behavior to understand
the significance of those events.
You know, if this were a criminal case in court, a jury
would be instructed to look at the totality of the
circumstances so that they can have a full understanding of
what's going on. And it seemed that what's going on here,
looking at the totality of the circumstances, is that President
Trump felt threatened by Robert Mueller. He felt threatened by
him, even though there was no ultimate finding of a crime of
conspiracy. At the time the investigation was going on,
President Trump didn't know that was going to be the outcome.
In fact, he was aware of numerous contacts with Russia that
may be exposed, the Trump Tower meeting with Russians and his
family members. There was also the matter of Michael Cohen's
payments to a woman to buy her silence before the election. All
of those things could have been things that motivated President
Trump.
Let's not forget that one of the things that motivated Bill
Clinton was covering up an extramarital affair. And so there
are things other than the crime that the investigator is
looking at that could motivate a person to try to end an
investigation. And under the law, they are equally prohibited.
Ms. Lofgren. My time has expired.
Chairman Nadler. I thank the gentlelady.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Dean, to the best of my knowledge, I don't think that
we've ever met. I'm one of 435 Members of the House. There are
a lot of us, but only one of you, and you're pretty famous. Let
me take you back a ways.
Back in 1972, I was a freshman in college, and I voted for
President for the first time. I'd have been 19 years old. I
voted for Richard Nixon, principally because I thought he was
improving relations with Russia and with China, and I thought
that was a good thing.
Well, the next year, 1973, in June, June 22nd, to be exact,
I married my high school sweetheart. Next week, we'll have been
married 46 years now. And on our honeymoon in Gatlinburg,
Tennessee, and then in Mammoth Cave, Kentucky, among other
things that I remember, I remember watching you testify before
Congress about the President that I had voted for and about
some very bad things that he had done.
The next year, of course, that President resigned in
disgrace and was replaced by Gerald Ford. A lot of my friends,
people my age at the time, were really turned off from
politics, thought they were a bunch of crooks, why would
anybody ever want to be involved in politics. It had just the
opposite effect on me. I thought we needed people involved in
politics for the right reason, they want to help their
community or the country.
And so I decided that some day I was going to get involved
in politics and--I voted for, a couple years later, '76, I
voted for Jimmy Carter, by the way, for President, because I
thought it was wrong that Ford had been pardoned--had pardoned
Nixon, figuring that there had been some sort of crooked deal
that went on there.
So, anyway, a couple years later, I did get involved in
politics. And I ran as an independent for Cincinnati City
Council. I lost. Then 2 years later, I ran as a Republican, and
this time I lost again. So, finally, I did get elected to
council the next time, served for 5 years there, served for 5
years as a county commission, and then lo and behold, back in
1994, in the Republican revolution, I got elected to Congress
and got appointed to this committee that I wanted to be on.
So 25 years after watching you on television, relative to
Nixon and Watergate, I was a member of the Judiciary Committee
impeaching another President, this time William Jefferson
Clinton. And I'm one of only two Members in the House who were
actually House impeachment managers in the Senate trial. Jim
Sensenbrenner was the other.
Now it's 20 years after that, and it's been alleged that
another President did something wrong, that he allegedly
colluded with the Russians to win an election.
I thought the responsible thing to do was to reserve my
judgment until the special counsel, this time Robert Mueller--
it was an independent counsel back under Clinton--until the
special counsel this time completed his report on the matter.
He did, and he found no collusion. And he sort of punted on
obstruction of justice, but the Attorney General determined no
obstruction of justice.
So, Mr. Dean, my question to you is this: Rather than
reserve your judgment until the Mueller report came out, like I
did, you were an outspoken critic of President Trump, and you
alleged publicly on more than one occasion, even before the
Mueller report came out, that you believed President Trump had
colluded with the Russians. Isn't that true?
Mr. Dean. I don't think I quite said collusion. I think
there is evidence, incidentally, in the report, of collusion.
There have been a number of well done articles that draw on the
different contacts between the Trump people and the Russians
and make a fairly strong case for collusion.
Mr. Chabot. I think----
Mr. Dean. I'd just like to correct you on one fact, that
you couldn't have, in 1971, have been attracted to Nixon
because of China, because he hadn't gone to China yet.
Mr. Chabot. I voted in '72.
Mr. Dean. Right. By '72, it was in the--during the '72----
Mr. Chabot. Yeah.
Mr. Dean [continuing]. Campaign.
Mr. Chabot. Right. That's what I mean, yes.
Mr. Malcolm, let me go to you. It's my understanding that
it's your view that President Trump neither colluded with the
Russians nor obstructed justice. Is that correct?
Mr. Malcolm. It's Special Counsel Mueller's conclusion on
the former. And then on the latter, I don't think as a legal
matter, under the statute that Mueller relied upon, he could be
convicted of obstruction of justice. And I thought the
determination, based on the facts, was an eminently reasonable
one that he did not engage in obstruction of justice.
Mr. Chabot. Okay. And real quickly, when Attorney General
Barr announced his determination on alleged obstruction of
justice, was he within the scope of his authority to do so?
Mr. Malcolm. It was within the scope of his authority to do
whatever he wanted. I thought that the regulations say that he
was supposed to make a prosecution or declination decision,
which he failed to do, but, you know, he was given the
authority to investigate these matters and he did what he did
in his report.
Mr. Chabot. Thank you very much.
My time has expired, Mr. Chairman.
Chairman Nadler. Thank you.
The gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. As I hold this book up, all that we say
refers to this roadmap. On June 13, 2017, the Acting Attorney
General testified before Congress there was no good cause to
remove the special counsel. On June 14th, 2017, the President
issued a press statement stating he had no intention of firing
Mueller. However, on page 90 of Volume II of this report, the
report says, quote, but the next day the media reported that
the President was under investigation for obstruction of
justice, and the special counsel was interviewing witnesses
about events related to possible obstruction, spurring the
President to write critical tweets about the special counsel's
investigation. The President called McGahn at home that night
and then called him on Saturday from Camp David.
Pages 85 to 87 of Volume II provide more details on the
Saturday call between the President and the White House
counsel. Page 85 says on Saturday, June 17th, 2017, the
President called McGahn and directed him to have the special
counsel removed. McGahn was at home and the President was at
Camp David. In interviews with this office, McGahn recalled
that the President called him at home twice, and on both
occasions, directed him to call Rosenstein and say that Mueller
had conflicts that precluded him from serving as special
counsel.
Page 85 provides further detail about the first call.
Quote, on the first call McGahn recalled that the President
said something like, you gotta do this, you gotta call Rod.
McGahn said he told the President that he would see what he
could do. McGahn was perturbed by the call and did not intend
to act on the request.
Mr. Dean, speaking as a former White House counsel, why
would that call from the President perturb McGahn?
Mr. Dean. Well, I think Mr.--I think Mr. McGahn has stated
that he was very aware that firing the special counsel could
provoke an equivalent to the Nixon Saturday Night Massacre,
which while he wasn't old enough to have remembered it
personally, he'd certainly read about it and knew the negative
consequences that had flowed from it. And so he stepped away
from it and didn't want any part of it.
Ms. Jackson Lee. Page 86 of Volume II of the report
describes the second call. Quote, when the President called
McGahn a second time to follow up on the order to call the
Department of Justice, McGahn recalled that the President was
more direct, saying something like, call Rod, tell Rod that
Mueller has conflicts and can't be the special counsel. More
direct. McGahn recalled the President saying, Mueller has to
go, and, call me back when you do it. McGahn understood the
President to be saying that the special counsel had to be
removed by Rosenstein.
What do you believe--or what is your reaction to this
exchange, and would you find such behavior concerning,
Professor Vance and then Professor McQuade?
Ms. Vance. Yes, this conduct to me seems to have all the
elements prosecutors would need to have to successfully charge
obstruction of justice. There's an obstructive act, the effort
to go ahead and have the special counsel fired. There's a nexus
to an investigation. At this point, the President is aware that
investigation is ongoing. And there appears to be a corrupt
motive as well curtailing the special counsel's investigation.
So this entire series of conversations and conduct is deeply
troubling.
Ms. Jackson Lee. Thank you.
Professor McQuade.
Ms. McQuade. Yes, Congresswoman, I would agree with that,
in fact, it prompted Don McGahn to believe he had to resign
because he could not participate in something that would be
akin to the Saturday Night Massacre in the firing of Robert
Mueller. He understood the significance of it, the
consequences, and that it would amount to a crime of
obstruction of justice.
And this idea that Robert Mueller was in any way conflicted
really was frivolous. As officials advised him, it was based on
the fact that President Trump said he interviewed for the FBI
job and didn't get it. That's not quite right. He came in and
provided advice to the White House about what to look for in
the next FBI Director. And the squabble about a golf club
membership was actually Robert Mueller said, I work so hard
that I never have time to play golf, could I have a refund, I'm
going to resign from the club. And the Trump Organization said
no. That was the conflict of interest.
Ms. Jackson Lee. Page 78 of the report said McGahn did not
carry out the instruction for fear of being seen as triggering
another Saturday Night Massacre and instead prepared to resign.
Page 85 and 86 provide a bit more context to McGahn's state
of mind after receiving these phone calls. Quote, McGahn, once
concerned about having any role in asking the Acting Attorney
General to fire the special counsel, because he had grown up in
the Reagan era and wanted to be more like Judge Robert Bork,
and not Saturday Night Massacre Bork, McGahn considered the
President's request to be an inflection point, and he wanted to
hit the brakes.
Very quickly, Mr. Dean, you mentioned it before, what was
the Saturday Night Massacre?
Mr. Dean. I'm sorry, I missed----
Ms. Jackson Lee. What was the Saturday Night Massacre?
Mr. Dean. Saturday Night Massacre occurred in October of
1973, when Richard Nixon removed or fired Archibald Cox as the
special counsel--the Watergate special prosecutor, because he
exceeded what Nixon thought was his authority to demand tapes,
the secret Nixon recordings. He had told him that they would
offer them to the--a member of the Senate, John Stennis, who
happened to have a very bad hearing problem, to validate the
White House-prepared transcripts, and Special Counsel Cox
rejected it.
And Nixon asked the Attorney General to fire him, Mr.
Richardson, who refused and resigned. He asked, in turn, Mr.
Ruckelshaus, the Deputy Attorney General, to fire Cox. He too
refused and resigned. It went to the third person in line of
authority in the Department of Justice, to Mr. Bork, who did
carry out the order.
Ms. Jackson Lee. Thank you.
Chairman Nadler. Thank you. The gentlelady's time has
expired.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
It's unusual to have the majority fail to properly give the
basis for expertise of one of its own witnesses, but, Mr. Dean,
you've got a lot more qualifications in this area than they
actually provided in the introduction.
Back when The New York Times was more accurate, they
reported that in your case, John Scirica, the judge, read the
formal charges regarding the conspiracy to thwart the
investigation, and he read as follows, that you were suborning
perjury, giving false statements, and concealing evidence in
the trial before Judge Scirica last winter. Of the men arrested
in the break-in, offering clemency to the defendants, paying to
keep the arrested men silent, asking the Federal Bureau of
Investigation for information, attempting to get the CIA to
provide money for the payments.
In furtherance of the conspiracy, Judge Scirica continued
reading, Dean had committed six overt--specific overt acts. On
or about June 27, '72, he directed G. Gordon Liddy to tell
Howard Hunt to leave the United States. He asked the General
Vernon Walters, the Deputy Director of the CIA, whether the CIA
could use covert funds to pay the bail and salary to those
involved in the Watergate break-in. He had asked the
President's former private attorney, Herbert Kalmbach, to raise
funds with which to make the payments to Watergate defendants.
He had met with Jeb Stewart Magruder on the campaign staff to
help Magruder prepare false, deceptive, and misleading
testimony to give the grand jury. He had asked John Caulfield
to offer executive clemency to James McCord, another of the
original defendants. And he had asked L. Patrick Gray, former
Acting Director of the FBI, for reports of information gained
in the investigation break-in.
We've heard different reports from different people
involved. Magruder ended up saying, after different versions,
that you're the one that ordered the break-in of the Watergate
headquarters. And I see you shaking your head, but did you ever
order or convey and order the break-in to the Democratic
headquarters at Watergate Hotel?
Mr. Dean. First of all, on your description of my pleading
guilty----
Mr. Gohmert. Yeah, that came from The New York Times. You
can take it up with them.
Mr. Dean. Right.
Mr. Gohmert. But did you ever order----
Mr. Dean. May I explain before I answer?
Mr. Gohmert. Well, you can either answer the question or
not.
Mr. Dean. I'd be happy to answer your question.
Mr. Gohmert. Please.
Mr. Dean. The question is, did I ever----
Mr. Gohmert. Did you order----
Mr. Dean. Yes----
Mr. Gohmert [continuing]. Or ever convey the order to break
into the Democratic headquarters?
Mr. Dean. No.
Mr. Gohmert. All right, thank you. And I know I wasn't----
Mr. Dean. In fact, I have no evidence that anybody at the
White House knew of it.
Mr. Gohmert. Well, look, I've only got 5 minutes----
Mr. Dean. Okay.
Mr. Gohmert [continuing]. And the chairman is not as
liberal with us as he is with the Democrats. But for those who
are not familiar with the statements here, in his last civil
suit, Mr. Dean said, it could be that I misspoke myself, it's
either a misstatement or an incomplete transcription, highly
possible I just misspoke myself. We were trying to paint with
the broadest brush we could, and maybe not our ploy stating
here, maybe it was imposing hindsight on events. That is a less
than accurate description--don't know what he had said
previously--obviously it was a self-serving answer.
So maybe I can help some of my colleagues if you're tempted
to go after questions like that. But----
Mr. Dean. I don't even know what you're referring to.
Mr. Gohmert. It was the last civil suit you were involved
in with Mr. Liddy, where he had begged you to sue him because
he called you the biggest liar in the world and things of that
nature. And you finally sued him with a bunch of other people
and ultimately dismissed the case against him without going to
trial, as he had asked you to do.
Mr. Dean. That is not correct.
Mr. Gohmert. But let me--there are similarities, you're
right, with regard to Watergate. In both, an administration was
seeking to illegally spy on another candidate, and both people
were hired to attempt to gather evidence that could be used
against a candidate. In Watergate, the committee to reelect the
President hired burglars to break into the DNC headquarters. In
Watergate, administration officials tried to find ways to use
Federal dollars to pay for their criminal spying.
In Russiagate, members of the Federal Government used the
intel, DOJ, and FBI communities to attempt to defeat a
Presidential candidate. Then when that failed, to have him
removed from office.
In Russiagate, the Clinton campaign and the FBI paid a
foreign agent to collude with Russians to produce opposition
research that turned out completely false, as the Mueller
report indicated, that could be used to commit a fraud upon the
FISA court and get multiple warrants to spy on opposition
campaign. In Russiagate, it was the Clinton campaign, through
Fusion GPS, in concert with the FBI, possibly intelligence, who
hired people to do the spying.
And what really bothers me--oh, and by the way, Professor
White Vance, I have an amazing admiration. I used to tell
people, if you ever talk to a lawyer that says, I'm going to
win at court on this and I'll win the appeal, you run from
them, because they're either incompetent or they're corrupt,
but you have such amazing ability. You know you could win at
court on appeal, so I'm in admiration.
But let me tell you, the frauds that were committed on the
FISA court in this matter and the abuses of American citizens'
Fourth Amendment rights, and the fact that people who once
cared about this country's Fourth Amendment rights, are now
more concerned with taking out another party's President,
making sure he doesn't get reelected, tells me that we are in a
greater danger for our Constitution at this time than we were
from the outside World War II.
And I appreciate getting nearly 30 seconds short of what
y'all did. Thank you.
Chairman Nadler. The gentleman's time has expired without
questions.
The gentleman from Tennessee.
Mr. Cohen. Thank you, Mr. Chair.
First, Mr. Dean, I appreciate your role in history in
ending a corrupt administration and restoring justice.
Chairman Nadler. Are you using the mike?
Mr. Cohen. Secondly, you were being asked by Congressman
Lee about Don McGahn and his refusal to fire--or ask that
special counsel be fired, and he didn't want to be compared to
Bork and the Saturday Night Massacre.
What did you think McGahn meant by comparing the special
counsel being fired for the Saturday Night Massacre to the role
he was asked to engage in, and what was your reaction to the
phone calls between the President and Mr. McGahn?
Mr. Dean. Well, when I read the Mueller report and the
details, my first reaction was that McGahn took the high road,
acting more like Elliot Richardson and Bill Ruckelshaus, and I
thought that was admirable.
Mr. Cohen. He had said he would consider resigning as he
was----
Mr. Dean. Yes.
Mr. Cohen. Prepared his resignation. Is that correct?
Mr. Dean. Yes.
Mr. Cohen. The report goes on to detail how trapped McGahn
felt. Quoting from page 86 of Volume II, McGahn recalled
feeling trapped because he did not plan to follow the
President's directive, but did not know what he would say the
next time the President called. McGahn decided he had to
resign.
Page 87 describes McGahn's phone calls later that evening
with Priebus and Bannon. Priebus recalled that McGahn said that
the President asked him to, quote, do crazy stuff--and I
cleaned it up--but he thought McGahn did not tell him the
specifics of the President's request because McGahn was trying
to protect Priebus from what he did not need to know.
Ms. Vance, if McGahn had carried out the President's
orders, would McGahn face legal jeopardy himself?
Ms. Vance. So it's difficult to answer questions like that
without knowing exactly what would have transpired, but there's
an enormous risk that he would have. And at that point, there
would have been both completed obstruction and a conspiracy to
obstruct.
Mr. Cohen. Mr. Dean, as a former White House counsel, are
these types of requests in the normal course of business?
Mr. Dean. No.
Mr. Cohen. Mr. Dean, understanding the circumstances, was
Don McGahn's decision to ignore the call to get Mueller fired
and McGahn's reaction, to resign, reasonable and appropriate
and commendable?
Mr. Dean. Yes.
Mr. Cohen. Mr. Dean, understanding your history as someone
who was in a similar position but chose differently, what did
you think Don McGahn was afraid of? Why did he feel the need to
protect both his Chief of Staff and other advisers?
Mr. Dean. Well, I think he's somebody who learned from
history.
Mr. Cohen. And if we don't learn from history, we're doomed
to repeat it, are we not?
Mr. Dean. Exactly.
Mr. Cohen. Yes, sir. The following quote and questions may
pose a parliamentary risk--yeah. Let me ask you this, Ms.
Vance, you said that there was a different standard--that the
collusion was in plain sight and that you said that we had to
prove beyond--when they brought a case, that they had to win it
at trial and they had to win on appeal. Is that the same
standard Congress would face in an impeachment hearing?
Ms. Vance. You know, it's not, and that's a very good
point. We've talked a little bit about whether a congressional
inquiry would be a do-over of the Mueller investigation, and a
congressional inquiry is very different.
When prosecutors consider cases, they have to find a
Federal statute, a law that you all have enacted, and make sure
that a defendant has violated--that they can prove a violation
of all the elements of that statute. So here, the notion of a
corrupt act and nexus and corrupt intent. Congress doesn't have
those same restraints.
When Congress examines conduct in its oversight, in its
impeachment function, your jurisdiction, as I understand it, is
much broader, and you could reach conduct that we might
categorize as lawful but awful, something that would be so
inappropriate for a President that Congress would determine it
needed to be sanctioned.
Mr. Cohen. So kind of would we have a--it's a different
standard, but would the standard be kind of preponderance of
the evidence instead of guilt beyond a reasonable doubt?
Ms. Vance. So I think that's correct, and that the way that
you deal with impeachment proceedings is largely up to how
Congress chooses to move forward, the standards that you set,
the way that you define high crimes and misdemeanors. It's a
process that's less cabined by existing statutory criminal law
than the conduct of someone like a special counsel would be.
Mr. Cohen. Thank you. Page 89 of Volume II says--and this
is directly from the report--substantial evidence indicates the
President attempts to remove the special counsel were linked to
the special counsel's oversight of investigations that involved
the President's conduct, and most immediately, reports that the
President was being investigated for a potential obstruction of
justice.
And on page 90 of the report, it states, there also was
evidence the President knew he should not have made those calls
to McGahn. It goes on to say, quote, instead of relying on his
personal counsel to submit conflicts--the conflict claims, the
President sought to use his official powers to remove the
special counsel.
Mr. Dean, do you agree and why?
Mr. Dean. Well, I think it was inappropriate to use special
coun---or the White House counsel, and White House counsel
rejected being so used.
Mr. Cohen. And, Ms. Vance, as a former prosecutor, how
would you evaluate the evidence presented in the report, and
how does it compare to other cases you've seen prosecuted?
Ms. Vance. So for prosecutors, when they evaluate
evidence--you know, I think it's important just to be frank
about this and to note that we're all people, right? We all
have different backgrounds, different likes, different views,
different politics. What prosecutors are trained to do is to
check those beliefs at the door. So the office that I work in
had, I assume, folks who were Republicans and Democrats. We
largely didn't discuss politics in the office.
We look at the evidence through a very narrow filter. That
filter is, evaluate what the law says, evaluate the evidence
that you have, search for the truth, and charge cases where you
believe you can prove beyond a reasonable doubt the elements of
the crime. That's how we have to look at the evidence in the
Mueller report. And in some instances, Mueller investigates in
Volume II, 10 potential instances of obstruction of justice.
In my judgment, some of those I would not indict, but in at
least three core areas, the areas involving removal of Special
Counsel Mueller, and the President's efforts to get Jeff
Sessions to unrecuse and restrict the nature of the
investigation, there appears, to me, to be substantial evidence
that would permit prosecutors to move forward.
Mr. Cohen. Thank you so much.
I yield back the balance of my time.
Chairman Nadler. The gentleman from Ohio, Mr. Jordan.
Mr. Jordan. Thank you, Mr. Chairman.
At a memorial event for David Hamburg, Speaker Pelosi and I
had a chance to discuss impeachment.
Mr. Dean, who wrote that?
Mr. Dean. I did.
Mr. Jordan. Nineteen--excuse me, 1 month ago, May 11th,
2019, haven't we been too long in not giving Trump a meaningful
moniker? Should it be Deranged Don, Deadbeat Don, Demagogue
Don? Thoughts, please, comments.
Mr. Dean, who wrote that?
Mr. Dean. I assume that was mine.
Mr. Jordan. It was yours.
Nineteen days ago, May 22nd, 2019, there was this: We are
witnessing Trump's massive coverup of his criminal behavior as
POTUS is incapable of accomplishing anything.
Mr. Dean, do you know who wrote that?
Mr. Dean. I suspect that was me again.
Mr. Jordan. It was you.
I want to focus on that last sentence. As POTUS, as
President of the United States, he, Donald Trump, is incapable
of accomplishing anything. When you made that statement, Mr.
Dean, what did you have in mind? You thinking about the 3.2
percent economic growth rate we had in the last quarter?
Thinking about the fact we got the lowest unemployment in 50
years? How about the fact that hostages are back from North
Korea?
Maybe you were thinking about this. When you said the
President of the United States was incapable of doing anything,
were you thinking about the fact that the embassy is now in
Jerusalem? I mean, I think about this one. Every single
candidate for as many cycles as I can remember, Republican and
Democrat, have promised the American people, you elect me,
we're going to move the embassy to Jerusalem. And guess what,
they get elected, and they come up with a million reasons why
they can't do what they said they were going to do. But this
President didn't. The embassy is now in Jerusalem.
So I'm just wondering, what were you thinking about when
you said he's incapable of accomplishing anything?
Mr. Dean. Mr. Jordan, I think that under the parliamentary
rules of the House, I'm refrained from addressing a full answer
to your question.
Mr. Jordan. You weren't refrained in your tweets, in your
comments, and the things you wrote.
Mr. Dean. My tweets are not subject to the parliamentary
rules.
Mr. Jordan. They are subject to the state of mind and the
perspective you bring to this hearing. I think the American
people understand.
Let me ask you this, then. Did you give advice to Lanny
Davis or Michael Cohen prior to Mr. Cohen's testimony to
Congress?
Mr. Dean. No.
Mr. Jordan. Well, you said on Erin Burnett's show the night
before Mr. Cohen testified in front of the Oversight Committee,
that Michael Cohen should--you said you had talked to Lanny
Davis and that Michael Cohen should hold his testimony as long
as possible from Republicans. You didn't say that to Mr. Davis?
You said it on Erin Burnett's show the night before Mr. Cohen
testified.
Mr. Dean. Well, I didn't--I didn't say it directly to Mr.
Cohen was your question.
Mr. Jordan. No, it wasn't. My question was, did you give
advice to Lanny Davis or Michael Cohen prior to Mr. Cohen's
testimony to Congress?
Mr. Dean. Yeah. I have known Lanny Davis for almost a
couple decades. And we have talked about it, and I did say, as
soon as you turn your testimony over, it will be picked apart.
Mr. Jordan. So you instructed Michael Cohen's lawyer to
keep information from Republicans, to obstruct the committee
work that we were doing in the Oversight Committee just a few
months ago, you told that to Michael Cohen's lawyer?
Mr. Dean. I didn't quite phrase it that way, no.
Mr. Jordan. Well, you know what, they took your advice.
Mr. Dean. I'm sorry?
Mr. Jordan. They took your advice.
Mr. Dean. Did they?
Mr. Jordan. Yes.
Mr. Dean. I didn't know that.
Mr. Jordan. Mr. Cohen kept his testimony from us for as
long as possible. But you know what else Mr. Cohen did that
day? Lied. Lied seven times. And this is what I think concerns
so many Americans. This is what concerns, I think, so many
Americans about the work that's going on in this Congress, this
116th. The first--the first announced witness of the 116th
Congress is Michael Cohen, a guy who sits in prison today for
lying to Congress. Today, Chairman Nadler brings in front of
the Judiciary Committee a guy to talk about obstruction of
justice who went to prison in 1974 for obstructing justice.
Mr. Dean. I did not go to prison.
Mr. Jordan. Okay. You pled guilty to obstruction of
justice. Glad you got to stay out of prison, then, I guess.
What bothers me the most, though, is this committee's
failure to investigate how the whole Trump-Russia thing
started. This is the Judiciary Committee. We're supposed--how
this whole thing began. And I said this a few weeks ago, but I
want to remind this committee what the Attorney General of the
United States said 8 weeks ago when he testified in front of
the Senate. Said four important things about the beginnings of
the Trump-Russia investigation. Said there was a failure of
leadership at the upper echelon of the FBI. His words not mine.
Upper echelon. That's certainly true. Comey, McCabe, Baker,
Strzok, Page have all been fired, demoted, let go, they're
gone. Some are under investigation by the Justice Department.
He said spying did occur, he said it twice. He said there's a
basis for his concern about the spying that took place. And he
used two terms that, again, I think this committee should find
frightening and should be looking into: unauthorized
surveillance and political surveillance. Scary terms.
So the good news is, even though this Congress has
memorandums of understanding between the key committee chairmen
on how they're going to coordinate their attack on the
President, even though this Congress' first big witness, first
big hearing, Michael Cohen, a guy who sits in prison for lying
to Congress, and even though we now have a guy testifying about
obstruction of justice who pled guilty to obstruction of
justice, we should be looking into the things Bill Barr's is
looking at. Now the good news is, Mr. Durham's doing that.
But this is the part, I think, that frustrates so many. Mr.
Chairman, I would hope the Judiciary Committee, and the history
this committee has for protecting fundamental liberties, would
begin to look into those key issues, the whole premise for how
this Trump-Russia investigation started in the first place.
And I'll finish again with this, Emmet Flood wrote a letter
to the Attorney General a few weeks back. Made an important
point. He said we would all do well to remember, if they can do
it to a President, imagine what they can do to you and me.
Imagine what they can do to regular citizens across this great
country.
That should be what this committee most safeguards and most
protects, and instead, we got memorandums of understanding
between the chairmen, we got Michael Cohen testifying for 7
hours, getting advice from the witness here on obstructing the
committee work and not sharing information with us in a timely
fashion, and now we got John Dean, 45 years ago went to--pled
guilty to obstruction of justice and now coming in to enlighten
the Judiciary Committee on obstruction of justice when we could
be going right to the start of how this whole thing started.
I yield back.
Chairman Nadler. I thank the gentleman.
Before I go to Ms.--to the next witness, I want to point
out that this committee has no memorandum of understanding with
any other committee with reference to any investigations. So I
don't know--I don't know----
Mr. Jordan. Half the committee chairmen do.
Chairman Nadler. This committee has no such memorandum of
understanding. I'm not aware of any others, but there may be,
but this committee has no such memorandum of understanding.
And number two, since the gentleman from Ohio cast
aspersions on the witness, I would remind everyone that after
the--after----
Mr. Jordan. No, I didn't, Mr. Chairman. I read his
statements.
Chairman Nadler. I'm speaking.
Mr. Jordan. I did not cast aspersions. I read his
statements.
Chairman Nadler. Very well. Since I believe the gentleman
cast aspersions----
Mr. Jordan. You're wrong.
Chairman Nadler. Fine. Since I believe the gentleman cast
aspersions on the character and truthfulness of the witness, I
would remind everyone that after exhaustive testimony in 1973,
when the tapes were revealed, it was revealed that everything
that Mr. Dean said was correct and truthful.
The next witness----
Mr. Jordan. Mr. Chairman? Mr. Chairman, if I could----
Chairman Nadler. The gentleman from Georgia is recognized.
Mr. Johnson of Georgia. Thank you, Mr. Chairman.
Chairman Nadler. The gentleman from Georgia is recognized.
Mr. Johnson of Georgia. Thank you, Mr. Chairman.
Mr. Dean, relatively early on in the Nixon coverup, you
told the President that there was a cancer on the Presidency,
and then you came forward and blew the lid off of the whole
coverup. Then you pleaded guilty, you paid your debt to
society. And since that time, you have been an exemplary
individual, committed to truth, justice, and protection of the
rule of law. And for that, I want to thank you for your service
to our country.
For the rest of the witnesses, thank you for your testimony
today.
On January 25th, 2018, The New York Times reported that in
June of 2017, the President ordered Don McGahn to have Special
Counsel Robert Mueller fired. Shortly after that news broke,
the President went on TV and said, quote, Fake news, folks,
fake news, a typical New York Times fake story, end quote.
The report, however, documents a flurry of events--the
Mueller report--documents a flurry of events behind the scenes
after the Times reporting came out. Volume II of page 114 of
the Mueller report says, quote, 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 be making that
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 respects, McGahn could not comply with the President's
request to dispute the story, end quote.
Mr. Dean, why could Don McGahn not comply with this request
to put out a statement denying that he had been asked to fire
Mueller?
Mr. Dean. Excuse me. Because it would have been a--I
suspect what he had in his--I'm projecting myself into his
position. He didn't want to put out a false statement. He
didn't want to become embroiled in something that he knew was
troublesome. He'd already expressed that. It's not dissimilar
from a situation that I found myself in when Nixon announced on
August 29th of 1972, during the campaign, that when he was
asked why didn't he appoint a special counsel, he said, well,
because the Congress is investigating Watergate, the FBI is
investigating Watergate, the General Accounting Office is
looking into why the burglars had fresh $100 bills in their
pocket. There are a number of committees of Congress that are
starting to look at it, but he said most importantly, my White
House counsel, John Dean, has investigated this entire matter
and found that nobody presently employed in this White House
had anything to do with this bizarre incident.
Mr. Johnson of Georgia. And that was a lie?
Mr. Dean. And that was a lie. It was the first I heard of
my investigation. And I was then asked after that, repeatedly,
to issue a report based on my nonexistent investigation.
Mr. Johnson of Georgia. And you declined to do so, why?
Mr. Dean. I did. Because it would have been a lie.
Mr. Johnson of Georgia. And what would have been the result
for you?
Mr. Dean. Theoretically, depending upon the venue, it could
have been anything from a false statement to a perjurious
statement.
Mr. Johnson of Georgia. You could have gone to prison, in
other words?
Mr. Dean. Yes.
Mr. Johnson of Georgia. For doing what you were asked to
do?
Mr. Dean. By the President.
Mr. Johnson of Georgia. Thank you. Page 115 of Volume II
states, quote, On January 26, 2017, Hope Hicks recalled that
the President asked White House Press Secretary Sarah Huckabee
Sanders to contact McGahn about that New York Times story, and
McGahn told Sanders there was no need to respond and indicated
that some of the article was accurate, end quote.
Mr. Dean and also Professor Vance and Professor McQuade,
what is your reaction to this internal effort to get McGahn to
dispute the press report? Mr. Dean.
Mr. Dean. I'll defer to the ladies to start first.
Ms. Vance. Well, Congressman, I'll just say that this is
part of four successive steps that the President takes in an
effort to get the White House counsel, Don McGahn, to change
the story, and this isn't just in response to a press report.
The Mueller report is very careful to say that at the point
that this cascading series of requests go from the President to
McGahn, they're outside of that window where you would just be
trying to respond in the press, and this looks like an
affirmative effort to create an official record that would
confirm the President's story here, which is that he did not
try to get McGahn to fire Bob Mueller.
And so they're actually four conversations. As you've
reflected, there's the counsel-to-counsel call. There's Hope
Hicks' testimony about the President's conversation with his
press secretary. He has an additional conversation with Rob
Porter, the staff secretary. And then finally, there's this
Oval Office meeting where the President says to Don McGahn,
look, you know, you need to change your story, I did not ask
you to fire Mueller. And McGahn pushes back.
And so we have this series of efforts that don't culminate
in obstruction because McGahn refuses to cooperate. But as
Professor McQuade has already told us, this sort of crime,
obstruction of justice, does not depend upon completing the
crime. The attempt to obstruct justice is really the problem
here. That's what interferes with the functioning of our
criminal justice system, and that's why this conduct is so
deeply troubling.
Chairman Nadler. The time of the gentleman has expired.
The gentleman----
Mr. Johnson of Georgia. Could I ask that Ms. McQuade,
Professor McQuade, also be able to answer?
Chairman Nadler. If she's brief.
Ms. McQuade. I will be brief. The only thing I would add to
that is, it demonstrates why it's important to look at the
totality of the circumstances and the conclusion that Robert
Mueller makes with regard to all four of those incidents that
Professor Vance referred to, is that there is substantial
evidence of an intent on the part of President Trump to prevent
scrutiny of President Trump and his campaign.
Chairman Nadler. Thank you very much.
The gentleman----
Mr. Johnson of Georgia. I yield back.
Chairman Nadler [continuing]. The gentleman from Florida,
Mr. Gaetz.
Mr. Gaetz. Thank you, Mr. Chairman. I seek unanimous
consent to enter into the record a December 30 of 2005 essay
written by Mr. John Dean, entitled, ``George W. Bush as the New
Richard Nixon: Both Wiretapped Illegally and Impeachably.''
Chairman Nadler. Without objection.
[The information follows:]
MR. GAETZ FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Gaetz. Mr. Dean, how many American Presidents have you
accused of being Richard Nixon?
Mr. Dean. I actually wrote a book about Mr. Bush and Mr.
Cheney with the title ``Worse than Watergate.''
Mr. Gaetz. So it's sort of become a--did you make money on
that book?
Mr. Dean. It was a very successful book, yes.
Mr. Gaetz. How much money did you make on it?
Mr. Dean. I'm sorry, I don't have any idea.
Mr. Gaetz. More than a million bucks?
Mr. Dean. No.
Mr. Gaetz. More than half a million bucks?
Mr. Dean. I said I don't have any idea.
Mr. Gaetz. How much money do you make from CNN?
Mr. Dean. I don't really know exactly.
Chairman Nadler. I think I'm going to object to the----
Mr. Gaetz. Wait a second, wait a second. Mr. Dean has made
a cottage industry out of accusing Presidents of acting like
Richard Nixon. I would like to know how much money he makes
based on making these accusations and exploiting them for his
own economic----
Mr. Dean. Mr. Gaetz. Mr. Gaetz, I appreciate you were not
born at the time this all happened. The--it's not by choice
that I've done a lot of this. It's that I've been dragged into
it.
Mr. Gaetz. Who forced you--who forced you to accuse George
W. Bush of being Richard Nixon?
Mr. Dean. Who forced me to? It was right after I had to
spend 10 years in a lawsuit knocking down false statements
about what my role had and hadn't been.
Mr. Gaetz. Well, let's speak now to the truth or falsity of
statements. Do you have personal knowledge regarding the truth
or falsity of a single material fact in the Mueller report?
Mr. Dean. I think, if you recall, the first thing I said,
I'm not here as a fact witness.
Mr. Gaetz. You're here to provide historical context?
Mr. Dean. Exactly.
Mr. Gaetz. And throughout history, you accuse Presidents of
acting like Richard Nixon, and you make money off of it, right?
Mr. Dean. Not all Presidents, no.
Mr. Gaetz. But a few, more than one----
Mr. Dean. But if you do act like him, I point it out.
Mr. Gaetz. Let me ask you this question. How do Democrats
plan to pay for Medicare for All?
Mr. Dean. I'm sorry?
Mr. Gaetz. Well, I figured if we were going to ask you
about stuff you don't know about, we'd start with the big
stuff. So do you know how they plan to pay for Medicare for
All?
Mr. Dean. Who? The Democrats or which candidate or--can you
be more specific?
Mr. Gaetz. Let's get specific to Nixon, since that appears
to be why you're here. Do you believe----
Mr. Dean. Well, actually, Nixon did have a healthcare plan.
Mr. Gaetz. Well, good. That's good. Well, do you believe if
we--if we turned the lights off here and maybe lit some
candles, got out a Ouija board, we could potentially raise the
specter of Richard Nixon?
Mr. Dean. I doubt that.
Mr. Gaetz. Well, it seems to be--it seems to be the
objective. You know, here we sit today in this hearing with the
ghost of Christmas past, because the chairman of the committee
has gone to the Speaker of the House and sought permission to
open an impeachment inquiry, but she has said no. And so
instead of opening the impeachment inquiry into Donald Trump,
which is what the chairman wants to do and what I presume a
majority of Democrats want to do, we're here reopening the
impeachment inquiry potentially into Richard Nixon, sort of
playing out our own version of That '70s Show. And what I
really regret, Mr. Dean----
Mr. Dean. It is striking, Mr. Gaetz----
Mr. Gaetz[continuing]. You're here as a prop. You are
functionally here as a prop, because they can't impeach
President Trump, because 70 percent of Democrats want something
that 60 percent of Americans don't. So they're in this no-win
situation, and you sit before us here with no knowledge of a
single fact on the Mueller report, on a hearing entitled
``Lessons from the Mueller Report.'' Here's the ----
Mr. Dean. Mr. Gaetz, may I answer your question, please?
Mr. Gaetz. It's not your time, Mr. Dean, it's my time. So
here's the--so here's the deal, right. We have a false
accusation against the President of the United States that he
was an agent of Russia. My colleagues on the Democratic side
made that accusation. And so where do we go from here? Either
we look into how the President reacted to a false allegation
against him or we look into why, for 22 months, we allowed a
false accusation to tear this country apart.
Now to me, it seems like a far more relevant inquiry to
figure out why the FISA court was lied to, something that you
have spoken a great deal about, Mr. Dean, to find out why the
recordings and the transcripts from George Papadopoulos where
he asserted that he wasn't doing any work with Russia was not
brought before the FISA court. None of that.
We also would love to know why the FBI turned from an
organization that was supposed to be investigating crimes into
one that sought to shape public opinion. You have Comey and
McCabe and that whole regime of leadership, lying and leaking,
and the reason they were doing it is because they didn't really
think that the job of the FBI was to investigate and bring
cases for prosecution. They thought the role of the FBI was to
try to shape public opinion, and that's really why we're here,
and that's what I really think all Americans ought to have an
interest in stopping.
And you held these views, you wrote them down. You said
that illegal surveillance was one of the worst things that we
should fight against as a government, and now here, we are
continuing to engage in this frivolous exercise of going after
the President, despite the fact that there was absolutely no
collusion. You guys need to get your act together and figure
out if you're going to open an impeachment inquiry or not,
because this is a straight-up fiction.
I yield back.
Chairman Nadler. The gentleman's time is expired. The
witness may answer the question.
Mr. Dean. That was a speech. I don't believe I can respond
to it. It's not sufficient time.
Chairman Nadler. The gentleman from Florida, Mr. Deutch.
Mr. Deutch. Thank you, Mr. Chairman.
Returning to the facts of the Mueller report, something
that my colleagues on the other side are taking great pains to
avoid. Let me--let's go back to where we left off. After McGahn
initially rebuffed the White House's request to dispute the
press reports that the President asked him to fire the special
counsel, the report describes additional efforts pursued by the
White House to counteract that reporting.
Pages 115 to 116 of Volume II, details on the interaction
between President Trump and White House senior aide, Rob
Porter. And I quote the Mueller report. Quote, On February 5,
2018, the President complained about the Times article to
Porter. The President told Porter that the article was BS--for
the record, the President did not abbreviate--and he had not
sought to terminate the special counsel.
It then says, and I quote, the President then directed
Porter to tell McGahn to create a record to make clear that the
President never directed McGahn to fire the special counsel.
Porter thought through--thought the matter should be handled by
the White House communications office, but the President said
he wanted McGahn to write a letter to the file, quote, for our
records, and wanted something beyond a press statement to
demonstrate that the reporting was inaccurate. The President
referred to McGahn as a, quote, lying bastard, and said that he
wanted a record from him. Porter recalled the President saying
something to the effect of, quote, if he doesn't write a
letter, then maybe I'll have to get rid of him.
Mr. Dean, as former White House counsel, what does it mean
when you're being asked to write a letter to the file for our
records, and what is the purpose of such a document?
Mr. Dean. Well, this appears to have been a false record
that would be there, that could later be used to impeach Mr.
McGahn should he become a witness. So it was--it was a lacing
of the record in a way that was favorable to the President and
could later discredit McGahn's testimony.
Mr. Deutch. Is it your understanding that White House
counsel can be fired for refusing to write such a letter or for
refusing to dispute truthful press reports of his or her own
actions?
Mr. Dean. The White House counsel can be dismissed for any
reason. He serves at the pleasure of the President.
Mr. Deutch. So on page 116 of Volume II, there's a
description of Porter and McGahn's subsequent discussion about
the press reports and the President's--and the President's
request. Quote, McGahn had planned to resign rather than carry
out the order, although he had not personally told the
President he intended to quit. Porter told McGahn that the
President suggested that McGahn would be fired if he did not
write the letter.
Professor McQuade, what's your reaction to this request for
a letter from McGahn?
Ms. McQuade. This to me--this to me, Congressman, is
perhaps the most serious allegation of obstruction of justice
in the entire report. This is asking Don McGahn to create a
false document, to lie, to manufacture evidence. This is the
kind of thing that gets charged as obstruction of justice all
the time. And even Mr. Malcolm and Attorney General Barr would
agree, I think, that this constitutes obstruction of justice
even by a President because it is not within his permissible
executive powers.
Mr. Deutch. And, Professor Vance, is there a Federal
statute against falsifying records?
Ms. Vance. So there actually is, but Mueller, in his
consideration here, looks at the obstruction of justice
statutes. He looks at 1503, 1505, 1515. And without going sort
of into the arcane way that the obstruction statutes function
together, it's clear that this conduct would be violative at a
minimum of the catch-all clause in 1512.
Mr. Deutch. Right. And so the day after Porter was unable
to convince McGahn, the report describes a meeting between
McGahn and the President of the United States. In advance of
the meeting, the President's personal attorney called McGahn's
personal attorney and said, quote, McGahn could not resign no
matter what happened in the meeting.
On page 116, Volume II, it then details the meeting. Quote,
the President began the Oval Office meeting by telling McGahn
that The New York Times story did not look good and McGahn
needed to correct it. McGahn recalled the President said, and I
quote, I never said to fire Mueller. I never said fire. The
story doesn't look good. You need to correct this. You're the
White House counsel.
The report then goes on to say, quote, McGahn told the
President he did not understand the conversation that way, and
instead had heard, call Rod, there are conflicts, Mueller has
to go. The President asked McGahn whether he would do a
correction and McGahn said no.
Professor McQuade, what's your reaction to this meeting as
I've described it thus far?
Ms. McQuade. What McGahn says is that he thought that
President Trump was testing his meddle, that is, seeing how
firm he was in his recollection of what had happened, and
whether he was going to be movable, and McGahn was steadfast
and stuck to his guns and said, no, this is what happened, you
did ask me to fire him. Maybe you didn't use the word ``fire,''
but you said he needs to go, you have to remove him. And so
even if the precise words were not accurate, the gist of the
story was, and McGahn was steadfast in his refusal to deny it
falsely.
Mr. Deutch. I thank you, Professor McQuade.
Thanks to all of our witnesses, and I appreciate the
attention that you're giving the facts as we proceed through
this.
Mr. Chairman--Mr. Chairman, just if I may, we were told
earlier by one of our colleagues what this committee should
most safeguard and protect. We were given some guidance on what
that should be, and I think as we work through this, it's clear
that what this committee should most safeguard and protect is
getting the truth and defending the Constitution.
I yield back.
Chairman Nadler. I thank the gentleman for the observation.
The gentleman from Arizona, Mr. Biggs, is recognized.
Mr. Biggs. Thank you, Mr. Chairman.
You know, I appreciate all of you being here today, but I
do find this to be a bit of a--an absurd hearing that we're
holding today.
Let's talk about Mr. Dean for just a second. You're no fall
guy in the Watergate scandal. The FBI referred to you as the
master manipulator of the coverup.
Mr. Dean. Incorrectly.
Mr. Biggs. The U.S. attorney said that you were at the
center of the criminality. The special counsel's office found
19 material discrepancies between your testimony and was what
was found recorded on White House tapes. What was actually
recorded, 19 material discrepancies.
That makes you as an additional convicted felon, sentenced
1 to 4 years in prison. Although you tell us that you didn't
serve--you didn't go to prison, and that's true, you didn't go
to prison. You went to a special witness facility, while you
were testifying, after you turned State's evidence. Allegations
against you included the conspiracy to obstruct justice;
rehearsing Jeb Magruder for his false grand jury testimony,
which would be subordination of perjury; destroying documents
retrieved from Howard Hunt's office, which would be destruction
of evidence; taking $4,000 of campaign funds from the office
safe to pay for your honeymoon, that would be embezzlement; and
improperly disclosing prosecutorial information to Watergate
defense counsel, which would be misuse of government
information.
Those things would make you, in my opinion, an inherently
incredible witness. But see, we're not just talking about your
credibility as a witness. You're a biased witness as well. You
spent the last 45 years trying to rehabilitate yourself, and I
don't blame you. And you've written numerous books, you've
claimed multiple Republican administrations as being worse than
Watergate. You wrote a book in 1987 called ``Worse Than
Watergate.'' It's about Bush and Cheney. You later wrote
another book--having called this President, by the way, a
nitwit--but your other book is called ``Broken Government: How
Republican Rule Destroyed the Legislative, Executive, and
Judicial Branches.'' Somehow, the impeachment against Mr.--
former President Clinton, which you described as absurd, but
every Republican President since virtually has been accused of
impeachable offenses by you. That makes you a biased witness.
Incredible and biased.
Moreover, you've come in here today, and it's the one thing
I absolutely agree with you on, you're not--you don't have any
expertise with regard to facts. You're not the fact witness.
You said that, it's written right in your report. I don't
disagree with that at all. I agree with you a hundred percent.
But you're trying to give us historical context. And when you
try to give us historical context, I refer you back to, number
one, incredible witness; number two, biased witness. So so much
of what you say seems very difficult to accept at face value,
quite frankly. So I had to leave it there.
But I will just say that our chairman has said that
obstruction of justice is a, quote, serious crime that strikes
at the heart of our justice system, close quote. Is it not
ironic, then, that you were brought here today as one convicted
of obstruction of justice, with no information regarding the
underlying Mueller report. In fact, none of the witnesses have
it. This is all--this is all conjecture, legal posturing,
discussion back and forth, banter back and forth. It doesn't
get at the heart. We--you don't know any more than any of us.
Everybody up here, I would hope, has read the Mueller
report. If you've read it--and it sounds like most of you have
and all of you have--then that's a good thing, but it doesn't
mean you have any kind of special kind of information to give
to us today. So that's a problem.
I'm going to cut right now to the distinction that was made
by Professor McQuade, which I thought was quaint. Execute
versus faithfully execute. Who determines whether someone's
faithfully executed it? Whether it be the executive branch,
that would be the President. So I want to give you some things.
Delaying the ACA past its enactment date, would that be
faithfully executing? Probably not. Refusing to enforce Federal
drug laws under, quote, prosecutorial discretion? Probably not
faithfully executing. Allowing the IRS to target Conservative
groups? Probably not faithfully executing your duties under the
law. Creating DAPA in addition to DACA, which was ruled
unconstitutional by the U.S. Supreme Court? Probably not
faithfully executing your duties. Attempted to recess a point
three NLRB members and the CFPB head, all found to be illegal?
Probably not--probably not faithfully executing your duties.
And if your administration had lost more Supreme Court cases
than any other modern President, one might question whether you
were faithfully executing your duties because the United States
Supreme Court repeatedly rejected what you were attempting to
do.
So I find it interesting that that was even brought up,
but, again, this is an absurdist act. But I will say this. At
least when I read Ionesco or Pirandello, I know one thing,
they're trying to really get at something serious. And this has
turned into Vaudevillian Farce to me.
My time has expired.
Chairman Nadler. I'll permit Mr. Dean to answer the--
aspersions on him.
Mr. Dean. Mr. Biggs, if I might, I did my best to tell the
truth when I was asked. I did my best internally to break up
the Watergate coverup when I realized we were on the wrong side
of the law. It was an unpleasant role to have to fulfill. But I
do know this subject pretty well. I spent 4 and a half years
recently transcribing all of Mr. Nixon's Watergate
conversations. I learned a lot I had no knowledge of.
When I served as White House counsel, it was 255 days after
the arrest at the Watergate that I had my first meeting with
Richard Nixon. I would have 39 meetings: 37 of them are
recorded; 13 are television--excuse me--are telephone calls; 26
are meetings.
Earlier was mentioned that I had somehow misrepresented
these meetings. The person who did that did it based on 9 tapes
when there are 39. Others have looked at all of them and say,
well conflated some dates, I got the gist of all of the
conversations correct.
As a former assistant--as a former U.S. attorney, I think
you can appreciate when somebody's in the Witness Protection
Program, there's a pretty serious reason. I was in and out of
it for 18 months because of the death threats. That wasn't a
pleasant place to be.
Finally, I noticed that you went to ASU. I happen to have
been the Goldwater Professor of American Institutions there.
And I guarantee you I tried to educate those students on the
facts. So you might want to take it up with the regents if you
have these kinds of problems with me.
Chairman Nadler. The gentleman's time has expired.
The gentlelady from California, Ms. Bass.
Ms. Bass. Yes, I want to continue to focus on page 116 of
Volume II.
The President asked McGahn in the meeting why he had told
Special Counsel Office investigators that the President had
told him to have special counsel removed. McGahn responded that
he had to and that his conversations with the President were
not protected by attorney-client privilege.
Mr. Dean, as a former White House counsel, why would such
conversations not be covered by attorney-client privilege?
Mr. Dean. Congressman Bass, the rule--there could be
partial coverage of attorney-client. What happened during the
Clinton impeachment is that this was tested in the courts in
the District of Columbia and determined that, indeed, there was
no such privilege, that government lawyers really do owe it to
the public to be--when asked--able to report their
relationships with their principals. So it was more of a matter
of, you know, transparency than privacy in these instances. So
Lindsey, was ruled, for example, in the Lindsey case to not
have a privilege with the First Lady, Hillary Clinton.
Ms. Bass. Thank you.
Before continuing, I'd like the witnesses to look at the
demonstrative displayed which goes through a timeline of these
events. And I'd like to ask Professor Vance, what is your
reaction to the events in this timeline?
Ms. Vance. So this is the timeline--I'm sort of trying to
read it quickly as we look at it.
Chairman Nadler. Use the mike, please.
Ms. Vance. Sorry, you all.
I'm reading the timeline as I'm responding to your
question. But this is, again, the President's--this cascading
conduct where the President tries repeatedly to get McGahn to
fire the special counsel. We already know what his reaction was
to news of the special counsel's firing. Now he seems
determined to have him removed. And Don McGahn, by the same
token, as Mr. Dean has explained, realizes that he cannot
participate in that for the obvious reasons.
This reflects these four different steps that the President
takes repeatedly trying to get McGahn to fire the special
counsel.
Ms. Bass. Thank you.
Well, still on page 116, the reports says, and I quote, The
President then asked: What about these notes? Why do you take
notes? Lawyers don't take notes. I never had a lawyer who took
notes.
McGahn responded that he keeps notes because he is a real
lawyer and explained that notes create a record and are not a
bad thing.
The President said: I've got a lot of great lawyers like
Roy Cohn. He did not take notes.
So, Professor McQuade, what purpose or function does note
taking serve for lawyers? What are the negative consequences if
a lawyer does not take detailed notes, especially when
interacting with clients?
Ms. McQuade. I think an ethical lawyer takes notes because
he wants to preserve a record of what actually happened so that
if there is a question a year or 2 years from now, we can go
back and look at the notes and have a full understanding of the
facts.
The reason to not take notes, I maintain one of which would
be to maintain plausible deniability. There is no record of
what actually happened, and you maintain the ability to deny
things if there is no record.
Ms. Bass. Mr. Dean, as a common practice or in the ordinary
course of business for a White House counsel to document or
take notes of his or her meetings in the White House, including
those with the President.
Mr. Dean. I think it depends on the counsel. I was once
asked by one of the senior members of the staff, Richard Moore,
if I was keeping notes. I was talking to him about some of the
problems when he was asked to assist me with the bogus report.
And he was an attorney, had gone to Yale. I thought I
should square with him and tell him that there were reasons I
wasn't taking notes because he thought these were pretty
historic events. And I advised him that I thought it would be
very dangerous to take notes.
Anyone who has listened to the Nixon tapes realized how
dangerous, indeed, it might be to have those notes. I wished I
had.
Ms. Bass. Were you ever told not to take notes?
Mr. Dean. No. In fact, H.R. Haldeman, the chief of staff,
took remarkable notes in telephone calls and in the Oval
Office. But his notes were only followup activities that he was
responsible for. They've often been misread.
Ms. Bass. And, Professor Vance, has a client ever asked you
not take notes of your conversations with them? And would your
answer be different if you knew the client was facing some type
of investigation?
Ms. Vance. So I've spent most of my life as a Federal
prosecutor, but I did spend 5 to 6 years in private practice.
I've never had a client ask me to not take notes. And, in fact,
that would be a red flag that there was a problem if someone
did.
Ms. Bass. Thank you.
I yield.
Chairman Nadler. The gentleman from California, Mr.
McClintock.
Mr. McClintock. Thank you, Mr. Chairman.
Everybody knows what is going on here. For 2 and a half
years now, the American people were force fed this monstrous
lie that Donald Trump is a traitor who conspired with a hostile
foreign government to steal the election. This lie was
concocted through a phony dossier commissioned by the Clinton
campaign. It was used by the highest officials in the FBI, our
intelligence agencies, and our Justice Department first in a
failed attempt to interfere with our 2016 Presidential election
and then to undermine the constitutionally elected President of
the United States.
The first calls for Donald Trump's impeachment were heard
within 1 week of the election. That was 2 months before he was
even inaugurated as President. The day after the 2018 election,
the chairman was overheard discussing his impeachment plans on
an Acela train. Despite an outrageously biased team of partisan
zealots who were assembled by Mr. Mueller, which included the
now infamous Peter Strzok and Lisa Page, and some of the most
abusive prosecutorial tactics employed, the $25 million, 22-
month investigation found no evidence to support the collusion
lie.
So now we have a new lie, that the President obstructed
justice in the investigation in which he was falsely accused of
treason. The only evidence we are presented is that he was
blowing off Trumpian steam behind closed doors in words that
amounted to no action whatsoever. And they ignore the fact
there was no underlying crime. His campaign and administration
turned over every document requested of them, some 1.4 million
pages. He waived executive privilege to allow his White House
counsel to testify. And, by the way, he had the authority to do
directly what he's accused of suggesting others do, and he did
not.
I have to tell you, if every politician told his--who tells
his staff, ``I'd like to strangle that guy,'' is ipso facto
guilty of attempted measured, you might as well turn out the
lights and close the doors in this building.
Now, Mr. Malcolm, you're a former assistant U.S. attorney
and Deputy Assistant Attorney General. I'd like your
professional opinion of several aspects of the Mueller report.
The entire genesis of the Russia collusion hoax was the
Steele dossier and how it was used by government officials to
promote this false narrative, to influence our election, and to
use it as the basis of warrants to spy on the Trump campaign,
yet the Mueller report largely ignores the very seminal acts
that gave rise to these charges in the first place.
Does that raise in the red flags with you?
Mr. Malcolm. First of all, thank you for the question. I
was feeling lonesome here.
I look forward to reading the Department of Justice's
inspector general's report on that very issue. But there's
scant mention of it in the Mueller report; that's true.
Mr. McClintock. Does that trouble you?
Mr. Malcolm. No. Look, he did what he did. He had his
focus. There are other things that he could have focused on
that I wish he would have. But it seems that those matters are
getting the attention that they deserve now.
Mr. McClintock. Well, two revelations have already arisen
involving the Mueller report. One concerns the report's recount
of a conversation between John Dowd, the President's counsel,
and Robert Keller on behalf of Michael Flynn. It omitted about
half of Dowd's words to give the false impression of suborning
a witness.
The other thing we've learned recently is that references
to Konstantin Kilimnik's interactions with Paul Manafort in the
Mueller report identify him as having ties to Russian
intelligence but omit the fact that Kilimnik was, in fact, a
U.S. intelligence asset.
Do these material omissions raise any concerns with you?
Mr. Malcolm. Well, I've read both of those. With respect to
the references to the joint defense agreement, even when I read
it at the time in the Mueller report, there's nothing wrong
with the defense counsel for another person calling up, even
someone who's cooperating with the government, and saying:
Look, one, you can't breach what was said in the joint defense
agreement----
Mr. McClintock. But omitting the----
Mr. Malcolm. I'm sorry?
Mr. McClintock. Omitting the exculpatory----
Mr. Malcolm. Yeah. You know, I----
Mr. McClintock. Does that bother you?
Mr. Malcolm. Yes, it bothers me. And I thought it was an
unfair characterization in the report, even when I read it at
face value.
Mr. McClintock. And the omission that Kilimnik was, in
fact, a U.S. intelligence asset?
Mr. Malcolm. If that's true, then it would be--I would be
bothered by its omission.
Mr. McClintock. It was recently revealed that Trump
campaign workers were lured overseas by U.S. intelligence
agencies specifically to evade U.S. laws on observation.
Does this raise any concerns with you?
Mr. Malcolm. Yes. It would certainly raise concerns. And
that's what--I assume that matter is now going to be covered.
Mr. McClintock. We're regaled with all of Trump's bombastic
statements behind closed doors telling his staff to do this and
do that. But if the President had actually been serious, why
couldn't he have simply picked up the phone and said,
``Mueller, you're fired''?
Mr. Malcolm. Well, that's a very good point. So, when you
are going to look at the context in which statements are made,
it also includes the individual involved. And let me be clear:
I'm not here to defend the President's conduct, just the rule
of law. You know, there are many things the President does that
I wouldn't do. But just because somebody acts impulsively or in
an uncivil manner does not mean that they commit a crime.
He has surrounded himself with people who are used to his
style who sometimes realize that this is a President who
publicly and privately acts impulsively and vents. And
sometimes he--they ignore him. And, in fact, there have been no
repercussions to any of the people who ignored him. And you are
correct. The President could have fired Rod Rosenstein. He
could have rescinded the regulation that called for the--you
know, when Mueller could have been fired. He could have fired
Mueller. He could have done any number of those things. That
would have caused political problems for him, but he could have
done them, and he didn't.
Mr. McClintock. Thank you.
Chairman Nadler. The gentleman's time has expired.
The gentleman from Rhode Island, Mr. Cicilline.
Mr. Cicilline. Thank you, Mr. Chairman.
Again, I want to return to some other attempts to remove
the special counsel that are detailed in the Mueller report.
The report goes on to document other efforts to remove the
special counsel from office or limit his investigation. On page
91 of Volume II, the report identifies an incident involving
Corey Lewandowski, a senior Trump campaign adviser. On June 19,
shortly after McGahn initially refused to take the steps to
fire Special Counsel Mueller, as we've discussed already, the
report says, and I quote: During the June 19 meeting,
Lewandowski recalled that, after some small talk, the President
brought up Sessions and criticized his recusal from the Russia
investigation. The President told Lewandowski that Sessions was
weak and had the President known about the likelihood of
recusal in advance, he would not have appointed Sessions. The
President then asked Lewandowski to deliver a message to
Sessions, and said, ``Write this down,'' and I quote, ``Write
this down.'' This was the first time the President had asked
Lewandowski to take dictation. And Lewandowski wrote as fast as
possible to make sure he captured the content correctly.
The alleged dictated message as noted on page 91 is as
follows, and I quote: The President directed that Sessions
should give a speech publicly announcing, I know that I recuse
myself from certain things having to do with specific areas,
but our POTUS is being treated very unfairly. He shouldn't have
a special prosecutor or counsel because he hasn't done anything
wrong. I was on the campaign with him for 9 months. There were
no Russians involved with him. I know for a fact because I was
there. He didn't do anything wrong except he ran the greatest
campaign in American history, end quote.
The dictated message went on to state that Sessions would
meet with the special counsel to limit his jurisdiction to
future election interference, and I quote: Now a group of
people want to subvert the Constitution of the United States.
I'm going to meet with the special prosecutor to explain this
is very unfair and let the special prosecutor move forward with
investigating election meddling for future elections so that
nothing can happen in future elections, end quote.
Professor Vance, what is your reaction to the contents of
this dictated message to the Attorney General?
Ms. Vance. Congressman, Ranking Member Collins started this
hearing by talking about how serious the events that are
reencountered in Volume I of the Mueller report and often
ignored are. And that's the attack on our country by Russia,
the effort to interfere with our election, an ongoing and a
sustained attack on the United States.
What the President of the United States is trying to do
here through Corey Lewandowski is to have Senator Sessions
curtail the extent of the Mueller investigation so that that
attack by Russia would have been off the table.
There are other takeaways. But that, I think, deserves our
attention, that the President, in order to save himself, was
willing to forego any investigation into what Russia had done
to this country.
Mr. Cicilline. And Professor McQuade.
Ms. McQuade. Yeah. I think that the most significant part
of that is that if you think about what President Trump wanted
to do, he wanted to focus the investigation solely on future
investigations. That meant no scrutiny of the 2016 election.
That, in part, was perhaps to prevent scrutiny of his
campaign's misconduct or delegitimatizing his campaign or
conduct by members of his family or campaign that could have
amounted to crimes, which, of course, he didn't know the
conclusion of Mueller's report at that time.
But the impact on national security. Think about that. He
wanted Robert Mueller not to examine why Russia and how Russia
interfered with our election. That is a threat to our national
security. And that was a failure of responsibility of the
President of the United States who has a duty to faithfully
execute the laws.
Mr. Cicilline. Returning again to Mueller report, pages 92
to 93 of Volume II describe that Lewandowski was unable to get
the message to Attorney General Sessions. But a month later,
and I quote: In a July 19 meeting with Lewandowski, the
President raised his previous request and asked if Lewandowski
had talked to Sessions. Lewandowski told the President that the
message would be delivered soon. Lewandowski recalled that the
President told him that if Sessions did not meet with him,
Lewandowski should tell Sessions he was fired. Immediately
following the meeting with the President, Lewandowski saw
Dearborn in the anteroom outside the Oval Office and gave him a
typewritten version of the message that the President had
dictated to be delivered to Sessions.
Mr. Dean, is it the normal course of business to use
nongovernment personnel to communicate with Cabinet-level
officials?
Mr. Dean. Well, I think Presidents have their kitchen
Cabinets through which they often undertake some actions. But
not of this nature where you're trying to remove an Attorney
General. It would be highly unusual.
What struck me in reading all this, as with the references
to Porter, is that there's no conspiracy charge in here because
these people, while they went up to the line, it's not clear
how close they came to agreeing and participating or just step
back.
Mr. Cicilline. Thank you, Mr. Dean.
Mr. Chairman, I would just note for the record, before I
yield back, that there's been a lot of clamor for fact
witnesses. And maybe our colleagues on the other side of the
aisle would find the same strong voice in condemning the
administration's efforts by encouraging witnesses to defy
subpoenas and refuse to come before this committee. Maybe they
will join us in our ongoing effort to get witnesses before the
committee.
And, finally, there's been a lot of discussion about the
origins of the Russia investigation. I would just suggest to my
colleagues on the other side of the aisle, go to pages 80
through 96, and the American people as well. It gives
significant detail about the beginning of this investigation
and the role of George Papadopoulos. And I think it should
settle all your questions.
And, with that, I yield back.
Chairman Nadler. I thank the gentleman for yielding back.
And it is true that fact witnesses have been ordered by the
White House not to appear before this committee, but we'll get
them.
The gentleman from Virginia, Mr. Cline.
Mr. Cline. Thank you, Mr. Chairman.
It's my hope that we do have the witnesses in question,
because this has really degenerated into a sad spectacle. The
majority has a bunch of questions. They have neat charts that
all have questions that are really meant for the Attorney
General or Special Counsel Mueller or Mr. McGahn. But, instead,
we have these witnesses here.
I hope that the majority would enter into real negotiations
with the White House instead of what happened, which was
several weeks of demanding that the Attorney General release
grand jury testimony against Federal statutes and break the law
in violation of code and instead move off of these demands that
we have staff lawyers ask questions of the Attorney General,
which has not been done in any other case outside of an
impeachment hearing, and actually negotiate with the Attorney
General. And I bet we could have these questions before the
actual fact witnesses instead of MSNBC stars and stars of
miniseries.
You know--and, Mr. Dean, I'd say in 1979, when you were
played by Martin Sheen, that was great. In 1995, you were
played by David Hyde Pierce. That's a little bit of a step down
there. And in 1999, Dick, you were played by Jim Breuer from
Saturday Night Live. I hope there's not another remake of that
because I don't know where you go after that.
But I want to focus on some of the statements that have
been made about Volume I. You know, if we were really doing the
work of the people here, we would be focused on Volume I and
how to stop Russian interference in our election system.
Instead, we're focused on, I guess, talking to some of the
final people who really believe that there still is some kind
of collusion.
I'll ask Ms. Vance, Professor Vance. On November 30, 2018,
you tweeted: At some point, all the times he said ``no
conclusion'' are going to come back to haunt this President.
Do you still believe that there was collusion?
Ms. Vance. So it's important to note, as Mueller does----
Mr. Cline. That's a yes or no. I've got 2:45 left.
Ms. Vance. It's not a yes-or-no answer.
Mr. Cline. Okay. Then let me go to your next tweet?
Ms. Vance. There's a difference between collusion and
conspiracy.
Mr. Cline. I'm going to reclaim my time?
Okay. Do you believe there was conspiracy?
Ms. Vance. Mueller finds that he has insufficient evidence
to charge a conspiracy. But he also notes that much evidence
was kept from him, that people took the Fifth Amendment. People
lied to him. People destroyed evidence on applications like
WhatsApp.
Mr. Cline. Okay. So he didn't exonerate, but do you----
Ms. Vance [continuing]. Notes that if he had had the
opportunity to get that evidence, he might have been able to
view the situation differently.
Mr. Cline. As a former prosecutor, do you believe that it's
the job of a prosecutor to exonerate the defendant, potential
defendant?
Ms. Vance. In a typical case where I'm looking at indicting
a bank robber, say, or a drug case, I would agree that it's not
my job.
Mr. Cline. Okay. On July 6, 2018, you tweeted: The
President is sowing hatred, fear, and distrust in hopes he can
divide the country enough to survive when the truth comes out
about his campaign's collusion with Russia.
Do you believe the truth has come out about the President's
collusion with Russia and that there is none?
Ms. Vance. Again, I think that there's an enormous
difference between collusion and conspiracy. There is evidence
of a lot of contact, a lot of welcoming with open arms by this
President, cooperation and help on the campaign from Russia. So
the American people should read Volume I of the report and draw
their own conclusions about what that gap is between collusion
and Mueller not having sufficient evidence to charge a
conspiracy.
Mr. Cline. On January 8, you tweeted video clips of people
saying no collusion have not aged well. I would argue that
these tweets have not aged well.
And, with that, I would yield to the gentleman from Ohio.
Mr. Jordan. I thank the gentleman for yielding.
Mr. Malcolm, I have the appointment of Special Counsel
Mueller, the 1-page document, that makes it happen on May 17,
2017, signed by Rod Rosenstein.
In there, he says, the last point, item D, section 600.4
through 600.10 of title 20 of the Code of Federal Regulations
are applicable to this special counsel. And 600.8(c) says this:
At the conclusion of the special counsel's work, he or she
shall provide the Attorney General with a confidential report
explaining the prosecution or declination decisions reached by
the special counsel.
As I read that, it seems to me that the special counsel was
either supposed to prosecute or decline to prosecute--not say
``I can't decide''; not say, ``I can't decide because there's
an OLC opinion at the Department of Justice.'' He's supposed to
pick one or the other.
Do you read it that way?
Mr. Malcolm. Yes, I do.
Mr. Jordan. And you said that in your testimony--I think--I
don't know if you said that in your statement. But in your
written testimony, you said it was the duty of the special
counsel to provide the Attorney General with a confidential
report explaining what I just read, the prosecution or
declination decision reached by the special counsel.
Do you think Robert Mueller failed to do his duty in making
a decision?
Mr. Malcolm. That is my opinion.
Mr. Jordan. Okay.
With that, I yield back, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
The gentleman from California, Mr. Swalwell.
Mr. Swalwell. Thank you, Mr. Chairman.
And before continuing, I would like to ask the witnesses to
direct their attention to what's referred to as slide 7. It's a
timeline. It goes from June 14, 2017, with an NBC News story
saying ``Trump being investigated for possible obstruction of
justice.'' And then it goes through various tweets from the
President, including, on June 15, ``You are witnessing the
single greatest witch hunt in American political history led by
some very bad and conflicted people,'' to a June 17 story of
Trump directing McGahn to fire the special counsel. On June 19,
Trump dictates to former campaign manager: Deliver a message to
the Attorney General directing him to not investigate Trump.
Concluding on the 6th of December with Trump pressuring the
Attorney General, special counsel to protect Trump and shield
the President from the ongoing Russia investigation.
And just going back, Professor McQuade, to Mr. Cicilline's
questioning, how do you interpret the directives to Corey
Lewandowski by the President? What was your interpretation of
that type of behavior and directive?
Ms. McQuade. Directing Corey Lewandowski to go see Attorney
General Jeff Sessions and ask him to take an unethical act in
unrecusing himself strikes me as a matter that would go even
consistently with Mr. Malcolm's theory and Attorney General
Barr's theory beyond the scope of executive powers. He is
acting outside by asking a private citizen to persuade Attorney
General to unrecuse himself and to limit the scope of the
investigation to only future elections is obstruction of
justice under any theory.
Mr. Swalwell. The report concluded the President's efforts
towards Sessions were because he believed Sessions would shield
the President from the ongoing Russia investigation.
Ms. Vance, looking at the timeline, can you give us your
reactions to this portion of the Mueller report?
Ms. Vance. Something that we've talked about is the need to
look at the entirety of the facts. You know, we want to focus
on these 10 events and determine whether there's any misconduct
because, as Congress, you all need to look at that.
Also, though, as we look at this timeline because this
really blends two of the acts that we've been talking about,
this effort by the President to fire the special counsel but
also this effort to get Attorney General--then Attorney General
Sessions to unrecuse and protect the President. And so these
acts put together really show us a great level of intent.
You know, I would make the point, Representative Swalwell,
that when we reach the end of this, we essentially have a
President who is saying: Maybe I robbed some banks in the past,
but I don't want you to look at that, Mr. Attorney General. I
just want you to investigate whether I rob any banks in the
future.
And when we put it in those terms, I think that pops this
into a little bit of relevance for us.
Mr. Swalwell. Page 97 of Volume II summary says, quote:
Taken together, the President's directives indicate Sessions
was being instructed to tell the special counsel to end the
existing investigation into the President and his campaign with
the special counsel being permitted to, quote, move forward
with investigating election meddling for future elections.
Mr. Dean, do you agree with that interpretation by the
special counsel, and why?
Mr. Dean. Well, it's--I think what the special counsel is
saying, and what the President's asking for, is to--as was said
by former U.S. Attorney Vance, is an effort to end the
investigation into President activity and to pretend like they
would focus on future activities when there's no basis for
that.
Mr. Swalwell. Mr. Dean, since the Nixon administration,
have you witnessed any future administration commit more
obstruction crimes than the Nixon administration? Yes or no?
Mr. Dean. No.
Mr. Swalwell. You would submit that, in your view, the
Nixon administration, compared to every administration after,
committed the most amount of obstruction crimes you've
witnessed?
Mr. Dean. No. I gave a few samples in my written statement,
and there are--probably books will be written comparing these
two----
Mr. Swalwell. I'm sorry. Let me rephrase the question.
Comparing Nixon to just any future administration, would
you say there was a future administration that committed more
crimes than the Nixon administration as far as obstruction?
Mr. Dean. I would say the Trump administration is in fast
competition with what happened to the Nixon administration.
Mr. Swalwell. I would like to thank all of the witnesses
for participating, especially Mr. Dean, Professor Vance, and
Professor McQuade. Your voices have been very important voices
as our fragile democracy has been tested. And coming here today
has laid out the foundation for our country as to what's at
risk. You know, it's often said that history doesn't repeat; it
rhymes. And we are hearing many of those rhymes today.
And I would yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from North Dakota, Mr. Armstrong.
Mr. Armstrong. Thank you, Mr. Chairman.
We've heard several times today that we have to examine all
of this and the totality of the circumstances. And I also would
encourage everybody to read Volume I. I'd encourage everybody
to read the report. I'm on, like, my fourth time through it. I
will admit I'm doing it by audio book now. Well, I get to drive
a lot in North Dakota.
But I think how the witnesses--the tepidness to the answers
regarding Volume I of the report speak volumes about where
we're at in relation to this--in relation to this report.
There's 22 months, 2 years, hundreds of hours investigated, and
all started under the basis of collusion. We've read some
tweets from some of our witnesses, and those things. And we get
to the point, and there is no collusion or conspiracy, which is
the legal version of what collusion would be in this example.
And I think that's important. Not a single member of President
Trump's family has been indicted. The indictments that actually
came out of the Mueller investigation, with the exception of 25
Russians, which is purely symbolic, because we're never going
to get those indictments served, are unrelated financial
crimes, tax fraud, campaign finance, lying to Congress--only
once, not twice; we haven't brought Mr. Cohen in for the second
time of lying to Congress yet--identity threat, failure to
register as a lobbyist, and conspiring to violate lobbying
laws, and then several obstruction and lying to investigators.
And I've read all of those lying to investigators charges as
well.
So I guess my question for Mr. Malcolm, when we are talking
about dealing with this and the totality of the circumstances,
how important is not having the underlying crime of conspiracy
when we look at these--or when we look at these obstruction
charges?
Mr. Malcolm. Well, I certainly think it's a very important
factor in terms of what would motivate the President to do what
he did. He was being bedeviled by allegations that he knew to
be false. And it was casting a poll upon the legitimacy of this
President and impeding his ability to govern.
He had no problem looking into Russian interference in the
election. I disagree, with all due respect, to the
characterization by Professor McQuade, about what he was asking
Bob Mueller to do. But he clearly wanted Jim Comey to say that
he wasn't involved in any kind of conspiracy or collusion, and
he was frustrated by the ongoing cloud over his Presidency.
Mr. Armstrong. And then just for question, if Mr. Trump
wanted to fire Bob Mueller, could he have--President Trump fire
Bob Mueller, could he have done it at any time?
Mr. Malcolm. Sure.
Mr. Armstrong. If he wanted to fire Jeff Sessions, could he
have fired him at any time?
Mr. Malcolm. Yes.
Mr. Armstrong. If he wanted to fire Bob McGahn, could he
have fired him at any time?
Mr. Malcolm. Certainly could.
Mr. Armstrong. Okay. So--and as we're dealing with
endeavor--which ``endeavor'' is really just attempt. I mean,
it's--endeavor to obstruct is the same as an attempt at crime.
And when we typically deal with attempt, we deal with it, and
it's important that we have it, because if I determine I'm
going to rob a bank or I'm going to murder somebody, there are
underlying factors that could cause me to not complete that
action. You would agree, right?
Mr. Malcolm. Yes. I mean, you have to look at what people
do. You also have to consider what they say. But venting is
venting. And this a President who likes to vent. But you look
at what he does. And, in fact, he did not do any of the things
that, you know, he was talking about doing.
Mr. Armstrong. And then, even more so, when we walk through
with the people who he was venting to, none of them--as far as
the Mueller report is concerned, none of them really appeared
to have any consequences as well, did they?
Mr. Malcolm. That is correct. Even people who knew that he
was venting and didn't do what he asked them to do.
Mr. Armstrong. Now, I'm going to--and I just want to walk
through--I would love to walk through each--actually, one of
the obstruction charges. But have you read Inspector Horowitz'
inspector general report as it related to the Clinton
administration and the FBI?
Mr. Malcolm. It's been a while, but yes.
Mr. Armstrong. And you would agree that a ton--Mr. Horowitz
found a ton of bias and impure acts or at least thoughts. I
mean, we have text messages--some of those are salacious, have
made the news--conducted by the FBI agents, right?
Mr. Malcolm. Regrettably he did.
Mr. Armstrong. But in his final conclusion, he has--he--I
mean, he basically asserted that, because--while there may have
been a potential impure thought, there were also legitimate
reasons for why they were conducting that action. So he didn't
hold--he didn't recommend any real true accountability to the
FBI agents at that point, right?
Mr. Malcolm. Yeah. Inspector General Horowitz looked at the
realm of reasonable decisions made by the investigators and
prosecutors. And whenever possible, he gave them the benefit of
the doubt. Sometimes he just couldn't because of the conduct
involved.
Mr. Armstrong. And I guess that's just my overall general
question. When you're dealing with some of these issues, if you
have illegitimate reasons and legitimate reasons and you have
no underlying crime, how do you prove the intent?
Mr. Malcolm. That is precisely the danger here because you
are talking about trying to determine what is an illegitimate
or legitimate motive for core Presidential discretionary
actions. It's easy to do in the face of facially criminal
conduct such as paying a bribe or witness tampering or
threatening a witness, but not with respect to the actions the
President undertook here, whether you like them or not.
Mr. Armstrong. And then I'll just end with, we've been
talking about tweets that age well or don't age well. This is a
tweet from our President on June 15th of 2017: They made up a
phony collusion with the Russian story, found zero proof, so
now they go for obstruction of justice on the phony story.
Nice.
So, with that, I'll yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from California, Mr. Lieu.
Mr. Lieu. Thank you, Mr. Chair.
So let's talk about Jeff Sessions' recusal. As is well-
known, then Attorney General Jeff Sessions, following the
advice of the Department of Justice ethics officials, recused
himself on March 2, 2017, from investigations related to 2016
Presidential elections.
Page 51 of the report goes on to detail a meeting between
the President and the Attorney General. And it says, quote:
That weekend, Sessions and McGahn flew to Mar-a-Lago to meet
with the President. Sessions recalled that the President pulled
him aside to speak to him alone and suggested that Sessions
should unrecuse from the Russia investigation.
So a former prosecutor, Joyce White Vance, what do you make
of that?
Ms. Vance. Recusal is not a question that the Justice
Department considers infrequently. Recusal, conflict concerns
come up in all sorts of situations. Maybe as a prosecutor, you
knew someone personally or your family owned stock in a bank.
So you recuse from that case. And when those situations come
up, the prosecutor's obligation is to go to the office in the
Justice Department that considers those concerns and gets
advice. That's what Attorney General Sessions did. That was a
dispositive conclusion that he had conflicts that meant that he
could not be involved in any cases that were looking into the
2016 elections.
So this request from the President, that he revisit that,
it's not just improper; it's incomprehensible. There is no such
thing as unrecusal.
Mr. Lieu. Thank you.
Former Prosecutor McQuade, you were also a U.S. attorney.
Is that correct?
Ms. McQuade. Yes.
Mr. Lieu. All right. Per the Department of Justice rules,
is Attorney General or other personnel allowed to unilaterally
unrecuse themselves?
Ms. McQuade. No. There's no such thing as unrecusal. Think
of it as he was tainted. A determination was made that he can
be the Attorney General for many other cases but not this one.
Because of his political connections to President Trump, he
correctly asked them to assess whether he could serve as
Attorney General over this matter. They studied the matter and
concluded that he could not, that he was tainted and he was
unable to handle this case.
And so to unrecuse oneself would be to ignore the taint and
to commit an unethical act.
Mr. Lieu. Thank you.
Page 78 of Volume II of the report says, and I quote: When
Sessions told the President that a special counsel had been
appointed, the President slumped back in his chair and said,
``Oh, my God. This is terrible. This is the end of my
Presidency. I'm fucked.'' The President became angry and
lambasted the Attorney General for his decision to recuse an
investigation stating, ``How could you let this happen, Jeff?''
Sessions recalled that the President said to him, ``You were
supposed to protect me,'' or words to that effect.
Mr. Dean, understanding what occurred in Watergate and your
experience, do you believe it is the role of Attorney General
to protect the President?
Mr. Dean. That certainly wasn't the case during the Nixon
Presidency. As a former employee of the Department of Justice
that served--where I served as the Associate Deputy Attorney
General, I know there's a proud and professional workforce at
the Justice Department that doesn't do anything other than
represent the American people. I don't think the Attorney
General--his task is to represent the President.
John Mitchell, who was the initial Attorney General,
followed by Richard Kleindienst, and then former Senator Saxby
and Elliot Richardson, I really don't think they looked upon
their job as to represent Richard Nixon. So this is a sort of
unprecedented view from Mr. Trump as to what the Attorney
General should and should not be doing.
Mr. Lieu. Thank you.
Former U.S. Attorney General McQuade, what is your
understanding of the role of the Attorney General?
Ms. McQuade. The Attorney General is the lawyer for the
people of the United States. He is to support and defend the
Constitution, and he is to represent the people. He is not the
personal attorney for the President.
Mr. Lieu. Thank you.
Page 107 of Volume II of the report documents some point
after May 17, 2017, appointment of the special counsel,
Sessions recalled that the President called him at home and
asked if Sessions would unrecuse himself. According to
Sessions, the President asked him to reverse his recusal so
that Sessions could direct the Department of Justice to
investigate and prosecute Hillary Clinton. And the gist of the
conversation was the President wanted Sessions to unrecuse from
all of it, including the special counsel's Russia
investigation.
So former U.S. Attorney McQuade, what is your reaction to
that phone call?
Ms. McQuade. It demonstrates to me that President Trump was
persistent in his efforts to get Attorney General Sessions to
unrecuse himself because he was so desperate to limit the scope
of the investigation. He was concerned about a number of
things. I know that the Congressman said if there's no
underlying crime, then there's nothing to cover up. But I
disagree with that.
Number one, it's a matter of law that's not correct. But
President Trump knew that there were a number of things that
could be exposed about him. The payment of hush money that
caused him to be named as individual one as an unindicted
coconspirator in the Southern District of New York, the meeting
at Trump Tower with Russians that, but for definitions of
willfulness and thing of value, could have amounted to a crime.
The conversations with WikiLeaks, all of those things, I
believe, were matters that were--are collusion and could have
concerned President Trump about discovery and exposure.
Mr. Lieu. Thank you.
I yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from Florida, Mr. Steube.
Mr. Steube. Thank you, Mr. Chairman.
You know, it's fascinating to me that the majority brings
in Michael Cohen, a convicted liar, who lied to Congress as a
witness. And now the majority brings in Mr. Dean, who's
convicted of obstructing justice and is paid by cable networks
and others, to opine against the President. So, instead of
legitimating Mr. Dean's presence here today, I'll ask my
questions to Mr. Malcolm.
Mr. Malcolm, isn't it true that the President could have
exerted executive privilege and prevented Mr. McGahn and others
from cooperating with the special counsel?
Mr. Malcolm. Yes.
Mr. Steube. And, in fact, not only did he encourage Mr.
McGahn to cooperate, he allowed 20 White House officials to
testify, including 8 people from the White House Counsel's
Office?
Mr. Malcolm. Correct.
Mr. Steube. Isn't it true that the President has full
constitutional authority without reason to fire the FBI
Director at any time?
Mr. Malcolm. Yes.
Mr. Steube. So how would it be obstruction to fire an FBI
Director?
Mr. Malcolm. I don't think it was.
I would also point out that the report also indicates that
others within the intelligence community and Attorney General
Sessions himself had suggested that the President ought to do
that before the President decided to do it.
Mr. Steube. Isn't it also true that if the special counsel
had decided on the question of obstruction, he could have
stated that there was evidence the President committed
obstruction and recommended that he be charged with obstruction
and not kick the decision to the AG?
Mr. Malcolm. He could have done that, yes.
Mr. Steube. And he could have recommended any form of
charges that he wanted to recommend including if he had found
anything on Russian collusion or conspiracy or any of the
manner?
Mr. Malcolm. While recognizing that it would not result in
an indictment, he could have said the evidence was there to
convict the President if he could be charged, yes.
Mr. Steube. Which he did not.
Mr. Malcolm. He did not.
Mr. Steube. He kicked the decision to the Attorney General
of the United States who said, and I quote: There's not
sufficient evidence to establish the President committed an
obstruction of justice offense.
Mr. Malcolm. That's correct.
Mr. Steube. Could you walk me through--as an attorney who
spent a number of years practicing in the courtroom and having
numerous clients, could you walk me through the chilling
effects that this is all having on future Presidents having
honest and open and frank conversations with their White House
general counsel?
Mr. Malcolm. Presidents engage--one, they solicit advice.
Sometimes the advice that they're seeking is to do something
stupid. Sometimes it may even be to do something illegal.
That's why they have these conversations and get advice from
trusted people.
What this suggests is that, by even having the conversation
or saying something publicly or privately about it, one could
be subjected to criminal liability. There are all sorts of
actions that a President might take that might be aggressive,
some of which are covered in the Mueller report with respect to
appointing certain executive branch officials, firing certain
executive branch officials, considering issues, certain
pardons, engaging in executive orders, invoking the Take Care
clause of the Constitution to actually involve one's self in an
ongoing investigation if he thinks it's being unfairly
conducted. All of those things can either be legitimate or
illegitimate, depending on one's motives. And it would chill a
President, I would think, to the bone, to think that some
prosecutor is going to be the person who is going to be making
the determination about which action is legitimate, which is
illegitimate, whether this was a mixed motive, a pure motive,
or an improper motive. The mere fact that that inquiry could
take place would have a chilling effect, which is why there is
no clear statement that this obstruction of justice law should
apply to the President and which is why the independent counsel
should have focused on facially illegal acts.
Mr. Steube. Well, you said it better than I could have said
it. I just think that--I don't care if you're a Republican or a
Democrat. I think if you're going to be in the White House in
the future, that all of this is going to have--weigh on whoever
that President may or may not be. And the decisions that he
makes about having frank and open conversations with his
counsel, who he should be able to have very private thought
process, ``What do you think about this,'' in confidence
knowing that the White House general counsel isn't going to be
subpoenaed to testify about very conversations that they had
about what is going on in the White House. And so I thank you
for your testimony here today.
And I will yield the remainder of my time to Mr. Jordan.
Mr. Jordan. Mr. Malcolm, just let me go back to where we
were a few minutes ago.
In the Mueller report, it says: Our report does not
conclude that the President committed a crime. It also does not
exonerate him.
I'm trying to figure out how that squares with title 28 of
the Code of Federal Regulations impacting special counsels
where we read before: The Attorney General shall provide a
confidential report explaining the prosecution or declination
decisions.
Mr. Malcolm. Well, I don't think that it does. In addition
to the fact that I don't think it is any proper standard for
any prosecutor to decide whether or not somebody has been
exonerated. That's not the role of a prosecutor. It's not even
a role of a jury. If a jury comes back and acquits somebody, it
just says that they weren't found to be guilty beyond a
reasonable doubt, not that they were factually innocent.
Mr. Jordan. And it specifically says--when you read the
section of title 28, it specifically says ``the prosecution or
declination decision reached by the special counsel.'' It
doesn't say you don't have to decide at all. It says you got to
pick one. And yet in his report, he says: Our report does not
conclude either than way.
Mr. Malcolm. I read it the same way you do.
Mr. Jordan. Okay. Now, why was he able to reach a decision
on one and not the other?
Mr. Malcolm. That, you would have to ask him. He obviously
felt comfortable with the state of the evidence. My guess is
that his team was conflicted as what to do. But that's reading
tea leaves, and I don't read tea leaves very well.
Mr. Jordan. All right. My time's expired.
I thank the gentleman for yielding.
Chairman Nadler. The gentleman yields back.
The gentleman from Maryland, Mr. Raskin.
Mr. Raskin. Thank you, Mr. Chairman.
Mr. Dean, President Trump's National Security Advisor,
Michael Flynn, pled guilty to making false statements to the
FBI under 18 U.S.C. 1001 and has been cooperating with Federal
law enforcement investigators. He resigned on February 13,
2017.
Page 40 of the report documents an Oval Office meeting in
the afternoon between the President and FBI Director Comey
where, and I quote, The conversation turned to the topic of
leaks of classified information, but the President returned to
Michael Flynn saying: He is a good guy, and he's been through a
lot.
The President stated: I hope you can see your way clear to
letting this go, to letting Flynn go. He's a good guy. I hope
you can get let it go.
Now, what do you think was taking place in that
conversation?
Mr. Dean. Well, the only parallel I can draw in my mind to
past Presidents is what happened on June 23rd of 1972 when H.R.
Haldeman came in to the President to talk about the fact that
people from his reelection committee were involved. And the
President heard the chief of staff out and instructed him at
the end of the conversation to have the CIA tell the FBI to
stop its investigation.
Mr. Raskin. Ms. McQuade, what is your reaction to this
exchange that I just quoted?
Ms. McQuade. Similar to what Mr. Dean just said. And I
think it goes to something that Mr. Malcolm has said as well,
which is that, you know, we can never allow prosecutors to
second-guess the decisions of Presidents. But I think that
writes out of the Constitution the word ``faithfully,'' to
faithfully execute the laws. Just as President Nixon was facing
articles of impeachment for ordering the CIA to direct the FBI
to stop investigating Watergate, similarly, President Trump's
directive to let it go with Mr. Flynn was the same kind of
corrupt act that is obstruction of justice. Even if he can't be
charged criminally, this body has the ability to hold him
accountable.
Mr. Raskin. And, indeed, when one of our colleagues says
that it's up to the President to determine whether or not he
faithfully executed the law, that's clearly wrong in a
constitutional sense. It's up to Congress to determine whether
the President faithfully executed the law. Isn't that right?
Ms. McQuade. Of course. Otherwise, it would render invalid
the checks and balance that are the hallmark of our system.
Mr. Raskin. Thank you.
Ms. Vance, what's your reaction to that seeing where
President Trump urged FBI Director Comey to drop the
investigation against Michael Flynn and then ended up firing
FBI Director Comey afterwards?
Ms. Vance. So, you know, let me just be candidate and tell
you that I don't include that as one of the instances which I
think qualifies for charging based on what we know at this
point. The intent question is a little bit sticky. It's
possible that the evidence there is there. Perhaps it's not.
But what it does tell us is a great deal about the President's
state of mind and what he was focused on doing.
So there's this sequence of events where the President
fires Director Comey, and then goes on national television and
acknowledges that he did it because Russia was on his mind, and
finally has a conversation in the Oval Office with folks from
Russia, with Russian Government officials, where he tells them
like he feels he's out from under the pressure of the
investigation.
So, as we consider all of the circumstances that we're
looking at in Volume II, what's clear is that, even at this
early point in time, the President was focused on not letting
this investigation move forward.
And this really plays into this conversation that we've had
a little bit about whether or not you have to have an
underlying completed crime for obstruction. What's going on
here is maybe there's a crime, maybe there isn't. The President
doesn't know at this point in time. But he wants to shut down
the investigation in case there is one. And that's why, under
our Criminal Code, obstruction doesn't require an underlying
crime.
Mr. Raskin. Well, isn't it the case that people get
prosecuted for obstruction of justice even if they're not
prosecuted for the underlying offense?
Ms. Vance. That's true. That happens. And there's also a
case cited in the Mueller report that comes from my own
district where a defendant was charged with two counts of
obstruction but also with other crimes. On appeal, those
underlying convictions didn't hold up, but the court let the
obstruction conviction stand alone.
Mr. Raskin. Mr. Dean, I want to come back to you for a
moment.
You and I are from different political parties. Indeed, you
were the chief Republican counsel of this committee. You were
the White House counsel for a President who put my father on
his enemies list. My father was an official in the Kennedy
administration and had a lot of problems with the Nixon
administration. And so growing up, we were very fearful about
the Nixon White House and what they would do to people. But you
are clearly a man of honor and a man of integrity and a man
who's standing up for the truth. And I wonder if you'll just
tell us why you have decided at this point in your career to
come forward to talk about what is taking place in America and
in the Trump White House.
Mr. Dean. Well, Congressman, I can remember when working
for this committee back in the 1960s, this committee did an
awful lot of good things. For example, when I was here, there
were amendments made to the 1964 Civil Rights Act. There was
the 1965 Voting Rights Act. There was the 18-year-old vote.
There was the 25th amendment. A lot of activities. And it
required both Republicans and Democrats to work together.
This was a wonderful place to start a career in government
working for this committee. I'm not so sure today. There's too
much polarization. You sense it in the questioning sitting here
and the shots that get taken at witnesses.
So what brought me forward was the invitation, in this
instance, where I thought, yes, I can share with particularly a
lot of the people who were on this committee were either not
either born or they were very young when Watergate occurred.
And it's quite striking and startling to me that history is
repeating itself, and with a vengeance, so that's why I've
spoken out.
Mr. Raskin. Thank you very much.
I yield back, Mr. Chairman.
Ms. Scanlon [presiding]. The chair recognizes the
gentlewoman from Arizona.
Mrs. Lesko. Thank you, Madam Chair.
Mr. Malcolm, I'm first going to read some excerpts from the
Mueller report and then ask you to comment on them, if you
don't mind.
Special counsel Robert Mueller is a prosecutor, and yet he
did not--not--recommend obstruction of justice charges against
the President. And as has been said before by Ranking Member
Collins, there was a joint statement by the special counsel and
Department of Justice that says the Attorney General has
previously stated that the special counsel repeatedly affirmed
that he was not saying that, but for the OLC opinion, he would
have found the President obstructed justice.
So let me again talk about some particular excerpts. And
after reading the Mueller report, it was clear to me that
Mueller knew that he may not have a clear case that could hold
up in court. And, in fact, he said: The evidence we obtained
about the President's actions and intent presents difficult
issues that would need to be resolved if we were making a
traditional prosecutorial judgment, namely, A, the President
has Article II authority, and the acts the President engaged in
are all exercises of the constitutional powers given to a
President; B, second, there was no underlying crime. It would
be almost impossible, I believe, to prove corrupt intent, which
is required in the obstruction statutes.
And Mueller himself said: Unlike cases in which a subject
engages in obstruction of justice to cover up a crime, the
evidence we obtained did not establish that the President was
involved in an underlying crime.
He goes on to say: The absence of that evidence affects the
analysis of the President's intent and requires consideration
of other possible motives for his conduct.
And then he further says: The term ``corruptly'' sets a
demanding standard.
Then, C, Mueller report says many of the President's acts
took place in public view.
So, with all those excerpts right from the Mueller report
and the words of Mueller himself, what do you think about my
conclusion that he thought maybe this couldn't hold up in court
and that's why he didn't do the charges?
Mr. Malcolm. Well, I certainly agree that any prosecutor
who would consider bringing an obstruction of justice charge
would weigh heavily whether or not the person who was alleged
to have attempted to obstruct justice had engaged in the
underlying criminal activity under investigation.
And in light of the fact that the President did not
engage--or any of his campaign team--engage in that activity,
he had all sorts of legitimate reasons to be upset by this
probe and what it was doing to his ability to govern.
And so you can like the President's conduct or not like the
President's conduct. I don't think anybody here likes what the
President does all the time. That would probably be an
understatement. But whether he had a legitimate beef that
caused him to do what he do--what he did goes to the issue of
whether or not he had a corrupt intent.
Mrs. Lesko. Thank you, sir.
My next question is for Ms. McQuade.
In a January 2nd Newsweek article, you said: I think this
case is far worse than Watergate.
You said: I think this case is far worse than Watergate
because it didn't just involve a burglary to intercept
communications of your rival. It included allegedly and
potentially a conspiracy to collude with an adversary, Russia.
Obviously, you were wrong that there was conspiracy or
collusion with Russia. Do you admit to that?
Ms. McQuade. I agree that Robert Mueller concluded that he
could not establish the technical crime of conspiracy. However,
I do think it was worse than Watergate. I think this President
worked with Russia. The report says that the investigation
identified numerous links between the Russian Government and
the Trump campaign. It also says that the investigation
established that the Russian Government perceived that it would
benefit from a Trump Presidency and worked to secure that----
Mrs. Lesko. Ma'am, I'm reclaiming my time because I only
have 25 seconds left.
Ms. Vance, on July 6, 2018, you tweeted: ``Dangerous'' is
the right word. The President is sowing hatred, fear, and
distress in hopes he can divide the country enough to survive
when the truth comes out about his campaign's collusion with
Russia.
Well, the special counsel's team wasn't able to find
collusion between the Trump campaign and Russia, but apparently
you did.
What is it that you knew that the special counsel didn't
know or didn't conclude on after 22 months, 2,800 subpoenas,
500 bench warrants, 40 FBI officers, and multiple attorneys?
Ms. Vance. So Mueller, in his report, is careful to clarify
that he's not making any decision about collusion. He's making
a decision about whether or not he has evidence to indict the
crime of conspiracy. A conspiracy is an agreement in an overt
act, in furtherance of that agreement, and Bob Mueller didn't
find that there was evidence of that here. That is a far cry
from saying that there was no evidence of collusion. There's
abundant evidence of collusion in this record.
Mrs. Lesko. And, you know, to me, it's clearly evident that
each one of these Democrat witnesses that is before us today
has had multiple previous statements publicly bashing the
President of the United States, and it's really hard for me to
take your testimony, that it's not biased.
Thank you. I'll yield back my time.
Ms. Scanlon [presiding]. I recognize the gentlewoman from
Washington.
Ms. Jayapal. Thank you, Madam Chair.
Let me go now to the question of discouraging cooperation
with Federal law enforcement investigators by the President or
his associates. The report documents multiple instances where
associates of the President communicated with subjects or
witnesses of the special counsel investigation and other
investigations, potentially with the goal of discouraging
cooperation. And as I go through these events, let me refer you
to the displayed slide over here.
On page 124 of Volume II, the report begins to document
public statements by Rudy Giuliani, the President's private
attorney, relating to former Trump campaign chairman Paul
Manafort. Quote, 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 when the whole thing is over, things might
get cleaned up with some Presidential pardons.
It continues on page 127 of Volume II, quote, Giuliani told
journalists that the President really thinks Manafort has been
horribly treated and that he and the President had discussed
the political fallout if the President had pardoned--if the
President pardoned Manafort. 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.
Mr. Dean, you had spoken about the question of Presidential
pardons in your opening statement. What is your reaction to
Giuliani's statement?
Mr. Dean. Well, first of all, I've been waiting for his
response to this report which he promised--had been drafted
before it had been written, which has not been forthcoming. So
we don't have any formal answer from him on these issues, but
it's really quite surprising. He certainly knows the history of
Watergate. He knows that Nixon got in trouble because of his
dangling pardons. So this is pretty shocking material, but not
surprising, because we heard it publicly when it was occurring
and, of course, the special counsel has included it.
Ms. Jayapal. And, Professor Vance, as a former U.S.
attorney, do you think public statements like that influence
criminal defendants?
Ms. Vance. Obviously, they do. And, you know, the
interesting thing here is that usually when as a prosecutor
you're looking at an obstruction of justice case, it's not
public statements, right? Obstruction usually happens under the
cloak of darkness. You're trying to conceal it. But Mueller
explicitly considers that and finds that public obstruction can
still be obstruction. Everybody sort of shakes their head and
wonders why you're doing it out in public. Maybe you think that
if you're doing it in public, it's somehow okay, but it's not
okay. And we see these statements and we see their impact and
we know that they do impact witnesses.
Ms. Jayapal. So let me continue. On page 127, the report
says, quote, Giuliani was reported to have publicly said that
Manafort remained in a joint defense agreement with the
President following Manafort's guilty plea and agreement to
cooperate and that Manafort's attorneys regularly briefed the
President's lawyers on the topics discussed and the information
that Manafort had provided in interviews with the special
counsel's office. On November 26, 2018, the special counsel's
office disclosed in a court--public court filing that Manafort
had breached his plea agreement by lying about multiple
subjects.
So, Ms. McQuade, what is your reaction to the evidence that
Manafort lied, but also was briefing the President's private
legal defense team after agreeing to cooperate with Federal
investigators? Is that common practice for defendants? And why
was that behavior, Manafort's behavior, so concerning to the
court?
Ms. McQuade. No, that is not common behavior. If you enter
into a cooperation agreement, people sometimes even make the
reference, is you've joined team USA. You are going to
cooperate, you are going to provide information to us. And the
idea that you're taking information from the investigators,
insights into their investigation, and sharing it with the
defense, with the other side, is antithetical to a cooperation
agreement. I can understand why at that moment, they decided to
tear up that agreement.
Ms. Jayapal. So on page 131, the report summarizes the
evidence related to Paul Manafort. It says, With respect to
Manafort, there is evidence that the President's actions had
the potential to influence Manafort's decision whether to
cooperate with the government. Page 132, Evidence concerning
the President's conduct towards Manafort, indicates that the
President intended to encourage Manafort to not cooperate with
the government.
Ms. McQuade, do you agree and why?
Ms. McQuade. There is certainly evidence to support that.
There are numerous tweets about being strong, not flipping.
There were tweets about being a rat when you cooperate. And so
looking at all of those things, it suggests that he was
encouraging Paul Manafort to not cooperate with the government
and continue to support him. And as someone who is so powerful,
the President of the United States, who holds the pardon power,
can deliver that message in a way that none of us otherwise
can.
Ms. Jayapal. Thank you so much to all of you for your
testimony, and I hope that the American people watching this
understand how important this report is and how essential it is
to actually read the whole thing, from front to back.
Thank you, Madam Chair, I yield back.
Chairman Nadler [presiding]. The gentlelady yields back.
The gentleman from Louisiana, Mr. Johnson.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman. And, Mr.
Chairman, sincerely, I want to thank you for returning ``so
help me God,'' the phrase, to the oath today to the witnesses.
As we've discussed, that's an important tradition the American
people want us to maintain.
Let me ask a few questions, Mr. Dean. First, a housekeeping
matter. When were you first contacted about testifying at this
hearing?
Mr. Dean. I'm sorry, about this hearing?
Mr. Johnson of Louisiana. Yes, sir.
Mr. Dean. Probably a couple weeks ago. I was initially told
it was planned for the 20th, and then later it had been moved
to the 10th.
Mr. Johnson of Louisiana. We're just curious. We only got
exactly 7 days' notice, and we had suspected this had been in
the works for a while.
On November 7, 2018, when Attorney General Sessions
resigned, you went on CNN and you said, quote, This seems to be
playing like a murder. It's almost impossible not to interpret
this any other way than a fact to undercut Mueller, unquote. Of
course, now we know that didn't happen. The special counsel was
allowed to finish his investigation, and the Attorney General--
or Deputy Attorney General never declined any requests made by
the special counsel.
So based on that statement, would you now admit that maybe
you overstated the effect of the AG's resignation?
Mr. Dean. Well, what I was looking at was the fact that Mr.
Whitaker was stepping in as an Acting Attorney General, which
was highly unusual, and that's why I made the comment I did. I
think that when Mr. Whitaker got in there, he found the
institution is much different than that of a U.S. attorney's
view of it, that it is a--there's a lot of spine inside the
main Justice Department, and it was not something he could
possibly carry out any assignments that he might have thought
he could handle. So, no, I wouldn't change my comment.
Mr. Johnson of Louisiana. Okay. You also said in that same
interview you believe Special Counsel Mueller had filed sealed
indictments against the President's children and others that
you said, quote, high--were high in the pecking order at the
White House. But there weren't any such indictments.
Mr. Dean. Did I say they had been filed--or that was a
potential, I believe is what I said.
Mr. Johnson of Louisiana. I think you said they had been
filed, but I'll give you that. That didn't happen, though, did
it? Would you admit----
Mr. Dean. No, it didn't.
Mr. Johnson of Louisiana [continuing]. You were wrong about
that?
Mr. Dean. Well, I--if I--my recollection being it was there
was the potential of it. I'd have to look at the transcript of
the broadcast you're talking about.
Mr. Johnson of Louisiana. Mr. Malcolm, really appreciate
you being here today. Your legal experience and your expertise
on the matter before the committee have been very valuable to
us. Couple questions for you.
Many of the acts of alleged obstruction involve the
President exercising his Article II authority that you've
articulated very well today. Can you just explain the
difficulty, quickly, in finding corrupt intent to obstruct
justice when a President is carrying out those Article II
powers?
Mr. Malcolm. Well, you have to be able to determine that it
was done for an illegitimate purpose, that it was done to be
purely self-serving and outside of the scope of the President's
duties. And when a President is undertaking discretionary
actions that are covered by Article II, which vests certain
powers and duties in him, it is a very dangerous inquiry to go
and look at and say, well, did he appoint this person because
he's a crony? Did he appoint this person because he's going to
do his bidding? Or did he appoint them on the merits? When he
got--when he dismisses somebody, did he dismiss somebody
because they were going to find some shenanigans that he was
engaged in, or did he dismiss him because he was incompetent,
or did he dismiss him for all sorts of other reasons?
Any time--a President will be chilled at the thought that
when he engages in these actions, a prosecutor, again perhaps a
politically motivated one, is going to be plumbing his mind to
try to figure that stuff out, and, you know, it just--it treads
on separation of powers concerns that are quite, quite real.
When he's bribing somebody or illegally wiretapping somebody or
threatening witnesses or suborning perjury, facially illegal
acts, there is never a proper motive to do any of these things.
But with respect to all of the things that I just talked
about, and which are many of the things that Special Counsel
Mueller looked at, they can be done for all kinds of motives,
both proper and improper.
Mr. Johnson of Louisiana. Very good. One more question. If
this committee were to go to court to enforce the subpoena for
the full unredacted Mueller report, at this point in the
process, how do you think you would assess the merits of that
lawsuit?
Mr. Malcolm. Well, at the moment, I believe that this
committee would lose, for the very simple reason you are in the
District of Columbia. The D.C. Circuit in a case a couple of
months ago, McKeever v. Barr, determined that there are no
exceptions to 6(e). Federal Rule of Criminal Procedure 6(e)
governs the exceptions against--in favor of disclosing grand
jury material, and, you know, disclosures to Congress are not
covered by that. This committee and Congress can, of course,
amend the law, if it wants to, but at the moment, the governing
law in this circuit, unless and until it is overturned, is that
6(e) material is governed by the exclusions there and nothing
else.
Mr. Johnson of Louisiana. Thank you very much.
In spite of all that's been said here today and the
countless interviews and the op-eds of our colleagues and all
that, here's the one key fact we want everybody to remember.
The White House and the Trump campaign provided unprecedented
levels of cooperation with the special counsel's investigation.
They produced over 1.4 million pages of documents to the
special counsel. They allowed 20 White House officials to
testify, including eight people from the White House counsel's
office. And in spite of all that, the Attorney General and
former Deputy AG Rosenstein found the evidence developed by the
special counsel was, quote, not sufficient to establish that
the President committed an obstruction of justice offense,
unquote.
That should've ended the inquiry, but it hasn't. We're
doing these political hearings, we're wasting the American
people's time. And this committee has one of the broadest and
most important jurisdictions of any committee in Congress.
There is critical work we need to be doing, and we're not
because we're mired in this.
I'm out of time, and I yield back.
Chairman Nadler. The gentleman is out of time.
The gentlelady from Pennsylvania, Ms. Scanlon.
Ms. Scanlon. Thank you.
Professor Vance, isn't it true that the President refused
to answer any questions by the special counsel about
obstruction of justice?
Ms. Vance. You know, he did. And I think that we should
point out that written questions, written responses to
prosecutors' questions, which is the only thing that the
President provided to the special counsel, that's just a far
cry from sitting down for an interview, for all the obvious
reasons. You can't have give-and-take, you can't follow up on
an answer. Other Presidents have submitted to these types of
interviews. Bill Clinton certainly did. This President did not,
and did not on the topic of obstruction.
Ms. Scanlon. Okay. We were discussing the President's
actions to influence Paul Manafort and whether or not he would
cooperate with the special counsel. The report and recent court
filings document similar communications regarding Michael Flynn
and his cooperation with Federal investigators.
For those following along at home, the report on page 121
of Volume II says, quote, In late November 2017, Flynn began to
cooperate with this office. On November 22nd, Flynn withdrew
from a joint defense agreement he had with the President.
Flynn's counsel told the President's personal counsel and
counsel for the White House that Flynn could no longer have
confidential communications with the White House or the
President. Later that night, the President's personal counsel
left a voice mail for Flynn's counsel.
Professor Vance, is it common practice for defense counsel
to communicate in such a way with another defense counsel after
a joint counsel agreement is no longer in effect?
Ms. Vance. You know, I would actually hesitate to criticize
attorneys communicating back and forth and trying to work out
these circumstances. But this tape-recording that we've now had
the opportunity to hear is, to say the least, extremely
unusual. And this, frankly, Congresswoman, is what one of the
jobs that you all, I think, have the opportunity to complete,
as this conduct continues and as more evidence comes to light,
to determine whether there's any conduct here that constitutes
a high crime or a misdemeanor. What did the President know? Was
he involved in the placement of this call? Those questions
still need to be answered.
Ms. Scanlon. Okay. The voice mail recording that you
referenced was recently made public through court. But I'd like
to read it here, as printed on page 121 of the report, and I
quote, I understand your situation, but let me see if I can't
state it in starker terms. It wouldn't surprise me if you made
a deal with the government. If there's information that
implicates the President, then we've got a national security
issue, so, you know, we need some kind of heads-up, just for
the sake of protecting all our interests if we can. Remember
what we've always said about the President and his feelings
towards Flynn, and that still remains.
Professor McQuade, what's your reaction to the voice mail?
Ms. McQuade. You know, there are two statements in there
that jump out at me as at least inappropriate and very
concerning. One is, we need some kind of a heads-up. If his
premise is true, he assumes that Michael Flynn has now agreed
to plead and cooperate, that means just--the exchange we just
talked about with Paul Manafort, that they want a heads-up
about what's going on, what are you doing, are you cooperating,
what are you telling them, what are they asking you, which I
believe would be inappropriate.
And then the other part is, where he says, remember the
President still has feelings toward Flynn and that remains. I
think that is a suggestion that, you know, we'll take care of
you if you take care of us. And so I think viewing that alone
does not amount to obstruction of justice, but I think when you
look at it in other contexts--and perhaps you're getting to
this--it's the return call, when he calls him back and says,
no, I can't do that. I can't provide you with information. And
the response is, we take that as hostility from Mr. Flynn
toward the President, and I'm going to tell the President, and
he's not going to like that. That, coupled with what's in this
message, I think, does suggest a carrot and a stick about
cooperation for Mr. Flynn.
Ms. Scanlon. So page 122 of Volume II does go on to say
that Flynn's attorneys understood that statement to be an
attempt to make them reconsider their position because the
President's personal counsel believed Flynn would be disturbed
to know that such a message would be conveyed to the President.
Professor Vance, given the evidence presented in the
report, do you agree with that assessment and why?
Ms. Vance. I do agree with that assessment, and it's
important to remember that we're not talking about just any
individual here. We're talking about the President of the
United States who's putting his thumb on the scale of the
criminal justice system.
Ms. Scanlon. Finally, with respect to the President's
former personal attorney and self-described fixer, Michael
Cohen, on page 146 of Volume II of the report, they describe
back-channel conversations between Cohen and Trump's private
legal team, where they say, quote, On or about April 17th 2018,
Cohen began speaking with an attorney, Robert Costello, who had
a close relationship with Rudy Giuliani, one of the President's
personal lawyers. Costello told Cohen he had a back channel of
communication to Giuliani, and the channel was crucial and must
be maintained.
The day after that, The New York Times published an article
on Cohen and Trump's relationship. Page 146 of the report
describes an e-mail between Cohen and Costello. Quote, Costello
wrote he had spoken with Giuliani. Costello told Cohen the
conversation was very, very positive. You are loved, they're in
our corner, sleep well tonight, you have friends in high
places.
The report also notes on 146 to -47 that Trump tweeted his
support for Cohen earlier that day.
Professor McQuade, what's your reaction to these
communications between Cohen, Costello, and Giuliani?
Ms. McQuade. They are certainly a red flag. They would
cause some concern for further inquiry that President Trump and
his team are trying to coddle Michael Cohen, trying to
encourage him to cooperate, talking about you are loved, you're
in our corner, you have friends in high--high places. And the
emphasis on high places is important because, as the President,
of course, he has the pardon power, which is the ultimate
safeguard for Michael Cohen if he is to remain loyal to
President Trump.
Ms. Scanlon. Thank you. I yield back.
Chairman Nadler. The gentlelady yields back.
The gentleman from Texas, Mr. Ratcliffe.
Mr. Ratcliffe. Chairman, I wish I could say I appreciate
you holding this hearing, but I can't, because I don't.
With due respect to some of the witnesses, some of whom
have a background similar to mine at the Department of Justice,
this has been just another in the latest of panicked, short-
notice hearings where, despite Democrats telling us it's a
vitally important hearing, in order to prepare for it,
Republicans received the testimonies of the three Democratic
witnesses an hour before the hearing started.
Hearings featuring buckets of chicken and convicted felons,
unfortunately, have become the norm for this once esteemed
committee. So to any of my fellow Americans who are still tuned
in--although I don't know why they would be--let me remind you
how and why we're here today, why we're really here today.
Hearings featuring buckets of chicken and convicted felons
are being held by members of the Democratic Party that
commissioned and paid for a dossier that falsely claimed that
Donald Trump was part of a, quote, well developed conspiracy,
end quote, with Russia. That same dossier was used by a
Democratic administration to justify an investigation into
their own false conspiracy allegation. And now that the special
counsel has conclusively and unequivocally found that there was
no conspiracy between any American and the Russian Government,
much less a conspiracy that was well developed between Donald
Trump and the Russians, well, those same Democrats, who tried
and failed to get rid of President Trump with a conspiracy that
never existed, well, they are now undeterred. Now they want to
justify their efforts to, ultimately, perhaps impeach Donald
Trump by alleging that he obstructed their false conspiracy
investigation.
Now, even if we set aside whether it's even legally
possible to obstruct an investigation that is not lawfully
predicated, which this one may ultimately prove to be, and even
if we set aside whether or not any President can obstruct
justice by doing what the Constitution allows or authorizes a
President to do, like fire any executive branch employee, even
if we set all of that aside for now and focus instead on the
fact that this obstruction of justice narrative against Donald
Trump was started by the very same people who started the false
conspiracy allegation.
I'll remind my fellow Americans that it was Jim Comey who
started the obstruction of justice theory in memos that he
intentionally leaked, and some would submit unlawfully leaked,
in order to start this special counsel investigation. And it
was Andy McCabe and Peter Strzok and Lisa Page and Jim Baker
who opened this obstruction of justice case after discussing
the ridiculous theory, false theory, that Vladimir Putin may
have ordered Donald Trump to fire Jim Comey.
So now today, to advance that obstruction of justice
investigation into an investigation where there was no
conspiracy, my Democratic colleagues have called three
witnesses. Two of those witnesses were part of the Obama
Justice Department when it started the false conspiracy
allegation to opine against the very same target of the false
conspiracy investigation. And the third witness that the
Democrats called is Mr. Dean.
Now, Mr. Dean, I have no problem with you having an
opinion. You've paid your debt to society, and you've made your
opinion clear. In the last 2 years, did you know you've sent
970 tweets about Donald Trump? All 970 tweets about Donald
Trump are anti-Donald Trump. So you are entitled to that
opinion about him. You don't have to like him. But because of
disbarment, you are legally prohibited from having an opinion
about obstruction of justice.
Look, to my Democratic colleagues, unlike Bob Mueller, who
needed to find a crime to indict and did not, you don't need
one to impeach Donald Trump. You don't need one. It's the same
reason why the chairman, within days of Donald Trump getting
elected, talked about impeaching him. It's why some Democrats
on this committee voted to impeach Donald Trump just a few
months after he was into office. It's why some Democrats on
this committee voted to impeach Donald Trump before a word of
the Mueller report was ever written.
Look, you're in control of the House, and at the top of the
House is the Speaker of the House who has reversed the
presumption of innocence in this country to a presumption of
guilt, and said last week that she plans to see Donald Trump in
prison. So I don't know what your plans are. You all can do
whatever you want, but stop wasting our time and just do it.
I yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from Colorado, Mr. Neguse.
Mr. Neguse. Mr. Chair, I believe the gentlewoman from
Texas----
Chairman Nadler. Excuse me. I'm sorry. I skipped the
gentlelady from Texas, Ms. Garcia. I'm sorry.
Ms. Garcia. You did not. You just called me. Great save.
First of all, let me just thank, Mr. Chairman, you for
pulling this hearing together.
To all the witnesses who have appeared, it's really
important that we get some clarity on some of the issues around
the Mueller report. And to do that, I want to go ahead and just
follow up where our vice chair left off, Ms. Scanlon, and begin
with you, Ms. Vance.
Page 141 of Volume II of the report goes on to quote about
Cohen, and we're dealing with, again about Cohen. Cohen also
recalls 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, end quote. And further,
quote, 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.
Hearing that and seeing that in the report, and
understanding Michael Cohen's circumstances, his long-standing
relationship with the Trump family, and the evidence presented
in the report, was Mr. Cohen's understanding of the situation
reasonable, and why?
Ms. Vance. You know, ultimately, that decision would be up
to a jury or to a decisionmaker such as this body, but when you
look at this evidence, it looks like the very heart of
obstruction. If you take it out of the context of this
President and his advisers and think about other kinds of
obstruction cases where you might see this kind of conduct, you
think about, for instance, a drug-trafficking ring, where the
kingpin tells people, as long as you stay on our side, don't
worry, we'll take care of you. This isn't an unusual situation,
and we can plainly understand this language and what's going on
here with Mr. Cohen.
Ms. Garcia. Mr. Dean, do you have a reaction to that, sir?
Mr. Dean. Oh, I would join what Ms. Vance said.
Ms. Garcia. Okay. And, Ms. McQuade, do you agree or do you
see it any differently?
Ms. McQuade. Yes, I agree. You know, I don't know that,
again, looking at this in isolation, gets us to a specific
count of obstruction of justice, but looking at it in the grand
scheme of things, it is part of a pattern of encouraging
witnesses to cooperate and discouraging them--to protect Mr.
Trump and discourage them from cooperating with the government.
Ms. Garcia. It's sort of a signal.
Then on page 141, again of Volume II, the report goes on to
say, quote, On August 21, 2018, Cohen pleaded guilty in the
Southern District of New York to eight felony charges,
including two counts of campaign finance violations, based on
the payments he made during the final weeks of the campaign to
women who said they had affairs with the President. During the
plea hearing, Cohen stated that he had worked at the direction
of the candidate in making those payments.
The report notes that the same day, the President compared
Cohen and Manafort, quote--and this is a direct quote--I feel
very badly for Paul Manafort and his wonderful family. Justice
took a 12-year-old tax case, among other things, applied
tremendous pressure on him, and unlike Michael Cohen, he
refused to break up stories in order to get a deal. Such
respect for a brave man.
Then on page 150, then documents that--documents Cohen pled
guilty on November 29th to making false statements to Congress
about the Trump Tower-Moscow project. The same day, the report
notes, quote, The President also said that Cohen was a weak
person, and by being weak, unlike other people that you watch,
he is a weak person, and what he's trying to do is get a
reduced sentence. So he's lying about a project that everybody
knew about.
And pages 48 through 152 document numerous other statements
that the President's made about Cohen, either in public or
through tweet.
So my question to the three of you, again, Mr. Dean, Ms.
Vance, and Ms. McQuade, what is your reaction to the evidence
presented in the report relating to Michael Cohen and the
possibility of a pardon? And, Ms. White, you would like to
start first?
Ms. Vance. Sure. I'm going to agree with Professor McQuade.
I'm not confident that standing on its own this conduct would
support an independent charge of obstruction. We would need to
look at it more closely and weigh it more carefully. But what
it does do is it displays this pattern of conduct by the
President. When you're on his side, he likes you. But the
minute he thinks that you stray off of his team, he's quick to
condemn you. And again, this isn't your boss or a neighborhood
friend or someone like that. This is the President of the
United States doing it formally and publicly in a way that
conveys that he will protect you, perhaps even pardon you, when
you're on his team, but if you stray, you should expect
consequences. It's not, perhaps, a count of obstruction, but it
is obstructive conduct.
Ms. Garcia. It's part of the pattern?
Ms. Vance. Absolutely.
Ms. Garcia. Okay. Mr. Dean, anything you need to add?
Mr. Dean. Well, the pardon power is really one of the
greatest powers a President is given in the Constitution. It's
really unchecked and uncheckable. But if his motives are to
guide a witness or influence a witness, the special counsel has
a section in here on how a President misusing his powers is an
indictable potential and not within the law.
I don't think Michael Cohen is going to get a pardon, given
the current situation, given he did cooperate to a degree, not
to the degree the Southern District wanted, but he did
cooperate with the Southern District on the payment of hush
money to two of Mr. Trump's mistresses just before the
election. They, however, want cooperation from the day you were
born until the moment you cooperate, which is a very high
standard, higher than some U.S. attorney's offices.
So he didn't get the full support of the Southern District
while he was an important witness, and a judge might give him
some consideration at some point on that.
Ms. Garcia. Thank you.
And, Mr. Chairman, can McQuade--did you have anything to
add to that?
Ms. McQuade. The only thing I would add is the fact that
these statements were made out in the open. They were in public
statements and in tweets. And what Robert Mueller says is,
although that is uncommon, that does not in any way diminish
their harm and could very well be the basis for an obstruction
charge.
Ms. Garcia. Thank you. I yield back.
Chairman Nadler. The time of the gentlelady is expired.
The gentleman from Colorado, Mr. Neguse.
Mr. Neguse. Thank you, Mr. Chairman. And thank you to the
witnesses for your testimony today.
I'd like to talk about two topics: the obstruction of
evidence and the interviews with the special counsel and the
refusal to interview the special counsel. On page 10 of Volume
1, the report states, and I'll quote, Some of the individuals
we--meaning the special counsel--interviewed, or whose conduct
we investigated, including some associated with the Trump
campaign, deleted relevant communications or communicated
during the relevant period using applications that feature
encryption or that do not provide for long-term retention of
data or communication records, end quote.
The report discusses on page 130 of Volume I, potentially
destroyed evidence related to Manafort's communications with
the Trump campaign members, the administration, and, quote, the
peace plan in his meetings with Kilimnik. Page 10, Volume I,
goes on to say, quote, The special counsel's office cannot rule
out the possibility of the unavailable information would shed
additional light on or cast in a new light the events described
in the report, end quote, which I believe both Professor
McQuade and Professor Vance alluded to in their opening
statements.
Professor Vance, what's your reaction to that statement in
the special counsel's report, and, you know, how common is
destruction of evidence in these types of investigations?
Ms. Vance. So it's a really good question, because I'll
tell you what isn't common. What isn't common, to see multiple
sorts of incidents where evidence is destroyed or someone tries
to get a witness to refrain from cooperating with an
investigation. Typically, you see efforts to obstruct justice
in isolation, or maybe you see one defendant doing a couple of
things. This sort of systematic obstruction that's so extreme
that the special counsel, when he writes his final report,
feels the need to discuss it so early in the report, I think,
is unusual.
And the full scope of what Mueller discusses here is
witnesses who were unavailable because of privilege, witnesses
who lied, as you point out evidence that's destroyed by the use
of technology and other apps, and information that's offshore.
This is a persistent pattern, not an isolated occurrence.
Mr. Neguse. Professor McQuade, would you agree with that
assessment?
Ms. McQuade. I would. And we've heard today many
representations about how President Trump permitted
unprecedented access to his records, and yet Robert Mueller
found no conspiracy. Robert Mueller puts very early in his
report all of the obstacles that he faced and even says that
this gap means that more evidence could help shed some light on
this matter. I think that supports hearings like this one to
try to get to the bottom of what actually happened.
Mr. Neguse. Well, so I want to speak to that, the
misinformation, I think, in the public sphere around this,
quote/unquote, unprecedented access that was given to the
special counsel. As identified in the report on page C1 of
Volume II, quote, the President provided written responses
through his personal counsel to questions submitted to him by
the special counsel's office. However, page 13 of the volume
states, quote, During the course of our discussions, the
President did agree to answer written questions on certain
Russia-related topics, and he provided us with answers. He did
not similarly agree to provide written answers to questions on
obstruction topics or questions on events during the
transition.
The special counsel's office also documented its effort to
secure an interview with the President beginning in December of
2017. Still, on page C1, the report documents the office's
discussions with the President's lawyers about a voluntary
interview. I'll quote the report. We also advised counsel that
an interview with the President is vital to our investigation,
end quote. The President's attorneys, quote, did not provide us
with reason to forego seeking an interview. We additionally
stated that it is in the interest of the Presidency and the
public for an interview to take place, and offered numerous
accommodations to aid the President's preparation and avoid
surprise.
So the question, Professor Vance, what is your reaction to
that passage of the special counsel's report, and, of course,
given your experience as a prosecutor, the value in being able
to interview witnesses?
Ms. Vance. Obviously, the experience that you have in the
back-and-forth of questioning is much more productive for
prosecutors. And the question that one's left with after
reading this is, why wouldn't the President sit down and sit
for an interview like other Presidents had? If the explanation
that we hear today that there was so much cooperation from this
administration, that witnesses were provided and documents were
provided, and that this was a very cooperative effort by the
White House to engage with the Mueller investigation, if all of
that is true, then you have to ask yourself, why wouldn't they
make the most important witness, the President of the United
States, available?
Mr. Neguse. Thank you, Professor.
With that, I yield back my time, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
The gentlelady from Georgia, Mrs. McBath.
Mrs. McBath. Thank you so much.
For those of you that are here today to testify, we greatly
appreciate your taking the time, spending the time with us to
get to the truth.
I have some questions related to the disobeying of orders,
and I refer you to the slides that we'll be discussing.
President Trump has tweeted that nobody disobeys my orders,
and, however, the report documents multiple instances where
subordinates did the opposite. For example, on page 4, Volume
II, and I quote, On June 17th, 2017, the President called
McGahn at home and directed him to call the Acting Attorney
General and say that the special counsel had conflicts of
interest and must be removed. McGahn did not carry out this
direction, however, deciding that he would resign, rather than
trigger what he regarded as a potential Saturday Night
Massacre.
Now, on page 5 of Volume II, and I quote, Lewandowski did
not want to deliver the President's message personally, so he
asked senior White House official Rick Dearborn to deliver it
to Sessions. And Dearborn was uncomfortable with the task and
did not follow through.
Then on page 5, Volume II, and I quote, Lewandowski did not
want to deliver the President's message personally, so he asked
senior White House official Rick Dearborn to deliver it to
Sessions. Dearborn was uncomfortable with the task and did not
follow through.
And the last example that I'll give you is on page 75,
Volume II, which says, substantial evidence indicates that the
catalyst for the President's decision to fire Comey was Comey's
unwillingness to publicly state that the President was not
personally under investigation, despite the President's
repeated requests that Comey make such an announcement.
Mr. Dean, my question is for you. In your experience, is it
common to disregard or to ignore direction or requests from the
President? And in what circumstances would that be appropriate
for staff to do?
Mr. Dean. It's unusual, but it did happen, for example, in
the Nixon White House. Not every instruction generally given to
either H.R. Haldeman, the chief of staff, or John Ehrlichman,
the President's chief domestic advisor, when they thought the
President was flying off the handle, sometimes they didn't act.
But sometimes they did. Or the President went to somebody who
would.
For example, at one point, Richard Nixon wanted to order a
firebombing of the Brookings Institute so he could send
burglars in to the safe when the fire department responded.
Haldeman and Kissinger, who were present for that meeting, did
not respond, did not pass the order. He called Chuck Colson in,
another aide, and Chuck Colson did respond. When I got wind of
it, I--I didn't know it was the President's order, and heard
this insane plan, flew to California and disrupted it, and said
it was insane. Ehrlichman picked up the phone, called Colson,
and said young Counsel Dean is out here, doesn't think the
Brookings plan is a very good one, and said cancel it. And
turned to me, said, anything else? I said, no, sir, I'll go
back to Washington, which I did.
So there's an instance where a President's plan to firebomb
the Brookings Institute was canceled. But I can assure you it's
one of the early roots of Watergate because of the attitude it
showed of what the President wanted.
Mrs. McBath. Well, thank you. That sounds pretty
disturbing, but I appreciate the truth.
My questions are for all three of you, Mr. Dean, Professor
Vance, and Professor McQuade. What are your reactions to these
kinds of decisions by the White House personnel to ignore the
President? And, Professor McQuade, if you'd just answer first,
please.
Ms. McQuade. Well, on the one hand, I think any time
someone is disregarding an order from the President, we have a
very dysfunctional White House that should alarm every
American. On the other hand, I am grateful that they
disregarded these orders, because if President Trump had gotten
his way, then the investigation into Russian attack on our
election would have ended. It would have focused only on future
elections, and we would not have the information that we have
that's necessary to keep our country safe.
Mrs. McBath. Thank you.
Ms. Vance. It's important to remember that this is a really
good example. This is an explanation of why the statute that
makes obstruction a crime also makes the attempt or the
endeavor to commit obstruction a crime, because even without
the willing participation from his staff that would have
permitted the President to complete his obstruction, this
evidence still shows that the President's mind-set was such
that he wanted to take these acts, that he was not committed to
truth in the criminal justice system, that he wanted to divert
it away from the truth for his own benefit.
Mrs. McBath. Thank you.
Mr. Dean.
Mr. Dean. I agree, that I think it's healthy at times the
staff does not always follow through robotically and does
interpret orders. But as I say, it is not the norm. It's
typically when the staff senses something is terribly amiss and
then they don't follow up.
Mrs. McBath. Thank you. And I'm out of time. I yield the
balance of my time.
Chairman Nadler. The gentlelady yields back.
The gentleman from Pennsylvania, Mr. Reschenthaler.
Mr. Reschenthaler. Thank you, Mr. Chairman. I yield to my
colleague from Ohio.
Mr. Jordan. I thank the gentleman for yielding.
Mr. Malcolm, I'm going to go back kind of where Mr.
Armstrong and Mr. Steube were earlier this afternoon. Does the
President have the right to fire people?
Mr. Malcolm. Yes.
Mr. Jordan. Does the President have the right to pardon
people?
Mr. Malcolm. Yes.
Mr. Jordan. Could a lawful action like a pardon or firing
an individual be done with corrupt intent and therefore be
criminal?
Mr. Malcolm. It could be done for an improper purpose,
again--but the President has plenary--plenary power to exercise
a pardon.
Mr. Jordan. Could a lawful action with corrupt intent,
could that be obstruction of justice?
Mr. Malcolm. Under certain circumstances with certain
people, yes.
Mr. Jordan. Okay. And could a lawful action with corrupt
intent be criminal even if there is, in this situation, no
underlying crime?
Mr. Malcolm. Sure.
Mr. Jordan. Okay. But it seems to me, what if there's no
action?
Mr. Malcolm. Well----
Mr. Jordan. I mean, I keep coming back to this, did the
President fire Bob Mueller?
Mr. Malcolm. No.
Mr. Jordan. Did the President fire Rod Rosenstein?
Mr. Malcolm. No.
Mr. Jordan. Did the President pardon Paul Manafort?
Mr. Malcolm. No.
Mr. Jordan. Did he pardon Michael Flynn?
Mr. Malcolm. No.
Mr. Jordan. Did he pardon Michael Cohen?
Mr. Malcolm. No.
Mr. Jordan. Did he pardon Roger Stone?
Mr. Malcolm. No.
Mr. Jordan. Did the President stop people from testifying?
Mr. Malcolm. Not so far as I know.
Mr. Jordan. Did the President's chief of staff testify,
Reince Priebus?
Mr. Malcolm. Two of them.
Mr. Jordan. Yeah, two of them. Did the President's White
House counsel, Don McGahn, testify?
Mr. Malcolm. Yes.
Mr. Jordan. For 30 hours.
Mr. Malcolm. So I'm told.
Mr. Jordan. Did the President do anything to stop Bob
Mueller getting access to the information he sought access to?
Mr. Malcolm. Not that I'm aware of.
Mr. Jordan. Did Jeff Sessions unrecuse himself?
Mr. Malcolm. No.
Mr. Jordan. I don't know if that's a word, but it's been
used a lot here today. No.
Mr. Malcolm. And I don't think there's anything improper in
asking him to consider it.
Mr. Jordan. Yeah. Here's my point. When you--in my
judgment, when you sum this all up, the President was falsely
accused. Do you keep looking at something Bob Mueller chose not
to indict or do you investigate how the false accusations
started? That's the fundamental choice for the House Judiciary
Committee.
Mr. Malcolm. That's for this body to decide.
Mr. Jordan. Oh, I understand. I'm not asking you a
question. I'm making a point now. Actually--I'm actually
directing my comments now to the chairman of the committee.
I mean, Bob Mueller----
Chairman Nadler. Will the gentleman yield for an answer?
Mr. Jordan. When I got my 2 minutes and 43 seconds, maybe
I'll let you answer. You get--you get all the time you want
because you run the committee.
But when the President's falsely accused, Bob Mueller says
he's not going to indict, the Attorney General of the United
States says they're not going to prosecute, not going to
indict, do you keep looking at that, or maybe do you want to
look at how the whole darn thing started, how the whole false
accusation began in the first place?
Seems to me, particularly when we're talking about
something as critical as the FISA court, and the potential to
violate people's fundamental liberties as could happen at the
FISA court, and the evidence we already have seen, seems to me
that's what you want to look at, but this committee says, no,
we're not going to do that. We're going to keep going and
looking at something Bob Mueller and the Attorney General of
the United States have already looked at. So I don't get it. I
think the House Judiciary Committee should be focused on that
fundamental question, but unfortunately, that's not where it's
heading.
With that, I would yield to the ranking member of the
committee.
Mr. Collins. I appreciate the gentleman yielding.
Mr. Dean, we may have actually found something we might
agree on in your last statements. And it goes back to this
whole idea that they didn't--that some of the folks, after Mr.
Trump said--you know, the President said stuff that they didn't
follow through on. How many times--and I think following up on
Mr. Jordan's comment--when you're in a position that you feel
frustrated, there's a time--you had talked about the--President
Nixon, you went and related this back to Watergate. It may be
the only analogy we take here. Your staff around you is some--
is supposed to give that advice to not follow--they're there to
help you. Your last statement, you gave indication of that.
Would that be correct?
Mr. Dean. Yes.
Mr. Collins. Okay. Mr. Malcolm, in taking that a step
further, we're playing this as a bad thing that they didn't
follow through, you know, in going through this issue, but
also, there are times--wouldn't you also agree that there are
times that that's what the staff is around you for, that you
come up with something--I mean, I come up with some--you
probably have, the chairman I'm sure has, I have as well, came
up with some bad ideas, and aren't you glad somebody's around
you to say, eh, or I'm just gonna say, maybe he'll forget about
it after lunch?
Mr. Malcolm. Yes, that's correct. Particularly if you're
familiar with the individual and are used to his venting his
frustrations.
Mr. Collins. Exactly. I've got people who are very close--
you know, those are the ones you trust. And I think it's
interesting here, it's also interesting, as we continue this
process, to know that you're attributing mad motives simply
because they should have done or not done, and it goes on in
places of business all the time and in law offices all the time
and at U.S. attorney's offices all the time when this is looked
at.
So I think it's really interesting, Mr. Dean, coming back
to that point you made, we may not agree on the end result, but
I think the point made was something interesting. I'll let you
finish--I mean, just a minute.
But going back to Ms. McQuade for just a second. This is
interesting that this is why this committee ought to be doing
this, is simply sitting here listen to people pontificate on
the original of the Mueller report, which could be read and
have different opinion, which we stated up front, that's not
taking this a step further. This is simply regurgitating what
has been your point of view for many years.
Mr. Dean, I will yield to you to finish.
Mr. Dean. I was just going to make the point, and you're
following up on Mr. Jordan, who has stepped out, if that were
followed, Watergate would have never been investigated.
Mr. Collins. That's it. I yield back. I yield to the
gentleman----
Chairman Nadler. The gentleman yields back.
The gentlelady from Florida, Ms. Mucarsel-Powell.
Ms. Mucarsel-Powell. Thank you, Mr. Chairman.
My colleagues have walked now through different actions by
the President of the United States, and I'd like to talk
through that pattern briefly. And if you'd like, I'll be
referring you to the displayed slide.
On the first row in that chart, pictures people who,
according to the report, President Trump directed to deny
facts. Can you give us your reactions to the President asking
the three people in the first row to deny facts? I'll start
with Professor McQuade.
Ms. McQuade. Looking at the pictures, I see what appears to
be Donald Trump, Jr.--is that Hope Hicks, maybe?----
Ms. Mucarsel-Powell. Yes. Hope Hicks and Don McGahn.
Ms. McQuade [continuing]. And Don McGahn. So I guess just
to answer the question generally, denying facts suggests
someone is being unhelpful in an investigation. We have heard
some advocates here say President Trump was, you know, an open
book in sharing information, but that is not consistent with
asking people to deny facts that are true. To deny what
happened with regard to Donald Trump, Jr., and Hope Hicks, of
course, it was rewriting the press statement about what
happened at the Trump Tower meeting. That is a case that is
perilously close to criminal behavior, meeting with a foreign
adversary for assistance in a campaign. Robert Mueller
concluded that that was not a crime because he was not able to
establish wilfulness, that is, knowledge that it was a crime,
and that the material received was a thing of value, not that
it didn't happen and it wasn't terribly unpatriotic. And so I
think denying facts is certainly consistent with obstruction of
justice.
Ms. Mucarsel-Powell. Thank you.
Now let's turn to the second row. According to notes
written by former Attorney General Jeff Sessions' chief of
staff, Joseph Hunt, when Sessions told the President that a
special counsel had been appointed, the President, and I quote,
slumped back in his chair and said, oh, my God, this is
terrible, this is the end of my Presidency, I am--the f-word.
And I'm a mom, my kids are probably watching, which is why I
don't want to say it.
The report then documents attempts by the President to
curtail the special counsel's investigation, which the report
found, quote, linked to the special counsel's oversight of
investigations that involved the President's conduct. That's
Volume II, page 89.
The second row in that chart pictures people who, according
to the report, President Trump asked in some way to curtail the
special counsel's investigation. Can you give us your reactions
to the portions of the Mueller report which describe the
President asking the people in row two to curtail the special
counsel's investigation?
Ms. Vance. So I'm old enough that I'm going to flunk the
eye chart exam here, but I'll talk about the incident with
Attorney General Sessions, because this is well documented, and
we know that what the President wanted to have the Attorney
General do was to strictly limit the Mueller investigation so
that it could only look forwards, so that it could not look
backwards. And this means that the President of the United
States wanted to make sure that there was no investigation into
his own conduct, no investigation into the conduct of his
associates, and no investigation into the conduct of Russia,
which attacked our elections.
This, I think, is dangerous territory for a President to be
in. It certainly speaks, in several of these events,
particularly this one with former Attorney General Sessions and
with Don McGahn, of obstructive conduct. It's certainly
something that could be of interest to this body.
Ms. Mucarsel-Powell. Thank you, Ms. Vance.
Now let's turn to row three. The report states, quote, that
many of the President's acts directed at witnesses included
discouragement of cooperation with the government and
suggestions of possible future pardons. And that the President
engaged in conduct involving public attacks on the
investigation, nonpublic efforts to control it, and efforts in
both public and private to encourage witnesses not to cooperate
with the investigation. That's in Volume II, page 7.
Row three shows people who, according to the report,
President Trump encouraged not to cooperate with the special
counsel's investigation. Can you give us your reactions to the
portions of the Mueller report where the President contacted
those witnesses? Either Ms. McQuade or----
Mr. Dean. Is that question to me?
Ms. Mucarsel-Powell. Either.
Mr. Dean. I'm old enough that I've had cataract surgery,
and I can see the chart.
Ms. Mucarsel-Powell. You can, that's great.
Mr. Dean. And I did address that in my opening statement,
the fact that pardons were dangled throughout, and may still be
the case that they're being dangled. There's no question that's
an obstruction as far as the Congress is concerned. It was
paragraph 9 of Article I of the Nixon impeachment proceeding.
So this body has set the precedent, as far as their view of
Presidential conduct, that it is improper.
Ms. Mucarsel-Powell. Thank you, Mr. Dean.
I yield back my time.
Chairman Nadler. The gentlelady yields back.
The gentlelady from Texas, Ms. Escobar.
Ms. Escobar. Thank you, Mr. Chairman. And thanks to all of
you for being here.
As we near the end of this hearing, I want to quickly walk
through a few of the significant findings by the special
counsel just to summarize for the record. And while I have them
on a slide, I will be reading the words on the slide for you.
On page 89, Volume II, it states, quote, Substantial
evidence indicates that by June 17th, 2017, the President knew
his conduct was under investigation by a Federal prosecutor who
could present any evidence of Federal crimes to a grand jury.
Professor Vance, quickly, do you agree, based on your
understanding of the events and the evidence presented in the
report? And if so, why?
Ms. Vance. Well, I do, and this is the nexus question,
right? We're talking about whether the President is aware that
his acts would interfere with ongoing investigations. And it's
clear that as these acts take place, he had that awareness, and
that that element of the offense of obstruction could be
established for several of these instances.
Ms. Escobar. Thank you. Page 89, Volume II, quote,
Substantial evidence indicates that the President's attempts to
remove the special counsel were linked to the special counsel's
oversight of investigations that involved the President's
conduct and most immediately to reports that the President was
being investigated for potential obstruction of justice.
Mr. Dean, do you agree, based on your understanding of the
events and the evidence presented in the report? And if so,
quickly, why?
Mr. Dean. Well, I think it's pretty obvious that it's
spelled out nicely by the special counsel in this report that,
indeed, he's making the case that that is obstruction of
justice.
Ms. Escobar. Thank you. Page 120, Volume II, quote,
Substantial evidence indicates that in repeatedly urging McGahn
to dispute that he was ordered to have the special counsel
terminated, the President acted for the purpose of influencing
McGahn's account in order to deflect or prevent further
scrutiny of the President's conduct toward the investigation.
Professor McQuade, do you agree, based on your
understanding of the events and the evidence presented in the
report? And if so, quickly, why?
Ms. McQuade. Yes, I believe this is the strongest example
of obstruction of justice. This even goes beyond exercise of
the President's Article II powers by directing McGahn to create
a false document. I believe Mr. Malcolm and Mr. Barr even would
agree that this is obstruction of justice.
Ms. Escobar. Thank you. Page 97, Volume II, quote,
Substantial evidence indicates that the President's effort to
have Sessions limit the scope of the special counsel's
investigation to future election interference was intended to
prevent further investigative scrutiny of the President's and
his campaign's conduct.
Professor Vance, do you agree, based on your understanding
of the events and of the evidence presented in the report? And
if so, why?
Ms. Vance. So this again, would ultimately be a fact
question for a jury, but based on the evidence that we have in
front of us and the report, I think a prosecutor could
appropriately indict and expect to convict on the basis of this
evidence.
Ms. Escobar. Thank you. Professor McQuade, you've reminded
us throughout this hearing that we need to look at all of this
evidence in its totality. What does all of this evidence in its
totality tell you?
Ms. McQuade. Number one, that Russia attacked our country.
Number two, that President Trump sought to curtail the
investigation of that attack because he was concerned that some
of his own behavior might amount to criminal behavior, it might
delegitimize his electoral victory, or it might expose criminal
behavior of paying hush money. As a result, he committed at
least four acts of obstruction of justice. Robert Mueller could
not charge him. Out of an abundance of fairness, he didn't even
want to say he could charge him because he left it to Congress
for impeachment.
Ms. Escobar. Thank you. As I'm sure you are all aware, the
President recently declared that he is, quote, fighting all
subpoenas issued by Congress, and has directed all of his
senior officials, including his former counsel, Don McGahn, not
to testify. Recent polls show that nearly three-quarters of
registered voters believe these officials should obey
congressional subpoenas and testify.
Mr. Dean, as a former White House counsel, how should
congressional subpoenas be handled by the executive branch?
Mr. Dean. There's no question, they must be honored in some
way. There is a March--excuse me--May 20th of this year, the
Office of Legal Counsel issued a memo that White House staff
and close advisers of the President, both sitting and former,
are immune from subpoenas of this body. This is an extreme view
to me.
And I must add something to put the bigger picture
together. Have you watched Office of Legal Counsel? When I was
in the White House, it was considered to be the President's law
firm. That's always been the case. And the President's law firm
tends to give favorable decisions to their client, and this is
true from everything about not indicting a sitting President,
to making current staff totally immune from Congress. I think
these all need to be tested in court because I don't think most
of them will stand.
Ms. Escobar. Thank you. I yield back.
Chairman Nadler. The time of the gentlelady has expired.
The gentlelady from Florida, Mrs. Demings.
Mrs. Demings. Thank you so much, Mr. Chairman.
And thank you to all of our witnesses for being with us
today, for your endurance and your testimony.
I would like to talk a bit about the special counsel and
the OLC opinion.
Professor McQuade, there has been some confusion related to
Special Counsel Mueller's final determinations in the report.
As a matter of background, I want to address the Department of
Justice guidelines that were governing his work.
In Volume II, pages 1 through 2, the report states, and I
quote: While the OLC opinion concludes that a sitting President
may not be prosecuted, it recognizes that a criminal
investigation during the President's term is permissible. The
OLC opinion also recognizes that a President does not have
immunity after he leaves office. And if individuals other than
the President committed an obstruction offense, they may be
prosecuted at that time.
As a former Federal prosecutor, do you believe the special
counsel was confined by the OLC opinion?
Ms. McQuade. Yes. I believe that he found that he could not
reach a traditional prosecutorial decision with regard to
charging a sitting President, and so he sought to preserve the
evidence, as he said, while memories were fresh and documents
available.
Mrs. Demings. Thank you.
Professor Vance, on page 2 of Volume II, the report
continues, and I quote: Given those considerations, the facts
known to us, and the strong public interest in safeguarding the
integrity of the criminal justice system, we conducted a
thorough, factual investigation in order to preserve the
evidence when memories are fresh and documentarial materials
were available.
Given the restrictions placed on the Department, why was it
appropriate for the special counsel to conduct a thorough,
factual investigation in order to preserve the evidence?
Ms. Vance. The best time to conduct a criminal
investigation, as the Mueller report notes, is as close in time
as possible to the events taking place. That's when people's
memories are fresh; that's when documents are available.
And so Mueller, in the report, acknowledges that, although
the OLC memo kept him from indicting a sitting President, that
there were a number of other legitimate purposes for
investigation: The President would not be immune from charges
forever. There could be other people involved.
And as the OLC memo explicitly notes, even though a
President can't be indicted, he can be impeached in Congress.
OLC almost seems to contemplate impeachment as the appropriate
step to take for the one person in our society who is immune
from prosecution----
Mrs. Demings. So you're saying even in the OLC opinion that
is the inference or the----
Ms. Vance. They explicitly say that, that the President can
be impeached.
Mrs. Demings. Thank you.
And, Mr. Dean, on page 76 of Volume II, the report states,
and I quote: The evidence does indicate that a thorough FBI
investigation would uncover facts about the campaign and the
President personally that the President could have understood
to be crimes or that would give rise to personal and political
concerns.
What is your reaction to that statement by the Special
Counsel's Office? Do you agree? And if so, why?
Mr. Dean. I'm sorry. My phone was ringing in my ear during
part of your statement.
Mrs. Demings. I'll----
Mr. Dean. Could you recapture it for me?
Mrs. Demings. On page 76 of Volume II, the report states,
and I quote: The evidence does indicate that a thorough FBI
investigation would uncover facts about the campaign and the
President personally that the President could have understood
to be crimes or that would give rise to personal and political
concerns.
What is your reaction to that statement by the Special
Counsel's Office? Do you agree? And if so, why?
Mr. Dean. I think the special counsel has shown throughout
this report that he's been very cautious and prudent in what he
has said and what he has not said.
This is in the tradition not of the Ken Starr independent
counsel investigation but, rather, in the roadmap that was
referred to this committee that was skeletal and just a minimum
of facts and clear facts based on the investigations, grand
jury hearings, FBI interviews. So I think this is a very
appropriate statement and very insightful.
Mrs. Demings. Thank you so much.
And, Professor McQuade, back to you. The report then goes
on to state--and, again, I am quoting directly from the
report--on page 2 of Volume II: At the same time, if we had
confidence, after a thorough investigation of the facts, that
the President clearly did not commit obstruction of justice, we
would so state. Based on the facts and the applicable legal
standards, we were unable to reach that judgment. Accordingly,
while the report does not conclude that the President committed
a crime, it also does not exonerate him.
What is your reaction to that statement----
Ms. McQuade. Yes----
Mrs. Demings [continuing]. In the special counsel's report?
Ms. McQuade. I believe that, because Robert Mueller could
not make a charging decision, he did not want to prejudge the
evidence because he was leaving it for Congress. He did not
want to preempt Congress' power of impeachment and wanted to
leave that consideration open.
It has been pointed out today that some have said
prosecutors don't exonerate; they charge or don't charge. That
is only true in a traditional case. We talk about the binary
decision. But that can't be the case when you're dealing with
the President, who cannot be charged. Otherwise, that is a
``heads, I win; tails, you lose.''
And so, in that scenario, Robert Mueller simply put the
evidence out there, and he left it for Congress to decide
whether impeachment was appropriate.
Mrs. Demings. And I think someone mentioned earlier that he
almost went above and beyond to make sure of that, his decision
in that.
Ms. McQuade. Yes. I think, out of an abundance of fairness,
he didn't even want to say that a crime had been committed,
because he did not want to prejudge the evidence for another
decisionmaker--that is, Congress.
Mrs. Demings. Thank you all so much.
Mr. Chairman, I yield back.
Chairman Nadler. The gentlelady yields back.
The gentleman from California, Mr. Correa.
Mr. Correa. Thank you very much, Mr. Chairman.
First, I want to thank all of the witnesses for being here
today. This is very important. I think we're making history
again in this United States of America.
And, Mr. Dean, I also want to thank you very much, because,
as was said earlier, you paid your debt to society, yet you
still came up. And you've taken some shots, so to speak,
personal shots here, but yet you still wanted to be here and
testify. Why did you decide to show up and testify?
Mr. Dean. Congressman, when I worked for Mr. Nixon, I was
really never worried about what the outcome would be and how it
would be resolved. I've got to tell you that, from the day Mr.
Trump was nominated--and I was following in a separate set of
polls, the Los Angeles Times as well as the Monmouth polls, and
it looked pretty clear to these pollsters that Mr. Trump had a
very good chance of winning. And I began developing a knot in
my stomach that sits there to this day.
So I'm trying to deal with that in the best way I can, to
try to tell people: These are troubled times, and we should go
through these processes and sort them out. So anything I can do
to add to the process, I'm more than willing.
Mr. Correa. Thank you very much.
I want to turn to the firing of FBI Director James Comey.
Early 2017, the White House was warned that National
Security Advisor Michael Flynn was being investigated after
lying to Federal authorities about communications with the
Russian Ambassador about sanctions on Russia for its election
interference during the campaign. Mr. Flynn's false statements
constituted a Federal crime.
On page 31 of Volume II of the report, it describes the
initial warnings from the Justice Department, and I quote, open
quote: The public statements made by the Vice President denying
that Flynn and Kislyak discussed sanctions were not true and
put Flynn in a potentially compromising position because the
Russians would know he had lied. Yates disclosed that Flynn had
been interviewed by the FBI.
And, as we know, Flynn later pleaded guilt to making false
statements to the FBI and has been cooperating with Federal law
enforcement investigators.
My question for Ms. Vance and Ms. McQuade: As former
Federal prosecutors, can you explain the value of charging
someone with lying to Federal prosecutors?
Ms. Vance. That's how we protect the integrity of the
system. If people feel free to lie when they're being
questioned by people who are in law enforcement, the entire
system breaks down. It's, in some ways, a self-accountability
system and a question of whether we want to have a lawless
society or a society that's governed by the rule of law. Every
Federal prosecutor I know takes that crime very seriously.
Mr. Correa. Ms. McQuade.
Ms. McQuade. I would agree, false statements is a brand of
obstruction of justice. Some people have criticized it as a
process crime. Process crimes are among the most important
there are. They're very serious, because it prevents
investigators from finding the truth.
Mr. Correa. Charging him with lying, does that mean that
the FBI didn't have anything else to charge him with other than
lying?
Ms. Vance. No, it doesn't actually. Charging 18 U.S. Code
1001, which is lying to the Bureau--and, of course, there are
variants of that--lying to Congress, obstructing justice--these
are charges that mean that we take the system seriously.
Sometimes they're brought alone; sometimes they're brought in
tandem with other charges.
But one issue I'd point out, Congressman, that seems to be
lost in the conversation is that, if we don't charge
obstruction without an underlying crime, that means that the
people who are the best obstructers, the most successful people
at hiding their crimes, those people would get off scot-free.
That's not how we want this system to work.
Mr. Correa. Mr. Dean, you mentioned that the firing of
former FBI Director James Comey, you saw some parallels--my
words. What happened during the Nixon administration brought
back some memories. Can you elaborate a little bit on what your
thoughts there were?
Mr. Dean. Yeah. The firing, to me--well, many things in the
report are reminiscent of Watergate in their parallels.
The firing of Comey was not unlike the June 23rd effort by
the President, President Nixon, to halt the FBI investigation,
which is what he did. He tried to use the CIA to stop the
investigation by having his chief of staff meet with the
Director of the CIA and invoke this. And this was based on
information that had come from his former attorney general, who
was his campaign manager.
And, initially, there might have been a legitimate reason
to do this, because they were still trying to figure out what
the CIA's role was. But as you listen to the tapes and it goes
through each step, Mr. Nixon escalates it from what the real
reason was to this being a solution of a way to stop the
investigation.
So it was the decision--or hearing that tape is what
resulted in this committee, where there were 11 Republicans who
disagreed with Article I, turning around and, while the vote
had already been taken, joining the majority in saying, if this
comes to a vote on the floor, because of this tape, we think it
is so troublesome that we will join the majority and vote for
Article I, which was the obstruction article.
Mr. Correa. So your opinion would be, continue these
investigations.
Mr. Dean. Absolutely.
Chairman Nadler. The time of the gentleman has expired.
The gentlelady from Texas for a unanimous consent request.
Ms. Jackson Lee. I thank you, Mr. Chairman.
I'd like to put into the record the framework for this
hearing, and that is a ``Report on the Investigation into
Russian Interference in the 2016 Presidential Election,'' which
includes Volume I and II----
Chairman Nadler. Without objection----
Ms. Jackson Lee [continuing]. And to thank Mr. Dean, Ms.
Vance----
Chairman Nadler. Without objection----
Ms. Jackson Lee [continuing]. Mr. Malcolm, and McQuade for
their commitment to this hearing, Mr. Chairman, and to remind
us that Barbara Jordan said we must uphold the Constitution.
I yield back.
Chairman Nadler. Without objection, the report will be
entered into the record.
[The information follows:]
MS. JACKSON LEE FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. The gentleman from Arizona, Mr. Stanton,
is recognized.
Mr. Stanton. Thank you very much, Mr. Chairman.
I want to thank the witnesses for being here today and to
offer their testimony on what has become one of the most
important responsibilities of our time; that's defending our
Constitution and the rule of law.
And you being here today has been critically important to
help explain to the American people what's is in the Mueller
report and to provide important context and analysis, and I
thank you.
I had a question for Professor Vance and McQuade. I wanted
the opportunity to kind of respond to a general argument that
Mr. Malcolm has made throughout this hearing.
I believe that Mr. Malcolm has suggested that the President
should only be investigated for facially illegally exercises of
his Article II powers, such as granting a pardon in exchange
for bribes, that the conduct investigated by the special
counsel should be beyond the scope of a criminal inquiry,
because, otherwise, the threat of criminal prosecution would
act as a chilling effect on the Presidency.
I want each of you to have the opportunity to respond to
that argument and give us your thoughts on it.
Please, Professor McQuade first.
Ms. McQuade. I disagree with that argument, and so did
Robert Mueller and his team, who rejected that argument.
Now, there are some instances of obstruction of justice in
the report that are facially destructive--asking a witness to
create a false document--that are even beyond Article II
powers.
But even within Article II powers, the phrase that Robert
Mueller hung his hat on was the word ``faithfully'' in the
Constitution, that the President has a duty not just to execute
powers but to execute them faithfully. And to permit him to
execute his executive powers without any check on it would
render him above the law.
Mr. Stanton. Professor Joyce, your thoughts on Professor
Malcolm's general argument throughout the hearing today?
Ms. Vance. So I think it's a strained interpretation of the
law. And I categorically reject the suggestion that, under the
Constitution and under our laws, there is one person in this
country who's above the law, the President of the United
States. I don't think that's what our system does.
And here's a good example, if people struggle with that
issue. It's not a President, but it's the executive of the
State of Illinois, the Governor, Rod Blagojevich, who did an
act that he was entitled to do. He appointed a Senator to
replace a Senator who had vacated his seat.
And that's a perfectly legal act. The problem was he took a
bribe in exchange for agreeing who he would select. Lawful act,
corrupt motive. That's corruption of justice, and it should be
for a President too.
Mr. Stanton. Mr. Dean, you had a very brief answer?
Mr. Dean. Yes. I want to footnote that I have studied
virtually all the Presidencies since Nixon, including Nixon's,
and Presidents operate usually very well with investigations
going on. They compartmentalize, they function, they have no
problem with it. If they're innocent, it goes--it passes away.
If they're not, then they have some problems. But they still
operate well when investigations are going on.
Mr. Stanton. Professor Vance, I'm sure you're familiar with
the Federal statute regarding witness tampering, 18 U.S.C.
1512.
There are some who believe that witness tampering can't
happen in light of day or by use of social media, that it could
only be done outside of public view. I wanted to get your
thoughts on that theory.
Ms. Vance. So, you know, I'm going to confess that it's
surprising to see witness tampering happening in plain view and
on Twitter. I don't think that that's something that a lot of
prosecutors have confronted before this.
But, legally, there is no reason that that public conduct
can't be obstruction. And we know, because we've seen it, that
it can have that effect.
It is, I will say, very unusual to put the evidence out
there for the FBI to collect.
Mr. Stanton. Let me pose a quick hypothetical maybe for
Professor McQuade.
If you were investigating the actions of a high-profile
individual, maybe someone of immense power, political power,
and that targeted publicly praised witnesses who refused to
cooperate with the government as having, quote, guts, unquote,
could that be evidence of a violation of Federal witness-
tampering statutes?
Ms. McQuade. Yes, I would say that would be some evidence.
I might want more evidence, but it would certainly be a red
flag to me that would cause me to want to investigate further.
Mr. Stanton. How about if that same powerful figure
publicly suggests that law enforcement agencies under his
control should, quote, watch, unquote, members of a cooperating
witness' family----
Mr. Collins. Mr. Chairman----
Mr. Stanton [continuing]. Could that be----
Mr. Collins [continuing]. Point of order.
Chairman Nadler. The gentleman will state his point of
order.
Mr. Collins. I will just ask that the gentleman rephrase
his question. Otherwise, I will continue my point of order. If
the gentleman will agree, I will withdraw my point of order.
Mr. Stanton. Well, I was only asking in the hypothetical.
Mr. Collins. It doesn't matter. You cannot do that,
according to the parliamentary rules of this House.
Chairman Nadler. The gentleman may wish to rephrase his
question.
Mr. Stanton. I think the point was made, and I will yield
back. Thank you.
Chairman Nadler. The gentleman yields back.
I want to observe, before we close, that several members
have said that this committee should not be investigating a
bogus allegation against the President but should rather
investigate the origins of the bogus investigation.
I would point out that the report from the special
prosecutor makes very clear that the Russians attacked our
elections, that they did so intending to help the Trump
campaign, that there is substantial evidence that the Trump
campaign knew about the Russian attack, that it welcomed the
help of the Russian Government, that some Trump campaign
officials cooperated with the Russians, that there is--I would
observe there is clear evidence of collusion, though not enough
evidence to prove criminal conspiracy beyond a reasonable
doubt, ``collusion'' being defined as cooperation.
This is not a bogus investigation of a false allegation but
a very necessary investigation of a threat to our country and
our liberty. This committee and this Congress have an absolute
obligation to the American people to investigate this.
Before we close, I ask unanimous consent to insert into the
record a copy of each of the slides referenced at the hearings.
Without objection, they will be entered.
[The information follows:]
CHAIRMAN NADLER FOR THE OFFICIAL RECORD
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Chairman Nadler. I ask further unanimous consent to enter a
letter signed by over a thousand Federal prosecutors in both
Democratic and Republican administrations stating their views
on the Mueller report.
Without objection, that will be entered into the record.
[The information follows:]
CHAIRMAN NADLER FOR THE OFFICIAL RECORD
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Chairman Nadler. This concludes today's hearing. I want to
thank the witnesses for attending, for their patience, their
fortitude, and their fortitude with some of the questions or
statements.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witness or
additional materials for the record.
[The information follows:]
Chairman Nadler. And, without objection, the hearing is
adjourned.
[Whereupon, at 6:24 p.m., the committee was adjourned.]
APPENDIX
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