Washington, DC, May 7, 2019 – United States Senator Elizabeth Warren (D-Mass.) today delivered a 40-minute long speech on the Senate floor in which she responded to Senate Majority Leader Mitch McConnell’s declaration that Special Counsel Robert Mueller’s report means “case closed” on the investigation into President Trump’s response to Russian interference in the 2016 presidential election.
She read excerpts of the report and an open letter from 600 former federal prosecutors stating that in their experience, if it referred to any other person not covered by the Office of Legal Counsel policy against indicting sitting presidents, Special Counsel Mueller’s report contains sufficient evidence to charge President Trump with obstruction of justice. She called for impeachment proceedings to begin immediately.
Remarks by Senator Elizabeth Warren
May 7, 2019
A little while ago the Majority Leader stood on this floor to speak about the investigation into the 2016 presidential election. He triumphantly declared, “case closed, case closed.”
Wishing won’t make it so. I read the Mueller report. I read it cover to cover, every page. I read late into the evening on the day it was released and into the next morning. No I didn’t start reading by expecting to make a statement about it. But I was shaken by the evidence that the Special Counsel had gathered, and by the conclusions that he drew. The Majority Leader would have us believe that scrutinizing this evidence is a matter of Democrats “refusing to make peace with the American people’s choice.” He wants to portray this as just a, “outrage industrial complex,” because some people don’t like that President Trump won. And, again, wishing won’t make it so.
Sure, there’s plenty to be outraged about in the Special Counsel’s report, but no one here is pitching a fit that Democrats didn’t win the election. No, what’s at stake here is the Constitution of the United States of America. Will Congress do its job and fulfill its Constitutional duty to serve as a check on the President? The answer from the Majority Leader and his Republican colleagues is no. “Case closed, case closed,” they cry. Instead of reading the words of the Special Counsel’s report, they just want to circle the wagons around this President. Instead of protecting the Constitution, they want to protect the President. This is a huge difference.
At its core in the Constitution is the principle that no one is above the law. Not even the President of the United States. My oath of office is the same as Mitch McConnell’s. I swore and he swore to uphold the Constitution of the United States. Our Constitution is built on the principle of separation of powers, precisely to prevent a dictator, an autocrat from taking control of our government. This separation of powers is part of the brilliance of our Constitution and it has served us well for centuries. Yes, I took an oath to uphold the Constitution of the United States, and so did everybody in the Senate and the House, including the Majority Leader. And now we must act to fulfill that oath.
There is no political inconvenience exception to the United States Constitution. If any other human being in this country had done what’s documented in the Mueller report, they would be arrested and put in jail. The Majority Leader doesn’t want us to consider the mountain of evidence against the President. That is wrong. He and his colleagues have moved to protect the President instead of defending the Constitution. Maybe my colleagues on the other side of the aisle are confused, or maybe they just didn’t read the report. Well, I did. And there was some passages that stuck out to me. Since the Majority Leader has pre-announced his judgment right here on the Senate floor, I’d like to spend some time reminding him of exactly what this report said.
So let’s start with this one. Robert Mueller’s report makes clear that the President took steps to impede the Mueller investigation and that his report, though it does not charge the President, did not exonerate him from wrongdoing. According to Mueller:
“On May 17, 2017, the Acting Attorney General for the Russia investigation appointed a Special Counsel to conduct the investigation and related matters. The president reacted to news that a Special Counsel had been appointed by telling advisors that it was, ‘the end of his presidency’, and demanding that Sessions resign. Sessions submitted his resignation, but the president ultimately did not accept it. The president told aides that the Special Counsel had conflicts of interest and suggested that the Special Counsel, therefore, could not serve. The president’s advisors told him the asserted conflicts were meritless and had already been considered by the Department of Justice. On June 14, 2017, the media reported that the Special Counsel’s office was investigating whether the president had obstructed justice. Press reports called this, ‘a major turning point’, in the investigation. While Comey had told the president he was not under investigation, following Comey’s firing the president now was under investigation. The President reacted to this news with a series of tweets criticizing the Department of Justice and the Special Counsel’s investigation. On June 17, 2017, the president called McGahn, who is White House counsel, 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.” That ends the quote from the Mueller report.
Now according to McGahn, the President was extremely insistent, calling him repeatedly and not taking no for an answer. Here’s what McGahn told the Special Counsel, back to the Mueller report:
“On Saturday, June 17, 2017, the President called McGahn and told him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with his 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. On the first call, McGahn recalled that the President said something like, ‘you got to do this. You’ve got to call Rod.’ McGahn said that he told the President he would see what he could do. McGahn was perturbed by the call and did not intend to act on the request. He and other advisors believed the asserted conflicts were ‘silly,’ and ‘not real,’ and they had previously communicated that view to the President. McGahn had also made clear to the President that the White House Counsel’s office should not be involved in any effort to press the issue of conflicts. McGahn was 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.” That ends the quote from the Mueller report.
Starting again, quote, from the Mueller report:
“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. Mcgahn recalled the President telling him, ‘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. To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein. McGahn recalled that he had already said no to the President’s request and he was worn down, so he just wanted to get off the phone. McGahn recalled feeling trapped because he did not plan to follow the President’s directive, but he did not know what he would say next time the President called. McGahn decided he had to resign. He called his personal lawyer, and then he called his chief of staff, Annie Donaldson, to inform her of his decision. He then drove to the office to pack his belongings and submit his resignation letter. Donaldson recalled that McGahn told her the President had called and demanded that he contact the Department of Justice and the President wanted him to do something that McGahn did want to do. McGhan told Donaldson that the President had called at least twice and in one of the calls asked, ‘have you done it?’ Mcgahn did not tell Donaldson the specifics of the President’s request because he was consciously trying not to involve her in the investigation. But Donaldson inferred that the President’s directive was related to the Russia investigation. Donaldson prepared to resign along with McGahn. That evening McGahn called both Priebus and Bannon and told them that he intended to resign. Mcgahn recalled that, after speaking with his attorney, and given the nature of the President’s request, he decided not to share details of the President’s request with other White House staff. Priebus recalled that McGahn said that the President had asked him to, ‘do crazy shit,’ but he thought McGahn did not tell him the specifics of the request because Mcghan was trying to protect Priebus what he did not need to know. Priebus and Bannon both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and remained in his position. He had not told the President directly that he planned to resign and when they saw each other next, the President did not ask McGahn whether he had followed through with calling Rosenstein. Around the same time Chris Christie recalled a telephone call with the President in which the President asked what Christie thought about the President firing the Special Counsel. Christie advised against doing so because there was no substantive basis for the President to fire the Special Counsel, and because the President would lose support from Republicans in Congress if he did so.” That’s the end of that part of the Mueller report.
Now, though the President’s aides ultimately refused to carry out his orders and prepared to resign rather than do so, the President persisted. As Mueller recounts:
“Two days after directing McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia Investigation. On June 19, 2017, the President met one-on-one in the Oval Office with former — his former campaign manager Cory Lewandowski, a trusted advisor outside the government, and dictated a message for Lewandowski to deliver to Sessions. The message said that Sessions should publicly announce that notwithstanding his recusal from the Russia investigation, that the investigation was ‘very unfair,’ to the President. The President had done nothing wrong and Sessions planned to meet with the Special Counsel and ‘let him move forward with investigating election meddling for future elections.’ Lewandowski said he understood what the President wanted Sessions to do. One month later in another private meeting with Lewandowski on July 19, 2017, the President asked about the status of his message for Sessions to limit the Special Counsel’s investigation into future election interference. Lewandowski told the President that the message would be delivered soon. Hours after that meeting, the President publicly criticized Sessions in an interview with New York Times and then issued a series of tweets making it clear that Sessions’ job was in jeopardy. Lewandowski did not want to deliver the 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.” That’s the conclusion of that part of the report.
Now, President Trump also took steps to “prevent public disclosure of evidence that was related to the Special Counsel’s investigation.” Back to the Mueller report:
“In early 2018, the press reported that the President had directed McGahn to have the Special Counsel removed in June 2017, and that McGahn had threatened to resign rather than carry out the order. The President reacted to the news stories by directing White House officials to tell McGahn to dispute the story and to create a record stating that he had not been ordered to have the Special Counsel removed. McGahn told those officials that the media reports were accurate in stating that the President had directed McGahn to have the Special Counsel removed. The President then met with McGahn in the Oval Office and again pressured him to deny the reports.” That’s the end of that section.
Now the President also tried to influence witnesses like Michael Flynn and Paul Manafort while they cooperated with the Special Counsel. Back to the Mueller report:
“With regard to Flynn, the President sent private and public messages to Flynn encouraging him to stay strong and conveying that the President still cared about him before he began to cooperate with the government. When Flynn’s attorneys withdrew him from a joint defense agreement with the President, signaling that Flynn was potentially cooperating with the government, the President’s personal counsel initially reminded Flynn counsel of the President’s warm feelings toward Flynn and said ‘that still remains.’ But when Flynn’s counsel reiterated that Flynn could no longer share information under a joint defense agreement, the President’s personal counsel stated that the decision would be interpreted as reflecting Flynn’s hostility toward the President. That sequence of events could have had the potential to affect Flynn’s decision to cooperate as well as the extent of that cooperation. 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. The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort. While also making it clear that the President ‘did not want Manafort to flip,’” that’s in quotes in the Mueller report, “and cooperate with the government. On June 15, 2018, the day the judge presiding over Manafort’s D.C. case was considering whether to revoke his bail, the President said that he, ‘felt badly,’ for Manafort and stated, ‘I think a lot of it is very unfair.’ And when asked about a pardon for Manafort, the President said, ‘I do want to see people treated fairly. That’s what it’s all about.’ Later that day, after Manafort’s bail was revoked, the President called it a, ‘tough sentence,’ that was, ‘very unfair!’ Two days later, the President’s personal counsel stated that individuals involved in the Special Counsel’s investigation could receive a pardon, ‘if, in fact, the President and his advisors come to the conclusion that you have been treated unfairly,’ using language that paralleled how the President had already described the treatment of Manafort. Those statements” — this is Mueller’s report. “Those statements, combined with the President’s condemnation of Manafort being a brave man who, ‘refused to break,’ suggested that a pardon was a more likely possibility if Manafort continued not to cooperate with the government. And while Manafort eventually pleaded guilty, pursuant to a cooperation agreement, he was found to have violated the agreement by lying to investigators.” That concludes that portion of the Mueller report.
Now, Mueller declined to take a position because of the existing Department of Justice Office of Legal Counsel Policy that you cannot indict a sitting President. He intended to leave the matter to Congress. He laid the evidence out in the Mueller report that made clear that the President of the United States obstructed justice. And don’t just take my word for it.
Just yesterday over 600 former federal prosecutors wrote a letter stating that:
“The conduct of President Trump described in Special Counsel Robert Mueller’s report would in the case of any other person not covered by the office of legal counsel policy against indicting a sitting President would result in multiple felony charges for obstruction of justice.”
So I’m going to read their letter because I think it is important, and I want to make sure it’s in the record here. Here’s the letter from more than 600 former prosecutors:
“We are former federal prosecutors. We served under both Republican and Democratic administrations at different levels of the federal system, as line attorneys, supervisors, special prosecutors, United States attorneys, and senior officials at the Department of Justice. The offices in which we served were small, medium, and large, urban and suburban and rural, and located in all parts of the country. Each of us believes that the conduct of the President — of President Trump described in Special Counsel Robert Mueller’s report would in the case of any other person not covered by the Office of Legal Counsel Policy against indicting a sitting President result in multiple felony charges for obstruction of justice.”
I just want to read that part again: “Would result in multiple felony charges for obstruction of justice.”
“The Mueller report describes several acts that satisfy all of the elements for an obstruction of justice charge, conduct that obstructed or intended to obstruct the truth-finding process as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include the President’s efforts to fire Mueller and to falsify evidence about that effort, the President’s effort to limit the scope of Mueller’s investigation to seclude his conduct, and the President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.”
Under the heading in the letter, “Attempts to fire Mueller and then create false evidence,” continuing with the letter:
“Despite being advised by then-White House Counsel Don McGahn that he could face legal jeopardy for doing so, Trump directed McGahn on multiple occasions to fire Mueller or to gin up false conflicts of interest as a pretext for getting rid of the Special Counsel. When these acts began to come into public view, Trump made ‘repeated efforts to have McGahn deny the story,’ going so far as to tell McGahn to write a letter, ‘for our files,’ falsely denying that Trump had directed Mueller’s termination. Firing Mueller would have seriously impeded the investigation of the President and his associates, obstruction in its most literal sense. Directing the creation of false government records in order to prevent or discredit truthful testimony is similarly unlawful. The Special Counsel’s report states, ‘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 scrutiny of the President’s conduct toward the investigation.’”
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Also, within the letter, under the header, “Attempts to Limit the Mueller Investigation,” the report describes multiple efforts by the President to curtail the scope of the Special Counsel’s investigation.
“First, the President repeatedly pressured then-Attorney General Jeff Sessions to reverse his legally-mandated decision to recuse himself from the investigation. The President’s stated reason was that he wanted an attorney general who would, ‘protect,’ him, including from the Special Counsel investigation. He also directed then-White House Chief of Staff Reince Priebus to fire Sessions, and Priebus refused. Second, after McGahn told the President that he could not contact Sessions himself to discuss the investigation, Trump went outside the White House, instructing his former campaign manager Corey Lewandowski to carry a demand to Sessions to direct Mueller to confine his investigation to future elections. Future elections. Lewandowski tried and failed to contact Sessions in private. After a second meeting with Trump, Lewandowski passed Trump’s message to senior White House official Rick Dearborn, who Lewandowski thought would be a better messenger because of his prior relationship with Sessions. Dearborn did not pass along Trump’s message.”
As the report explains, “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 the campaign conduct.”
In other words, the President employed a private citizen to try to get the Attorney General to limit the scope of an ongoing investigation into the President and his associates.
All of this conduct trying to control and impede the investigation is similar to conduct we have seen charged against other public officials and people in powerful positions.
Now, the next section of the report, from the 600 (prosecutors):
“The Special Counsel’s report establishes that the President tried to influence the decisions of both Michael Cohen and Paul Manafort with regard to cooperating with investigators. Some of this tampering and intimidation, including the dangling of pardons, was done in plainly sight via tweets and public statements. Other such behavior was done via private messages through private (attorneys) such as Trump’s counsel Rudy Giuliani’s message to Cohen’s lawyer that Cohen should, “sleep well tonight. You have friends in high places.”
“Of course, these aren’t the only acts of potential obstruction detailed by the Special Counsel. It would be well within the purview of normal prosecutorial judgment also to charge other acts detailed in the report. We emphasize these are not matters of close professional judgment. Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here.”
“In our system, every accused person is presumed innocent and is always the government’s burden to prove its case beyond a reasonable doubt. But to look at these facts and say the prosecutor could not probably sustain a conviction for obstruction of justice, the standards set out in principles of federal prosecution runs counter to logic and our experience.”
“As former federal prosecutors, we recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction, which allows intentional interference with criminal investigations to go unpunished, puts our whole system of justice at risk. We believe strongly that, but for the O.L.C. memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller report.”
That’s over 600 former federal prosecutors saying that if we were talking about any person in this country, other than the president of the United States, that person would be prosecuted for obstruction of justice. Because of that O.L.C. opinion that a sitting president cannot be indicted, the only mechanism to hold the President accountable and to ensure that the President is not above the law is for Congress to initiate impeachment proceedings.
There’s been more commentary. Scholars at Lawfare have put together a very helpful piece that breaks down all of the examples documented in the Mueller report where Trump may have obstructed justice and then analyzes the strength of the case to be made that the President is guilty of obstruction of justice. So, per Lawfare:
“The key question is how Robert Mueller and his team assessed the three elements common to most of the relevant statutes,’ relating to obstruction of justice which are an object instructive act, nexus between the act and official proceeding and corrupt intent.”
As Mueller describes, the Special Counsel’s office:
“Gathered evidence relevant to the elements of those crimes and analyzed them within an elements framework while refraining from reaching the ultimate conclusions about whether the crimes were committed.”
And the reason for that? Because of the Office of Legal Counsel, O.L.C.’s guidelines against the indictment of a sitting president.
Lawfare blog identified four instances in the Mueller report that documented, in their words “substantial evidence” of all three of those elements. In other words, on the following four examples that were documented in the Mueller report, there is, “substantial” evidence on all three of the elements that Mueller based his assessment on that the President obstructed justice.
So, first, when it comes to the President’s efforts to fire Mueller, the report found,” substantial evidence.” That’s from the report, “that the President’s actions constituted an object instructive obstructive act.” On page 89, it found that former White House Counsel Don McGahn is a “credible witness,” in providing evidence that Trump indeed attempted to fire Mueller. The report says that this, “would qualify as an obstructive act,” if the firing, “would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.”
Then it established that there was a nexus between the act and an official proceeding, saying on page 89 that there is, “substantial evidence,” that Trump was aware that, “his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”
Then, on the question of intent, the Mueller report found:
“Substantial evidence that 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.”
The second example that Mueller cites is the President’s efforts to curtail Mueller, on the question of whether those actions constituted an obstructive act. Mueller found that Trump’s efforts to force Sessions to confine the investigation to only investigating future election interference, “would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.”
The report continues:
“Taken together, the President’s directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign.”
And then on the question of whether there was a nexus between the act and an official proceeding, Mueller found that at the relevant point, “the existence of a grand jury investigation supervised by the Special Counsel was public knowledge.’
On the question of intent, Mueller found, “substantial evidence,” that indicates that Trump’s efforts were, “intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”
Mitch McConnell came to the (Senate) floor to declare that there is no more investigation into what the President has done. And yet, the Mueller report has made clear that there are repeated instances of obstruction of justice. More than 600 federal prosecutors have now said that what’s laid out in the Mueller report would constitute obstruction of justice and would trigger a prosecution for any human being in this country other than the President of the United States.
Robert Mueller put all of the facts together for us, put all of the information together for us, and abided by the Trump administration’s declaration under the Office of Legal Counsel that a sitting President cannot be indicted for his crimes. He handed it over to the Congress of the United States of America to do our Constitutional duty.
We are a government that works by separation of powers. We are not a government that circles the wagon around a leader and says everything else falls away. Instead, we say there are powers that are given to the President and powers that are given to Congress, and each operates as a check on the other.
The information that has been given to us in the Mueller report clearly constitutes adequate information to begin an impeachment proceeding in the House of Representatives. No matter how many times Mitch McConnell or the rest of the Republicans want to wish that away, it’s there in black and white in the report.
I urge every Republican in this chamber, I urge every Republican and Democrat in Congress, I urge every person in this country to read the Mueller report.
Robert Mueller makes clear that the President of the United States worked actively to obstruct justice. There is enough here to bring an impeachment proceeding. And, fourth, for us, or Congress to back up from that and to say that protecting the President is more important than protecting the Constitution is not only wrong, it is a violation of our oath of office.
I’m here to say one more time in public. This is not a fight I wanted to take on, but this is the fight in front of us now. This is not about politics. This is about the Constitution of the United States of America. We took an oath — not to try to protect Donald Trump. We took an oath to protect and serve the Constitution of the United States of America. And the way we do that is we begin impeachment proceedings now against this President. Mr. President, I yield the floor.