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Monday
Apr222019

Ten best footnotes of the Mueller report

ABC News(WASHINGTON) -- When Attorney General William Barr released special counsel Robert Mueller's redacted report on Russian interference in the 2016 election, he released 448 pages of written research and analysis. He also attached 2,375 footnotes.

A close read of the fine print reveals fresh details about the investigation -- who provided input, what documents proved revealing and what considerations were made by the special counsel as he unearthed new material.

While many are mundane, here are 10 citations ABC News found enlightening:

1. Those tapes: Footnote 112 (Volume II pg 27-28) describes conversations between Trump associates about rumored video recordings of the candidate in a Russian hotel room with prostitutes:

In 2016, a dossier compiled by former British intelligence officer Christopher Steele brought to light the possible existence of a Russian-recorded video of Donald Trump during a 2013 visit to Moscow showing Trump cavorting with prostitutes in his suite at the Moscow Ritz hotel.

A footnote in the Mueller report discusses the unverified allegation, which President Trump has maintained is false.

Two weeks before the election, the report says Trump personal attorney Michael Cohen received a text from a Georgian businessman Giorgi Rtskhiladze that said, "Stopped flow of tapes from Russia but not sure if there's anything else. Just so you know ..."

According to the Mueller report, the businessman said the "tapes" referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia.

The report and footnote do not give information on Trump's response to Cohen's alleged briefing on the matter, nor does it explain why Rtskhiladze wouldn't have told Cohen the tapes were fake.

"112 Comey 1/7/17 Memorandum, at 1-2; Corney 11/15/17 302, at 3. Comey's briefing included the Steele reporting's unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 2016, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, 'Stopped flow of tapes from Russia but not sure if there's anything else. Just so you know . . .. ' 10/30/ 16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said 'tapes' referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/ 18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/12/18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7."

2. Dossier diss: Footnote 117 (Volume II pg 28) describes Former FBI Director James Comey and Former Director of National Security James Clapper exchanging emails in 2017 about Trump's request that they discredit the Steele Dossier:

On Jan. 10, 2017, Buzzfeed News published portions of the Steele Dossier online, and Comey briefed the then-president-elect on the report.

According to the Mueller report, Trump asked members of his national intelligence team to publicly refute allegations made in the dossier.

Trump's FBI director and director of national security exchanged emails about Trump's request, according to the footnotes. Clapper emailed Comey, stating Trump wanted him to say the dossier was "bogus, which, of course, I can't do."

"See 1/11/17 Email, Clapper to See I /11 /17 Email, Clapper to Comey ('He asked if I could put out a statement. He would prefer of course that I say the documents are bogus, which, of course, I can't do.'); 1/12/17 Email, Corney to Clapper ('He called me at 5 yesterday and we had a very similar conversation.'); Comey 11/15/17 302, at 4-5."


3. Congressional choices: Footnote 1091 (Volume II pg 178) suggests Congress can either craft new rules to stop a president from trying to thwart an investigation, or pursue impeachment as a drastic measure:


The second volume of the Mueller report assesses whether the president obstructed justice. Mueller's team declined to make a traditional prosecutorial judgment on the matter, but in the footnotes Mueller notes that Congress could still take up the matter by crafting new laws to prevent a future president from conducting behavior described in the report.

The Mueller report states that "Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice."

One way that Congress could exercise this authority, according to the footnote, is to clarify an already existing opinion established by the Department of Justice's Office of Legal Counsel, which found that a president could be held accountable for his or her actions after they leave office.

Another option available to Congress, according to the footnote, is to pursue impeachment "as a drastic and rarely invoked remedy."

"A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official's conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. I, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 ('Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President's term is over or he is otherwise removed from office by resignation or impeachment.')."

4. Considering charges: Footnote 1278 (Volume I pg 176) describes how the office of the special counsel considered whether to bring charges on the grounds that the dissemination of stolen Democratic National Conventions emails could constitute trafficking in or the receipt of stolen property.

As part of the Russia Investigation, members of the special counsel considered whether or not to pursue charges on the grounds that releasing stolen emails was a form of trafficking in the release of stolen property. Ultimately, the special counsel decided not to pursue this option.

"The Office also considered, but ruled out, charges on the theory that the post-hacking sharing and dissemination of emails could constitute trafficking in or receipt of stolen property under the National Stolen Property Act (NSPA), 18 U.S.C. §§ 2314 and 2315. The statutes comprising the NSPA cover 'goods, wares, or merchandise,' and lower comts have largely understood that phrase to be limited to tangible items since the Supreme Court's decision in Dowling v. United States, 473 U.S. 207 (1985). See United States v. Yijia Zhang, 995 F. Supp. 2d 340, 344-48 (E.D. Pa. 2014) (collecting cases). One of those post-Dowling decisions-United States v. Brown, 925 F.2d 1301 (10th Cir. 1991}-specifically held that the NSPA does not reach 'a computer program in source code form,' even though that code was stored in tangible items (i.e., a hard disk and in a three-ring notebook). Id. at 1302-03. Congress, in turn, cited the Brown opinion in explaining the need for amendments to 18 U.S.C. § I030(a)(2) that 'would ensure that the theft of intangible information by the unauthorized use of a computer is prohibited in the same way theft of physical items [is] protected.' S. Rep. 104-357, at 7 (1996). That sequence of events would make it difficult to argue that hacked emails in electronic form, which are the relevant stolen items here, constitute 'goods, wares, or merchandise' within the meaning of the NSPA."

5. Early warning: Footnote 155 (Volume II pg 32) suggests Former National Security Adviser Flynn was on "thin ice" even before he began to take criticism for his calls to Russian ambassador Sergey Kislyak. This is largely because of a guidance that then President-Elect Trump got from President Obama:

According to the report, on Jan. 26, 2017, Former White House Counsel Don McGhan notified Trump that he had been told Flynn may have lied about what he discussed in a meeting he had with Russian ambassador Sergey Kislyak.

The report states that Trump allegedly responded "not again, this guy, this stuff."

According to the footnotes, Trump responded this way because he was already unhappy with Flynn for other reasons. One such reason is because Obama "had warned him about Flynn" shortly after the election.

"Priebus I 0/13/17 302, at 8. Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn's standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/ 12/18 302, at 4-5; Hicks 12/8/ 17 302, at 7 (President Obama's comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/ 18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as 'being on thin ice' by early February 2017. Hicks 12/8/ 17 302, at 7, 10."

6. Paragons of loyalty: Footnote 297 (Volume II pg 51) shows Trump pointed to Eric Holder and Robert Kennedy for how he felt an AG should act:

The president regularly made public statements criticizing former Attorney General Jeff Sessions after Sessions recused himself from the Russia probe.

Part of the reason for this criticism, according to the footnotes, stems from the role Trump believed an attorney general should play to protect the president.

The footnote states that Trump, according to former White House Chief Strategist Steve Bannon, pointed to Kennedy and Holder as attorney generals who protected their presidents.

Trump pointed to Holder's willingness to take a contempt of Congress charge for President Barack Obama during the fast and furious controversy.

"McGahn 12/12/17 302, at 3. Bannon said the President saw Robert Kennedy and Eric Holder as Attorneys General who protected the presidents they served. The President thought Holder always stood up for President Obama and even took a contempt charge for him, and Robert Kennedy always had his brother's back. Bannon 2/ 14/18 302, at 5. Priebus recalled that the President said he had been told his entire life he needed to have a great lawyer, a "bulldog," and added that Holder had been willing to take a contempt-of-Congress charge for President Obama. Priebus 4/3/18 302, at 5."

7. An alternative theory: In Footnote 500 (Volume II pg 77) the special counsel explores whether Trump might have fired Comey to protect other conduct that could come to light because of the probe, including Michael Cohen's campaign finance violations:


The report states that "the evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia," but the footnotes show that the special counsel looked into other reasons why the president might have had an interest in terminating Comey.

One such reason the special counsel explored was that the Russia investigation might reveal other incriminating matters, such as Cohen's campaign finance violations that he later pled guilty to in the Southern District of New York, but did not establish that this was a motive.

"In addition to whether the President had a motive related to Russia-related matters that an FBI investigation could uncover, we considered whether the President's intent in firing Corney was connected to other conduct that could come to light as a result of the FBT's Russian-interference investigation. In particular, Michael Cohen was a potential subject of investigation because of his pursuit of the Trump Tower Moscow project and involvement in other activities. And facts uncovered in the Russia investigation, which our Office referred to the U.S. Attorney's Office for the Southern District of New York, ultimately led to the conviction of Cohen in the Southern District of New York for campaign-finance offenses related to payments he said he made at the direction of the President. See Volume II, Section II.K.5, infra. The investigation, however, did not establish that when the President fired Comey, he was considering the possibility that the FBT's investigation would uncover these payments or that the President's intent in firing Comey was otherwise connected to a concern about these matters coming to light."

8. Russian visas: Footnote 363 (Volume I pg 76) describes Cohen texts discussing plans to send Trump's passport information to a Russian associate. The information was never sent, but the texts show Cohen's travel plans forming:


Ongoing discussions between Cohen and Russian associates about a possible Trump Tower Moscow deal were the focus of a great deal of the Mueller report, largely due to lies Cohen told about when conversations related to the potential business deal concluded.

Cohen had been in conversations with Russian businessman Felix Sater about taking a potential trip to Russia, both independently and potentially with Trump, to discuss the business dealings further.

The footnotes give new details about conversations between Sater and Cohen related to the trip. In one such text exchange, Sater asks Cohen for Trump's passport information. Cohen doesn't appear to give it and instead tells Sater he'll wait until he visits Moscow first.

"On December 21, 2015, Sater sent Cohen a text message that read, "They need a copy of DJT passport," to which Cohen responded, "After I return from Moscow with you with a date for him." FS00004 (12/21/15 Text Messages, Cohen & Sater)"

9. The Trigger: Footnote 465 (Volume I pg 89) lays out how the Russia investigation began, when an unpaid policy adviser, George Papadopoulos, told a representative from a foreign government that the Russian government had damaging information on Hillary Clinton:

George Papadopoulos, a former unpaid policy adviser to Trump, told a member of a foreign government about meetings he had had in 2016 where he learned that Russia might have incriminating information on Hillary Clinton.

According to the footnotes, that foreign government conveyed what Papadopoulos had said to the U.S. government on July 26, 2016, just after WikiLeaks released incriminating information on Clinton. Just after that, the FBI opened its investigation into the Trump campaign.

"The information is contained in the FBI case-opening document and related materials. The information is law enforcement sensitive (LES) and must be treated accordingly in any external dissemination. The foreign government conveyed this information to the U.S. government on July 26, 2016, a few days after WikiLeaks's release of Clinton-related emails. The FBI opened its investigation of potential coordination between Russia and the Trump Campaign a few days later based on the information."

10. Stubborn witness: Footnote 489 (Volume I pg 92) reveals that former Trump policy adviser George Papadopoulos wouldn't help decipher his own handwriting:

Even the special counsel has a tough time reading bad handwriting. During the special counsel's interviews with Papadopoulos, prosecutors asked for Papadopoulos' help deciphering his handwriting on a note.

Papadopoulos declined to assist. Turns out he couldn't read his own handwriting either. Papadopoulos pleaded guilty to lying to the FBI in October 2017.

"Papadopoulos declined to assist in deciphering his notes, telling investigators that he could not read his own handwriting from the journal. Papadopoulos 9/19/17 302, at 21. The notes, however, appear to read as listed in the column to the left of the image above."

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