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Giuliani’s Obstruction Distortions

In an interview about the Mueller report, Rudy Giuliani, President Donald Trump’s personal attorney, distorted the facts in repeatedly making the case that there was “no obstruction” by Trump.

  • Giuliani claimed “there is overwhelming evidence” that former Secretary of State Hillary Clinton “actually obstructed justice” when she was investigated for mishandling classified information. In fact, a year-long FBI investigation found no evidence of “intentional misconduct … or efforts to obstruct justice.”
  • He claimed, “There was no obstruction” by Trump. The report by special counsel Robert S. Mueller didn’t reach that conclusion; Attorney General William Barr determined the evidence is “not sufficient” to establish that Trump committed obstruction of justice.
  • Giuliani also said “nothing was denied” by the Trump administration to the special counsel investigators. But Trump refused to sit for an in-person interview, and the Mueller report said his written responses were inadequate.
  • Giuliani said White House counsel Don McGahn “gave three different versions” of his account alleging that Trump directed him to remove the special counsel. But McGahn’s recollection of conversations with Trump remained consistent, according to Mueller’s report.

Giuliani made his claims in an April 21 interview on “Fox News Sunday” — three days after the special counsel issued a redacted report on the Russian government’s attempt to influence the 2016 presidential election, whether Trump’s campaign associates were involved in those efforts, and whether the president attempted to interfere with the investigation.

The special counsel’s report uncovered “multiple links between Trump Campaign officials and individuals tied to the Russian government,” but the investigation “did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.” As for obstruction of justice, the Mueller report said that while it “does not conclude that the President committed a crime, it also does not exonerate him.”

Giuliani’s Bogus Clinton Claims

In his defense of Trump, Giuliani claimed that Clinton, not Trump, “actually obstructed justice” during a federal investigation. The former New York City mayor was referring to the FBI investigation into whether Clinton or her aides mishandled classified information when she was secretary of state.

After a yearlong investigation, then-FBI Director James Comey said Clinton and her staff had been “extremely careless” in handling “highly classified information,” but the FBI “cannot find a case that would support bringing criminal charges” against Clinton or any of her aides.

“All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here,” Comey said at a July 5, 2016, press conference.

Two days later, Comey testified before the House oversight committee, and Rep. William Lacy Clay of Missouri asked him, “Did Secretary Clinton or any member of her staff attempt to obstruct your investigation?” The FBI director replied, “We did not develop evidence of that.”

Regardless, in an attempt to favorably compare his client to Clinton, Giuliani claimed there was “overwhelming evidence” that Clinton committed obstruction of justice.

Giuliani, April 21: There was no obstruction. Nothing was denied [Mueller evidence]. Nobody crushed cell phones like Hillary did. Nobody deleted 33,000 emails like Hillary’s people did, and nobody bleached a server like Hillary did.

The FBI investigation found no proof that Clinton or her aides intentionally deleted “33,000 emails” by bleaching a server, crushing cell phones or any other method — contrary to Giuliani’s claims.

Let’s go through the history of the case (which is also summarized in our story “A Guide to Clinton’s Emails”).

During a Republican-controlled House investigation into the deaths of four Americans in Benghazi on Sept. 11, 2012, the State Department learned that it had very few emails from Clinton, who was the secretary of state at the time. As it turned out, Clinton did not use a government email account and kept her work emails on a private server at her home in New York. 

In the summer of 2014, after Clinton had already left office, the State Department contacted her office in an attempt to recover emails on her server. Her lawyers went through the emails and identified 30,490 work-related emails and 31,830 personal emails. In December 2014, about 21 months after she left office, Clinton gave the State Department the 30,490 work-related emails totaling roughly 55,000 pages. She indicated that she deleted the others. “I didn’t see any reason to keep them,” she said at a March 10, 2015, press conference.

A Clinton lawyer told an employee of Platte River Networks – which was maintaining Clinton’s private server – “to modify the e-mail retention policy,” so that emails 60 days or older would be deleted. That would have erased the personal emails that Clinton’s lawyers did not turn over to the State Department at that time.

However, the FBI determined during its investigation that emails identified by Clinton’s lawyers as “personal” were deleted “sometime between March 25-31, 2015″ — about three weeks after the House Select Committee on Benghazi served Clinton with a subpoena on March 4, 2015, to produce any emails related to its Benghazi investigation.

Platte River Networks used a free software program called BleachBit to delete the emails — which is what Giuliani means when he says the server was “bleached.” Clinton and her lawyer told the FBI they were unaware when PRN deleted the personal emails. 

During its investigation, which began July 10, 2015, the FBI tried to recover some of the deleted emails identified by Clinton’s lawyers as personal.

Some of the emails were recovered in “the mailboxes of other officials or in the slack space of a server,” but some could not be recovered because “the lawyers cleaned their devices in such a way as to preclude complete forensic recovery,” Comey said at his July 5, 2016, press conference.

Comey said that investigators “found no evidence” that “work-related emails were intentionally deleted in an effort to conceal them.”

“We have conducted interviews and done technical examination to attempt to understand how that sorting was done by her attorneys. Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort,” Comey said.

The FBI director expanded on this point during his appearance before the House oversight committee two days later in an exchange with GOP Rep. Glenn Grothman of Wisconsin.

Grothman, July 7, 2016: Is it possible because of what her lawyers did that they were erasing things that were incriminating, maybe involving items that yourself were not particularly investigating but these have now been destroyed forever?

Comey: I guess it’s possible — as I said in my statement on Tuesday, we did not find evidence to indicate that they did the erasure to conceal things of any sort. But it’s possible, as I said on Tuesday, that there are work-related emails that were in the batch that were deleted.

Grothman: I’m sorry, when you go to this length to make sure you can never recover the emails who are erased, wouldn’t you think the intent is to make sure nobody looks at them again? Why — why — otherwise, couldn’t you just (inaudible). …

Comey: I guess it’s a bit circular. You delete because you want to delete. But that — that — what I mean is we didn’t find any evidence of evil intent and intent to obstruct justice.

As for the “crushed cell phones,” the FBI said in its notes on the investigation (on page 8) that Clinton used eight mobile devices while she was secretary of state. It quotes Clinton aide Justin Cooper (on page 9) as saying that he could recall on two occasions that he got rid of old mobile devices by breaking them in half or hitting them with a hammer.

As we have written, security experts interviewed by the technology website Wired said destroying old devices is a good way to erase data — if done properly.

Giuliani, as Trump has done before, suggests that Clinton or her aides intentionally destroyed the cell phones as part of a cover up. But, as Comey said, the FBI came to no such conclusion.

Obstruction: The Details on Trump

In Trump’s case, Giuliani said, “There was no obstruction.” But the report by special counsel Robert S. Mueller didn’t reach that conclusion. It said: “[I]f 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 are unable to reach that judgment.”

Mueller also did not recommend, one way or the other, on prosecution, saying there were “difficult [legal] issues that would need to be resolved,” to reach a conclusion about Trump’s actions. But the report describes in detail 11 “key events” in which Trump may have obstructed justice. It found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” 

In fact, the report establishes that Trump did try to influence the investigation but was unsuccessful mainly because his underlings refused to go along with his requests.

Mueller report: The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. [Former FBI Director James] Comey did not end the investigation of [Retired Lt. Gen. Michael] Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. [White House counsel Don] McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. [Former campaign manager Corey] Lewandowski and [Trump campaign official Rick] Dearborn did not deliver the President’s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so. 

However, Attorney General William P. Barr, along with Deputy Attorney General Rod Rosenstein, concluded that the investigation didn’t show that the president had committed a criminal obstruction of justice offense. 

Among the 11 “key events” in the Mueller report:

Trump’s behavior regarding the FBI’s investigation of former National Security Adviser Michael Flynn. Trump asked then-FBI Director James Comey, “I hope you can see your way clear to letting this go, to letting Flynn go,” according to Comey’s testimony. The Mueller report said, “Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told [New Jersey Gov. Chris] Christie, that terminating Flynn would end ‘the whole Russia thing.’”

Trump’s efforts to remove the special counsel. After the Washington Post reported in June 2017 that the special counsel was investigating whether Trump had attempted to obstruct justice by firing Comey, Trump called White House counsel Don McGhan twice and ordered him to call Rosenstein and have Mueller removed as special counsel based on conflicts that Trump believed existed.

Efforts to curtail the special counsel’s investigation. Two days after Trump tried to have Mueller removed, the president asked his former campaign manager Corey Lewandowski to deliver a message to Sessions to limit the scope of the investigation to only foreign interference on future elections. Lewandowski ultimately asked Rick Dearborn, a senior White House official who had a relationship with Sessions, to deliver the message, but Dearborn didn’t do so.

Efforts to get the attorney general to take over the investigation. Trump repeatedly tried to get Sessions to reverse his recusal and take over the Russia investigation, and he wanted Sessions to investigate Hillary Clinton. In assessing the president’s intent, the Mueller report said there’s evidence Trump wanted Sessions to take control of the Russia investigation and “supervise it in a way that would restrict its scope.”

Trump’s conduct toward Paul Manafort, his former campaign chairman. In press interviews and on Twitter, Trump repeatedly said Manafort, who had been indicted on multiple felony counts, was being treated unfairly, and Giuliani floated the possibility of a pardon. “[T]here is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government,” the Mueller report said, and Trump’s public statements during the trial “had the potential to influence the trial jury.” As for intent, the evidence “indicates that the President intended to encourage Manafort to not cooperate with the government.”

For more on these and other events detailed in the Mueller report, see our April 18 story “What the Mueller Report Says About Obstruction.”

As for Giuliani’s claim that “nothing was denied” to the special counsel from the Trump administration, as “Fox News Sunday” host Chris Wallace responded, “that’s not true.” Trump refused to do an in-person interview with investigators, and the Mueller report said his written responses to questions, which included more than 30 “does not ‘recall’ or ‘remember’” instances, were inadequate. Investigators considered a subpoena but didn’t want to delay an investigation that had “made significant progress” at that point. 

Giuliani said, “Well, they are not entitled to testimony, no prosecutor is.” Wallace responded: “That isn’t what you said. You said they got everything they wanted.”

McGahn Did Not Tell ‘Three Versions’

Giuliani disputed the Mueller report’s conclusion that Trump directed White House counsel McGahn to remove the special counsel, claiming that McGahn “gave three different versions of that conversation.”

As the report lays out, though, despite pressure from Trump to recant his allegation, McGahn was consistent in maintaining that Trump told him to get rid of Mueller for alleged conflicts of interest.

In the days after Mueller was appointed special counsel on May 17, 2017, Trump complained to advisers that Mueller had conflicts of interest that prevented him from conducting an impartial investigation. Several of Trump’s advisers warned the president the claims of conflicts were baseless and “ridiculous.” (We wrote about two of those in our April 19 story, “Debunking Mueller’s ‘Conflicts.’“.)

Nonetheless, the Mueller report states, Trump persisted, and directed McGahn to ask the Justice Department to dismiss Mueller over the purported conflicts. McGahn recalled that Trump directed him to “Call [Deputy Attorney General] Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn said Trump told him, “Mueller has to go” and “Call me back when you do it.” According to the report, “McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein.” Trump later told staffers he only wanted Rosenstein to review the conflicts. The conflicting accounts are a central piece of the report’s consideration of whether the president sought to obstruct the special counsel’s investigation.

Asked on “Fox News Sunday” about McGahn’s revelations in the Mueller report, Giuliani dismissed them as “a product of not telling the full story. That’s not McGahn’s fault. McGahn gave — when you read that, McGahn gave three different versions of that conversation.”

According to Giuliani, “The first version of that conversation is the president used the word ‘fire’ and he told the president, ‘I’m going to resign directly.’ He then recants that and says no fire, no statement that I was going to resign and then he comes up with that version and then a third version which is even softer which says something like he should be fired. Or he has conflicts, he can’t be special prosecutor. … It’s a very complex set of facts.”

The president disputes McGahn’s account, Giuliani said. “The president says, ‘I didn’t say to fire him. I didn’t want him to go, I want all the conflicts to be taken into consideration.’ That’s the president’s version. You got to pick one version or the other.”

There are, in fact, two versions: McGahn’s and the president’s. The report does not show McGahn “gave three different versions” of his conversation with Trump, as Giuliani claimed.

On Jan. 25, 2018, the New York Times reported that in June 2017 Trump “ordered the firing” of Mueller, and that Trump backed down only after McGahn “threatened to resign rather than carry out the directive.” The Mueller report notes that the following day the Washington Post repeated the essential claims in the Times story, but “clarified” that McGahn had not told Trump directly about his intent to resign rather than carry out Trump’s directive. Although the New York Times story did not say that McGahn directly spoke to the president about his threat to resign, the Mueller report notes that the Times story “could be read to suggest that McGahn had told the President of his intention to quit, causing the President to back down from the order to have the Special Counsel fired.”

But contrary to Giuliani’s assertion, even if McGahn was a source for the New York Times story (the story relies on several anonymous sources) this is not a different “version” of events from McGahn. There is no evidence that McGahn ever told the Times that he told the president he would resign rather than carry out the president’s directive.

Nor does the report suggest that McGahn offered a “softer” version of Trump’s directive, as Giuliani claims.

The Mueller report details several attempts by Trump to get McGahn to walk back the Times report, with McGahn refusing each time.

The first attempt came when Trump’s personal counsel called McGahn’s attorney on Jan. 26, 2018, “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 responded that “the Times story was accurate in reporting that the President wanted the Special Counsel removed,” and that McGahn would not comply with Trump’s request to dispute the story.

Hope Hicks, a White House communications official, recalled that the same day, Trump directed White House Press Secretary Sarah Sanders to contact McGahn about the story, but that McGahn again relayed that there was “no need to respond” to the Times article.

Staff Secretary Rob Porter told investigators that on Feb. 5, 2018, Trump directed him to tell McGahn to “create a record to make clear that the President never directed McGahn to fire the Special Counsel.” Porter said he recalled Trump saying, “something to the effect of, ‘If he doesn’t write a letter, then maybe I’ll have to get rid of him.’”

According to Porter, “McGahn shrugged off the request, explaining that the media reports were true.” Porter said McGahn told him that “the President had been insistent on firing the Special Counsel and that McGahn had planned to resign rather than carry out the order, although he had not personally told the President he intended to quit.” McGahn refused to write the requested letter.

In an Oval Office meeting the following day, Trump told McGahn that the New York Times story “did not ‘look good’ and that McGahn needed to correct it,” the report states. According to McGahn, Trump told him, “I never said to fire Mueller. I never said ‘fire.’”

The Mueller report says the meeting then unfolded this way:

Mueller report: In response, McGahn acknowledged that he had not told the President directly that he planned to resign, but said that the story was otherwise accurate. The President asked McGahn, “Did I say the word ‘ fire’?” McGahn responded, “What you said is, ‘Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel.‘” The President responded, “I never said that.” The President said he merely wanted McGahn to raise the conflicts issue with Rosenstein and leave it to him to decide what to do. 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. McGahn thought the President was testing his mettle to see how committed McGahn was to what happened. [White House Chief of Staff John] Kelly described the meeting as “a little tense.”

Giuliani cites this account to claim McGahn gave different versions of his conversation with Trump, first claiming that Trump directed him to fire Mueller, and then offering another version “which is even softer which says something like he should be fired. Or he has conflicts, he can’t be special prosecutor.” But this “third version” is arguably the same, just with different words, with McGahn saying Trump told him, “Call Rod. There are conflicts. Mueller has to go.”

In his report, Mueller notes that Trump’s rebuttals of McGahn’s recollection were “carefully worded” and that Trump focused on whether he had used the word “fire.” Mueller wrote that “substantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed” and that Trump’s “assertion in the Oval Office meeting that he had never directed McGahn to have the Special Counsel removed … runs counter to the evidence.”

The report states that McGahn has a “clear recollection” of Trump’s directive: “Mueller has to go.” And the report states, “McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House.” The report notes that McGahn relayed to several White House staffers that in response to Trump’s request, he had decided to quit, that he packed up his office and prepared to submit a resignation letter. “Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice,” the Mueller report states.

The report also notes that Trump, through his counsel, already had brought his complaints about Mueller’s purported conflicts to the attention of the Department of Justice, so “the President had no reason to have McGahn call Rosenstein that weekend to raise conflicts issues that already had been raised.”

The report concludes that “the President sought to use his official powers to remove the Special Counsel.”

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“[T]here is overwhelming evidence” that former Secretary of State Hillary Clinton “actually obstructed justice.”
Fox News Sunday
Sunday, April 21, 2019
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“Nothing was denied” to the special counsel from the Trump administration.
Fox News Sunday
Sunday, April 21, 2019
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White House counsel Don McGahn “gave three different versions” of his account alleging that Trump directed him to remove the special counsel.
Fox News Sunday
Sunday, April 21, 2019