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How to Write a First-Class Law Essay

Studying law at university entails lots of essay writing. This article takes you through the key steps to writing a top law essay.

Writing a law essay can be a challenging task. As a law student, you’ll be expected to analyse complex legal issues and apply legal principles to real-world scenarios. At the same time, you’ll need to be able to communicate your ideas clearly and persuasively. In this article, we’ll cover some top tips to guide you through the process of planning, researching, structuring and writing a first-class law essay with confidence. 

1. Start In Advance

Give yourself plenty of time to plan, research and write your law essay. Always aim to start your law essay as soon as you have the question. Leaving it until the last minute does not only create unnecessary stress, but it also leaves you insufficient time to write, reference and perfect your work.

2. Understand The Question

Do not begin until you fully comprehend the question. Take the time to read the question carefully and make sure that you understand what it’s asking you to do. Highlight key terms and annotate the question with definitions of key concepts and any questions that you have have. Think about how the question links back to what you’ve learned during your lectures or through your readings.

3. Conduct Thorough Research

Conducting thorough research around your topic is one of the most fundamental parts of the essay writing process. You should aim to use a range of relevant sources, such as cases, academic articles, books and any other legal materials. Ensure that the information you collect is taken from relevant, reliable and up to date sources. Use primary over secondary material as much as possible.

Avoid using outdated laws and obscure blog posts as sources of information. Always aim to choose authoritative sources from experts within the field, such as academics, politicians, lawyers and judges. Using high-quality and authoritative sources and demonstrating profound and critical insight into your topic are what will earn you top marks.

4. Write A Detailed Plan

Once you’ve done your research, it’s time to plan your essay. When writing your plan, you’ll need to create an outline that clearly identifies the main points that you wish to make throughout your article. Try to write down what you wish to achieve in each paragraph, what concepts you want to discuss and arguments you want to make.

Your outline should be organised in a clear, coherent and logical manner to ensure that the person grading your essay can follow your line of thought and arguments easily.  You may also wish to include headings and subheadings to structure your essay effectively This makes it easier when it comes to writing the essay as starting without a plan can get messy. The essay must answer the question and nothing but the question so ensure all of your points relate to it.

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5. Write A Compelling Introduction

A great introduction should, firstly, outline the research topic.  The introduction is one of the most crucial parts of the law essay as it sets the tone for the rest of the paper. It should capture the readers attention and provide the background context on the topic. Most importantly, it should state the thesis of your essay.

When writing your introduction, avoid simply repeating the given question. Secondly, create a road map for the reader, letting them know how the essay will approach the question. Your introduction must be concise. The main body of the essay is where you will go into detail.

6. Include A Strong Thesis Statement

Your thesis should clearly set out the argument you are going to be making throughout your essay and should normally go in the introduction. Your thesis should adopt a clear stance rather than being overly general or wishy-washy. To obtain the best grades, you’ll need to show a unique perspective based upon a critical analysis of the topic rather than adopting the most obvious point of view.

Once you’ve conducted your research and had a chance to reflect on your topic, ask yourself whether you can prove your argument within the given word count or whether you would need to adopt a more modest position for your paper. Always have a clear idea of what your thesis statement is before you begin writing the content of your essay. 

7. Present the Counter-argument

To demonstrate your deeper understanding of the topic, it’s important to show your ability to consider the counter-arguments and address them in a careful and reasoned manner. When presenting your counterarguments, aim to depict them in the best possible light, aiming to be fair and reasonable before moving on to your rebuttal. To ensure that your essay is convincing, you will need to have a strong rebuttal that explains why your argument is stronger and more persuasive. This will demonstrate your capacity for critical analysis, showing the reader that you have carefully considered differing perspectives before coming to a well-supported conclusion.

8. End With A Strong Conclusion

Your conclusion is your opportunity to summarise the key points made throughout your essay and to restate the thesis statement in a clear and concise manner.  Avoid simply repeating what has already been mentioned in the body of the essay. For top grades, you should use the conclusion as an opportunity to provide critical reflection and analysis on the topic. You may also wish to share any further insights or recommendations into alternative avenues to consider or implications for further research that could add value to the topic. 

9. Review The Content Of Your Essay

Make sure you factor in time to edit the content of your essay.  Once you’ve finished your first draft, come back to it the next day. Re-read your essay with a critical perspective. Do your arguments make sense? Do your paragraphs flow in a logical manner? You may also consider asking someone to read your paper and give you critical feedback. They may be able to add another perspective you haven’t considered or suggest another research paper that could add value to your essay. 

10. Proofread For Grammatical Mistakes

Once you’re happy with the content of your essay, the last step is to thoroughly proofread your essay for any grammatical errors. Ensure that you take time to ensure that there are no grammar, spelling or punctuation errors as these can be one of the easiest ways to lose marks. You can ask anyone to proofread your paper, as they would not necessarily need to have a legal background – just strong grammar and spelling skills! 

11. Check Submission Guidelines

Before submitting, ensure that your paper conforms with the style, referencing and presentation guidelines set out by your university. This includes the correct font, font size and line spacing as well as elements such as page numbers, table of content etc. Referencing is also incredibly important as you’ll need to make sure that you are following the correct referencing system chosen by your university. Check your university’s guidelines about what the word count is and whether you need to include your student identification number in your essay as well. Be thorough and don’t lose marks for minor reasons!

12. Use Legal Terms Accurately

Always make sure that you are using legal terms accurately throughout your essay. Check an authoritative resource if you are unsure of any definitions. While being sophisticated is great, legal jargon if not used correctly or appropriately can weaken your essay. Aim to be concise and to stick to the point. Don’t use ten words when only two will do.

12. Create a Vocabulary Bank

One recurring piece of advice from seasoned law students is to take note of phrases from books and articles, key definitions or concepts and even quotes from your professors. When it comes to writing your law essay, you will have a whole range of ideas and vocabulary that will help you to develop your understanding and thoughts on a given topic. This will make writing your law essay even easier!

13. Finally, Take Care of Yourself

Last but certainly not least, looking after your health can improve your attitude towards writing your law essay your coursework in general. Sleep, eat, drink and exercise appropriately. Take regular breaks and try not to stress. Do not forget to enjoy writing the essay!

Words by Karen Fulton

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How to Write a First-Class Law Essay: Mastering the FIRAC Model

Law essays can be challenging, but they contribute significantly to the mastery of legal principles and enhancing a student’s legal research skills. A first-class law essay does not only demonstrate a thorough understanding of legal principles, but is also clearly structured and incredibly well-written. In this article, we will guide you on how to write a first-class law essay, delve into the FIRAC model of legal writing, and address frequently asked questions on law essay writing.

Below is an outline of the points that will be discussed in detail throughout the article:

Understanding the Essay Question and Planning

Comprehensive legal research, writing techniques for a first-class law essay, common faqs on law essay writing.

Table of Contents

The first step in writing a top-notch law essay is to understand the essay question and planning your response. You should take care to read and analyze the question provided, identifying the main issues, required legal areas, and the keywords that will guide your research. Create a rough essay plan, outlining the main arguments and research resources necessary to address the topic.

Thorough researched is necessary in order to write a first-class law essay.This involves examining relevant cases, statutes, academic articles, and other authoritative sources. It is crucial to:

• Build a strong foundation of understanding for the specific legal topics involved
• Identify any contrary viewpoints and conflicting interpretations of the law
• Familiarize yourself with critical legal developments that may affect your essay’s arguments

It is essential to keep track of your sources and their essential details, as you will need to reference them accurately in your essay.

Structuring a Law Essay: The FIRAC Model

The FIRAC model is a universally recognized method of organizing and presenting legal arguments in writing. It consists of:

Start by providing a concise and relevant summary of the facts and background of the issue beingaddressed. Be objective and neutral in your presentation, ensuring that your readers have a clear understanding of the context.

Clearly identify the specific legal issues that arise from the facts. This may involve direct questions or problems that need to be resolved by referring to legal authorities, such as legislation, case law, or academic commentary.

Set out the relevant legal rules, principles, and precedents that apply to the issues in question. Present a clear and comprehensive explanation of the legal authorities and how they apply to the facts.

d. Analysis:

In this section, critically analyze and weigh the various arguments and approaches concerning the legal issues at hand. Provide a detailed evaluation of the relevant legal authorities,discussing their strengths and weaknesses, and highlighting any ambiguities, disagreements, or gaps in the law that are relevant to the issues being addressed.

e. Conclusion:

Wrap up your essay by summarizing the main points, integrating your key findings and the implications of your analysis. Be sure to address the initial essay question and provide a clear answer or position based on your research and discussion. Finally, offer any recommendations or propose potential legal reforms if appropriate.

To ensure that your law essay stands out as first-class, it is essential to embrace effective writing techniques, such as:

• Clarity and precision: Use clear, concise language and avoid unnecessary jargon or verbosity. 2.Coherent organization: Organize your essay logically, ensuring that each section flows smoothly into the next.
• Strong argumentation: Build well-reasoned arguments supported by solid evidence, authoritative sources, and persuasive analysis.
• Critical thinking: Question assumptions, explore alternative viewpoints, and engage in thoughtful reflection and analysis.
• Proper citation and referencing: Adhere to a consistent citation style and accurately credit all sources used in your essay.
• Proofreading and editing: Always proofread and edit your essay meticulously, eliminating grammatical errors, spelling mistakes, and awkward phrasing.

Here are answers to some frequently asked questions about law essay writing:

How long should my law essay be?

The length of your law essay may vary, depending on the specific requirements and guidelines given by your instructor or institution. Typically, law essays range from 1,500 to 3,000 words, but it is crucial to adhere to the specified word count in your assignment.

How do I choose a citation style for my law essay?

Consult your assignment guidelines or ask your instructor for the preferred citation style used in legal writing at your institution, such as the Bluebook, Oxford Standard, or AGLC. Always use one citation style consistently throughout your essay.

Is it acceptable to use non-legal references in my essay?

While law essays primarily rely on legal authorities, it may be appropriate toinclude non-legal references, such as scholarly articles, reports, or empirical studies, to support your arguments or provide additional context. Always check with your instructor or assignment guidelines if you are unsure about using specific non-legal sources.

Can I use headings and subheadings in my law essay?

Headings and subheadings help organize your essay and guide your readers through your arguments. They are generally acceptable in law essays unless prohibited by your institution’s guidelines or your instructor’s preferences. Be sure to use a consistent formatting style for all headings and subheadings.

How can I avoid plagiarism in my law essay?

To avoid plagiarism, always accurately cite and reference any sources you use in your essay,whether they are direct quotes, paraphrased ideas, or summarized information. Also, ensure that your essay is primarily composed of your own original analysis and ideas, rather than relying too heavily on other sources. Make use of plagiarism-checking tools to identify potential areas of concern and correct them prior to submission.

By adhering to these guidelines and employing effective writing techniques, you can enhance the quality of your law essay and increase the likelihood of earning a first-class grade. Always remain diligent, focused, and committed to delivering thorough and engaging legal analysis throughout your academic writing endeavors.

Common Mistakes to Avoid in Law Essays

In addition to following the guidelines and writing techniques, it’s important to avoid common mistakes when writing your law essay:

• Irrelevant or excessive detail : Stay focused on the essay question and avoid providing unnecessary or excessive details that don’t contribute to your central argument.
• Lack of structure: Ensure that your essay is logically organized, with clearly defined sections and a coherent flow from one section to another.
• Misunderstanding the question: Read the essay prompt carefully, and make sure you clearly understand what is being asked before drafting your response. Seek clarification if needed.
• Unsupported claims or arguments: Back up your claims with solid evidence and credible sources. Avoid makingassertions without sufficient justification or analysis.
• Overly complex language or jargon: Write in a clear and concise manner, using language that is accessible to your readers. Be mindful of using overly technical terms or legal jargon without explanation.
• Plagiarism: Always provide proper citation and referencing for all sources used. Take the necessary steps to ensure your work is original and does not plagiarize from other sources.
• Inadequate proofreading: Thoroughly proofread and edit your essay to correct grammatical errors, spelling mistakes, and clumsy phrasing. Additionally, make sure your citations and references are accurate and formatted correctly.

By avoiding these common mistakes and adhering to the aforementioned guidelines andwriting techniques, you will significantly improve the quality of your law essay and increase your chances of achieving a high grade. Remember that practice makes perfect, and continually refining your skills in legal writing and analysis will contribute to your overall success in your academic and professional pursuits. So, stay committed, diligent, and focused on producing well-reasoned and coherent essays that demonstrate your understanding and mastery of legal principles and concepts. 

Happy writing!

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122 Yale L.J. 2482 (2013). The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elabo…

Gideon at Guantánamo: Democratic and Despotic Detention

122 Yale L.J. 2504 (2013). One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon , along with Miranda v. Arizona , is part of a democratic narrative shaped over dec…

Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures

122 Yale L.J. 2550 (2013). Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our …

Federal Public Defense in an Age of Inquisition

122 Yale L.J. 2578 (2013). This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Ac…

Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures

122 Yale L.J. 2604 (2013). Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life int…

Implicit Racial Bias in Public Defender Triage

122 Yale L.J. 2626 (2013). Despite the promise of Gideon , providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defend…

Effective Plea Bargaining Counsel

122 Yale L.J. 2650 (2013). Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men,…

The Continuum of Excludability and the Limits of Patents

122 Yale L.J. 1900 (2013). In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensi…

Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right

122 Yale L.J. 1444 (2013). This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or…

Reconceptualizing the Burden of Proof

122 Yale L.J. 1254 (2013). The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponder…

Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

122 Yale L.J. 940 (2013). It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…

Asymmetries and Incentives in Plea Bargaining and Evidence Production

122 Yale L.J. 690 (2012). Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymm…

Contra Nemo Iudex in Sua Causa: The Limits of Impartiality

122 Yale L.J. 384 (2012).

Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa —no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a m…

Judicial Capacity and the Substance of Constitutional Law

122 Yale L.J. 422 (2012). Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This Essay advances a tw…

How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes

122 Yale L.J. 154 (2012). One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Compare…

One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Comp…

The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

121 Yale L.J. 2216 (2012) . The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law …

Due Process as Separation of Powers

121 Yale L.J. 1672 (2012) . From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether t…

Income Tax Discrimination: Still Stuck in the Labyrinth of Impossibility

121 Yale L.J. 1118 (2012).

In previous articles, we have argued that the European Court of Justice’s reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production o…

Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond

121 Yale L.J. 534 (2011).

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law.  We have no Chevron , federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…

The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability

121 Yale L.J. 142 (2011). When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by…

Justifications, Power, and Authority

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

Irreparable Benefits

116 Yale L.J. 1284 (2007)

The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…

The Efficient Performance Hypothesis

116 Yale L.J. 568 (2006) Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic effic…

Executive Branch Usurpation of Power: Corporations and Capital Markets

115 Yale L.J. 2416 (2006) Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Beyond Marbury: The Executive's Power To Say What the Law Is

115 Yale L.J. 2580 (2006) Under Marbury v. Madison , it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…

Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System

This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.

Rational War and Constitutional Design

115 Yale L.J. 2512 (2006) Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

115 Yale L.J. 2446 (2006) Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…

Gubernatorial Foreign Policy

115 Yale L.J. 2380 (2006) In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional ground…

Setting the World Right

115 Yale L.J. 2350 (2006) Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…

The President's Completion Power

115 Yale L.J. 2280 (2006) This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows tha…

Quasipublic Executives

115 Yale L.J. 2254 (2006) In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Why (and When) Cities Have a Stake in Enforcing the Constitution

115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco . The Essay argu…

Inherent Executive Power: A Comparative Perspective

115 Yale L.J. 2480 (2006) In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

115 Yale L.J. 2314 (2006) The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …

Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain

115 Yale L.J. 1930 (2006) In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation…

Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

115 Yale L.J. 996 (2006) According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…

Of Property and Federalism

115 Yale L.J. 72 (2005) This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and…

Democratic Disobedience

114 Yale L.J. 1897 (2005) Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedie…

To Insure Prejudice: Racial Disparities in Taxicab Tipping

114 Yale L.J. 1613 (2005) Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race. The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …

Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…

Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production

114 Yale L.J. 273 (2004) This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…

Integrating Remorse and Apology into Criminal Procedure

114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…

The Priority of Morality: The Emergency Constitution's Blind Spot

113 Yale L.J. 1753 (2004) INTRODUCTION In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…

Editor's Note: The Constitution in Times of Emergency

113 Yale L.J. 1751 (2004) Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…

The Anti-Emergency Constitution

113 Yale L.J. 1801 (2004) INTRODUCTION The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…

Adverse Selection in Insurance Markets: An Exaggerated Threat

113 Yale L.J. 1223 (2004) The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance th…

The Emergency Constitution

113 Yale L.J. 1029 (2004) Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…

Juries and Race in the Nineteenth Century

113 Yale L.J. 895 (2004) The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…

Bargaining in the Shadow of Takeover Defenses

113 Yale L.J. 621 (2003) For decades, practitioners and academic commentators who believe that target boards should have broad discretion to resist hostile takeover attempts have put forward the "bargaining power hypothesis" to support their view. This hypothesis states that a target with strong tak…

Insider Abstention

113 Yale L.J. 455 (2003) Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …

Minorities, Shareholder and Otherwise

113 Yale L.J. 119 (2003) "[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…

Digital Architecture as Crime Control

112 Yale L.J. 2261 (2003) The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engine…

How Much Redistribution Should There Be?

112 Yale L.J. 2291 (2003) Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes c…

Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property

112 Yale L.J. 2331 (2003) As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…

Common Law, Common Ground, and Jefferson's Principle

112 Yale L.J. 1717 (2003) Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framer…

The Secret History of Race in the United States

112 Yale L.J. 1473 (2003) In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, …

Economic Analysis of Contract Law After Three Decades: Success or Failure?

112 Yale L.J. 829 (2003) Modern economic analysis of contract law began about thirty years ago and, many scholars would agree, has become the dominant academic style of contract theory. Traditional doctrinal analysis exerts less influence than it did prior to 1970 and enjoys little prestige. Philosop…

Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters

112 Yale L.J. 553 (2002) Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…

100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System

112 Yale L.J. 261 (2002) We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the inco…

Probability Neglect: Emotions, Worst Cases, and Law

112 Yale L.J. 61 (2002) In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…

Local Policing After the Terror

111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…

Legislative Entrenchment: A Reappraisal

111 Yale L.J. 1665 (2002) There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds,…

Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique

111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…

Stopping Above-Cost Predatory Pricing

111 Yale L.J. 941 (2002) This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…

Categorical Federalism: Jurisdiction, Gender, and the Globe

111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…

Veil of Ignorance Rules in Constitutional Law

111 Yale L.J. 399 (2001) A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. …

What Happened to Property in Law and Economics?

111 Yale L.J. 357 (2001) Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism…

Drug Designs are Different

111 Yale L.J. 151 (2001) In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…

Bush v. Gore and the Boundary Between Law and Politics

110 Yale L.J. 1407 (2001) Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced…

Pennhurst, Chevron, and the Spending Power

110 Yale L.J. 1187 (2001) Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a pa…

The Internet and the Dormant Commerce Clause

110 Yale L.J. 785 (2001)

Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel

110 Yale L.J. 441 (2000) Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, …

Disaggregating Constitutional Torts

110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…

Deliberative Trouble? Why Groups Go to Extremes

110 Yale L.J. 71 (2000) In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program, featured content, lock them™ up: holding transnational corporate human-rights abusers accountable, administrative law at a turning point, law and movements: clinical perspectives.

“An Arbitrary Fraction”: How the Family and Medical Leave Act Fails Rural Workers

• Melanie Hagerman

Bending Gender: Disability Justice, Abolitionist Queer Theory, and ADA Claims for Gender Dysphoria

Voluntary prosecution and the case of animal rescue.

• Justin Marceau
• Wayne Hsiung
• Steffen Seitz

Extrajudicial Segregation: Challenging Solitary Confinement in Immigration Prisons

• Felipe De Jesús Hernández

Interrogating Dominion: On Political Theology and Summary Process Eviction in Connecticut

• James Stevenson Ramsey

The Anti-Klan Act in the Twenty-First Century

• William M. Carter Jr.

“Made to Feel Broken”: Ending Conversion Practices and Saving Transgender Lives

• Jennifer Levi
• Kevin Barry

Separation of Powers and Thuraissigiam : The Entry Fiction as Judicial Aggrandizement

• Brandon Hallett Thomas

A Plea for Affirmative Action

• Mitchell F. Crusto

Personal Precedent at the Supreme Court

• Richard M. Re

How To Write A Legal Advice Essay

As a law student you may be required to produce a legal advice essay. Whilst like any good, well structured essay your work should have an introduction, body and conclusion, a legal advice essay has a slightly different purpose than for example, a compare and contrast, or critical review essay. It is important to remember that the core aim of a legal advice essay is to convey, in precise, plain, and comprehensible English the advice which you need to convey.

The type of language used is also crucial, an effective legal advice does not use archaic language or legalese, because the main purpose is to communicate. However, do not oversimplify the advice being given, particularly if there is a need to deliver very specialised legal advice. In effect, your legal advice essay should say what needs to be said in a clear, coherent way. Technical terms may be unavoidable but should be clearly explained so that the reader understands.

The key word for legal advice essays is clarity. Legal advice and opinions are often developed through assessment of complicated sets of facts. These need to be sorted into specific legal issues and relevant definitions at the planning stage of your essay.

Planning Your Legal Advice Essay

If you plan thoroughly you will naturally have a logical structure. You may wish to state a legal opinion to get across a point, but that point may require breaking down into sections. Before writing your essay therefore, it is important to identify each of these sections (points) so that the opinions stated are justified and explained effectively. Along with clarity, be concise.

Legal advice essays usually come with a series of questions and accompanying documents related to the case being consider. It is important on reviewing the documents to identify the recipient of the advice, from the essay title. For example, a solicitor wishing to give a client advice, or direct to the client. A key point at this stage, if considering advice from the client perspective is whether the case is viable, so that a client is not misled about the potential of success if they are requesting advice on commencing legal proceedings. In other words, pros and cons of a particular action are important in a legal advice essay but there must be clear opinion and advice provided, for example a percentage chance of success.

A subsequent part of the planning process is organisation of facts, and how the advice given will be focused on these. Once the salient facts and evidence have been identified they should be placed in an order (frequently chronological works best in law essays), and a legal framework constructed. With the planning complete, you should be in a position to understand clearly what advice will be provided, why it is provided and the format you are choosing to present the advice, enabling you to write your advice essay.

Writing your legal advice essay

Introduction.

Your introduction should be clear, concise, and set out the main facts of the case, and the reasons for the need for advice to be given. The introduction should also contain an overview of the advice that will be provided, in a concise (one or two sentences), and the legal framework that will be used.

As with all essays, the body text should be separated into one paragraph per point / fact, using the logical structure set out in your plan, which incorporates all the points and facts needed to be made. Each paragraph should have a note of the point or fact, the legal framework (where appropriate) and the opinion of the writer on the facts, along with a rationale and justification for the advice given. These should be backed up with appropriately cited references that are listed at the end of the essay.

Important Note:  In all law advice works, whether essay or other reports, there are some structural rules that need to be followed to provide consistency across all legal papers. For example, liability comes before quantum and if there are multiple dependents, each one’s liability should be covered before moving to quantum.

Throughout a legal advice essay note that unless specifically required in the essay title, basic principles of law do not need to be stated. It is here that recognition of the audience for the essay is important, although where an opinion is based on a specific case then the basis of that case’s judgement would need to be included in your justification and rationale. Similar rules apply in relation to quote statute – unless there is statutory provision which deals directly with the subject of the essay there is no need to quote statute as part of the legal opinion.

Furthermore, the validity of legal argument and thus advice in law comes from the source and precedent, not from opinion. Source in law refers to who made the statement or judgement not simply what was said.  In law there are two main authorities – binding and unbinding authorities.  The first emanates from case law or legislation, whilst the second comes from Public Policy, Legal commentary, Dissenting judgements, Reform Proposals, and International Law.  A perfect law advice essay will benefit from using binding and non-binding (or persuasive authorities) as sources, provided they are justifiable and can be defended in the final opinion/advice.

Conclusion “Next Steps”

Other essay formats will normally end with a conclusion. However, a legal advice essay should end with a “next steps” paragraph which means essentially a “call to action”. In other words, instructing the reader of what should be done next to ensure the advice given leads to legal success.

So, for a legal advice essay remember: Plan, Structure, Clarity, Conciseness, and Justification of opinion are the key components for success.  To help you achieve the perfect law advice essay here are some key phrases that can help you achieve cohesion and academic excellence.

Key phrases for the introduction and body text

• This question deals with …
• The principal issue raised by this question …
• The main issue is whether…
• The issues to be considered are …
• The problem also raises the issue of
• On the facts presented, it can be argued that …
• It would seem, (therefore), that …
• It is possible that …
• It could be argued that …
• It would appear that…

Key phrases for the conclusion

• From the evidence examined, it is my advice that…
• It is therefore recommended that…
• Based on the facts presented and their evaluation, the best course of action is to …

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LSAT Argumentative Writing

LSAT Argumentative Writing SM

A new approach to the Writing section of the LSAT 

Beginning July 30, 2024, LSAT Argumentative Writing will replace the LSAT Writing prompt that has been part of the LSAT since 1982.

This new approach to the writing assessment aims to assess a test taker’s ability to construct a cogent argument based on a variety of evidentiary sources. Test takers will be presented with a debatable issue, along with three or four perspectives that provide additional context for the issue. These perspectives, each of which is conveyed in a few sentences, are representative of a system of beliefs or values. Together, the perspectives illustrate competing ideologies and arguments around a particular issue. The test taker will then draft an argumentative essay in which they take a position on the issue, while addressing some of the arguments and ideas presented by the other perspectives. 

The new argumentative writing task is designed to give test takers a clearer, more authentic writing purpose than the former “decision-based” LSAT Writing prompt, which was more narrowly focused on pure logical reasoning. When test takers have an opportunity to construct an original thesis and defend it based on their own judgment and analytical evaluation, rather than following pre-ordained lines of reasoning, we can better assess the broader and more complex range of decision-making skills that writers engage in.

By adopting this design, we’re not only enabling individuals to have a more authentic voice in their argument, but we are also better positioned to evaluate the writer’s ability to employ various rhetorical techniques, evidentiary strategies, and other important aspects of argumentative writing. 

Given the additional reading load required by the new writing task format, LSAT Argumentative Writing will include a short preparatory period that test takers can use to organize their thoughts using guided prewriting analysis questions and to take notes using the digital notetaking tool provided in the testing environment. These questions are designed to help test takers analyze the various perspectives and generate productive ideas for their essay. Most test takers will have a total of 50 minutes — 15 minutes for prewriting analysis and 35 minutes for essay writing. Test takers with approved accommodations for additional time will have their time allocations adjusted accordingly.

For the 2024-2025 testing cycle, LSAT Argumentative Writing will remain an unscored section of the LSAT and will be administered exclusively in an online proctored, on-demand environment using secure proctoring software that is installed on the test taker’s computer.

Quick Facts about LSAT Writing

Online administration.

Before You Begin — Top Tips

If your LSAT Argumentative Writing session is flagged for further review, it may delay the release of your LSAT score. Review these tips to avoid having your session flagged.

Required for LSAT Scoring

LSAT Argumentative Writing samples are not scored, but LSAT Argumentative Writing is a required part of the LSAT. Your LSAT score cannot be released to law schools if you do not have a completed and approved LSAT Argumentative Writing sample on file .

Take a Practice Writing Prompt

Through your free LSAC LawHub account, you have access to an official LSAT Argumentative Writing practice prompt that can help you prepare for test day. This writing prompt is representative of the kind of prompts that are used in the LSAT Argumentative Writing assessment. You can use this prompt to get familiar with both the content and the interface of the test.

You can sign into LawHub with your LSAC username and password.

Testing Accommodations

Through our deep commitment to disability rights, LSAC will continue to address the needs of all individuals with disabilities who require testing accommodations. We will make every effort to ensure all test takers are able to fully demonstrate their skills when they take the LSAT and LSAT Argumentative Writing.

Learn More about testing accommodations

Learn How to Verify Your ID on Test Day

When you launch valid, government-issued photo ID . We’ve compiled a list of tips, so you’ll know what to do (and not do!) when it’s time to photograph your ID on exam day. If your LSAT Writing sample is flagged due to ID issues, it could delay the release of your LSAT score.--> LSAT Argumentative Writing, you’ll need to take a photo of your valid, government-issued photo ID. Please ensure that the photo of your ID is clear and recognizable. Images of IDs that are blurry, out of focus, or unrecognizable will not be accepted, and your writing sample will be canceled. Please review the image of your ID on your screen for clarity before capturing the image.

Review ID Requirements

Frequently Asked Questions

How do i register for lsat argumentative writing.

If you’re taking the LSAT for the first time, one administration of LSAT Argumentative Writing is included in your LSAT registration. By registering for the LSAT, you will be automatically eligible to complete the writing section, which is open eight (8) days before you take the multiple-choice portion of the LSAT. You can access LSAT Argumentative Writing from your LSAC JD Account. 

NOTE:  The LSAT registration fee includes both the multiple-choice portion of the LSAT and LSAT Argumentative Writing. There are no additional fees associated with LSAT Argumentative Writing. 

When can I take LSAT Argumentative Writing?

Candidates are eligible to take LSAT Argumentative Writing starting eight (8) days prior to their LSAT administration. For your LSAT to be considered complete, you will need to take the LSAT Argumentative Writing section of the test if you do not already have a writing sample on file from a previous LSAT administration. Most law schools require a writing sample as an integral part of their admission decision, and therefore, you should complete a writing sample to meet schools’ application deadlines. Your writing sample will be shared with the law schools to which you have applied once it’s approved and your score is released. Candidates will be required to have a completed writing sample in their file to see their test score or have their score released to law schools. 

How long does it take to complete the LSAT Argumentative Writing task?

Most test takers will have a total of 50 minutes — 15 minutes for prewriting analysis and 35 minutes for essay writing. Test takers with approved accommodations for additional time will have their time allocations adjusted accordingly. Test takers can use the 15-minute prewriting analysis to organize their thoughts using guided prewriting analysis questions and to take notes using the digital notetaking tool provided in the testing environment. These questions are designed to help test takers analyze the various perspectives and generate productive ideas for their essay. All test takers will have the option to move past the prewriting analysis after 5 minutes of time have expired, or they may choose to use their full time allocated.

By when do I have to complete LSAT Argumentative Writing?

If you do not have a writing sample on file, we encourage you to complete LSAT Argumentative Writing as soon as you can. LSAT Argumentative Writing opens eight (8) days prior to every test administration. Candidates must have a complete writing sample in their file in order to see their score or have their score released to schools. Most law schools require a writing sample as an integral part of their admission decision, and therefore, you should complete the writing sample immediately to meet schools’ application deadlines. 

In case you are not applying in the current cycle, please note you have a maximum of one (1) year to complete LSAT Argumentative Writing. For questions, please contact LSAC’s Candidate Services team at  [email protected]  or  1.800.336.3982 .

What can I use to write notes since scratch paper is prohibited?

Unlike the multiple-choice portion of the LSAT, physical scratch paper and writing utensils are not permitted during the standard administration of LSAT Argumentative Writing. Instead, the LSAT Argumentative Writing interface includes a built-in, digital “scratch paper” section where you’ll be able to type notes, instead of writing them on a physical piece of scratch paper. 

How is test security managed for LSAT Writing?

The secure proctoring platform uses input from the webcam, microphone, and screen of the candidate’s own computer to ensure that the writing sample is the candidate’s own work, and that the candidate is not receiving any inappropriate assistance. Prior to the exam, candidates will complete a video check-in process. As part of the check-in process, candidates will be required to clearly display a physical, valid government-issued photo ID issued by the United States of America, U.S. Territories, or Canada or an international passport for the camera to capture. This image must not be blurry or out of focus. Candidates will also be required to complete a full 360-degree scan of their room and their workspace using their webcam. The room scan must be completed in order to ensure there are no other people or prohibited items in the testing environment. Candidates who require additional items in their workspace due to a disability may seek appropriate accommodations through the standard procedures for  requesting testing accommodations .    

Audio and video from every testing session will be reviewed by trained proctors. 

Please review the  Test and Test-Taker Security FAQs  for more information. 

Do I need to take LSAT Argumentative Writing if I’ve already completed LSAT Writing?

If you previously took LSAT Writing during the current reportable score period (i.e., as early as June 2018), your previous writing sample is still valid, and you do not need to complete LSAT Argumentative Writing. However, if you register to retake the LSAT during the 2024-2025 testing year and would like to complete LSAT Argumentative Writing, you can contact LSAC’s Candidate Relations team at [email protected] or 1.800.336.3982 .

I took the LSAT before August 2024 but never completed LSAT Writing. Can I complete LSAT Argumentative Writing to get my LSAT score?

Yes. LSAT Writing will be available through July 29, 2024. Starting July 30, 2024, LSAT Argumentative Writing will be available to all test takers who still need to complete a writing sample, even if they took the multiple-choice portion of the LSAT during the 2023-2024 testing year.

When will sample prompts for the new LSAT Argumentative Writing be available in LawHub?

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Expert Summaries of Mueller Report: A Collection

by Just Security , Kate Brannen , George T. Conway III , Jennifer Daskal , Kristen Eichensehr , Joshua Geltzer , Ryan Goodman , Elie Honig , Harry Litman , Renato Mariotti , Barbara McQuade , Asha Rangappa , Mimi Rocah , Paul Seamus Ryan , Rita Siemion , Joyce Vance and Andy Wright

August 20, 2019

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Mueller investigation , Mueller Report , Russia Investigation

Table of Contents

Introduction Ryan Goodman, Co-Editor-in-Chief, Just Security

1. The Special Counsel’s Investigation Joshua Geltzer

2. Legal Standards and Evidentiary Considerations Asha Rangappa

3. Russian “Active Measures” Social Media Campaign and Criminal Charges against 13 Russian Nationals and 3 Russian Entities Kristen Eichensehr

4. Russian Hacking and Dumping Operations and Criminal Charges against 12 Russian Military Intelligence Officials Jennifer Daskal

5. Trump Campaign Interest in Hacked Materials Joshua Geltzer

6. Links and Contacts with Russia: Michael Cohen and Trump Tower Moscow Kate Brannen

7. Links and Contacts with Russia: George Papadopoulos Kate Brannen

8. Links and Contacts with Russia: Carter Page Kate Brannen

9. Links and Contacts with Russia: Trump Tower June 2016 Meeting Kate Brannen and Ryan Goodman

10. Links and Contacts with Russia: Paul Manafort Rita Siemion

11. Links and Contacts with Russia: Michael Flynn Barbara McQuade

12. Links and Contacts with Russia, Additional Individuals Asha Rangappa

13. Charging Decisions: The Foreign Agent Registration Act Jennifer Daskal

14. Charging Decisions: Accepting Information from Foreign Officials (campaign finance law) Paul Seamus Ryan

15. Charging Decisions: False Statements and Obstruction of the Investigation Barbara McQuade

1. Setting the Stage: Investigation of a Sitting President and Overarching Factual Issues Ryan Goodman

2. Legal Framework for Obstruction of Justice: Elements and Case Law Asha Rangappa

3. Trump’s Response to Reports of Russian Support Joshua Geltzer

4. Incident One: Shielding Flynn Mimi Rocah

5. Incident Two: Pressuring FBI Director Comey and the Intelligence Chiefs Barbara McQuade

6. Incident Three: Firing FBI Director Comey Mimi Rocah

7. Incident Four: Efforts to Remove Special Counsel Mueller Renato Mariotti

8. Incident Five: Efforts to Curtail the Special Counsel Investigation Barbara McQuade

9. Incident Six: Efforts to Prevent Disclosure of Emails about the June 9, 2016 Trump Tower Meeting with Russians Andy Wright

10. Incident Seven: Efforts to Have Attorney General Sessions Take Over the Investigation Andy Wright

11. Incident Eight: Ordering White House Counsel McGahn to Deny that the President Tried to Fire the Special Counsel Joyce Vance

12. Incident Nine: Conduct Toward Michael Flynn and Paul Manafort Elie Honig

13. Incident Ten: Conduct Toward Michael Cohen Elie Honig

14. Prebuttal I: Response to Possible Statutory Defenses Joshua Geltzer

15. Prebuttal II: Response to Possible Constitutional Defenses Harry Litman

Epilogue George T. Conway III

Appendix: Additional Writings by Our Experts

Introduction to the Expert Summaries By Ryan Goodman, Co-editor-in-chief, Just Security

At the time of publishing this online resource, the House Judiciary Committee is ramping up investigations that now include consideration of impeachment of President Donald J. Trump. We at Just Security believe that it is accordingly more important than ever for Americans to be familiar with the contents of the Special Counsel’s Report on the Investigation into Russian Interference in the 2016 Presidential Election . To that end, we have created a digestible summary of the Report, broken down into 30 sections, which can be read in five to 10 minutes each. Each summary aims to present, in clear and straightforward language and without additional analysis or commentary, the findings of the Special Counsel as he presented them to the Attorney General.

These summaries are relevant not only to current congressional processes, but also for the historical record. The Special Counsel’s investigation is significant for understanding the events of 2016 and the conduct of the President toward the investigation. There will surely be many lessons drawn from the Special Counsel’s Report in the years ahead. We have thus undertaken this project with the goal of providing an easily accessible resource for the present moment and far beyond it.

Our summaries are not intended to be a substitute for reading the Report itself, but rather as a helpful guide to the main themes, characters, and takeaways in the full Report. We hope that these summaries will render the original text more accessible for the general reader — much like reading a plot summary of a Shakespeare text makes following along with the play itself much easier. We also hope that this collection will serve as a convenient reference for journalists, commentators, and the general public when the events and individuals described in the Report are covered in the course of the House Judiciary Committee’s investigation. We hope this resource will also serve as a convenient reference for the study of American legal history over time.

A few editorial notes about our summaries are in order. First, while we have generally followed the sequence of the investigative findings provided by the Special Counsel, we have in some cases combined information on the same topic or person found in different sections of the report into a single summary. The relevant pages of the original Report are listed at the top of each summary for reference. Second, the Report is so carefully written that the same sentences, phrases or clauses are sometimes repeated verbatim in the summaries in order to accurately convey the Special Counsel’s meaning. Quotation marks are used only when the Report itself used quotation marks, for example, in referring to a specific statement by a White House official or other witness. Again, the pages at the top of each summary should be considered the citations for all of the material contained therein.

Finally, we were fortunate and thrilled to have the best legal minds come together in this effort. The author of each summary is listed on his or her respective byline. Just Security would like to extend our enormous gratitude to the following individuals, who were critical to the swift, informed, articulate presentation of these summaries:

Kate Brannen* George Conway Jennifer Daskal Kristen Eichensehr Joshua Geltzer* Ryan Goodman* Elie Honig Harry Litman Renato Mariotti Barbara McQuade Asha Rangappa* Mimi Rocah Paul Seamus Ryan Rita Siemion Joyce Vance Andy Wright

*Lead editors on the project.

Return to Table of Contents

The Special Counsel’s Investigation (pp. 1, 11-13)

By Joshua Geltzer

The Russian government interfered in America’s 2016 presidential election in sweeping and systematic fashion, including by directing the hacking of the Democratic National Committee (DNC), yielding documents later released by WikiLeaks. After a foreign government contacted the FBI in July 2016 regarding a suggestion made by Trump campaign adviser George Papadopoulos that the campaign had received offers of Russian assistance, the FBI opened an investigation into possible cooperation between the campaign and the Russian government. In October 2016, the Department of Homeland Security and the Office of the Director of National Intelligence publicly attributed the DNC hack, among others, to the Russian government. By early 2017, several congressional committees were investigating Russian election interference.

The “Report on the Investigation into Russian Interference in the 2016 Presidential Election” represents the culmination of Robert S. Mueller III’s work from 2017 to 2019 as the Special Counsel at the U.S. Department of Justice investigating Russian election interference. It was written by the Special Counsel’s Office and presented to Attorney General William P. Barr in order to explain the Office’s decisions to prosecute specific individuals and not to prosecute other individuals after over two years of investigative and legal work.

The Special Counsel’s work was governed by Justice Department regulations promulgated in 1999. Those regulations allow the attorney general to appoint a special counsel to oversee a criminal investigation when doing so (1) would avoid a conflict of interest for others at the Justice Department and (2) “would be in the public interest.”

Deputy Attorney General Rod Rosenstein appointed the Special Counsel “to investigate Russian interference with the 2016 presidential election and related matters.” The appointment called for the Special Counsel specifically to continue the Russia-related counterintelligence investigation whose existence then-FBI Director James Comey had confirmed publicly in congressional testimony and “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.” Moreover, the appointment order authorized the Special Counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” “any matters that arose or may arise directly from the investigation,” and “any other matters” otherwise within the scope set out by the special counsel regulations.

Additionally, the order appointing the Special Counsel referred specifically to the section of the Justice Department regulations that provided the Office with “authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” The Special Counsel’s authority to investigate “any matters that arose … directly from the investigation” permitted the Special Counsel to investigate these same sorts of crimes—such as obstruction of justice—even if they were committed before the Special Counsel took over the Russia investigation, such as while it was still being overseen at the FBI by Comey.

In addition to his order appointing the Special Counsel, Rosenstein subsequently provided two memoranda clarifying the scope of the Special Counsel’s work. The first indicated that the Special Counsel had been authorized since his appointment specifically to investigate three Trump campaign officials—Carter Page, Paul Manafort, and George Papadopoulos—including whether they engaged in criminal activity through their links to the Russian government as it attempted to interfere in the 2016 election. The same memorandum also confirmed the Special Counsel’s authority to investigate a range of other matters, such as additional allegations involving Manafort and Papadopoulos as well as allegations against Trump’s former national security advisor, Michael Flynn. The second clarifying memorandum confirmed the Special Counsel’s authority to investigate a range of additional matters, including activities of Trump associates Michael Cohen, Richard Gates, and Roger Stone, as well as allegations that, during his Attorney General confirmation process, Jeff Sessions had made false statements to the U.S. Senate.

Guided by these instructions, the Special Counsel made use of the substantial evidence already collected before his appointment while also obtaining significantly more evidence, including both classified and unclassified information. During the course of the Special Counsel’s work, two district courts—one in Washington, D.C., and another in Virginia—confirmed the broad scope of the Special Counsel’s mandate in the course of denying challenges to criminal charges brought by the Office. When the Special Counsel identified evidence of potential criminal activity that fell outside his mandate, he consulted with Rosenstein’s office and referred it to other law enforcement authorities, such as other parts of the Justice Department.

The Special Counsel’s team included, at its peak, 19 attorneys as well as support staff. It also included approximately 40 FBI agents, intelligence analysts, forensic experts, and additional staff. The Office issued more than 2,800 subpoenas, executed nearly 500 search-and-seizure warrants, and interviewed approximately 500 witnesses.

The nature of the investigation that the Special Counsel took over—a counterintelligence investigation—meant that, in addition to pursuing criminal charges, it was clear from the outset that the Office would identify foreign intelligence and counterintelligence information relevant to law enforcement’s efforts to understand foreign influence in the United States and, in turn, to attempt to mitigate it. The FBI personnel who worked with the Office conveyed that information to the FBI throughout the Special Counsel’s tenure, and the Office met regularly with the FBI’s Counterintelligence Division. The FBI embedded with the Special Counsel’s team personnel whose mission was specifically to review results of the investigation and then to summarize and disseminate information of foreign intelligence and counterintelligence interest. That work on identifying foreign influence—rather than potential criminal charges—is beyond the scope of the Report.

Legal Standards and Evidentiary Considerations (pp. 2-3, 9-10, 174, 180-181)

By Asha Rangappa

This Report consists of two volumes. Volume I describes the results of the Special Counsel’s investigation into Russia’s interference in the 2016 presidential election and Russia’s interactions with the Trump campaign. Volume II involves the President’s conduct with regard to the FBI’s investigation, and his actions toward the Special Counsel. The legal framework used in that investigation are stated separately in Volume II.

The actions and events described in the Report are based on evidence that the Special Counsel’s Office believed to be substantial and credible. When the Office was confident that the evidence met this standard, the Report indicates that the investigation “established” those actions and events took place. At times, the Report may indicate the absence or conflict in the evidence for an event. If a set of facts was not established, that does not mean that there was no evidence of those facts.

The Office was not always able to obtain a full picture of the activities of the subjects of the investigation. In some instances, witnesses and documents located outside of the United States presented practical obstacles to obtaining evidence. In other instances, the Office was limited in obtaining information because of internal Department of Justice policies, legally privileged communications, or individuals invoking their Fifth Amendment rights. In addition, some individuals provided false or incomplete information during their interviews or testimony. The investigation established that several individuals associated with the Trump Campaign lied to the Office and to Congress, and those lies materially impaired the investigation of Russian election interference. Finally, the Office became aware that some individuals who were interviewed or investigated — including some individuals associated with the Trump Campaign — deleted relevant communications using encrypted applications.

As a result, while the events described in the report are accurate and complete to the greatest extent possible, the obstacles described above presented gaps in the available information. It is possible that the unavailable information would illuminate or change the picture of events presented in the Report.

In deciding whether to charge individuals investigated in the course of the Special Counsel investigation, the Office first considered two factors based on the Department of Justice Manual: (1) whether the conduct of the individual(s) constituted a federal offense; and (2) whether the admissible evidence would be sufficient to obtain and sustain a conviction for that offense. The latter would entail convincing a jury beyond a reasonable doubt that an individual committed a crime. If these criteria were met, the Office then considered whether a prosecution would serve a substantial federal interest, if they could be effectively prosecuted in another jurisdiction, or if any non-criminal alternatives to prosecution existed.

The Office uncovered evidence of numerous links between members of the Trump Campaign and individuals with ties to the Russian government. In evaluating whether these links constituted a federal offense, the Office did not employ the concept of “collusion,” which is not a crime under the U.S. criminal code or a term of art under federal criminal law. Rather, the Office used conspiracy law, which is the federal crime that most closely matches the dictionary definition of collusion, and which is defined under several different federal statutes. The Office also defined “coordination” — a term that appears in the Order appointing the Special Counsel — as “an agreement — tacit or express — between the Trump campaign and the Russian government on election interference.” Under this definition, coordination would require “more than the two parties taking actions that were informed by or responsible to the other’s actions or interests.”

Based on these definitions, the investigation did not establish that the contacts between the Trump Campaign and individuals tied to Russia knowingly or intentionally participated in a conspiracy against the United States. With regard to a conspiracy to violate campaign finance statutes, the Office concluded that unresolved legal questions and factual considerations would present difficulties in proving a willful violation of the law. The Office charged two individuals, Paul Manafort and Richard Gates, for violating the Foreign Agent Registration Act in their work on behalf of Ukraine. Several individuals intentionally made false statements about their contacts with Russian agents or took steps to obstruct the Office’s investigation, and in some cases were charged with making false statements and obstructing justice.

Russian “Active Measures” Social Media Campaign and Criminal Charges against 13 Russian Nationals and 3 Russian Entities (pp. 14-35,* 174*)

By Kristen Eichensehr

“Active measures” are “operations conducted by Russian security services aimed at influencing the course of international affairs.” The Internet Research Agency, LLC (IRA) and Concord Management and Consulting LLC and Concord Catering (collectively “Concord”) are Russian entities funded by Russian businessman Yevgeniy Viktorovich Prigozhin, who has ties to Russian President Vladimir Putin and was sanctioned by the U.S. Treasury Department in 2016. In the first major indictment arising out of the Special Counsel’s investigation, a grand jury in the District of Columbia indicted the IRA, Concord, and 13 associated individuals for violating U.S. laws while attempting to interfere in the 2016 election.

As early as 2014, the IRA sought to influence public opinion through online media and forums. IRA employees called “specialists” operated Facebook, YouTube, and Twitter accounts and later added Tumblr and Instagram accounts. The IRA accounts initially posed as individual U.S. persons, but by 2015, the IRA created larger social media groups and public pages that claimed affiliation with U.S. groups, like the Tennessee Republican Party, or posed as fictitious U.S. groups.

In February 2016, IRA internal documents referenced supporting the Trump Campaign and opposing Hillary Clinton’s campaign, and the IRA’s social media accounts took actions throughout the election season to support the Trump Campaign. According to congressional testimony from Facebook General Counsel Colin Stretch, the IRA purchased 3,500 advertisements on Facebook, and posts by IRA-controlled accounts reached at least 29 million U.S. persons, and perhaps as many as 126 million people.

The IRA was also active on Twitter. IRA employees operated individual accounts that posted original content and also communicated directly with U.S. Twitter users. Some of the accounts gained tens of thousands of followers, and their tweets received significant attention from Twitter users, as well as from U.S. media outlets that quoted IRA tweets as reactions of real U.S. persons. Numerous high-profile U.S. persons, including former U.S. Ambassador to Russia Michael McFaul, Sean Hannity, and Michael Flynn Jr., also retweeted or responded to the IRA accounts. The IRA also engaged in botnet activity on Twitter. According to Twitter, the company notified approximately 1.4 million people who Twitter believed may have been in contact with an IRA-controlled account, and in January 2018, it publicly identified 3,814 accounts linked to the IRA.

The IRA’s activities were not limited to cyberspace. In June 2014, two IRA employees traveled to the United States to gather intelligence. The IRA also organized dozens of political rallies in the United States. To do so, the IRA would announce an event, send direct messages to its social media followers inviting them to attend, and recruit U.S. persons as event coordinators. Some rallies drew hundreds of attendees, and the Trump Campaign posted about one on its Facebook page. The IRA also targeted and recruited U.S. persons to amplify its messages on social media and to perform political acts (such as walking around New York City dressed up as Santa Claus with a Trump mask).

In addition, the IRA made contact with the Trump Campaign. The interactions took two forms. First, Trump Campaign members and surrogates, including Donald J. Trump Jr., Kellyanne Conway, Flynn, and then-candidate Trump’s personal Twitter account, promoted IRA-controlled content on social media by, for example, retweeting it. Second, IRA employees posing as U.S. conservative activists contacted Trump Campaign affiliates to coordinate pro-Trump rallies in the United States. The Office did not uncover evidence that any Trump Campaign official understood the requests were coming from foreign nationals.

On February 16, 2018, a federal grand jury returned an indictment charging the IRA, Concord, and 13 Russian nationals, including Prigozhin, with conspiracy to defraud the United States. Some defendants were also charged with conspiracy to commit wire fraud and bank fraud and with aggravated identity theft. Concord entered an appearance in U.S. court and moved to dismiss the charges. The district court denied Concord’s motions to dismiss, and the case remains pending.

The Office did not bring charges against Trump Campaign officials because the investigation did not reveal that such officials knew they were communicating with Russian nationals engaged in the criminal conspiracy, and therefore, they lacked the knowledge or criminal purpose required to charge them. One U.S. national, however, was charged for IRA-related conduct. On February 12, 2018, Richard Pinedo pleaded guilty to identity fraud for supplying false or stolen bank account numbers that allowed the IRA conspirators to access U.S. online payment systems, but Pinedo was unaware of the identity of the IRA members to whom he sold the bank account numbers.

* Some of these pages are heavily redacted due to harm to an ongoing matter.

Russian Hacking and Dumping Operations and Criminal Charges against 12 Russian Military Intelligence Officials (pp. 36-50, 173, 175-179*)

By Jennifer Daskal

Two military units of the Russian Federation’s Main Intelligence Directorate of the General Staff (GRU) carried out highly sophisticated, targeted, and successful hacking and dumping operations between March and October 2016. The operation was done in order to undermine Hilary Clinton’s candidacy and influence the outcome of the presidential election. Ultimately, the GRU stole hundreds of thousands of emails and documents from individuals associated with the Clinton Campaign, Democratic National Committee (DNC), and Democratic Congressional Campaign Committee (DCCC), tens of thousands of which were ultimately released via WikiLeaks, as well as the GRU-created “DCLeaks” and “Guccifer 2.0.”

The GRU-led attacks began in March 2016, as part of a sophisticated and ultimately successful spear phishing campaign, pursuant to which GRU officials obtained access to numerous email accounts of Clinton Campaign employees and volunteers, including those of Campaign Chairman John Podesta. By August 12, 2016, the GRU — using credentials stolen from a DCCC employee during a spear phishing operation — gained access to the DCCC computer network, which included 29 different DCCC computers. From there, GRU officers were able to access more than 30 computers on the DNC network, including the DNC mail server and file server.

Once access was established, the GRU officers installed malware into the affected computers, enabling them to log keystrokes and thereby uncover passwords, internal communications, and sensitive personal information; take screenshots; and gather other data. This data was then transferred from the DNC and DCCC computers to GRU-controlled computers leased within the United States.

This first tranche of email releases took place in April 2016, and included internal correspondence related to the Clinton Campaign, fundraising files, and personal information obtained from email accounts of individuals associated with Clinton’s campaign. Documents were initially posted on the GRU-created website “DCLeaks.” A DCLeaks Facebook account, Twitter account, and Gmail account also were used to disseminate documents and communicate with reporters.

On June 16, 2016 — a day after the DNC publicly announced the breach of its networks — GRU officials created a WordPress blog using the persona of Guccifer 2.0. Over the next four months, Guccifer 2.0 released thousands of stolen DNC and DCCC documents in a series of blog posts, including opposition research, internal policy documents, analysis of specific congressional races, and fundraising material. Guccifer 2.0 engaged in targeted releases as well—sending a congressional candidate documents related to the candidate’s opponent and sharing Florida-related data, stolen from the DCCC, with a U.S. blogger covering Florida politics.

Communications between the GRU and WikiLeaks in order to coordinate their activities began in mid-June 2016. On June 29, 2016, the GRU attempted to send WikiLeaks a large encrypted data file. On July 14, 2016, a GRU transfer of a large data file with the name “wk dnc link I .txt.gpg” was successful. WikiLeaks confirmed receipt on July 18, 2016. On July 22, WikiLeaks released of over 20,000 emails and other documents stolen form the DNC. The release appears to have been timed carefully: It was 3 days in advance of the Democratic National Convention.

On October 7, 2016, the same day that an Access Hollywood video surfaced of Donald Trump making politically damaging comments about women, WikiLeaks released its initial tranche of Podesta’s emails. Over the next month, WikiLeaks released some 50,000 documents stolen from Podesta’s personal email account. These included private speeches given by Clinton, internal Clinton Campaign communications, and correspondence related to the Clinton Foundation. Other releases followed.

The Trump Campaign showed interest in the WikiLeaks releases. This included Trump’s July 26, 2016, statement: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” referring to the emails stored on Clinton’s personal server while she was Secretary of State. Within five hours of that statement, the GRU began to target email accounts associated with Clinton’s personal office.

The GRU also made contact through the Guccifer 2.0 persona, via Twitter, with a former Trump Campaign member. In three instances between August and September 2016, the GRU sent private messages to that individual. Details of these interactions are redacted, due to harm to an ongoing matter.

In July 2018, 12 Russian GRU military officials were charged in a 12-count indictment for their roles in the hacking and release operations designed to influence the 2016 election. Specifically, they were charged with conspiring to hack into DNC, DCCC, and Clinton Campaign computers, in violation of the Computer Fraud and Abuse Act, and for committing identify theft and conspiring to commit money laundering in the process, along with other charges. All 12 defendants remain at-large.

Overall, the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government, including Russian offers of assistance. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Trump Campaign coordinated or conspired in those Russian election interference efforts.

Several pages that address a related charging decision are redacted on the ground that they pose harm to an ongoing matter. At least one other possible charge – a violation of the Computer Fraud and Abuse Act – was considered and ultimately rejected.

Finally, the Office ruled out bringing charges on the theory that the post-hacking dissemination of stolen emails could constitute trafficking in or receipt of stolen property under the National Stolen Property Act. Several federal courts have understood the Act to apply only to tangible items—not the dissemination of stolen emails—which would make prosecution potentially risky.

* These pages, which include charging and declination decisions related to the Russian hacking and dumping operations, are heavily redacted due to harm to an ongoing matter.

See also Volume 1.5: Trump Campaign Interest in Hacked Materials

Trump Campaign Interest in Hacked Materials (pp. 51-65*)

The Trump Campaign showed interest in WikiLeaks’ releases of hacked materials throughout the summer and fall of 2016. In June 2016, WikiLeaks’ Julian Assange claimed in an interview to “have emails relating to Hillary Clinton which are pending publication.” But the Trump Campaign was frustrated that the Clinton emails had not been found. Conversations about the emails—and, ultimately, their release—involved Rick Gates, Paul Manafort, Michael Cohen, and Donald Trump himself.

Moreover, by late summer 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on WikiLeaks’ possible release of the Clinton emails. At one point, Trump specifically told Gates that more releases of damaging information would be coming.

Conservative political commentator Jerome Corsi asked Trump associate Ted Malloch to put Corsi in touch with Assange to arrange an interview. While Malloch did not do so, he and Corsi did have multiple discussions about WikiLeaks. In one conversation, Corsi told Malloch that the release of the emails of Clinton Campaign Chairman John Podesta was coming, after which “we” would be in the driver’s seat.

On October 7, 2016, the Washington Post published an Access Hollywood video that captured comments Trump had made years earlier and that was expected to adversely affect the Trump Campaign. Less than an hour after the video’s publication, WikiLeaks released the first set of Podesta’s emails hacked by the Russians.

Corsi later said that he thought that he had told people on a conference call that the Access Hollywood tape was forthcoming and, additionally, had sent a tweet asking whether anyone could contact Assange; but Corsi then said that perhaps he had done nothing. The Office was unable to find evidence of any such tweet or to identify anyone who indicated having received non-public information about the tape from Corsi or having contacted WikiLeaks on October 7 after a conversation with Corsi.

Donald Trump Jr., however, did have direct electronic communications with WikiLeaks during the campaign. In September 2016, WikiLeaks was told that an anti-Trump website was about to launch, and sent Trump Jr. a direct message on Twitter previewing its launch and providing the password for it. Trump Jr. emailed senior Trump Campaign staff, indicating, “I got a weird Twitter DM from wikileaks,” and sharing what he had received. After the website launched the following day, Trump Jr. sent a direct message to WikiLeaks expressing his thanks.

The next month, WikiLeaks sent additional direct messages to Trump Jr., including writing that it was “great to see you and your dad talking about our publications. Strongly suggest your dad tweets this link if he mentions us wlsearch.tk.” WikiLeaks added that the link would help Trump in “digging through” leaked emails and stated, “we just released Podesta emails Part 4.” Two days later, Trump Jr. publicly tweeted the link.

Additionally, the Trump Campaign engaged in persistent efforts to enlist Trump associates to identify the 30,000 emails from Clinton’s private server that the media had reported as permanently destroyed. One of those was Henry Oknyansky, a Florida-based Russian, with whom Stone met in person in May 2016 along with Alexei Rasin, a Florida-based Ukrainian. Rasin offered to sell Stone derogatory information on Clinton that Rasin claimed to possess. Stone refused.

The Trump Campaign also engaged in other efforts to obtain the Clinton emails. Trump stated publicly in July 2016 that he hoped that Russia would “find the 30,000 emails that are missing,” then privately and repeatedly asked Trump Campaign associates to find the emails. In response, Michael Flynn contacted multiple people in an effort to do so. Those included Barbara Ledeen, a Senate staffer who had previously sought the emails and who kept Flynn updated throughout summer 2016 on her efforts, as well as Peter Smith, an investment advisor active in Republican politics who also attempted to obtain the emails.

In December 2015, before Flynn’s request, Ledeen emailed to Smith a 25-page proposal to obtain the emails consisting of three phases: two stages of open-source analysis, then a third phase of checking with certain intelligence services to determine if any had been able to access Clinton’s server. Smith ultimately declined to participate in Ledeen’s proposed initiative.

After Trump’s July 2016 public statement, Smith tried to locate the Clinton emails himself, creating a company, raising money, and recruiting security experts. Smith claimed to others involved in the effort that he was in contact with hackers with “ties and affiliations to Russia,” who had access to the emails and that his efforts were coordinated with the Trump Campaign. He provided updates on his efforts to Flynn and Trump Campaign co-chairman Sam Clovis; and a document that Smith used for fundraising indicated that his work was “in coordination” with the Trump Campaign.

In September 2016, Smith and Ledeen reconnected about their efforts, with Ledeen claiming to have obtained from the “dark web” deleted Clinton emails. A technology advisor determined that the emails were not authentic. Investigation of a backup of Smith’s computer found two files downloaded from WikiLeaks and originally attached to emails received by Podesta, with creation dates prior to their release by WikiLeaks; but analysis indicated that the creation dates did not reflect when the files were downloaded to Smith’s computer. Smith continued to send emails claiming, for example, a “tug-of-war going on within WikiLeaks over its planned releases,” but no additional emails were in fact released. Smith also drafted emails claiming contact with Russian hackers, but that remains unsubstantiated.

All told, the Trump Campaign displayed interest in the work of the Russian government to obtain, through hacking, emails associated with the Clinton Campaign, Democratic National Committee, and Democratic Congressional Campaign Committee and to disseminate information from those emails through WikiLeaks and fictitious online personas.

* Some of these pages are heavily redacted due to harm to an ongoing matter and revelation of investigative techniques.

Links and Contacts with Russia: Michael Cohen and Trump Tower Moscow (pp. 66-79, 195-197)

By Kate Brannen

Between 2013 and 2016, the Trump Organization pursued the development of a Trump-branded property in Russia. The pursuit of this deal involved several Trump Organization employees, including Donald Trump, who was president of the company at the time, as well as several Russian contacts, including Russian government representatives.

From 2015 until the middle of 2016, Michael Cohen spearheaded the project and reported on its progress to Trump and others at the company. When first questioned about the project, he lied to Congress and the Office, saying the Trump Organization’s pursuit of Trump Tower Moscow ended in January 2016. Instead, the company was still trying to make the deal happen as late as June 2016. Cohen also lied about the extent to which he kept Trump informed of the project’s progress and whether he and Trump had discussed traveling to Moscow for it. Cohen also misled investigators about the communications he had with a Russian government official about it.

The first attempt at the project began after the 2013 Miss Universe Pageant in Moscow, which the Trump Organization organized with the Crocus Group, a Russian real estate company owned by Aras Agalarov. Donald Trump Jr. was the primary negotiator for the Trump Organization, while Agalarov’s son, Emin, and Irakli “Ike” Kaveladze represented the Crocus Group. Both companies negotiated a letter of intent (LOI) in early 2014; and, in February 2014, Ivanka Trump toured the proposed site with Emin during a visit to Moscow. But, beginning in fall 2014, members of the Trump organization became less responsive to Crocus Group correspondence, and, by the end of November, the project appeared to have stalled.

A second run at the project began in summer 2015, when Felix Sater, a New York-based real estate advisor who had worked previously with the Trumps, contacted Cohen, who, at the time, was special counsel to Donald Trump. Sater reached out on behalf of I.C. Expert Investment Company, a Russian real-estate development corporation controlled by Andrei Vladimirovich Rozov. The plan was for I.C. Expert to construct the building and license the name and brand from the Trump Organization. Cohen received approval from Trump to negotiate directly with I.C. Expert, and he kept Trump, Ivanka and Donald Jr. apprised of the discussions.

Between October and November 2015, the Trump Organization and I.C. Expert completed an LOI for a Trump Tower Moscow. Per the LOI, the Trump Organization stood to earn substantial sums over the lifetime of the project, including a $4 million “up-front fee” prior to groundbreaking, without the company having to assume significant liabilities or financing commitments.

The day after the Trump Organization returned the signed LOI, Sater emailed Cohen, writing:

Buddy our boy can become President of the USA and we can engineer it. I will get all of Putins team to buy in on this, I will manage this process ….

The next step entailed getting buy-in from the Russian government, which Sater and Cohen thought necessary for the project.

About a month after the LOI was signed, the wife of a man named Dmitry Klokov, an executive at a large Russian electricity company, emailed Ivanka Trump offering assistance with the Trump Campaign. She forwarded the email to Cohen, who followed up with Klokov, but Cohen was confused about his identity, mistakenly thinking Klokov was a former Olympic weightlifter after a quick Google search.

In conversations with Cohen, Klokov offered the Campaign “political synergy” and recommended that Cohen travel to Russia to speak with him and an unidentified intermediary. He said this could lead to a meeting in Russia between Trump and an individual Klokov described as “our person of interest,” later identified as Russian President Vladimir Putin.

Cohen and Klokov disagreed over whether these trips should be done officially and with a formal invitation, which was Cohen’s preference. Klokov thought the Trump organization should pursue these meetings between Trump and Putin outside of the business track, and that the rewards of such a meeting for Trump’s company would come in time. In the end, Cohen rejected Klokov’s assistance and did not appear to bring his offer to the attention of the Campaign, instead continuing to work with Sater, who Cohen understood was working his own Russian government contacts.

But, by late December 2015, Cohen was frustrated with Sater’s lack of progress and started trying to make contact with the Russian government himself. He tried emailing Dmitry Peskov, the Russian government’s press secretary, seeking to connect with Putin’s chief of staff. But he incorrectly typed the email address and the message was never delivered. In January 2016, he sent a message to [email protected], requesting a conversation and meetings with appropriate people to discuss Trump Tower Moscow. He also emailed Peskov’s correct address.

Cohen first told Congress and the Office that, when he received no answer to these inquiries in January 2016, he dropped the project. But he later admitted this was untrue: Elena Poliakova, Peskov’s personal assistant, wrote back to Cohen, and they later spoke on the phone for 20 minutes. Cohen asked for help with the project, and, according to him, Poliakova asked detailed questions, took notes, and said that she would need to follow up with others in Russia.

After that, Cohen did not recall anything further from Poliakova or others in the Russian government, and the Office did not find any evidence of it. However, Sater texted Cohen the next day and said, “[c]all me when you have a few minutes to chat … It’s about Putin they called today.” He then sent Cohen multiple versions of a draft invitation to Moscow, which noted the “working visit” would be to discuss the project and to coordinate a future visit by Trump.

Cohen did not travel to Russia, but discussions about when he and Trump might be able to do so continued. Cohen let Sater know that Cohen could travel to Moscow before the Republican National Convention in July but Trump’s visit would need to wait until after he officially became the Republican nominee. Sater kept pressing Cohen to commit to a trip, inviting him to the St. Petersburg International Economic Forum in June and indicating he could potentially meet Putin then. Cohen initially responded positively, but, according to Cohen, he became worried that Russian officials were not as interested in meeting with him as Sater had suggested. On June 14, 2016, Cohen met Sater in the lobby of the Trump Tower in New York to tell him that Cohen would not be traveling to Moscow at that time.

Trump and Ivanka had also been invited to attend the Forum by Russia’s deputy prime minister. Trump’s attendance at the Forum was also pursued by Robert Foresman, a New York-based investment banker-began who said he had been asked by Anton Kobyakov, a Russian presidential aide, to see if Trump could speak at the event. The Office found no evidence that the Campaign followed up with Foresman.

Discussions about a Trump trip to Moscow had also taken place in 2015, when Sater told Cohen he was arranging a trip with Evgeny Dvoskin, who had been indicted in the U.S. for stock fraud and was now an executive at a Russian bank under U.S. sanctions. That trip never happened.

After initially lying to Congress and the Office, Cohen admitted to investigators that he discussed the idea of traveling to Moscow twice with Trump, and both times Trump expressed interest; but scheduling conflicts seemed to preclude him from going. Cohen eventually pleaded guilty to making false statements about Trump Tower Moscow. The Office recommended to the judge that Cohen’s cooperation with the investigation be taken into account when he was sentenced.

Links and Contacts with Russia: George Papadopoulos (pp. 80-94,* 192-194)

George Papadopoulos was a foreign policy advisor to the Trump Campaign from March 2016 to early October 2016. While Papadopoulos kept the Campaign informed of his many interactions and exchanges about the Russian government’s outreach to him, he said he could not recall whether he told the Campaign about his most consequential conversation.

That conversation occurred in April 2016 in London, when a man named Joseph Mifsud, a professor who claimed to have high-level contacts within the Russian government, told Papadopoulos that he had learned during a recent trip to Moscow that the Russian government had obtained “dirt” on Hillary Clinton in the form of thousands of emails. Other Trump Campaign officials could not recall whether Papadopoulos had shared this information with them or stated, with varying degrees of certainty, that he had not. No documentary evidence was found to show he had shared this information with the Campaign.

However, Papadopoulos did share the details of this conversation with people outside of the Trump Campaign. He admitted to the FBI that he told the then-Greek foreign minister that Russia had obtained Clinton-related emails. A different foreign government told the FBI on July 26, 2016, that Papadopoulos had also suggested to one of its representatives that the Trump Campaign had received indications from the Russian government that it could help the Campaign by anonymously releasing “dirt” it had collected on Clinton. Based on this information, the FBI opened its investigation of potential coordination between Russia and the Trump Campaign a few days later.

When Papadopoulos was first questioned by the FBI in January 2017, he lied about his conversations with Mifsud and two other Russian contacts, concealing the timing, extent and nature of these exchanges. Most notably, he claimed that his conversations with Mifsud all happened before he joined the Trump Campaign.

In fact, Papadopoulos first met Mifsud in early March 2016, shortly after Papadopoulos joined the Trump Campaign as a foreign policy advisor. Mifsud was affiliated with the London Centre of International Law Practice, where Papadopoulos had taken a job in February 2016. While starting his new job in London, Papadopoulos reached out to the Trump Campaign, expressing an interest in joining.

After conducting minimal vetting, Sam Clovis, the Trump Campaign’s national co-chair and chief policy advisor, made Papadopoulos a foreign policy advisor. On March 21, Trump publicly named Papadopoulos a foreign policy advisor, describing him as an “excellent guy.”

At their first meeting, Mifsud, a Maltese national who maintained a number of Russian contacts in London, told Papadopoulos that he could help him with introductions to contacts within the Russian government. Mifsud’s contacts included someone who had been employed by the Internet Research Agency, which participated in the social media campaign to influence the 2016 election.

In London, Mifsud introduced Papadopoulos to Olga Polonskaya, whom Papadopoulos first understood to be Putin’s niece before learning that was inaccurate. When questioned about her, Papadopoulos lied to the FBI and said that he had met Polonskaya before joining the Trump Campaign.

After he met Polonskaya, Papadopoulos quickly emailed the Campaign’s foreign policy advisory team with the subject line: “Meeting with Russian leadership–including Putin.” Papadopoulos explained that the Russians were eager to set up a meeting, even between Putin and Trump, if there was interest.

Clovis responded to the email, counseling Papadopoulos to proceed with caution and not to make any commitments to his new Russian contacts. Clovis closed his email, “More thoughts later today. Great work.”

Papadopoulos flew to Washington, D.C., for a March 31 meeting of Trump’s foreign policy team. Sen. Jeff Sessions and Trump led the meeting. When it was Papadopoulos’ turn to speak, he discussed a potential meeting with Russian officials. Trump expressed interest in the idea of meeting Putin. Papadopoulos returned to London with the understanding that the Campaign was supportive of his efforts to arrange a meeting with the Russian government.

Papadopoulos met again with Mifsud in London on April 12, 2016. After that, Mifsud traveled to Moscow. There, he introduced Papadopoulos over email to Ivan Timofeev, a member of the Russian International Affairs Council. They spoke several times over Skype and email about setting up a meeting between the Campaign and Russian officials.

On April 26, 2016, the day after he returned from Moscow, Mifsud met with Papadopoulos. There, Mifsud told Papadopoulos that he had learned that the Russians had obtained “dirt” on Clinton.

Throughout this time and into the summer of 2016, Papadopoulos kept the Campaign apprised of his efforts to arrange a meeting between the Campaign and Russian government officials. Paul Manafort, a senior Campaign official at the time, forwarded one of these updates from Papadopoulos to another Campaign official with the note: “Let[’]s discuss. We need someone to communicate that [Trump] is not doing these trips. It should be someone low level in the Campaign so as not to send any signal.”

Papadopoulos’ Russian contacts also included exchanges on LinkedIn and in person with Sergei Millian. Millian, an American citizen and native of Belarus, introduced himself as the president of the “New York-based Russian American Chamber of Commerce” and claimed that he had “insider knowledge and direct access to the top hierarchy in Russian politics.” They met more than once in New York City that summer. In August 2016, Millian told Papadopoulos via Facebook message that he would share with him “a disruptive technology that might be instrumental in your political work for the Campaign.” Papadopoulos did not recall this happening. After the election, both men met to discuss business opportunities for Papadopoulos in Russia and arranged to meet in Washington, D.C., when they both attended Trump’s inauguration. Their contacts were not fully explored, however, because Millian remained out of the country for the duration of the Office’s investigation and refused to be interviewed.

Papadopoulos was eventually arrested for lying to the FBI and conducted several more interviews in the summer and fall of 2017. His lies harmed the investigation, such as by leaving investigators without accurate information when Mifsud lied to them multiple times during a February 2017 interview.

* Lengthy passages on these pages are redacted due to grand jury information.

Links and Contacts with Russia: Carter Page (pp. 95-102,* 166-167,* 183)

Carter Page worked on the Trump Campaign from January 2016 through September 2016, primarily as a foreign policy advisor. Before that, he had extensive experience living and working in Russia. After he moved back to the United States, Russian intelligence officials approached him and formed relationships with him in 2008 and again in 2013.

Russian intelligence took advantage of Page’s interest in business opportunities in Russia, noting in a recorded conversation in 2013 that “it’s obvious that he wants to earn lots of money.” Page met with a Russian intelligence official working under diplomatic cover multiple times in New York City. Page provided his thoughts, as well as documents, about the energy industry. The Russian intelligence officer with whom he met was later charged by the U.S. government with conspiracy to act as an unregistered agent of a foreign government. The criminal complaint included descriptions of his conversations with Page, who was described as “Male-1.” Page told the FBI that he knew the men were members of the Russian intelligence services but said the information he had provided them was immaterial.

After joining the Trump Campaign, Page worked on briefing memos and talking points on Russia and talked up his high-level Russian contacts. He proposed that Trump meet with Russian President Vladimir Putin and suggested that he would be able to set up such a meeting. He advocated pro-Russian foreign policy positions and, in July 2016, traveled to Russia, where he met with Russian government officials.

Planning for his trip began in April 2016, when he was invited to give a speech at the July 2016 commencement ceremony at the New Economic School in Moscow, an honor previously bestowed on President Barack Obama in 2009. Page suggested to the Campaign that Trump give the speech instead of him, but Corey Lewandowski, who was the Campaign manager at the time, disagreed and told Page that if he did travel to Russia it would be in his personal capacity, not as a representative of the Trump campaign.

As Page’s trip to Moscow approached, Russian Press Secretary Dmitry Peskov was asked in an email from a New York-based public relations consultant whether he wanted to introduce Page to any Russian government officials on Page’s Moscow trip. Peskov replied, “I have read about [Page]. Specialists say that he is far from being the main one. So I better not initiate a meeting in the Kremlin.”

During Page’s public speeches in Moscow, he criticized U.S. foreign policy toward Russia. Afterward, he shook hands and talked with Russian Deputy Prime Minister Arkady Dvorkovich, who attended the event. While in Moscow, Page also met with Andrey Baranov, the head of investor relations at Rosneft, a Russian energy company. Page said they discussed “immaterial non-public” information, as well as Page’s involvement in the Trump campaign, although he could not recall the details. He also discussed potential business opportunities with Tatneft, another Russian energy company.

While in Moscow, Page emailed several Campaign officials telling them about his conversations, including a “private” one he said that head conducted with Dvorkovich. Page told the Campaign that he had talked with Russian legislators as well as “senior members of the Presidential Administration.” But it remains unclear whether these descriptions of his meetings and conversations in Moscow were accurate.

After the trip to Moscow, Page started attracting a lot of press coverage in the United States, so much so that the Campaign tried to distance itself from him, downplaying his role. After it was reported that U.S. intelligence officials were investigating Page, the Trump Campaign formally removed him on September, 24, 2016. He later tried to get a job in the Trump administration, inflating his credentials and campaign experience. Trump’s Transition Team ignored his application.

In December 2016, Page traveled again to Moscow in an apparent attempt to secure business opportunities for himself. Although Page was traveling in his personal capacity, Konstantin Kilimnik, Paul Manafort’s longtime business associate who the FBI assesses to have ties to Russian intelligence, reported to Manafort in an email that, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DT on a range of issues of mutual interest, including Ukraine.” Dvorkovich met with Page again on this trip, and asked him if Page could help him connect with members of the Trump Transition Team.

In the end, the Office decided not to bring charges against Page because it did not find sufficient evidence to establish beyond a reasonable doubt that Page acted as an agent of the Russian government or that he coordinated with the Russian government in its efforts to interfere with the 2016 presidential election. However, the Foreign Intelligence Surveillance Court issued warrants on four separate occasions to conduct surveillance on Page based on a finding of probable cause that he was an agent of a foreign power. This is a different (and lower) standard than the one governing the Office’s decision on whether to bring criminal charges against him.

Links and Contacts with Russia: Trump Tower June 2016 Meeting (pp. 110-122*)

By Kate Brannen and Ryan Goodman

In early June 2016, Donald Trump Jr. responded enthusiastically to an offer to meet with a Russian attorney who could provide derogatory information about Hillary Clinton from the Russian government.

The offer came from Emin Agalarov, the son of Aras Agalarov, a Russian real-estate developer with whom the Trumps had done business before. Aras had ties to Putin as well as Russia’s Prosecutor General Yuri Chaika. Trump had paired up with the Agalarovs to work on the 2013 Miss Universe pageant in Moscow and had also previously pursued the development of a Trump Moscow real-estate project with them. Aras expressed interest in Trump’s campaign. In an email drafted by Goldstone to Trump Jr. on February 29, 2016, Aras passed on his “congratulations” for Trump’s winning in the primary and an “offer” of his “support and that of many of his important Russian friends and colleagues[,] especially with reference to U.S./Russian relations.”

On June 3, 2016, Emin Agalarov called Robert Goldstone, his publicist who had served as an intermediary between the Agalarovs and the Trumps when they had worked together in the past. During the call, Emin conveyed to Goldstone that the attorney was a prosecutor and that the information that could interest the Trumps concerned Clinton. The lawyer was Natalia Veselnitskaya, who maintained a relationship with the government throughout this period. She had previously worked as a prosecutor for the Russian government and, more recently, lobbied against the U.S. Magnitsky Act, which imposed sanctions and travel restrictions on Russian officials suspected of human rights abuses. In December 2018, she was indicted for allegedly lying to a federal district court in separate litigation about her relationship to the Russian Prosecutor General’s Office.

After the phone call with Emin, Goldstone emailed Trump Jr., telling him that Emin had just called him and had asked him to contact Trump Jr. about “something very interesting.” The email went on to say:

The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin.

Goldstone asked what would be the best way to handle this and whether he should also share it with candidate-Trump, noting that it was “ultra sensitive so wanted to send to you first.” Within minutes, Trump Jr. emailed back, saying he should speak to Emin about it first, and ended his message saying, “If it’s what you say I love it especially later in the summer.”

It took a few days before Trump Jr. and Emin Agalarov finally spoke on the phone, but phone records show they had multiple brief calls on June 6 and June 7. On June 6, Aras Agalarov called Ike Kaveladze, who had represented his company before in its dealings with the Trumps, and asked him to attend a meeting in New York with the Trump Organization. Kaveladze, who attended the June 9 meeting in Trump Tower, told the Office that Aras had told him the purpose of the meeting was to discuss the Magnitsky Act. When Kaveladze later learned that senior Trump Campaign officials would attend the meeting, he checked in with one of Emin’s assistants who said the purpose of the meeting was to convey “negative information on Hillary Clinton.”

On the day of the June 9 Trump Tower meeting, Veselnitskaya invited Rinat Akhmetshin, a Soviet-born U.S. lobbyist who had previously worked on issues related to the Magnitsky Act, to lunch, along with Anatoli Samochornov, a Russian-born translator who had worked with Veselnitskaya before. After lunch, the group went to Trump Tower for the meeting with the senior members of the Trump Campaign.

Conduct of the meeting

According to witnesses, eight people attended the meeting: Trump Jr., Manafort, Kushner, Kaveladze, Samochornov, Akhmetshin, Goldstone, and Veselnitskaya. The Office spoke to everyone by Trump Jr. and Veselnitskaya, who declined to be interviewed voluntarily.

At the meeting, which lasted about 20 minutes, Veselnitskaya discussed how certain Americans doing business in Russia — including the Ziff brothers — had broken the laws there and had then donated their profits to the Democratic National Committee or the Clinton Campaign. Trump Jr. asked follow-up questions about how any of this could be tied directly to the Clinton Campaign, to which Veselnitskaya gave an unsatisfying answer.

Akhmetshin then spoke about the Magnitsky Act and how Russia had prohibited the U.S. adoption of Russian children in response to its passage. Trump Jr. said that his father was still a private citizen but that the issue could be revisited if and when he became president. Kushner grew aggravated during the course of the conversation, sending a text to Manafort describing the experience as a “waste of time.” He then left before the meeting was over.

In press interviews and congressional testimony, Veselnitskaya told a very different story than the other people who attended the meeting, seemingly misrepresenting what she discussed during the meeting and how she had introduced herself.

After the meeting, Goldstone apologized to Trump Jr. With Veselnitskaya next to him, Kaveladze first told Aras that the meeting had gone well, but later told Aras that the meeting was a waste of time. Kaveladze also told his teenage daughter in an email that the “meeting was boring. The Russians did not have any bad info on Hilary[sic].”

In his congressional testimony, Trump Jr. said he thought he should listen to what Goldstone and his colleagues had to offer, and depending on what if any information was provided at the meeting he could then “consult with counsel to make an informed decision as to whether to give it any further consideration.”

Awareness of the meeting within the Campaign

Senior members of the Campaign discussed the meeting before it occurred. On June 8, 2016, Trump Jr. forwarded the entirety of his correspondence with Goldstone to Manafort and Kushner under the subject line, “FW: Russia – Clinton – private and confidential,” adding a note that the “[m]eeting got moved to 4 tomorrow at my offices.” Kushner corresponded with his assistant about the meeting beforehand, and Manafort acknowledged receipt of Trump Jr.’s email in writing.

Rick Gates, who was the deputy campaign manager, told the Office that in the days before June 9 Trump Jr. announced at a meeting of senior campaign staff that he had a lead on negative information about the Clinton Foundation. Gates believed Trump Jr. said the information was from a group in Kyrgyzstan that he was introduced to by a friend. According to Gates, Manafort warned the group that the meeting would likely not yield vital information and they should be careful.

Michael Cohen recalled that on June 6 or 7 Trump Jr. may have told candidate Trump about an upcoming meeting to receive adverse information about Clinton, though Cohen did not recall Trump Jr. stating that the meeting was connected to Russia. In testimony, Trump Jr. said he did not inform his father about the meeting beforehand. President Trump told the Office that he has “no recollection of learning at the time” of the meeting, and the Office found no documentary evidence showing that he was made are of the meeting beforehand.

Post-June 9 events

After the election, Veselnitskaya and Aras made additional efforts to follow up on the meeting in reference to the Magnitsky Act, but the investigation did not identify evidence that the Trump Transition Team responded.

In June 9, 2017, attorneys representing the Trump Organization started contacting participants of the June 9, 2016 meeting. In an email sent to Emin on June 27, 2017, Goldstone said he was “interviewed” by Trump attorneys about the June 9 meeting who were “concerned because it links Don Jr. to officials from Russia–which he has always denied meeting.”

The June 9 meeting became public in July 2017. On July 10, 2017, Alan Futerfas, outside counsel for the Trump Organization and, subsequently, personal counsel for Trump Jr., sent Goldstone a proposed statement for Goldstone to issue. The proposed statement read: “I can definitively state that the statements I have read by Donald Trump Jr. are 100% accurate. … Ms. Veselnitskaya mostly talked about the Magnitsky Act and Russian adoption laws.” In response, Goldstone proposed a different statement which asserted that he had been asked “by [his] client in Moscow – Emin Agalarov – to facilitate a meeting between a Russian attorney (Natalia Veselnitzkaya [sic]) and Donald Trump Jr. The lawyer had apparently stated that she had some information regarding funding to the DNC from Russia.” Goldstone never released either statement.

An organization controlled by Veselnitskaya offered to pay $90,000 of Samochornov’s fees, an offer that Samochornov understood was conditioned on his making statements consistent with Veselnitskaya. He declined the offer, telling the Office he did not want to perjure himself.

See also Volume 1.14: Charging Decisions: Accepting Information from Foreign Officials  and Volume 2.9: Incident Six: Efforts to Prevent Disclosure of Emails about the June 9, 2016 Trump Tower Meeting with Russians

Volume 1.10

Links and Contacts with Russia: Paul Manafort (pp. 129-140,* 182-183)

By Rita Siemion

Paul Manafort joined the Trump Campaign in late March 2016, initially as the Campaign’s convention manager, believing that a relationship with the Campaign would be financially beneficial to him if Trump won the presidency. On May 19, 2016, he was promoted to campaign chairman and chief strategist. Manafort continued in that role until he resigned from the Campaign in mid-August 2016 amid negative media reports about his political consulting work for a pro-Russian political party in Ukraine.

Manafort’s Russian contacts during and after the campaign stem from his prior consulting for a Russian oligarch named Oleg Deripaska from 2005 to 2009, and his political consulting work from 2005 to 2015 for a pro-Russian political party in Ukraine.

In 2005, Manafort began working for Deripaska, who oversaw a global empire of aluminum and power companies and maintained close ties to Vladimir Putin. Manafort’s company earned tens of millions of dollars from its work for Deripaska, which included installing friendly political officials in countries where Deripaska had business interests and briefing the Kremlin about the benefits the work could confer on “the Putin government.” Manafort’s company was also loaned millions of dollars by Deripaska. In 2007, Deripaska invested in a fund created by Manafort to pursue investments in Eastern Europe. When the fund failed, a litigation dispute between Manafort and Deripaska soured their business relationship.

Deripaska had previously introduced Manafort to a Ukrainian oligarch who hired him as a political consultant, including for work supporting the Party of Regions, a political party in Ukraine aligned with Russia. Manafort became a trusted advisor to Viktor Yanukovych, the Party of Regions candidate who became President of Ukraine in 2010 and remained in power until 2014, when he fled to Russia amidst political unrest.

Manafort stayed in touch with these Russian and Ukrainian contacts during the campaign period through a Russian national named Konstantin Kilimnik, a longtime Manafort employee with ties to Russian intelligence. Manafort instructed Rick Gates, his deputy on the Campaign and a longtime employee, to provide Kilimnik with regular updates on the status of the Trump Campaign, including internal polling data, details of Manafort’s role in the Campaign, and the prospects for a Trump victory. Manafort expected Kilimnik to share the information provided by Gates with other oligarchs in Ukraine as well as with Deripaska. Manafort also offered to provide private briefings to Deripaska.

Manafort also met in person with Kilimnik twice during the campaign period. The first meeting took place in New York on May 7, 2016, during which Manafort provided Kilimnik with information on the Trump Campaign and discussed the political situation in Ukraine. The second meeting took place in New York on August 2, 2016. Kilimnik requested the meeting to deliver a message from Yanukovych, who was then living in Russia. The message was about a plan to resolve the political problems in Ukraine by creating a republic in eastern Ukraine with Yanukovych as its leader. Manafort acknowledged the plan as a “backdoor” for Russian control and that U.S. support was required for the plan to succeed.

During this August 2 meeting, Manafort also briefed Kilimnik on the state of the Trump Campaign and the plan to win the election, including discussion of the Campaign’s messaging, internal polling data, and battleground states Michigan, Wisconsin, Pennsylvania, and Minnesota. They also discussed Manafort’s litigation and soured business relationship with Deripaska and how Manafort might be able to obtain payment for his political consulting work in Ukraine that remained unpaid.

The investigation did not uncover evidence of Manafort’s passing along information about the Ukrainian peace plan to Donald Trump or anyone else in the Campaign or later in the administration. But the Office did not have access to all of Manafort’s electronic communication and Manafort repeatedly lied to the Office and the grand jury about the Ukrainian plan and his meetings with Kilimnik.

While the Office also could not determine with certainty Manafort’s purpose in sharing internal polling data with Kilimnik, Manafort told Gates that his role in the Campaign would be “good for business” and potentially a way to be made whole for his political consulting work in Ukraine. Manafort also claimed that by sharing campaign information, Deripaska might end the litigation and repair their soured business relationship. Because of questions about Manafort’ s credibility and the Office’s limited ability to gather evidence on what happened to the polling data after it was sent to Kilimnik, the Office could not assess what Kilimnik, or those he shared it with, did with the internal Campaign information. The Office also did not identify evidence of a connection between Manafort’s sharing of polling data and Russia’s interference in the election, which had already been reported by U.S. media outlets at the time of the August 2 meeting. The investigation did not establish that Manafort otherwise coordinated with the Russian government on its election-interference efforts.

Accordingly, while the investigation uncovered extensive evidence that Manafort’s pre-campaign work for the Ukrainian government violated the Foreign Agent’s Registration Act (FARA), the investigation did not yield evidence that was likely to be enough for proving beyond a reasonable doubt that Manafort, or any other Campaign officials, acted as an agent of the Russian government or at its direction, control or request, during the relevant period.

* Some passages on these pages are redacted due to grand jury information.

Volume 1.11

Links and Contacts with Russia: Michael Flynn (pp. 160-61, 167-173, 194-195, with additional information in Vol. 2, pp. 24-26)

By Barbara McQuade

Incoming National Security Advisor Michael Flynn dealt with Russia on two sensitive matters during the transition: a United Nations Security Council vote and the Russian government’s reaction to the imposition of U.S. sanctions for interfering in the 2016 election.

In late November, Flynn and Jared Kushner met with the Russian Ambassador Sergey Kislyak in Trump Tower, on the request of the Ambassador. Their discussion included U.S. policy toward Syria, and Kislyak proposed having Russian generals brief Transition Team members on a secure communications line. Kushner said the Transition Team offices did not have a secure line and proposed using secure facilities at the Russian Embassy. The Ambassador immediately rejected the proposal.

First, on December 21, 2016, Egypt submitted a resolution to the U.N. Security Council requiring Israel to cease settlement activities in Palestinian territory. The media speculated that the Obama Administration would not oppose the resolution.

According to Flynn, the Transition Team wanted to support Israel by opposing the resolution. On December 22, Trump and Transition Team members contacted foreign officials to determine their views and rally opposition. Jared Kushner led the effort, and Flynn was responsible for Russia. After a phone call with Kushner, Flynn called Kislyak. According to Flynn, he requested that Russia vote against or delay the resolution. Later that day, Trump spoke with Egyptian President Abdel Fattah al-Sisi, and Egypt postponed the vote.

On December 23, the resolution was resubmitted. Kislyak informed Flynn that Russia would not vote against the resolution. The resolution passed 14-0, with the United States abstaining.

Second, on December 28, President Obama imposed sanctions on nine Russian individuals and entities, expelled 35 Russian officials, and closed two Russian compounds in the United States. Trump and the Transition Team feared that the sanctions would harm the United States’ relationship with Russia. Trump, K.T. McFarland, Steve Bannon, Reince Priebus, and other Transition officials were staying at the Mar-a-Lago club in Palm Beach, Florida. Flynn was vacationing in the Dominican Republic, but was in daily contact with McFarland, his incoming deputy.

On December 29, McFarland exchanged emails with Transition Team members about the sanctions. McFarland believed she told Bannon and Priebus that Flynn was scheduled to talk to Kislyak that night. Flynn said he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago. He spoke with Transition Team member Michael Ledeen and McFarland for 20 minutes each regarding what to communicate to Kislyak.

McFarland sent an email to Transition Team members about the sanctions and informed them that “Gen [F]lynn is talking to russian ambassador this evening.” About an hour after sending the email, McFarland briefed Trump, Bannon, Priebus, Sean Spicer, and others on the sanctions and possible Russian responses. Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election (according to the FBI Interview with McFarland). McFarland said yes, and Trump expressed doubt that it was the Russians. Trump opined that the sanctions provided him with leverage over the Russians. Priebus recalled that McFarland may have mentioned that the sanctions situation could be “cooled down” and not escalated. McFarland recalled that someone may have told Trump at the end of the meeting that Flynn was speaking to the Russian ambassador that evening. Priebus thought it was possible that McFarland mentioned Flynn’s scheduled call at the meeting, but he was not certain.

Flynn called Kislyak and asked that Russia not escalate the situation, not get into a “tit for tat,” and respond to the sanctions in only a reciprocal manner. The investigation did not identify evidence that Trump asked Flynn to make any request to Kislyak.

Flynn reported to McFarland by phone on his call with Kislyak, stating that Russia would not retaliate because they wanted a good relationship with the incoming Administration. McFarland gave Flynn a summary of her briefing with Trump.

The next day, Putin released a statement that Russia would not retaliate. Trump tweeted, “Great move on delay (by V. Putin).” Flynn then sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. Flynn told the Office that he omitted from his message the topic of sanctions because it could be perceived as interfering with the Obama administration’s foreign policy.

On December 31, Kislyak called Flynn and told him the request had been received at the highest levels and that Russia would not retaliate. Flynn later told McFarland that he believed his phone call had made a difference. Flynn recalled discussing the sanctions with Bannon on New Year’s Day and that Bannon appeared to know about Flynn’s conversation with Kislyak. Bannon recalled meeting with Flynn that day, but told investigators that he did not remember discussing sanctions with Flynn. Two days later, Flynn met with Trump and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling Trump about the substance of his calls with Kislyak.

The FBI interviewed Flynn on January 24, 2017, four days after he became national security advisor. During the interview, Flynn made two false statements. First, Flynn said he did not ask Kislyak to refrain from escalating the situation in response to sanctions. Second, Flynn stated that did not ask any countries to take any particular action on the U.N. resolution.

Flynn made these false statements when the FBI had an open investigation into Russian election interference, including the nature of any links between the Trump Campaign and Russia. Flynn’s false statements and omissions impeded and otherwise had a material impact on that ongoing investigation. They also came shortly before Flynn made submissions to the Department of Justice, pursuant to the Foreign Agent Registration Act (FARA), that also contained materially false statements and omissions.

The Special Counsel charged Flynn with making false statements to the FBI. On December 1, 2017, Flynn pleaded guilty. He awaits sentencing.

The investigation also produced evidence of violations of FARA by Flynn. Those potential violations concerned Turkey, not Russia, and were resolved when Flynn admitted to the facts in the Statement of Offense that accompanied his guilty plea.

The investigation did not yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or subject to the direction or control of the government of Russia, under 18 U.S.C. § 951. As a result, the Special Counsel did not charge any other Trump Campaign official with violating FARA or Section 951, or attempting or conspiring to do so, based on contacts with the Russian government or a Russian principal.

Volume 1.12

Links and Contacts with Russia, Additional Individuals (pp. 103-110, 123-126, 127-129, 144-166,* 197-198)

Several contacts between individuals associated with the Trump Campaign and Russia occurred during the week of Republican National Convention, after the Convention, and during the post-election and transition period. During and after the Convention, these contacts occurred with Russian Ambassador Sergey Kislyak or the Russian Embassy.

Immediately after the 2016 election, Russian government officials, as well as Russian businessmen with ties to the Russian government, began making outreach to the Campaign and transition team through multiple channels. These businessmen included Petr Aven and Kirill Dmitriev, two members of Russian President Vladimir Putin’s inner circles of wealthy “oligarchs” who meet on a quarterly basis with Putin. Aven advised the Office that in the quarterly meeting immediately following the 2016 election, Putin was concerned about additional U.S. sanctions against Russia and that Aven took Putin’s words to mean that he was expected to reach out to the incoming Trump administration to establish communication channels. Aven’s understanding of his directive was consistent with the Office’s observations of Dmitriev, who referred to Putin as his “boss” and also undertook outreach to the new administration.

The Report lists the following contacts between the Russian Embassy or Russian businessmen with close ties to Putin, and with the following individuals:

J.D. Gordon : Gordon was a senior campaign advisor on policy and national security. Gordon met Kislyak at a conference during the week of the Convention (July 18-21, 2016), in which Gordon and Sessions delivered speeches, and spoke with Kislyak briefly after the speeches and at the reception. Gordon was responsible for diluting a proposed amendment to the Republican Party platform from providing “lethal” assistance to Ukraine to providing only “appropriate” assistance. Following the Convention, Kislyak invited Gordon to breakfast at his residence, which Gordon declined. The Office determined that Gordon’s contacts with Kislyak were brief and non-substantive, and also did not establish that Gordon either spoke to or was directed by Trump himself to make the policy change.

Jeff Sessions : Then-Senator Sessions, a Trump Campaign surrogate, also attended and delivered a speech at the same conference as Gordon. Following his speech, Sessions spoke with Kislyak as well as other ambassadors at the conference. He advised the Office that he spoke only for a few minutes and did not recall the substance of the conversation. In September 2016, Sessions met with Kislyak in his Senate office, at the ambassador’s request, and in the presence of two Senate aides. The meeting lasted for 30 minutes. Kislyak made additional attempts to arrange meetings with Sessions, which Sessions declined.

The Office considered whether Sessions committed perjury or made false statements to Congress based on his confirmation testimony and subsequent written statements denying contacts with Russia. The Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and declined to charge him with these offenses. The Office also concluded that there was no evidence that Kislyak conversed with Sessions at an event at the Mayflower Hotel where they were mutually present or at later events hosted by the Center for the National Interest.

Jared Kushner : Kushner was a senior campaign and transition advisor. Immediately following the election, Kislyak reached out to Kushner to request a meeting, which Kushner took at Trump Tower on November 30, 2016. The meeting was attended by Michael Flynn and lasted approximately 30 minutes. Kushner asked Kislyak for a person with direct contact with Putin to direct future communications, and also asked Kislyak if they could use the secure communications channel at the Russian Embassy to communicate.

Kushner declined a second meeting with Kislyak, but through Kislyak met Sergey Gorkov, a Russian businessman with direct ties to Putin. Gorkov is the owner of the Russian-owned bank Vnesheconombank (VEB), which is under U.S. Treasury sanctions. Kushner, who had ongoing business interests, including an upcoming debt obligation, claimed that the discussion involved diplomatic issues, but VEB claimed it involved business – the investigation did not resolve the conflict in these accounts. Gorkov had previously advised a bank colleague that he would be “reporting back to Putin” after the meeting. Gorkov followed up with Kushner to advise him that “the information about the meeting had a very positive response!”

Hope Hicks : Hicks was the Trump Campaign press secretary. Hicks received a call at 3 a.m. on election night purporting to be on behalf of Putin. She requested an email to confirm that it was the Kremlin making the request. Hicks received an email the following morning from an official at the Russian Embassy, with a message from Putin to President-elect Trump. After checking with Kushner, Hicks conveyed the email to transition officials. A formal call between Trump and Putin occurred five days later.

Erik Prince : Prince was a Campaign supporter and frequently visited transition offices at Trump Tower after the election. After receiving a message on election night from an unnamed individual who wrote, “Putin has won,” Dmitriev requested a meeting with transition officials through an intermediary. The intermediary was George Nader, a senior advisor to Crown Prince Mohammed bin Zayed of the United Arab Emirates (UAE). Nader arranged a meeting between Dmitriev and Prince to take place in the Seychelles, and assured Dmitriev that Prince “wielded influence” with the incoming administration. The meeting took place in January 2017 and at it, they discussed cooperation and conflict resolution and Russian involvement in Libya. Prince and Dmitriev had a second meeting, after which, according to Prince, he debriefed campaign strategist Steve Bannon. Bannon advised the Office that he and Prince never discussed Dmitriev. The Office was unable to resolve the conflict between these accounts because communications between Prince and Bannon during this time period had not been preserved.

Rick Gerson : Gerson is a hedge fund manager and friend of Kushner who had no formal role in the Trump transition, but helped arrange meetings between transition members and foreign officials like former British Prime Minister Tony Blair and bin Zayed. Gerson met Dmitriev through a U.A.E. national security advisor, initially to discuss a joint business venture. Dmitriev also presented Gerson with a reconciliation plan between the U.S. and Russia and asked Gerson to share it with Kushner, which he did. Dmitriev solicited feedback from Gerson on the proposal on behalf of “his boss” and followed up with Gerson after Trump’s post-election call with Putin to acknowledge that the plan played a role in the success of that call. Gerson did not have further contact with Dmitriev after their business deal stalled in March 2017.

Dmitri Simes : Simes is the CEO of the Center for the National Interest (CNI), a think tank in Washington, D.C., with expertise on the Russian government. Simes advised the Trump Campaign, through Kushner, on how to respond to the Clinton Campaign’s attacks on Trump regarding Russia-related matters. Following the election, Aven attempted to establish contact with the Trump transition team through Richard Burt, a former U.S. ambassador who worked at Alfa-Bank, which Aven owned. Burt attempted to arrange a meeting between Aven and the Trump transition team through Simes, but Simes discouraged such a meeting in light of the attention on Russian election hacking in the press and in Congress. Aven continued to receive pressure from Putin to make contact with the Trump administration.

* Lengthy passages on these pages are redacted due to grand jury information and revelation of investigative techniques.

Volume 1.13

Charging Decisions: The Foreign Agent Registration Act ( pp. 181-183)

Other than the pre-existing charges involving Paul Manafort, Robert Gates, and Michael Flynn, there was insufficient evidence to charge other Trump Campaign associates for working on behalf of or conspiring to work on behalf of Russia.

Two federal statutes regulate work conducted by people in the United States on behalf of a foreign government. One statute – 18 U.S.C. 951 – generally requires advance notice to the Attorney General for those working under the direction or control of a foreign government.

The other statute—known as the Foreign Agent Registration Act, 22 U.S.C. 611 et seq. – is aimed at those engaged in political and economic activities, such as lobbying or promotion of foreign propaganda and foreign economic interests. It thus applies the Attorney General-notification requirement to anyone who engages in specified activities, including raising or distributing money or other things of value, acting as a political consultant, or engaging in political activities on behalf of a foreign principle. The definition of foreign principle includes foreign governments, foreign political parties, and other foreign entities—a wider array of foreign actors than that covered by 18 U.S.C 951.

Manafort and Gates were charged with violations of the Foreign Agent Registration Act for their failure to disclose their pre-campaign work as agents of the government of Ukraine. They pleaded guilty to those charges. Flynn also was separately accused of violating the Foreign Agent Registration Act based on activities conducted on behalf of Turkey; Flynn admitted to the underlying facts as part of his December 2017 guilty plea for making false statements.

The Special Counsel did not, however, find sufficient evidence to charge any Trump Campaign officials as working under the direction or control of Russia or any of its officials. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials acted as agents of the Russian government during the relevant time period.

The Special Counsel separately investigated whether Papadopoulos acted as an unregistered agent or under the direction of control of Israel. While finding significant ties between Papadopoulos and Israel, the Office concluded that there was not enough to sustain a criminal charge beyond a reasonable doubt.

Volume 1.14

Charging Decisions: Accepting Information from Foreign Officials (campaign finance law) (pp. 183-190*)

By Paul Seamus Ryan

The Office’s investigation examined efforts or offers by foreign nationals to provide negative information about presidential candidate Hillary Clinton to the Trump Campaign or to distribute that information to the public. The Office considered whether two of those efforts in particular—a June 9, 2016, meeting at Trump Tower in New York and an effort related to an ongoing DOJ matter that is consequently redacted from the Report—constituted prosecutable violations of campaign-finance laws. The Office determined that the evidence was insufficient to charge either incident as a criminal violation.

The U.S. government has a compelling interest in limiting foreign national participation in, or influence over, the U.S. political process. Federal law prohibits foreign nationals from making contributions in U.S. elections, and prohibits anyone from soliciting, accepting, or receiving such contributions.

“Contribution” is defined in law to include any gift of money or anything of value for the purpose of influencing an election. The term “expenditure” is defined to include any purchase or payment for the purpose of influencing an election. And “foreign national” is defined to include foreign governments and individuals who are not citizens or legal permanent residents of the U.S.

To establish a criminal campaign-finance violation, the government must prove beyond a reasonable doubt that the defendant acted “knowingly and willfully”— i.e., that the defendant knew generally that his conduct was unlawful. A criminal violation of the foreign national contribution prohibition requires proof of an aggregate value of $2,000 or more.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 2016 Trump Tower meeting. On June 3, 2016, Robert Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov an “offer” from Russia’s “Crown prosecutor” to “the Trump campaign” of “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.’s] father.” The email described this as “very high level and sensitive information” that is “part of Russia and its government’s support to Mr. Trump-helped along by Aras and Emin.” Trump Jr. responded: “if it’s what you say I love it especially later in the summer.” Through follow-up conversations, Trump Jr. and Emin Agalarov scheduled a meeting with Russian representatives that was attended by Trump Jr., Paul Manafort, and Jared Kushner.

These email communications and the meeting that followed could implicate the federal law ban on foreign national contributions to U.S. candidates. Trump Jr. received an offer purportedly from a Russian government official to provide “official documents and information” to the Trump Campaign for the purposes of influencing the presidential election. Trump Jr. appeared to have accepted that offer and to have arranged a meeting to receive those materials. The email chain also suggests that Kushner and Manafort were aware of that purpose and attended the meeting anticipating receipt of information helpful to the Campaign from Russian sources.

The Office considered whether this evidence would establish any of several possible crimes: a conspiracy to violate the foreign contribution ban, the illegal solicitation of a foreign contribution, or the acceptance of a promise to make a foreign-source contribution.

There are reasonable arguments that the offered information would constitute a “thing of value”— i.e. , a “contribution” under the law. Federal Election Commission regulations recognize the value to a campaign of at least some forms of information including, for example, membership lists, mailing lists and polling data, even when the value of these materials may be nominal or difficult to ascertain. Candidate-related opposition research given to a campaign could constitute a “contribution” under the law. Political campaigns frequently conduct and pay for opposition research. However, no court decision has treated the provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign finance law and such an interpretation could raise First Amendment questions.

Even assuming that the promised information constituted a “thing of value” subject to the foreign national contribution ban, the Office determined that the government would not be likely to obtain a conviction for two other reasons. First, the Office lacked evidence likely to prove beyond a reasonable doubt that these individuals acted with knowledge that their conduct was illegal. Second, the government would have difficulty proving that the value of the promised information exceeded the $2,000 threshold for a criminal violation and/or the $25,000 threshold for felony punishment. Evidence of the value of the offered information would likely be unavailable, especially given that the offered information apparently was not produced.

Taking into account the need to establish that the meeting participants knew their activities were illegal, combined with the difficulty in establishing the monetary value of the offered information, the Office decided not to pursue criminal campaign-finance charges for the events culminating in the June 9, 2016, Trump Tower meeting.

The Office’s analysis of an effort by foreign nationals to distribute information harmful to Clinton to the public is redacted from the Report because it relates to an ongoing DOJ matter. However, the Office determined that the evidence was not sufficient to charge either incident as a criminal violation.

Volume 1.15

Charging Decisions: False Statements and Obstruction of the Investigation (pp. 191-196)

The Special Counsel determined that individuals associated with the Trump Campaign lied to investigators about contacts with Russia and took other actions to interfere with

the investigation. The Special Counsel charged George Papadopoulos, Michael Flynn, and Michael Cohen with false statements.

George Papadopoulos

Under federal law (18 U.S.C. § 1001(a)(2)) it is a crime to knowingly and willfully “make[] any materially false, fictitious, or fraudulent statement or representation” “in any matter within the jurisdiction of the executive … branch of the Government,” such as an FBI investigation. The statute also applies to an investigation conducted by a congressional committee.

In January 2017, investigators interviewed Papadopoulos. He lied about the timing, extent, and nature of his communications with Joseph Mifsud, a Maltese national who was a professor in London. Papadopoulos acknowledged that Mifsud told him the Russians had “dirt” on Clinton in the form of “thousands of emails,” but Papadopoulos stated that those communications occurred before he joined the Campaign. He told investigators that it was a “very strange coincidence” to be informed of the dirt on Clinton before he started working for the Campaign. In fact, these communications occurred in April 2016, more than a month after Papadopoulos had joined the Campaign. Mifsud showed interest in Papadopoulos only after learning of his role on the Campaign.

Papadopoulos also lied to minimize the extent and importance of his communications with Mifsud. In fact, Papadopoulos engaged in extensive communications over months with Mifsud about foreign policy issues, including efforts to arrange a “history making” meeting between the Trump Campaign and Russian officials.

In addition, Papadopoulos failed to inform investigators that Mifsud had introduced him to Ivan Timofeev, a member of the Russian International Affairs Council, despite being asked if he had met with Russian nationals or “[a]nyone with a Russian accent” during the campaign.

Papadopoulos also falsely claimed that he had met Olga Polonskaya before he joined the Campaign, and told the FBI that he had no relationship with her. In truth, Mifsud introduced Polonskaya to Papadopoulos as a student with connections to Russian President Vladimir Putin on March 24, 2016, after he had joined the Campaign. During the campaign, Papadopoulos emailed and spoke with her over Skype numerous times about a foreign policy trip to Russia.

Papadopoulos’s false statements hindered investigators when Mifsud was interviewed in a Washington, D.C., hotel on February 10, 2017. Mifsud denied having advance notice of the Clinton emails, falsely denied seeing Papadopoulos since introducing him to Polonskaya, and omitted that he had drafted a message that Polonskaya sent to Papadopoulos. Papadopoulos’s lies prevented investigators from challenging Mifsud’s inaccurate statements.

As a result, the Special Counsel charged Papadopoulos with false statements. On October 7, 2017, Papadopoulos pleaded guilty. He was sentenced to 14 days’ imprisonment, a $9,500 fine, and 200 hours of community service.

Michael Flynn

The FBI interviewed Michael Flynn on January 24, 2017, four days after he had become national security advisor. Flynn made false statements regarding his communications with Russian ambassador Sergey Kislyak.

Flynn told agents that he did not ask Kislyak to refrain from retaliating against the United States for imposing sanctions against Russia. In fact, on December 29, 2016, Flynn called Kislyak to request Russian restraint. Flynn also made false statements regarding a resolution of the United Nations Security Council. Flynn stated that he did not request that any country take any particular action on the resolution. In truth, on December 22, 2016, Flynn called Kislyak and requested that Russia vote against or delay the resolution.

Flynn’s false statements impeded the investigation. The Special Counsel charged Flynn with making false statements. On December 1, 2017, Flynn pleaded guilty and also admitted to making false statements to the Department of Justice in his filing under the Foreign Agent Registration Act.

Michael Cohen

Michael Cohen was the executive vice president and special counsel to the Trump

Organization. Between fall 2015 and June 2016, Cohen sought to build a development known as Trump Tower Moscow. In 2017, Cohen testified before the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI), which were investigating Russian interference in the 2016 presidential election and possible links between Russia and the presidential campaigns. Before testifying, Cohen sent a statement to both committees.

The statement contained three false representations. First, Cohen stated that the Trump Tower Moscow project had ended in January 2016 and that he had briefed Trump on the project only three times. In fact, consideration of the project had extended through at least June 2016 and included more than three briefings to Trump. Second, Cohen represented that he never agreed to travel to Russia for the project and never considered asking Trump to travel for the project. In truth, Cohen had discussed travel to Russia for the project and he had inquired about Trump traveling there. Third, Cohen stated that he did not recall any response to an email he had sent to a Russian government spokesman Dmitry Peskov. In fact, Cohen recalled that he had received a reply and had a follow-up phone conversation with an English-speaking assistant to Peskov in January 2016.

Cohen knew these statements were false, and admitted making them to minimize links to Trump and to give the false impression that the project had ended before the first Republican primary votes, in hopes of limiting the Russia investigations.

The Special Counsel charged Cohen with false statements. On November 29, 2018, Cohen pleaded guilty. The case was transferred to the district judge assigned to Cohen’s case in the Southern District of New York. On December 12, 2018, the judge sentenced Cohen to two months’ imprisonment on the false-statements count, to run concurrently with a 36-month sentence imposed on the other counts.

Setting the Stage: Investigation of a Sitting President and Overarching Factual Issues (pp. 1-2, 12-15, C1-C2, 158)

By Ryan Goodman

Decision point: Whether could indict a sitting President

Because this case involves a sitting President, the Office did not make a traditional prosecution or declination decision, which would involve a binary choice — to initiate or decline a prosecution. In 2000, the Justice Department’s Office of Legal Counsel (OLC) issued an opinion finding that indictment of a sitting President would undermine the Executive Branch’s capacity to govern in violation of “the constitutional separation of powers.” Because the Special Counsel is an attorney in the Department of Justice, the Office accepted the OLC’s legal conclusion.

Apart from the OLC’s constitutional view, the Office recognized that a federal accusation that the President engaged in criminal wrongdoing would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct (footnote cites to Impeachment Clauses of the Constitution and OLC’s discussion of relationships between impeachment and criminal investigation of a sitting President).

The OLC opinion, however, concludes that it is permissible to conduct a criminal investigation during a President’s time in office and to indict a President after he leaves office. If individuals other than the President committed obstruction crimes, they may be prosecuted at the present time. Given those considerations and the facts known to the Special Counsel’s Office, the Office decided to conduct a thorough factual investigation to preserve the evidence when memories were fresh and documentary materials were available.

Decision point: Whether to make a prosecutorial judgement of criminal wrongdoing in internal report

Principles of fairness counseled against even a prosecutorial judgment that crimes were committed in an internal Justice Department report. As the OLC reasoned when excluding the option of a sealed indictment, it would be very difficult to preserve the secrecy of such an action against a sitting President. The results of public disclosure of a prosecutorial judgment would, once again, undermine the President’s ability to govern. Although an internal report would not represent a formal public accusation akin to an indictment, the absence of a neutral adjudicatory forum to review the prosecutor’s findings counseled against potentially determining that the President’s conduct constituted a federal offense.

Finally, if the Office had confidence that the President clearly did not commit obstruction of justice, the Office would so state. Based on the facts and the applicable legal standards, however, the Office is unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Decision point: Whether to subpoena the President’s testimony

Beginning in December 2017, the Office sought a voluntary in-person interview with President Trump on topics relevant to both Russian election interference and obstruction. The Office told the President’s counsel that “[a]n interview with the President is vital to our investigation,” that the Office “carefully considered the constitutional and other arguments raised by … counsel, and they d[id] not provide us with reason to forgo seeking an interview,” and that the Office was offering “numerous accommodations to aid the President’s preparation and avoid surprise.”

After more than a year of discussion, the President declined an in-person interview. The President agreed to provide written answers to questions on Russia-related topics, but declined to answer any questions on obstruction or on events during the transition.

On Sept. 17, 2018, the Office submitted written questions to the President on Russia-related topics. On Nov. 20, 2018, the President submitted written replies. The Office informed the President’s counsel that those responses were insufficient in several respects. The Office noted, among other things, that the President stated on more than 30 occasions that he “does not ‘recall’ or ‘remember’ or have an ‘independent recollection’” of information. The Office informed the President’s counsel that the written responses “demonstrate the inadequacy of the written format,” and again requested an in-person interview.

The Office believed it had the legal authority and justification to issue a grand jury subpoena to obtain the President’s testimony, but chose not to do so. That decision was based on consideration of the substantial delay resulting from constitutional litigation at a late stage of the investigation. The decision was also based on the significant body of evidence already obtained from other sources that allowed the Office to draw factual conclusions describing and explaining President Trump’s actions and intent.

Criminal intent is often inferred from circumstantial evidence, which is a necessity given that an individual can decline to testify based on his Fifth Amendment right against compelled self-incrimination. Accordingly, determinations on intent are often reached without the opportunity to interview an investigatory subject.

Overarching factual issues

Although the Office does not reach a traditional prosecution or declination decision, some general conclusions may be stated to understand the factual findings.

First, some of the conduct did not implicate the President’s constitutional authority and raises garden-variety obstruction-of-justice issues. Other events investigated, however, drew upon the President’s Article II authority. Those events require the factual analysis to consider whether the President’s actions were facially lawful and that his being the head of the Executive Branch gives him unique powers to influence official proceedings, subordinate officers, and potential witnesses.

For an analysis of the constitutional issues, see Volume 2.15 (Response to Possible Constitutional Defenses) .

Second, while many obstruction cases involve the attempt to cover up an underlying crime, criminal obstruction can also be motivated to protect other personal interests, to protect against investigations where criminal liability is uncertain, and to avoid the revelation of personally embarrassing information. The injury to the integrity of the criminal justice system is the same regardless of whether a person committed an underlying crime.

In this investigation, the evidence points to a range of personal motives animating the President. These include his concerns that the investigation would call into question the legitimacy of his election and potential uncertainty about whether specific events – such as advance notice of WikiLeaks’ releases and the June 9, 2016 Trump Tower meeting with Russians – could be seen as criminal activity by the President, his campaign, and his family.

Third, although the events investigated involved discrete acts and the following analysis is broken down into different incidents, it is important to view the President’s pattern of conduct as a whole. Actions in one incident, for example, form a pattern with actions in other incidents. Considering the pattern as a whole sheds light on the President’s intent. Considering certain acts collectively can also shed light on their significance.

Finally, the investigation of obstruction can be divided into two distinct phases relevant to the President’s possible motives. In the first phase, before the President fired FBI Director Comey, he had been assured that the FBI had not opened an investigation on him personally. In the second phase, however, the President was made aware that investigators were conducting an obstruction of justice inquiry into his own conduct.

Legal Framework for Obstruction of Justice: Elements and Case Law (pp. 9-12)

The order appointing the Special Counsel provided the Office with jurisdiction to investigate the crime of obstruction of justice committed in the course of the investigation. The Office collected and analyzed evidence of obstruction of justice based on the elements of this crime, but the Office did not come to a final prosecutorial decision on this issue.

Obstruction of justice, which is codified in several statutes, ordinarily consists of three elements: 1) an obstructive act; 2) a nexus between the obstructive act and an official proceeding; and 3) a corrupt intent. The summary of law for each element of this offense is presented below. Obstruction of justice that arises from official acts by the President raises unique constitutional issues, which are not discussed here but addressed later in this Report.

The law governing witness tampering and attempts to obstruct justice or commit other offenses are also discussed below.

Obstructive act : Case law governing obstruction of justice indicates that the statute reaches all conduct, however employed, which prevents the administration of justice. It includes any effort, however subtle or concealed, that “blocks, makes difficult, or hinders” a proceeding. An act that is otherwise legal or in an actor’s authority may constitute obstruction of justice if it is undertaken with an improper motive.

Nexus to a pending or official proceeding : Obstruction of justice must be connected to an “official proceeding.” This can include judicial or grand jury proceedings, a federal agency proceeding, or a congressional inquiry or investigation. A proceeding does not need to be in progress for obstruction to occur, but a relationship in “time, causation, or logic” must be shown between the action and the proceeding that was to be obstructed.

Objectively, the defendant’s actions must be likely to obstruct justice. Subjectively, the defendant must have contemplated a particular proceeding when committing the obstructive act. Obstruction of justice may be committed indirectly, through a third party, if it is foreseeable that the third party would act on the defendant’s communications to the third party.

Corruptly : A defendant must act with a specific intent to obstruct justice, namely, “knowingly or dishonestly,” or “with an improper motive.” An improper motive includes an intent to “subvert, impede, or obstruct” a proceeding or “consciousness of wrongdoing” in undertaking an action or to influence another person. A corrupt intent is demonstrated if the defendant acted with an intent to advantage himself or someone else, “inconsistent with official duty and the rights of others.”

Witness tampering : One obstruction of justice statute includes a specific prohibition that forbids tampering with a witness. This includes knowingly intimidating, corruptly persuading, or engaging in misleading conduct toward another person to “influence, delay, or prevent” that person’s testimony in an official proceeding. Conduct that is intended to “hinder, delay, or prevent” the communication of information to a law enforcement officer also constitutes witness tampering.

Actions that fall within the scope of the statute do not need to be coercive in nature, or explicit. Urging a witness to state that he does not recall a fact, when he does recall it, also falls under witness tampering. The nexus to an official proceeding, moreover, is more relaxed than in obstruction of justice because the action is focused on the communication of information to officials or investigators, rather than to the proceeding itself. Finally, the intent requirements is met even if the defendant’s conduct was lawful, as long as the “sole intention” was to encourage or influence the witness to lie.

Attempts and endeavors : The obstruction of justice statutes prohibit attempts to obstruct justice as well as an “endeavor” to obstruct justice. An attempt to obstruct justice includes an intent to obstruct combined with an “overt act” towards that goal. An endeavor is even broader than an attempt, and this crime can be completed even if the prosecution is unable to prove that the administration of justice was actually impeded or obstructed.

Trump’s Response to Reports of Russian Support (pp. 15-23*)

During the 2016 U.S. presidential campaign, the media raised questions about possible connections between the Trump Campaign and Russia. The scrutiny began as Donald Trump took a uniquely pro-Russia stance among Republican primary contenders and increased as the U.S. press reported that Russian political analysts perceived Trump as favorable to Russia. Moreover, U.S. media reported on ties between Trump Campaign advisors and Russia, including Michael Flynn appearing regularly on RT (a Russian government-funded television network) and sitting next to Vladimir Putin at an RT gala in Moscow; Carter Page having links to a Russian state-run gas company; and Paul Manafort having done work for Russian-backed former Ukrainian president Viktor Yanukovych. The press also raised questions during the Republican National Convention about the Trump Campaign’s involvement in changing the Republican Party’s stance on arming Ukraine against Russia.

These questions intensified based on the Trump Campaign’s reactions to WikiLeaks’ release of Democratic Party emails that were damaging to the Clinton Campaign and were reported to have been obtained via hacking by Russia. Those reports of Russian responsibility began with a June 2016 announcement by a cybersecurity firm that had conducted in-house analysis for the Democratic National Committee indicating that Russian government hackers had infiltrated the Committee’s computer and obtained access to documents. The next month—a day before the Democratic National Convention began—WikiLeaks posted thousands of hacked documents revealing sensitive internal Campaign deliberations. Hillary Clinton’s campaign manager soon publicly contended that Russia had arranged release of the emails to help Trump, and days later the New York Times reported that U.S. intelligence agencies had told the White House of their high confidence that the Russian government was responsible for the hacking. Trump Campaign aides reacted enthusiastically to these reports. Some witnesses told the Office that Trump himself discussed the possibility of upcoming releases of emails, including, at one point, specifically telling Rick Gates that more releases would be coming. By summer 2016, the Trump Campaign was planning a communications strategy based on the possible release of Clinton emails by WikiLeaks.

In response to public questions about connections to Russia, the Trump Campaign began by rejecting suggestions that Russia was seeking to aid Trump. Trump himself said that the notion that Russia had hacked the emails was unproven and added that it would give him “no pause” if Russia had, in fact, obtained Clinton’s emails. Trump added, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” He also confirmed his pro-Russia policy orientation.

In addition to denying that Russia was trying to help Trump or had hacked the emails, Trump denied any connections to Russia, repeating five times at a press conference, “I have nothing to do with Russia.” Trump said that he had been interested in working with Russian companies but “it never worked out,” adding that “we had a major developer … that wanted to develop property in Moscow and other places. But we decided not to do it.” This was untrue: The Trump Organization had been pursuing building a Trump Tower Moscow from around September 2015 through June 2016, and Trump himself was regularly updated on developments regarding the project, including possible trips to Moscow to make progress on the deal. Michael Cohen, who led the project for Trump, regarded Trump’s denial of any business dealings in Russia as untrue, and spoke with Trump after the press conference. Trump told Cohen that Trump Tower Moscow was not yet a deal and said, “Why mention it if it is not a deal?”

In response to the questions raised publicly about its links to Russia, the Trump Campaign sought to distance itself from Russian contacts. Manafort was asked to resign amidst media coverage of his ties to a pro-Russian political party in Ukraine and links to Russian business, and Page’s association with the Campaign was terminated after the media reported on his connections to Russia.

After WikiLeaks released the first set of stolen emails from Clinton Campaign Chairman John Podesta and the federal government announced that Russia had directed the recent hacks, vice presidential candidate Mike Pence was asked whether the Trump Campaign was “in cahoots” with WikiLeaks. He responded, “Nothing could be further from the truth.”

After Trump’s election, he and his campaign continued to deny any connections with Russia, with Trump Campaign spokesperson Hope Hicks, for example, specifically denying any contacts between the Campaign and Russia. Dismissing press reports that U.S. intelligence agencies had concluded that Russia interfered in the election to help Trump’s candidacy, Trump said that the intelligence community had “no idea if it’s Russia or China or somebody. It could be somebody sitting in a bed some place.” After the Obama administration announced sanctions against Russian individuals and entities in response to Russia cyber operations aimed at the election, Trump said, “I think we ought to get on with our lives,” though he soon indicated that he would meet with intelligence community leaders for a briefing on Russian interference. After that briefing, the intelligence community released a public version of its assessment, concluding with high confidence that Russia had intervened in the election to harm Clinton’s electability and with a clear preference for Trump.

Days later, BuzzFeed published allegations about Trump’s Russia connections compiled by former British intelligence officer Christopher Steele. Trump called the release “an absolute disgrace” and said, “I have no dealings with Russia.” According to Trump advisors, such as Hicks, Gates, Sean Spicer, and Reince Priebus, Trump viewed stories about his connections to Russia, investigations into Russia, and the intelligence community assessment of Russian interference as a threat to the legitimacy of his electoral victory.

* Passages on these pages are redacted due to harm to an ongoing matter.

Incident One: Shielding Flynn (pp. 24-48)

By Mimi Rocah

On December 29, 2016, the same day the Obama administration announced that it was imposing sanctions and other measures on Russia in response to its interference in the 2016 election, incoming National Security Advisor Michael Flynn called Russian Ambassador Sergey Kislyak and requested that Russia respond to the sanctions without escalation. The next day, Russian President Vladimir Putin announced that Russia would not take retaliatory measures. On Dec. 31, Kislyak called Flynn to tell him that his message had been received at the highest levels and Russia would not retaliate. Flynn talked to K.T. McFarland, the incoming deputy national security advisor; Steve Bannon and possibly President-elect Donald Trump about his call to Kislyak and the impact it had.

On January 12, 2017, a Washington Post column reported that Flynn and Kislyak had communicated on the day the sanctions had been announced. The piece questioned whether Flynn had said something to “undercut U.S. sanctions,” and whether he had possibly violated the Logan Act, a law that prohibits private citizens from negotiating with foreign governments on behalf of the U.S. government without authorization. Trump was angry at this press coverage and incoming Chief of Staff Reince Priebus directed Flynn to “kill the story.” Flynn directed McFarland to call the Washington Post journalist and say that no discussion of sanctions had occurred in the call between him and Kislyak. McFarland did this (knowing it wasn’t true).

When Priebus and other incoming administration officials, including Vice President Mike Pence and Press Secretary Sean Spicer, questioned Flynn about the Washington Post column, he maintained that he hadn’t discussed sanctions with Kislyak. Accordingly, administration officials repeated this publicly. In addition, the FBI interviewed Flynn on January 24, 2017, and he falsely claimed that he had not asked Kislyak to refrain from escalation and claimed not to remember the follow-up conversation. Justice Department officials realized that these untrue statements made Flynn susceptible to potential blackmail by Russia because he lied. DOJ officials told White House Counsel Don McGahn about Flynn’s potentially compromising position with Russia and that he had been interviewed by the FBI. McGahn relayed this information to Trump and discussed the possible criminal statutes at issue for Flynn.

On January 27, Trump invited FBI Director James Comey to dinner that evening. Trump and Comey had previously spoken on January 6 during an intelligence briefing on Russian interference in the election after which Comey informed Trump of allegations in the Steele Dossier about Trump. Despite warnings from advisors that he should not dine alone with Comey and that he should not talk about Russia, Trump did both. During the dinner, Trump repeatedly brought up Comey’s future, questioning him if he wanted to stay on as FBI director. At one point, Trump stated “I need loyalty, I expect loyalty.” Comey said that he would get “honesty” and “honest loyalty.” When this account became public, Trump disputed it.

On February 9, after further reporting emerged about Flynn’s conversations with Kislyak, McGahn and Priebus recommended to Trump that Flynn be terminated.

On February 14, the day after Flynn resigned, Trump spoke with New Jersey Governor Chris Christie and told him, “Now that we fired Flynn, the Russia thing is over.” Christie disagreed. Trump asked Christie to call Comey and tell him that Trump said “he’s part of the team.” Christie did not do that.

Later that afternoon, after a meeting with Comey and other officials, Trump cleared the room so that he and Comey would be alone. Trump told Comey that Flynn was terminated because he had lied to Pence, not because he did anything wrong in talking to Kislyak and said, “I hope you can see your way clear to letting this go, letting Flynn go. He is a good guy. I hope you can let this go.”

Trump then asked Priebus to ask McFarland to create an internal email stating that Trump had not directed Flynn to call Kislyak about sanctions. Priebus asked McFarland to do this but she seemed uncomfortable, saying she didn’t know whether Trump had directed Flynn to make those calls to Kislyak. Trump also asked Priebus to reach out to Flynn and let him know Trump still cared about him, which Priebus did. After news reports that Flynn had offered to testify before FBI and Congress in exchange for immunity, Trump tweeted his support for him and asked McFarland to pass a message to Flynn to “stay strong.”

Legal Analysis

Trump has repeatedly disputed Comey’s accounts of their one-on-one meetings and specifically the “direction” he gave regarding Flynn. However, “substantial evidence” corroborates Comey’s account and, specifically backs up that Trump directed him to “let[] Flynn go.” As for obstruction of justice, this act had the requisite “nexus to a proceeding” because the evidence “suggests his (Trump’s) awareness that Flynn could face criminal exposure and was at risk of prosecution.”

As to intent, there was mixed evidence as to whether Trump had a “personal stake” in the outcome of an investigation into Flynn. It is not clear whether Trump knew ahead of time about Flynn’s conversation with Kislyak and, therefore, it’s not clear Flynn had damaging information about Trump. However, Trump connected the investigation of Flynn to questions about Russian interference and the legitimacy of his election as president. And the circumstances – clearing the room, denying he had asked Comey to “let[] Flynn go,” asking McFarland to deny Trump’s involvement were “irregular” – suggest that this was not a proper exercise of prosecutorial discretion by Trump.

Incident Two: Pressuring FBI Director Comey and the Intelligence Chiefs (pp. 48-62)

In February 2017, the Department of Justice analyzed whether Attorney General Jeff Sessions should recuse from the Russia investigation. On March 2, 2017, the President called White House Counsel Don McGahn and urged him to tell Sessions not to recuse. McGahn argued against recusal with Sessions, Sessions’ chief of staff, and Senate Majority Leader Mitch McConnell. That afternoon, Sessions announced his recusal.

On March 3, the President met with McGahn, Steve Bannon, and other advisors. The President expressed anger at McGahn about the recusal and wanted McGahn to talk to Sessions, but McGahn said that DOJ ethics officials had weighed in on the decision. Bannon recalled that the President was very angry and that he screamed at McGahn that Sessions was weak.

That weekend, Sessions and McGahn flew to Mar-a-Lago. Sessions recalled that the President pulled him aside and suggested that Sessions should “unrecuse.”

On March 9, Comey briefed congressional leaders about the FBI’s investigation of Russian interference in the elections. Notes taken by Annie Donaldson, McGahn’s chief of staff, state: “POTUS in panic/chaos … Need binders to put in front of POTUS. (1) All things related to Russia.” A week later, McGahn’s office was in contact with Sen. Richard Burr (R-N.C.), chairman of the Senate Select Committee on Intelligence, and appears to have received information from Burr about the FBI investigation.

On March 20, Comey testified before the House Permanent Select Committee on Intelligence that the FBI was investigating Russia’s efforts to interfere in the election, including any links between the Trump Campaign and Russia. Comey declined to answer whether President Trump was under investigation. Advisors recalled that the President was upset by the suggestion that he was under investigation.

At the President’s urging, McGahn contacted Acting Attorney General Dana Boente on March 21, to publicly correct the misperception that the President was under investigation. Boente declined.

On March 22, the President asked Director of National Intelligence Dan Coats and CIA Director Mike Pompeo to publicly state that no link existed between him and Russia. Coats said it was not his role to do so. Pompeo did not recall that meeting, but recalled that the President regularly urged officials to make such statements.

On March 25, the President called Coats and complained about the investigations. Coats advised the President to let the investigations run their course. Coats later testified to Congress that he had “never felt pressure to intervene” in the investigation.

On March 26, the President called NSA Director Adm. Michael Rogers. The President asked Rogers if he could publicly refute the stories about Russia. Deputy Director of the NSA Richard Ledgett, who was present, said it was the most unusual thing he had experienced in years of government service. Ledgett prepared a memorandum documenting the President’s request, and placed it in a safe. But Rogers did not perceive the President’s request to be an order, and the President did not ask Rogers to push back on the Russia investigation itself. Rogers testified to Congress that he had never been directed to do anything inappropriate.

On March 30, the President called Comey, asking him to “lift the cloud.” Comey explained that the FBI was investigating as quickly as possible, and that congressional leaders were aware that the FBI was not investigating the President. The President said that if there was “some satellite” who did something, “it would be good to find that out” but that he himself had not done anything wrong, and he hoped Comey would find a way to get that fact out.

On April 11, the President called Comey to follow up. Comey responded that he had relayed the request to Boente, and he informed the President that such a request should go from White House Counsel to DOJ leadership. The President said he would take that step, and then said, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

Obstruction of justice requires proof of three elements: an obstructive act, nexus to an official proceeding, and corrupt intent.

With regard to an obstructive act, the evidence shows that the President repeatedly reached out to intelligence leaders to discuss the FBI investigation. But witnesses said that the officials did not interpret these requests as directives to improperly interfere with the investigation.

Regarding nexus to an official proceeding, Comey’s testimony had confirmed that the FBI was investigating Russian election interference.

Finally, even though the evidence does not establish that the President asked intelligence leaders to interfere with the investigation, the President’s intent is relevant to understanding his motivation. The evidence shows that the President sought to dispel any suggestion that he was under investigation or had links to Russia. The President attempted to prevent Sessions’ recusal, and told advisors that he wanted an attorney general who would protect him, the way he perceived Robert Kennedy and Eric Holder had done when they were in the job. The President talked about being able to direct criminal investigations, saying, “You’re telling me that Bobby and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?”

The evidence indicated that the President was angered by the existence of the investigation and public reporting that he was under investigation, which he believed was not true based on Comey’s representations. The President complained that if people thought Russia helped him with the election, it would detract from what he had accomplished, would harm his ability to govern, and was hurting foreign relations, particularly with Russia.

Incident Three: Firing FBI Director Comey (pp. 62-77)

FBI Director James Comey was scheduled to testify before Congress on May 3, 2017. Leading up to that testimony, President Donald Trump continuously told to advisors that he wanted Comey to make public that the President was not personally under investigation. At the hearing, Comey declined to do that. In addition, Comey stated that it made him “mildly nauseous to think that we (the FBI) might have had some impact on the election” (referring to his statement just before the election about reopening the investigation into Hillary Clinton’s emails) but that “even in hindsight” he “would make the same decision.” Over the next few days, Trump repeatedly brought up Comey and the idea of firing him to advisors.

Soon after Comey’s testimony, Trump directed White House senior advisor Stephen Miller to draft a termination letter for Comey. In its opening sentence, the draft letter stressed that Comey had informed Trump three times “that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship.” The letter stated that Trump, members of both political parties and the “American Public,” had “lost faith in you as Director of the FBI.” The four-page letter also critiqued Comey’s judgment and conduct.

White House Counsel Don McGahn and others urged Trump to allow Comey to resign but Trump insisted Comey should be fired. Trump directed Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein to draft a memo to the President recommending that because Comey had refused to confirm that the President was not personally under investigation, he should be terminated. Rosenstein responded that that reason was not the basis of his recommendation and that he did not think the Russia investigation should be mentioned. Trump told Rosenstein to include it anyway. Rosenstein told colleagues that his reasons for replacing Comey were not the same as the President’s reasons.

On May 9, 2017, Sessions delivered a letter to the White House recommending that Comey be terminated based on the memo written by Rosenstein. The memo in turn said that Comey should be fired because of his handling of the Clinton email investigation. The White House Counsel’s Office determined that the original termination letter mentioning Russia should “[n]ot see the light of day” and the press team was directed to state that Comey had been fired solely for the reasons stated by Rosenstein and Sessions. A statement was put out by the White House on May 9 stating that Comey had been terminated based on the “clear recommendations” of Rosenstein and Sessions. When Trump subsequently wanted to put out a statement that the firing was Rosenstein’s idea, Rosenstein would not go along with it.

The next day, Trump boasted in the Oval Office to the Russian ambassador and foreign minister: “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off….I’m not under investigation.” On May 11, Trump was interviewed by NBC’s Lester Holt. Trump told his communications team ahead of time that he was going to say what really happened. During the interview, Trump said,

“I was going to fire regardless of recommendation…. [Rosenstein] made a recommendation. But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it….And in fact, when I decided to just do it, I said to myself – I said, you know, this Russia thing with Trump and Russia is a made up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.”

The act of firing Comey, could be considered an obstructive act, on the one hand, because it had the potential to affect a successor FBI Director’s actions with respect to the Russia investigation. However, such an act would not necessarily prevent or impede the institution of the FBI from continuing its investigation, as the White House acknowledged after Comey’s firing. Comey’s firing could be linked to the then on-going FBI investigation of Russian’s interference in the election as well as to any potential criminal investigation of Flynn, of which Trump was well-aware.

As to the President’s intent, it was clear that the catalyst for Comey’s firing was his unwillingness to state publicly that the President was not personally under investigation, despite repeated requests. Why was that important to President Trump? It may have interfered with his ability to address foreign relation issues and questions about the legitimacy of his election. But, there was also evidence that Trump wanted to protect himself from an investigation into his campaign because such an investigation could uncover facts about the campaign and Trump personally that he could have understood to be crimes or that would cause political or personnel problems for him. For example, though Trump had several times during and after the election said that he had no connection to Russia, his company was pursuing, with his approval, the development of Trump Tower Moscow through June 2016.

Incident Four: Efforts to Remove Special Counsel Mueller (pp. 77-90)

By Renato Mariotti

President Donald Trump attempted to remove Special Counsel Robert Mueller from his position, a move that could have seriously crippled the investigation into Trump and his associates.

Mueller was appointed special counsel by then-Acting Attorney General Rod Rosenstein on May 17, 2017. Rosenstein made the appointment because then-Attorney General Jeff Sessions had recused himself from overseeing the Russia investigation based upon the advice of career ethics officials.

Rosenstein first told Sessions that he had appointed Mueller during a phone call, which Sessions stepped out of the Oval Office to take. When Sessions told Trump 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.”

Trump then became angry and lashed out at Sessions for recusing himself, stating, “How could you let this happen, Jeff?” Trump said Sessions had “let [him] down,” claiming that Sessions was “supposed to protect me.” Trump said that Mueller’s appointment ruined his presidency, and that it was the “worst thing that ever happened to me.”

Trump then tried to force Sessions to resign. Although Sessions offered to do so, Trump refused, but kept Sessions’ letter of resignation in his pocket. Priebus told Sessions that the President’s holding onto his letter was not good because it would serve as a kind of “shock collar” that the President could use whenever he wanted. Priebus said Trump had “DOJ by the throat.”

In the days to come, Trump asserted that Mueller had supposed “conflicts of interest.” Trump advisor Steve Bannon told Trump the supposed conflicts were “ridiculous,” while White House Counsel Don McGahn and others described them as “silly” and “not real.”

Trump tried to push McGahn to call Rosenstein to complain about the false conflicts of interest, presumably in an effort to push out Mueller, but McGahn refused to do so.

On June 12, 2017, Trump told a longtime friend that he was considering firing Mueller. A day later, Trump’s personal attorneys contacted the Office and raised concerns about the false conflicts.

On June 14, the Washington Post published an article revealing that Mueller was investigating Trump for obstructing justice. A day later, on June 15, Trump tweeted about how he was under investigation.

Then, on June 17, 2017, Trump directed McGahn to have Mueller removed, telling him “you gotta do this.” McGahn didn’t follow through on Trump’s order because he said he didn’t want to start another “Saturday Night Massacre,” the infamous Watergate episode that hastened the end of Richard Nixon’s presidency.

Trump then followed up, calling McGahn a second time and telling him something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” He told McGahn that “Mueller has to go” and “Call me back when you do it.”

Because McGahn did not want to be involved in firing Mueller, he decided to resign. He told his chief of staff, his lawyer, Bannon, and then-White House Chief of Staff Reince Priebus about hit decision to resign. But, ultimately, McGahn ignored Trump’s order and Trump did not take action against McGahn.

It’s clear that Trump knew, when he ordered McGahn to fire Mueller, that doing so could be considered a crime. Weeks earlier, McGahn advised Trump that doing so would look like he was “trying to meddle in the investigation” and “knocking out Mueller” would be “another fact used to claim obstruction of justice.”

Even if firing Mueller, the man who was investigating him, would not end the investigation completely, it could still qualify as an obstructive act. That’s because the removal of Mueller would have clearly set the investigation back. And all of the facts and circumstances above, including Trump’s clear directives to McGahn, demonstrated that he actually tried to remove Mueller.

It is clear that by June 17, 2017, Trump knew his conduct was under investigation by Mueller. After all, he said so publicly himself.

Substantial evidence also indicates that Trump’s attempts to remove Mueller were linked to Mueller’s oversight of the investigation of Trump’s obstruction of justice. The evidence strongly indicates that the news that an investigation of Trump’s obstruction of justice had been opened is what led Trump to call McGahn to have Mueller fired.

Although Trump’s attempt to obstruct justice by firing Mueller was unsuccessful, even unsuccessful attempts to obstruct justice are crimes. Trump’s repeated calls to McGahn and strong language indicate that he was serious about getting rid of Mueller. Those calls also show that he tried to use his official power as president to fire Mueller, instead of going through his personal attorneys, as McGahn told him he should do.

Incident Five: Efforts to Curtail the Special Counsel Investigation (pp. 90-98)

On June 19, 2017, the President met alone in the Oval Office with former campaign manager Corey Lewandowski, and dictated a message for Lewandowski to deliver to Attorney General Jeff Sessions. The message directed Sessions to announce that the President was being treated unfairly, that there should be no Special Counsel, that the President had done nothing wrong, and that Sessions would restrict the investigation to future elections.

Lewandowski wanted to pass the message to Sessions in person rather than by phone. He did not want to meet at the Department of Justice because he did not want a public log of his visit. Because of scheduling conflicts, he did not convey the message.

Lewandowski then asked Rick Dearborn, a White House official, to pass a message to Sessions. Lewandowski believed Dearborn would be a better messenger because he was in government and had a longstanding relationship with Sessions.

On July 19, the President again met with Lewandowski in the Oval Office. The June 9, 2016 meeting between Russians and Trump campaign officials had recently become public. Lewandowski said the message would be delivered soon. The President told Lewandowski that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired.

Upon departing, Lewandowski saw Dearborn and gave him a typewritten version of the message. Dearborn later told Lewandowski that he had handled the situation, but did not actually deliver the message. Dearborn did not want to ask where it came from or think further about doing anything with it. He also did not keep a copy of the typewritten notes.

Later that day, the President gave an interview to the New York Times criticizing Sessions’ decision to recuse. The President said that if Sessions had told him he would recuse, Trump “would have picked somebody else” for Attorney General.

On July 21, the Washington Post reported that U.S. intelligence intercepts showed that Sessions had discussed campaign-related matters with the Russian ambassador, contrary to his public comments. That evening, Priebus called Sessions’ Chief of Staff Jody Hunt, who told Priebus that the President would have to fire Sessions because Sessions would not quit.

On July 22, the President told Priebus that he had to get Sessions to resign immediately. The President said that the country had lost confidence in Sessions and the negative publicity was intolerable. Priebus replied they would never get a new Attorney General confirmed and that the Department of Justice and Congress would turn their backs on the President, but the President suggested he could make a recess appointment.

Priebus called McGahn for advice. McGahn told Priebus not to follow the President’s order and said that they should consult personal counsel, with whom they had attorney-client privilege. McGahn and Priebus discussed resigning rather than firing Sessions.

That afternoon, the President followed up with Priebus about demanding Sessions’ resignation. Later in the day, Priebus called the President and explained that it would be a calamity if Sessions resigned because Acting Attorney General Rod Rosenstein and Associate Attorney General Rachel Brand would likely also resign and no one else could get confirmed. The President agreed to hold off until after the Sunday shows the next day, to prevent attention to the firing.

By the end of that weekend, the President agreed not to ask Sessions to resign. Over the next several days, the President tweeted about Sessions, calling him “weak” and “beleaguered.” According to Hunt, Sessions prepared another resignation letter and carried it with him whenever he went to the White House.

In analyzing the President’s conduct, the following evidence is relevant to the elements of obstruction of justice:

1. Obstructive act . The President sought to send Sessions a message through Lewandowski, a private citizen, to disregard his recusal, which was based on a DOJ ethics review, and have Sessions declare that he knew “for a fact” that “there were no Russians involved with the campaign” because he “was there,” and that the President “hasn’t done anything wrong.” These directives indicate that Sessions was being instructed to end the investigation into the President and his campaign, and limit the investigation to future elections.

2. Nexus to an official proceeding . At time of the President’s initial meeting with Lewandowski, the grand jury investigation was public knowledge.

3. Intent . Substantial evidence indicates that the President’s effort to have Sessions limit the investigation to future elections was intended to prevent scrutiny of the President’s and his campaign’s conduct. The directive to Lewandowski came just two days after the President had ordered McGahn to remove the Special Counsel, which followed reports that the President was personally under investigation for obstruction of justice. The President raised the matter with Lewandowski again just days after the June 9, 2016 meeting between Russians and senior campaign officials had been publicly disclosed.

The manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski, a private citizen, alone in the Oval Office. The President also did not contact the Acting Attorney General, who had just testified that there was no cause to remove the Special Counsel. Instead, the President tried to use Sessions to restrict the investigation when Sessions was recused.

One month later, the President met with Lewandowski, still pursuing the request. The President attacked Sessions in the New York Times. Four days later, the President directed Priebus to obtain Sessions’ resignation. That evidence raises an inference that the President wanted Sessions to realize that his job was at stake as he evaluated whether to comply with the President’s direction to publicly announce that, notwithstanding his recusal, he was going to confine the investigation to future elections.

Incident Six: Efforts to Prevent Disclosure of Emails About the June 9, 2016 Trump Tower Meeting with Russians (pp. 98-107)

By Andy Wright

In May 2017, the Trump Camaign received a document request from the Senate Intelligence Committee asking for a description of all meetings between individuals associated with the Trump Campaign and any individuals “formally or informally affiliated with the Russian government or Russian business interests.” By June 2017, President Trump became aware of emails setting up the June 9, 2016 meeting between senior campaign officials and Russians who offered derogatory information on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” In mid June, senior Administration officials became aware about emails arranging a meeting between a Russian attorney and Donald Trump, Jr., Jared Kushner, and Paul Manafort. Those emails promised that the Russian attorney would “provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia.” During the meeting, the Russian attorney claimed that funds derived from criminal activities had been funneled to Hillary Clinton and other Democrats. According the President Trump’s written answers to Mueller’s office, he had no recollection of learning about the meeting until after the election.

As public scrutiny increased, President Trump made numerous attempts to prevent those emails from becoming public. White House communications advisors recalled discussing the inevitability of disclosure of the emails with Jared Kushner and Ivanka Trump. They recommended release of the emails to the press. On June 22, Kushner tried to show the emails to President Trump before Kushner produced them to Congress, but the President said he did not want to know about it, according to Hope Hicks’ interview with the FBI. A week later, the President told Hope Hicks that he wanted only one lawyer to have access to the emails so they would not leak. Hicks recalled that Kushner told the President that the meeting was about Russian adoptions. President Trump later rejected a release proposal and told Hicks and Ivanka Trump that they should not go to the press. The President was insistent that he did not want to know the details. During that conversation, he asked for Kushner’s deadline to provide the emails to Congress and said “leave it alone” until the deadline.

The following week, President Trump then dictated a false statement about the meeting to be issued by Donald Trump, Jr. On July 7, the New York Times contacted the White House about a story it planned to publish on the June 9 meeting and the President directed Hicks not to comment. Later that day, President Trump and Hicks met again about the story. Hicks recalls that the President asked her what the meeting was about, and she said that she had been told it was about Russian adoptions. President Trump told Hicks, “then just say that.”

Hicks showed the President a draft statement that included a reference to the Russian offer to provide “information helpful to the campaign.” The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.

After that meeting, Hicks texted Trump Jr. a revised statement. Trump, Jr. asked for the statement to read that they “primarily” discussed Russian adoption because the Russian lawyer “started with some Hillary thing which was bs and some other nonsense we shot down fast.” Hicks wrote back, “I think that’s right too but boss man worried it invites a lot of questions.” Trump, Jr. responded, “If I don’t have it in there it appears as though I’m lying later when they inevitably leak something.” The word “primarily” was included in the statement sent to the Times .

The Times then published the story with Trump, Jr.’s statement and a quote from Mark Corallo of the President’s legal team suggesting that the meeting might have been a setup by the people behind the Steele dossier. Corallo planted a similar story in Circa News . When President Trump and Hicks criticized Corallo for his statement, Corallo told them he was concerned that Trump, Jr.’s statement was inaccurate and a document existed that would contradict it. Corallo’s contemporaneous notes indicate Hicks said, “only a few people have it. It will never get out,” and he told the FBI that he is “100% confident” Hicks said that on the call. Hicks told investigators she did not recall making that statement, that she always believed the emails would leak, but she might have been channeling the President on the phone call because President Trump clearly thought the emails would not leak.

On July 11, Trump, Jr. posted redacted images of the emails on his Twitter account after learning the New York Times was about the publish them. Later that day, the media reported that President Trump was personally involved in the drafting of Trump Jr.’s statement. Members of the President’s personal legal team then inaccurately denied President Trump’s involvement, while the White House press secretary minimized his involvement. Later, President Trump denied he knew anything about the meeting with Russians at the time it occurred, and said that most people would take a meeting from a foreign government if it contained “information on your opponent.”

The President engaged in at least three acts between June 29, 2017 and July 9, 2017 designed to preclude disclosure or distort the contents of the emails about the June 9, 2016 meeting. Each of these acts were directed at the press, and they would only become obstructive acts under the criminal statutes if they were designed hide information from, or mislead, federal investigators or congressional committees. For the same reason, it would be difficult to show a sufficient connection between the President’s subterfuge and the pending grand jury and congressional investigations to constitute obstruction of justice. Similarly, while President Trump demonstrated intent to hide the emails from the public, the evidence does not establish that the President intended to prevent the Special Counsel’s Office or Congress from obtaining the emails.

Volume 2.10

Incident Seven: Efforts to Have Attorney General Sessions Take Over the Investigation (pp. 107-113)

From summer 2017 through 2018, President Donald Trump sought to have Attorney General Jeff Sessions reverse his recusal, retake control of the Russian investigation, and investigate Hillary Clinton. Between May 2017 and his July 19, 2017, New York Times interview in which he publicly criticized Sessions for his recusal, the President took a number of steps to have Sessions reverse his recusal decision.

After the Special Counsel’s appointment, Trump called Sessions at home and asked him to “unrecuse.” The President said he wanted Sessions to direct the Department of Justice to investigate and prosecute Hillary Clinton. Sessions neither reversed his recusal nor ordered an investigation of Clinton.

In early July 2017, the President asked White House Staff Secretary Rob Porter for an assessment of Associate Attorney General Rachel Brand; specifically, whether she was good, tough, and “on the team.” He also asked whether Brand would be interested in supervising the Special Counsel’s investigation or wanted to be attorney general someday. At that time, Brand would have assumed responsibility for the Special Counsel investigation if Deputy Attorney General Rod Rosenstein were removed. The President followed up with Porter several times on Brand’s response, but, due to discomfort, Porter had never reached out to Brand.

During that period, the President frequently complained to White House Counsel Don McGahn about Sessions, and noted that if Sessions were no longer attorney general, the Special Counsel would report to his replacement without a recusal. Per Hope Hicks, the President viewed Sessions’ recusal as an act of disloyalty.

Later, in October 2017, Trump told Sessions the Department of Justice was not investigating individuals and events that it should, including Clinton’s emails. Two days later, the President started tweeting his displeasure that the Department was not investigating Clinton. On December 6, the President pulled Sessions aside after a Cabinet meeting to suggest that if Sessions would “unrecuse” he would “be a hero.” According to Porter, Trump also told Sessions: “Dershowitz says POTUS can get involved. Can order AG to investigate. I don’t want to get involved. I’m not going to get involved. I’m not going to do anything or direct anything. I just want to be treated fairly.” Sessions responded: “We are taking steps, whole new leadership team. Professionals; will operate according to law.”

Over the next several months, Trump continued to criticize Sessions in tweets and media interviews. He also appeared to publicly encourage Sessions to take action in the Russia investigation despite Sessions’ recusal. On November 7, 2018, the day after the midterm elections, the President fired and replaced Sessions.

To violate the obstruction of justice statute, the evidence would have to establish that the President’s efforts to reverse Sessions’ recusal would naturally impede the Russia investigation. The duration of the President’s efforts and public criticism of Sessions would be relevant to determining whether those could be obstructive acts with the statute’s required connection to the grand jury’s Russia investigation. There is evidence that the President intended to have Sessions reverse his recusal in order to restrict the scope of the Special Counsel’s investigation. By the summer of 2017, the President was aware he was under investigation for obstruction of justice, and that his son, son-in-law, and former campaign manager were under investigation as well.

Volume 2.11

Incident Eight: Ordering White House Counsel McGahn to Deny that the President Tried to Fire the Special Counsel (pp. 113-120)

By Joyce Vance

In June 2017, President Donald Trump ordered White House Counsel Don McGahn to fire Special Counsel Robert Mueller. In January 2018, after the New York Times reported on Trump’s orders to McGahn, Trump unsuccessfully tried to get McGahn to deny it had happened.

Trump made four attempts to get McGahn to deny Trump had ordered him to have Mueller fired. The first was a call from Trump’s personal counsel to McGahn’s attorney, asking for a statement denying the order to fire Mueller and denying McGahn had threatened to quit, which the Times had also reported. McGahn’s attorney responded that his client would not make such a statement because the story was accurate in its reporting that Trump wanted Mueller fired.

Next, Trump asked White House Press Secretary Sarah Sanders to contact McGahn. McGahn told her there was no need to respond to the story and that some of it was accurate.

A few days later, Trump told White House Staff Secretary Rob Porter that the New York Times story was “bullshit” and denied trying to terminate Mueller. He directed Porter “to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel,” according to Porter’s testimony. Trump wanted McGahn to write a letter “for our records” that would say the New York Times report was inaccurate and told Porter he might “have to get rid of” McGahn if he wouldn’t do it. Porter told McGahn he needed to write a letter denying he was ordered to terminate Mueller and McGahn declined, saying the reports were true. McGahn told Porter he had planned to quit rather than carry out Trump’s order, although he had not told Trump this. McGahn dismissed Trump’s threat to fire him, telling Porter the optics would be bad, and declining to put anything in writing. Porter told White House Chief of Staff John Kelly about his conversation with McGahn.

The next Day, Kelly set up a meeting for McGahn to discuss the Times article with Trump in the Oval Office. The President’s personal counsel called McGahn’s attorney ahead of the meeting and said McGahn “could not resign no matter what happened in the meeting.”

Trump told McGahn the story didn’t look good and needed to be corrected. He denied telling McGahn to “fire” Mueller. McGahn told Trump that the story was correct, except insofar as it said he had told Trump he would quit if ordered to fire Mueller. McGahn told Trump he remembered being told to “Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel.” Trump denied saying it. McGahn told Trump he would not issue a correction. Trump also asked McGahn why he told the Office about the incident and why he took notes of their meetings. McGahn told Trump he had to tell the truth because there was no attorney-client privilege between them and he took notes because he was a “real lawyer.” Trump objected and said that he had had a lot of great lawyers “like Roy Cohn” and that they did not take notes.

Prosecutors must prove three elements to establish obstruction of justice: an obstructive act, a nexus to an official proceeding and intent.

1. Obstructive act: Trump’s four attempts to get McGahn to refute the Times story are obstructive acts if they tend to deter McGahn from testifying truthfully or undermine his credibility as a witness if he subsequently were called as a witness and testified to what he remembered, rather than to a record he created at Trump’s direction. The Office concluded there was substantial evidence that supported McGahn’s account that Trump directed him to have Mueller removed. Trump focused on the fact that he had not actually used the word “fire” to get McGahn to change his story, but by the time they met, Trump was aware McGahn did not believe the Times story was false. Trump persisted in trying to get McGahn to “repudiate facts that McGahn had repeatedly said were accurate.”

2. Nexus to an official proceeding: To establish nexus, prosecutors must show Trump’s actions would tend to affect an official proceeding or interfered with the communication of information to investigators. By January of 2018, when these events took place, Trump was aware the Office was using a grand jury. It was foreseeable McGahn might be called upon again to testify in the ongoing investigation and/or in court proceedings that might result from it.

3. Intent: Trump acted with the intent to influence McGahn’s account of events so as to discourage further scrutiny of Trump. Trump continued to pressure McGahn after it was clear McGahn believed his own memory of events. Trump even suggested he would fire McGahn if he didn’t refute the story. Trump’s conduct and statements showed his understanding and displeasure that his effort to fire Mueller would be part of an obstruction of justice investigation.

Volume 2.12

Incident Nine: Conduct Toward Michael Flynn and Paul Manafort (pp. 120-34*)

By Elie Honig

The Special Counsel evaluated conduct by President Donald Trump toward potential witnesses in the Special Counsel’s investigation, including former National Security Advisor Michael Flynn and former Campaign Chair Paul Manafort (and a third person whose name is redacted under the “harm to ongoing matter” classification).

Flynn resigned from his position as National Security Advisor in February 2017, while he was under FBI investigation. After Flynn’s resignation, Trump publicly made positive comments about Flynn, describing him as a “wonderful man,” “a fine person,” and a “very good person.” Trump also told advisors to pass private messages to Flynn conveying that Trump still cared about Flynn and encouraging him to stay strong.

In late November 2017, Flynn began cooperating with the Special Counsel. Around the same time, Flynn withdrew from a joint defense agreement with Trump. Upon learning of Flynn’s withdrawal and potential cooperation, Trump’s personal counsel left a voicemail for Flynn’s counsel. Trump’s counsel said that Flynn likely had begun cooperating; claimed that if Flynn had “information that implicates the President, then we’ve got a national security issue;” asked for “some kind of heads up” to “protect[] all of our interests;” and reiterated Trump’s “feelings towards Flynn, and that still remains.” When Flynn’s attorneys responded that Flynn would no longer share information, Trump’s attorney was indignant and vocal in his disagreement. Trump’s counsel promised to notify the President of Flynn’s actions and said that Flynn’s actions would be viewed as “hostility” toward Trump. Flynn’s attorneys understood these comments as an attempt to make Flynn reconsider his cooperation.

On December 1, 2017, Flynn pleaded guilty to making false statements to the FBI, pursuant to a cooperation agreement. The next day, a reporter asked the President whether he still stood by Flynn. Trump replied, “We’ll see what happens.” Over the next several days, Trump made public statements expressing sympathy for Flynn, arguing that he had been treated unfairly. In mid-December, when asked if he would consider a pardon for Flynn, Trump responded, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens.” Trump added that “people are very, very angry” at the FBI and Justice Department.

The Special Counsel considered whether Trump’s conduct toward Flynn could satisfy the three legal elements of obstruction of justice. First, Trump’s actions could constitute an “obstructive act” if they had the natural tendency to influence Flynn’s decision to cooperate and the extent of that cooperation. The sequence of events — from Trump’s private and public messages to Flynn before he began to cooperate with the Special Counsel’s Office to Trump’s personal counsel subsequent correspondence with Flynn’s counsel — could have affected Flynn’s cooperation with the Special Counsel’s investigation. Second, Trump’s actions related to an “official proceeding” because Flynn was under widely-known criminal investigation. Third, Trump’s “intent” was inconclusive primarily because privilege issues prevented a determination whether Trump authorized or knew about his personal counsel’s communications with Flynn’s counsel.

Paul Manafort

In January 2018, Manafort and his deputy Rick Gates each faced two federal indictments. Manafort told Gates that he had communicated with Trump’s counsel; it would be stupid to plead guilty; and they should “sit tight” and “we’ll be taken care of.”

As the case proceeded, Trump discussed with aides whether Manafort knew any damaging information and might cooperate with the Special Counsel. Meanwhile, Trump publicly claimed Manafort was being treated unfairly. When asked if he was considering a pardon, Trump responded, “I don’t want to talk about that… But look, I do want to see people treated fairly.” In the following days, Trump’s personal counsel Rudy Giuliani gave a series of interviews in which he publicly raised the possibility of a Manafort pardon, stating, for example, “When the whole thing is over, things might get cleaned up with some presidential pardons.” Manafort told the Special Counsel’s Office that he hoped for a pardon.

On August 1, 2018, the day after Manafort’s trial started, Trump publicly attacked the Special Counsel (“This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now…”), at one point sarcastically comparing the case to the prosecution of notorious mob boss Al Capone. As the jury deliberated, Trump publicly called the investigation a “rigged witch hunt.” Trump added that the trial is “very sad” and Manafort “happens to be a very good person.” Manafort’s attorney publicly thanked Trump for his support.

On August 21, 2018, the jury convicted Manafort. The same day, Michael Cohen pleaded guilty to federal offenses including a campaign finance crime he said occurred “with, and at the direction of, a candidate for federal office.” That day, Trump tweeted, “I feel very badly for Paul Manafort and his wonderful family… unlike Michael Cohen, he refused to ‘break’ – make up stories in order to get a ‘deal.’ Such respect for a brave man!” Trump later stated publicly that “flipping” was “not fair” and “almost ought to be outlawed.” When asked if he would pardon Manafort, Trump responded, “I have great respect for what he’s done, in terms of what he’s gone through.”

On September 14, 2018, Manafort pleaded guilty to additional charges pursuant to a cooperation agreement. Over the following months, Manafort’s attorneys regularly briefed Trump’s attorneys on the topics Manafort discussed with the Special Counsel. On November 26, 2018, the Special Counsel disclosed publicly that Manafort had breached his cooperation agreement by lying about multiple subjects. When asked if he would pardon Manafort, Trump responded, “It was never discussed, but I wouldn’t take it off the table.”

Trump’s conduct could satisfy the three legal elements of obstruction of justice. First, Trump’s actions could constitute an “obstructive act” because they had the potential to influence Manafort’s decision whether to cooperate — by making clear Trump did not want Manafort to cooperate and by holding out the possibility of a pardon. Further, Trump’s public statements during the Manafort trial had the potential to influence the jury. Second, Trump’s actions related to an “official proceeding” because Manafort was under indictment and on trial. Third, Trump had corrupt “intent” because Trump intended to encourage Manafort not to cooperate and some evidence supports that he intended, at least in part, to influence the jury.

* Lengthy passages on these pages concerning a third individual are redacted due to harm to an ongoing matter.

Volume 2.13

Incident Ten: Conduct Toward Michael Cohen (pp. 134-156)

The Trump Tower Moscow Project

From September 2015 through at least June 2016, the Trump Organization tried to build a Trump Tower Moscow in Russia. Cohen obtained approval from Trump in September 2015 to pursue the project. Thereafter, Cohen routinely briefed Trump on the project — including the fact that Cohen had spoken with somebody “from the Kremlin” — and Trump at times asked Cohen for updates. In late 2015, Trump signed a letter of intent that specified highly lucrative terms for the Trump Organization. Cohen described it as a $1 billion deal.

Although Cohen continued to brief Trump regularly on the project through June 2016, Trump — who by then was a leading candidate for the Republican nomination — publicly claimed he had nothing to do with Russia. Even as questions emerged about possible Russian support for Trump, he denied any personal, financial or business connections to Russia. Cohen understood this as the “party line” or “message” for Trump’s senior advisors.

After Trump won the election, the media asked Cohen about the Trump Tower Moscow project. Cohen worried that truthful answers would undermine Trump’s prior false denials. So, after consultation with Trump, Cohen falsely told the media that the Trump Tower Moscow deal had ended in January 2016 — an early point in the campaign, before primary voting began and Trump eventually became the presumptive nominee.

In May 2017, Cohen received requests from Congress for information about Russian election interference. Cohen spoke with Trump and Trump’s personal counsel about his Congressional testimony. Trump’s counsel encouraged Cohen to stay on message, and assured Cohen that he would be protected if he remained in a joint defense agreement with Trump, but would not be protected if he “went rogue.” Trump’s counsel reminded Cohen that Trump loved him and had his back if he stayed on message.

In August 2017, Cohen submitted a false written statement to Congress. Cohen falsely claimed Trump Tower Moscow negotiations ended in January 2016 (rather than June 2016); that Trump had never considered travelling to Russia (when in fact he had discussed it with Cohen); and that Cohen spoke with Trump about the project only three times (when in fact Cohen briefed Trump many more times).

As he drafted his false statement, Cohen spoke almost daily with Trump’s counsel, who had no firsthand knowledge of the matter but suggested several revisions and deletions favorable to Trump. An early draft included a sentence, “The building project led me to make limited contacts with Russian government officials.” Cohen also told Trump’s counsel that there were more communications with Trump about the deal than the draft statement reflected. Trump’s counsel assured Cohen that Trump appreciated Cohen, and that Cohen should stay on message and not contradict Trump, and there was no need to muddy the water.

Cohen spoke to the President more generally about how he planned to stay on message in his testimony, which Cohen believed they both understood would require false testimony. Cohen orchestrated the public release of his opening statement to Congress to let other potential witnesses know what Cohen was saying so they could follow the same message. Trump’s counsel told Cohen that the President was pleased with his statement to Congress.

Hush Money Payments Investigation Turns to Cohen

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly disclosing a prior affair with Trump. After speaking with Trump about the matter, Cohen falsely told the media that he had made the payment on his own, without involvement by the Trump Organization or Campaign, and without reimbursement. Trump’s counsel later texted Cohen that Trump “says thanks for what you do.”

On April 9, 2018, the FBI executed search warrants on Cohen’s residences and office. Trump publicly supported Cohen (calling him “a good man”) and complained about the searches (calling them “a real disgrace” and “an attack on our country, in a true sense”). Trump called Cohen and encouraged him to “hang in there” and “stay strong.” Others reached out to Cohen to convey that Trump “loves you” and “has your back.” Trump tweeted that “I have always liked & respected” Cohen, who would not “flip if the Government lets them out of trouble.”

After the searches, Cohen asked Trump’s personal counsel about the possibility of a pardon. Cohen understood based on conversations with the President’s counsel that as long as he stayed on message, he would be taken care of by the President by a pardon or the investigation being shut down.

Cohen Cooperates

In July 2018, the media reported that Cohen had signaled his willingness to cooperate with Special Counsel. Later that month, the media reported on the existence of a recording Cohen had made of a conversation between Cohen and Trump about hush money payments to a second woman who had an affair with Trump. Trump then tweeted an attack on the Special Counsel’s investigation and on Cohen, stating that Cohen had illegally taped him and “is trying to make up stories in order to get himself out of an unrelated jam.”

In August 2018, Cohen pleaded guilty to eight felony charges, including two counts relating to the hush money payments. Cohen stated under oath in court that he made the payments “at the direction of the candidate.” Trump then sent a tweet contrasting Manafort’s refusal to cooperate with Cohen’s cooperation, praising Manafort for “refusing to ‘break’ — make up stories in order to get a ‘deal.’” Trump publicly called Cohen “a weak person” who was “lying” to get a reduced sentence. Trump also publicly implied that Cohen’s family members had committed crimes, and called Cohen a “Rat.”

Regarding the Trump Tower Moscow project, there is insufficient evidence that Trump directed or aided Cohen’s false testimony to Congress about the Trump Tower Moscow project — in part because attorney-client privilege issues prevented a determination whether and to what extent Trump’s personal counsel communicated with Trump about Cohen’s preparation of the false testimony.

Regarding Cohen’s cooperation, the evidence could constitute obstruction of justice. First, Trump committed an “obstructive act” because he tried to encourage Cohen not to cooperate and then attacked and intimidated Cohen after he began cooperating. Second, Trump’s conduct toward Cohen implicated an “official proceeding” because Trump knew that various prosecutors were investigating Cohen and others. Third, the evidence could support the inference that the president “intended” to discourage Cohen from cooperating because Cohen’s testimony could “shed adverse light” on Trump’s conduct and statements. Further, Trump’s statements about Cohen and his family members could be viewed as an effort to retaliate against Cohen and chill further testimony adverse to the President.

See also Volume 1.6: Links and Contacts with Russia: Michael Cohen and Trump Tower Moscow

Volume 2.14

Prebuttal I: Response to Possible Statutory Defenses (pp. 159-168)

President Donald Trump’s lawyer has argued that a core federal law criminalizing obstruction of justice does not cover Trump’s actions. That argument is contrary to the position that the Justice Department has taken in litigation and, moreover, is unsupported by principles of statutory construction or decisions by federal courts. Overall, given the breadth of that statute and other federal laws criminalizing obstruction of justice, there is no merit to the argument that the conduct at issue in the Special Counsel’s investigation falls outside the scope of federal obstruction laws.

The relevant provision of law, 18 U.S.C. § 1512(c)(2), states:

Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

The Department of Justice has taken the position in litigation that this statutory provision states a broad, independent, and unqualified prohibition on obstruction of justice. While defendants have argued that subsection (c)(2) should be read to cover only acts that would impair the availability or integrity of evidence because that is subsection (c)(1)’s focus, strong arguments weigh against so limiting (c)(2)’s scope.

Those arguments start with the statutory text itself. That text of (c)(2) is broad and unqualified, with nothing limiting the provision’s reach to acts that would impair the integrity or availability of evidence for use in an official proceeding—a notable omission, given the limitation along those lines included in (c)(1) and other federal laws. The intent required to violate (c)(2) is limited to acting “corruptly,” without additional intent required.

The structure of the statute confirms this understanding. That structure makes clear that (c)(2) defines an offense independent from the one described in (c)(1) and not so limited, including through the use of separate numbers and line breaks; the use of “or” (rather than “and”) between the two provisions; and the inclusion of an independent “attempt” prohibition in each of the two provisions.

Additionally, the use of “otherwise” at the beginning of (c)(2) confirms that it establishes an offense independent from the one described in (c)(1). That word signals coverage of activity other than what is already covered by (c)(1), rather than suggesting somehow that (c)(2) is narrower.

Consistent with this understanding of the statute’s text and structure, federal courts have not limited (c)(2) to conduct that impairs evidence, instead reading it to cover obstructive acts in any form. For example, the U.S. District Court for the District of Columbia explicitly rejected the notion that (c)(2)’s scope “is limited to conduct that is similar to the type of conduct proscribed by subsection (c)(l)—namely, conduct that impairs the integrity or availability of ‘record[s], documents[s], or other object[s] for use in an official proceeding.’” United States v. Ring , 628 F. Supp. 2d 195, 224 (D.D.C. 2009). Moreover, courts have upheld convictions under (c)(2) that did not involve evidence impairment but instead resulted from conduct that more broadly thwarted arrests or investigations.

Overall, (c)(2) serves a distinct function in the federal obstruction-of-justice statutes: It captures corrupt conduct, other than document destruction, that has the natural tendency to obstruct contemplated as well as pending proceedings. Under that reading, (c)(2) overlaps with other obstruction statutes, but it does not render them superfluous, as they apply in circumstances where (c)(2) does not.

The legislative history of (c)(2) provides no basis for narrowing its reach, especially as its language parallels a provision that Congress had considered years before (c)(2)’s adoption when assessing a bill designed to strengthen protections against witness tampering and obstructing justice. The general requirement that criminal statutes provide fair warning of the behavior that they proscribe also does not justify narrowing (c)(2)’s scope, given that courts have required to for (c)(2) violations a nexus between the obstructive activity and particular, foreseeable official proceedings. The general requirement of avoiding impermissible vagueness in the criminal law is satisfied by (c)(2)’s demand that one acted “corruptly” to violate it, and courts consistently have rejected challenges on vagueness grounds. And the rule of lenity, which resolves ambiguities in criminal laws in favor of the less-severe construction, is irrelevant here given the lack of ambiguity in the first place with respect to the proscribed activity.

Furthermore, regardless of whether (c)(2) applies to Trump’s behavior, other federal criminal statutes would apply to such conduct in pending proceedings, provided that remaining statutory requirements are satisfied. Those statutes criminalize obstruction of pending judicial and grand jury proceedings; obstruction of pending agency and congressional proceedings; and witness tampering.

In sum, given the breadth of (c)(2) and other obstruction statutes, an argument that the conduct at issue in the Special Counsel’s investigation falls outside the scope of the obstruction laws lacks merit.

Volume 2.15

Prebuttal II: Response to Possible Constitutional Defenses (pp. 168-182)

By Harry Litman

Although the President has broad authority under Article II to direct criminal investigations, that authority coexists with Congress’s Article I power to enact laws that protect against corrupt efforts to undermine their functions.

The President’s personal counsel has argued that “the President’s exercise of his constitutional authority … to terminate an FBI Director and to close investigations … cannot constitutionally constitute obstruction of justice.”

As a preliminary matter, the obstruction statutes don’t require a “clear statement” in order to apply to the President. Those statutes raise no separation of powers questions were it to be applied to the President, since the Constitution does not authorize the President to engage in obstruction of justice. Nor is it tenable to adopt an unconventional meaning of a statutory term—such as “corruptly”–only when applied to the President

Turning to the separation of powers analysis that the President’s argument engages, the Supreme Court’s case law prescribes a balancing test for resolution of potential conflicts according to separation-of-powers principles.

The first prong of the balancing test is the degree to which applying obstruction-of-justice statutes to presidential actions affects the President’s ability to carry out his Article II responsibilities. The answer with respect to corrupt influence of witness testimony is not at all: the President has no more right than other citizens to impede official proceedings in that manner.

A different analysis applies to the President’s action in curtailing criminal investigations or prosecutions, or removing law enforcement officials, because those actions involve the exercise of executive discretion which Congress may not supplant. Yet the obstruction -of-justice statutes do not aggrandize power in Congress or usurp executive authority. Instead, those statutes impose a discrete limitation on conduct only when it is taken with the “corrupt” intent to obstruct justice.

The same is true of the President’s broad but not unfettered authority to remove Executive Branch officials involved in the execution of the laws. The removal of inferior officers need not necessarily be at will for the President to fulfill his constitutionally assigned role in managing the Executive Branch. Where the Constitution permits Congress to impose a good-cause limitation on the removal of an Executive Branch officer, it equally should permit Congress to bar removal for the corrupt purpose of obstructing justice.

The final step in the constitutional balancing process is to assess whether the separation- of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article II functions. In the case of the obstruction-of-justice statutes, Congress has the authority to impose the limited restrictions contained in those statutes on the President’s official conduct to protect the integrity of important functions of other branches of government, including Congress’s own proceedings, grand jury investigations, and federal criminal trials. What’s more, the concept of “faithful execution” in Article II connotes the use of the President’s power in the interest of the public, not in the office holder’s personal interests. Accordingly, a general ban on corrupt action does not unduly intrude on the President’s responsibility to faithfully execute the laws of the land.

The impeachment clause does not provide a sufficient remedy because it would result only in the removal of a President from office, and not address the underlying culpability of the conduct or serve the purposes of the criminal law.

Several safeguards would prevent an investigation into whether the President violated the obstruction statutes from chilling the performance of his Art II duties. These include the existence of settled legal standards, the presumption of regularity in prosecutorial actions, and the existence of evidentiary limitations on probing the President’s motives. And historical experience confirms that no impermissible chill should exist. Finally, the “corruptly” requirement sets a demanding standard.

Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct. So too would action to halt an enforcement proceeding for the purpose of protecting the President’s financial interests.

In contrast, the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings.

There is also no reason to believe that investigations, let alone prosecutions, would occur except in highly unusual circumstances when a credible factual basis exists to believe that obstruction occurred. While the Justice Department’s Office of Legal Counsel opinion leaves room for possible prosecution of a former President by a successor Administration, there are political checks against initiating a baseless investigation or prosecution of a former President.

Finally, history provides no reason to believe that any asserted chilling effect justifies exempting the President from the obstruction laws. As a historical matter, Presidents have very seldom been the subjects of grand jury investigations. And it is rarer still for circumstances to raise even the possibility of a corrupt personal motive for arguably obstructive action through the President’s use of official power.

In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person-including the President-accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law” (citing Supreme Court cases including Clinton v. Jones and United States v. Nixon ).

By George T. Conway III

Four hundred and forty-eight pages. Two thousand, three hundred and seventy-five footnotes. About 16,500 lines of text, and roughly 200,000 words. And downloaded, the Justice Department reports, nearly 800 million times .

With all the exposure it received, and given its manifest importance, you might have thought that more people would have read some or all of the Mueller report. But it seems that few have, including many members of Congress . No doubt for some, the size of the report and the sprawling nature of its subject has much to do with that. Which is why we assembled this remarkable team to summarize it all here.

The summaries distill the report to a manageable size; even so, the report’s sprawling nature is made clear. But the report’s ultimate significance can be boiled down even further—to an essence that every citizen should understand, and, ultimately, one that speaks to the obligations and duties of a president of the United States.

That essence is this. In 2016, the United States was attacked. Not its ships or its soldiers, and not with missiles or bombs. Our democracy was attacked, by a hostile foreign government, through the use of technology, lies, and deception. In “sweeping and systematic fashion,” the report tells us, the Russian government interfered in an American presidential election, seeking to affect its result, and to undermine public confidence in our politics. Whether the attack did the former will be debated for a long time, but it certainly did the latter, and all patriotic Americans ought to agree: We must do everything we can to see that it never happens again.

To that end, it was the job of the executive branch, led by the President—first President Barack Obama, and then President Donald Trump—to find out exactly what happened. America’s intelligence agencies all agreed, and still do: The Russians did interfere. In particular, they tried to help Trump and hurt candidate Hillary Clinton. The question was, exactly what did the Russians do, and how did they do it?

That was the core of the job that former FBI Director Robert Mueller was assigned—to conduct a counterintelligence investigation. To be sure, his mandate as special counsel was broader, and included a prosecutorial focus: If he uncovered crimes, he could charge them. And in particular, given some unusual links between some in the Trump Campaign and agents of Russia—including a campaign manager with financial ties to a Russian oligarch and Russian-backed Ukrainians, and a foreign policy advisor whom a court found to be an “agent of a foreign power,” namely Russia—Special Counsel Mueller’s job was also to find out the extent of those links. (The report, while finding no chargeable criminal conspiracy involving Trump campaign aides and the Russians, and not addressing the nonlegal concept of “collusion,” in the end found many more such links.)

For his part, the job of the President was to protect the nation. That meant allowing the investigation to proceed to its rightful conclusion, indeed supporting it, and letting the chips falling where they may.

But Trump didn’t see it that way. From the outset, he looked at the investigation in terms of how it affected him personally, and not in terms of how it impacted the country. From the outset, he tried to affect its outcome.

Ironically, his effort made the investigation more about himself than it ever had to be. Trump fired an FBI director because the FBI director wouldn’t make a public statement Trump wanted about his status in the investigation—and then bragged about the firing to, of all people, the foreign minister of the Russian Federation and its ambassador to the United States.

The President relentlessly attacked the investigation over the course of two years. And he tried to sharply curtail it, and even kill it altogether. Repeatedly. The President particularly hated that it made it seem he hadn’t actually won the great election victory of which he liked to boast.

The President tried to fire the special counsel. He directed his White House counsel to tell the acting attorney general that the special counsel could not serve because of a contrived, nonexistent conflict of interest, and thus had to go. The White House counsel, putting the law and the nation’s interests above the President’s personal interests, refused, packed up his office, and threatened to resign.

The President tried to get the attorney general, who had recused himself from the investigation, to unrecuse himself, so that the attorney general could get rid of the special counsel. Trump repeatedly and personally urged the attorney general to reverse his recusal, a recusal recommended by ethics lawyers, but the attorney general, likewise putting the law and the nation’s interests above the president’s personal interests, refused.

Trump urged a political ally, a former campaign aide not in the government, to surreptitiously tell the attorney general that the investigation should be limited to future election interference only. Trump brutally attacked the attorney general on Twitter, and in the press, for recusing himself.

The President also tried to affect the cooperation and testimony of witnesses. Through public statements, for example, Trump encouraged a former campaign manager, on trial for fraud, to refuse to cooperate with the government that the president himself heads. Making matters worse, Trump’s conduct toward witnesses raised the specter of an abuse of his official powers: If he and his personal lawyers didn’t outright dangle pardons to witnesses, they came very close.

The President did much more than this, but all of this is more than enough: He committed the crime of obstructing justice—multiple times. The report doesn’t specifically draw this conclusion, but it goes through the legal analysis step by step, and the result, at least for several of the incidents the report describes, is clear. Trump’s conduct satisfies the three essential elements of obstruction: (1) an obstructive act, meaning anything that could impede the course of justice; (2) a nexus, meaning a temporal, causal, or logical connection, to a pending or contemplated or official proceeding; and (3) corrupt intent.

It doesn’t matter that the investigation may have gone on unimpeded—the statute actually refers to, and thus explicitly covers, “attempts” to “obstruct[], influence[], or impede[]” a proceeding. It also doesn’t help Trump that Article II of the Constitution gives him the power to hire and fire executive officials, and to exercise executive powers, including the power to decide what to investigate and prosecute. This is because the Constitution doesn’t give a president the power to exercise those powers “corruptly” to obstruct justice, which is what the statute, by its terms, prohibits.

And the President did just that. He certainly acted corruptly. He wanted to impede and end an investigation for his own personal reasons, not for the benefit of the nation. Officials around him knew it, which is why they refused to do his bidding, and even grew so alarmed they consulted personal counsel apparently for fear that Trump was potentially putting them into personal legal jeopardy. And Trump’s own behavior betrayed that even knew he was acting corruptly. Why else, for example, would Trump enlist a private intermediary to deliver a secret threatening oral message to the attorney general of the United States? Why else would he castigate a White House lawyer for having taken notes about what he had asked to the lawyer to do?

Indeed, the report shows that Trump even obstructed justice about obstructing justice. When the media reported that he had asked his White House counsel to take steps to get rid of Mueller, Trump tried to get the counsel to lie about it. The counsel refused. Not only that, Trump tried to get the counsel to create a false document about it. The counsel refused to do that as well. Still, trying to get a witness to adopt a false story, or to create a false record, about a matter under investigation, constitutes classic obstruction. Trump brazenly did both.

Yet, in the end, the ultimate importance of the Mueller report doesn’t stem from whether it shows specific elements of a particular subsection of the Criminal Code, even one prohibiting obstruction, have been satisfied. To be sure, for the President of the United States—sworn by oath to take care that the nation’s laws are faithfully executed—to commit a crime, and a federal crime at that, is awful. And for him to commit a crime that involves an attempt to pervert justice is absolutely reprehensible.

But there is actually more at stake here, something far more fundamental. The people of the United States of America have the right to expect far more of a president than merely that he not be provably a criminal. They have the right to expect of a president what the Framers expected—and what the Constitution demands.

The Framers understood the presidency—not just the presidency, but all public offices, and especially the presidency—to be a fiduciary position, a position of trust. As one recent scholarly work has put it, the “original design”—the “vision of the framers”—was that the President “is supposed to act like a fiduciary.” As illustrated by a trustee of a trust, a classic example of a fiduciary, a fiduciary must subordinate his interests to those of the beneficiaries he is called upon to serve. If he or she doesn’t do that, then on a sufficient showing, an appropriate authority—historically, a court of equity—could remove the trustee.

In the case of a president, the trust is the nation’s federal government, and the beneficiaries are its people. The President is called upon to “pursue the public interest in a good faith republican fashion rather than pursuing his self-interest.” In particular, given his constitutional duty to faithfully execute the laws, the President “must diligently and steadily execute Congress’s commands” as embodied in federal law. The special counsel’s report shows Trump disregarded that duty—indeed, that he showed contempt for it almost whenever he could. Called upon to protect the nation against an attack from a foreign power, he acted principally to protect himself. Indeed, although it is not in the report, Trump, sitting beside the principal perpetrator of this attack just a few weeks ago, effectively mocked his solemn duties to the nation before the world.

The Framers laid out the standard by which the President’s compliance with his fiduciary obligations must be judged—as well as who must do the judging. The standard is “high crimes and misdemeanors.” That term was not meant merely to incorporate the criminal statute books. It is a legal term of art, packing in centuries of Anglo-American parliamentary history. At its core, as another scholar has explained , “the phrase denotes breaches of fiduciary duties” by public officials. And the Framers charged the Congress of the United States with enforcing that standard.

If the Mueller report demonstrates one thing, it is that President Trump utterly failed to carry out his duties under the Constitution—that indeed, he shamelessly abjured them. It is time for members of Congress to do their duties and to hold the President to account.

Kate Brannen, Moments in Mueller’s Testimony You Might Have Missed , Just Security, July 26, 2019

Kristen Eichensehr, Cyberattack Attribution and the Virtues of Decentralization , Just Security, July 3, 2019

Joshua A Geltzer, Decoding What Barr Really Said About Letting the Public See the Mueller Report , Just Security, January 16, 2019

Ryan Goodman, A Side-by-Side Comparison of Barr’s vs Mueller’s Statements about Special Counsel Report , Just Security, June 5, 2019

Elie Honig, William Barr Threw His Credibility in the Gutter , CNN, April 21, 2019

Elie Honig, Mueller’s Message:  Congress, It’s Your Turn , CNN, May 29, 2019

Harry Litman, Five Things We Learned from Mueller’s First Round of Questioning , Washington Post ,  July 24, 2019

Harry Litman, Mueller’s Greatest Failing is Trump’s Greatest Triumph , Washington Post, July 23, 2019

Harry Litman, William Barr is Making Trump’s Obsession His Own , Washington Post ,  July 24, 2019

Harry Litman, Trump’s Case for Executive Privilege is Strained at Best , Washington Post ,  May 8, 2019

Harry Litman, Mueller Probe Laid Bare Grave Institutional Failures , Washington Post ,  April 18, 2019

Harry Litman, If Congress Wants Unredacted Mueller Report, Here’s How to Get It ,Washington Post ,  April 16, 2019

Harry Litman, William Barr’s Testimony Was a Terrible Self-Inflicted Wound , Washington Post ,  April 12, 2019

Renato Mariotti, William Barr Has Some Explaining To Do , Politico Magazine, March 24, 2019

Renato Mariotti, How Trump Could Be Prosecuted After the White House , Politico Magazine, June 6, 2019

Barbara McQuade, No Red Line: Follow the Money , ACS Blog, July 27, 2017

Barbara McQuade, What to Know About the Shadowy Nunes Memo , Detroit Free Press, February 5, 2018

Barbara McQuade, Will Trump Pardon Manafort? President Must Weight the Risks , Detroit Free Press, March 16, 2018

Barbara McQuade, Michael Flynn Wasn’t Railroaded He Just Played Himself , The Daily Beast, December 18, 2018

Barbara McQuade, Mueller’s Seething Message: This Isn’t a Hoax, This is a Crime , The Daily Beast, May 30, 2019

Barbara McQuade, William Barr Delivers Chilling Message to FBI for Trump, The Daily Beast, May 15, 2019

Barbara McQuade and Joyce Vance, Mueller’s Report May Be Completed, But His Work Isn’t Done And That’s What We Told Congress , NBCTHINK, June 18, 2019

Barbara McQuade and Joyce Vance, Mueller Report: Breaking Down the Biggest Myths , Time, July 8, 2019

Barbara McQuade, Robert Mueller Testimony on Trump and Russia: Devastating Facts That Point to Impeachment , USA Today, July 24, 2019

Barbara McQuade, Men are from Mars, Prosecutors are from Venus, , ACS Blog, July 24, 2019

Asha Rangappa, What Happens Next with the Mueller Report? , TIME, May 3, 2019

Mimi Rocah, Robert Mueller’s Congressional Testimony Matters, Here’s Why , NBCNewscom June 29, 2019

Joyce White Vance, Time, Why the Mueller Report Shouldn’t Be the Final Word on Trump, Russia and Obstruction of Justice , TIME, April 19, 2019

Joyce White Vance, If Only We Had Heard From Robert Mueller Before William Barr’s Spin , USA Today May 30, 2019

Joyce White Vance, This Might Be the Most Important Exchange in the Mueller Testimony , Time, July 25, 2019

Andy Wright and Just Security, Q&A on House-Justice Dept Showdown Over Release of Unredacted Mueller Report and Contempt of Congress , Just Security, May 8, 2019

Andy Wright, Can Congress Subpoena Trump to Testify? , Just Security, November 27, 2018

Volume I: Russian Interference and the Trump Campaign

Joshua Geltzer and Ryan Goodman, Mueller Hints at a National-Security Nightmare , New York Times, April 19, 2019

Ryan Goodman, Guide to the Mueller Report’s Findings on “Collusion,” Just Security, April 29, 2019

Ryan Goodman, Testimony to Senate Judiciary Committee on Election Interference , June 12, 2018

Barbara McQuade, Mueller Exposed Trump’s Biggest Betrayal, New York Magazine, April 22, 2019

Alex Finley, Asha Rangappa, and John Sipher, Collusion Doesn’t Have to Be Criminal to be an Ongoing Threat , Just Security, December 15, 2017

Asha Rangappa, Trump’s Moscow Deal is Exactly What the Framers Worried About, Politico, December 9, 2018

Asha Rangappa, The FBI Can’t Neutralize a National Security Threat if the President is the Threat , The Washington Post, January 13, 2019

Asha Rangappa, How Barr and Trump Use a Russian Disinformation Tactic , The New York Times, April 19, 2019

Paul Seamus Ryan, The Smoking Gun for Donald Trump Jr and the Trump Campaign Committee , Just Security, July 13, 2017

Paul Seamus Ryan, Trump Campaign in Legal Jeopardy Over Manafort’s Sharing Data with Russian Agent , Just Security, January 10, 2019

Paul Seamus Ryan, Roger Stone Indictment Implicates Trump Campaign in Election Law Violations , Just Security, January 25, 2019

Volume II: Obstruction of Justice

Jennifer Daskal, Trump Tried To Obstruct Justice But He Was Too Inept To Do It , The Washington Post, April 19, 2019

Ryan Goodman, Mueller’s Message: The Obstruction That Nearly Halted Criminal Case Against Russians , Just Security, May 29, 2019

Ryan Goodman and John T. Nelson, Mueller Hearing Risks Narrowing the Range of Impeachable Offenses , Just Security, July 23, 2019

Ryan Goodman and Alex Potcovaru, All the President’s Lawyers: A Chart of Misconduct and Possible Crimes Revealed by Mueller Report , Just Security, May 14, 2019

Neal Katyal and Joshua A Geltzer, Barr Tried To Exonerate Trump That’s Not How the Special Counsel Rules Work , The Washington Post, April 19, 2019

Renato Mariotti, The Obstruction Case Against Trump That Barr Tried To Hide , Politico Magazine, April 19, 2019

Barbara McQuade, Testimony to House Judiciary Committee Hearing on the Mueller Report , June 10, 2019

Barbara McQuade, Not Mere Process Crimes, False Statements Prosecutions are Serious , Just Security, December 20, 2018

Barbara McQuade, How President Trump’s Comments on ‘Flipping’ Witnesses Undermine Law Enforcement, Lawfare, September 1, 2018

Barbara McQuade, Barr Sounds More and More Like Trump’s Roy Cohn , The Daily Beast, April 10, 2019

Barbara McQuade, Mueller Report Offers Road Map on Obstruction Despite Barr, Congress May Use It , USA Today, April 20, 2019

Barbara McQuade, Forget Roy Cohn Future Presidents Will Ask ‘Where’s My Bill Barr?’ , The Daily Beast, April 20, 2019

Barbara McQuade, Did Trump and His Team Successfully Obstruct Mueller’s Investigation? , Just Security, June 25, 2019

Asha Rangappa, The Forgotten Reason Congress Needs to See the Mueller Report, Politico , Politico, April 9, 2019

Mimi Rocah and Renato Mariotti, If Trump Weren’t President, He Would Already Be Charged , The Daily Beast, April 28, 2019

Mimi Rocah and Elie Honig, Republican Attempts to Defend Trump and Barr’s ‘No Obstruction’ Decree Are Pathetic , USA Today, June 12, 2019

Mimi Rocah & Elie Honig Manafort’s Choices: Work With Mueller, Wish for a Trump Pardon, or Die in Prison , Daily Beast August 18, 2018

Joyce White Vance, Testimony to House Judiciary Committee Hearing on the Mueller Report , June 10, 2019

About the Author(s)

Just security.

We are a forum on law, rights, and U.S. national security.

You can follow on Twitter @just_security

Kate Brannen

Editorial Director of Just Security, 2016-2021; follow her on Twitter ( @K8brannen ).

George T. Conway III

George T. Conway III ( @gtconway3d ) is Of Counsel in the Litigation Department of Wachtell, Lipton, Rosen & Katz in New York.

Jennifer Daskal

Professor and Faculty Director of the Tech, Law, Security Program at American University Washington College of Law. Member of the editorial board of Just Security. Follow her on Twitter ( @jendaskal ).

Kristen Eichensehr

Kristen Eichensehr ( @K_Eichensehr ) is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor and Director of the National Security Law Center at the University of Virginia School of Law and a member of the Just Security Editorial Board. She writes and teaches about cybersecurity, foreign relations, international law and national security law.

Joshua Geltzer

Executive Editor. Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Follow him on Twitter ( @jgeltzer ).

Ryan Goodman

Ryan Goodman ( @rgoodlaw ) is co-editor-in-chief of Just Security and Anne and Joel Ehrenkranz Professor of Law at New York University School of Law.

Elie Honig ( @eliehonig ) is a CNN Legal Analyst, former federal and state prosecutor, including Assistant United States Attorney for the Southern District of New York, and current Rutgers University scholar.

Harry Litman

Harry Litman ( @harrylitman ) is a former United States Attorney and Deputy Assistant Attorney General, a Constitutional Law Professor at UCLA and UCSD, a Washington Post columnist, a practicing attorney at Constantine Cannon, and the creator and host of the podcast Talking Feds .

Renato Mariotti

Formerly a Federal Prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office for the Northern District of Illinois. Member of the editorial board of Just Security. Follow him on Twitter ( @renato_mariotti ).

Barbara McQuade

Barbara McQuade ( @BarbMcQuade ) is Professor from Practice at the University of Michigan Law School, former United States Attorney for the Eastern District of Michigan (2010-2017), Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee in the Obama Administration. McQuade is the author of Attack from Within: How Disinformation is Sabotaging America . She is also a Member of the Editorial Board of Just Security.

Asha Rangappa

Asha Rangappa ( @AshaRangappa_ ) is Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Member of the editorial board of Just Security.

Mimi Rocah ( @Mimirocah1 ) is a Legal Analyst for MSNBC and NBC News, a Distinguished Criminal Justice Fellow at Pace School of Law, and former Assistant United States Attorney in the Southern District of New York for 16.5 years from February 2001 until October 2017.

Paul Seamus Ryan

Vice President of Policy & Litigation at Common Cause. Follow him on Twitter ( @ThePaulSRyan ).

Rita Siemion

Director of National Security Advocacy at Human Rights First. Member of the editorial board of Just Security. Follow her on Twitter ( @ritasiemion ).

Joyce Vance

Joyce White Vance ( @JoyceWhiteVance ) is Distinguished Professor of the Practice of Law at the University of Alabama School of Law and former United States Attorney for the Northern District of Alabama from 2009 to 2017. Member of the Editorial Board of Just Security.

Andy Wright

Andy Wright ( @AndyMcCanse ) is Senior Fellow and Founding Editor of Just Security. He previously served as Associate Counsel to the President in the White House Counsel’s Office; and Staff Director and Counsel to the national security subcommittee of the U.S. House Committee on Oversight and Government Reform. Wright is a Partner in the Washington office of K&L Gates.

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Exhibit A Statement of Brett Payne The below information is provided by Brett Payne, who is a duly appointed, qualified and acting peace officer within the County of Latah, State of Idaho. Brett Payne is employed by Moscow Police Department in the official capacity or position of Corporal (CPL) and has been a trained and qualified peace officer for approximately four (4) years. CPL Payne is being assisted by members of the Idaho State Police and agents of the Federal Bureau of Investigation. On November 13, 2022, at approximately 4:00 p.m., Moscow Police Department (MPD) Sergeant Blaker and I responded to 1122 King Road, Moscow, Idaho, hereafter the "King Road Residence," to assist with scene security and processing of a crime scene associated with four homicides. Upon our arrival, the Idaho State Police (ISP) Forensic Team was on scene and was preparing to begin processing the scene. MPD Officer (OFC) Smith, one of the initial responding officers to the incident, advised he would walk me through the scene. OFC Smith and I entered the King Road Residence through the bottom floor door on the north side of the building. OFC Smith and I then walked upstairs to the second floor. OFC Smith directed me down the hallway to the west bedroom on the second floor, which I later learned (through Xana's driver's license and other personal belongings found in the room) was Xana Kernodle's, hereafter "Kernodle" room. Just before this room there was a bathroom door on the south wall of the hallway. As I approached the room, I could see a body, later identified as Kernodle's, laying on the floor. Kernodle was deceased with wounds which appeared to have been caused by an edged weapon. Also in the room was a male, later identified as Ethan Chapin, hereafter, "Chapin". Chapin was also deceased with wounds later determined (Autopsy Report provided by Spokane REDACTED 1 SENO, CK29-22-2805 CLRK OF DIST CT. LATAH DEC 25 2022 PK2:52

County Medical Examiner injuries." dated December 15, 2022) to be caused by "sharp-force I then followed OFC Smith upstairs to the third floor of the residence. The third floor consisted of two bedrooms and one bathroom. The bedroom on the west side of the floor was later determined to be Kaylee Goncalves, hereafter "Goncalves," room. I later learned (from review of Officer Nunes' body camera) there was a dog in the room when Moscow Police Officers initially responded. The dog belonged to Goncalves and her ex-boyfriend Jack Ducoeur. I found out from my interview with Jack Ducouer on November 13, 2022 that he and Goncalves shared the dog. OFC Smith then pointed out a small bathroom on the east side of the third floor. This bathroom shared a wall with Madison Mogen's, hereafter "Mogen" bedroom which was situated on the southeast corner of the third floor. As I entered this bedroom, I could see two females in the single bed in the room. Both Goncalves and Mogen were deceased with visible stab wounds. I also later noticed what appeared to be a tan leather knife sheath laying on the bed next to Mogen's right side (when viewed from the door). The sheath was later processed and had "Ka-Bar" "USMC" and the United States Marine Corps eagle globe and anchor insignia stamped on the outside of it. The Idaho State Lab later located a single source of male DNA (Suspect Profile) left on the button snap of the knife sheath. As part of the investigation, numerous interviews were conducted by Moscow Police Department Officers, Idaho State Police Detectives, and FBI Agents. Two of the interviews included B.F., and D.M. Both B.F. and D.M. were inside the King Road Residence at the time of the homicides and were roommates to the victims. B.F.'s bedroom was located on the east side of the first floor of the King Road Residence. 2

Based on numerous interviews conducted by MPD Officers, ISP Detectives, and FBI Agents as well as my review of evidence, I have learned the following: On the evening of November 12, 2022, Chapin and Kernodle are seen by B.F. at the Sigma Chi house on the University of Idaho campus at 735 Nez Perce Drive from approximately 9:00 p.m. on November 12 to 1:45 a.m. on November 13. B.F. also estimated that at approximately, 1:45 a.m. Chapin and Kernodle returned to the King Road Residence. B.F. also stated that Chapin did not live in the King Road Residence but was a guest of Kernodle. Goncalves and Mogen were at a local bar, the Corner Club at 202 N. Main Street, in Moscow. Goncalves and Mogen can be seen on video footage provided by the Corner Club between 10:00 p.m. on November 12 and 1:30 a.m. on November 13th. At approximately 1:30 a.m. Goncalves and Mogen can be seen on video at a local food vendor called the "Grub Truck" at 318 S. Main Street in downtown Moscow. The Grub Truck live streams video from their food truck on the streaming platform Twitch which is available for public viewing on their website. This video was captured by law enforcement. A private party reported that he provided a ride to Goncalves and Mogen at approximately 1:56 a.m. from downtown Moscow (in front of the Grub Truck) to the King Road Residence. D.M. and B.F. both made statements during interviews that indicated the occupants of the King Road Residence were at home by 2:00 a.m. and asleep or at least in their rooms by approximately 4:00 a.m. This is with the exception of Kernodle, who received a DoorDash order at the residence at approximately 4:00 a.m. (law enforcement identified the DoorDash delivery driver who reported this information). 3

D.M. stated she originally went to sleep in her bedroom on the southeast side of the second floor. D.M. stated she was awoken at approximately 4:00 a.m. by what she stated sounded like Goncalves playing with her dog in one of the upstairs bedrooms, which were located on the third floor. A short time later, D.M. said she heard who she thought was Goncalves say something to the effect of "there's someone here." A review of records obtained from a forensic download of Kernodle's phone showed this could also have been Kernodle as her cellular phone indicated she was likely awake and using the TikTok app at approximately 4:12 a.m. D.M. stated she looked out of her bedroom but did not see anything when she heard the comment about someone being in the house. D.M. stated she opened her door a second time when she heard what she thought was crying coming from Kernodle's room. D.M. then said she heard a male voice say something to the effect of "it's ok, I'm going to help you." At approximately 4:17 a.m., a security camera located at 1112 King Road, a residence immediately to the northwest of 1122 King Road, picked up distorted audio of what sounded like voices or a whimper followed by a loud thud. A dog can also be heard barking numerous times starting at 4:17 a.m. The security camera is less than fifty feet from the west wall of Kernodle's bedroom. D.M. stated she opened her door for the third time after she heard the crying and saw a figure clad in black clothing and a mask that covered the person's mouth and nose walking towards her. D.M. described the figure as 5'10" or taller, male, not very muscular, but athletically built with bushy eyebrows. The male walked past D.M. as she stood in a "frozen shock phase." The male walked towards the back sliding glass door. D.M. locked herself in her 4

room after seeing the male. D.M. did not state that she recognized the male. This leads investigators to believe that the murderer left the scene. The combination of D.M.'s statements to law enforcement, reviews of forensic downloads of records from B.F. and D.M.'s phone, and video of a suspect video as described below leads investigators to believe the homicides occurred between 4:00 a.m. and 4:25 a.m. During the processing of the crime scene, investigators found a latent shoe print. This was located during the second processing of the crime scene by the ISP Forensic Team by first using a presumptive blood test and then Amino Black, a protein stain that detects the presence of cellular material. The detected shoe print showed a diamond-shaped pattern (similar to the pattern of a Vans type shoe sole) just outside the door of D.M.'s bedroom (located on second floor). This is consistent with D.M.'s statement regarding the suspect's path of travel. As part of the investigation, an extensive search, commonly referred to in law enforcement as a "video canvass," was conducted in the area of the King Road Residence. This video canvass was to obtain any footage from the early morning hours of November 13, 2022, in the area of the King Road Residence and surrounding neighborhoods in an effort to locate the suspect(s) or suspect vehicle(s) traveling to or leaving from the King Road Residence. This video canvass resulted in the collection of numerous surveillance videos in the area from both residential and business addresses. I have reviewed numerous videos that were collected and have had conversations with the other MPD Officers, ISP Detectives, and FBI Agents that are similarly reviewing footage that was obtained. A review of camera footage indicated that a white sedan, hereafter "Suspect Vehicle 1", was observed traveling westbound in the 700 block of Indian Hills Drive in Moscow at 5

approximately 3:26 a.m and westbound on Styner Avenue at Idaho State Highway 95 in Moscow at approximately 3:28 a.m. On this video, it appeared Suspect Vehicle 1 was not displaying a front license plate. A review of footage from multiple videos obtained from the King Road Neighborhood showed multiple sightings of Suspect Vehicle 1 starting at 3:29 a.m. and ending at 4:20 a.m. These sightings show Suspect Vehicle 1 makes an initial three passes by the 1122 King Road residence and then leave via Walenta Drive. Based off of my experience as a Patrol Officer this is a residential neighborhood with a very limited number of vehicles that travel in the area during the early morning hours. Upon review of the video there are only a few cars that enter and exit this area during this time frame. Suspect Vehicle 1 can be seen entering the area a fourth time a approximately 4:04 a.m. It can be seen driving eastbound on King Road, stopping and turning around in front of 500 Queen Road # 52 and then driving back westbound on King Road. When Suspect Vehicle 1 is in front of the King Road Residence, it appeared to unsuccessfully attempt to park or turn around in the road. The vehicle then continued to the intersection of Queen Road and King Road where it can be seen completing a three-point turn and then driving eastbound again down Queen Road. Suspect Vehicle 1 is next seen departing the area of the King Road Residence at approximately 4:20 a.m. at a high rate of speed. Suspect Vehicle 1 is next observed traveling southbound on Walenta Drive. Based on my knowledge of the area and review of camera footage in the neighborhood that does not show Suspect Vehicle 1 during that timeframe, I believe that Suspect Vehicle 1 likely exited the neighborhood at Palouse River Drive and Conestoga Drive. Palouse River Drive is at the southern edge of Moscow and proceeds into Whitman County, Washington. Eventually the road leads to Pullman, Washington. Pullman Washington is 6

approximately 10 miles from Moscow, Idaho. Both Pullman and Moscow are small college towns and people commonly travel back and forth between them. Law enforcement officers provided video footage of Suspect Vehicle to forensic examiners with the Federal Bureau of Investigation that regularly utilize surveillance footage to identify the year, make, and model of an unknown vehicle that is observed by one or more cameras during the commission of a criminal offense. The Forensic Examiner has approximately 35 years law enforcement experience with twelve years at the FBI. His specific training includes identifying unique characteristics of vehicles, and he uses a database that gives visual clues of vehicles across states to identify differences between vehicles. After reviewing the numerous observations of Suspect Vehicle 1, the forensic examiner initially believed that Suspect Vehicle 1 was a 2011-2013 Hyundai Elantra. Upon further review, he indicated it could also be a 2011-2016 Hyundai Elantra. As a result, investigators have been reviewing information on persons in possession of a vehicle that is a 2011-2016 white Hyundai Elantra. Investigators were given access to video footage on the Washington State University (WSU) campus located in Pullman, WA. A review of that video indicated that at approximately 2:44 a.m. on November 13, 2022, a white sedan, which was consistent with the description of the White Elantra known as Suspect Vehicle 1, was observed on WSU surveillance cameras travelling north on southeast Nevada Street at northeast Stadium Way. At approximately 2:53 a.m., a white sedan, which is consistent with the description of the White Elantra known as Suspect Vehicle 1, was observed traveling southeast on Nevada Street in Pullman, WA towards SR 270. SR 270 connects Pullman, Washington to Moscow, Idaho. This camera footage from 7

Pullman, WA was provided to the same FBI Forensic Examiner. The Forensic Examiner identified the vehicle observed in Pullman, WA as being a 2014-2016 Hyundai Elantra. At approximately 5:25 a.m., a white sedan, which was consistent with the description of Suspect Vehicle 1, was observed on five cameras in Pullman, WA and on WSU Campus cameras. The first camera that recorded the white sedan was located at 1300 Johnson Road in Pullman. The white sedan was observed traveling northbound on Johnson Road. Johnson Road leads directly back to West Palouse River Drive in Moscow which intersects with Conestoga Drive. The white sedan was then observed turning north on Bishop Boulevard and northwest on SR 270. At approximately 5:27 a.m., the White Elantra was observed on cameras traveling northbound on Stadium Way at Nevada Street, Stadium Way at Grimes Way, Stadium Drive at Wilson Road, and Stadium Way at Cougar Way. Depiction showing Moscow and Pullman: BUHOSE Mastite Depiction showing White Elantra's path of travel (not to scale): 8

Legend White Elantra seen leaving WSU Campus White Elantra seen Returning to WSU Campus Arrows are camera locations and indicate vehicle direction of travel Puliman Fun Stadium Washington State University WSU Bear Center On November 25, 2022, MPD asked area law enforcement agencies to be on the lookout for white Hyundai Elantras in the area. On November 29, 2022, at approximately 12:28 a.m., Washington State University (WSU) Police Officer Daniel Tiengo, queried white Elantras registered at WSU. As a result of that query he located a 2015 white Elantra with a Pennsylvania license plate LFZ-8649. This vehicle was registered to Bryan Kohberger hereafter "Kohberger" residing at is approximately three-quarters of a mile from the intersection of Stadium Way and Cougar Way (last camera location that picked up the white Elantra). 9 That same day at approximately 12:58 a.m., WSU Officer Curtis Whitman was looking for white Hyundai Elantra's and located a 2015 white Hyundai Elantra at in Pullman in the parking lot. | is an apartment complex that houses WSU

students. Officer Whitman also ran the car and it returned to Kohberger with a Washington tag. I reviewed Kohberg's WA state driver license information and photograph. This license indicates that Kohberger is a white male with a height of 6' and weighs 185 pounds. Additionally, the photograph of Kohberger shows that he has bushy eyebrows. Kohberger's physical description is consistent with the description of the male D.M. saw inside the King Road Residence on November 13th Further investigation, including a review of Latah County Sheriff's Deputy CPL Duke's body cam and reports, showed that on August 21, 2022, Bryan Kohberger was detained as part of a traffic stop that occurred in Moscow, Idaho, by CPL Duke. At the time, Kohberger, who was the sole occupant, was driving a white 2015 Hyundai Elantra with Pennsylvania plate LFZ-8649 which was set to expire on November 30, 2022. During the stop, which was recorded via a law enforcement body camera, Kohberger provided his phone number as 8458, hereafter the "8458 Phone" as his cellular telephone number. Investigators conducted electronic database queries and learned that the 8458 Phone is a number issued by AT&T. On October 14, 2022, Bryan Kohberger was detained as part of a traffic stop by a WSU Police Officer. Upon review of that body cam and report of the stop, Kohberger was the sole occupant and was driving a white 2015 Hyundai Elantra with Pennsylvania plate LFZ-8649. On November 18, 2022, according to WA state licensing, Kohberger registered the 2015 white Elantra with WA and later received WA plate CFB-8708. Prior to this time, the 2015 white Elantra was registered in Pennsylvania, which does not require a front license plate to be displayed (this was learned through communications with a Pennsylvania officer who is currently certified in the State of Pennsylvania). Based on my own experience and 10

communication with Washington law enforcement, I know that Idaho and Washington require front and back license plates to be displayed. Investigators believe that Kohberger is still driving the 2015 white Elantra because his vehicle was captured on December 13, 2022, by a license plate reader in Loma, Colorado (information provided by a query to a database). Kohberger's Elantra was then queried on December 15, 2022 by law enforcement in Hancock County, Indiana. On December 16, 2022 at approximately 2:26 p.m., surveillance video showed Kohberger's Elantra in Albrightsville, Pennsylvania. The sole occupant of the vehicle was a white male whose description was consistent with Kohberger. Kohberger has family in Albrightsville, Pennsylvania (learned through a TLO search and locate tool database query). Based on information provided on the WSU website, Kohberger is currently a Ph.D Student in Criminology at Washington State University. Pursuant to records provided by a member of the interview panel for Pullman Police Department, we learned that Kohberger's past education included undergraduate degrees in psychology and cloud-based forensics. These records also showed Kohberger wrote an essay when he applied for an internship with the Pullman Police Department in the fall of 2022. Kohberger wrote in his essay he had interest in assisting rural law enforcement agencies with how to better collect and analyze technological data in public safety operations. Kohberger also posted a Reddit survey which can be found by an open-source internet search. The survey asked for participants to provide information to "understand how emotions and psychological traits influence decision making when committing a crime." As part of this investigation, law enforcement obtained search warrants to determine cellular devices that utilized cellular towers in close proximity to the King Road Residence on 11

November 13, 2022 between 3:00 a.m. and 5:00 a.m. After determining that Kohberger was associated to both the 2015 White Elantra and the 8458 Phone, investigators reviewed these search warrant returns. A query of the 8458 Phone in these returns did not show the 8458 Phone utilizing cellular tower resources in close proximity to the King Road Residence between 3:00 a.m. and 5:00 a.m. Based on my training, experience, and conversations with law enforcement officers that specialize in the utilization of cellular telephone records as part of investigations, individuals can either leave their cellular telephone at a different location before committing a crime or turn their cellular telephone off prior to going to a location to commit a crime. This is done by subjects in an effort to avoid alerting law enforcement that a cellular device associated with them was in a particular area where a crime is committed. I also know that on numerous occasions, subjects will surveil an area where they intend to commit a crime prior to the date of the crime. Depending on the circumstances, this could be done a few days before or for several months prior to the commission of a crime. During these types of surveillance, it is possible that an individual would not leave their cellular telephone at a separate location or turn it off since they do not plan to commit the offense on that particular day. On December 23, 2022, I applied for and was granted a search warrant for historical phone records between November 12, 2022 at 12:00 a.m. and November 14, at 12:00 a.m. for the 8458 Phone held by the phone provider AT&T (approximately 24 hours proceeding and following the times of the homicides). On December 23, 2022, pursuant to that search warrant, I received records for the 8458 Phone from AT&T. These records indicated that the 8458 Phone is subscribed to Bryan Kohberger at an address in Albrightsville, Pennsylvania and the account has been open since 12

June 23, 2022. These records also included historical cell site location information (CSLI) for the 8458 Phone. After receiving this information, I consulted with an FBI Special Agent (SA) that is certified as a member of the Cellular Analysis Survey Team (CAST). Members of CAST are certified with the FBI to provide expert testimony in the field of historical CSLI and are required to pass extensive training that includes both written and practical examinations prior to be certified with CAST as well as the completion of yearly certification requirements. Additionally, the FBI CAST SA that I consulted with has over fifteen years of federal law enforcement experience, which includes six years with the FBI. From information provided by CAST, I was able to determine estimated locations for the 8458 Phone from November 12, 2022 to November 13, 2022, the time period authorized by the court. On November 13, 2022 at approximately 2:42 a.m., the 8458 Phone was utilizing cellular resources that provide coverage to hereafter the "Kohberger Residence." At approximately 2:47 a.m., the 8458 Phone utilized cellular resources that provide coverage southeast of the Kohberger Residence consistent with the 8458 Phone leaving the Kohberger Residence and traveling south through Pullman, WA. This is consistent with the movement of the white Elantra. At approximately 2:47 a.m. the 8458 Phone stops reporting to the network, which is consistent with either the phone being in an area without cellular coverage, the connection to the network is disabled (such as putting the phone in airplane mode), or that the phone is turned off. The 8458 Phone does not report to the network again until approximately 4:48 a.m. at which time it utilized cellular resources that provide coverage to ID state highway 95 south of Moscow, ID near Blaine, ID (north of Genesee). Between 4:50 a.m. and 5:26 a.m., the phone utilizes cellular resources that are consistent with the 8458 Phone traveling south on ID state highway 95 to Genesee, ID, then traveling west towards 13

Uniontown, ID, and then north back into Pullman, WA. At approximately 5:30 a.m., the 8458 Phone is utilizing resources that provide coverage to Pullman, WA and consistent with the phone traveling back to the Kohberger Residence. The 8458 Phone's movements are consistent with the movements of the white Elantra that is observed traveling north on Stadium Drive at approximately 5:27 a.m. Based on a review of the 8458 Phone's estimated locations and travel, the 8458 Phone's travel is consistent with that of the white Elantra. Further review indicated that the 8458 Phone utilized cellular resources on November 13, 2022 that are consistent with the 8458 Phone leaving the area of the Kohberger Residence at approximately 9:00 a.m. and traveling to Moscow, ID. Specifically, the 8458 Phone utilized cellular resources that would provide coverage to the King Road Residence between 9:12 a.m. and 9:21 a.m. The 8458 Phone next utilized cellular resources that are consistent with the 8458 Phone traveling back to the area of the Kohberger Residence and arriving to the area at approximately 9:32 a.m. Below is a depiction (not to scale) of the possible route taken based off of cellular site locations: 14

Ateistring This is a possible route based off celluar device location Investigators found that the 8458 Phone did connect to a cell phone tower that provides service to Moscow on November 14, 2022, but investigators do not believe the 8458 Phone was in Moscow on that date. The 8458 Phone has not connected to any towers that provide service to Moscow since that date. Based on my training, experience, and the facts of the investigation thus far, I believe that Kohberger, the user of the 8458 Phone, was likely the driver of the white Elantra that is observed departing Pullman, WA and that this vehicle is likely Suspect Vehicle 1. Additionally, the route of travel of the 8458 Phone during the early morning hours of November 13, 2022 and the lack of the 8458 Phone reporting to AT&T between 2:47 a.m. and 4:48 a.m. is consistent with Kohberger attempting to conceal his location during the quadruple homicide that occurred at the King Road Residence. 15

) On December 23, 2022, I was granted a search warrant for Kohberger's historical CSLI from June 23, 2022 to current, prospective location information, and a Pen Register/Trap and Trace on the 8458 Phone to aid in efforts to determine if Kohberger stalked any of the victims in this case prior to the offense, conducted surveillance on the King Road Residence, was in contact with any of the victims' associates before or after the alleged offense, any locations that may contain evidence of the murders that occurred on November 13, 2022, the location of the white Elantra registered to Kohberger, as well as the location of Kohberger. On December 23, 2022 pursuant to that search warrant, I received historical records for the 8458 Phone from AT&T from the time the account was opened in June 2022. After consulting with CAST SA, I was able to determine estimated locations for the 8458 Phone from June 2022 to present, the time period authorized by the court. The records for the 8458 Phone show the 8458 Phone utilizing cellular resources that provide coverage to the area of 1122 King Road on at least twelve occasions prior to November 13, 2022. All of these occasions, except for one, occurred in the late evening and early morning hours of their respective days. One of these occasions, on August 21, 2022, the 8458 Phone utilized cellular resources providing coverage to the King Road Residence from approximately 10:34 p.m. to 11:35 p.m. At approximately 11:37 p.m., Kohberger was stopped by Latah County Sheriff's Deputy CPL Duke, as mentioned above. The 8548 Phone was utilizing cellular resources consistent with the location of the traffic stop during this time (Farm Road and Pullman Highway). Further analysis of the cellular data provided showed the 8458 Phone utilized cellular resources on November 13, 2022 consistent with the Phone travelling from Pullman, Washington to Lewiston, Idaho via US Highway 195. At approximately 12:36 p.m., the 8458 Phone utilized cellular resources that would provide coverage to Kate's Cup of Joe coffee stand located at 810 16

Port Drive, Clarkston, WA. Surveillance footage from the US Chef's Store located at 820 Port Drive, Clarkston, WA and adjacent to Kate's Cup of Joe showed a white Elantra, consistent with Suspect Vehicle 1, drive past Kate's Cup of Joe at a time consistent with the cellular data from the 8548 Phone. At approximately 12:46 p.m., the 8458 Phone then utilized cellular data in the area of the Albertson's grocery store at 400 Bridge Street in Clarkston, Washington. Surveillance footage obtained from the Albertson's showed Kohberger exit the white Elantra, consistent with Suspect Vehicle 1, at approximately 12:49 p.m. Interior surveillance cameras showed Kohberger walk through the store, purchase unknown items at the checkout, and leave at approximately 1:04 p.m. Kohberger's possible path of travel is depicted below (not to scale): 149 WASHINGTON 17

Additional analysis of records for the 8458 Phone indicated that between approximately 5:32 p.m. and 5:36 p.m., the 8458 Phone utilized cellular resources that provide coverage to Johnson, ID. The 8458 Phone then stops reporting to the network from approximately 5:36 p.m. to 8:30 p.m. That is consistent with the 8458 Phone being the area that the 8458 Phone traveled in the hours immediately following the suspected time the homicides occurred. On December 27, 2022, Pennsylvania Agents recovered the trash from the Kohberger family residence located in Albrightsville, PA. That evidence was sent to the Idaho State Lab for testing. On December 28, 2022, the Idaho State Lab reported that a DNA profile obtained from the trash and the DNA profile obtained from the sheath, identified a male as not being excluded as the biological father of Suspect Profile. At least 99.9998% of the male population would be expected to be excluded from the possibility of being the suspect's biological father. 2 Based on the above information, I am requesting an arrest warrant be issued for Bryan C. Kohberger, (DOB) 11/21/1994, for Burglary at 1122 King Street in Moscow, Idaho, and four counts of Murder in the First Degree for the murders of Madison Mogen, Kaylee Goncalves, Xana Kernodle, and Ethan Chapin. I declare under penalty of perjury pursuant to the law of the State of Idaho that the foregoing is true and correct. 12/29/2022 Date Bhr Affiant 18 #157

MIA   >  Archive   >  Pashukanis

Evgeny Pashukanis

Marksistskaia teoriia gosudarstva i prava , pp.9-44 in E. B. Pashukanis (ed.), Uchenie o gosudarstve i prave (1932), Partiinoe Izd., Moscow. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301. Translated by Peter B. Maggs . Copyright © Peter B. Maggs. Published here by kind permission of the translator. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm Marked up by Einde O’Callaghan for the Marxists’ Internet Archive .

Introductory Note

In the winter of 1929-1930, during the first Five Year Plan, the national economy of the USSR underwent dramatic and violent ruptures with the inauguration of forced collectivization and rapid heavy industrialization. Concomitantly, it seemed, the Party insisted on the reconstruction and realignment of the appropriate superstructures in conformity with the effectuation of these new social relations of production. In this spirit Pashukanis was no longer criticized but now overtly attacked in the struggle on the “legal front”. In common with important figures in other intellectual disciplines, such as history, in late 1930 Pashukanis undertook a major self-criticism which was qualitatively different from the incremental changes to his work that he had produced earlier. During the following year, 1931, Pashukanis outlined this theoretical reconstruction in his speech to the first conference of Marxist jurists, a speech entitled Towards a Marxist-Leninist Theory of Law . The first results appeared a year later in a collective volume The Doctrine of State and Law .

Chapter I of this collective work is translated below, The Marxist Theory of State and Law , and was written by Pashukanis himself It should be noted that this volume exemplifies the formal transformations which occurred in Soviet legal scholarship during this heated period. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. The source of authority for much of the work that ensued increasingly became the many expressions of Stalin’s interpretation of Bolshevik history, class struggle and revisionism, most notably his Problems of Leninism . Last, but not least, the language and vocabulary of academic discourse in the 1920s had been rich, open-ended and diverse, and varied tremendously with the personal preferences of the individual author; this gave way to a standardized and simplified style of prose devoid of nuance and ambiguity, and which was very much in keeping with the new theoretical content which comprised official textbooks on the theory of state and law. The reader will perhaps discover that The Marxist Theory of State and Law is a text imbued with these tensions. Pashukanis’ radical reconceptualization of the unity of form and content, and of the ultimate primacy of the relations of production, is without doubt to be preferred to his previous notions. But this is a preference guided by the advantages of editorial hindsight, and we feel that we cannot now distinguish between those reconceptualizations which Pashukanis may actually have intended and those which were produced by the external pressures of political opportunism.

CHAPTER I Socio-economic Formations, State, and Law

1. the doctrine of socio-economic formations as a basis for the marxist theory of state and law.

The doctrine of state and law is part of a broader whole, namely, the complex of sciences which study human society. The development of these sciences is in turn determined by the history of society itself, i.e. by the history of class struggle.

It has long since been noted that the most powerful and fruitful catalysts which foster the study of social phenomena are connected with revolutions. The English Revolution of the seventeenth century gave birth to the basic directions of bourgeois social thought, and forcibly advanced the scientific, i.e. materialist, understanding of social phenomena.

It suffices to mention such a work as Oceana – by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century – in which changes in political structure are related to the changing distribution of landed property. It suffices to mention the work of Barnave – one of the architects of the great French Revolution – who in the same way sought explanations of political struggle and the political order in property relations. In studying bourgeois revolutions, French restorationist historians – Guizot, Mineaux and Thierry – concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. the bourgeoisie) and the privileged estates of feudalism and their monarch. This is why Marx, in his well-known letter to Weydemeyer, indicates that the theory of the class struggle was known before him. “As far as I am concerned”, he wrote,

no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. Long before me bourgeois historians had described the historical development of this class struggle, and bourgeois economists the economic anatomy of the classes.

What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ...; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society. [1]

[ Section 2 omitted – eds. ]

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3. The class type of state and the form of government

The doctrine of socio-economic formations is particularly important to Marx’s theory of state and law, because it provides the basis for the precise and scientific delineation of the different types of state and the different systems of law.

Bourgeois political and juridical theorists attempt to establish a classification of political and legal forms without scientific criteria; not from the class essence of the forms, but from more or less external characteristics. Bourgeois theorists of the state, assiduously avoiding the question of the class nature of the state, propose every type of artificial and scholastic definition and conceptual distinction. For instance, in the past, textbooks on the state divided the state into three “elements”: territory, population and power.

Some scholars go further. Kellen – one of the most recent Swedish theorists of the state – distinguishes five elements or phenomena of the state: territory, people, economy, society and, finally, the state as the formal legal subject of power. All these definitions and distinctions of elements, or aspects of the state, are no more than a scholastic game of empty concepts since the main point is absent: the division of society into classes, and class domination. Of course, the state cannot exist without population, or territory, or economy, or society. This is an incontrovertible truth. But, at the same time, it is true that all these “elements” existed at that stage of development when there was no state. Equally, classless communist society – having territory, population and an economy – will do without the state since the necessity of class suppression will disappear.

The feature of power, or coercive power, also tells one exactly nothing. Lenin, in his polemic of the 1890s with Struve asserted that: “he most incorrectly sees the distinguishing feature of the state as coercive power. Coercive power exists in every human society – both in the tribal structure and in the family, but there was no state.” And further, Lenin concludes: “The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated. Obviously, no one could use the term ‘State’ in reference to a community in which the ‘organization of order’ is administered in turn by all of its members.” [2]

Struve’s position, according to which the distinguishing feature of a state is coercive power, was not without reason termed “professorial” by Lenin. Every bourgeois science of the state is full of conclusions on the essence of this coercive power. Disguising the class character of the state, bourgeois scholars interpret this coercion in a purely psychological sense. “For power and subordination”, wrote one of the Russian bourgeois jurists (Lazarevsky), “two elements are necessary: the consciousness of those exercising power that they have the right to obedience, and the consciousness of the subordinates that they must obey.”

From this, Lazarevsky and other bourgeois jurists reached the following conclusion: state power is based upon the general conviction of citizens that a specific state has the right to issue its decrees and laws. Thus, the real fact-concentration of the means of force and coercion in the hands of a particular class-is concealed and masked by the ideology of the bourgeoisie. While the feudal landowning state sanctified its power by the authority of religion, the bourgeoisie uses the fetishes of statute and law. In connection with this, we also find the theory of bourgeois jurists-which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting in the interests of the whole society. “If the source of state power derives from class”, wrote another of the bourgeois jurists (Magaziner), “then to fulfil its tasks it must stand above the class struggle. Formally, it is the arbiter of the class struggle, and even more than that: it develops the rules of this struggle.”

It is precisely this false theory of the supra-class nature of the state that is used for the justification of the treacherous policy of the Social Democrats. In the name “of the general interest”, Social Democrats deprive the unemployed of their welfare payments, help in reducing wages, and encourage shooting at workers’ demonstrations.

Not wishing to recognize the basic fact, i.e. that states differ according to their class basis, bourgeois theorists of the state concentrate all their attention on various forms of government. But this difference by itself is worthless. Thus, for instance, in ancient Greece and ancient Rome we have the most varied forms of government. But all the transitions from monarchy to republic, from aristocracy to democracy, which we observe there, do not destroy the basic fact that these states, regardless of their different forms, were slave-owning states. The apparatus of coercion, however it was organized, belong to the slave-owners and assured their mastery over the slaves with the help of armed force, assured the right of the slave-owners to dispose of the labour and personality of the slaves, to exploit them, to commit any desired act of violence against them.

Distinguishing between the form of rule and the class essence of the state is particularly important for the correct strategy of the working class in its struggle with capitalism. Proceeding from this distinction, we establish that to the extent that private property and the power of capital remain untouchable, to this extent the democratic form of government does not change the essence of the matter. Democracy with the preservation of capitalist exploitation will always be democracy for the minority, democracy for the propertied; it will always mean the exploitation and subjugation of the great mass of the working people. Therefore theorists of the Second International such as Kautsky, who contrast “democracy” in general with “dictatorship”, entirely refuse to consider their class nature. They replace Marxism with vulgar legal dogmatism, and act as the scholarly champions and lackeys of capitalism.

The different forms of rule had already arisen in slave-owning society. Basically, they consist of the following types: the monarchic state with an hereditary head, and the republic where power is elective and where there are no offices which pass by inheritance. In addition, aristocracy, or the power of a minority (i.e. a state where participation in the administration of the state is limited by law to a definite and rather narrow circle of privileged persons) is distinguished from democracy (or, literally, the rule of the people), i.e. a state where by law all take part in deciding public affairs either directly or through elected representatives. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. All the modern bourgeois theories of the state could add little to this classification.

Actually the significance of one form or another can be gleaned only by taking into account the concrete historical conditions under which it arose and existed, and only in the context of the class nature of a specific state. Attempts to establish any general abstract laws of the movement of state forms – with which bourgeois theorists of the state have often been occupied – have nothing in common with science.

In particular, the change of the form of government depends on concrete historical conditions, on the condition of the class struggle, and on how relationships are formed between the ruling class and the subordinate class, and also within the ruling class itself

The forms of government may change although the class nature of the state remains the same. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. Conversely, the same form of government (for instance a democratic republic) which was encountered in antiquity as one of the variations of the slave-owning state, is in our time one of the forms of capitalist domination.

Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny.

The question of the relationship between the class type of the state and the form of government is still very little developed. In the bourgeois theory of the state this question not only could not be developed, but could not even be correctly posed, because bourgeois science always tries to disguise the class nature of all states, and in particular the class nature of the capitalist state. Often therefore, bourgeois theorists of the state, without analysis, conflate characteristics relating to the form of government and characteristics relating to the class nature of the state.

As an example one may adduce the classification which is proposed in one of the newest German encyclopaedias of legal science.

The author [Kellreiter] distinguishes: (a) absolutism and dictatorship, and considers that the basic characteristic of these forms is that state powers are concentrated in the hands of one person. As an example, he mentions the absolute monarchy of Louis XIV in France, tsarist autocracy in Russia and the dictatorial power which was invested by the procedure of extraordinary powers in the one person, for instance the president of the German Republic on the basis of Art.48 of the Weimar Constitution; (b) constitutionalism, characterized by the separation of powers, their independence and their checks and balances, thereby weakening the pressure exerted by state power on the individual (examples: the German Constitution before the 1918 revolution, and the USA, where the President and Congress have independent powers); (c) democracy, whose basic premise is monism of power and a denial in principle of the difference between power and the subject of power (popular sovereignty, exemplified by the German Republic); and (d) the class-corporative state and the Soviet system where as opposed to formal democracy, the people appear not as an atomized mass of isolated citizens but as a totality of organized and discrete collectives. [3]

This classification is very typical of the confusion which bourgeois scholars consciously introduce into the question of the state. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom ? He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while “the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules”. [4] Further it is sufficient to indicate, for instance, that under the latter heading the author includes: (a) a new type of state, never encountered before in history, where power belongs to the proletariat; (b) the reactionary dreams of certain professors and so-called guild socialists, about the return to the corporations and shops of the Middle Ages; and, finally (c) the fascist dictatorship of capital which Mussolini exercises in Italy.

This respected scholar consciously introduces confusion, consciously ignores the concrete historical conditions under which the working people actually can exercise administration of the state, acting as organized collectives. But such conditions are only the proletarian revolution and the establishment of the dictatorship of the proletariat.

4. The class nature of law

Bourgeois science confuses the question of the essence of law no less than the question of the state. Here, Marxism-Leninism opposes the diverse majority of bourgeois, petit bourgeois and revisionist theories which, proceeding from the explanation of the historical and class nature of law, consider the state as a phenomenon essential to every human society. They thus transform law into a supra-historical category.

It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society.

The bourgeois theory of the state is 90% the legal theory of the state. The unattractive class essence of the state, most often and most eagerly, is hidden by clever combinations of legal formalism, or else it is covered by a cloud of lofty philosophical legal abstractions.

The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist-Leninist theory of society, of the state and of law.

The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. Thus, bourgeois scholars easily transfer law to pre-class society, find it in the pre-state life of primitive tribes, and conclude that communism is unthinkable without law. They turn law as an empty abstraction into a universal concept devoid of historical content. Law, for bourgeois sociologists, becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class.

Representatives of idealist philosophy of law go still further. They begin with “the idea of law”, which stands above social history as something eternal, immutable and independent of space and time.

Here, for example, is the conclusion of one of the most important representatives of the ideological neo-Kantian philosophy of law – Stammler:

Through all the fates and deeds of man there extends a single unitary idea, the idea of law. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning.

Having made this discovery, it cost Stammler nothing “to prove” that regardless of the difference between the “life and activity of nations” and “the objects of legal consideration”, we observe the unity of the legal idea and its equal appearance and intervention.

This professorial rubbish is presented without the least attempt at factual proof In actuality it would be rather difficult to explain how this “unity of the legal idea and its equal appearance” gave birth to the laws of the Twelve Tablets of slave-owning Rome, the serf customs of the Middle Ages, the declarations of rights of capitalist democracies, and our Soviet Constitution.

But Stammler is not embarrassed by the scantiness of factual argument. He deals just as simply with the proof of the eternity of law. He begins from those legendary Cyclops described in the Odyssey; even these mythical wonders were the fathers of families and, according to Stammler, could not do without law. On the other hand, however, while Stammler is ready to admit that the pigmy tribes of Africa and the Eskimos did not know the state, he simply denies as deceptive all reports about peoples not knowing law. Moreover, Stammler immediately replaces the concrete historical consideration of the question with scholastic formal-logical tightrope walking, which among bourgeois professors is presented as a methodological precision. We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West.

Stammler proposes that the concrete study of legal phenomena is entirely unable to provide anything in the understanding of the essence of law. For if we assign any phenomenon to the list of legal ones, this means that we already know that this is law and what its characteristics are. The definition of law which precedes the facts presupposes knowledge of what is law and what is not law. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand “that the legal idea is a purely methodological means for the ordering of spiritual life”.

This conclusion, which confronts one with its scholasticism, is nothing other than a Kantian ideological thesis embodied in the context of Stammler’s legal stupidity. It shows that the so-called forms of knowledge do not express the objective characteristics of matter, are determined a priori, and precede all human experience and its necessary conditions.

Having turned law into a methodological idea, Stammler tries to locate it not in the material world where everything is subordinate to the law of cause and effect, but in the area of goals. Law, according to Stammler, is a definition which proceeds not from the past (from cause to effect), but from the future (from goal to means). Finally, adding that law deals not with the internal procedure of thoughts as such, but with human interaction, Stammler gives this agonizing and thoroughly scholastic definition:

The concept of law is a pure form of thought. It methodically divides the endlessly differentiated material of human desires apprehended by the senses, and defines it as an inviolable and independent connecting will.

This professorial scholasticism has the attractive feature for the bourgeoisie that verbal and formalistic contrivances can hide the ugly reality of [their] exploiting society and exploiting law.

If law is “a pure form of thought”, then it is possible to avoid the ugly fact that the capitalist law of private property means the misery of unemployment, poverty and hunger for the proletarian and his family; and that in defence of this law stand police armed to the teeth, fascist bands, hangmen and prison guards; and that this law signifies a whole system of coercion, humiliation and oppression in colonies.

Such theories allow the disguising of the fact that the class interest of the bourgeoisie lies at the basis of bourgeois law. Instead of class law, philosophers such as Stammler dream up abstractions, “pure forms”, general human “ideas”, “whole and durable bonds of will” – and other entirely shameless things.

This philosophy of law is calculated to blunt the revolutionary class consciousness of the proletariat, and to reconcile it with bourgeois society and capitalist exploitation.

It is not without reason that the social fascists speak out as such zealous exponents of neo-Kantianism; it is not without reason that Social Democratic theorists on questions of law largely subscribe to neo-Kantian philosophy and re-hash the same Stammler in different ways.

In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov-Ladyzhensky. The criticism and unmasking of this eructation is necessary for the purpose of eradicating this bourgeois ideological infection.

Thus, we know that the state is an historical phenomenon limited by the boundaries of class society. A state is a machine for the maintenance of the domination of one class over another. It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. Until the appearance of classes the state did not exist. In developed communism there will be no state.

In the same way as the state, law is inseparably tied to the division of society into classes. Every law is the law of the ruling class. The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which in exploitative society, one part of the people can appropriate to itself the unpaid labour of another.

The form of exploitation determines the typical features of a legal system. In accordance with the three basic socio-economic formations of class society, we have three basic types of legal superstructure: slave-owning law, feudal law and bourgeois law. This of course does not exclude concrete historical national differences between each of the systems. For instance, English law is distinguished by many peculiarities in comparison with French bourgeois law as contained in the Napoleonic Code . Likewise, we do not exclude the presence of survivals of the past – transitional or mixed forms – which complicate the concrete picture.

However, the essential and basic – that which provides the guiding theme for the study of different legal institutions – is the difference between the position of the slave, the position of the serf and the position of the wage labourer. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. From this it follows that the nature of property has decisive significance for each system of law. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property.

5. Law as an historical phenomenon: definition of law

The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Law (and the state) appears with the division of society into classes. Passing through a long path of development, full of revolutionary leaps and qualitative changes, law and the state will wither away under communism as a result of the disappearance of classes and of all survivals of class society.

Nevertheless, certain authors, who consider themselves Marxists, adopt the viewpoint that law exists in pre-class society, that in primitive communism we meet with legal forms and legal relationships. Such a point of view is adopted for instance by Reisner. Reisner gives the term “law” to a whole series of institutions and customs of tribal society: marriage taboos and blood feud, customs regulating relationships between tribes, and customs relating to the use of the means of production belonging to a tribe. Law in this manner is transformed into an eternal institution, inherent to all forms of human society. From here it is just one step to the understanding of law as an eternal idea; and Reisner in essence leans towards such an understanding.

This viewpoint of course fundamentally contradicts Marxism. The customs of a society not knowing class divisions, property inequality and exploitation, differ qualitatively from the law and the statutes of class society. To categorize them together means to introduce an unlikely confusion. Every attempt to avoid this qualitative difference inevitably leads to scholasticism, to the purely external combination of phenomena of different types, or to abstract idealist constructs in the Stammlerian spirit.

We should not be confused by the fact that Engels, in The Origin of the Family, Private Property and the State , uses the expression “the eternal law”; or, that he cites, without particular qualification, Morgan’s description of the member of a tribal community as having “equality of rights”, and of a person violating tribal customs as having placed himself “outside the law”.

It is clear that the terms “right” and “law” are used here not in their direct sense, but by analogy. This does not mean, however, that in classless society we will be dealing only with purely technical rules. Such an argument was put forward by Stuchka in his dispute with Reisner. To assign the customs and the norms of pre-class society to the area of technology would mean to give the concept of technology a very extended and undefined sense. Marriage prohibitions, customs relating to the organization of the tribe, the power of the elders, blood feud etc. – all this of course is not technology and not technical methods, but the customs and norms of social order. The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. These social forms should be considered as a superstructure upon the economic base. But the basic qualitative difference between this superstructure and the political and legal superstructures of class society, consists in the absence of property inequality, exploitation, and organized class coercion.

While Marxism strives to give a concrete historical meaning to law, the characteristic feature of bourgeois philosophers of law is, on the contrary, the conclusion that law in general is outside classes, outside any particular socio-economic formation. Instead of deriving a concept of law from the study of historical facts, bourgeois scholars are occupied with the concoction of theories and definitions from the empty concept or even the word “law”.

We already saw how Stammler, with the help of scholastic contrivances, tries to show that concrete facts have no significance for the definition of law. We, however, say the opposite. It is impossible to give a general definition of law without knowing the law of slave-owning, feudal and capitalist societies. Only by studying the law of each of these socio-economic formations can we identify those characteristics which are in fact most general and most typical. In doing so we must not forget Engels’ warning to those who tend to exaggerate the significance of these general definitions.

For example, in Chapter VI of the first part of Anti-Dühring , having given a definition of life, Engels speaks of the inadequacy of all definitions because they are necessarily limited to the most general and simplistic areas. In the preface to Anti-Dühring , Engels formulated this thought still more clearly, indicating that “the only real definition is the development of the essence of the matter, and that is not a definition”. However, Engels at once states that for ordinary practical use, definitions which indicate the most general and characteristic features of a category are very convenient. We cannot do without them. It is also wrong to demand more from a definition than it can give; it is wrong to forget the inevitability of its insufficiency.

These statements by Engels should be kept in mind in approaching any general definition, including a definition of law. It is necessary to remember that it does not replace, and cannot replace, the study of all forms and aspects of law as a concrete historical phenomenon. In identifying the most general and characteristic features we can define law as the form of regulation and consolidation of production relationships and also of other social relationships of class society; law depends on the apparatus of state power of the ruling class, and reflects the interests of the latter.

This definition characterizes the role and significance of law in class society. But it is nevertheless incomplete. In contradistinction to all normative theories – which are limited to the external and formal side of law (norms, statutes, judicial positions etc.) – Marxist-Leninist theory considers a law as a unity of form and content. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. The character of formalization does not depend on the “free will of the legislator”; it is defined by economics, but on the other hand the legal superstructure, once having arisen, exerts a reflexive effect upon the economy.

This definition stresses three aspects of the matter. First is the class nature of law: every law is the law of the ruling class. Attempts to consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Second is the basic and determinant significance of production relationships in the content that is implemented by law. Class interests directly reflect their relationship to the means of production. Property relationships occupy the prominent place in the characterization of a specific legal order. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. The third aspect consists of the fact that the functioning of a legal superstructure demands a coercive apparatus. When we say that social relationships have assumed a legal expression, this means inter alia that they have been given a coercive nature by the state power of the ruling class. Withering away of the law can only occur simultaneously with the withering away of the state.

Relationships which have received legal expression are qualitatively different from those relationships which have not received this expression. The form of this expression may be different, as was indicated by Engels [5] ; it may sometimes be good and sometimes be bad. It may support the progressive development of these relationships or, on the contrary, retard them. Everything depends on whether power is in the hands of a revolutionary or a reactionary class. Here the real significance of the legal superstructure appears. However, the degree of this reality is a question of fact; it can be determined only by concrete study and not by any a priori calculations. Bourgeois jurists characteristically concentrate their attention on form, and utterly ignore content. They turn their backs on life and actual history. As Engels showed, “they consider public and private law as independent areas, which have their own independent development and which must and may be subjected to independent systematic elaboration by the consistent elimination of all internal contradictions.” [6]

Bourgeois jurists usually define law as the totality of norms to which a state has given coercive power. This view of law typifies so-called legal positivism. The most consistent representatives of this trend are the English jurists: of the earliest Blackstone (eighteenth century), and thereafter Austin. In other European countries legal positivism also won itself a dominant position in the nineteenth century, because the bourgeoisie either gained state power or everywhere achieved sufficient influence in the state so as not to fear the identification of law with statute. At the same time nothing was better for legal professionals, for judges, [and] for defence counsel since this definition fully satisfied their practical needs. If law in its entirety was the complex of orders proceeding from the state, and consolidated by sanction in the case of disobedience, then the task of jurisprudence was defined with maximum clarity. The work of the jurist, according to the positivists, did not consist in justifying law from some external point of view – philosophers were occupied with this; the task of the jurists did not include explaining from where a norm emerged, and what determined its content – this was the task of political scientists and sociologists. The role of the jurist remained the logical interpretation of particular legal provisions, the establishment of an internal logical connection between them, combining them into larger systematic units in legal institutions, and finally in this way the creation of a system of law.

The definition of law as the totality of norms is the starting point for supporting the so-called dogmatic method. This consists of using formal logical conclusions in order to move from particular norms to more general concepts and back, proceeding from general positions to propose the solution of concrete legal cases or disputes. It is obvious that the practical part of this role developing especially luxuriantly in the litigious circumstances of bourgeois society – has nothing in common with a scientific theory of law. Applications of so-called legal logic are not only theoretically fruitless, they are not only incapable of revealing the essence of law and thus of showing its connection with other phenomena-with economics, with politics, with class struggle – but they are also harmful and impermissible in the practice of our Soviet courts and other state institutions. We need decisions of cases, not formally, but in their essence; the state of the working people, as distinct from the bourgeois state, does not hide either its class character or its goal – the construction of socialism. Therefore, the application of norms of Soviet law must not be based on certain formal logical considerations, but upon the consideration of all the concrete features of the given case, of the class essence of those relationships to which it becomes necessary to apply a general norm, and of the general direction on of the policy of Soviet power at the given moment. In the opposite case a result would be obtained which Lenin defined as: “Correct in form, a mockery in substance.”

The denial of formal legal logic cultivated by the bourgeoisie does not mean a denial of revolutionary legality, does not mean that judicial cases and questions of administration must be decided chaotically in the Soviet state, systematically on the basis of the random whims of individuals, or on the basis of local influences. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat.

Thus, the law is the means of formulating and consolidating the production relationships of class society and the social relationships which are connected with them. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. They appear, in particular, as relations of an ideological nature, i.e. as relations which are formed in connection with certain views and are supported by the conscious will of the people.

We shall not touch upon the question of the degree to which the legal ideology of the exploiting classes is capable of correctly reflecting reality, and in what measure it inevitably distorts it (representing the interest of the exploiting class as the social interest in order, legality, freedom etc.). Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. “Law is nothing without an apparatus capable of enforcing observation of the norms of law” (Lenin).

The conscious will – towards the formulation and consolidation of production and other relationships – is the will of the ruling class which finds its expression in custom, in law, in the activity of the court and in administration. The legal superstructure exists and functions because behind it stands an organization of the ruling class, namely the apparatus of coercion and power in the form of the army, the police, court bailiffs, prison guards and hangmen. This does not mean that the ruling class has to use physical force in every case. Much is achieved by simple threat, by the knowledge of helplessness and of the futility of struggle, by economic pressure, and finally by the fact that the working classes are in the ideological captivity of the exploiters. It is sufficient to mention the narcotic of the religious ideology of humility and meekness, or the genuflection before the idol of bourgeois legality preached by the reformist.

But the ultimate argument for, and the basis of, the legal order is always the means of physical force. Only by depending on them could the slaveowner of antiquity or the modern capitalist enjoy his right.

The attempts by certain bourgeois jurists to separate law from the state, or to contrast “law” and “force”, are dictated by the attempt to hide and conceal the class essence of law.

Often these proofs that law is independent of the state bear a truly laughable character. Thus, for instance, Stammler claims that he has proved this thesis relying on the fact that on a dirigible which flies over the North Pole, i.e. outside the sphere of action of any state power, the emergence of legal relationships is possible.

By such empty dogmatic chicanery the scientific question of the relationship of state and law is decided. Can one be surprised at Lenin’s sharp reaction to Stammler when he says that: “From stupid arguments, Stammler draws equally stupid conclusions.”

The dependence of law on the state, however, does not signify that the state creates the legal superstructure by its arbitrary will. For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production.

The proletariat, having overthrown the bourgeoisie and consolidated its dictatorship, had to create Soviet law in conformity with the economy, in particular the existence of many millions of small and very small peasant farms. After the victory of the proletarian revolution the realization of socialism is not an instantaneous act but a long process of construction under the conditions of acute class struggle.

From the policy of limiting its exploitative tendencies and the elimination of its front ranks, we moved to the policy of liquidating the kulaks as a class by widespread collectivization. A successful fulfilment of the first Five Year Plan; the creation of our own base for the technical reconstruction of the whole national economy; the transfer of the basic mass of the peasantry to collectivization; these events enabled the basic task of the second Five Year Plan to be:

the final liquidation of capitalist elements and classes in general, the full elimination of the causes of class differences and exploitation, the overcoming of the survivals of capitalism in the economy and the consciousness of the people, the transformation of the whole working population of the country into conscious and active builders of a classless society. [7]

At each of these stages Soviet law regulated and formulated production relationships differently.

Soviet law in each of the stages was naturally different from the law of capitalist states. For law under the proletarian dictatorship has always had the goal of protecting the interest of “the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction. Those individual Soviet jurists who considered law as the totality of norms (i.e. externally and formally) are not in a position to understand this. Finding identically formulated norms in the system of bourgeois and Soviet law, these jurists began to speak of the similarity between bourgeois and Soviet law, to search out “general” institutions, and to trace the development of certain “general” bases for bourgeois and Soviet law. This tendency was very strong in the first years of NEP. The identification of Soviet with bourgeois law derived from an understanding of NEP as a return to capitalism, which found expression in the Marxist ranks.

If NEP, as the Zinoviev opposition asserted at the XIVth Party Congress, is “capitalism which holds the proletarian state on a chain”, then Soviet law must be presented as bourgeois law, in which certain limitations are introduced, to the extent in the period of imperialism that the capitalist state also regulates and limits the freedom of disposition of property, contractual freedom etc.

Such a distortion in the description of NEP led directly to an alliance with bourgeois reformists in the understanding of Soviet law.

In fact, NEP “is a special policy of the proletarian state intended to permit capitalism while the commanding heights are held by the proletarian state, intended for the struggle between the capitalist and socialist elements, intended for the growth of the role of the socialist elements at the expense of the capitalist elements, intended for the victory of the socialist elements over the capitalist elements, intended for the elimination of classes and for the construction of the foundation of a socialist economy.” [8]

Soviet law as a special form of policy followed by the proletariat and the proletarian state, was intended precisely for the victory of socialism. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes.

Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet “juridical socialism”. By confining themselves only to the norm and the purely juridical (i.e. formal ideas and concepts), they ignored the socio-economic and political essence of the matter. As a result, these jurists arrive at the conclusion that the transformation of property from an arbitrary and unrestricted right into a “social function” (i.e. a tendency which is “peculiar to the law of the advanced”, that is, capitalist, countries), finds its “fullest” expression in Soviet legislation. Making this contention, the Jurists “forgot” such a trifle as the October Revolution and the dictatorship of the proletariat.

It is not only important to “read” the norm, but also to know what class, what state, and what state apparatus is applying this norm.

6. Law and production relationships

Production relationships form the basis of society. It is necessary to begin with these relationships in order to comprehend the complex picture presented by the history of mankind.

To search for the basic characteristic of society and social relations in an area other than production relationships means to deprive oneself of the possibility of a scientific understanding of the laws of development of social formations. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. Such a concept is a caricature of Marxism. The equation of social relations with production relations in this case is understood purely mechanically. However, a number of times Lenin noted that Marx’s great service was that he did not limit himself to the description of the economic “skeleton” of capitalist society, but that:

in explaining the construction and development of a definite social formation “exclusively” by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. The reason that Das Kapital had such enormous success was that this book (“by a German economist”) showed the capitalist social formation as a living thing-with its everyday aspects, with the actual social phenomena essential to the production relations between antagonistic classes, with the bourgeois political superstructure protecting the domination of the capitalist class, with the bourgeois ideas of freedom, equality etc., with bourgeois family relations. [9]

Stuchka looks differently at the matter. In his opinion, Marx considered only relations of production and exchange to be social relations. But this would mean affirming that Marx limited himself to the “skeleton” alone, as if having indicated the basic and eventually determinant in social life and social relations he then passed by that which is derivative and requires explanation. However, more than once Marx directly points out the existence of social relationships which are not production relations but which merely derive from them and correspond to them. Characterizing revolutionary proletarian socialism in France in 1848, Marx wrote:

This socialism is the proclamation of the permanence of the revolution , a proclamation of the class dictatorship of the proletariat as a necessary transition toward the elimination of class differences altogether, toward the elimination of all production relations upon which these differences are based, toward the elimination of all social relationships corresponding to these production relations, toward a revolution in the entire world of ideas arising from these relationships. [10]

Nevertheless, Comrade Stuchka firmly defends his understanding of the term “social relationships”:

We proceed from social relationships; I emphasize the word “social”, for here my critics are desperately confused. I thus selected the word “social” and a whole chapter in my first book was dedicated to it only in the sense of relations of production and exchange (as Marx and every Marxist understands this). [11]

Proceeding from the equation of production and social relationships, Stuchka defined law as a “system (or order) of social relations corresponding to the interests of the ruling class and protected by its organized force”. In this definition, as he himself indicated, there was room only for the law of property and the law of obligations.

As earlier, so even now [he wrote] I consider basic law , law in general, to be civil law , understanding thereby the form of organization of social relationships in the narrow and specific sense of the word (i.e. relations of production and exchange). I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war. [12]

The positions outlined in this excerpt contain a series of mistakes. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. Proceeding from the economic basis, from different forms of exploitation, we differentiate slaveowning, feudal and capitalist systems of law. But, in the first place, it is incorrect to subsume the property relations of slaveowning or feudal society under the concept of civil, i.e. bourgeois, law as “law in general”. In the second place, state law may not be equated with the so-called Rechtsstaat of the bourgeoisie. If one takes this point of view then one must either deny the existence of a distinctive feudal state law, or show that despite the existence of a Soviet state we do have Soviet state law. At the same time, in other places in his textbook, Stuchka proceeds from the existence of different class systems of law: feudal, bourgeois, Soviet. Here he argues for a “general law” which is equated with the civil law of bourgeois society. At the same time state law is equated with the theory of bourgeois jurists of the so-called Rechtsstaat , and criminal law (i.e. formalized class repression) with the ideology of equivalent retribution.

The basic question – do relationships exist that enter into the content of law, which are not, however, relations of production and exchange? – is avoided by Stuchka; he cites the subsidiary, derivative etc. character of state, criminal etc. law. However, it is clear that the structure of family relationships, the formalization of class domination in the state organization, the formalization of class repression, all this is embraced by the different branches of law (family, state and criminal).

The content of this legal intermediary is the social and political relationships which, in the final analysis, are reducible to the same production relationships, but by no means correspond to them.

Stuchka’s subsequent definition of law suffers from the shortcoming that he limits the area of law merely to production relations. This definition also introduces confusion because it confuses law with economics. Proceeding from the indisputable position that not all which is stated in a norm (in a statute) is realized in fact, Stuchka has made the incorrect conclusion that law is indeed the very relation of production and exchange. Stuchka has therefore declared Marx’s teaching – that law is an ideological superstructure to be a tribute to the “volitional theory” of the old jurists.

Whoever has mastered the form of theorizing of Marx and Engels that capital, money etc., are social relationships, will at once understand my views on the system of social relationships. This will be hardest of all for a jurist for whom law is a purely technical and artificial superstructure, strangely enough, holding sway over its base. Even Karl Marx gave a small tribute to this concept when he spoke of law as an ideological superstructure. But Marx was raised on Roman law and in general on the juridic concepts of the 1830s, considering it an expression “of the general will” ( Volkswillen ), and he was [therefore] accustomed to its terminology. [13]

In conducting the struggle with the narrow, formal legal concept of law as a totality of norms, we cannot deny the real existence of the legal superstructure, i.e. of relationships formulated and consolidated by the conscious will of the ruling class. Only to the extent that this process of formulation and consolidation proceeds may one speak of law. To study law only as totality of norms means to follow the path of formalism and dogmatism. But to study law only as relationships of production and exchange means to confuse law with economics, to retard the understanding of the reciprocal action of the legal superstructure and its active role. At the same time as production relations are imposed on people regardless of their will, legal relationships are impossible without the participation of the conscious will of the ruling class. The teaching of Marx, Engels and Lenin on law as an ideological superstructure needs no correction. Law cannot be understood unless we consider it as the basic form of the policy of the ruling class. In the later editions of The Revolutionary Role of State and Law , Stuchka supplemented his definition of law, developing the theory of the so-called three forms of law. The first, or in Stuchka’s words, the concrete form of law, is a legal relationship which corresponds to a production relationship and, with it, constitutes the base [or] reality. On the contrary, the two “abstract” forms – statute and legal ideology as Stuchka expresses it – are the essence of “the manifest superstructure”. [14]

This approach is also incorrect and non-dialectical. A legal relationship is a form of production relations because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure. This result is not achieved automatically by laissez faire , in the same way that prices are established under free competition. Even in the case of so-called customary law, the ruling class – through its special agencies, through the courts – ensures that the relations correspond to obligatory rules. This is all the more true with respect to the legislative creation of norms.

In particular, the revolutionary role of the legal superstructure is enormous in the transitional period when its active and conscious influence upon production and other social relationships assumes exceptional significance. Soviet law, like any law, will cease to exist if it is not applied. But the application of law is an active and conscious process by which the state apparatus plays the decisive role as a powerful weapon of class struggle. Would it be possible, for instance, to speak of Soviet law which did not somehow recognize the Soviet state, the Soviet agencies of power, Soviet courts etc.? It is clear that while an individual statute may be removed from the real legal order and remain a pious wish, concrete legal relationships may never be removed from the consciousness and will of the ruling class, may never be transferred from the superstructure to the base without parting from the heart of historical materialism.

From all that has been said above it is clear that the definition of law as a formal intermediary of the economy must be recognized as insufficient and incorrect. The different branches of law are connected differently with the economy; this must never be forgotten, and this is not expressed in the above-mentioned definition. On the contrary it can lead to the notion that the area of law is limited to property relationships alone. Then all the other types of law must be declared non-existent. Stuchka would, in fact, have had to reach this conclusion. But he speaks of criminal and state law, not entirely consistently with his other position, i.e. by referring to them he recognizes their existence.

There is no doubt that economics is at the base of political, familial and all other social relations. [15] But the election law of any capitalist country facilitates the economy differently from civil law or the Criminal Code. To try to force all the varied branches of law into one formula is to give preference to empty abstractions.

Law as a formal facilitation of social and (primarily) production relationships must be studied concretely. This study may not be replaced with ready citations from Hegel with respect to the “transformation of form into substance and substance into form”. The dialectical method, which teaches that every truth is concrete, becomes in this instance its own opposite-dead scholasticism, barren arguments and disputes on the theme that “form is not without content and content not without form”. However, the matter really consists of showing the role and character of law as form in specific and concrete branches of law and concrete historial conditions with a relation to concrete content. Only in this manner can the real relation of form and content be established and can one be convinced that it is far from identical in different instances. Often legal form hides economic content directly contrary to it (thus in the period when we conducted the policy of restricting the kulak, the leasing of a horse or tools by a poor peasant to a rich one often hid the sale of the first’s labour power to the second). A transaction of purchase and sale can hide the most diverse economic content. The same could be said about any other relationships within the so-called law of obligations. Here we meet with a phenomenon whose form is relatively indifferent to its content, but it is improper to conclude from this that in civil law we have a “faceless instrumentality” which must be used independently of the economic class content of the relationships which it implements. On the contrary, the significance of form is recognized only through content, through economics, through politics and through relations between classes.

Therefore, it is a flagrant error to equate law as an historical phenomenon – including various class systems – with the totality of those features of bourgeois law that derive from the exchange of commodities of equal value. [16] Such a concept of law minimizes the class coercion essential to bourgeois law, essential to feudal law and to all law. Law in bourgeois society serves not only the facilitation of exchange, but simultaneously and mainly supports and consolidates the unequal distribution of property and the monopoly of the capitalist in production. Bourgeois property is not exhausted by the relationships between commodity owners. These [owners – eds. ] are tied by exchange and the contractual relationship is the form of this exchange. Bourgeois property includes in a masked form the same relationship of domination and subordination which, in feudal property, appears chiefly as personal subordination.

This methodological mistake was related to the relegation of the class repressive role of law, and to an incorrect presentation of the relation between state and law (the state as the guarantor of exchange), and to mistakes in questions of morality (the denial of proletarian morality) and in questions of criminal law.

The attempts to distinguish between formal characteristics and abstract legal concepts expressing the relationship between commodity owners, and to proclaim this “form of law” as the subject of the Marxist theory of law, should be recognized as grossly mistaken. This paves the way to the separation of form and content, and diverts theory from the task of socialist construction to scholasticism.

The immediate relation, in practice, between the proletariat (as the ruling class) and law (as a weapon with whose help the tasks of class struggle at any given stage are decided) is in this case replaced by the abstract theoretical denial of the “narrow horizons of bourgeois law” in the name of developed communism.

From this perspective Soviet law is seen exclusively as a legacy of class society imposed on the proletariat and which haunts it until the second phase of communism. The abstract theoretical exposure of “bourgeois” law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Accordingly, it gives insufficient concrete indication of the practical struggle against bourgeois influences, and against opportunist distortions of the Party’s general line on Soviet law.

The theoretical mistake of exaggerating the importance of market relations can be the basis for right opportunist conclusions about always preserving the bourgeois forms of law corresponding to private exchange. Conversely, to ignore exchange in considering the problems of Soviet law leads to “leftist” positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. to the defence of the elimination of individual responsibility and wage egalitarianism.

Top of the page

1. K. Marx, Letter to Weydemeyer (March 5, 1852), MESW , vol.1, p.528.

2. V. I. Lenin, The Economic Content of Narodnism (1895), LCW , vol.1, p.419.

3. See Kellreiter’s article The State ;, in D. Elster et al. (eds), Handwörterbuch der Rechtswissenschaft (1923), Fischer, Jena, p.599.

4. V.I. Lenin, A Contribution to the History of the Question of Dictatorship (1920), LCW , vol.31, p.353.

5. F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), MESW , vol.3, p.371.

6. ibid. , p.371.

7. From a resolution of the XVIIth Party Conference (1932).

8. J. Stalin, The Fourteenth Congress of the CPSU (1925), Stalin: Works, Foreign Languages Publishing House, Moscow (1954), vol.7, p.374.

9. V.I. Lenin, What the “Friends of the People” Are (1894), LCW , vol.1, pp.141-42.

10. K. Marx, The Class Struggles in France (1850), MESW , vol.1, p.282.

11. P.I. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol.1, p.13.

12. ibid. , pp.78-79.

13. P.I. Stuchka, The Revolutionary Role of Law and State (1921), Moscow, p.15.

14. ibid. (3rd edition); and P.I. Stuchka’s article Law in Encyclopaedia of State and Law, (1925-1927), vol.3, pp.415-430.

15. “The state and law are determined by economic relations. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op. cit. p.370.

16. This erroneous conception was developed in E.B. Pashukanis, The General Theory of Law and Marxism (1927), 3rd edition. See also E.B. Pashukanis, The Situation on the Legal Theory Front , Soviet State and the Revolution of Law (1930), no.11-12; and For a Marxist-Leninist Theory of State and Law (1931) Moscow, where a critique of this mistaken conception is given.  

Last updated on 13.5.2004

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Ukraine’s divisive mobilization law comes into force as a new Russian push strains front-line troops

A divisive mobilization law in Ukraine came into force on Saturday, as Kyiv struggles to boost troop numbers after Russia launched a new offensive that some fear could close in on Ukraine’s second-largest city. (AP video shot by Alex Babenko)

A newly recruited soldier of the 3rd assault brigade trains, in Kyiv, Ukraine, Friday, May 17, 2024. A divisive mobilisation law in Ukraine came into force on Saturday, as Kyiv struggles to boost troop numbers after Russia launched a new offensive. (AP Photo/Efrem Lukatsky)

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Oleksii, 68, director of the auto repair shop poses for photo in Kyiv region, Ukraine, Saturday, May 18, 2024. A divisive mobilisation law in Ukraine came into force on Saturday, as Kyiv struggles to boost troop numbers after Russia launched a new offensive. (AP Photo/Alex Babenko)

Newly recruited soldiers of the 3rd assault brigade train in Kyiv, Ukraine, Friday, May 17, 2024. A divisive mobilisation law in Ukraine came into force on Saturday, as Kyiv struggles to boost troop numbers after Russia launched a new offensive. (AP Photo/Efrem Lukatsky)

KYIV, Ukraine (AP) — A divisive mobilization law in Ukraine came into force on Saturday, as Kyiv struggles to boost troop numbers after Russia launched a new offensive that some fear could close in on Ukraine’s second-largest city.

The legislation, which was watered down from its original draft, will make it easier to identify every conscript in the country. It also provides incentives to soldiers, such as cash bonuses or money toward buying a house or car, that some analysts say Ukraine cannot afford .

Lawmakers dragged their feet for months and only passed the law in mid-April, a week after Ukraine lowered the age for men who can be drafted from 27 to 25 . The measures reflect the growing strain that more than two years of war with Russia has had on Ukraine’s forces, who are trying to hold the front lines in fighting that has sapped the country’s ranks and stores of weapons and ammunition.

Ukrainian President Volodymyr Zelenskyy also signed two other laws Friday, allowing prisoners to join the army and increasing fines for draft dodgers fivefold. Russia enlisted its prisoners early on in the war, and personnel shortages compelled Ukraine to adopt the new, controversial measures.

CONCERNS ABOUT THE LAW

Oleksii, 68, who runs a car repair shop in Kyiv, worries his business will have to shut down as he expects 70% of his workers will be mobilized. He asked that only his first name be used to allow him to speak freely.

“With the new law, people will be mobilized and we will have to shut down and stop paying taxes,” Oleksii told The Associated Press on Saturday. He said it’s very difficult to replace workers because of their specialized skills. Most of them are already in the armed forces, he said, adding that the law is “unfair” and “unclear.”

Even essential municipal services will be affected. Viktor Kaminsky, the head of a municipal service department in Kyiv that fits households with heating and repairs utilities in public buildings, said he will struggle to replace mobilized staff and meet demand, even though the law allows him to retain half of workers deemed fit for service.

He said 60 of the 220 people working in Kaminsky’s department will be eligible to be called up. “If they take 30 people from what we have, the problem is we don’t have anyone to replace them,” he said.

“There are pros and cons to this law,” Kaminsky said. “It’s hard to avoid the mobilization process now, compared to before when people were trying to get around it.” But, he said, it would be better if essential workers like his were granted more exemptions.

Meanwhile, Oleksii Tarasenko, a deputy commander of a Ukrainian assault battalion, told AP that his men felt “awful” about the law’s failure to address the issue of demobilization. Although many Ukrainian troops have been fighting since the war’s early days, it remains unclear when and how they might be relieved of duty.

“It feels like a cruel injustice towards people who have been fighting for two years, and of course, it has a highly negative effect on the psychological state of soldiers and their families,” Tarasenko said.

Early drafts of the law envisaged the demobilization of troops after 36 months, and the rotation of those serving on the front line for more than half a year. These clauses were dropped following a last-minute appeal by Ukraine’s military leadership, concerned that the armed forces would be left without their best-trained and most experienced troops. The Ukrainian Defense Ministry is working on a separate demobilization law.

Tarasenko said that despite their weariness, his comrades could see the generals’ point.

“We already see how many people are lacking, especially professional troops in the units. And simply allowing such professional people who have been through a lot to demobilize would be wrong,” he said.

UKRAINIAN FORCES UNDER STRAIN

Ukraine has struggled for months to replenish depleted forces, as Russian troops are pushing ahead with a ground offensive that opened a new front in the northeast and put further pressure on Kyiv’s overstretched military. After weeks of probing, Moscow launched the new push knowing that Ukraine suffered personnel shortages, and that its forces have been spread thin in the northeastern Kharkiv region.

Moscow’s forces have pummeled Kharkiv with strikes in recent weeks, hitting civilian and energy infrastructure and prompting angry accusations from Zelenskyy that the Russian leadership sought to reduce the city to rubble. Mayor Ihor Terekhov said that five people were injured on Saturday in a Russian airstrike that hit a residential area. On Friday, Terekhov reported that Russian guided bombs killed at least three Kharkiv residents and injured 28 others.

Moscow denies deliberately targeting civilians, but thousands have died or suffered injuries in the more than 27 months of fighting.

Kharkiv regional Gov. Ihor Syniehubov on Saturday said that nearly 10,000 civilians had to be evacuated from front-line areas near the Russian border. Only 100 residents remain in Vovchansk, the border town at the center of Moscow’s grinding push that’s now largely in ruins. The town had a pre-war population of over 17,400.

The U.S. last week announced a new $400 million package of military aid for Ukraine, and President Joe Biden has promised that he would rush badly needed weaponry to the country to help it stave off Russian advances. Still, only small batches of U.S. military aid have started to trickle into the front line, according to Ukrainian military commanders, who said it will take at least two months before supplies meet Kyiv’s needs to hold the line.

VOLUNTEERS AND RUNAWAYS

Rusyn is the head of recruitment for the 3rd Assault Brigade, one of the most popular among Ukrainian volunteers. He told AP that he saw a 15% increase in men joining the brigade, which fights in eastern Ukraine, in the past months. Most recruits are aged between 23-25, he said. Speaking at a training session in Kyiv, Rusyn and his recruits asked to be identified by their call signs only, citing security concerns.

“There is no alternative (to mobilization),” said Rohas, a 26-year old recruit. “One way or another, I believe that most men will end up in the ranks of the armed forces and by joining as a volunteer, you still get some preferences.”

“Those who are afraid of being mobilized are not the ones hostage to this situation, it’s those (soldiers) who are standing in formations of three where there should be 10. Those guys are hostages to this situation and they should be replaced, so that’s why we are here,” Rohas said.

Many Ukrainians have fled the country to avoid the draft since Russia’s all-out invasion in February 2022.

The Supreme Court last month said that 930 people were convicted of avoiding mobilization in 2023, a fivefold increase from the previous year.

Around 768,000 Ukrainian men aged 18-64 had been granted temporary protection in European Union countries as of last November, according to data from the bloc’s statistical agency, Eurostat.

Kyiv has barred men under 60 from leaving the country since the start of the war, but some are exempt, including those who are disabled or have three or more dependent children. The Eurostat data does not specify how many of the men who have qualified for protection belong to these categories, nor how many others reached the EU from Ukraine’s Russian-occupied territories in the east and south.

Unable to cross the border legally, some Ukrainian men risk death trying to swim across a river that separates Ukraine from neighboring Romania and Hungary.

Late on Friday, Ukraine’s border service said that at least 30 people have died trying to cross the Tisza River since the full scale-invasion.

Romanian border guards days earlier retrieved the near-naked, disfigured body of a man that appeared to have been floating in the Tisza for days, and is the 30th known casualty, the Ukrainian agency said in an online statement. It said the man has not yet been identified.

Kozlowska reported from London. Associated Press writer Alex Babenko in Kyiv, Ukraine contributed to this report.

Follow AP’s coverage at https://apnews.com/hub/russia-ukraine

Jackson Walker Says Judge Tried to Mislead Court on Romance (2)

By James Nani

A Jackson Walker partner was asked by a former Texas bankruptcy judge to file a potentially false court disclosure about his relationship with his secret live-in girlfriend, the firm said in court papers.

The Texas law firm’s filing Wednesday in several bankruptcy cases adds a blockbuster new allegation to the still-unfolding scandal surrounding the resignation of David R. Jones, once the busiest corporate bankruptcy judge in the country, after he admitted to the romance with attorney Elizabeth Freeman last year.

Jones, Freeman, and Jackson Walker are all facing litigation accusing them of improperly keeping the relationship out of the public eye.

Jackson Walker said Jones indicated in late 2022 that he wanted the matter kept under wraps, just as the firm was negotiating with Freeman over whether it should disclose the romance — or if she should leave the firm.

The filings provide new details in the timeline of the scandal, which has rocked the tight-knit bankruptcy community.

Freeman had insisted in 2021 that her relationship with Jones was over. But Jackson Walker found out on Feb. 1, 2022, that Jones and Freeman were still in a romantic relationship: a non-bankruptcy law firm partner heard about it from an acquaintance of Freeman’s ex-husband.

Jackson Walker’s management confronted Freeman on March 29 that year. The next day, she admitted that the two had “rekindled their relationship,” the firm said.

Jackson Walker spokesman Jim Wilkinson and Freeman attorney Tom Kirkendall declined to comment. Jones didn’t immediately respond to a request for comment.

‘Unprecedented Circumstances’

To be retained as counsel, law firms must disclose any connections to with interested parties in a case as part of standard filings in a suit.

Jackson Walker’s latest filings lay out its defense of how it tried to address the Jones-Freeman situation, why it shouldn’t be held responsible for what it says it Jones’ misconduct, and why the US Trustee’s push to claw back its fees should be rejected.

The “unprecedented circumstances required a thoughtful approach” that led to months of talks between the firm and Freeman’s attorney, Tom Kirkendall, about how to disclose the relationship. The situation was especially sensitive because Jones “was convinced” that the rules didn’t require disclosure of the relationship, Jackson Walker said.

By Oct. 28, 2022, Freeman was given a draft agreement to withdraw from Jackson Walker. The draft included language that Freeman would “confer and cooperate” with the firm when it came to existing clients, and allowed Freeman and the firm to continue to work together after she left.

As negotiations continued, Jones sometime in October or November 2022 invited Freeman’s colleague and Jackson Walker bankruptcy partner Matthew Cavenaugh into his chambers after a hearing, the firm said.

Jones told Cavenaugh that as the judge, he “alone” was required to disclose the relationship with Freeman—not the firm—and “insinuated that he was displeased with JW’s desire for a full disclosure of his romantic relationship with Ms. Freeman,” according to the filing.

Jones at the end of the conversation gave Cavenaugh a proposed disclosure that described Freeman as Jones’ former law clerk, noted they were former law partners, and said they maintained a “close personal relationship.” Jones’ proposal didn’t fully address the romantic element of their relationship, according to the firm.

Jones instructed Jackson Walker to use the proposed disclosure in future cases the firm brought before him in court, saying the firm “needs to make this happen,” according to the filing. The proposed disclosure didn’t mention Jones’ and Freeman’s shared home, either, according to Jackson Walker.

“JW determined that the disclosure was potentially misleading or untruthful because it did not fully disclose the nature of Judge Jones’s relationship with Ms. Freeman,” the firm said. “As a result, JW declined to use Judge Jones’s proposed disclosure, and proceeded with its separation from Ms. Freeman.”

Says ‘Acted Reasonably’

Jackson Walker made the statements about Jones and the timeline of the situation in several bankruptcy cases on Wednesday, including in the Chapter 11 of JCPenney .

The Justice Department’s bankruptcy monitor, the US Trustee’s office, is seeking to claw back at least $13 million in fees Jackson Walker earned in cases in which the firm failed to disclose the romantic relationship, including in JCPenney’s.

In the JCPenney filing, Jackson Walker said it didn’t violate any ethical rules, disclosure obligations, or other duties as alleged by the US Trustee. Jackson Walker “could not disclose information it did not know” and “acted reasonably,” the firm said.

Jackson Walker complained that the US Trustee has been targeting the firm, but so far had failed to impose any consequences on Jones or Freeman.

“It is ironic that the U.S. Trustee alleges JW should have disclosed the nature of the relationship to the same judge who knew of the relationship, allegedly had a duty to disclose or recuse himself, and who knowingly declined to do so,” Jackson Walker said.

A Justice Department spokesman declined to comment on Thursday.

The case is J. C. Penney Direct Marketing Services LLC , Bankr. S.D. Tex., No. 20-20184, response 5/22/24.

To contact the reporter on this story: James Nani in New York at [email protected]

To contact the editor responsible for this story: Maria Chutchian at [email protected]

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