The charge is obstruction, not talking about obstruction.
The obstruction has to have happened.
The obstruction was instructing McGahn to tell Rosenstein to fire Mueller so
the act of obstruction did happen.
While “mere abstract talk” does not suffice, any
“concrete and specific” acts that corroborate the defendant’s intent can constitute a “substantial step.”
United States v. Irving, 665 F.3d 1184, 1198–1205 (10th Cir. 2011). Thus,
“soliciting an innocent agent to engage in conduct constituting an element of the crime” may qualify as a substantial step.
Obstructive act (p. 87): Former White House Counsel Don McGahn is a “credible witness” in providing evidence that Trump indeed attempted to fire Mueller.
This “would qualify as an obstructive act”
Volume 2, Page:85
On Saturday, June 17, 2017,
the President called McGahn and directed him to have the Special Counsel removed.571 McGahn was at home and the President was at Camp David.572 In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.573
On the first call, McGahn recalled that the President said something like, “You gotta do this. You gotta call Rod."574 McGahn said he told the President that he would see what he could do.575 McGahn was perturbed by the call and did not intend to act on the request.576 He and other advisors believed the asserted conflicts were “silly” and “not real,” and they had previously communicated that view to the President.577 McGahn also had made clear to the President that the White House Counsel’s Office should not be involved in any effort to press the issue of conflicts.578
McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not “Saturday Night Massacre Bork."579 McGahn considered the President’s request to be an inflection point and he wanted to hit the brakes.580
When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.”581 McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.”582
McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein.583 To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein.584 McGahn recalled that he had already said no to the President’s request and he was worn down, so he just wanted to get off the phone.585
McGahn recalled feeling trapped because he did not plan to follow the President’s directive but did not know what he would say the next time the President called.586 McGahn decided he had to resign.587 He called his personal lawyer and then called his chief of staff, Annie Donaldson, to inform her of his decision.588 He then drove to the office to pack his belongings and submit his resignation letter.589
Donaldson recalled that McGahn told her the President had called and demanded he contact the Department of Justice and that the President wanted him to do something that McGahn did not want to do.590 McGahn told Donaldson that the President had called at least twice and in one of the calls asked “have you done it?”591 McGahn did not tell Donaldson the specifics of the President’s request because he was consciously trying not to involve her in the investigation,
but Donaldson inferred that the President’s directive was related to the Russia investigation.592 Donaldson prepared to resign along with McGahn.593
That evening, McGahn called both Priebus and Bannon and told them that he intended to resign.594 McGahn recalled that, after speaking with his attorney and given the nature of the President’s request, he decided not to share details of the President’s request with other White House staff.595 Priebus recalled that
McGahn said that the President had asked him to “do crazy s***,” but he thought McGahn did not tell him the specifics of the President’s request because
McGahn was trying to protect Priebus from what he did not need to know.596 Priebus and Bannon both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and remained in his position.597 He had not told the President directly that he planned to resign, and when they next saw each other the President did not ask McGahn whether he had followed through with calling Rosenstein.598
