Mueller dings Dowd

In its Volume II the Mueller Report treats a voicemail message from President Trump’s (unnamed) personal counsel to counsel for former Trump National Security Advisor Michael Flynn (also unnamed) as potentially obstructive of the investigation. The facts are set forth at pages 293-294 of the report. The message is quoted in part at page 294. The report’s analysis is set forth at pages 298-300.

The report finds the message potentially obstructive: it “could have had the potential to Flynn’s decision to cooperate, as well as the extent of that cooperation.” In its analysis of the message, the report states: “Because of privilege issues…we could not determine whether the President was personally involved in or knew about the specific message his counsel delivered to Flynn’s counsel.” I reviewed this part of the Mueller Report here, citing all relevant pages and noting that the Trump attorney leaving the message goes unnamed in the report.

Yesterday prosecutors released a full transcript of the voicemail in issue. The release made news. I have the AP story at the link. The transcript was released by order of Judge Emmet Sullivan requiring disclosure of documents gathered by the government in Flynn’s case. Now we know the Trump attorney who left the message was John Dowd and that he left the message with Flynn attorney Rob Kelner. Flynn turned it over to Mueller following his guilty plea as part of his agreement to cooperate with the Special Counsel.

The AP report on the release of the transcript linked above fails to quote any of the newly released material. Why might that be? The CNN story by Katelyn Polantz is more detailed. It includes the full transcript of the message as well as a statement from Dowd.

Well, lookie here.

Our friend Techno Fog also obtained a statement from Mr. Dowd. Mr. Fog conveys Dowd’s displeasure.

On this episode the Mueller Report makes no sense in any event. I have yet to see an intelligent discussion of the report’s treatment of it. My own analysis may therefore be off, but consider this. If Dowd’s message to Kelner was obstructive, as the report asserts, Dowd himself would be liable whether or not he acted at the president’s behest or with his knowledge. Attorneys have no right to commit crimes on behalf of their principal.

Indeed, there is a crime/fraud exception to the attorney-client privilege. See, for example, the matter of Trump personal attorney Michael Cohen. The exception would clearly apply to conversations in which the principal instructs the attorney to undertake obstructive action. I declare this aspect of the Mueller Report a complete and utter crock.

And that’s not all. For some reason or other, the government has failed to produce additional documents responsive to Judge Sullivan’s order. The CNN story notes: “Regarding the Kislyak call, another key piece about Flynn in the Mueller report, prosecutors appear to say they don’t believe they need to hand over other recording transcripts they may have involving Flynn, because they were not used in his sentencing recommendation. But their explanation in the filing Friday isn’t extensive.”

Something’s happening here. I do believe that Attorney General Barr has his hands full in trying to get to the bottom of it.

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