On Friday night the Washington Post dropped another blockbuster report in the midst of a fast-unspooling scandal involving Donald Trump’s improper communications with foreign officials. It raises a worrying question: Was there a memorandum that should have been produced to the Mueller probe that was never turned over?
We learned Thursday, by way of a 9-page whistleblower report, about conversations between Trump and the Ukrainian President Volodymyr Zelensky, in which Trump seems to have conditioned the receipt of military aid on Zelensky’s pledge to reopen “cases” that would investigate Joe Biden’s son for Trump’s own electoral benefit, that in the wake of the July phone call with Zelensky, “senior White House officials had intervened to ‘lock down’ all records of the phone call, especially the official word-for-word transcript of the call that was produced—as is customary.” We further learned from the whistleblower complaint that White House officials were ordered by “White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored for coordination, finalization, and distribution to Cabinet-level officials.” Further we know now that although it contained no classified information from a national security perspective, “the transcript was loaded into a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature.”
That latter bit is almost a bigger scandal than the fact that the president tried to extort a foreign ally to produce fake opposition research in order to win the election. It directly implicates White House lawyers in hiding embarrassing documents under the pretext of protecting national security information. Beyond which, it’s explicitly illegal to classify things for the purpose of covering up embarrassing behavior or misconduct. Presumably the House Intelligence Committee will now have to figure out who these lawyers were, and Russia, if you’re listening, maybe you can track down the emails.
But here’s where Friday night’s Washington Post story perhaps magnifies the Ukraine scandal: The report, by Shane Harris, Josh Dawsey, and Ellen Nakashima, alleges that there is a memorandum summarizing the White House meeting on May 10, 2017, between Donald Trump, Russian Foreign Minister Sergei Lavrov, and Russian Ambassador Sergey Kislyak, a meeting at which Trump revealed highly classified information that exposed a foreign agent, and at which he also told Lavrov and Kislyak that firing FBI Director James B. Comey the previous day had relieved “great pressure” on him.
The Post goes on to note that “it is not clear whether a memo documenting the May 10, 2017, meeting with Lavrov and Kislyak was placed into that system, but the three former officials said it was restricted to a very small number of people.” Here’s the problem: That May 10 White House meeting was the subject of intense scrutiny by the Mueller probe because it went directly to the question of why Comey was fired. Page 71 of the second volume of the Mueller report notes, “In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office.” The footnote cites to a White House document entitled “Working Visit with Foreign Minister Sergey Lavrov of Russia” which is dated 5/9/17, the day before the meeting, and to an email (5/9/17 White House Document, “Working Visit with Foreign Minister Sergey Lavrov of Russia”); SCR08_001274 (5/10/17 Email, Ciaramella to Kelly, et al.). That’s the only document that seems to have been produced in reference to the May 10 meeting. There is confirmation of Trump’s remarks about Comey’s firing being a relief from Sean Spicer and Hope Hicks.
That’s it. The May 10 meeting is supported by an email. Now the question becomes, if there was a memorandum of that meeting, how is it possible that it was not produced to Mueller? It’s awfully hard to believe that Mueller didn’t ask for any readout or memorandum from that meeting; a meeting at which the president explained that he fired Comey in part because he was being pressured by the Russia investigation. That admission to his Russian visitors is part of one of the obstructive acts Mueller found.
So, assuming the Post is correct that a memorandum of that meeting exists, what happened to it? Assuming Mueller is capable of drafting a document request, why was that memorandum not produced? Was it logged and redacted? Was it deemed classified under the newly discovered separate server used only for hiding catastrophic missteps or worse? Or was it produced to Mueller, and its contents did not make it into the report because for unknown reason Mueller chose not to include it?
The notion that Mueller missed this altogether borders on the incredible. We know that Mueller sought to question Trump on “Alleged Obstruction of Justice” and that one of the items he expressly wanted to ask about was “13. Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt.” (Trump’s lawyers declined the interview altogether). So, given that Mueller wanted to ask Trump about the May 10 meeting in an interview, it’s unlikely he forgot to ask that any documents around the meeting be produced. Either that May 10 email was the memorandum and Mueller just ignored Trump’s comments on welcoming foreign election tampering, or he never saw the memo.
There’s another possibility. Tobias Barrington Wolff, who teaches the American civil justice system and constitutional law at University of Pennsylvania Law School, tells me in an email that the May 10 memorandum may be different. Because in that meeting, he notes, Trump disclosed a key confidential Israeli asset, “there maybe was actually some national security classification issue there. So the story from 2017 is vital, but also more complex. Precisely because he disclosed classified information, the treatment of that particular transcript may be ambiguous.” But, he adds, even if the May 10 memorandum was properly classified, “This emphasizes the point that Mueller’s conclusions were based on imperfect information precisely because of White House and Trump misconduct.”
Did someone in the White House simply decline to turn over the May 10 memorandum as described to the Washington Post, in which case someone obstructed justice? Or did someone send the May 10 memorandum to the same place the reports of the Trump-Zelensky phone call of July 2019 went? Locked down on a separate electronics system that Mueller didn’t know about? That would mean, at the very least, that someone was obstructing Mueller’s obstruction investigation, and we should know who that was.