One of the pieces of “evidence” in the issue of obstruction of justice by President Trump is a voicemail message left by the President’s attorney, John Dowd, on the phone of former National Security Advisor Michael Flynn’s attorney, Robert Kelner. The meaning and use of the voicemail message have become very controversial – which should come as no surprise.
Before getting into the detail, it is necessary that the reader see the entire message – so here it is.
Hey, Rob, uhm, this is John again. Uh, maybe, I-I-I’m-I’m sympathetic; I understand your situation but let me see if I can’t … state it in … starker terms. If you have … and it wouldn’t surprise me if you’ve gone on to make a deal with, and, uh, work with the government, uh … I understand that you can’t join the joint defense; so that’s one thing. If, on the other hand, we have, there’s information that. .. implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know … some issue, we got to-we got to deal with, not only for the President, but for the country. So … uh … you know, then-then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information. So, uhm, and if it’s the former, then, you know, remember what we’ve always said about the President and his feelings toward Flynn and, that still remains, but-Well, in any event, uhm, let me know, and, uh, I appreciate your listening and taking the time. Thanks, Pal.
According to the anti-Trump media mavens, this is a “smoking gun” that clearly shows obstruction of justice and even witness tampering on the part of the President. These self-styled experts on the left claim that it ties Trump into the crime because Dowd is his attorney. Former Federal Prosecutor Paul Butler – a frequent and vehement on-camera critic of the President – says that the voicemail message shows the commission of a federal crime. Butler does not say “may,” but declares it definitively.
The critics go on to say that Dowd was seeking information that he knows could not be provided because Dowd knew that Flynn had signed a cooperation agreement with Special Counsel Robert Mueller. Actually, when Dowd says that it would not surprise him IF they (Flynn) had made a deal with the government, it shows that Dowd did not know at that time if a deal had been struck or not. Later in the message, when referring back to the question of a cooperation agreement, Dowd says, “If it’s the former …” – again indicating he did not know.
Based on the POSSIBILITY that a cooperation agreement had been reached, Dowd expressed his understanding they “can’t join the joint defense.” It is important to note that Dowd specifically said he was not seeking any “confidential information.”
Some of the panelists on MSNBC indicated that Dowd was dangling a pardon in front of Flynn in coded language. Apparently, the language is so coded that no rational person could come to that conclusion – not even a reasonable suspicion. Dangling pardons has been one of the left’s evergreen narratives despite the lack of any hard evidence – or any pardons.
Butler opined that the only reason Mueller did not charge Trump with obstruction in this situation was because of the Department of Justice rule saying sitting Presidents cannot be indicted. Actually, I can think of two reasons why Butler is making false statements. First, it was not the President on the phone. Duh! Even if it was Trump’s attorney, it would be a looooong way to proving that Trump knew or ordered obstruction by Dowd – and even then, it was Dowd who would have been guilty.
Then there is the second reason that Butler’s allegation is … well … bs. There was no obstruction of justice … no witness tampering … no dangling pardons. This was a communication from one attorney to another. Lawyers can talk like this … and do. I have seen lawyers make a lot more serious and specific threats to an opposing attorney.
Butler conveniently overlooked an important fact – one of which he should have been well aware. While you can obfuscate the facts by pointing to the DOJ rule protecting Trump, it does not apply to Dowd, who would be the chargeable person in this case. So, why didn’t Mueller charge Dowd with obstruction and witness tampering based on this voicemail, which Butler finds so compelling? In fact, Mueller never even questioned Dowd about the voicemail. Why not? Easy answer. There was no crime.
This voicemail was the subject of an even more sinister controversy that developed when the full transcript and recording of the message was released by court order. Prior to that, Mueller’s Report and the press coverage were presenting an abridged version – essentially redacting parts for no apparent GOOD reason. What was left out has led to evidence tampering by the Mueller team. This also enabled the media to spin the voicemail interpretation against Trump – which they are still doing.
Mueller would not have released the entire recording and transcript had it not been ordered by Judge Emmet Sullivan. Once seen by the public and the Trump team, the omitted portions became central to the controversy.
In his report, Mueller interpreted the information on the voicemail as one in a “sequence of events could have had the potential to affect Flynn’s decision to cooperate, as well as the extent of that cooperation.” If that were accurate, one might wonder why Mueller never interrogated Dowd about it. And why no indictment of Dowd?
Dowd accused the Mueller team of misusing the voicemail to “smear and damage the reputation of counsel and innocent people” Dowd has a point. It seems to be yet another example of Mueller implying wrongdoing without any prosecutorial follow up – or even specific claims of criminality. Perhaps the Dowd voicemail portion of the Mueller Report should have been redacted under the policy of not publicly stating negative things about a person who is not indicted. Just saying.
The omissions from the voicemail in the Mueller Report appear to be strategic – designed to give a false impression of what Dowd was saying and meaning. It is a classic example of taking things out of context to support a preconceived narrative. If true, that would give credence to the claims that the Mueller team was predisposed to “get Trump” – maybe even part of a larger informal conspiracy of self-interest within the law enforcement and prosecutorial community.
So, what did Mueller & Co. leave out … and why?
Unless Mueller testifies and answers the questions, we can only assume the “why.” But we now know what was intentionally left out – and every bit of it would weaken the claim that the voicemail was a “sequence of events” suggesting obstruction of justice and witness tampering.
The fact that Dowd assured Kelner that he was not seeking anything that would be considered “confidential” was removed. That portion of the voicemail would strongly suggest that Dowd was NOT seeking an improper response from Kelner.
Also removed was Dowd saying that if there was a cooperation agreement between Flynn and Mueller, “I understand that you can’t join the joint defense …” Interestingly, when the supposedly complete transcript was reported on MSNBC, that statement was shown as “(inaudible)” even though a careful listener could hear it and other news outlets were able to produce the statement in full.
The highly questionable editing of the Dowd voicemail casts doubts in other innuendoes in the Mueller Report. Ironically, it is the congressional Republicans who are now demanding to see any hard evidence backing up the Report’s findings – and especially the non-findings. California Congressman and ranking minority member on the House Intelligence Committee Devin Nunes is calling for the release of the underlying evidence and for Mueller’s entire team to testify before the Committee.
Despite the biased and dishonest reporting by the anti-Trump press, the voicemail does not reveal a crime. It is not the smoking gun they are trying to make us believe. Those biased and agonizing interpretations are just partisan hot air.
So, there ‘tis.