WASHINGTON — Because the actual counsel’s investigators pursued the ask of whether President Trump tried to hinder their work, they uncovered compelling proof — a issue mail recording and statements from a depended on ask — that could well occupy resulted in him.
A lawyer for Mr. Trump, John M. Dowd, reached out to a lawyer for a key ask who had comely decided to cooperate with the government, Michael T. Flynn. Mr. Dowd fished in his message for a heads-up if Mr. Flynn modified into once telling investigators detrimental files about Mr. Trump — whereas also showing to advise that if Mr. Flynn modified into once comely chopping a contend with out also flipping on the president, then he need to composed know Mr. Trump composed cherished him.
But the president’s aim, if any, remains a thriller. Mr. Dowd by no technique said whether Mr. Trump directed him to create the overture. And investigators for the actual counsel, Robert S. Mueller III, declined to ask Mr. Dowd about his message, citing “criminal legitimate-client-privilege components.”
The launch of the recording closing week served as a reminder that despite the substantial proof laid out within the 448-net page Mueller report, some intelligent questions on the president’s conduct went unanswered because investigators encountered boundaries or backed off on pursuing leads.
Mr. Dowd can occupy steered investigators whether Mr. Trump knew about his message and had directed him to remark it, and whether such a dialog included dangling a veiled recommendation of a doable pardon at Mr. Flynn. The ask is whether or now not it amounted to ask tampering.
Lawful experts had been divided on whether Mr. Mueller’s crew need to composed occupy sought to ask Mr. Dowd. The investigators compiled expansive proof that Mr. Trump tried to hinder justice even with out Mr. Dowd’s testimony, and an strive to interview him can occupy steered a lengthy court battle with an unsure final result.
“Given all that Mueller’s crew had on their plate, it doesn’t strike me as unreasonable for them to occupy said, ‘This is now not what we wish to exhaust our time on,’” said David A. Sklansky, a Stanford law professor and a used prison prosecutor.
But questioning Mr. Dowd about whether Mr. Trump wished him to dangle pardons or diversified correct treatment to witnesses can occupy been a safe investigative pursuit because it might possibly possibly probably perchance perchance occupy decrease to the heart of whether the president abused his vitality.
Joyce Vance, a professor at the College of Alabama College of Legislation and a used United States criminal legitimate, said she would occupy wished to exhaust all tools on hand to be taught whether Mr. Trump steered Mr. Dowd to create the resolution.
She necessary that courts occupy known an exception to criminal legitimate-client privilege that enables investigators to compel folks to testify to an infinite jury about such conversations if they are thinking about the commission of a crime.
“Lawyers can’t recall in prison conduct disguised as comely representation,” she said.
Ms. Vance said that looking for to interview Mr. Dowd “appears to be like so evident” that there’ll likely be particulars which occupy but to alter into public that make clear the Mueller crew’s resolution.
Mr. Dowd did now not respond to a message looking for comment. He has reacted angrily to the report’s portrayal of his messages, calling it “a baseless, political report designed to smear and damage the popularity of counsel and harmless folks,” and stressing that the actual counsel by no technique even requested him about the issue mail message.
Assorted presidents occupy faced broad scrutiny for the identical subject. In 1974, one in every of the articles of impeachment in opposition to Richard M. Nixon said he had sought to signal to defendants within the Watergate investigation that they’d be treated favorably “in return for their silence or spurious testimony.”
A transcript of Mr. Dowd’s message for Mr. Flynn’s lawyer at the time, Robert Good ample. Kelner, modified into once included within the Mueller report, which modified into once made public in April. But the audio, released after prosecutors said they no longer desired to protect it under seal, added contemporary texture to the episode.
The report laid out a string of communications between Mr. Dowd and Mr. Flynn’s lawyers all over the resolution by their client, the president’s first national safety adviser, to cooperate with Mr. Mueller’s prosecutors. That transfer successfully ended the joint defense settlement that the lawyers had operated under for months and that had allowed them to portion files about the investigation.
After Mr. Kelner steered Mr. Dowd that they’re going to merely no longer work together, Mr. Dowd left the issue mail message that Mr. Mueller’s crew later obtained, asserting that if Mr. Flynn had files that could well incriminate the president, he need to composed portion it because that could well make a “national safety subject.”
“We need some roughly heads-up” if Mr. Flynn modified into once planning to give investigators detrimental files about Mr. Trump, Mr. Dowd said.
Mr. Dowd then added that “if it’s the used” — an apparent reference to an earlier allotment of his message, when he raised the chance that Mr. Flynn had struck a plea deal to entire his own comely troubles — then Mr. Flynn need to composed “undergo in mind what we’ve constantly said about the president and his feeling in opposition to Flynn, and that composed remains.”
It’s unclear what Mr. Dowd supposed by a “national safety subject” — or why Mr. Trump’s interior most lawyer, as in opposition to a government lawyer, would occupy any aim in all for it.
On the time, Mr. Trump’s lawyers had been fervent by Mr. Mueller’s investigation into whether he modified into once tied to Russia’s election interference. Mr. Flynn modified into once also under investigation for his ties to Russia. And as Mr. Trump’s national safety adviser for decrease than a month, he had earn entry to to a lot of the nation’s most heavily guarded secrets and ways.
Mr. Kelner returned the resolution the subsequent day — on Thanksgiving — in response to the report, again asserting that he and his client could no longer portion files.
Mr. Dowd reacted indignantly. “He interpreted what they said to him as a mirrored image of Flynn’s hostility in opposition to the president” and deliberate to uncover Mr. Trump so, the report said, citing an F.B.I. interview of Mr. Kelner.
Mr. Dowd’s call, investigators wrote, performed out in opposition to the backdrop of a sample wherein Mr. Trump had “sent interior most and public messages to Flynn encouraging him to take care of sturdy and conveying that the president composed cared about him” earlier than he began to cooperate with investigators.
But Mr. Mueller’s investigation of that episode if truth be told stopped there. As successfully as to citing in a footnote the criminal legitimate-client-privilege components that saved them from questioning Mr. Dowd, investigators also agreed after months of negotiations to assemble written solutions from Mr. Trump, who refused to address obstruction components, in issue of subpoena him for an interview.
Round the time Mr. Flynn decided to cooperate, Mr. Dowd steered others that he steered Mr. Kelner that the president modified into once moving to pardon his client because he had lengthy believed that the case in opposition to Mr. Flynn modified into once faded, a person familiar with the topic has said. That detail, reported in The Novel York Situations in March 2018, modified into once now not within the Mueller report.
One technique of interpreting the episode is that Mr. Dowd modified into once telling Mr. Flynn now not to offer the government with detrimental files about Mr. Trump despite the incontrovertible truth that he cooperated in diversified ways, and suggesting that Mr. Trump could reward his loyalty with a pardon.
But the message modified into once ambiguous. Mr. Dowd by no technique mentioned pardons particularly. The Mueller report said completely that the resolution and diversified events “can occupy had the aptitude to occupy an affect on Flynn’s resolution to cooperate, as successfully as the extent of that cooperation.”
By distinction, the report is rather more explicit about Mr. Trump’s conduct in opposition to his used marketing campaign chairman, Paul Manafort. Evidence presentations that Mr. Trump sought to discourage Mr. Manafort from cooperating with the government and supposed to persuade a jury weighing whether to convict him, in response to the report.
Inspecting the episode begins with seeking to create sense of what Mr. Dowd modified into once asserting in his spherical, halting technique, comely experts said.
His message is more likely to be interpreted “as a thinly veiled offer of a pardon conditioned on Flynn conserving his mouth shut,” Mr. Sklansky said.
In that case, he said, that could perchance quantity to obstruction of justice, and any conversations between the president and Mr. Dowd about sending such a message to Mr. Flynn would no longer be stable by criminal legitimate-client privilege because they’d be regarded as allotment of a crime. In that case, a judge can occupy ordered Mr. Dowd to observe a subpoena to uncover the discussions.
Nonetheless, Mr. Sklansky confused, all of that relies on two things that remain unclear: whether that is the comely interpretation of Mr. Dowd’s remarks and whether Mr. Trump if truth be told steered him to send that message with detrimental intent. And because Mr. Dowd would absolutely occupy invoked criminal legitimate-client privilege to protect faraway from voluntarily answering questions on those interactions, he said, it might possibly possibly probably perchance perchance point out a lengthy subpoena battle in court for his testimony.
It modified into once potentially now not price it for Mr. Mueller’s investigators to snatch on that subject — in particular if all that they had to create the case to a judge had been their suspicions about a difficult-to-parse statement, said Samuel W. Buell, a used federal prosecutor who now teaches prison law at Duke College.
“It’s somewhat little bit of a Buy-22 since the privilege is so in moderation stable by the courts that the exceptions completely kick in while you might perchance perchance level to they apply,” Mr. Buell said. “How can you level to they apply earlier than you occupy gotten that files? It is well-known to occupy a circumstantial case already that someone and their lawyer had been taking part in obstruction earlier than you’re going to earn to the conversations between them.”
Mr. Buell also necessary that it modified into once current for defense lawyers to fish spherical for files that is more likely to be precious to their client, and whereas Mr. Dowd’s comments could merely occupy walked “considerably dangerously near the road,” Mr. Buell’s evaluation modified into once that “it strikes me as veiled ample that it’s nothing a prosecutor could inappropriate a ask-tampering charge on.”