Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674)

by Schmidt, Michael S.

  The statements from Flynn about the ambassador perplexed the agents, who had even used some of the same language in their questioning of Flynn as he had on one of the calls with the ambassador in hopes of prompting his memory. The agents said Flynn didn’t seem to be in a rush or have any idea that he was under investigation. He did not display any of the signs agents are taught to look for in someone who is lying, like sweating or looking away. Either he was a great liar, had some cognitive issue, or truly believed he was telling the truth. Even though they all knew he was lying, the agents said, he somehow seemed credible. Adding to the peculiarity, on three separate occasions in the span of the interview, Flynn looked out a window into midday brightness and said, “What a beautiful black sky.”

  Investigating the campaign of the president was going to be an enormous challenge for Comey. Now the national security adviser had broken the law and lied about his contacts with the foreign adversary that had meddled in the election to help Trump win. Had Flynn explained it all away as a miscommunication or told the FBI that he had lied to the vice president and the public to conceal the fact that he had talked to Kislyak, the bureau would likely have closed the investigation. But he didn’t. He lied to the FBI, and lies suggest cover-ups. Now, the relationship between Trump, his associates, and the Russians appeared even more suspicious.

  Comey tried to come up with an explanation. What did Flynn have to gain from lying? Flynn said himself he knew the government was listening in, so why the heck did he think he could get away with it?

  Flynn’s lies reminded Comey of two of the most high-profile cases he had been involved in during his career. When he was the U.S. attorney in Manhattan, his office indicted the home merchandising personality and executive Martha Stewart for making false statements to federal agents about whether she used insider information to profit on a stock sale. And when he served as the deputy attorney general, he oversaw the investigation into Vice President Cheney’s chief of staff, I. Lewis “Scooter” Libby, for lying to federal authorities about whether he had discussed the identity of an undercover CIA agent with reporters. Both Stewart and Libby were convicted. But the government and Comey never got a real answer for why they had lied—something Comey had always remembered.

  Plenty of lies make no sense, and we never get an answer for them, Comey would say later. “People sometimes lie for reasons that have nothing to do with the investigation. They lie because they think things will go away. I thought that Martha lied because she thought it would just go away.”

  For the FBI director, the Trump administration had gotten off to a very troubling start. They were less than a week in. Trump had shown that he would continue his behavior from the campaign. The national security adviser had broken the law and lied about Russia, and the bureau had no idea why.

  How could it get worse?

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  JANUARY 26, 2017

  111 DAYS UNTIL THE APPOINTMENT OF SPECIAL COUNSEL ROBERT S. MUELLER III

  MCGAHN’S OFFICE ON THE SECOND FLOOR OF THE WEST WING—One of McGahn’s most critical tasks during the transition was writing a detailed fifteen-page memo that laid out an hour-by-hour chronology about how the administration should roll out its Supreme Court nomination, to fill the vacancy left by Antonin Scalia’s death. Politically, it was the most important thing Trump could do, McGahn thought, because it signaled to his base that he would be true to his word and install hardened conservatives who shared their views on abortion and immigration. The opportunity to appoint an associate justice so soon in the administration would be a statement of principle and a marker to the base that had put Trump in office. To ensure the base heard this message and received this gift without any distraction, McGahn believed the entire administration should be disciplined and coordinated and not do anything that would steal attention from their nominee until the Senate had held its hearings and taken its vote.

  But by the sixth day of the administration, it was clear no one was in charge and no one was following that plan. Behind the scenes, Steve Bannon and Stephen Miller were pushing a travel ban by executive order that concentrated on closing travel from predominantly Muslim countries, a measure that McGahn knew was legally dubious. In a normal White House, the counsel’s office would be central to planning such a profound action, but not in this White House. McGahn seemed to have no control at all over stopping it. And by angrily fixating on the inaugural crowd size, the president and press shop had ensured that that story had dominated the first week of the presidency.

  The acting attorney general, Yates, shattered any remaining notion that McGahn would be able to focus on the Supreme Court nomination on Thursday morning, January 26, when she called McGahn with an urgent matter to discuss. She wanted to see him in person. The counsel’s office was a secure space, impervious to electronic monitoring, so they agreed to meet later that morning there, in McGahn’s office, where they could discuss classified information.

  At 11:00 a.m., Yates, accompanied by one of the Justice Department’s top national security officials, walked into McGahn’s office and sat down; the door was closed, and she got straight to the point. She laid out what the FBI knew about the calls between Flynn and the Russian ambassador and how the sanctions imposed by President Obama had been discussed. Yates said the fact that they talked about sanctions was significant, because Vice President Pence, Chief of Staff Priebus, and Press Secretary Spicer had said publicly that Flynn had not discussed sanctions with the ambassador. Yates said this raised two concerns. It was likely that the national security adviser had lied to the vice president. Plus, the Russians almost certainly knew that Flynn had lied, supplying them the ammunition for blackmail.

  Yates had even more details that made the whole situation worse: Two days earlier, FBI agents had been in the West Wing to interview Flynn. The FBI was investigating the new national security adviser. That information was grave enough; Yates would say nothing further about what he might have told the agents. McGahn struggled to comprehend the implications. But here, on the sixth day of the new administration, the acting attorney general, who had run the day-to-day operations at the Justice Department under the previous president, was in his office telling him that he had a problem that posed a grave national security risk to the United States. Whether either Yates or McGahn realized it at the time, there could be no more profound picture of the clash of cultures between the incoming and the outgoing administrations, or between the political poles in America. From the perspective of Obamaworld, Flynn had just demonstrated his disloyalty to the United States and should be fired immediately and face legal sanction. To Trumpworld, Yates was a symbol of the elites whom they had defeated in the campaign but who still wanted to destroy them. To them, she was the hand of the Obama administration reaching into Trump’s presidency to take out Trump’s top surrogate, the lock-her-up guy, and McGahn didn’t know what to do.

  Coming into the administration, McGahn recognized that as White House counsel he would have a hand in all executive branch issues, ranging from basic employment contracts to complex trade negotiations. There was no way he could be an expert in all subjects. He was cognizant that national security would be a potential soft spot because in a career in elections law he had rarely dealt with classified information before. But now, six days into the administration, at a time when McGahn wanted to be almost singularly focused on the nomination of Neil Gorsuch to the Supreme Court, the acting attorney general had presented him with an extraordinary national security problem.

  McGahn had spent very little time with Flynn during the campaign. Flynn seemed like a nice guy. But he had taken to Trump’s vicious brand of politics a bit too much for McGahn’s taste—even leading the Republican convention crowd in a chant of “Lock her up!” about jailing Hillary Clinton, which just seemed reckless and bizarre. But Trump had rewarded the reckless and the bizarre with significant jobs in his administration. Flynn was Exhibit A of h
ow the shortcomings of the campaign had bled into the White House. To McGahn, it signaled a larger problem: Like attracts like. Because Trump had himself behaved so recklessly during the race—and few thought he could win—he struggled to attract established and respected Republican politicians and policy aides to work for him. Yes, Trump had captured lightning in a bottle, but the world of Washington was still unsure whether he had wholly captured the Republican Party or whether mainstream conservatives, who had their careers to think of, would sit out this presidency and return when a more traditional Republican ran the country.

  So after Trump won, those who had been early supporters were in line to get key spots in the administration. At the top of the list was Jeff Sessions, an immigration hard-liner who had been the only senator to endorse Trump before he clinched the Republican nomination, and Flynn, a three-star general whom Obama had fired for incompetence. Rewarding supporters for their loyalty was fine to McGahn, who had benefited from this himself. But the U.S. government should attract the top talent in the world, and there were processes in place to make sure that it did. None of that mattered to Trump, who was so impulsive and so mistrustful of expertise that he made McGahn nervous, because critically important jobs seemed to be doled out to those whose only qualification was loyalty. In the early stages of the transition, Ivanka had told Flynn he could have any job he wanted in the administration. The job of national security adviser was among the most critical ones for a president, because that official needed to take the interests of the diplomatic, military, intelligence, and law enforcement communities and distill it into a coherent strategy for the country. This would be an especially critical post for an administration being led by a president who had never worked in government. Having Flynn in that position would be of great benefit for Ivanka and Kushner, who wanted to have free rein to dabble in whatever policy they wished and would have fewer roadblocks and no questions asked with a compliant Flynn in place. When Flynn took the unusual step of calling the Russian ambassador just as Obama was implementing the sanctions during the transition, several of the top transition officials—including Bannon, Priebus, and Spicer—had been included on an email in advance of the call. But no one had thought to tell McGahn, or ask whether it would be a prudent move, or whether there might be legal complications to consider. At the time, after all, there were three weeks remaining in the Obama presidency, and the foreign policy of Barack Obama was still the official policy of the United States. Now McGahn was learning about the call from the acting attorney general left over from the Obama administration.

  McGahn respected Yates’s record as a prosecutor, and she had developed a far better reputation inside the Justice Department than Loretta Lynch, whom the Trump team saw as weak and political. But he had a natural mistrust of Yates. She was a high-ranking remnant of the government under Obama—the same government Republicans had long criticized and Trump had repeatedly demonized during his campaign. Of Trump’s top aides, few felt as strongly as McGahn when it came to government overreach. And as McGahn saw it, the Obama-era governing class—led in part by Yates—held exactly the kind of elitist, overly powerful, and rights-infringing ideology that he so despised.

  It was a strange dance that Yates and McGahn were doing. He wasn’t entirely sure what she was suggesting he should do about Flynn, and there was only so much she could tell him. He pressed Yates again about what Flynn said to the FBI, but all she would say, elliptically, was that Flynn had told the agents what he had told Pence and Spicer. Yates said nothing specific about whether she or the FBI believed that Flynn had committed the federal crime of lying to the agents.

  That led McGahn to make a wrong assumption, one that would later be seen as a sign of his inexperience. He thought that if Flynn had lied to the agents and broke the law, Yates almost certainly would have had to tell him.

  McGahn asked Yates what they should do.

  “Should we fire Flynn?” McGahn said.

  “That’s not my call,” Yates responded.

  McGahn then made another mistake.

  Instead of pressing Yates for more details, he asked few other follow-ups, leaving him with only a loose grasp of the facts when he would need to explain this to Trump later in the afternoon. He would later admit to colleagues that he had mishandled the situation.

  “There’s no way I should have allowed her to leave this shit burger on me,” he would say. “I should have said, ‘Sally, you’re the acting attorney general and you’re not leaving my office until you give me some counsel on what to do, and you know a hell of a lot more than I do because you’re overseeing the FBI.’ ”

  McGahn found another way to complicate the situation.

  The moment called for someone to dive headfirst into the problem, figure out what Flynn had done and said, and push for immediate action. Instead of doing that himself, McGahn asked John Eisenberg, the top lawyer for the National Security Council, to look into it. McGahn had not gone to an Ivy League law school and, despite his contempt for elites, had undue regard for those who had. Eisenberg had one of the greatest pedigrees in the White House—Yale Law, Supreme Court clerkship—and seemed like the perfect person for the assignment. Eisenberg—who became known as Johnny Mumbles for how he spoke—had served as a top national security lawyer at the Justice Department under George W. Bush and was considered one of Washington’s smartest legal brains. But what McGahn failed to realize was that Eisenberg was much more of a thinker than a doer. And, instead of jumping in to wrestle the problem to the ground, he would have a plodding approach in the days that followed that only made the situation worse.

  Despite not having all the facts, McGahn did recognize the severity of the situation and wanted to tell Trump immediately. But earlier that day, Trump had traveled to a Republican Party retreat in Philadelphia, and the Flynn issue was too sensitive and confusing to speak with the president about over the phone. Whatever was going on, Flynn was a potential bad apple, and as the White House’s top lawyer it was McGahn’s job to keep Flynn away from the president.

  At 4:00 p.m., Trump returned to the White House, and McGahn went to the Oval Office to brief him.

  McGahn tried to explain what Yates had said.

  Trump looked confused.

  The bottom line, McGahn said, was “he’s gotta go.”

  Trump had no government experience but did have a finely honed instinct for PR. Firing your national security adviser on the sixth day of your administration for his suspicious ties to the Russian ambassador would create terrible press.

  The president called in Priebus and Bannon to tell them about what had happened.

  How the heck can these guys help the situation? McGahn wondered.

  McGahn struggled to answer many of their questions, including whether Trump would be jeopardizing an ongoing investigation if he fired Flynn. Flynn could be erratic, and Trump had already grown increasingly irritated with him. Obama had warned Trump in a meeting after the election about bringing the former general into the administration. Flynn’s son had been fired from Trump’s transition team after spreading a debunked conspiracy theory called Pizzagate, which alleged Hillary Clinton was at the center of a secret pedophile ring run out of a D.C. pizza parlor.

  “Not again, this guy, this stuff,” Trump said.

  But Trump wanted to avoid the negative coverage. McGahn did not have enough answers to their questions to yet justify firing Flynn. And he didn’t have the answers, because he hadn’t asked Yates the right questions. They were in some trouble, but so far the trouble was still shadows dancing on a wall. They needed a clearer picture—McGahn would need to meet with her again, to get her to be more forthcoming. In the meantime, the president’s main concern was that everyone remain quiet about the matter.

  No one said anything about telling the vice president that the Justice Department and FBI had figured out that the national security adviser lied to him and might be
compromised by the Russians.

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  JANUARY 27, 2017

  110 DAYS UNTIL THE APPOINTMENT OF SPECIAL COUNSEL ROBERT S. MUELLER III

  MCGAHN’S OFFICE ON THE SECOND FLOOR OF THE WEST WING—The following morning, McGahn tried to correct some of his mistakes of the previous day and get to the bottom of what Yates was saying. He arranged to have another meeting in the hopes that she would provide more information and help clarify the situation. That afternoon, when she returned to the White House, he asked her if Flynn was being investigated.

  Yates wouldn’t answer the question.

  What the fuck, McGahn thought. How was it that the acting attorney general, who reported to the president, could refuse to be forthcoming about any matter? The attorney general worked for the president of the United States but concealed information from the White House? For the Obama holdovers at the Justice Department, McGahn’s reaction and the White House’s response in the coming days would show how inexperienced the incoming Trump administration was, and just how unfamiliar they were with how the Department of Justice functioned.

  “Why does it matter to DOJ if one White House official lies to another White House official?” McGahn asked Yates, she later recalled.

  She answered carefully.

  “The misrepresentations were getting more and more specific, as—as they were coming out,” Yates said, describing how the varying accounts of Flynn’s conversation with Kislyak were at odds with what the FBI knew to be true. “Every time that happened, it increased the compromise, and to state the obvious, you don’t want your national security adviser compromised by the Russians.”