More than a dozen reporters and editors had congregated around my desk. In my cubicle stood Bumiller, Mazzetti, Apuzzo, and another top editor in the bureau, Bill Hamilton. They watched over my shoulder as I took the statement out of my email and pasted it into the story. They then rushed over to their desks to publish it.
The story was posted, and I have little recollection of exactly what happened next. I do know that I went on television that afternoon, and then again that night, I couldn’t sleep, and I just stayed up watching Top Gun, mouthing the words to the movie. That day or the next I dropped my phone and the screen shattered. I wanted to get the screen fixed, but I was too concerned about turning the phone off when Washington was vibrating with such important news and a presidency suddenly seemed in peril. By the time I got a new screen a week later, I had pulled a couple of pieces of glass out of my hands. It was the closest I had ever come to playing hurt in my career.
★ ★ ★
MAY 16, 2017
ONE DAY UNTIL THE APPOINTMENT OF SPECIAL COUNSEL ROBERT S. MUELLER III
DEPUTY ATTORNEY GENERAL’S OFFICE—The firing, the White House’s misleading statements to the media about it, and Trump’s erratic behavior set off a once-in-a-generation confrontation between the FBI and the Justice Department about the future of the Trump presidency.
On Tuesday afternoon, May 16, the acting FBI director, Andrew McCabe, walked by himself from the bureau across the street to the Justice Department to meet with Rosenstein and two of his aides. McCabe, who had been thrust into leading a grieving bureau in the aftermath of the firing, needed to brief Rosenstein on a momentous and historic decision that the FBI had unilaterally made the previous evening.
Inside the deputy attorney general’s office, Rosenstein sat in the club chair, with McCabe on the large couch. McCabe told Rosenstein that the bureau had opened an investigation into whether the president was a Russian agent and whether Trump had obstructed justice. The bureau, McCabe said, had also opened an investigation into whether Sessions had lied to Congress about his contacts with the Russian ambassador—an investigation that McCabe and Comey believed the department had been dragging its heels on for weeks.
To McCabe, Rosenstein did not look surprised. Four days earlier, he and McCabe had discussed how they were both suspicious about Trump’s true intentions in firing Comey.
In McCabe’s account of the meeting, he told Rosenstein that the obstruction investigation was opened based on a series of actions Trump had taken dating back to the first week of his presidency, when the president appeared to have begun an effort to win over Comey. McCabe said that Trump had asked Comey for his loyalty and then asked him to end the Flynn investigation. When it became clear that Comey would not go along with what Trump wanted, the president fired him. Trump had then given an interview with NBC’s Lester Holt in which he said on national television that the Russia investigation had been a factor in his decision to fire Comey. McCabe said that Comey had documented his interactions with Trump in a series of contemporaneous memos that he wrote to file, telling Rosenstein that the memos were being kept in a safe at the FBI where few officials had access to them. The meeting marked the first time that Rosenstein had heard the details of what had gone on between Trump and Comey, solving the mystery that Comey had hinted at when the two men had met alone in his office ten days earlier.
Rosenstein asked McCabe to describe what the Russia part of the Trump investigation entailed.
McCabe explained to Rosenstein that it was a counterintelligence investigation that would examine the president’s ties to Russia, and determine whether Trump posed a national security threat to the United States. McCabe told him that the FBI had opened an investigation the previous year—the one code-named Crossfire Hurricane—into whether the Trump campaign had worked with the Russian government to interfere in the election. As part of that investigation, the bureau had closely examined the ties between a handful of campaign officials and Russia. Nearly a year into that investigation, they had found no real evidence of such collusion. But during the campaign—and more intensely after he became president—Trump had publicly ridiculed the investigation, shown an odd proclivity toward Russia despite its attack on the election, and privately made a series of requests to Comey that appeared designed to curtail the investigation. As a result, bureau investigators had questions about whether Trump’s ties to Russia posed a counterintelligence threat. And now, in firing Comey, Trump may have broken the law by obstructing justice. The fact that Trump was willing to, at the least, walk up to the line of criminality to upend the Russia investigation led counterintelligence investigators to believe they had grounds to open an investigation into whether the president was a Russian agent.
Rosenstein could have ordered McCabe to close the investigation or not proceed with anything until he received notice from him. But he didn’t.
Not only had McCabe taken the bold step of opening an investigation of the president, but he was using this information as leverage on Rosenstein. To ensure the independence of the investigation, McCabe believed that Rosenstein needed to appoint a special counsel. The investigation into whether the president was a Russian agent, and had broken the law, would be one of the most consequential—and politically toxic—in the bureau’s history. Trump appeared determined to quash any investigation into himself or his allies, and could appoint a crony as FBI director. McCabe told Rosenstein that if a special counsel had been appointed in the Clinton investigation, the FBI would have come out of it far less tarnished. The politics of investigating the president’s ties to Russia would be orders of magnitude more problematic for the FBI, and the bureau needed the protection of a special counsel to insulate its work.
One of Rosenstein’s aides, Jim Crowell, sitting next to McCabe on the same oversized leather couch, agreed with McCabe. “I think the director makes a good point, and you should consider it,” Crowell said.
Rosenstein seemed receptive but unconvinced. He agreed with McCabe that the unanswered questions that loomed around Trump had to be investigated, and he understood the FBI would run into trouble during that process. But he wasn’t ready to publicly appoint an investigator to look into it. What Rosenstein held back from telling McCabe was that four days earlier, he had asked the former FBI director, Robert S. Mueller III, whether he would be interested in taking on the role of special counsel. Mueller said that he may consider it if he could remain at his law firm—a condition Rosenstein saw as a deal breaker.
To McCabe, Rosenstein’s concerns did not seem to be about the FBI’s decision to open counterintelligence and criminal investigations on Trump and the attorney general; McCabe thought Rosenstein was unnerved by Trump. Rosenstein often portrayed himself as just a country lawyer who, armed with the Constitution and a good sense of right or wrong, could bring justice to the world. But the torrent of the Trump presidency, foreign interference in the election, and the resulting political fallout was a more noxious mix than anything he had confronted in his career, and it appeared to have frightened him.
Rosenstein told McCabe what had happened on the day of Comey’s firing. Rosenstein said that it was clear to him that Trump had already made the decision to fire Comey before he had arrived at the White House. Given how the White House had lied when it said that it was Rosenstein’s recommendation to fire Comey, Rosenstein said that he felt he could trust no one at the White House.
“You can’t believe what it’s like over there,” Rosenstein said.
The two men had met twice since Comey had been fired. McCabe believed that Rosenstein had been disingenuous about the role he had played in helping Trump dismiss Comey, but despite these misgivings, McCabe still saw Rosenstein as the bureau’s best bet out of all the senior officials at the department. In their discussions, Rosenstein had grown emotional, acknowledging that he was struggling to deal with the stress of the firing, the cameras parked outside of his house, and his inability to
sleep. Now, in their third meeting, Rosenstein appeared to be in even worse shape. Again he became emotional; his voice cracked as he jumped from topic to topic. At times he spoke frenetically. At others he seemed solemn. At one point his eyes welled up with tears and he became so overcome that he had to step into the small half bathroom in his office to compose himself and blow his nose.
Rosenstein’s struggle to meet the moment had not surprised McCabe. In Rosenstein’s four weeks on the job, something about him had appeared off—erratic. In some of the morning briefings on threats to the country, Rosenstein would walk in, take a seat, clasp his hands in his lap, stare down for the entire time, and leave without saying anything or opening his briefing book. In other briefings, he dominated the meetings and spoke more than anyone else.
Rosenstein said that he was afraid to appoint a special counsel, because it would confirm to Trump that he was under investigation, and likely compel the president to fire him. Instead, what if he wore a wire to record his conversations with the president? He thought it was the best way to learn Trump’s true intentions for why he had fired Comey.
“I could record the President,” Rosenstein said. “I could wear a recording device. They wouldn’t even know it was there. I never get searched, no one ever searches me.”
Rosenstein’s proposal to wear a wire marked the second time that McCabe had heard him propose the idea. In their meeting four days earlier, the deputy attorney general had also brought up the possibility as they discussed their suspicions about Trump’s true intentions for removing the FBI director.
As the lead investigative unit for the Department of Justice, the FBI had a long-standing reputation for having a bias toward taking the most aggressive investigative measures and has been known to chafe at being held back by the department’s prosecutors, who are generally known to be cautious. Less than a week earlier, Rosenstein had worked in concert with Trump to fire Comey. But now here was the deputy attorney general—an experienced prosecutor—proposing that he himself use one of the most powerful tools the bureau had at its disposal to investigate the president. McCabe was taken aback by the idea and said he would talk to his investigators about Rosenstein’s suggestion.
Rosenstein believed that there was no good way of conducting a counterintelligence investigation into the president. And if they in fact found that the president was compromised, what could they do? The president had the authority to set the country’s national security priorities. As he searched for a solution, Rosenstein could only come up with one idea: the Twenty-fifth Amendment. Ratified into the Constitution in 1967, the amendment provides that a vice president, together with a majority of cabinet members, can remove a president who is “unable to discharge the powers and duties of his office.” Rosenstein told McCabe that he had done the math and figured they would need six more cabinet members—along with Sessions and Department of Homeland Security Secretary John Kelly, who he intimated might be on board—to secure the majority necessary to remove Trump from office.
“Who would support such a thing?” Rosenstein asked, hoping that McCabe or his aides might have ideas of cabinet members who may be willing to take out the president if needed. No one in the room said a word.
“Sessions? I think he’s a good guy,” Rosenstein said, suggesting that he believed the attorney general would be on board. “I don’t know him that well, but he seems like a good guy so far. Kelly too,” he continued.
McCabe found it unlikely that Rosenstein had ever actually spoken to either Sessions or Kelly about such a move. But to McCabe it was clear that this wasn’t a joke, and that made McCabe uncomfortable. The FBI, he believed, should never be part of a conversation about ways to remove the president.
McCabe understood why Rosenstein thought he was going to get fired if he appointed a special counsel, but that was not his concern. This may be the biggest decision that either of them would be involved in in their careers, and they needed to get it right. McCabe was losing his patience with Rosenstein, and he believed that he was acting cowardly. He immediately thought back to the Saturday Night Massacre, when in 1973 the Justice Department’s top two officials famously resigned in protest of President Richard Nixon’s decision to fire the special prosecutor who was investigating him. Didn’t Rosenstein understand that it was better to stand up for what is right and sacrifice your career than sink to the level of Nixon?
No matter how convincing McCabe believed his arguments to be, he could see that he wasn’t getting through to Rosenstein. So he went for the next move he could make that he believed would put even more pressure on Rosenstein to appoint a special counsel. McCabe said he planned on going up to Capitol Hill the following day to brief the Gang of Eight about the investigations the bureau had opened and answer any questions the lawmakers had. In telling Rosenstein what he planned to do, McCabe believed he was pressing on an area where he had extensive experience but Rosenstein had little. McCabe had been a senior FBI official for several years, often going up to brief lawmakers on sensitive national security threats. Since graduating from Harvard Law School, Rosenstein had spent his entire career in the Justice Department. While that gave him extensive government experience, he had been the U.S. attorney in Baltimore, one of the mid-tier offices that was often passed over for the most serious, complex, and politically difficult cases. Rosenstein had told McCabe early in his tenure that he knew little about dealing with “the legislature,” talking as if Washington were some sort of glorified state capital and affirming to McCabe that he really didn’t know his way around.
McCabe believed that he had to inform Congress about such a politically sensitive investigation, as he needed to explain to those who conducted oversight of the bureau and Justice Department what the investigators were doing examining the president and the attorney general.
In another sense, his decision to tell Congress showed how the invisible hand of James Comey was still directing the bureau. When Comey had briefed Congress in March in the hopes of breaking the logjam on Rosenstein’s confirmation, he had told lawmakers that he would inform them of any major investigative steps the bureau was taking. Obviously, investigating the president and the attorney general crossed that threshold, and McCabe believed that he had an obligation to inform Congress.
Rosenstein pushed back against McCabe. He believed that the Justice Department and FBI provided far too much information to Congress and worried that McCabe was taking a page from Comey’s playbook and acting on his own.
McCabe thought Rosenstein’s position was naive and demonstrated a “field guy” mentality, which is a derisive way a senior law enforcement official in Washington refers to an investigator with no experience navigating the political headwinds inside the Beltway. McCabe said he was going to the Hill to brief Congress, with or without him.
“If the bureau is briefing Congress on sensitive matters, I want to be there,” Rosenstein said.
“That’s great,” McCabe said. “But you should know that they are going to turn to you after I finish talking and they are going to grill you on whether or not you’ve appointed a special counsel and if not, why not.”
The meeting ended with Rosenstein still undecided about whether to appoint a special counsel, and with McCabe gone, Rosenstein turned to his aides, baffled, asking whether McCabe even had the authority to open investigations into Trump and Sessions without consulting with the Justice Department. “How can he do that?” Rosenstein asked. “That doesn’t seem right to me that he can do it, to open an investigation on the president and it’s a fait accompli.”
Rosenstein added darkly, “He is scheming against me.”
The aides told Rosenstein that any director or acting director of the FBI did in fact have the power to open an investigation on just about whomever he wanted to. Although the FBI was a subordinate organization, the Justice Department couldn’t end an investigation like this one without significant paperwork that would f
orce the department to explain why the investigation was being closed.
To Rosenstein, McCabe had conflicts that were potentially clouding his judgment. Trump had berated him and his wife at campaign rallies and on Twitter for taking money from a Clinton ally, helping to sully McCabe’s public image and his standing within the bureau. Trump had then fired his boss, someone for whom McCabe had great respect. And now McCabe had put the president under criminal and counterintelligence investigations.
Once McCabe returned to the FBI, he gathered several of the bureau’s top lawyers and told them about what had just transpired. Not only had the deputy attorney general suggested that cabinet secretaries might mount a campaign to invoke a constitutional provision to oust the president from office, but Rosenstein had personally volunteered to wear a wire to gather damaging information on Trump for the obstruction investigation. McCabe said that in the discussion, one of Rosenstein’s aides had said, “I fear for the republic,” and someone in the meeting said that Trump “was not fit to be president.” The bureau lawyers were shocked by Rosenstein’s proposal and cautioned strongly against him or anyone else wearing a wire—meaning that the FBI thought it was a bad idea to deploy the most invasive possible technique for evidence gathering against the president of the United States as a first resort. Trump might be out of control, but Rosenstein’s suggestion was out of line, FBI officials believed.
A second meeting was scheduled for that evening at 7:00 p.m. in Rosenstein’s office to further discuss the appointment of a special counsel.
McCabe and his top aide, Lisa Page, returned to the Justice Department for the meeting. Rosenstein had spoken so quickly in the earlier meeting that McCabe needed someone there with him to take notes and be a witness. Since they were a few minutes early, they ran into a man just departing Rosenstein’s office: Jim Cole, a former deputy attorney general under President Obama. With Mueller seemingly off the list to be special counsel because he wanted to remain at his law firm, Rosenstein had begun considering other possibilities, including Cole, a lifelong Democrat, who was known for his big ego, hard-charging nature, and prickliness. If Cole became the special counsel, the investigation would likely head in a fairly aggressive direction.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 24