Rosenstein and his deputies crammed into his office, along with McCabe and Page. To McCabe, Rosenstein seemed even more out of sorts than in the morning. Again, he spoke frenetically, not finishing a point before jumping to the next. He repeated how he was dragged into writing the memo justifying Comey’s firing. He again said that he could wear a wire into the White House, to learn Trump’s true intentions. He again brought up the Twenty-fifth Amendment and talked about what it would take to whip the eight necessary cabinet members needed for the removal of the president.
Straining coherence, he had some in the room struggling to understand what he was talking about. Finally calming himself, Rosenstein acknowledged that he understood McCabe’s thinking on appointing a special counsel, but he again said that he believed such an appointment would lead Trump to fire him.
“It’s better to have a DAG than no DAG,” Rosenstein said, using the acronym for his position as deputy attorney general.
To several people in the room, it appeared to be dawning on Rosenstein that Trump might be corrupt, or potentially even a Russian agent, and that extreme action might need to be taken to disrupt the situation and remove the president. But first things first. Only Rosenstein could appoint a special counsel—that was the purpose of this meeting. What did he intend to do?
It was hard to say, and to the officials in the meeting it was also becoming increasingly clear that the one man in the room with the authority to act did not fully understand the weight of the moment or the power dynamics of Washington or his inability to tame the fury that Comey’s firing had ignited. Rosenstein said that he was prepared to deal with any blowback from Congress, adding that he had a good relationship with Schumer. At least one person in the room shot a look at one of Rosenstein’s aides, as if to say, What the fuck is he talking about, is he insane?
Rosenstein then pivoted to throwing out names of well-known former senior Justice Department officials, seeming to propose them for special counsel or FBI director.
“Jim Cole?” he said. “Alice Fisher? Mark Filip?”
He then suggested that Trump wanted John Kelly to run both the Department of Homeland Security and the FBI.
“That’s impossible,” McCabe said. “No one could do both of those jobs at the same time.”
Rosenstein agreed with McCabe, saying that the idea of putting Kelly at the FBI was designed to stymie its abilities to investigate Trump’s associates and their ties to Russia. Under Trump’s tortured logic, if Kelly was forced to straddle two jobs he would not have enough time to dedicate to the bureau, making it more difficult for investigators.
“It’s a strategy for disruption,” Rosenstein said.
This, Rosenstein said, was one of the central reasons why appointing a special counsel may not be such a good idea.
“If I put the special counsel in, then I could get dumped, and then I’m not here to be able to exert some control over who they select as FBI director,” Rosenstein said. “They’re trying to put someone in who will disrupt the FBI, not someone who will lead it independently.”
The meeting broke up without a decision made on the appointment of a special counsel, and with McCabe genuinely concerned about how Rosenstein would handle the situation or whether he was capable of even doing so, especially in his current state.
After the meeting, Rosenstein figured he probably had less than twenty-four hours to decide what to do. The congressional leaders were surely going to ask about a special counsel in the Gang of Eight briefing the next day, so he had to come up with a yes or no answer before then. In the week since Rosenstein went along with Trump’s plan to fire Comey without objection—and had written a memo that had become the White House’s official rationalization for the move—the FBI had opened an investigation into whether Trump had obstructed justice and was a Russian agent. Rosenstein had learned that he had little control over the FBI.
He went back to Mueller and asked him whether he would take the job and leave his law firm. Mueller agreed. Earlier that day, before his meetings with McCabe, Rosenstein had met in the Oval Office with the president and Mueller, who had been called to the White House to discuss the director’s job, the qualities that the job demands, and who might be a suitable successor to Comey. No former Justice Department official in Washington had a better reputation as a nonpartisan straight shooter than Mueller. He was one of the few people who had the experience working at the top of the Justice Department, an understanding of how counterintelligence investigations operated, the stature to offer the investigation legitimacy, and the kind of reputation that came without political baggage. On top of that, Mueller was a Republican.
The decision to appoint Mueller would be portrayed in the media as a response to Trump’s behavior. Indeed, that was a factor for Rosenstein. But he had another major reason for his decision: He believed he had lost control of McCabe and the FBI, because they had moved ahead on their own and opened investigations on Trump and Sessions. Rosenstein was convinced that the FBI’s leadership was pursuing a vendetta to avenge the firing of Comey. If Rosenstein had his way, he would have removed the FBI from the investigation entirely. But that would be nearly impossible. On simpler cases in the past where the FBI had a potential conflict, another law enforcement agency—like the Drug Enforcement Administration or the Bureau of Alcohol, Tobacco, and Firearms—would be brought in. But those specialized agencies had little experience in investigating foreign interference, as Russia had done in the election, or a complicated question of criminal law, like whether the president had obstructed justice. But with the appointment of Mueller, the investigation would now be housed under Rosenstein’s roof. The FBI agents on the investigation would report directly to Mueller, not to McCabe.
In appointing Mueller, Rosenstein had several goals, which would later be important when assessing the success or failure of Mueller’s investigation. Rosenstein wanted someone to provide clarity on what the Russians had done to interfere in the 2016 election. Trump was already publicly sowing doubt as to whether Russia had been behind the information warfare and election meddling, and the media was already pushing the notion that Trump and his campaign had been working with the Russians. Rosenstein felt that a full accounting of the Russian active measures and a determination of whether Trump’s campaign had cooperated in the Russian effort were the only ways to put the questions about the 2016 election to rest.
Rosenstein was leveraging Mueller’s credibility to ensure that even amid the rabid climate of Trump’s presidency, the investigation would be done in a way that produced results that would be accepted as legitimate and beyond the reach of politics. As much as anyone could in Washington, Mueller had a reputation as an incorruptible and nonpartisan figure. He could be trusted to assemble and lead a team that could not be accused of allowing politics or the perception of them to become a factor.
Mueller was also a forceful speaker, and would present a credible public face for the investigation. Few American officials had testified before Congress more than Mueller. As FBI director, he had been required to testify at least two times a quarter. Over his four decades at the Justice Department, he had testified at hearings a staggering eighty-eight times.
The following afternoon, interviews for the job of FBI director continued in the Oval Office. McCabe came in for his interview with Trump, Pence, Sessions, and McGahn. It’s unclear why McCabe had even been put on the list, but in the course of the interview he said nothing to Trump and Sessions about how he had opened criminal investigations into their activities just a day and a half earlier.
Afterward, McCabe received a call from Rosenstein. “Hey, I’m sorry I couldn’t be there for the interview,” Rosenstein said. “I had to get this thing finished up before the brief. I just wanted to let you know I’ve appointed Robert Mueller.”
The news was a huge relief for McCabe. For more than a week he had believed the most important thing he had to do
was convince Rosenstein to appoint a special counsel to oversee the Russia investigation. Now, eight days after the Comey firing, it had finally happened.
“It was the most enormous exhale of my life,” McCabe said. “I had been holding my breath since the evening of May 9,” he added, referring to the night that Comey was fired.
McCabe then headed directly to Capitol Hill to brief the Gang of Eight. As Rosenstein was making his way to Capitol Hill for the same briefing, he also called McGahn.
After McCabe left the Oval Office, the FBI director candidate interviews continued. Throughout the interviews, McGahn had wondered, Where is Rosenstein? He was meant to be there and was conspicuously absent. Shortly before 5:00 p.m., as the former Connecticut senator Joseph Lieberman interviewed to be director, a staffer came in and handed McGahn a message. It said: Call Rosenstein. McGahn didn’t think much of it. Maybe Rosenstein was sick. So a couple of minutes later, McGahn quietly stepped out and ducked into an alcove to return the call.
“I’ve appointed a special counsel,” Rosenstein said. “This is to just pick up where the investigation left off after Comey.”
McGahn didn’t say anything, but he was intently listening. He knew he would have to explain this to the president in just a moment.
“This is not about you; it’s not about me,” Rosenstein said. “It’s not about people involved in the decision. It’s in part about firing Comey, but more broadly it’s about Russia.”
Rosenstein said he had appointed Mueller, to keep the investigation away from McCabe.
McGahn was baffled. Ten days earlier, Rosenstein appeared to be leading the charge for firing Comey. Now he was appointing a special counsel who would, among other things, be examining the firing of Comey?
As McGahn returned to the Oval Office, Lieberman was still being interviewed. He said nothing about what Rosenstein had told him, but he couldn’t hide the distress on his face. At least one person in the room could tell that McGahn had just learned something terrible.
Sessions received a similar message and stepped out to call Rosenstein. When he returned, he locked eyes with McGahn. The interview with Lieberman ended, and McGahn told the president that he and Sessions needed to talk to him before any more interviews, or anything else, could happen. They closed the door to the Oval Office and sat down in front of Trump’s desk.
The attorney general tried to take the lead.
“Uh, uh, Mr. President,” Sessions stammered. “Uh, the deputy attorney general, uh, has, uh…”
Trump shot McGahn a look, What is this guy talking about?
McGahn interrupted, slapping his hands down on the Resolute desk. “He’s trying to tell you that Rod just appointed a special prosecutor,” he said.
It took a few seconds for Trump to absorb this news.
And then he unleashed a torrent. Neither McGahn nor Sessions even had seen Trump—or perhaps any other person—as enraged as the president was in that moment.
Trump’s tirade, filled with “motherfuckers” and “you fucking idiots,” was remarkable for several reasons, chiefly its duration. And the focus of his most withering attack was Sessions.
“It’s your fucking fault!” Trump said to Sessions.
The president knew that a special counsel was a legitimate threat to his presidency and if Sessions hadn’t recused himself, Rosenstein would never have had the power to do this. In the president’s eyes, Sessions had abandoned him. He had been disloyal.
In the moment, Sessions appeared physically shaken. But Trump did not relent.
“You’re weak,” Trump sneered. “You should fucking resign.”
Sessions’s eyes welled with tears.
“Oh my God,” Trump said. “This is terrible. This is the end of my presidency. I’m fucked.”
“How could you let this happen, Jeff?” Trump said. “You were supposed to protect me. Everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.”
Ashen and emotional, Sessions said that he would quit. Pence asked to have a moment alone with Trump and Sessions. Then Sessions left the Oval Office. As the attorney general headed for his waiting motorcade, McGahn raced to find Priebus. By the time he reached him, he was out of breath and red in the face.
“We’ve got a problem,” he told Priebus.
“What?” Priebus said.
“We just got a special counsel, and Sessions just resigned,” McGahn told him.
“What the hell are you talking about?” Priebus said. “That can’t happen.”
Priebus and Pence ran to try to stop Sessions from leaving the White House grounds. They reached his motorcade in the White House parking lot and banged on his armored sports utility vehicle. The door opened, and Priebus got in.
“Jeff, what’s going on?” Priebus said.
Sessions said he was going to resign.
“You cannot resign. It’s not possible. We are going to talk about this right now,” Priebus said.
Priebus brought Sessions into his office with Pence and Bannon. Their urgent appeal brought Sessions back from the brink—briefly. He would not be resigning just yet.
But the following morning, Sessions submitted his letter of resignation to Trump in person. The president, perhaps calmed and understanding the implications of his attorney general quitting amid the Mueller appointment, wouldn’t accept his resignation. But he did slip the letter into his pocket, giving him something to hold over his attorney general, something that he could use at any point.
Meanwhile that afternoon, on Capitol Hill, the Gang of Eight assembled around a conference table, Democrats on one side, Republicans on the other. McCabe and Rosenstein next to each other. McCabe went first. “As Jim Comey assured you, we’d keep you up to date with the significant developments in this Russia case,” McCabe told the lawmakers. “I’m here today to give you an update as to where we are.”
While McCabe talked, Senate minority leader Chuck Schumer stared at him while nodding and chewing on his glasses. McConnell, looking dumbstruck, said nothing. To McCabe, the lawmakers seemed somber and resigned.
The only question came from the Speaker of the House, Paul Ryan, who asked McCabe what kind of investigation they had opened on Trump. McCabe laid out how the bureau had opened a two-pronged investigation into the president—one that would look at whether Trump was a counterintelligence threat, and the other that would examine whether he had obstructed justice.
Rosenstein then took over.
“In light of these developments, I’ve decided to appoint a special counsel,” Rosenstein said. “I’ve appointed Robert Mueller to serve in that capacity.”
Lawmakers had many questions for Rosenstein. How long would an investigation like this last? Could Mueller be fired?
That afternoon, I returned to the Washington bureau after a lunch meeting. There was a big commotion around the desk. The Justice Department was about to announce that Mueller had been appointed as a special counsel.
The story I had filed the day before had resulted, in part, in the appointment of a special counsel to investigate the president of the United States. A presidency founded in chaos was now in crisis. The following day, McCabe briefed Mueller and his newly forming team. He felt confident that Mueller would be a great steward of the investigations the bureau had begun. In the days that followed, a public narrative would take hold that Mueller—one of the heroes in the wake of 9/11—had come to investigate Trump’s ties to Russia. Whatever he found, Democrats and Republicans said, they would accept his findings, as there was no one who had a better reputation.
★ ★ ★
MAY 21, 2017
ONE YEAR, TEN MONTHS, AND TWENTY-EIGHT DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
DEPUTY ATTORNEY GENERA
L’S OFFICE—The weekend after his appointment, Mueller sought to fully understand his directives, and began to put together a team of prosecutors. That Sunday, he met with Rosenstein and McCabe to discuss the investigation.
Like brawlers who could not stop going after each other, McCabe and Rosenstein began arguing in front of Mueller. McCabe told Rosenstein that he needed to recuse himself from the investigation, due to his role in firing Comey.
Rosenstein shot back, saying that McCabe was the one who needed to recuse himself, because his wife had accepted money from a Clinton ally for her political campaign, Trump had repeatedly attacked him, and now he was out to avenge Comey’s firing.
McCabe, angered by Rosenstein’s comments, got up and left the meeting.
Once Rosenstein and Mueller were alone, the special counsel tried to find a middle ground by saying he would still bring FBI agents onto his team but that they would report directly to him, not McCabe.
“You don’t need to do anything more; no recusal will be needed,” Mueller said, about McCabe. “I will make clear with the agents that they report up through me and not through their chain of command.”
The matter of Rosenstein himself was a bit more complicated. Mueller told the deputy attorney general that his team would need to interview him to evaluate whether or not Rosenstein was likely to be a key witness against the president. Following that interview, Rosenstein—who had the ultimate authority to decide if he remained in charge of the investigation—could then make a call on his own recusal.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 25