Two days later, investigators interviewed Rosenstein at the Justice Department, and the silence from Mueller’s team that followed told him that there would be no need to recuse himself from his role in overseeing the investigation. Legal experts on television raised questions about Rosenstein’s conflict, and Democrats pushed only lightly on the issue, as they now saw Rosenstein—because of his appointment of Mueller—as a potential ally.
In reporting for this book, I learned that Rosenstein’s primary reason for remaining in charge of the investigation was his contention that no one had ever told him that the firing of Comey was designed to interfere with the Russia investigation, nor did he believe that Comey’s dismissal ultimately had any impact on the investigation.
Secondarily, Rosenstein ascribed a sense of duty to his decision.
“It would be cowardly to recuse without any need,” Rosenstein would later say. “Everybody could find a reason so they did not have to deal with it.”
VI
“HE’S SAYING SOME CRAZY SHIT”
MAY 23, 2017
ONE YEAR, TEN MONTHS, AND TWENTY-SIX DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
MCGAHN’S OFFICE ON THE SECOND FLOOR OF THE WEST WING—“I’m not your man,” McGahn told the president over the phone.
Six days had passed since Mueller had been appointed as special counsel. Now the president was on the phone from Air Force One, on his first trip to the Middle East, and he had just told McGahn that he wanted him to call the Justice Department and have Mueller removed. Fired.
Trump already had a fairly elaborate three-pronged argument for why Mueller needed to go, including a frivolous contention that the two had once had a dispute about membership fees at Trump National Golf Club in Sterling, Virginia, and so he couldn’t possibly investigate the president fairly.
The president’s near-immediate impulse to fire yet another figure who was leading an investigation into his conduct and that of his administration was obviously reckless and an extraordinarily bad idea. If the uproar over Comey’s firing had rocked the White House, this would raze it. McGahn tried to reason with the president, telling him why he believed he shouldn’t try to do it and why the White House counsel wouldn’t be going off that particular cliff with Trump if he decided to fire Mueller anyway.
“We’ll look like we’re still trying to meddle in the investigation,” McGahn told the president. “I’m not the right lawyer to do that.”
McGahn said that if the president believed the conflicts were such a problem, then Trump’s personal lawyer Marc Kasowitz—who was handling everything ranging from defending the president in sexual misconduct lawsuits to the new Mueller investigation—should send a letter to the Department of Justice laying out the conflicts.
“You need your own lawyer. I’m in-house counsel to the White House,” McGahn said, explaining the difference between serving as Trump’s personal lawyer and being the top lawyer for the executive branch.
Trump did not say what prompted the call. But he had closely watched the media coverage back home during his trip, and earlier that day new signs emerged that Mueller was moving forward with the investigation when the media reported that the Justice Department’s ethics officials had cleared Mueller to oversee it.
For McGahn, the Trump presidency had been a string of public embarrassments dominated by Russia, Flynn, Sessions, Comey, Mueller, and Trump’s anger about them all. Instead of allowing accomplishments like the judges to stand alone and building on them, Trump spent his private and public time stewing and complaining, creating endless distractions.
Two days after Mueller’s appointment, Trump had boarded Air Force One and flown to Riyadh, Saudi Arabia, to begin a nine-day trip through the Middle East and Europe. It was his first time traveling abroad as president, and coming as it did on the heels of a disastrous week, to Trump’s aides and the media it seemed inevitable that the trip, too, would be a disaster. But to their surprise, Trump became captivated by the pageantry with which he was greeted, and the gifts lavished on him, and found his footing, carrying out the trip largely in line with the norms set out by his predecessors. In Saudi Arabia, the royal family appealed almost perfectly to Trump’s desire to be flattered and treated like a king. They projected Trump’s face across five stories of the Ritz-Carlton hotel, where the president was staying. They danced with him at an opulent welcoming ceremony. And they gave him at least eighty-three different gifts before he departed, including a robe lined with cheetah fur and a portrait of himself.
Trump’s aides considered the trip a success, largely because he simply had made no major gaffes.
But privately throughout the trip, when Trump was in his plane’s cabin, his limousine, or his hotel room, he continued to rage about Mueller. And unknown to McGahn, who had remained back in Washington, Trump had taken Sessions’s resignation letter with him on the trip. On the flight from Riyadh to Tel Aviv, Trump had decided to take it out of his pocket while meeting with advisers in his cabin. The president passed it around and asked whether he should accept the attorney general’s resignation.
Although he was reluctant to say anything to Trump about it, Priebus thought it was unseemly that the president was being so indelicate with Sessions’s resignation letter. Moreover, he was gravely concerned that by advertising his deliberations about whether to fire Sessions so indiscreetly, the president would use the precariousness of Sessions’s position to grab the “DOJ by the throat,” in order to get whatever he wanted out of Sessions. In a rare attempt by the chief of staff to contain the president, Priebus raised the issue with Trump, inquiring about the letter, in the hopes Trump would give it to him so it could be sent back to Sessions. In response, Trump lied to Priebus. Inexplicably, even though he had passed the letter around moments earlier, he said he had left it in the residence at the White House.
Until this point, McGahn had been willing to go along with Trump’s haphazard presidency, largely because he now had more power than he ever could have imagined. There were dozens of open spots in the federal judiciary, and he had the power to influence Trump to make the kinds of appointments that would reshape the country for decades. It was real power, not the showy displays of power that transfixed Trump.
And while Trump had done a lot to inflict damage on his own presidency, McGahn viewed much of the disapproval of Trump’s early weeks in office as elites hyperventilating. He was president and had been exceptionally clear about his priorities before the election. And so in McGahn’s view, the president had the legal authority to execute actions like the Muslim ban, even while conceding that its rollout had been a disaster. So what if Democrats and the Washington establishment hated it? They were never going to like Trump.
But Trump’s desire to fire Mueller as if he were just another political appointee unnerved McGahn. Why was Trump continuing to behave this way? Did he have something to hide? Why did he insist on undermining himself? Why couldn’t he just play president?
Trump seemed to think that the appointment of a special counsel—and not just any special counsel, but Mueller—could be tweeted away, avoided, or ignored. It was the worst nonlethal threat a presidency could face. To survive, the conventional wisdom held that he would need to change his behavior. Similar prosecutors who looked into past administrations—Lawrence Walsh, Ken Starr, and Pat Fitzgerald—had turned those White Houses—which were far more capable and professional than Trump’s—upside down. Those investigations had flipped aides on each other, and on the president. The investigators got their hands on internal notes, memos, and phone records, wreaking havoc on administrations for years. For McGahn, Trump’s move to fire Mueller, combined with the chaotic White House being run by Priebus and Bannon, had brought the presidency to a breaking point. If McGahn had Mueller removed, the investigation of the president would almost certainly widen, and McGahn would be seen as a potential co-conspirator in the president’s obstru
ction. Representing the president had become a hazard for McGahn, and he needed to start thinking about what else he needed to do to protect himself.
He studied the actions of past White House counsels, how they acted in crises and where they had gotten themselves into trouble. He saw that on multiple occasions White House lawyers had jeopardized themselves and their careers by sticking by and enabling their presidents when instead they had a legal and ethical obligation to push back. Two former lawyers—Clinton’s first White House counsel, Bernard Nussbaum, and Nixon’s third White House counsel, John Dean—were prime examples of people who got caught up in protecting their bosses. Nussbaum found himself in the crossfire of partisan fights on Capitol Hill when House Republicans attacked him as a way of undermining Clinton. He was never criminally charged, but the Republicans accused him of obstructing justice by hiding documents from the FBI. Dean faced something far more significant: criminal problems. In an effort to shield Nixon from the Watergate scandal, Dean paid off the arrested burglars and limited the scope of the government’s investigation, and later pleaded guilty to obstructing justice. Now, right before his eyes, McGahn saw himself getting pulled into the same trap. The president wanted to fire the independent investigator who was looking into serious questions about the president’s own potentially illegal behavior. By doing so, Trump would certainly be increasing his criminal exposure. And if he followed Trump’s directives, it might not be long before McGahn found himself in the same place as Nussbaum (smeared) or Dean (convicted). Over and over again, McGahn told himself he would not turn out like them. No one could afford to be accused of breaking the law. But McGahn, at forty-eight, was not some old Washington hand who could recede into retirement if he got into trouble. He had a reputation to defend and the rest of his career ahead of him, and he needed to be able to make money for at least the next two decades to support his wife and two young children. Abetting criminal activity, destroying his good name, maybe losing his law license—that would be catastrophic.
To avoid that fate, he needed help. Holding back Trump on his own was proving far too difficult and dangerous. Trump’s aides were bunched and balkanized, and so he had few allies and was unsure of whom he could trust. He was one of the few on the inside who knew exactly what had gone on and how it would look from the perspective of an investigator like Mueller and his team of prosecutors. Someone had to look over his shoulder, counsel him, and, above all else, keep him out of legal trouble.
The president’s lawyer needed his own lawyer.
Two days after Mueller was appointed to take over the investigation of the president, McGahn had met in his office with one of the top white-collar defense lawyers in Washington. The lawyer, Bill Burck, represented prominent clients in dicey circumstances, like FIFA—the international soccer organization that the Justice Department had investigated for corruption—and he checked another two critical boxes for McGahn: He was a Republican, and he had experience working in a White House under siege, because he had also been a top lawyer in the last years of the George W. Bush administration.
McGahn had asked Burck to come into the White House to be the lawyer dedicated to dealing with the Mueller investigation, but Burck had brushed him off. He loved being a private lawyer, traveling the world, and dealing directly with big-time clients—Middle Eastern oil moguls, Fortune 500 companies, and NFL teams—facing complex, serious problems. He made millions of dollars a year, and he and his wife, who had three young kids, lived in a nice neighborhood in Bethesda, Maryland, and had just spent a fortune buying the house next door, knocking it down, and building a beautiful extension onto their home. Burck now had a huge mortgage and couldn’t work for government pay. Besides, he had joined the country club down the street and wanted to spend his free time becoming a respectable golfer. A White House job doesn’t really allow for that.
“No, never, not a chance,” Burck said. “I’m not anywhere close to leaving the private sector and coming in the government. I just can’t do it.”
What the two men did not discuss was that while they were both Republicans, they essentially had diametrically opposed allegiances and views. Burck’s mother was Jamaican, and he had seen enough of Trump’s behavior to believe that he was a racist. And he thought that the president could even be a danger to the country. Burck was a Bush Republican and wanted nothing to do with Trump. As a private lawyer, he still maintained a close relationship with George W. Bush and represented him and his presidential library on issues related to the papers from his administration. Burck had been an early supporter of Jeb Bush’s presidential bid, donating $2,700—the maximum an individual could give—to his campaign, and an additional $25,000 to a political action committee supporting Bush’s candidacy. Whereas McGahn had strong ideological beliefs, Burck was more pragmatic. He thought Trump was destroying the Republican Party, but he declined to publicly become a never-Trumper—why piss off potential paying clients?
McGahn had been appointed to the Federal Election Commission in 2008 by Bush. But he had come to believe that the Bush-era policies of intervention abroad, excessive government spending, and overzealous surveillance had infringed on individual liberties and set the country on a downward trajectory. The middle class was in trouble, and McGahn thought the idea that a so-called establishment Republican like Jeb Bush could beat Clinton was preposterous. For the Republicans to win, they would always need to draw sharp contrasts, and that meant the conservative party had to be conservative and run to the far right. And so while during the Republican primaries McGahn actually thought Trump could win, he’d also decided to represent Trump during the campaign because he thought Trump could help knock Bush out of the race.
In the days after Burck rejected McGahn’s offer, McGahn kept on calling him for advice, asking questions about how a White House should position itself to deal with dueling congressional and special counsel investigations. Burck loved being a resource and came to like McGahn. More and more, McGahn would open up to him: The president is behaving erratically, he would say, and you’ll never believe what is going on here. But because they had no professional relationship, McGahn didn’t confide too deeply in Burck about what Trump was doing or saying.
Now, as McGahn was facing Trump’s attempts to fire Mueller, he came back to Burck with an idea. What if McGahn hired Burck to represent him and the other lawyers in the counsel’s office? McGahn told Burck that the lawyers might need someone to represent them if someday they had to answer questions about the Comey firing.
Bingo. That was an arrangement that would work for Burck. It gave him a piece of the action without having to deal with, or defend, Trump himself. Burck dived right in. To fully understand what had occurred around the Comey firing, McGahn and Burck agreed that it would make sense for Burck to come in and conduct an internal investigation of sorts, interviewing McGahn and the handful of other White House lawyers who had knowledge of the firing.
In late May, Burck spent a day in the West Wing and Eisenhower Executive Office Building interviewing the lawyers—without anyone else in the White House knowing. And what he discovered was of great comfort to McGahn. Burck learned that shortly before Trump fired Comey, he’d been warned by McGahn and Dhillon that there could be dire consequences for removing the FBI director.
“If you fire Comey,” the lawyers had told Trump, “you’re buying yourself a special counsel.”
In Burck’s view, that statement alone would make building an obstruction of justice case around Comey’s dismissal much more difficult. Criminal obstruction of justice hinges on proving that someone had corrupt intent. If Trump knew that firing Comey would only make the investigation worse, how was that obstruction? And best of all to Burck, his clients in the White House counsel’s office had done the right thing and dispensed sound legal advice to their client the president, whether he had chosen to follow it or not.
Burck thought that Mueller must instead be training his sights
on Flynn’s firing, the allegations of collusion with the Russians, or even Trump’s finances—none of which concerned McGahn’s criminal exposure.
There were other promising signs for McGahn and the White House, Burck reported. During McGahn’s discussions with Rosenstein after Mueller’s appointment, McGahn had asked the deputy attorney general whether he—McGahn—might need to recuse himself from dealing with the investigation due to his role in the Comey firing. Rosenstein had replied that neither of them had done anything wrong in the firing of Comey, and so no, there would be no need for McGahn to recuse himself. McGahn had also told Burck that Rosenstein’s phrasing had left him with the impression that Mueller wouldn’t really be focusing his investigation on obstruction of justice.
All good signs, Burck said. If McGahn himself were vulnerable in any way, Rosenstein would almost certainly have told him to take no role in representing the White House on matters regarding the investigation. And in any case, it was Rosenstein who had written the memo that Trump had used as the legal rationale to dismiss the FBI director, and he had also appointed Mueller, and he wasn’t recusing himself from overseeing the investigation. If there was a serious obstruction investigation, Rosenstein would at the very least be a witness and would almost certainly not be able to continue in that role.
As the fifth month of the Trump presidency began, in his first official act representing the White House counsel and his staff, Burck had come to believe it was likely that the president and his aides were safe on the obstruction issue. But then, a legal opinion is only as good as the information available to the lawyer producing it. What Burck didn’t know is that there was a lot McGahn hadn’t told him, particularly that the president had begun a vigorous campaign to fire Mueller and potentially end his investigation. It was not a minor omission. When Burck did learn about Trump’s push to fire Mueller, it would utterly change his previously sunny appraisal of the danger his client might face. In fact, the detail that McGahn had neglected to tell Burck would shape the rest of their relationship and bind them together for the next twenty-three months in a way that neither man could have foreseen.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 26