Throughout the investigation, Mueller had never conducted any of the interviews. But during many in the first year of the investigation, he would come in, shake the hand of the person being questioned, thank him or her for coming in, sit for a portion of the interview, and then leave. If there ever was an interview for him to do that for, it would have been Kelly’s. Just like Mueller, Kelly was a Marine—a four-star general—and as chief of staff he was perhaps the most powerful official to sit for an interview. But Kelly talked to the prosecutors for two hours and left without Mueller making an appearance.
Meanwhile, now that Flood had reframed the White House’s perspective on cooperation, he shifted his focus to quashing any chances of Mueller’s interviewing the president.
In reporting for this book, I learned about the impact that the restrictions Flood put on Kelly’s interview with the special counsel had on the investigation. If Mueller’s team had had more time with Kelly, they likely would have learned about a key incident that would have helped establish Trump’s true intentions when he fired Comey in May 2017: The day after the president fired Comey, Trump had called Kelly, who was then secretary for the Department of Homeland Security. Trump told Kelly that he wanted him to become the FBI director. But the president added something else—if he became FBI director, Trump told him, Kelly needed to be loyal to him, and only him. Kelly immediately realized the problem with Trump’s request for loyalty, and he pushed back on the president’s demand. Kelly said that he would be loyal to the Constitution and the rule of law, but he refused to pledge his loyalty to Trump. In addition to illustrating how Trump viewed the role and independence of senior officials who work for him, the president’s demand for loyalty tracked with Comey’s experience with Trump. At a private White House dinner during the first week of the administration, Trump had asked for Comey’s loyalty and the FBI director had sidestepped the request, as captured in Comey’s contemporaneous memos. Trump later denied Comey’s account of their exchange, but here was another senior administration official recounting an almost identical demand from the president—a demand that had come the very day after Comey was fired.
Kelly’s resistance surprised the president. Trump never strongly considered Kelly again to be the FBI director and a month later announced that he had appointed a former top Justice Department official named Chris Wray to lead the agency. That summer, Kelly would become Trump’s chief of staff. Throughout Kelly’s time working directly with Trump, Kelly was repeatedly struck by how Trump failed to understand how those who worked for him—like Kelly and other top former generals—had interest in being loyal not to him, but to the institutions of American democracy. Kelly has told others that Trump wanted to behave like an authoritarian and repeatedly had to be restrained and told what he could and could not legally do. Trump often thought that Kelly and other aides were simply being difficult when they would point out the limits of his power. Aside from questions of the law, Kelly has told others that one of the most difficult tasks he faced with Trump was trying to stop him from pulling out of NATO—a move that Trump has repeatedly threatened but never made good on, which would have been a seismic breach of American alliances and an extraordinary gift to Putin. Kelly has said that having to say no to Trump was like “French kissing a chainsaw.”
★ ★ ★
AUGUST 1, 2018
260 DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
ON THE SIDEWALK IN FRONT OF THE WHITE HOUSE—After spending nearly an hour talking to McGahn in front of the White House, I walked back to my office soaked but invigorated. I’d spent a year trying to deepen my understanding of how Mueller’s team was investigating Trump and what they had learned about how the president used his powers to protect himself and interfere in the investigation. Over that time, I had become convinced that Mueller was using one of the people closest to the president to build the case that he had obstructed justice. I had written stories about how Trump had pressured McGahn to stop Sessions from recusing himself, how McGahn sought to stop Trump from sending a ranting letter to Comey when he fired him, and how Trump had complained endlessly to McGahn about how he needed a lawyer like Roy Cohn to defend him and run the Justice Department. I had also gained access to the questions that Mueller’s team wanted to ask Trump in an interview and what investigators had asked other witnesses. All of this showed me one thing: McGahn was essential to the government’s case against Trump. Yet, despite everything I wrote, I had struggled to convey that idea in my writing. In meetings in our bureau, I would tell my colleagues and editors, “I think McGahn did a lot of damage to Trump. I think he really hurt him.” But there was a difference between being convinced of something and being able to prove it. The extent to which McGahn had hurt the president was to that point entirely unknown, a secret kept between investigators and McGahn and his counsel, Bill Burck.
And then I had my not-so-chance encounter with McGahn in front of the White House gate.
I headed straight back to the bureau, where in a dark office with no one around I took down everything I could remember from our conversation. I tried to figure out a way to write what I was now more convinced of than ever: McGahn was one of Mueller’s key witnesses. I’d learned to pay close attention to what a source didn’t say. Usually, when I was talking with someone, if I said something that was untrue, the person would without hesitation knock it down. McGahn had done that in our conversation when I told him that I had heard he got a haircut when John Kelly had taken over as chief of staff, to show respect to the four-star Marine general. Not true, he said. But when I had accused him of flipping on the president, he had demurred. Of course, Trump had no idea of the degree to which McGahn was cooperating, or McGahn wouldn’t still be working at the White House. Trump had fired people for much less than providing hours upon hours of cooperation to a special counsel whom Trump was so enraged by that he often spent mornings tweeting insults at Mueller and his team.
I had McGahn’s non-denial, which didn’t count as confirmation, but it meant that I was onto something. I started doing the math, thinking that if I could quantify McGahn’s cooperation, it would give us the hook we needed. So I worked backward. I learned that the FBI had information that McGahn had at least three meetings with Mueller’s team and that each meeting had lasted several hours, if not the entire day. I did the math on what that amounted to in hours and then ran that figure by some of the people who knew the answer. They said my figures were right, if not low. We now had a figure—thirty hours—to hang a story on. The top lawyer in the executive branch, who had a country to run, had instead spent at least thirty hours with Mueller’s team, and the president knew little about it.
About a week after my encounter with McGahn, I went to meet a lawyer who had worked for McGahn at the White House. The lawyer, not wanting to be seen with me, agreed to talk but wanted to do it walking around the residential neighborhood on Capitol Hill instead of sitting at a restaurant or coffee shop, where we’d be more conspicuous and easier to spot.
At the end of our walk, we ended up outside Union Station, just north of the Capitol, and I told him about our story.
“We’re going to write that McGahn cooperated extensively with Mueller, thirty hours, told him everything,” I said.
The lawyer, whose insight I had grown to appreciate and respect, gave a frank response.
“You can’t write that,” he said.
McGahn, the lawyer said, was one of the few good people around the president; he ballasted the ship. He could stop the president from taking actions that were illegal or would hurt the country.
If Trump knew about this cooperation, the lawyer said, he would almost certainly use it as an excuse to finally get rid of McGahn. “Who knows what will come in his place?” he said. “You can’t trust it will be someone who will say no.”
Most times when we are asked not to publish something, the call comes from the top official at the FBI, C
IA, or Pentagon with a plea to withhold details because revealing them could get Americans, allies, or intelligence sources killed or jeopardize a sensitive operation. Sometimes the request would come in a meeting in the Oval Office between the president and the publisher and executive editor of the Times, like during the George W. Bush administration when the president asked the paper to not publish stories about secret surveillance programs created after the attacks of September 11, 2001. But this request was not coming from the president, obviously. It was coming from a staffer who had come to view the president as a dangerous figure whose malign impulses needed to be thwarted at every turn, as much as possible. This person and people like him were a marvel to me, and I thought the situation they faced was likely unique in American history. But it underscored the strangest dynamic of all of these events: As the president they feared shredded norms with abandon, and used the extraordinary powers of his office to protect himself, they were bound to abide by those same beleaguered norms. If the president was left to his own devices, these people believed, there would be a level of chaos even worse than anything anyone had seen to date.
I got where he was coming from and the dangers of the information we had. If we reported something about McGahn that got him fired and Trump went out and did something drastic—including firing Mueller—then we would be blamed for having set in motion a series of events that might damage the country significantly. At the same time, though, we were talking about the president of the United States; we have an obligation to report aggressively and write what we find. What were we in the media supposed to do if we have to live with the implicit threat that when we report something that bothers the president, we’re responsible for whatever bad thing he does in response?
The exchange felt paradigmatic of the entire experience of reporting on the Trump administration. I told the lawyer that we would talk about his concerns but that it was unlikely we were going to delay publishing or withhold information from the public because we feared what the president might do. He said he understood, and we parted ways.
I headed back to the office and told my editor, Amy Fiscus, what the source had said.
“He said we’ll be responsible if he fires McGahn,” I said.
Amy and I both knew what the answer was: We could not take that into consideration.
Three days later, on a Saturday afternoon, we published our story:
The White House counsel, Donald F. McGahn II, has cooperated extensively in the special counsel investigation, sharing detailed accounts about the episodes at the heart of the inquiry into whether President Trump obstructed justice, including some that investigators would not have learned of otherwise, according to a dozen current and former White House officials and others briefed on the matter.
In at least three voluntary interviews with investigators that totaled 30 hours over the past nine months, Mr. McGahn described the president’s fury toward the Russia investigation and the ways in which he urged Mr. McGahn to respond to it. He provided the investigators examining whether Mr. Trump obstructed justice a clear view of the president’s most intimate moments with his lawyer.
It is not clear that Mr. Trump appreciates the extent to which Mr. McGahn has cooperated with the special counsel. The president wrongly believed that Mr. McGahn would act as a personal lawyer would for clients and solely defend his interests to investigators, according to a person with knowledge of his thinking.
That night, I went out for a jog and ran into another one of McGahn’s lawyers on the street.
“I read your story. It’s wrong,” he said.
“What?” I said.
“He just had to go in and answer a few questions,” he said.
I looked at him. He worked for McGahn but still did not appreciate what had gone on. I started trying to explain to him how much McGahn had helped Mueller and how it was becoming clear that Mueller was building some sort of obstruction case around McGahn’s statements about Trump.
He continued to argue with me. I realized nothing I said would change his mind. Someday we would read the Mueller report and we could see who was right. So I smiled, said I had to go, and jogged off.
The lawyer on the street was not the only person agitated and refusing to accept what we had written. Trump went into one-man rapid-response mode, issuing a barrage of angry tweets, and even calling Maggie and me “fake reporters.”
I allowed White House Counsel Don McGahn, and all other requested members of the White House Staff, to fully cooperate with the Special Counsel. In addition we readily gave over one million pages of documents. Most transparent in history. No Collusion, No Obstruction. Witch Hunt!
The failing @nytimes wrote a Fake piece today implying that because White House Councel Don McGahn was giving hours of testimony to the Special Councel, he must be a John Dean type “RAT.” But I allowed him and all others to testify—I didn’t have to. I have nothing to hide……….and have demanded transparency so that this Rigged and Disgusting Witch Hunt can come to a close. So many lives have been ruined over nothing—McCarthyism at its WORST! Yet Mueller & his gang of Dems refuse to look at the real crimes on the other side—Media is even worse!
Some members of the media are very Angry at the Fake Story in the New York Times. They actually called to complain and apologize—a big step forward. From the day I announced, the Times has been Fake News, and with their disgusting new Board Member, it will only get worse!
The Failing New York Times wrote a story that made it seem like the White House Councel had TURNED on the President, when in fact it is just the opposite—& the two Fake reporters knew this. This is why the Fake News Media has become the Enemy of the People. So bad for America!
In the aftermath of the story, Burck had tried to keep Trump calm and possibly stop him from firing McGahn by leaking to the press that he had given Trump’s lawyers a high-level overview of what his client told investigators. Burck’s leak was technically correct: He had given Dowd a few broad details about McGahn’s discussions with Mueller. But he did not get into many specifics and did not tell him about several other meetings that McGahn had with Mueller and the several other requests for information Mueller’s office had made to Burck in the months after.
As Trump attacked us, we wrote a follow-up and reported that the White House was blindsided by the disclosure of McGahn’s cooperation and that even some of Trump’s lawyers had known little about what he had told the authorities. We wrote that at the time McGahn decided to cooperate, he believed that Trump and his lawyers were setting him up to take the fall for any wrongdoing. Motivated by that fear, McGahn decided to cooperate as fully as possible, in part to demonstrate he had nothing to hide:
President Trump’s lawyers do not know just how much the White House counsel, Donald F. McGahn II, told the special counsel’s investigators during months of interviews, a lapse that has contributed to a growing recognition that an early strategy of full cooperation with the inquiry was a potentially damaging mistake.
The Monday after our story about McGahn’s cooperation, Goldstein called Burck, and McGahn’s importance to Mueller’s case became even clearer.
Prosecutors are always wary that witnesses may waver from their testimony. In this case especially, it was vital that they be assured that what McGahn had testified to was solid and reliable. On the phone, Goldstein’s tone was serious. He had three questions for Burck.
The first question related directly to the case the special counsel was trying to build against Trump, a case with which Burck was by now intimately familiar. Goldstein had seen Trump’s tweets and how the president seemed to have little appreciation for what McGahn had said to prosecutors.
“Does he stand by his testimony?” Goldstein said.
Burck assured Goldstein that McGahn did.
Then Goldstein asked a more penetrating question that went directly at McGahn’s motives for what he had told pro
secutors.
“Was he really concerned about being screwed?” Goldstein asked Burck.
Burck explained to Goldstein how McGahn struggled mightily to understand how the White House had conceived of a strategy that would have allowed him to speak with Mueller. Why had Trump’s lawyers done no internal investigation to figure out what Trump had done? Why had they made no effort to stop McGahn from telling prosecutors all that he knew, knowing well that his testimony would almost certainly be made public someday?
Burck told Goldstein that he and McGahn believed the White House was “insane” for allowing McGahn to talk.
McGahn deduced that one of the only explanations for allowing him to cooperate to that extent was that they were setting him up to take the fall, Burck said.
Finally, Goldstein pushed Burck even further. Goldstein trusted Burck. But now he wanted a little more information about what Trump’s lawyers knew about the contours of McGahn’s cooperation.
“You don’t have to tell us, we’re just asking, but did you debrief the lawyers?” Goldstein said, probing to find out what Burck might have told Cobb and Dowd after McGahn met with investigators.
“I’m happy to tell you: I didn’t go into a lot of the details,” Burck said.
Burck explained to Goldstein the skepticism he had for helping Trump’s lawyers and the others who represented witnesses close to the president. Unlike a majority of the lawyers involved in the investigation, Burck said he had refused to be a part of the joint defense agreements. Burck saw those agreements as essentially putting the witnesses and defendants on one side against the government prosecutors. If Burck was convinced that his clients did nothing wrong, why would he want to ally himself with the potential targets of the investigation? “I have no joint defense agreements, because I don’t know whether any of my clients’ interests really align,” Burck said. “Am I going to be in a joint defense agreement with Donald Trump and Jared Kushner?”
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 38