Burck told Goldstein about how early in Dowd’s tenure as Trump’s lead lawyer, Dowd had tried to organize a weekly call among the lawyers, where they could share details they had learned about the investigation. For Burck, these calls were potentially dangerous for his clients, and he refused to participate because of what prosecutors might think about their allegiances to each other.
When Burck relayed the call to McGahn, both of them realized that there was no way Goldstein would have called if Mueller’s team did not believe that McGahn would be central to their case and a key part of their report.
In the aftermath of the story, Burck realized that McGahn could easily be fired by Trump at any point, even though McGahn was in the middle of overseeing the Kavanaugh nomination.
The weekend after the story ran, McGahn went with his wife and two young children to his parents’ home still in Brigantine, New Jersey, right outside Atlantic City, to see his ailing father.
In late August, McGahn learned from Annie Donaldson that Kushner was now moving to take over the pardons process. Kushner, adding to his varied and expanding portfolio, had, sans expertise, taken on criminal justice reform. He announced in a meeting that he planned to use the pardon power as a central policy tool in what he described as an Obama-like approach to freeing felons who had received lengthy sentences for nonviolent crimes. That might have been a valid idea and a good tool for criminal justice reform. But Kushner had never once discussed it with McGahn, and it was the view of the White House counsel’s office that Kushner was the wrong person to oversee pardons. In fact, allowing him to do so was rife with potential conflict. Kushner would have a direct hand in fundraising for the 2020 campaign—meaning the top person asking for money would also be in charge of giving out pardons.
Around that time, McGahn heard again that Kushner was calling over to the Justice Department to get language for pardons. That same week, Burck received a series of calls from reporters, telling him they were hearing that McGahn was trying to block the president from pardoning Paul Manafort, who had been convicted on fraud charges by Mueller’s team. The news made no sense for several reasons. McGahn’s relationship with the president had deteriorated so badly that, outside discussing judges, the two men had not had a substantive one-on-one conversation in months. And since Manafort had been convicted, McGahn had not been asked by anyone in the White House what he thought of pardoning him. Burck told the reporters that the rumor was not true, but the calls kept coming in all the same. The relentlessness of the calls led McGahn and Burck to believe that Kushner and Ivanka were driving a campaign of misinformation, planting such a volume of stories that Trump would take notice and become convinced that McGahn was an impediment to him, or worse, and needed to be removed.
It was the last week in August, but between Trump, Mueller, Kavanaugh, Kushner, and Ivanka, McGahn could not relax. One of his friends who lived in the area called, hoping to distract him for a few hours. The friend, William J. Hughes Jr., was the son of a former Democratic congressman and had recently become close to McGahn. A defense lawyer and former federal prosecutor, Hughes knew that the stress of McGahn’s job had weighed on him, and he had come up with an idea.
“Why don’t you bring the kids and Shannon and come down to the beach with us?” Hughes said. So the McGahns loaded up the kids and hauled their gear down the shore. Their kids and Hughes’s four boys played in the small gullies that formed on the shore when the tide went out. At first, McGahn seemed like his old self. But as he sat on the beach, Hughes noticed that something was off about his friend. McGahn, who loved to talk, just stared out into the ocean, saying nothing.
The accumulated stress of the previous nineteen months, combined with our public disclosure about his cooperation with Mueller’s prosecutors, weighed heavily on him. He was certain that Jared and Ivanka were plotting against him, and tilting against such flagrant and powerful nepotism weighed on him as well. McGahn knew they had never gotten over his role in subjecting them to such scrutiny over their security clearances, nor his determination to enforce some kind of separation between their businesses and their work for the administration.
All of his worries conspired to make sure that McGahn couldn’t take pleasure in a day at the beach, or in much of anything. He just stared out at the waves, one after another.
“Things kind of crazy?” Hughes asked him.
“You have no idea,” McGahn said. “It’s unbelievable.”
“I can’t imagine,” Hughes said.
“Look, my time is short,” McGahn said. “I’m getting out soon. I can’t handle it.”
The following Monday morning, McGahn was in his office at around 9:30 when John Kelly came bursting in. Kelly looked as nervous as McGahn had ever seen him.
“I can’t believe you didn’t tell me you had decided to go,” Kelly said.
McGahn had no idea what Kelly was talking about.
“The president just tweeted that you’re leaving once Kavanaugh is done,” Kelly told him.
McGahn thought Kelly was joking.
“Lay off, Chief, I got shit I gotta deal with today,” McGahn told Kelly.
McGahn then realized that Kelly was not kidding.
That’s when it dawned on both of them: From the residence, the president had just pushed out the White House counsel without telling his chief of staff. McGahn had told Trump that he wanted to leave but Trump now made it appear like he had the final say.
★ ★ ★
SEPTEMBER 27, 2018
203 DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
ANTEROOM OF ROOM 216, HART SENATE OFFICE BUILDING, WASHINGTON, D.C.—The morning had been devastating for Brett Kavanaugh. Testifying before the Senate Judiciary Committee in a hearing possessed of a rare tension, Christine Blasey Ford had utterly captivated the nation. She had taken the country back to the summer of 1982, high school days, and with a breathtaking combination of composure and pain had recalled in detail how a young and drunk Kavanaugh had climbed on top of her and tried to remove her clothes while she attempted to escape.
Back in the White House, governing had slowed while Trump and many of his senior aides followed the testimony closely. With a four-to-four ideological split on the nation’s highest court, a lifetime elevation for Kavanaugh, fifty-three, from judge to justice would skew the Court conservative for years, if not decades, after Trump left office. After Ford’s testimony ended midday, news began to leak out of the West Wing that Trump believed Ford had dealt a devastating blow to Kavanaugh during her time in front of the committee. The president wanted to pull the nomination and try anew with someone else. Kavanaugh himself was scheduled to testify in the afternoon, but after Ford’s wrenching testimony all seemed lost.
McGahn had watched the testimony from the office of Thom Tillis, the Republican senator from North Carolina, and believed Ford’s testimony had cast enormous doubt on Kavanaugh’s chances of getting confirmed. He saw the reports about Trump’s desire to pull Kavanaugh. If that happened, everything else that McGahn had achieved in reshaping the federal judiciary would be overshadowed by this blowup. His time in government was coming to an end, and despite needing no Democratic votes to fill the vacancy left by Kennedy’s retirement, he was nonetheless going to come away with the blame for Kavanaugh’s failure.
McGahn assumed then, as he just about always assumed, that the damaging leaks about Kavanaugh were coming from Jared and Ivanka, who McGahn believed wanted a more liberal justice. McGahn actually understood why Trump might want to pull Kavanaugh and could not fault him for it.
McGahn went in to meet with Kavanaugh to prepare him for the biggest moment of his career. He believed Kavanaugh needed to give up the conciliatory approach he had attempted earlier that week during an interview with Fox News. In fact, when McGahn huddled with Kavanaugh, the nominee’s wife, and several aides inside an anteroom in the Hart building, McGa
hn grew angry when he heard a former clerk suggest to Kavanaugh that he ought to be measured, just as he had been on Fox.
“Did I tell you that you could say that?” McGahn snapped. He cleared the room before anyone else could offer any more advice.
McGahn had a strategy in mind, one that he had discussed with Senators Orrin Hatch and Lindsey Graham beforehand. Kavanaugh was angry because he felt as if he were being treated unfairly. Moments before the hearing was to resume, McGahn told him that he had to use that anger to push back at the Democrats as hard as possible and defend himself and his character as if it were the last battle he would ever fight. It had to come from the heart. The angrier, the better.
During one of the breaks in Kavanaugh’s testimony, Donaldson relayed to McGahn, with Kavanaugh within earshot, that Trump was trying to reach him. McGahn knew that Kavanaugh had seen the reports that Trump wanted to pull the nomination. But McGahn wanted Kavanaugh to know that it was them versus the world, and that he was going to do everything to stick with Kavanaugh and get him through the process.
“Tell him I don’t talk to quitters,” McGahn said to Donaldson loud enough that Kavanaugh could hear it.
A couple of minutes later, as Kavanaugh prepared to testify, McGahn stepped aside and called Trump. The president seemed calm and said that he was sticking with his nominee.
Just over a week later, on October 6, 2018, after an explosive nomination process that racked the nation and left the painful allegations raised by Dr. Ford forever unresolved, Kavanaugh took his seat on the U.S. Supreme Court. Good to the president’s tweet on the subject, McGahn left the White House a week and a half later. In a farewell meeting with Trump in the Oval Office, the president, like a boss moving along a summer intern, said he was happy to provide McGahn a recommendation for his next job. Trump said that McGahn got high marks for most of his work, but low ones for his inability to stop Sessions’s recusal and Mueller.
★ ★ ★
FEBRUARY 28, 2019
FORTY-NINE DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
SPECIAL COUNSEL’S OFFICE, WASHINGTON, D.C.—For the prosecutors and agents working on the Mueller investigation, the jobs came with an added layer of stress that went beyond the long hours. Their lives were under more scrutiny than at any other point in their careers. Trump publicly ridiculed them, his allies dug through their backgrounds looking for evidence of bias, and judges picked over their legal filings for mistakes. The American public demanded the investigation be done correctly, and Democrats wanted it completed yesterday. If the investigators failed to turn over every rock, they could close up the inquiry, present their findings to the attorney general, and then learn months later that they missed a key piece of evidence, and their entire investigation could be called into question.
Despite all of that, investigators live to be a part of the hardest, most high-profile investigations, and being on “Mueller’s team” marked a lifetime opportunity, because they might never otherwise get a chance to work on such an important and stimulating investigation. There was also the allure of being in the know and on the inside for the most closely watched inquiry in American history. The investigators knew what they were finding, whom they were building cases against, and what the answers were to central questions such as whether the presidential election of 2016 had not only been marred by the Russian active measures but also been further compromised by collusion between the Trump campaign and Moscow. Sometimes that could be frightening. Other times it could be amusing, such as when they watched reporters, pundits, witnesses, and lawyers make flagrantly mistaken pronouncements about the investigation. The investigators’ friends and families wanted to know what they knew and what they were working on, but Mueller’s team was extraordinarily disciplined and resisted the impulse to talk about their work.
One issue the investigators were baffled about were the wildly inaccurate predictions about when the investigation would be over. The first round of incorrect claims began in the months after Mueller’s appointment in May 2017, when Trump’s first team of lawyers, Dowd and Cobb, said they could get the investigation wrapped up within six to eight weeks. When they missed that date, Cobb publicly made another baseless claim, saying it would be over, at the latest, by Thanksgiving 2017. That proved untrue, too, when the investigation appeared to be gaining momentum by Thanksgiving. A week after the holiday, Flynn went into federal court in Washington, pleaded guilty to lying to the FBI, and agreed to cooperate with Mueller’s investigation.
The joke among Trump’s second team of lawyers, which replaced Dowd and Cobb in the spring of 2018, was that Dowd and Cobb had actually been right about Thanksgiving but had just had the year wrong. In October 2018, Bloomberg reported that Mueller would issue his findings soon after November’s midterm congressional elections. But by Thanksgiving 2018, the investigation was still moving forward, and a week after that holiday Trump’s personal lawyer Michael Cohen pleaded guilty to lying to Congress about the timing of negotiations over plans to build a Trump Tower in Moscow. By December, NBC News reported that Mueller was expected to submit his report to the attorney general as early as mid-February. Then, in mid-February, CNN and NBC News reported that the Department of Justice was preparing to announce the end of the investigation by the end of the month. On Thursday, February 21, CBS News said the report could be sent the following day.
In reality, by the end of February, the obstruction investigation on Trump was still active and ongoing. In fact, at least one witness was still being asked for documents and to sit for yet another interview: McGahn. Mueller’s team—led by Goldstein and Quarles—was still trying to shore up McGahn’s account about Trump’s attempt to oust Mueller in the late spring of 2017. The problem stemmed from how Burck helped McGahn navigate the episode at the time. The pressure Trump put on McGahn to have Mueller fired so unnerved McGahn that he had been in constant contact with Burck throughout that entire weekend. In the course of those conversations, Burck advised McGahn to refrain from talking to anyone in the White House about what Trump wanted him to do. That included McGahn’s chief of staff, Annie Donaldson, whom McGahn had habitually confided in so that he would have a witness to back up his accounts of what Trump had ordered him to do and how McGahn had responded. That meant the only person who knew what occurred was McGahn’s wife, Shannon. After all, she had heard and seen a lot of what was going on because McGahn had grown upset that Trump was calling him at home on a Saturday to tell him to fire Mueller and then, in a fit of rage, drove to the White House with his resignation letter and packed up his office.
Mueller’s obstruction team trusted McGahn. They’d already spent more than thirty hours with him. But to claim, at the end of a two-year investigation, the president had obstructed justice, they needed some additional piece of evidence to bolster his credibility, and the only two people who knew about how the president had behaved—Burck and McGahn’s wife—were highly problematic witnesses. The Justice Department shies away from using lawyers or spouses as witnesses for a slew of reasons, particularly because their credibility is so easily attacked and juries are less likely to believe them because the perception is that they will say whatever is necessary to back up the witness.
This left McGahn standing alone. The investigators knew that McGahn had spoken on the phone with Trump that weekend. Maybe, they thought, if they could get McGahn’s phone records, they could show that Trump had indeed been calling him. Such evidence would not show what they actually discussed, but at least it would substantiate that the calls were made.
But even producing evidence of the calls proved tricky. In a normal investigation, a prosecutor could simply get a grand jury subpoena and send it to the telephone company for the records. But Mueller’s team had decided early to avoid using the grand jury in the obstruction investigation. If they used the grand jury, Trump could more easily try to fight the prosecutors’ efforts by citing executive privilege
. And if they obtained testimony or documents through the use of a grand jury, it would ultimately be harder to hand those materials over to Congress for an impeachment proceeding because there are even more restrictions on such evidence.
Without those tools, the investigators brainstormed other ways of getting the phone records. Goldstein went back to Burck in late 2018 with a homework assignment: Please tell McGahn to go get the phone records himself.
McGahn had been a hockey dad since leaving the White House in October 2018, as he planned his move to the private sector. He called his phone carrier and requested the phone records that the investigators were seeking. Because the dates that he needed were more than ninety days old, the company had to go back and get them manually and mail them to McGahn. This process took several weeks. But finally, McGahn received them in the mail and sent them to Burck, who, in turn, gave them to Goldstein.
Armed with the records, the investigators built a spreadsheet that charted every call that McGahn and Trump had made in the days around the attempted firing incident. Still, the investigators knew that they needed more to understand the sequence of calls and wanted to talk to McGahn again.
But interacting again with McGahn could be potentially dicey for everyone involved; if Trump found out they were still meeting with McGahn, he’d rain down on both sides with renewed vitriol. Since Emmet Flood had taken over from Ty Cobb in May 2018, Mueller’s team had stopped trying to speak to McGahn. But in late February, Goldstein went around the White House again and called Burck. He asked him to arrange a conference call with McGahn to go over the records.
At 2:00 p.m. on February 28, McGahn went to Burck’s ninth-floor offices just four blocks from the White House. For about forty minutes, Goldstein, Quarles, and an FBI agent working on the obstruction case talked to McGahn and Burck to go over the sequence of calls between Trump and McGahn on the dates of the president’s order to have Mueller removed. Burck had been convinced since he first brought McGahn in to be interviewed by Mueller’s team in November 2017 that McGahn could be their star witness. While the final interview seemed like a logical step for the investigators, it heightened Burck’s concern that if the report became an impetus for the president’s impeachment by a new Democratic House majority, McGahn was in for a long road ahead as the central narrator of the president’s illegal conduct.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 39