That description belied Mulvaney’s opportunism and ambition. A former Tea Party congressman, Mulvaney had his own political ideology, forged years before Trump ran for president. He calculated that by not literally standing guard over the president hour after hour, as Kelly and Priebus had done, and by avoiding palace skirmishes, he could quietly push forward on building a right-wing fiefdom. In the name of “Make America Great Again,” Mulvaney would pursue his own conservative agenda on fiscal, labor, health-care, and other domestic policies.
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After Pelosi became House Speaker the first week of January, the threat of congressional investigators bearing down on Trump became real. Democratic committee chairmen were readying a vast array of probes, from Trump’s efforts to thwart the Russia investigation and his secret communications with Vladimir Putin to the president’s tax returns and bank records to alleged abuse in the White House security clearance process and the separation of migrant children from their families at the border.
It fell to Cipollone to captain the administration’s defense. The conservative former Kirkland & Ellis partner, who was then working at a boutique plaintiffs’ firm, had several “ins” to Trump’s orbit. He had gotten to know Trump by privately advising the president’s legal strategy since the summer of 2018, and Jay Sekulow found his assistance invaluable. The Fox News host Laura Ingraham, who had been close to Trump for years, also recommended Cipollone; they became close friends when Cipollone helped her through a time of personal struggle over her faith.
Cipollone had another great calling card: he was a genuine fan of Trump’s policies and was determined to help advance his legislative agenda and put more of Trump’s aspirations into the “win” column.
Despite Cipollone’s conservatism, he had friends and admirers across the aisle, too. His former coworkers said he had a comfortable, genial style and put people around him quickly at ease. In his cases, he tried to find compromises to move forward. Melanie Sloan, a Trump critic and prominent government ethics lawyer, applauded Trump’s choice. She noted that Cipollone had a moral code and predicted that he would be unlikely to cross ethical boundaries in service to the president, despite Trump’s frequent demands of advisers to do so.
“He will advocate for his client quite zealously, but within the confines of the law,” Sloan said. She added, “It’s hard for me to imagine Pat doing something that would harm his reputation. He has a pretty strong core.”
Cipollone officially joined the office in November and spent the next couple of months repopulating the White House counsel’s office with warrior-lawyers in anticipation of a drawn-out battle with House Democrats over investigations. With McGahn’s departure in October, four of the five deputy White House counsels had left, and by late that year the number of lawyers on staff had dwindled to fewer than twenty from thirty-five. This shrinkage had eroded the ability of the White House to vet policies and personnel and left the administration ill-prepared for the looming oversight fight, but the silver lining for Cipollone was that he had a clean slate to build from.
By the beginning of January, Cipollone had hired seventeen lawyers, including three new deputies he had handpicked: Patrick Philbin, Kate Comerford Todd, and Mike Purpura. They joined John Eisenberg, a deputy since Trump took office. Each of the three newcomers possessed considerable experience working in the George W. Bush administration, either in the White House counsel’s office or in the Justice Department. They were well versed in executive privilege, the legal topic that Cipollone planned to deploy as both a protective tool and a cudgel in fending off the prying demands of Democratic lawmakers.
Cipollone and his team crafted Trump’s executive privilege strategy as a means of fending off the expected blizzard of requests from Democratic lawmakers and to protect the confidentiality of the office of the president.
The lawyers were prepared to make a robust argument that White House communications must remain shielded in order for the president to receive full and frank advice from his aides and advisers. They also anticipated blocking congressional subpoenas for testimony from scores of current and former administration officials, citing executive privilege.
Meanwhile, Barr was preparing to assume control of the Mueller investigation. Barr’s reputation, forged during his first tour as attorney general under President George H. W. Bush, was that of a devoted institutionalist who cared deeply about protecting Justice Department norms and rising above petty political gamesmanship. The Senate had unanimously approved his nominations for all three of his past Justice Department jobs, a fact Barr quietly reminded friends of. But it was clear to any student of the modern era that his confirmation process to become Trump’s attorney general would not be so smooth and that the outcome would not be unanimous.
In early January, as he prepared for his Senate confirmation hearings, Barr spent considerable time thinking through what, at least in the near term, his No. 1 job was: handling the conclusion of Mueller’s investigation and the release of his expected report. He closely read the special counsel’s stated mission and underlying statutes, as well as the Justice Department opinions that constrained how prosecutors could treat the president in an investigation.
Barr assumed Mueller and his team would write some sort of report at the end of their investigation but had not spoken to the special counsel and did not know what form it would take. The special counsel regulations called for the findings to be delivered to the attorney general but did not require a public report. Rod Rosenstein’s plan had long been to keep any such report private; at most, the Justice Department would make a public announcement that a confidential report had been delivered and the special counsel’s office was being disbanded. But over time, the idea of keeping the report private seemed impractical. Rosenstein’s deputies would joke about the furor it could cause, not only in the media, but also at the Capitol and the White House. “From which side of Pennsylvania Avenue would the pitchforks penetrate the building?” one quipped.
As Barr met privately with dozens of senators, courtesy calls in the run-up to his confirmation hearings, most of them were adamant that Mueller’s findings become public. He decided then that he would have to release the report; by withholding it, the Justice Department could look as if it were hiding something. He rationalized that if it documented criminal wrongdoing, the attorney general couldn’t sit on it, and if the president didn’t do anything wrong, the attorney general ought to tell the American people. More than a year and a half into Mueller’s investigation, the body politic needed a cathartic moment. And even if the department didn’t release the report, Barr assumed someone would leak it eventually.
At his January 15 confirmation hearing before the Senate Judiciary Committee, Barr testified, “The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the special counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work. Second, I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.”
Though he could not control the timetable for his confirmation, Barr fully expected Mueller’s final decisions and report to land in his lap, as opposed to that of the department’s interim caretaker, Matt Whitaker. Whitaker’s brief tenure as acting attorney general was not kind to his reputation. He had a frosty relationship with some of the most senior officials in the department, leading to paralysis at times. He suspected colleagues were leaking damaging material about him to reporters. Whitaker craved public adoration, and those who worked with him sensed in him a deep insecurity. He was quiet in internal meetings, striking some attendees as more of an observer than a decision maker. A few administration lawyers shared a private joke about Whitaker, s
aying he reminded them of the character Mongo from the Mel Brooks comedy Blazing Saddles.
Barr compared so favorably to Whitaker, on the gravitas measure alone, that many Justice Department lawyers suspected Mueller would try to time his report so that he could hand his baby to Barr, his trusted former boss. Mueller considered Barr not only a peer but also a friend; he had been invited to Barr’s daughter’s wedding. The Senate would vote on February 14 to confirm Barr, 54 to 45, and he would be sworn in later that day.
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Throughout January and into February, the Mueller report was like a mysterious plane, circling the atmosphere undetected by radar but rumored to be landing sometime soon. Inside the special counsel’s offices, which had effectively been hermetically sealed for nearly two years, the Mueller opus was taking shape. The special counsel team was divided into two—one group of prosecutors and investigators pursuing Russian interference, the other Trump’s obstruction of justice. The teams hashed out drafts of their separate volumes, while Mueller and his senior leadership team worked on the report’s summary. There was considerable haggling over nearly every word, but especially so on the issue of the substantial evidence they had gathered suggesting Trump had obstructed justice and the Office of Legal Counsel opinion stating that the special counsel could not charge a sitting president.
“It was vigorously debated. How do we articulate ‘obstruction’?” said one person who talked to multiple members of the team. “How do we conclude what his conduct was? It was spirited. They understood the OLC opinion prohibited them from charging him. But the OLC opinion doesn’t say you can’t recommend charges.”
Some prosecutors felt the evidence was substantial and that they had met the requirements for bringing a prosecution if the subject were not the president. Others felt they were missing hard proof of Trump’s intent. Because of the legal opinion prohibiting prosecution of a sitting president, they had not reached a formal conclusion about whether they could bring a case. They argued the special counsel should make the gravity of Trump’s actions more clear to Congress, which was empowered to pursue impeachment, and ultimately to the public.
“The debate was more spirited,” said the person who talked to multiple team members. “Did it ever get angry? Did anyone get short? Yes. But that is business as usual. That does not mean that it is contentious necessarily. This is how these things go when you have nineteen lawyers debating how to handle something.”
Inside Trump’s camp, meanwhile, Giuliani, Sekulow, and the Raskins were convinced that Mueller could never make a case for conspiracy between the president and any Russians. They had read every document. They had modest readouts of most of the special counsel’s witness interviews. And nothing they saw or heard suggested that Trump knew in advance about the illegal hacking of Democratic emails or urged it, despite his public plea—“Russia, if you’re listening”—to release Hillary Clinton’s deleted emails. The only thing that gnawed at Trump’s lawyers was the possibility that there were U.S. intelligence intercepts or foreign intelligence reports that found a link between a Trump campaign aide or associate and a Russian discussing the central crime of hacking Democratic emails.
Trump’s lawyers believed the president was more vulnerable on obstruction. The worst-case scenario, they were warned by Flood, was that Mueller’s report stated that investigators had enough evidence to prove to a jury beyond a reasonable doubt that the president had committed a certain number of specific federal crimes but that the special counsel did not indict him solely because of the Justice Department policy forbidding prosecution of a sitting president. That would be tantamount to calling Trump a criminal who was walking around scot-free, out on a technicality.
The president’s lawyers were drafting their own rebuttal report to issue in the event that Mueller leveled such an accusation. A short version was about ten pages; the longest version ran as high as eighty-five pages. That longer version rebutted all the legal positions that Trump’s team figured Mueller would have to take to conclude the president committed the crime of obstruction, ignoring his broad powers to fire subordinates and exert his executive authority over the Justice Department.
The rebuttal report draft also documented what the Trump lawyers argued was political bias in the FBI’s handling of the probe. That included what the Justice Department’s inspector general found to be a worrisome “willingness to take official action” on the part of some FBI investigators to hurt Trump’s chances of election. Exhibit A in the lawyers’ trove of evidence were the text messages that the then senior FBI agent Peter Strzok, one of Mueller’s original team members, exchanged with the then FBI lawyer Lisa Page. The two were having an affair and, prior to Mueller’s appointment, were at the forefront of the FBI’s Trump-Russia probe.
“He’s not ever going to become president, right? Right?!” Page wrote to Strzok in one message while they were in the middle of deciding on launching an investigation of Trump and his campaign in August 2016.
“No. No he’s not. We’ll stop it,” Strzok responded.
Strzok and Page had by now become lead characters in Trump’s “witch hunt” plot, with recurring roles on the president’s Twitter feed and on Fox shows. As Trump tweeted on January 12, for instance, “Lyin’ James Comey, Andrew McCabe, Peter S and his lover, agent Lisa Page, & more, all disgraced and/or fired and caught in the act. These are just some of the losers that tried to do a number on your President. Part of the Witch Hunt. Remember the ‘insurance policy?’ This is it!”
Another recurring character of the drama was Giuliani, the public face of Trump’s defense. Though never regarded for his eloquence or precision with language on television, Giuliani unspooled a dizzying string of sound bites in mid-January that required substantial cleanup and rankled other Trump advisers.
Giuliani gave divergent accounts of when conversations about developing a Trump Tower project in Moscow occurred. He first said they occurred throughout the 2016 campaign, then said they were hypothetical altogether, then said they might have gone on for the entirety of the campaign, and then said they ended around January 2016, just before the Iowa caucuses.
Then there was the matter of the Michael Cohen tapes. Giuliani claimed to have listened to recordings that showed Trump had not instructed his personal attorney to lie to Congress about the Moscow project, then said he should never have mentioned the tapes at all, then said such a conversation would have been “perfectly normal,” then said he wasn’t sure whether they had spoken, before claiming, finally, that they definitely had not.
On January 23, Giuliani tried to explain his various statements and clarifications by telling The Washington Post’s Josh Dawsey, “There is a strategy. The strategy will become apparent.” Then he pleaded with Dawsey, “You have to be patient.”
Trump was not a patient man, however. The president—who has made more than his share of whoppers—complained about Giuliani to one of his political advisers. “He’s the only guy in the world who’s less prepared than I am,” Trump said. “Rudy goes on TV and doesn’t know what the fuck he’s talking about.”
For the next several days, Giuliani stopped appearing on TV. Trump temporarily benched his lawyer.
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By its thirty-fifth straight day, the government shutdown that Trump had said he would be proud to instigate was wreaking havoc across the country. The nation’s air travel was in chaos. Federal workers were lining up at food banks. Some Republican senators were in open revolt. Even Christopher Wray, Trump’s handpicked FBI director, was decrying the dysfunction.
“It takes a lot to get me angry, but I’m about as angry as I’ve been in a long, long time,” Wray said in a video message to FBI employees.
“I’m not a loser,” the president said. “I’m not going to lose this. I’m not going to look weak. I’m not going to give in.”
But on January 25, Trump gave in.
The master deal maker wasn’t the wizard he c
laimed. “It’s like McDonald’s not being able to make a hamburger,” the Republican strategist Mike Murphy said.
Trump cast about for someone to blame and pointed fingers at two staffers who led the negotiations on Capitol Hill, Mulvaney and Jared Kushner. During the shutdown, Kushner claimed his bipartisan victory in reforming criminal sentencing law as evidence that he could execute a grand bargain around wall funding and broader immigration changes. Another senior administration official recalled of Kushner, “He kind of said, this is how we made the donuts last month and this is how we’ll make donuts again this month because they were really delicious donuts, we made them well, and it worked, so let’s use the same recipe.” But it was naive to think Democrats like Senator Dick Durbin, who had been willing to support a bill reducing recidivism, would ever agree to fund Trump’s wall.
Trump did not give up on the wall, however. He reopened the government only temporarily, giving Congress three weeks to pass a longer-term budget. During that period, as a seventeen-member bipartisan panel of lawmakers negotiated a spending compromise, Cipollone, Mulvaney, and other officials devised a drastic plan for Trump to build his wall. The president would declare a national emergency at the southern border, which would trigger extraordinary powers to redirect taxpayer money.
On February 15, Trump signed the new budget agreement, which contained $1.375 billion for fencing and other border expenditures—far less than the $5.7 billion Trump had sought—and formally declared the national emergency. He used the word “invasion” seven times to describe the migration patterns at the border. “We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs,” Trump said.
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