by Bob Woodward
“Let me think about it,” Mueller said. “I hate to think that you would be playing us.”
“Wait a minute,” Dowd said. “Give me a fucking break. I’ve got a track record here that is unimpeachable. You ask Jim Quarles if I’ve ever played him. Is there anything that I’ve ever said to you that wasn’t correct?”
No, Quarles answered. “John’s one of the best lawyers we deal with.”
Dowd began to think that Mueller didn’t know the facts of the case.
Under the joint defense agreement with some 37 witnesses, Dowd had received debriefings from the lawyers for them.
“Did anyone lie?” Dowd asked.
“No,” Mueller said.
“Did anyone destroy documents?”
“No,” Mueller said.
“Am I right that you want good, reliable answers?”
“Yes.”
“Get me the questions,” Dowd said, “and I will take them and tell you whether we can answer them.” He would provide the answers—a line or two to each question. “Fair swap,” he continued. “You give me the questions so I know what’s on your mind.”
General Kelly could get Mueller, his team and a court reporter into the White House without anyone knowing. “We’ll have a script.” The president would be under oath. “We’ll get it just the way we want it. But we’re telling you that’s the truth as we know it. The president’s saying that’s the truth as he knows it, with the assistance of counsel. So either that or you sit there while we interrupt him for six hours or he plays, ‘I don’t know.’ ”
Mueller’s team were shaking their heads and made it clear that had never been done before. No way. It was unheard of.
“Let me think about whether to give you some questions,” Mueller said.
Dowd reminded Mueller that in July or August, when Trump had attacked Mueller and Sessions, Mueller had contacted Dowd to say, “I got a problem, can you come by? You said, I got people refusing to testify that don’t need to refuse to testify. They don’t have any culpability at all. But I’m afraid that the atmosphere, they feel like they’re disloyal if they testify.”
And Dowd had told him, “Well, I’ll go public and say we want everyone to cooperate. The president’s cooperating. We’re cooperating 100 percent. And we encourage everyone to do that.” Dowd and Cobb had been quoted in the press saying Trump and the White House would “continue to fully cooperate.”
As he had at each meeting, Dowd said, “What’s at stake is the country.” The president needed to do his job, and did not have time for this investigation. There were serious, even dramatic tensions in the world—North Korea, Iran, the Middle East, Russia, China.
“I’m very sensitive to that,” Mueller replied. “I’m doing the best I can.”
“Why don’t you just give us the questions?” Dowd pressed.
Mueller didn’t like it.
Dowd knew he was gambling and daring Mueller by threatening to fight a grand jury subpoena. That was his design, sending a message that if Mueller wanted to go the grand jury route, this was what it would look like. He would fill his motions with exhibits. And the district judge would spend two weeks reading them.
Dowd had laid it out as strongly as he could to Mueller. “And you’re going to have to stand in the well of the court and tell the judge why you want to put the president of the United States in the grand jury. Bob, as you know, I have handled cases like this. And I wouldn’t go near the grand jury with the president of the United States.”
He had a final argument. The perjury trap was what Mueller’s team did, he charged. “You did it to Flynn, you did it to Gates, you did it to [George] Papadopoulos,” a former campaign aide. “You guys, that’s the games you played.” Rick Gates, a Manafort business associate and Trump’s deputy campaign chairman, had one of the best lawyers sitting next to him and had still lied. “You guys gave him no time to prepare. And now he’s got a felony. Bob, that’s exactly what I told the president: that’s what they’re going to do to you in an interview.”
Dowd thought it possible, even likely, that there was something he didn’t know. “Bob, you guys are all wound up about something. There must be something here.” Maybe you disapprove of the president’s behavior. “But you don’t have a case.” Whatever they had, Dowd said, “Go tell it to the mountain and go tell it to the Hill. I don’t care.”
Mueller sat stone-faced—marble, nonresponsive. Such control. The meeting was over.
At 5 p.m. Dowd and Sekulow went to see the president in the dining room off the Oval Office.
“How’d it go?” Trump asked.
“Mr. President,” Dowd said, “this is ridiculous.”
“Oh, my God,” Trump said. Dowd’s reaction to the Mueller meeting seemed so negative that Trump looked worried that he was now really in trouble.
“No,” Dowd said. “You’ve never truly respected Mueller. You’ve got really good instincts, but I’ve never bought into it. But I’ve got to tell you, I think your instincts might be right. He really wasn’t prepared. Why are we coming back here with nothing?”
* * *
A week later, March 12, Dowd and his team went again to see Mueller and his team. He hoped against hope that Mueller was going to say he was inclined to decline prosecution and say he needed the president’s testimony just to write a report to Rosenstein, the deputy attorney general.
Mueller’s team, Quarles and three others, dictated 49 questions and Jay Sekulow took notes. Nearly all concerned Trump’s attitude, opinions, decision making or conclusions about major players such as Flynn, Comey and Sessions. Some inquired about Donald Jr. and the famous meeting at Trump Tower, and the offer from a Russian lawyer to provide dirt on Hillary Clinton. Others concerned real estate development in Russia.
The broad range of subjects validated what the news was reporting on what Mueller was investigating.
This is horseshit, Dowd thought. Second-year-law-school questions. Many had been answered. To have Trump answer them, of course, would be a catastrophe because Trump could erupt and say absolutely anything. On one level, Dowd thought the broad range of questions suggested that Mueller had nothing and wanted to go on a giant fishing expedition. Setting a perjury trap for the volatile Trump would be child’s play.
“There’s no case here,” Dowd told Mueller.
“I need the president’s testimony,” Mueller said. “What was his intent on Comey?”
“I’m not sure constitutionally you can question that,” Dowd told him. The Article II powers of the president were long acknowledged, even by Comey.
“I want to see if there was corrupt intent,” Mueller said again. This was the very heart of the matter. The obstruction statutes did not make specific acts alone unlawful. The acts had to be done “corruptly” or “willfully,” with the intent of obstructing justice. State of mind was the key. Why had the president acted the way he had? That was why Mueller wanted the president’s testimony, Dowd believed.
“Do you have some evidence that he was paid off?” Dowd asked. Payment for illegal action, suborning perjury or destroying evidence are normally the elements needed to show obstruction. Tapes, sworn testimony of a witness or documents are the best evidence. Unless the prosecutors had it out of the mouth of the subject of the investigation, unless someone torpedoed himself as Dowd was certain the president would do.
“Your own deputy attorney general is a witness for the president,” Dowd said. Rosenstein had written the memo urging that Comey be fired for his conduct in the Clinton email case.
“Matter of fact, he [Rosenstein] took the president’s four-page letter and rewrote it. I rest my case. Then you’ve got the attorney general. Then you’ve got the vice president. Then you’ve got McGahn, everybody around the president. And then you’ve got Comey’s behavior, which both the deputy and the AG had condemned in the Clinton case.
“Intent,” Dowd continued, “all the documents and testimony” answer that. “You asked witnesses what he [the
president] said and what he did and when he did it. I submit all that stuff is in real time.” That was all that was needed to show the president’s intent.
Mueller was not buying.
Dowd and Sekulow left the building.
“What do you think?” Sekulow asked.
“He ain’t testifying,” Dowd said. It had been a complete fantasy to think that Mueller would decline prosecution.
Dowd believed he could use the Court of Appeals decision in the independent counsel investigation of Bill Clinton’s agriculture secretary Mike Espy. The court had ruled that executive privilege applied to the president and to his advisers. Prosecutors who wanted to overcome the privilege must show the materials sought contain important evidence that isn’t available elsewhere.
The court ruled that prosecutors had to show a matter under investigation was a serious crime and that no one other than the subpoenaed witness could answer.
Dowd and Sekulow reported back to Trump.
“I have a completely different picture of Mueller now,” Dowd told Trump. The president had been right. “I don’t trust him.”
The 49 questions troubled Dowd. Why not just five?
Why no deference to the president of the United States, who didn’t have time to prepare and then answer questions in the middle of so many world problems? Dowd said this reinforced the decision that the president should not testify.
“Yeah,” Trump said. “They got answers to all of them.”
Cobb began saying publicly that the president really wanted to testify and answer a few questions.
“Mr. President,” Dowd said, “it ain’t a few. There’s 49 of them. That’s not my advice.”
“What are people going to say?” Trump asked. “How’s it going to look in the press?”
“Mr. President, it’s a trap. They don’t have a legal or constitutional reason to talk to you.” He mentioned lawyers who had represented Trump in the past. “If you don’t want to take my word for it,” call them.
* * *
Trump called Dowd from Air Force One later in March.
“Mr. President, you just need to take my advice,” Dowd said. “Otherwise we’re going to have a major disaster. There’s no way you can get through these. You remember our meeting when you read our letter? You remember you were comfortable, you understood the strategy? Mr. President, we have won this thing hands down. The 49 questions, you agree, have already been answered. You’ve got people here that answered them. You’ve got lawyers that answered them. You’ve got staff. I mean, Priebus, Bannon, all of them gave testimony acceptable to the special counsel. He has no quarrel with it.
“Mr. President, there’s no poison in the well. No one has lied. No documents are missing. There’s no president in our history that’s done what you’ve done. Why can’t I get you to just be proud of that and sit on it?
“And Mr. President, what I recommend is we just make all that public. We politely tell Bob you’re not going to sit for an interview, for the obvious reasons and for the constitutional reasons, and you’re protecting the office for your successors. If you testify, then we’re going to go through decades of gotcha and let’s get the president under oath. It’s just the new game. Particularly when there’s no crime and no basis, you know?”
The investigations of Reagan in Iran-contra, Clinton in Whitewater-Lewinsky and Nixon in Watergate all involved criminal activity, he said. “And by the way, if there was criminal activity where your White House could help out, I have no doubt you would respond. And that you would—if someone asked you about someone on your staff that had misbehaved and you witnessed something, you’d be a good witness. You’d testify. But that’s not the case here. This is a case where all of the questions have been answered.
“Mr. President, you’re just cutting my legs off. I’m trying to be a good lawyer.”
“You’re a good lawyer,” Trump said. “You’re a great lawyer.”
“Mr. President, I cannot, as a lawyer, as an officer of the court, sit next to you and have you answer these questions when I full well know that you’re not really capable.”
Dowd wanted to dress it up as much as possible, to say, it’s not your fault. It’s the burden of the office. He knew in this confrontation he could not be insulting. He could not say what he knew was true: “You’re a fucking liar.” That was the problem.
So Dowd said, “You do have trouble staying on the subject. And that can defeat you. Then you try to catch yourself, and you misstate something, and bam. It’s like Mike Flynn not remembering the conversation with Kislyak.”
* * *
Once more on Air Force One, Trump called his lawyer.
“Are you happy?” the president asked.
“No,” Dowd said. “I’m not happy, Mr. President. This is a goddamn heartbreak. I feel like I failed. I’ve failed as your lawyer. I’ve been unable to persuade you to take my advice. I’m no different than a doctor. I know what ails you. I know what your difficulty is. I’ve given a prescription that I know will keep you out of harm’s way. Remember the first rule, Mr. President, is do no harm. That’s where we are. And if I go and sit with you and let you do something that I think is bad for you and will get you in further trouble, then I ought to lose my license. Maybe there are lawyers that just sort of blink at all that.”
“I know that. John, I know you’re frustrated.”
“I am. I don’t mind telling you, I regret the day I ever recommended Ty Cobb. And I can’t believe that he undermined me.”
“Well,” Trump said, “I asked him” to speak out and show the president was not afraid to testify.
“He should have declined. He’s a government employee. And by the way, they can call him as a witness. He has no privilege with you.”
“Jesus,” Trump said, sounding worried, “I’ve talked a lot with him.”
“I wish I could persuade you,” Dowd said. “Don’t testify. It’s either that or an orange jump suit. If it’s decision time, you’re going to go forward, I can’t be with you.”
“You’re walking away,” Trump said. “How can you quit on me?”
It was a matter of principle, Dowd said, and the lawyer’s obligation to try to protect his client.
“I wish you’d stay. You’re a great lawyer.”
Dowd knew it was bullshit. But that was one of the Trump paradoxes. They could have a hell of an argument, but when they were done, on the phone or in person, Trump would say, thank you. I appreciate everything you’re doing.
In a lifetime of law, Dowd maybe had only five clients who had so graciously expressed their thanks.
* * *
Sekulow and Cobb called Dowd to complain that the president was not responding to them, blowing them off. They needed Dowd to call the president.
“Mr. President,” Dowd said in a call on the night of March 21 around 10 p.m.
“Hi, John,” the president said. He was very nice. Calm.
“Mr. President,” Dowd said, “I’m sorry to bother you. But Ty and Jay have called me.” They wanted him to address the question about testifying.
Trump said he had decided to testify. He could handle Mueller. “John, that’s just where I am. Sorry you don’t agree.”
“Well, it’s not my job to agree. It’s my job to look after you. And if you start taking your own advice, you get in trouble. Mr. President, I don’t take my own advice.”
“You have lawyers?”
“Absolutely. All the crap I’ve been through? Of course I have lawyers.”
“John, that’s where I’m at,” Trump repeated. “I think the president of the United States cannot be seen taking the Fifth.”
“Mr. President, we can make a far better presentation than that. By the way, I would add something. I think we ought to brief the key leaders on the Hill first, before we go public.” Take all the testimony and documents, and make the case to them before getting involved in a court battle. “Tell them why we’re not testifying. If we show them all this stuff
. . .”
“That’s not a bad idea,” Trump said. “But, John, the guys out there are not going to be happy if I don’t testify.” He did not say who “the guys” were—but Dowd knew he meant the Trump base, the crowds at his rallies, the Fox News watchers, the deplorables.
“What are they going to think when Mueller requests an indictment for 1001 violations?” Dowd asked, referring to false statements.
“No, no, I’m a good witness. I’ll be a real good witness.”
Dowd knew this was self-delusion, total bullshit. He had earlier told the president an anecdote from a lawyer friend in Florida who had once taken Trump’s deposition. When the lawyer had asked him what he did for a living, it had taken Trump about 16 pages to answer the question.
“You are not a good witness,” Dowd said again. Some people simply were not. Dowd offered an example. “Mr. President, you remember Raj Rajaratnam?”
“The hedge fund guy,” Trump recalled. Dowd had represented Rajaratnam, the billionaire founder of Galleon Group who was found guilty in 2011 of insider trading and sentenced to 11 years in prison.
“Brilliant guy,” Dowd said. “If you just sat down at a table and talked to him, you’d say, he was one of the most gifted, eloquent guys I ever met. He can talk about anything. Mr. President, when I got him ready to testify, just for five minutes on a motion, he wet himself. He suddenly became so nervous—I mean, he couldn’t . . . And then when I got him on direct, he could barely answer his own name. It’s just the nature of the beast, and I am an expert in that beast.
“Mr. President, I’m afraid I just can’t help you,” Dowd said.
He told the president he had every right to be pissed off at Mueller.
“They’re not going to impeach you. Are you shitting me? They’re a bunch of cowards, the whole town. The media, the Congress. They’re gutless. What’s the impeachment going to be, for exercising Article II? Huh? Hello? Hello, I want to hear Speaker Ryan take that one up before the Rules Committee and the Judiciary Committee.”
