Given Trump’s unusual attraction to Russia and public taunting of Comey and others, a significant portion of the country believed Trump might be a Manchurian candidate who was using the powers of the presidency to protect himself. But Burck, through his clients, was hearing what Trump was saying behind closed doors to those closest to him and believed that Trump’s problem was that he was simply stupid. Trump showed no sense of understanding how the government functioned and the norms that governed Washington.
“He’s doing stupid shit,” Burck said, “because he’s a stupid person.”
For Burck, though, it all came back to how removing Trump would create an everlasting fissure in the country, potentially inciting violence. Burck believed that based on everything he had seen until this point, the Justice Department was unlikely to find that Trump’s moves—like firing Comey—broke the law. But Trump needed to be stopped from doing anything like that again, because that could be the end.
“The political moment can’t deal with that type of meltdown, and if he does something like prosecuting Hillary Clinton and Jim Comey, it could create a real problem,” Burck told me.
★ ★ ★
JULY 31, 2017
ONE YEAR, EIGHT MONTHS, AND EIGHTEEN DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
MCGAHN’S OFFICE ON THE SECOND FLOOR OF THE WEST WING—A bespectacled man with long gray hair and a large looping handlebar mustache walked into McGahn’s office and announced that he had some good news.
The man, Ty Cobb, had joined the White House and in a matter of weeks leapfrogged McGahn as the most notable lawyer to Trump on the president’s staff. Along with John Dowd, the lawyer who was assisting Trump from outside the government, Cobb was tasked with handling the White House’s response to the special counsel investigation. It had been a long time since McGahn had heard anything that could be considered good news when it came to the investigation, so he was eager to hear what Cobb had to say.
Cobb told McGahn that he had just sat down with a representative of Mueller’s team. Mueller, Cobb said, was conducting a mere box-checking exercise that would quickly resolve itself as long as the White House cooperated. All Mueller really wanted to do, Cobb said, was perform a few perfunctory interviews with White House officials about the Comey and Flynn firings.
Great, McGahn thought, maybe this won’t be so bad after all.
But McGahn’s momentary relief quickly subsided when Cobb started ticking off the names of the aides that Mueller’s team said they wanted to speak with: Priebus, McGahn, and Spicer. Holy shit, McGahn thought, we are the true inner circle, the people closest to Trump, who have seen his worst behavior. Such an aggressive request, McGahn believed, signaled that, contrary to Cobb’s rosy interpretation, Mueller’s team was actually gunning for the president. To McGahn, this meant the White House should from then on approach dealing with Mueller with greater caution.
But making it all worse, in McGahn’s eyes, Cobb said that Trump wanted the aides to talk to Mueller openly and offer whatever documents they had, without a fight. That strategy dumbfounded McGahn. Why would the president let someone come in from the outside and comb through whatever they wanted searching for evidence of crimes?
McGahn knew the president had done and said things regarding the Mueller investigation that Cobb likely did not know about. If prosecutors had direct access to McGahn and could learn everything he knew, there would, at the least, be serious questions about whether Trump had tried to obstruct justice. After all, McGahn and Priebus—two of the White House’s top officials and two of the people Mueller had asked to talk to—had been so concerned that Trump was breaking the law that they hired a lawyer, Burck, to help guide them through the situation.
What Cobb did not tell McGahn is that he and Dowd had sold the president on a full cooperation strategy that Dowd believed would bring an end to the investigation by Labor Day. He had also told the president that he could even get Mueller to put out a statement saying Trump was not under investigation. Nearly all previous White Houses that faced investigations had conducted internal reviews of documents and interviewed aides to determine the facts and whether the president or any of his aides had criminal exposure. And presidents almost always fought to stop their White House counsels from cooperating with investigators, and lawyers, because of attorney-client privilege, were rarely allowed to speak with the authorities. In the normal run of things for a White House under investigation, competent counsel would do their best to hermetically seal the executive mansion.
But Dowd and Cobb had taken Trump at his word that he had done nothing wrong and were moving quickly to cooperate to bring it all to an end. And central to their plan was handing over McGahn.
For many years, Cobb and Dowd had been considered past their prime and no longer powerhouse Washington lawyers. It is unlikely that another president would have selected either of them to defend against such an existential threat as the Mueller investigation.
But with the urging of Kushner, Trump had hired Dowd, who touted his experience as a Marine as a way to relate with Mueller. Dowd, who was working out of his home office, then brought on Cobb to deal with the investigation from inside the White House.
“Trump’s bringing on the pterodactyls to save us,” McGahn told others at the time. “It’s like Night at the Museum. Dowd’s trying to rig it with his compatriot from the Hall of Fame of yesteryear.”
After the meeting, McGahn was concerned that Cobb’s decision could be bad for both himself and the White House. If Trump followed Cobb’s advice, the question would change from whether Mueller would learn about Trump’s obstructive behavior to whether he thought his obstructive behavior violated the law.
McGahn called Burck and tried to piece together what might be going on.
Besides incompetence, they failed to come up with a rationale for Trump’s decision. McGahn and Burck both thought it was almost malpractice to allow Mueller to interview McGahn without some sort of initial fight. Mueller appeared to be knocking on the White House door. Why welcome him in?
“No, tell him no,” Burck said to McGahn. “He can’t talk to the lawyers.”
Regardless of what McGahn thought, he was in no place to make that argument to the president because he had fallen out of favor with Trump over his refusal to dismiss Mueller. Still, he wanted to stop the interview from happening. He had witnessed several acts that prosecutors could easily see as obstruction. He had pressured Sessions to remain in control of the Russia investigation, and Trump had leaned on him relentlessly to fire Mueller. If McGahn detailed those episodes during an interview, an overzealous prosecutor might try to rope him into an obstruction of justice charge. Additionally, Burck, like most defense lawyers, wanted to head off an interview for his client because he believed that allowing McGahn to sit for one would only open him up to the possibility of being prosecuted for making false statements. To try to avoid the interview, Burck reached out to Cobb, believing he could reason with him about why the White House’s approach was wrong.
“Why would you cooperate this way?” Burck asked Cobb. “You have multiple legal issues you could raise.”
Burck said no other White House would hand the aides closest to the president—including the White House counsel—right over to prosecutors. He asked Cobb about why he had not conducted an internal review to learn what witnesses knew.
Cobb said the president had told him he had done nothing wrong. Anyway, if they fought Mueller, they would lose in court. Because of those factors, an internal investigation was unnecessary, Cobb said.
Burck said he thought he was making a grave mistake.
“You don’t know what you don’t know,” Burck said to Cobb. “You guys don’t know what your witnesses are going to say.”
Burck knew that he knew more than Cobb. He had counseled McGahn through the Mueller firing attempt just weeks before advising Priebus
through Trump’s attempt to oust Sessions.
Burck and McGahn continued to confer about the White House’s decision. Their inescapable conclusion was that Trump and his lawyers were setting up McGahn to take the fall. If Trump ever got accused of obstruction of justice, he would say that he was just listening to his lawyer.
“Nobody in their right mind would say, here’s my lawyer, he’s been involved in all of the serious and controversial matters, I’m going to send him in to talk to federal investigators, I don’t want to know what he has to say, I don’t care what he has to say, and he can answer any question he wants,” Burck said to McGahn.
Then, in mid-September, one of my colleagues in the Washington bureau, the reporter Ken Vogel, went to lunch with a source at BLT Steak, the restaurant next to the Times’ Washington bureau. Sitting at a table on the sidewalk in front of the restaurant, Vogel and the source ordered lunch. Shortly thereafter, the source spotted Cobb sitting at the table next to them.
“Isn’t that the Trump lawyer?” the source asked.
Vogel turned his head slightly, noticing “the unmistakable visage” of Cobb, who was eating with Dowd, openly discussing some of the most sensitive issues related to the president’s decision to cooperate with the Mueller investigation. Vogel took out his phone and began typing notes.
What occurred would play an integral role in how McGahn would approach his cooperation and demonstrated an incredible lapse of judgment by Cobb and Dowd. Within earshot of all those sitting around, Cobb described one White House lawyer he was working with as “a McGahn spy,” adding that McGahn had “a couple documents locked in a safe” that Cobb wanted access to. Cobb said that one colleague had leaked to the media and tried to oust the president’s son-in-law, Kushner, who had a tense relationship with McGahn.
When Vogel published a story based on what he had overheard, it erased any doubt in McGahn’s mind that the president and his lawyers were setting him up to take the fall. McGahn settled on his own strategy of cooperation with Mueller’s prosecutors. He had to make sure that Mueller’s team learned about what was going on inside the White House from him, before they found it out from anyone else. McGahn had to show them that he had nothing to hide.
★ ★ ★
SEPTEMBER 11, 2017
ONE YEAR, SEVEN MONTHS, AND SEVEN DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
COBB’S WINDOWLESS OFFICE ON THE GROUND FLOOR OF THE WHITE HOUSE—Dowd and Cobb continued to tell the president that the faster they cooperated, the quicker it would be over.
But by late summer more signs were beginning to emerge that that was not at all the case. And in the second week of September, Cobb circulated an Excel file to other lawyers in the counsel’s office that laid out some of the first document requests from Mueller’s prosecutors. The special counsel was casting a very wide net.
“Privileged and Confidential,” the header of the document read, with “close hold do not distribute draft” on the line below.
The requests were broken into thirteen categories and had ranges of dates that the prosecutors wanted the White House to focus on for its search. Many of the categories were of little surprise. Mueller wanted essentially all the White House’s documents—including emails, memos, handwritten notes, and phone logs—related to the firings of Flynn and Comey and Russia’s election meddling. And Mueller’s team asked for what the White House had on Manafort and his deputy, Rick Gates, who were publicly reported to be under investigation.
But the Excel sheet also contained requests that shed light on two new ominous paths Mueller’s team was now heading down. Tucked at the bottom of the requests were the names of six men who had been part of Trump’s foreign policy team during the campaign. Now Mueller wanted all the documents the White House had related to them.
The second request on the Excel sheet showed how investigators were also examining Trump’s conduct. Mueller’s team wanted all documents related to how the president and his aides had responded two months earlier to the Times story about Don Jr.’s meeting during the campaign with Russians offering dirt on Clinton. As part of that response, aboard Air Force One back to Washington from the G20 meeting in Hamburg, Germany, Trump himself had dictated a misleading statement to be given to the Times. The statement said the meeting had been mainly about adoption issues between the United States and Russia—a claim that would be directly contradicted by emails released by Don Jr. just two days after our story broke. The investigators now wanted to know whether there were drafts of the statement, who was with the president on the plane when he dictated it, and whom the president and his aides had been in contact with as they put it together. Compared with the other obstruction incidents that were being examined, Trump’s role in crafting the statement created a new legal problem for the president, his lawyers calculated. There were constitutional arguments that the president had the right to fire his FBI director or end an investigation, no matter his intentions. But there was a far weaker argument that the president had a right to disseminate false information related directly to an investigation that could throw prosecutors off the scent and impede their work.
Beyond the legal arguments, the request signaled a far more significant development: The investigation had turned into a rolling, real-time creature that was sprouting new tentacles that were ensnaring the president. Along with looking at what had occurred before he was appointed, Mueller would now look at whether Trump had tried to obstruct Mueller’s own work. The Flynn and Comey matters had occurred before Mueller had been appointed, and the requests about the foreign policy team related directly to the campaign. But the president’s role in crafting a false statement had occurred a month and a half after Mueller first set up his office. Investigators had tipped their hand to the president and shown how they were closely watching what he was doing right under their noses. Based on his public actions—and what was being reported about what he did behind closed doors—the investigators were opening new lines of inquiry in real time. For any president, this would be a huge concern. But for a president who was now attacking the investigators and witnesses in public and trying to use his power to throw sand in the gears of their investigation, it was devastating. If Trump refused to curtail his behavior, he could create countless offshoots of the investigation in just a few tweets and calls to his advisers.
Despite now having written proof from Mueller that he was actively investigating the president, Dowd and Cobb refused to change course. They still wanted McGahn to go in, speak to Mueller, and tell investigators whatever they wanted to know.
★ ★ ★
FALL 2017
AIRPORT TERMINAL—This pickup was even earlier than normal. He was scheduled to arrive shortly before 4:00 a.m. That meant I had to get up at 3:00 a.m. I had gone to bed late, getting only three hours of rest. By the time I arrived at the airport, I had that weird and confused feeling of being jolted from sleep. I found him at the curb; he threw his bag in the back and hopped into the front.
“It’s early,” I said. “Where you headed?”
He gave me the address. I knew how to get there and took us in that direction. And without thinking much about it, as I tried to find the exit from the airport, I threw out something that I had been wondering about for weeks: Whatever happened to Pete Strzok?
Strzok was considered the top counterintelligence and counterespionage agent at the FBI. He had been the lead case agent on the Clinton email investigation. Comey had a soft spot for the counterintelligence agents because they thought more like him, and he found Strzok to be as competent an agent as there was in the bureau, and there was one thing about Strzok that Comey especially liked. When briefing Comey on the Clinton email investigation, Strzok did something that few agents ever did: He interrupted Comey and told him he was wrong. If Comey started saying something about the investigation and was off about a fact, even in the slightest, Strzok would say, “Sir, sir, you don�
��t have that right,” and he would explain it to him. Comey admired that and wished more people around him had the same nerve.
Strzok had a bit of a more polished background than other agents. He had graduated from Georgetown University and had been an Army intelligence officer. He knew he was smarter than most agents, and sometimes his arrogance showed. Four weeks after the Clinton email investigation ended, he became the lead case agent on the investigation into the Trump campaign’s ties to Russia. He had flown to London to interview the Australian ambassador right after the bureau learned that the Trump campaign aide George Papadopoulos had talked about how the Russians had damaging information on Clinton in the form of her emails. After the appointment of Mueller, Strzok had joined Mueller’s team. But then, abruptly in the middle of the summer, he had been moved off the Mueller investigation and assigned to human resources. To me, the move made no sense: Here was one of the most skilled agents in the bureau being removed from the most important counterintelligence investigation in FBI history. Beyond that, we knew nothing.
“I know about that,” he said. “He had problems with his text messages. He was sending anti-Trump texts. Like, they showed bias.”
I shut up and listened.
“There was a whole debate with Mueller about whether he should be removed. A lot of people didn’t think he should have,” the source said. “Frankly, I don’t think they should have moved him.”
I tried to assemble the pieces of what he was telling me. I repeated back to him what I thought he was saying: So the lead agent on the Trump-Russia investigation for Mueller sent text messages that showed he did not like Trump?
This would be a game changer. Trump would finally have what he had been grasping for publicly and privately for months: a real example of someone deep inside the investigation who might have expressed animosity toward him. Until that point, Trump’s pushback in the first several months of the Mueller investigation had been anemic. Publicly Trump’s lawyers signaled that they were fully cooperating with Mueller. This left the party faithful and the conservative media unsure of how hard to hit the special counsel’s office. Mueller and his team had been roughed up shortly after his appointment when it was disclosed that he had hired six prosecutors who had made political donations to Clinton. That narrative struggled to gain traction because there was no evidence at all that politics was influencing the conduct of the investigation.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 29
