“I don’t know what’s going to happen, but there’s a real possibility that he’s not going to survive the next couple of weeks and I thought you should know,” Burck told the prosecutors. “The president was very unhappy with Don for that article; he believes Don is the leaker, and Don may get fired sometime soon.”
Burck also raised another possibility.
“He may also resign, because it’s intolerable,” he said.
Mueller’s team thanked Burck and asked that he alert them as soon as he knew anything about McGahn’s being fired or quitting.
Dowd found out that Trump wanted to meet with McGahn the following morning. Nothing good could come out of such a meeting. Dowd knew he had no control over his client or what he might do. So he went with the second option: calling Burck. If Dowd couldn’t control Trump, maybe he could try to control how those around him reacted. Dowd told Burck that whatever happens in that meeting, McGahn could not resign. To Burck, it looked as if McGahn were one day away from finally being fired.
★ ★ ★
FEBRUARY 6, 2018
ONE YEAR, TWO MONTHS, AND TWELVE DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
OVAL OFFICE—Don McGahn and John Kelly, who’d replaced Priebus as chief of staff in July, went into the Oval Office to meet with Trump that morning. Before the meeting, McGahn told Kelly he was not going to correct the story.
The relationship between McGahn and Trump had deteriorated to such a degree by that point that it was unusual for him to be in the Oval Office. The president started the conversation by going directly to the nut of his concern: The Times story looked bad for the president.
“I don’t remember this,” Trump told him.
“It is what happened,” McGahn said.
“I never said to fire Mueller,” Trump said. “I never said ‘fire.’ This story doesn’t look good. You need to correct this. You’re the White House counsel.”
McGahn held his ground, telling Trump that the story was accurate, other than the impression it gave that he told him directly he wanted to resign.
“Did I say the word ‘fire’?” Trump said.
“What you said is, ‘Call Rod, tell Rod that Mueller has conflicts and can’t be the special counsel,’ ” McGahn said.
“I never said that,” Trump said.
The president said that all he wanted McGahn to do was call Rosenstein to tell him that Mueller had conflicts and that Rosenstein should figure out what to do with Mueller.
No, McGahn answered, that’s not what happened. Indeed, he said, the president had told him to get rid of Mueller. “Call Rod,” he recounted the president telling him. “There are conflicts. Mueller has to go.”
“To me,” McGahn said, “that means you want me to fire him or tell Rod to fire him; there’s no other interpretation that makes sense to me.”
Trump seemed unmoved and asked McGahn if he would “do a correction.”
“No,” McGahn said. “There is nothing to correct; it will just bring more attention to it.”
McGahn tried to rationalize to Trump why it made no sense for him to leak the story or have it out there.
“Why would I stay if I leaked this?” McGahn said. “I’m not an idiot; I know you’re going to lose your mind. Why am I going to leak this story while I’m in the White House counsel’s office? How does that help me?”
Trump’s reaction had proved McGahn’s point.
McGahn had become convinced Cobb had leaked it, and he told that to the president.
Cobb, McGahn thought, knew about the incident and wanted McGahn out, so he leaked it so Trump would fire him and take his job.
“It’s gotta be Ty,” McGahn said.
McGahn reminded Trump that it had been Cobb who ran his mouth sitting outside BLT Steak just months earlier when he had lunch with Dowd and discussed intimate details about the investigation. “Remember he’s the guy from BLT,” McGahn said. “Of course it’s Ty. But you’ll fire me.”
Trump continued to press McGahn about what he told Mueller’s investigators, asking him why he had told them about Trump’s attempt to have Mueller removed. This infuriated McGahn. Trump had been the one who decided he should cooperate with Mueller; now he blamed him for doing exactly what he said?
McGahn explained to the president that Trump—after being convinced by Dowd and Cobb—had decided to allow McGahn to cooperate fully with Mueller and that there was no attorney-client privilege on their conversations that could shield them from prosecutors.
“What are these notes?” Trump asked McGahn, referring to Donaldson’s notes that had been given to Mueller. “Why do you take notes? Lawyers don’t take notes. I never had a lawyer who took notes.”
This infuriated McGahn, too. McGahn remembered how Trump often told him to write things down. Many times in response to such a request, McGahn would scribble on a legal pad, “President told us to write this down.” It had been the president’s lawyers, Dowd and Cobb, who decided to hand over the notes. Now Trump was blaming him for that? Anyway, McGahn thought, the notes helped Trump more than they hurt him because they showed how McGahn never went too far in going along with what Trump wanted.
McGahn said to Trump that he, like all real lawyers, kept notes in order to have a record of what occurred.
“I’ve had a lot of great lawyers, like Roy Cohn,” Trump replied. “He did not take notes.”
The meeting ended. McGahn still had his job. His statements to Mueller were intact. And Trump had increased his legal exposure by potentially tampering with Mueller’s star witness.
Dowd then called Burck, saying that Trump was “fine” with McGahn.
* * *
—
Trump’s behavior as president was so bizarre, and everyone around him had become so conditioned to it, that Burck and McGahn had adopted a new and demented sense of what they considered a positive outcome. To them, for a Trump meeting, it had gone better than they had thought it would. Trump had not fired McGahn. McGahn had not quit, nor had he done anything to undermine his own account to Mueller. And while the two men yelled at each other, it was far from the nastiest fight they had ever gotten into.
Burck called Mueller’s team to update them on what occurred.
“Apparently, everything is fine,” Burck said. “He went into the Oval and had a discussion, and everything seems to be fine now. He’s not getting fired. He’s not quitting.”
Mueller’s team thanked Burck for the update. In the days that followed, Mueller’s office scheduled another interview with McGahn.
The back-and-forth between Trump and McGahn and the fact that Mueller’s team received an almost-real-time readout of it marked a significant development for the special counsel’s office. An investigation that had started by concentrating on the Comey firing had now become one that would look at witness tampering. Such an act added a powerful new layer to Mueller’s case. Nearly all the episodes they had investigated directly involved powers that Trump had as the head of the executive branch—ending an investigation, firing the FBI director, and even pardoning witnesses. But the president had no right to influence a witness’s testimony. Nixon and Clinton got themselves into trouble for just this type of behavior. When the House impeached President Clinton in December 1998, one of the two approved charges focused on the actions Clinton took to alter the accounts of key witnesses in an investigation into his conduct. In July 1974, the House Judiciary Committee approved an article of impeachment accusing President Richard Nixon of “approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States.”
On top of that, Mueller’s office was now receiving contemporaneous information about Trump’s obstructive acts. Mueller’s team wondered, If Trump was doing this wi
th McGahn—someone whom he had encouraged to cooperate—what else was the president doing to interfere with the investigation?
Trump continued to complain to aides about McGahn and his refusal to correct the story on the attempt to fire Mueller. But the president largely left McGahn alone, and McGahn avoided Trump, which was a nice respite for McGahn.
Burck told McGahn that he needed to start putting the pieces in place to resign. McGahn, Burck argued, needed to be out of the White House by the time the report came out, because Trump was not going to like what he saw in it. But McGahn had mixed feelings about leaving. Yes, he was sick of Trump and all the chaos—and while he had a high threshold for pain, he could only take so much.
But he had concerns about what Trump would do without him there. Who knew who would follow him as White House counsel? Was it really outside the realm of possibility that Trump could hire someone akin to Michael Cohen to succeed him? No, it was not. Who would be there to say no, to protect Trump from himself and the country from Trump? McGahn trusted Kelly and thought he would serve as a firewall, but he did not want to leave him to do it alone.
On a deeper level, though, McGahn knew that his chief mission in the White House—stacking the courts—had not been completed. And as someone who closely watched the Supreme Court, McGahn knew there could be a huge reason to stay: another open Supreme Court seat. Justice Anthony M. Kennedy had served on the court for thirty years. McGahn had built a close relationship with him during his time in the White House, with Kennedy often weighing in on possible nominations for judgeships in lower courts. Kennedy had said nothing to McGahn about leaving, but McGahn’s sense was that his time was near.
So the possibility of Kennedy’s open seat gave him a reason to stay. But in the meantime, another intractable problem involving the president and his children was headed directly for his desk.
VII
NORMS OF PRESIDENTIAL CONDUCT 101
FEBRUARY 16, 2018
ONE YEAR, TWO MONTHS, AND TWO DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
MCGAHN’S OFFICE ON THE SECOND FLOOR OF THE WEST WING—Dating back to the transition, the intelligence community, the FBI, and senior members of the Obama administration knew of evidence that foreign countries wanted to gain access and leverage over the incoming administration by exploiting Trump’s adult children.
Trump had made a show of ceding control of his real estate business—which had properties all over the world—to his sons after the election to demonstrate that he would try to keep the operation of his businesses separate from governing the country. Before he was inaugurated, though, intercepted communications by the intelligence community revealed evidence of foreign officials from more than one country discussing how they wanted to do business deals with the kids in order to gain closer access to the administration. A wiretap picked up the United Arab Emirates’ ambassador to the United States, Yousef Otaiba, discussing how he wanted to help Jared and Ivanka find a home in Washington, where they planned to move from New York before the president took office. Perhaps it was just a friendly gesture. Or perhaps it was a way to burrow in closer to the Trump children. It was difficult to say, because in the modern era there had not been a president who remained vested in any business interests while in the White House.
Counterintelligence officials had concerns about the attempts by foreign countries to buy influence with Trump’s children, but they only went so far. Sure, these countries could seek to exploit the children to gain access to Trump. That was bad. But foreign countries routinely had their officials and spies cozy up to the family members of elected leaders. Next on the ladder of concerns for American counterintelligence officials is ensuring that potentially vulnerable or compromised people are restricted from having access to classified information. The good news was that none of the children were going to be able to know the country’s most sensitive secrets. The president’s sons Don Jr. and Eric were going to remain out of government to run the family business. And while Trump’s son-in-law, Jared Kushner, and daughter Ivanka planned to join the administration, they had said that reports during the transition that they would seek security clearances when they joined the White House staff were false.
But as the inauguration drew near, Kushner and Ivanka quietly began completing the background forms and extensive paperwork needed to get a top-secret-level clearance. Improbably, given his paucity of experience in the area of foreign policy or international relations, Kushner planned to take the lead on negotiating Middle East peace; of course, having a security clearance would be essential to that role. From the start, there were problems. In a section of his application in which he was required to disclose all of his foreign contacts, Kushner failed to list multiple meetings with Russians during the campaign and transition. The omission suggested that he may have broken the federal law that says those filling out the forms must be forthcoming and truthful.
“I have never seen that level of mistakes,” said Charles Phalen, the top Trump administration official dealing with background checks for security clearances.
To fix the paperwork issue, which was becoming a public relations problem that Kushner had his press aides spend an inordinate amount of time spinning, Kushner hired a high-profile former Justice Department official. After at least four revisions to Kushner’s background check document—in which more than a hundred names were added to his list of contacts with foreigners—the issue largely receded from the headlines, and Kushner was issued a temporary clearance, pending his background check, which entailed a proper vetting by the FBI.
A year into Trump’s presidency, Kushner still hadn’t received a clearance, and this remained a source of real concern among senior White House staff. Then, in mid-February 2018, after Rob Porter was fired following spousal abuse accusations about him in the media, it was revealed that he, like Kushner, had been working since the beginning of the administration with only an interim security clearance. Porter had been the staff secretary, a position not widely known outside the White House but one of the more consequential jobs in the West Wing. As staff secretary, Porter was in charge of all the paper that is supposed to go in front of the president, including the most sensitive national security documents that were routinely sent for the president’s review and approval by the intelligence community and the Pentagon.
Some officials operate with an interim clearance at the beginning of an administration while the FBI conducts a background check, and the White House’s personnel office can then make a determination about whether they should be granted a clearance. But when an official continues to work under an interim clearance for a year, it means that something has been uncovered in the background check that has raised questions about whether the official should have access to classified information. In Porter’s case, former top national security experts from Democratic and Republican administrations were appalled, saying that no person should be able to hold such a high position without a permanent clearance. By delaying a decision about Porter’s clearance, the experts contended, the White House had effectively allowed Porter to skirt the process that had been set up to ensure that compromised people were never given access to sensitive materials.
The White House came under intense scrutiny for not adhering to the norms of previous administrations in dispensing security clearances. In response to the outcry, John Kelly and Don McGahn worked together to put into effect a new policy: White House officials who had had interim security clearances for more than six months would have their clearances downgraded or revoked. The new policy directed attention squarely on Kushner and his security clearance. As was the case with Porter, there were problems in Kushner’s background. Along with the omissions and revisions, intelligence officials had concerns about Kushner’s business dealings and personal relations with foreign leaders. At the time, Kushner’s family owed more than $1 billion for their mortgage on 666 Fifth Avenue—a boxy commercial skyscraper in midtown
Manhattan—and the Kushners were seeking funding from countries like China and Qatar. Among the concerns was that foreign leaders would seek to do personal business with Kushner to gain access to the White House.
Trump’s indifference to norms—like protecting state secrets—had created a problem that hit very close to home and was now very public. But in a balkanized West Wing, concern over adhering to some vestige of White House norms had long since split the staff down the middle.
On one side were Kelly and McGahn, who believed that, given Trump’s carelessness with several of the most important elements of the presidency, they had to act in the best interests of both the government and the country and serve as presidential guardrails. Kelly and McGahn felt as though they tolerated more petulant and self-destructive behavior from the president than anyone to have ever held the positions of White House chief of staff and White House counsel. Between policing Trump’s ignorance of presidential traditions and norms of conduct and his obsession with settling scores and fighting with the media, both men felt as if they had time for little else. They were forces for good, they believed, and they resented having to serve as the “bad cops” for the whims and ethical lapses of “the family.” Both men thought that “the kids” were caricatures of entitlement, but they knew the president had no appetite for putting any limits on their power.
On the other side were Kushner, Ivanka, and their allies, who resented any checks on their power, believing Kelly and McGahn were using this issue as a way to limit their power because they saw them as rivals. Trump liked the conflict between his children, on the one hand, and Kelly and McGahn, on the other, because it meant that they were distracted by undercutting each other and less focused on containing him. And with the president disengaged from the issue, the battle over security clearances would be a fight for survival pitting the chief of staff and the counsel against the president’s family, with Kelly and McGahn fighting for the traditional process that ensured the security of sensitive material and Kushner fighting to maintain his dominance over the senior appointees in the West Wing.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 33
