McGahn’s office completed the memos by the end of April, and McGahn had them delivered to the president. There is no evidence that Trump ever read them.
* * *
—
In spite of McGahn’s wariness about providing the special counsel’s office with information about what Trump had said about ousting McCabe, Mueller’s prosecutors pressed on, undeterred. By the end of April, the prosecutors had contacted Burck with another request. They wanted to know whether Trump had followed through on what he was saying publicly about Comey. Mueller’s team told Burck, We see the tweets about how Comey should be in jail, and they asked, Is he saying anything about that privately? Is he explaining that to Don?
Burck knew the answer. McGahn had told him about Trump’s desire to prosecute Clinton and Comey. Now Mueller’s team had hit on an unfolding incident that he knew something about. The White House had told McGahn to cooperate with the special counsel’s investigation. Being interviewed is one thing, but this type of ongoing back-and-forth was different from Cobb’s original green light on cooperation. Although Burck and McGahn had found Cobb’s decision to be strange, they now understood that McGahn was required to answer any questions Mueller put to him about past events. However, when it came to delivering documents in real time and divulging ongoing discussions, neither of them felt that Cobb’s directive applied. Neither the president nor his lawyers could know whether something of questionable legality would be discussed in the future, including on the obstruction question, so it is unlikely that Cobb’s directive had been meant to commit McGahn to open-ended future cooperation with prosecutors.
But Burck could not lie to the prosecutors. Both he and McGahn could get into trouble for that. So he answered the question.
“He’s talked to Don about wanting to prosecute Hillary and Comey, and Don wrote him a memo about it,” Burck told the prosecutors.
All of this obviously interested Quarles and Goldstein, who were determined to show that the president had obstructed justice. Having the White House counsel’s office documenting the president’s conduct—in writing—could be extraordinarily damning evidence of just how reckless Trump’s behavior had gotten. But Quarles and Goldstein also clearly knew they were on treacherous ground asking the president’s lawyer to hand over a document that clearly belonged to the White House.
If we ask for it, will you consider providing it to us? they asked.
“Let me think about it,” Burck said.
Clearly, Burck, McGahn, Quarles, and Goldstein were heading into a new type of cooperation, with one side asking real-time questions and the other secretly providing responses.
Burck and McGahn’s understanding of the White House’s decision to allow them to cooperate was that they could go in and talk about events that had happened in the past. There was a question about whether McGahn’s meeting with prosecutors after Trump’s witness-tampering attempt violated that. For McGahn, there was a potential ethical problem, too: On the one hand he was a lawyer providing advice to a client, and on the other he would be contemporaneously providing information to prosecutors about what his client was saying to him as he sought that legal advice.
Of course, it was Trump’s own behavior that had created this dilemma. But still, how could McGahn secretly cooperate against Trump while being his lawyer?
“This is getting a little uncomfortable, with no one representing the White House’s interests,” Burck told McGahn in a phone call.
McGahn was in a vise. Did he have an ethical obligation to tell the administration that there was no lawyer protecting Trump or the office of the presidency? Somehow, Burck and McGahn needed to ensure that the interests of the presidency were being protected without alienating Mueller or tipping off Trump that Mueller’s office was working so hard to get him that they were trying to turn McGahn into a cooperating witness.
Burck and McGahn had several options.
The first option was to deny the request from Mueller’s team and let them know that they would be unable to provide any real-time documentation or cooperation. Taking that path could immediately backfire. Turning down any request could easily lead Quarles and Goldstein to believe that McGahn was holding back other important information. Faced with an uncooperative McGahn, the prosecutors could subpoena him and spark a legal firestorm that could plague the remainder of McGahn’s time in the White House. And regardless of the response from Mueller’s side, Burck and McGahn did not like any option that would appear adversarial to the investigation, because they understood that there would be a very public report produced at the conclusion of the process. If Mueller’s team included one or two negative facts about McGahn and how he helped Trump obstruct justice, it could significantly damage McGahn’s reputation or even put him in legal jeopardy.
The second option would be to simply notify the White House of the request and hope that Cobb would put a stop to the line of inquiry. But that option also came with complications. If Mueller’s team found out that Burck and McGahn were going back to the White House and discussing their responses with the lawyers defending the president, it could appear to prosecutors that the White House lawyers were all just getting their stories straight and that McGahn’s cooperation was not entirely genuine. Alerting the White House could also introduce legal questions of witness tampering because McGahn might end up communicating his understanding of events to Trump—a potential witness—allowing Trump to tailor what he would end up saying if questioned by investigators.
A third option was to simply comply with the request and hand over the memos McGahn had written for Trump to Mueller’s team. The White House was supposed to determine what did—and did not—get handed over to Mueller. Burck and McGahn could make that decision on their own, but if they were caught, Cobb would likely tell Trump, who might fire McGahn.
Mueller’s team had circumvented the White House like this before. Dowd had claimed in a January 2018 letter to Mueller that investigators did not need to question the president, because the White House had handed over McGahn’s “extensive internal file memo.” But that was not the whole story. The White House had only given the special counsel’s office some of his chief of staff’s notes.
Knowing they lacked the full trove, Quarles had turned to Burck for help.
“Is there any chance we can get the whole thing?” Quarles asked Burck.
Quarles declined to say why they wanted all of Annie Donaldson’s notes.
Burck checked with Donaldson and McGahn to see if they would object to handing them over. They said that they would not object. For Burck, Cobb and Dowd had given him the green light to cooperate. Burck even had emails from Cobb to back that up.
The legal pads were brought over to the special counsel’s office, where they were copied and then returned to Burck.
The fourth option was to pack up and leave the White House, which McGahn was actively considering.
Burck still believed resignation might be the best option. A lawyer always wants his client as far away as possible from someone who might break the law. Burck thought Mueller could be done with his report within weeks or months. McGahn had to be gone by then. So why not just go now? But McGahn knew that he was getting closer to the beginning of July, when Justice Anthony Kennedy would decide whether to retire and open up a seat on the Supreme Court.
The reports coming into spring 2018 reflected that Kennedy seemed invigorated, savoring the moment. He appeared more outspoken than was typical, like someone trying to cement his legacy of conservatism. He voted more with the conservative majority than at any point in the past nine years.
He’s writing for history, McGahn thought.
Surely this was his last term. McGahn decided that he could withstand the bizarreness of the White House until July 4. That meant he would be there through the end of the Court’s term in late June, when justices typically retire. McGahn sensed that Kenn
edy was concerned about who might succeed him on the Court. If McGahn remained, it would show Kennedy that he could indeed retire and allow McGahn to shepherd an appropriate replacement through the thicket of confirmation.
Burck and McGahn realized that if Mueller’s team continued to lean on them for cooperation, McGahn would likely have to quit. But McGahn wanted to remain in the White House to see what Kennedy would do. So Burck and McGahn concluded that their best option was to try to oust Cobb and replace him with someone with deep experience who would take a more adversarial approach to defending the president in an investigation. The legal team was already in turmoil; Dowd had quit in March in part because he had realized Trump “was a fucking liar,” as he told others. Burck and McGahn had one person in mind: a lawyer named Emmet Flood, whom Burck had worked closely with during the George W. Bush administration. A year earlier, Flood had flirted with taking the job but turned it down amid concerns that Trump’s personal lawyers—not he—would lead the legal team. Now, not only would McGahn have to persuade Trump to hire Flood, but Burck would have to persuade him to take the job. McGahn began circulating Flood’s name in the West Wing. Burck called Flood, telling him that Trump needed a lawyer inside the White House. Trump’s legal team was being rebuilt, Burck said, allowing Flood to be in charge and call the shots.
“Ty looks like he’s on his way out, the president looks like he is ready to get rid of him, and Dowd is gone,” Burck told Flood.
Burck didn’t care if Trump’s legal defense was strong or not. He had no allegiance to the president.
“I’m a lawyer for a witness; I’ve got to protect his interest only,” Burck said. “I can’t be looking out—nor should I be looking out—for the interests of the White House.”
Regarding the president, Burck added, “I don’t give a shit about Trump.”
What Burck did care about was the prosecutors’ continued requests for information from McGahn—a fact that Burck held back from Flood. But Burck had worked so closely with Flood, and trusted him so much, that he was confident that if Flood took over Cobb’s role, it would put an end to the free-flowing cooperation and the real-time requests for information.
Trump was initially skeptical of Flood because he had been part of the legal team that defended Bill Clinton during his impeachment proceedings in the late 1990s. But aides made the case to Trump that Flood was the right lawyer for the new and more adversarial relationship to the special counsel’s office. Trump had grown exasperated with the pace of the investigation, particularly after being sold on the notion, by Dowd and Cobb, that if he cooperated, it could be wrapped up in a matter of weeks. Now, nearly a year later, it appeared to be mushrooming instead, especially after the FBI had raided the offices of Trump’s personal lawyer Michael Cohen.
Trump’s new posture had been based on a careful calculation by his side. The Justice Department had informed the White House that Mueller would be bound by the department’s guidelines, which said a sitting president could not be indicted. Essentially, Trump and his aides thought the president had no criminal exposure and only faced a threat from impeachment. And to them, impeachment, which would be determined by the House of Representatives, was a political problem, not a legal one. To defend himself, Trump needed to do everything he could to undermine Mueller’s credibility with the public and ensure that Mueller received as little information as possible that he could use in the report to taint Trump. To execute that strategy, Trump believed he needed both an outside public relations attack dog and a behind-the-scenes litigator to jam up Mueller. The attack dog would go on cable television, speak to newspaper reporters, and more vigorously defend him regardless of the truth. This would satisfy Trump, who had long told aides that he thought he was the only person out there defending himself and he wanted someone else to go on the offensive with him.
To play the public attack dog role, Trump hired the former New York City mayor Rudy Giuliani. To do the real legal work, he met and spoke with a range of lawyers, including William Barr, who served as attorney general under George H. W. Bush and went on to become the general counsel of Verizon. Barr, who had made millions of dollars in the private sector, came close to accepting the job but decided against it, telling others he did not believe it was the right time. Ultimately, Trump settled on Flood to work inside the White House.
While the hiring of Giuliani got the most headlines—especially because the former mayor made a string of outlandish claims about the investigators—Mueller’s team saw the addition of Flood as the real game changer. Flood came from Williams & Connolly, the Washington law firm that had a reputation for being one of the most aggressive litigators in town, with a long history of creating massive headaches for the Justice Department. But Flood was potentially more than an aggressive defense attorney. He came with particularly strong views of how special counsel investigations were unfair endeavors that needlessly wrecked presidencies. Through his experiences representing Clinton and working in the George W. Bush White House, he had become convinced that these types of investigations—with their unlimited money and time—were set up to ultimately come to only one conclusion: that the person under investigation broke the law. With these views came a hardened perspective: Trump, like other presidents, had to take a more confrontational approach to the investigators and do everything possible to avoid an interview. Putting aside Trump’s problematic relationship with the truth, in Flood’s eyes an interview came with massive risk for any president under investigation and turned the prosecutors into the judge, jury, and executioner of the presidency. By sitting with prosecutors, a president would be giving them a whole new set of evidence that they could pick over, identify any misstatement or omission, and then make the case the president committed perjury. But Flood faced a challenge on this issue. He was walking into a White House where the president wanted to sit for an interview because, as Trump told his aides repeatedly, he believed he could explain to Mueller that he did nothing wrong and his aides and previous lawyers had indulged that thought.
On the day the White House announced that it had hired Flood, it also said Cobb was leaving. In a sign of how differently Flood viewed the world than Cobb, that day Cobb was interviewed on a podcast to discuss his time at the White House. During the podcast, he suggested that Trump’s remaining lawyers would likely allow Trump to be interviewed.
“I can’t really say how likely it was at any given time, but it’s certainly not off the table and people are working hard to make decisions and work toward an interview,” Cobb said. “And assuming that can be concluded favorably, there’ll be an interview.”
Later that same night, Giuliani discussed the same topic on Hannity. He said that Trump himself was pushing to sit down with Mueller.
“If they’re objective, we can work something out,” Giuliani told Hannity.
For Flood the entire approach had to change. Instead of negotiating with Mueller’s team about what the interview would look like, the discussion had to be about whether Mueller could go to court and legally compel Trump to answer questions.
But Flood had a more immediate issue: stopping the free flow of information to Mueller. Flood wanted to establish new boundaries between the White House and Mueller’s team and tell them in no uncertain terms that he was slamming closed the open door to the West Wing. About two weeks after he started at the White House, an unmarked government car brought Flood over to Mueller’s office, and he entered through a back entrance. In a windowless conference room, Flood laid out, in blunt but civil terms, how he viewed the investigation. A new sheriff had arrived in town, and the days of unfettered cooperation under Cobb were coming to an end. Flood told Mueller’s team his beliefs about their investigation: It was designed to take down Trump, and it had started based on an illegal leak of information by Comey.
“I’m going to conduct myself according to those perspectives,” Flood told the investigators.
He sa
id that going forward, prosecutors would need to prove to him why they wanted certain documents and interviews from the White House.
Mueller, who attended the meeting, and the other prosecutors said little in response. In the weeks that followed, members of Mueller’s team complained to friends about Flood’s new approach. One of the prosecutors asked a friend whether Flood’s old law firm, Williams & Connolly, had thrown a party when Flood left because he was such a pain in the ass.
★ ★ ★
MAY 21, 2018
332 DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
MCGAHN’S OFFICE ON THE SECOND FLOOR OF THE WEST WING—By May, Kushner’s background check had been completed, and McGahn and Kelly had to make a determination about whether to grant him a security clearance and at what level.
As he had done in February, McGahn wanted to create a record of how he handled the matter, and so he wrote another memo to Kelly.
The subject line read, “Re: Security clearances for Jared Kushner and Ivanka Trump.”
“Background investigations, BIs, for both Mr. Kushner and Ms. Trump are both complete,” McGahn wrote. “Individuals in the personnel security office were divided on opinion on whether to recommend granting a TS clearance at this time based on the unclassified information in the BI.
“The Central Intelligence Agency does not recommend granting the SCI clearance at this time,” McGahn wrote, using the acronym for the most sensitive compartmented information.
“Given this situation as well as additional classified and sensitive information available to the White House counsel that it is not within the BIs [background investigations] review of the personal security officers or Central Intelligence Agency, the White House counsel does not recommend granting any adjudicated clearance at this time,” McGahn wrote.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 36
