“Additional time and information may resolve some of these issues,” he wrote. And in the final paragraph of the letter, in language that echoed his February memo, McGahn acknowledged that the president ultimately determines who should have access to the nation’s secrets and could well ignore his recommendation.
“The president may ultimately grant a security clearance to an individual regardless of a BI or his staff’s recommendation,” McGahn wrote. “Should the President of the United States wish to bypass the established process by which the adjudicate clearances or override the recommendation of the staff and direct the granting of a clearance to Mr. Kushner or Ms. Trump, he may either by executing an order in his own hand or by issuing an order to the Chief of Staff to do so.”
★ ★ ★
MAY 22, 2018
331 DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
CHIEF OF STAFF’S OFFICE, THE WEST WING—McGahn’s recommendation meant nothing to Trump. The following day he told Kelly that despite the concerns of the agencies and over McGahn’s objections, he would grant Kushner and Ivanka “Top Secret” security clearances.
Like McGahn, Kelly felt the need to take measures to protect himself.
“Memorandum for the file,” read the memo at the top.
The subject line read, “Re: Security Clearances for Jared Kushner and Ivanka Trump.” The memo was only one paragraph.
“The President of the United States has ordered that Jared Kushner and Ivanka Trump be allowed to access national security information up to the Top Secret Level,” Kelly said. “Accordingly, Jared Kushner and Ivanka Trump shall be granted Top Secret security clearances. Mr. Kushner and Ms. Trump shall be notified of their grant of Top Secret level security clearance.”
Kushner wasted no time. The following day, his lawyer, Abbe Lowell, put out the word that Kushner’s security clearance had been restored to “Top Secret.”
The spin from Kushner’s side effectively shifted the narrative in his favor. He had been vindicated by the process, went the spin. Whatever cloud from the Russia investigation that might have been hanging over him had cleared. At the Times, we fell for the spin, and under the headline “Jared Kushner Gets Security Clearance, Ending Swirl of Questions Over Delay,” we wrote a front-page story that said the decision to give Kushner the security clearance ended “a period of uncertainty that had fueled questions about whether Mr. Kushner was in peril in the special counsel investigation.” We also reported incorrectly that the president was not involved in the process and that the decision had been made by career officials.
Lowell either lied to the public about what occurred or was lied to by the White House about what had actually happened, because his public statements were entirely inaccurate.
“With respect to the news about his clearances, as we stated before, his application was properly submitted, reviewed by numerous career officials and underwent the normal process,” Lowell said. “Having completed all of these processes, he’s looking forward to continuing to do the work the president has asked him to do.”
That afternoon on CNN, Lowell compounded the lie, saying, “There was nobody in the political process that had anything to do with it, there was nobody who pressured it, it was just done the normal, regular way.”
★ ★ ★
MAY 30, 2018
323 DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
OVAL OFFICE—By May, McGahn had turned into the Mueller team’s personal Forrest Gump: the guy with the front-row seat to all the awful history of the Trump administration he had never wanted to witness.
More disturbing to McGahn was that he’d been put in the position of being asked by prosecutors for real-time reporting about Trump’s conduct. It made for a harrowing existence, and to make matters worse, Trump steamrolled McGahn and Kelly for trying to heed the intelligence community’s warnings about keeping Kushner and Ivanka away from the country’s most guarded secrets.
McGahn cared less about the turf battle with the president than about the nagging feeling that intelligence and law enforcement officials, who had probably seen everything in their careers, were so concerned about the president’s daughter and son-in-law that they did not believe they should have top security clearances.
McGahn kept some sort of equilibrium by focusing on the transformational impact he was having on the courts. Between the kinds of judges he was putting forward for appointment, the long careers they would have, and the possibility that Justice Kennedy would soon retire and leave Trump with another Supreme Court vacancy, McGahn felt if he could survive Trump’s West Wing without getting ensnared in any legal trouble or career-ending scandal, the opportunity to shape the Court for a generation would have been worth it.
But Trump found new ways to test McGahn’s patience again and again.
With a month to go before the end of the Supreme Court term and Kennedy’s retirement decision, a rumor began to circulate around the West Wing that Trump would not be the only reality star and social media sensation in the White House on Wednesday, May 30. None other than Kim Kardashian was scheduled to meet in the Oval Office that day with Trump about one of the president’s most sacred and absolute powers: pardons.
What could go wrong? McGahn wondered.
And sure enough, shortly after 4:30 p.m., Kardashian walked into the Oval Office to meet with Trump, Kushner, Ivanka, and other aides. McGahn attended with a mix of dread and despair.
Kardashian had supported Clinton during the campaign. But she had insinuated her way into the West Wing by reaching out directly to Ivanka, who thought that a meeting with Kushner to discuss criminal justice reform was in order. Kardashian had gone back and forth with the White House for months about the meeting but then settled on May 30, because it was the birthday of an incarcerated woman whom she wanted the White House to pardon. Before coming to the White House that day, Kardashian tweeted about the woman, Alice Marie Johnson, a grandmother who had already served twenty-two years of a life sentence for nonviolent cocaine-trafficking charges and had had her clemency request turned down by the Obama administration.
“Happy Birthday Alice Marie Johnson. Today is for you,” Kardashian tweeted.
Most issues advocates would have a hard time getting a few minutes with a member of their state legislature. But Kardashian was beginning her lobbying career in the Oval Office. One of the things that had irritated Trump the most in his presidency was his lack of support among celebrities, and in particular the notable absence of famous entertainers at his inauguration. He was, after all, one of them. Now a celebrity supernova was sitting across from him in the sanctum sanctorum of the American government, and McGahn watched the bizarre tableau in utter disbelief. Kardashian expertly appealed to Trump’s ego, posing for pictures with him as she lobbied for Johnson’s pardon.
There are careful processes in place for everything that a president can do. Or there were, anyway, before the presidency of Donald Trump. And McGahn could see right in front of his eyes one of the greatest failures of his time as White House counsel. Despite his best attempts, he had failed to prevent the pardon process from becoming potentially corrupted by Trump’s indifference to the rule of law and norms and by the whims of his children.
Since the first several months of the administration, McGahn had tried to instill some structure in the West Wing to ensure the integrity of the pardon process. Pardons were supposed to provide the executive branch with a powerful tool to right the wrongs of the legal system and show mercy on convicts who had paid too high a price. But early on, Trump demonstrated that he viewed pardons as similar to White House memorabilia: gifts to be handed out to allies, supporters, and celebrities.
The power to pardon is among the most unambiguous powers a president has. Unlike making laws, which requires Congress, or stripping away regulations, which requires consulting with federal agencies, when it comes to gra
nting pardons and clemencies, whatever a president says goes. No one can stop him. McGahn understood that the power was so great, and the potential blowback so substantial, and Trump’s impulsivity so uncontrollable, that such power in Trump’s hands was another problem waiting to happen. President Clinton’s pardon of Marc Rich in the final hours of his administration had led to a criminal investigation into whether the pardon was sought unlawfully. When President George W. Bush commuted the thirty-month sentence of Dick Cheney’s former chief of staff, Scooter Libby, in 2007, Democrats accused the president of doing a political favor for a former aide. If Trump was going to use this power, McGahn had wanted there to be a process to at least give it the veneer of being done in a thorough and thoughtful manner.
But in the first few months of the administration, in the spring of 2017, Trump had started talking about his desire to use his pardon power to help the Arizona sheriff Joe Arpaio. Instead of being wronged by the system, Arpaio, the evidence clearly showed, had sought to use the system to wrong others; he was preparing to go on trial for his refusal to stop detaining people simply based on the suspicion that they were illegal immigrants. McGahn, Sessions, Porter, and others shot down the idea, saying that it would be inappropriate for the president to intercede in an investigation and that he should allow the case to go to trial.
The staff advice initially appeared to deter Trump.
On April 21 of that year, McGahn had sent a memo to all White House staffers about how pardons should be handled. The memo had a blunt message: No White House officials, other than those lawyers in the counsel’s office specifically designated to deal with pardons, should be involved in the process.
That meant no one—including Trump’s children—should be out in the world talking to anyone about pardons without first involving McGahn.
McGahn’s directive reminded White House officials that there was a long-standing, systematic process in place between the White House counsel’s office and the pardon attorneys at the Justice Department for handling these requests.
“This process involves extensive fact gathering and research before any application is presented for the president’s consideration,” it read.
By this time in Trump’s presidency, it was clear that a handful of Fox News hosts and a circle of Trump allies outside the government had an outsized influence on Trump’s decision making. McGahn was trying to avoid a situation in which every trip to Mar-a-Lago, Christmas party, fundraiser, or Fox News segment turned into an opportunity to lobby the president and his advisers on pardons.
“At times it may be unclear if a request is simply asking for a meeting to discuss an ongoing issue, past sentence or a more formal request for clemency,” the memo continued. “You should err on the side of caution and consult the White House Counsel before taking any action.”
Four months after McGahn sent his memo to all White House staff, Trump made clear what he thought of McGahn’s warnings. At 9:00 p.m. on a Friday in August, with a category 4 hurricane steaming into the Gulf of Mexico, Trump pardoned Arpaio.
Rod Rosenstein was particularly agitated by the way the Arpaio pardon had gone through. He reached out to McGahn to tell him that the White House needed to get a handle on the pardon process. The deputy attorney general complained to McGahn that all sorts of people from the White House were calling over to the Justice Department to ask about pardons. Rosenstein feared that Trump could use his power corruptly and urged McGahn to nudge Trump toward a more normal process. In response, McGahn had said that from then on only he and his top deputy, Uttam Dhillon, would be in communication with the Justice Department about pardons.
Despite the misgivings of the deputy attorney general and McGahn’s memo urging a more official and defensible process, the power to pardon would become one of the president’s favorite toys. In the nine months between the Arpaio pardon and the Kardashian meeting in the Oval Office, Trump granted clemency to four people—all of whom were fast-tracked by lobbying efforts from celebrities or Trump allies. Sholom Rubashkin—the former CEO of a kosher meat producer who was serving a twenty-seven-year sentence for financial fraud—received a commutation of his sentence in December 2017 after the celebrity lawyer Alan Dershowitz—who was also providing legal advice to Trump at the time about how he could direct his attorney general to investigate his rivals—made the case directly to the president. Three months later, Trump pardoned a former sailor in the Navy who pleaded guilty to mishandling classified information and had been sentenced to a year in prison. Days earlier the sailor had appeared on Fox & Friends, one of Trump’s favorite shows, to argue that his punishment was unreasonably harsh when compared with Hillary Clinton, who he said had committed a similar crime.
The following month, Trump pardoned Scooter Libby—a step further than Bush was willing to go for his own man. Libby’s case had been advocated at the White House by Victoria Toensing, a conservative lawyer and regular Fox News guest who briefly represented the president. Then, less than a week before Trump met with Kardashian, he issued a posthumous pardon for Jack Johnson, a Black boxer who had been convicted in 1913 for transporting a white woman across state lines. Johnson’s pardon was pushed by another celebrity, Sylvester Stallone, who posed for a photo with Trump as he granted the pardon.
Now, in front of McGahn, Trump, Kushner, and Ivanka were doing an end around on his process, degrading pardons even further by allowing a reality television star to lobby Trump, who had little knowledge of the law and even less interest in it. There had been no formal review process by McGahn or the Justice Department, nor an informal one, for that matter. There had been no discussion with McGahn beforehand about how the president should have such a conversation with someone lobbying him for a pardon. But now Kardashian, using her celebrity, had gained access to Trump to make her case, and she played him expertly.
Shortly after the meeting, Kardashian tweeted about Trump. “I would like to thank President Trump for his time this afternoon. It is our hope that the President will grant clemency to Ms. Alice Marie Johnson who is serving a life sentence for a first-time, non-violent drug offense,” she said.
Seven days later, Trump commuted the woman’s sentence.
McGahn would later tell others that it was after this favor for Kim Kardashian that he knew he had to leave the White House. It wasn’t that the commutation itself was indefensible. It was legal; Trump had the power to do what he did. It wasn’t that McGahn was offended by Trump’s refusal to be “politically correct.” In fact, he’d been attracted to Trump’s willingness to go against the political establishment. It was, rather, the cumulative effect of Trump’s heedless efforts to remove Sessions and Mueller, combined now with Ivanka and Jared stomping all over the process he had tried to put in place to preserve the sanctity of presidential pardons. He could no longer ignore the possibility that there was more behind the president’s repeated overreach into the Justice Department and his flagrant disregard for concerns among the intelligence community over Jared and Ivanka’s clearances. But there was only a month left until he would know whether Kennedy would step down. He had suffered enough to get to this point. There was no reason to quit just yet.
And then, at the end of June, a longtime clerk for Kennedy called McGahn to tell him that the justice planned to retire. McGahn arranged for Kennedy to quietly come to the White House to tell Trump the news in person. Kennedy, Trump, and McGahn met in the Oval Office. In the week and a half that followed, Trump went back and forth on whom he might want to nominate as he seriously considered three conservative appeals court judges: Brett Kavanaugh of the D.C. Circuit Court of Appeals; Amy Coney Barrett of the Seventh Circuit Court of Appeals; and Raymond Kethledge of the Sixth Circuit Court of Appeals. Trump expressed skepticism about Kavanaugh’s ties to the George W. Bush administration, where he served as the staff secretary. But McGahn convinced Trump of his bona fides by playing up the fact that he went to Yale both as an undergraduate a
nd for law school. That did it, and on July 9, Trump nominated Kavanaugh.
★ ★ ★
JULY 31, 2018
261 DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
FLOOD’S WINDOWLESS OFFICE IN THE BASEMENT OF THE WEST WING—By the middle of the summer, Quarles and Goldstein had asked Flood to interview Chief of Staff John Kelly and Press Secretary Sarah Sanders. The topics the investigators wanted to talk to Sanders about seemed minor, but Flood, in a departure from Cobb’s all-access approach, imposed a time limit on how long they could talk to her. Allowing Kelly to speak was far more problematic. Flood considered Kelly perhaps the second most important official in the West Wing—someone who spent a lot of time with Trump. Flood had some inkling that McGahn had spent countless hours with Mueller’s team, and he wanted to do everything possible to ensure the same thing didn’t happen with Kelly. By now, Trump’s relationship with Kelly had begun to sour. Who knew what Kelly had stopped Trump from doing? Making it all the more troubling for Flood, Kelly insisted that he didn’t need a lawyer. He wanted to just go in and tell the truth. Flood calculated that he couldn’t stop Kelly and that the White House needed to make an effort to allow the interview to hopefully bring the investigation to an end. So Flood reached a deal with Mueller’s team that he would come in with Kelly and they could interview him about a narrow set of topics. An open-ended McGahn-style questioning was completely off the table.
“You can have him for two hours,” Flood told Mueller’s team.
On August 2, Kelly and Flood met with investigators. The interview focused on Trump’s efforts earlier in the year to pressure McGahn to release a statement saying that the president had not asked to fire Mueller. Kelly’s testimony bolstered McGahn’s account.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 37
