McGahn had held on to hope throughout the entire process that maybe something would transpire that would spare him from having to be the person to testify against the president. He had hid his cooperation with Mueller from everyone ranging from the president to the president’s lawyers to his fellow senior White House officials. But the incident drove home to McGahn that as much as he might hate his fate, there was only one reason Mueller’s team was coming back to him this late in the game: The investigation into the president was a serious threat to the Trump presidency, and he would be a witness against the president he’d served.
★ ★ ★
MARCH 5, 2019
FORTY-FOUR DAYS UNTIL THE RELEASE OF THE MUELLER REPORT
ATTORNEY GENERAL’S CONFERENCE ROOM—Five days after McGahn’s last interview with Mueller’s team, Mueller, William Barr, and their aides met at the Justice Department to discuss how Mueller would be concluding his twenty-two-month-long investigation.
Twenty-six years had passed since Mueller served as the head of the criminal division under Bill Barr when he was the attorney general during the administration of George H. W. Bush. At the time, both were young stars of the Justice Department. In the years that had passed, they had remained friendly. Their wives had been in a Bible study group together, and Mueller had attended the weddings of two of Barr’s daughters. Barr became a multimillionaire as the top lawyer for Verizon and Mueller the FBI’s most important director since J. Edgar Hoover.
Throughout their careers, Barr had been considered in conservative circles an intellectual heavyweight and a willing partisan political operator. Despite holding such a prominent position, Mueller had recoiled at all of Washington’s partisan debates during his twelve-year tenure at the FBI, eschewing politics and establishing complete independence from the presidents he served.
Now, as they sat across from each other again, they would each be driven by very different objectives and worldviews. Barr entered the room with a long-standing belief that special counsels were too powerful and designed to undermine the presidency. Once Trump fired Jeff Sessions in November 2018, ending his tortured run as attorney general, Barr was in line for his reappointment to run the Justice Department, having vaulted to that position, in part, by writing a nineteen-page memo—addressed to Deputy Attorney General Rod Rosenstein in June of that year—that outlined how he thought an obstruction case against Trump was preposterous. In a sign of Flood’s influence on the trajectory of the investigation, he had made the case to Trump that he should pick Barr. The new attorney general thought Trump and his campaign had been unfairly tainted by the Russia investigation, and he knew that, more than anything, Trump wanted to have the cloud of the investigation lifted and to be exonerated. Those goals became Barr’s reason for being once in office.
And now, sitting across from his old colleague, he had an even more urgent concern: to protect the president from impeachment. He would do so unabashedly, with none of the reserve in that mission that his predecessor had evinced. I learned in reporting for this book that senior Justice Department officials were deeply concerned at the time that Mueller’s report would essentially turn into an impeachment referral that could drive Trump from office. With Trump’s presidency potentially on the line, Barr faced the ultimate test of his legal and political skills. Mueller had come to the meeting with a Marine’s sensibility—focused on doing right by the honorable work of his team of prosecutors and investigators who, under near-constant and withering public attacks from the president and his allies, had indicted thirty-four individuals and secured six guilty pleas and one other conviction. For Mueller’s report to have credibility and to stand up in the hyperpartisan climate of the Trump presidency, Mueller needed to muster his decades-long reputation for fairness and rectitude.
But it would not be a fair fight. Barr was as vibrant, smart, funny, and cunning as he had ever been. But Mueller seemed to be a shell of his former self. As he spoke in the meeting, his voice trembled, his hands shook, and he seemed at times confused. To Barr, it was sad to see what had happened to Mueller. But this was not the time for sentimentality for his old colleague and friend. Barr controlled how the report would be released, giving him some ability to sculpt the narrative’s findings, influence how its conclusions would be interpreted and understood, and shape the ultimate outcome for Trump.
Mueller and his team laid out how his office had found no criminal evidence that Trump’s campaign had conspired with the Russians. But on the question of whether Trump had obstructed justice, it was a much more complicated and nuanced result. They tried to explain what his team had concluded, saying they had declined to make a decision on whether Trump had broken the law. The disclosure from Mueller angered the department officials on the other side of the table. At the most basic level, prosecutors had a duty: to make a decision about whether someone has broken the law. The entire investigation had created massive questions about Trump’s conduct and whether he had committed crimes. Mueller was supposed to bring clarity to that. But here, Mueller was saying that in the most high-profile criminal investigation in a generation his team had declined to make a determination about whether the president had committed a crime.
In some ways, this was good for Trump. With Mueller not making a determination, Barr knew that he could easily impose his will and clear Trump of wrongdoing. But at the same time, Mueller’s conclusion might leave the question unanswered in the public’s mind. Barr pushed back on Mueller and his team, trying to force them to explain their logic, saying that he did not understand their rationale. In an example of how differently the men would come to view Mueller’s decision to not make a decision, Barr asked Mueller why he continued to investigate if he knew that he was never going to charge the president.
Mueller tried to explain his reasoning but struggled to articulate it. It was hard to fault Mueller for his inability to clearly lay out the decisions his prosecutors had made about whether Trump broke the law. The decision was based principally on the Justice Department’s policy that a sitting president cannot be indicted. In a demonstration of both the paradox of criminally investigating a president and the probity of Mueller’s approach, his team reasoned that if a sitting president cannot be indicted, then it would be unfair to accuse Trump of a crime while he is in office. Without a criminal indictment, due process would be impossible, the thinking went, and so it would be impossible for Trump to clear his name until he was out of office. So instead, Mueller’s prosecutors decided to simply accumulate facts about whether Trump broke the law. Then later, after Trump left office, prosecutors could decide whether to charge him.
Mueller’s team returned to their offices to put the finishing touches on their report. At the Justice Department, officials debated what to do. They could have asked Mueller to make a decision about whether the president had any criminal liability. But if that happened, Mueller could come back with an answer that they did not want to hear. Department officials could have brought in another team of prosecutors to look at the evidence and make a decision. But that would only prolong the investigation, and that ran counter to Barr’s mission to bring the investigation to a close.
Two weeks later, at noon on Friday, March 22, an agent from Mueller’s office delivered several hard copies of the report to the Justice Department for Barr, Rosenstein, and other top officials to read. They quickly went through the report looking for new pieces of information that they had not been briefed on that might drastically change their understanding of the investigation. But as they read the report, they could see no new facts would alter the overarching conclusions: There was no provable criminal conspiracy between Trump’s campaign and Russia, and Mueller had declined to make a decision on obstruction. At 4:00 p.m. that Friday, as hail began to fall from the sky outside the Justice Department, Barr sent a letter to Congress saying that he had received the report, was reviewing it, and might be able to publicly announce Mueller’s baseline conclu
sions as soon as that weekend.
Both Barr and Rosenstein stayed in the office late Friday night to read over the report and decide what kind of determination had to be made. Each worked in his respective office and turned page after page for hours. To dig through the nearly 448-page document, Rosenstein attempted to get comfortable, taking off his shoes and relaxing in the club chair in his office.
That Sunday, Barr, not Mueller, would frame Mueller’s nearly two-year-long investigation to the world. By being the first to describe Mueller’s findings, Barr would have immense sway over what the first and most lasting impressions of Mueller’s work would be. As it would turn out, Barr’s spin of the report—and Mueller’s determination to let the report speak for itself—would establish a popular narrative of the report’s contents that was highly favorable to Trump.
Barr wrote in a letter to Congress, “As the report states: ‘[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’ ”
That was a far more generous description than what Mueller actually said in the report, because Barr parsed the language and failed to quote the entire sentence from the report, which read, “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
Barr would devote far more ink in the letter to shaping the special counsel’s conclusions on obstruction. He said that because Mueller had declined to make a decision, he had to make the decision himself. Barr said that he and Rosenstein had concluded that there was insufficient evidence to charge the president with an obstruction offense. As a dose of insurance or an attempt to assuage the Mueller team, Barr included this from the obstruction section: “While this report does not conclude that the president committed a crime, it also does not exonerate him.”
Barr downplayed the obstruction findings by depicting them as a summation of facts that the public already knew much about. In describing the potential incidents of obstruction that Mueller investigated, Barr wrote that “most” of them had been the subject of public reporting and that “many” of the incidents occurred in public.
Around 3:00 p.m. on Sunday, one of Barr’s aides called Trump’s White House lawyer, Emmet Flood, who had decamped to Mar-a-Lago with Trump. Over the phone, the aide read Flood the text of the letter that Barr planned to send to Congress. Flood and the new White House counsel, Pat Cipollone, then went into the residence at Mar-a-Lago and briefed Trump on the findings.
Trump’s lawyers were entirely satisfied with Barr’s letter. Despite Mueller’s refusal to exonerate the president on obstruction, Trump took it as the exact opposite.
“It was a complete and total exoneration,” Trump said on the tarmac of the Palm Beach International Airport shortly before boarding Air Force One at 5:00 p.m.
Instead of savoring his apparent victory, Trump said that it was time to turn the tables and go after those who had investigated him.
“It’s a shame that our country had to go through this,” he said. “To be honest, it’s a shame that your president has had to go through this for—before I even got elected, it began. And it began illegally. And hopefully somebody is going to look at the other side. This was an illegal takedown that failed. And hopefully somebody is going to be looking at the other side.”
As Air Force One approached Andrews Air Force Base in Maryland, the president stood in the cockpit for the landing. The following morning, the Israeli prime minister, Benjamin Netanyahu, visited the White House. Around noon, the media was brought into the Oval Office for a photo op with Netanyahu. The only subject of interest that day was the Mueller report.
Trump publicly gave Barr the go-ahead to release the entire report to Congress.
“Up to the attorney general, but it wouldn’t bother me at all,” Trump said.
The lawyers were jubilant. Later that afternoon, Rudy Giuliani and another of Trump’s personal lawyers, Jay Sekulow, attended a ceremony in the Oval Office to honor the Washington Capitals, who had won the 2018 Stanley Cup. Giuliani texted me a screenshot of a fake New York Times front page with the headline “WE’RE SORRY MR. PRESIDENT” and below that “We were wrong. We are Fake News. You win.”
“Cute,” I responded.
But as Trump claimed exoneration, a standoff was brewing between Mueller’s team and Barr over his characterization of the report. Barr’s letter to Congress made many members of Mueller’s team irate, and they cried out to each other that Barr had spun the report. They could not identify outright falsehoods in the letter but contended it failed to capture many of its key aspects, especially in the obstruction section.
At the center of the issue was that Barr had failed to include thirteen pages of executive summaries that Mueller’s team had written, intending them to be released to the public on announcement of the report. When they turned in the report, Mueller’s team believed that Barr would quickly release the summaries to Congress as they were submitted and then later put out the entire redacted report. But Barr decided against it. Despite Mueller’s team reminding the Justice Department of the summaries just hours before Barr sent his letter, the attorney general ultimately decided to write his own synopsis of Mueller’s conclusions. Shortly before it was sent off to Congress, the Justice Department offered to let Mueller’s team review the letter, but Mueller’s team declined.
A day after Barr sent the letter to Congress, Mueller’s office conveyed its concerns about how Barr portrayed the report and wrote a letter to the attorney general that contained the report’s introduction and summaries of the Russia and obstruction volumes that had been redacted for grand jury information so they could be released to the public.
Two days later, Mueller sent a far more harshly worded letter to Barr. The attorney general did not receive it until the following day. In a lawyerly way, it called out Barr for spinning the report and asked him to immediately release the introduction and summaries.
The letter Barr sent to Congress, Mueller said, “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”
“There is now public confusion about critical aspects of the results of our investigation,” Mueller said. “This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”
“Release at this time would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation,” the letter said.
Barr claimed to aides that he did not understand Mueller’s concerns. He insisted he had accurately summarized the core findings of the report without getting into the nitty-gritty details that would later be released. Senior Justice Department officials said they had given Mueller a chance to review Barr’s letter prior to its sending, but Mueller had declined to do so. Now Mueller looked as if he wanted to rewrite history.
Barr and senior Justice Department officials did not believe that Mueller actually wrote the letter. They thought that Mueller, in a diminished state, had been manipulated by the angry members of his team, who thought they could get away with making an impeachment referral without actually calling it one. They theorized that someone like Michael R. Dreeben—one of Mueller’s prosecutors—had written it and that the upset team members had pressured Mueller into sending the letter. Barr thought the letter was “snitty,” and was frustrated that Mueller would not just pick up the phone and call him if he had a concern.
To stop a more lengthy
paper trail from being created between Mueller and Barr, the two got on the phone for a fifteen-minute conversation with staff members listening in. Mueller told Barr he was not trying to accuse him of misleading the public, but instead he felt people did not have enough information to understand the basis of the report’s reasoning.
“What we’re principally concerned about is the fact there is not enough background on obstruction analysis,” Mueller said over the phone. “What you said in the letter was not inaccurate, but we would prefer more context and background on the obstruction analysis.”
Mueller pushed again for the summaries his team had written to be made public, as they were originally intended to be. But Barr did not like the idea at all. He thought he was clear in saying the four-page letter was just the top-line conclusions and that the reasoning and process of the investigation would be released in full when they were ready. His intention was never to provide an all-inclusive summary, he said; he just wanted to let Congress know if the president was going to be charged with a crime or not.
Barr told Mueller that releasing the summaries would add to the confusion and cause people to draw incorrect conclusions before the full details were released. He did not want a drip, drip, drip of information and believed it should all be released at once.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 40
