The afternoon of April 9, Trump chose an ill-fitting moment to reveal his sudden vulnerability: a special all-hands meeting with his Pentagon leaders to discuss how to respond to the Syrian government’s latest slaughter of innocent civilians by dousing them with chemical weapons.
Syrian leader Bashar al-Assad had gassed his own people, and the top military brass had come to the White House to meet with Trump to review his options. National Security Council officials had worked with Defense Department officials to prepare specific targets should Trump authorize a mission to take out, or at least temporarily weaken, Syria’s ability to fly chemical weapon sorties. But there was only one subject on Trump’s mind as the meeting began, and it wasn’t dead Syrian children.
“So I just heard that they broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt,” Trump said sternly as he sat hunched forward slightly over the conference table, his arms crossed at the wrists.
“It’s, frankly, a real disgrace,” Trump added. “It’s an attack on our country in a true sense. It’s an attack on what we all stand for. So when I saw this and when I heard it—I heard it like you did—I said, ‘This is really now a whole new level of unfairness.’”
The military leaders looked on stone-faced.
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The Cohen raid occurred on a day of transition in the leadership of the Justice Department. April 9 was Ed O’Callaghan’s first full day at work as the principal associate deputy attorney general. The PADAG, an under-the-radar position yet one of the department’s most powerful posts, helps the deputy attorney general run the department and shapes all major investigations and policy decisions. With Rod Rosenstein in charge of the Mueller investigation, O’Callaghan took responsibility for day-to-day interactions with the special counsel and his team.
O’Callaghan would immediately establish himself as Mueller’s internal protector and brought a sophisticated understanding of politics and the media to the job that would help Rosenstein navigate the more treacherous turns in the investigation. Officials at the Justice Department took pride in their traditional independence from the White House. Yet the Mueller investigation had become such a public spectacle, with pressure coming from the White House, Capitol Hill, and throughout the media, that Rosenstein valued O’Callaghan’s expertise in navigating choppy political waters and his sound legal judgment.
O’Callaghan was the third person to serve as PADAG under Rosenstein, and while his predecessors, Robert Hur and James Crowell, were loyal lieutenants and sound prosecutors, they lacked his political background. By contrast, O’Callaghan had worked on John McCain’s 2008 presidential campaign, helping investigate and defend the vice presidential nominee Sarah Palin’s background in Alaska, as well as try to manage the ensuing media circus. He also had worked as a prosecutor in the Justice Department’s national security division and at the U.S. Attorney’s Office in the Southern District of New York, where he first got to know Mueller, Aaron Zebley, and some other members of the special counsel’s team.
As he settled into the PADAG’s spacious office the morning of April 9, with sweeping views of the Washington Monument and the White House, O’Callaghan turned on a small television screen on his desk and saw that cable news stations were broadcasting images of the front of his building. He knew Trump would be furious about the raid and seizure of his lawyer’s private materials. But the president’s rage would be Rosenstein’s problem to manage. O’Callaghan’s job was to counsel Rosenstein, game out contingencies, and ensure all investigative measures were defensible and carried out according to Justice Department principles. Most of all, Callaghan’s responsibility was to protect the Mueller probe, keep it running on course and immune from political— or presidential—influences.
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On April 19, less than two weeks after the Cohen raid, Sekulow breathed a sigh of relief and announced what he considered a triumph. Trump had hired three new lawyers: Rudy Giuliani, a former New York City mayor who had been a legendary U.S. attorney, and Jane and Martin Raskin, two seasoned criminal defenders.
Giuliani needed no introduction. He had been “America’s mayor,” leading New York in the aftermath of the September 11 terrorist attacks and, in the 1980s, one of the country’s great prosecutors. Now seventy-three years old, Giuliani was widely seen as a faded titan and a committed partisan, after his ad hominem attacks on Hillary Clinton during the 2016 campaign.
Giuliani, who would immediately become a cable-TV fixture as Trump’s legal warrior, overshadowed the Raskins. The Raskins were not household names in the defense bar and in the coming months would garner nary a mention in the round-the-clock news coverage of the investigation. But they were content to work in the shadows. They were professionals with the street cred that comes from having worked on both sides of a criminal investigation, and their lawyering proved essential to the president’s case.
Cobb, who would end up resigning from the White House on May 1, recommended the Raskins to Trump because he had known Jane from her time prosecuting mobsters as part of an organized crime task force in Boston. The president met with the Raskins at Mar-a-Lago over the previous weekend and had decided to hire them after just one conversation. Both Raskins had worked as Justice Department prosecutors and then built a reputation for good-quality defense work, notching enough wins to open up a small private practice in South Florida. The Raskins were Republicans and had played a supporting role in George W. Bush’s legal efforts in the 2000 Florida recount, but were not overtly political, certainly by comparison with Giuliani and Sekulow.
The Raskins brought an added benefit to the Trump operation. Jane had previously worked side by side with Mueller at the U.S. Attorney’s Office in Boston and with Quarles at a law firm. And Marty knew the father of Andrew Goldstein, another Mueller deputy who had been focused on interviews of White House officials and was among those gunning to sit down with the president.
The Raskins hoped to follow two core principles. First, they did not want to change how they operated just because their client was the president. They believed they had good facts and sound law on their side to help Trump, and they would stick to that. Second, they had an old-school style and had not interacted much with reporters. They did not want to try their case in the press or rush into TV studios to defend Trump. In fact, not doing so was part of their deal with the president. This would be exclusively Giuliani and Sekulow’s territory.
When the trio of new lawyers came onto the scene to join Sekulow, they were shocked to discover they could not find comprehensive case files. The Raskins felt they were operating a bit in the dark. But two facts gave them comfort: there was not a shred of evidence linking Trump personally to any communications or coordination with any Russians, and there were major hurdles preventing Mueller from forcing the president to answer questions under oath.
One of the first tasks for Giuliani and the Raskins was to get up to speed with Mueller and his deputies. Since Trump’s lawyers canceled their April 9 meeting, there had been a chill between the two sides. A new date was set: April 24. Mueller arranged for the president’s attorneys to get the “secret entrance” treatment. An FBI agent on the case showed up at Sekulow’s office in a Capitol Hill town house in a black SUV to pick up Giuliani, the Raskins, Sekulow, and two of their associates to drive them to the special counsel’s offices in Southwest Washington, entering through a garage loading dock. As the lawyers entered a hallway, they were asked to deposit their cell phones into lockboxes on the wall and were then escorted upstairs and into a secure windowless conference room with a long table. Trump’s representatives stood for a few minutes, waiting for their hosts.
In came Mueller, followed by Quarles, Goldstein, Zebley, and Michael Dreeben. Mueller and Giuliani, who worked together in the aftermath of 9/11, shook hands and exchanged respectful hellos. But Jane Raskin, Mueller, and Quarles greeted each other lik
e the old friends they were, with Mueller kissing her on the cheek as one might do at a friend’s wedding. “It’s nice to see you, Jane,” Mueller said.
As they stood chatting for a bit and asking about each other’s families, the other attendees exchanged introductions. The special counsel’s team took their seats on one side of the table, with Mueller in the middle. The president’s team took this as their cue. They filed into chairs on the opposite side, with Giuliani in the middle, facing Mueller.
Both sides went into the meeting feeling put upon. Giuliani and the Raskins had a lot of facts to master in short order. Sekulow was still smarting from the Cohen raid, a search obviously generated by the early work of the special counsel. Mueller’s team, meanwhile, felt they had been left standing at the altar in mid-January, when Dowd unceremoniously canceled a tentative Trump interview at Camp David, and their request had been put on hold for the past three months.
Trump’s team had agreed earlier to use this meeting with Mueller to clear the air and introduce themselves as the new lawyers on the case. Then they would ask about Mueller’s continuing demand for a presidential interview.
Giuliani took the lead, as they had determined ahead of time, and opened with pleasantries.
“Thanks for meeting with us. We’re new and we wanted to say hello,” Giuliani said, looking mostly at Mueller. “We’re looking forward to working with you. We want to get a sense of where we are.”
Mueller, as ever, was matter-of-fact. He said he and his deputies were looking forward to working with the refashioned Trump team.
The real meeting got started when Giuliani asked the key question: Why did the special counsel feel entitled to an interview with the president? As his predecessors had, Giuliani cited the Mike Espy decision in which an appellate court found that prosecutors had to prove they could not obtain key information any other way in order to seek an interview with a president.
“We have a lot of work to do to get up to speed,” Giuliani said. “It would help if you would explain to us, under the framework of Espy, what you think you need from the president and are unable to get from the others and the documents?”
“We need to know what the president’s state of mind was,” Mueller replied. “We need to know the nature of his intent when he was undertaking these various actions we’re looking into.”
Mueller showed no emotion. He was the first to respond to Giuliani’s questions, but he did so with short and direct answers, devoid of color or nuance. Sitting across from Mueller, every Trump lawyer was mildly agitated. Each had something to say and jumped in, one after the other, to push back forcefully.
Giuliani replied, saying something to the effect of “You have other ways of determining his intent.” He explained that Mueller and his investigators already had a mountain of evidence, more than prosecutors would in nearly any other case. They had heard Trump’s public explanations and interviewed scores of aides who had spoken to him contemporaneously about why he had taken key actions, including firing James Comey.
Jane Raskin said this approach to learning a subject’s intent didn’t square with the practice of prosecutors in other cases. They routinely charged people with obstructing justice without personally interviewing the suspects.
“Why do you need him to come in and talk about intent?” she asked. “Why?”
“We do,” Mueller said. “He’s the only one who can tell us.”
The special counsel team explained that Trump could have had corrupt, mistaken, or innocent motivations in taking certain steps that impacted the investigation.
“We need to ask him,” one of Mueller’s deputies said.
Trump’s new lawyers picked up some important intelligence in the meeting. Although they never said the word “obstruction,” Mueller’s deputies made clear their questions for Trump were focused on obstruction of justice. They mentioned nothing about coordinating or communicating with Russians.
At some point, the Trump team raised the question of what prosecutors could learn about Trump’s intent from his interview with Lester Holt shortly after the Comey firing. Sekulow had been hot and bothered about the media’s take on the Holt sit-down, and he feared that Mueller’s team was also misreading what Trump said and meant. Journalists had focused on Trump explaining he had fired Comey because of “this Russia thing,” but Sekulow argued they did not consider the full context. In the rest of the interview, Trump made clear he fired Comey out of frustration that the FBI director would not tell the world what he had privately told the president, which was that he was not under investigation. Trump also explained that his advisers warned him that firing Comey would likely lengthen the investigation, but he did it anyway, feeling it was the right thing to do.
“Listen to the rest of the interview,” Sekulow said.
Trump’s lawyers also floated alternatives to a face-to-face interview. Would they take an attorney’s description of Trump’s account instead of a sit-down? The special counsel’s answer was no. Marty Raskin pressed Mueller and his deputies to consider written questions rather than a sit-down. He stressed that had been done with past presidents. Nope, Mueller said. That’s not happening. Dead on arrival.
“We need an in-person interview,” Mueller said.
The argument grew circular, from the Trump lawyers’ perspective. Ipse dixit. Mueller needed the interview because he said so. And the Trump team, as Giuliani later recalled, was determined not to allow the chance. “The fear we always had of his testifying was not that he would lie, not even that he would make good-faith mistakes, but that he would say, ‘I never said that to Cohen,’ Cohen would say he did. Perjury,” Giuliani later explained. “‘I never said that to Comey’; Comey said he did. Perjury.”
There was some discussion at the end about the parameters of a hypothetical in-person interview, if it were agreed to. Where would it happen? Would lawyers be present and permitted to confer with the president? Would it be videotaped? At the time, Trump’s lawyers felt it was entirely possible Mueller would subpoena the president. He wasn’t threatening it in this meeting, but it had hovered over such discussions ever since Mueller first uttered the S-word in his March 5 meeting with Dowd.
The Trump team also raised a pressing question, one that Dowd had never got answered. Did Mueller believe the special counsel was bound by Justice Department opinions that prohibited federal prosecutors from trying to charge a sitting president? In his March meeting, Mueller had told Dowd he did not consider Trump a target of his investigation, which was a good sign but not a conclusive answer.
What came next was awkward. People in the room remember the exact words of Mueller’s response slightly differently. Some believe he replied, “I don’t know.” Others recall him shrugging and saying something to indicate he wasn’t sure. Trump’s lawyers remember having the same reaction to whatever it was that Mueller said: surprise.
Could the special counsel not have thought about two seminal opinions from the Justice Department’s Office of Legal Counsel that prohibited indicting a sitting president, one from 1973 amid Watergate and the other from 2000 following President Clinton’s impeachment? Or was Mueller simply playing coy?
Someone on Mueller’s team then changed the topic, which Trump lawyers considered the subordinate’s effort to create graceful cover for the boss. Then, toward the end of the meeting, in what the Trump team considered an odd non sequitur, Zebley circled back to the Office of Legal Counsel question. He also appeared to be trying to help Mueller in some way.
“I know the OLC opinion you’re talking about,” Zebley said. The Trump team felt Zebley was avoiding giving an answer; the Mueller team felt he made clear the OLC opinion was Justice Department policy, signaling the special counsel would have to follow it.
After the meeting, Trump’s lawyers believed Mueller’s team kept applying pressure about getting an interview, without directly answering their questions about charging a sitting president. Quarles called the Raskins and Sekulow in a follow-up confer
ence call to say that the special counsel’s office would feel bound by Justice Department rules. The Raskins’ ears perked up. Quarles was so technical in his phrasing but still did not explicitly answer the question. They wondered whether he and Mueller were trying to preserve some flexibility.
Then Quarles pressed them for a decision on a Trump interview.
“When can you give us an answer?” he asked. “A week? Two weeks?”
Trump’s lawyers wanted to slow walk a decision. Privately, they were leaning heavily against an interview but had not ruled it out entirely.
“We will do our best. We just got here,” one of them said. “As you know, there is a lot to learn.”
It would take several phone calls and letters before Trump lawyers felt the special counsel gave an explicit answer about whether they believed they could indict a sitting president. The answer was no.
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The April 24 meeting would prove to be one of the only times Trump’s new legal team would engage directly with Mueller. The special counsel typically deferred to Quarles or Zebley to interact with the opposing side—so much so that the president’s lawyers wondered how much work Mueller was actually doing.
“I always had a feeling they were hiding him,” Giuliani would later remark. “He had only one case. It was a case against the president of the United States, a very sensitive case. The inmates were running the insane asylum.”
Giuliani would recall John Dowd telling him, “Well, he’s not really on top of the case. He’s kind of like delegating it.”
Trump’s team was not the only group to note Mueller’s distance. Justice Department officials who had to interact with the special counsel’s office from time to time talked about Mueller as the wizard in the classic film The Wizard of Oz. They would knock on the door. Zebley or another subordinate would crack it open and hear the question or learn about the problem. Then the door would shut, Mueller’s team would discuss it internally, and the door would reopen with Zebley or someone else delivering the wizard’s edict.
A Very Stable Genius Page 27
