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In late February, a week or so after Bill Barr was sworn in as attorney general, he was briefed on the state of the Mueller investigation by Rod Rosenstein and Ed O’Callaghan. As Rosenstein’s principal deputy, O’Callaghan had been the point man consulting regularly with the special counsel team. He reported back to Barr that Mueller was nearing the end but needed more time. The special counsel’s deputies still had some loose investigative ends to tie up, most of them related to documents and other materials from Roger Stone, whose Florida home the FBI had raided on January 25.
What Barr, Rosenstein, and O’Callaghan did not know was that Mueller and his team were hard at work wrestling over the best way to conclude and summarize their nearly two-year investigation. Prosecutors had been actively drafting their final report in two volumes. The first volume was complicated, with a series of shadowy figures with strange-sounding names, but fairly straightforward to write. It documented the Russian government’s effort to interfere in the 2016 presidential election. The second volume was far more controversial and caused internal angst. It documented the evidence the team had gathered on ten episodes when Trump appeared to be seeking to thwart or shutter a criminal investigation of his campaign and himself.
All winter, Mueller and his team had been paying close attention to Barr’s words and realized during his confirmation hearings that the ground had shifted. The team had to write a report summarizing their findings; they had always known that was one of their duties under the special counsel regulations. But now they had to write it with an eye toward much or all of their report becoming public. And the team did not agree on how forcefully they should describe the president’s efforts to block a criminal investigation.
A few members of Mueller’s team wanted to be explicit in the report about the incriminating information they had found about Trump and explain that if he had not been a sitting president, he could likely have faced charges. They understood the Office of Legal Counsel opinion prohibited prosecuting Trump, but they pointed out it did not state that they could not recommend charges.
“There were people in the group who were pushing for a clearer expression of the president’s misconduct and why they were not charging it,” said one person who talked with members of the team. They believed they “definitely had enough to indict any other human being.”
Mueller argued a pure, apolitical view about the impropriety of concluding Trump had engaged in a crime, considering the OLC opinion. Amid an extensive back-and-forth over how they should summarize Trump’s actions—and all the indications he had sought to interfere in the probe—Mueller and his team agreed to language stating that Trump could not be exonerated: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”
But some on the team felt that phrasing was still unsatisfyingly passive. It was “as far as the special counsel was willing to go,” this person said, but added, “I don’t think that that was the consensus view. I think the boss made a call.”
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On March 5, Barr got some answers. Mueller and his top deputies, James Quarles and Aaron Zebley, arrived at the Justice Department for a secret meeting. To ensure they would not be spotted, Mueller’s security detail snuck them in through the basement and whisked them up a back elevator and into the attorney general’s conference room. The trio met Barr for the first time since he had become attorney general, and they were joined by Rosenstein, O’Callaghan, and Barr’s chief of staff, Brian Rabbitt. The atmosphere was friendly and jovial. Everyone exchanged pleasantries, and then they got down to business.
Mueller kicked off the meeting by pulling out a piece of paper with some notes. The attorney general and his aides believed they noticed something worrisome. Mueller’s hands shook as he held the paper. His voice was shaky, too. This was not the Bob Mueller everyone knew. As he made some perfunctory introductory remarks, Barr, Rosenstein, O’Callaghan, and Rabbitt couldn’t help but worry about Mueller’s health. They were taken aback. As Barr would later ask his colleagues, “Did he seem off to you?” Later, close friends would say they noticed Mueller had changed dramatically, but a member of Mueller’s team would insist he had no medical problems.
Mueller quickly turned the meeting over to his deputies, a notable handoff. Zebley went first, summing up the Russian interference portion of the investigation. He explained that the team had already shared most of its findings in two major indictments in February and July 2018. Though they had virtually no chance of bringing the accused to trial in the United States, Mueller’s team had indicted thirteen Russian nationals who led a troll farm to flood U.S. social media with phony stories to sow division and help Trump. They also indicted twelve Russian military intelligence officers who hacked internal Democratic Party emails and leaked them to hurt Hillary Clinton’s campaign. The Trump campaign had no known role in either operation.
Zebley explained they had found insufficient evidence to suggest a conspiracy, “no campaign finance [violations], no issues found. . . . We have questions about [Paul] Manafort, but we’re very comfortable saying there was no collusion, no conspiracy.”
Then Quarles talked about the obstruction of justice portion. “We’re going to follow the OLC opinion and conclude it wasn’t appropriate for us to make a final determination as to whether or not there was a crime,” he said. “We’re going to report the facts, the analysis, and leave it there. We are not going to say we would indict but for the OLC opinion.”
Quarles said they would lay out the evidence “dispassionately” in volume 2 of their report so as not to leave an impression with readers about any determination of Trump’s criminality. “We don’t reach a final judgment that any specific conduct equals a crime,” he said. “We do not reach the crime or no crime conclusion.”
Barr and his team were surprised and entirely confused. Seeking clarity, the attorney general tried to sum up the point Quarles was making: “It’s not the case that you could say Bob Mueller would’ve indicted the president of the United States but for the OLC opinion.”
Correct, Quarles agreed.
According to the Justice Department’s OLC opinion, federal prosecutors, including the special counsel, could not indict a sitting president, but they could investigate him. Nothing in the OLC opinion said prosecutors could not decide whether or not a president committed crimes. In fact, the special counsel statute explicitly stated Mueller had one central job: to investigate and then report to the attorney general on his decision to prosecute or not to prosecute.
Yet Quarles was saying they would not go down that road of deciding one way or another. Barr thought, why not? You’re the special counsel. Your job was to investigate and make charging decisions.
Mueller spoke up to reiterate the position Quarles presented. “We determined we should not try to decide if the conduct constitutes a crime due to the reasoning of the OLC memo,” he said. “It would be possible for somebody else later on to decide.”
Barr wanted to be sure. He asked specifically whether someone could review the report and make an independent decision about criminality. The special counsel’s team told him yes. Later, another Barr aide asked whether the attorney general could decide whether there was enough evidence to constitute a crime. Again, the Mueller team said they assumed the attorney general had that power. Of course, Barr was in charge of the probe and could have said to Mueller, “I want you to make a recommendation,” but he didn’t. Mueller’s team thought they were discussing legal authority in the abstract. They gave the answers never contemplating Barr might actually exercise that power within days.
The meeting then turned to the logistics and technicalities of the report itself. Mueller said the report would be lengthy and written in two volumes: the first, covering Russian interference, would clock in at about 140 pages, while the second, on obstruction, would be about 120 pages. Mueller a
nd his deputies explained that the report would contain an executive summary. “We tried to take the facts as we saw them,” Mueller said.
Mueller said the report would contain “6(e)” material, meaning sensitive evidence and testimony gathered through grand jury subpoenas that by law could not be released publicly, and the special counsel’s office offered to help the Justice Department think through what would have to be redacted.
“My intent is to put as much out as possible, but I’m very concerned about the gap between when I get it and when I can put it out,” Barr said. “My goal is to put as much out as I can as quickly as I can, but I need your help with that.” He asked the special counsel’s team to identify as they finished drafting the report any 6(e) material in advance so it could be redacted in a timely fashion. The special counsel’s team agreed, and the meeting soon wrapped up.
In the days that followed, Barr, Rosenstein, and O’Callaghan chewed over Mueller’s decision not to decide. They could hardly understand Mueller and Quarles’s reasoning, and they thought, this is going to be a big mess. Barr concluded that he would decide whether the president criminally obstructed justice. The special counsel was under the auspices of the Justice Department, using the criminal process to obtain evidence, and Barr, Rosenstein, and O’Callaghan all believed firmly that the department must make the decision. There was no hesitation. The attorney general would make the call.
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On Friday, March 15, at 7:41 a.m., Trump began a three-day Twitter spree in which he would post sixty-three missives by the end of the weekend. The Justice Department chiefs kept Trump and his lawyers in the dark, and in a series of tweets Trump wrote that Mueller “should never have been appointed and there should be no Mueller Report. This was an illegal & conflicted investigation in search of a crime. Russian Collusion was nothing more than an excuse by the Democrats for losing an Election that they thought they were going to win.”
Then came his conclusion: “THIS SHOULD NEVER HAPPEN TO A PRESIDENT AGAIN!”
Trump spent the weekend marooned at the White House rather than making his typical winter and spring weekend jaunt to Mar-a-Lago, and he stayed off the golf course, meaning he had little to keep himself occupied. He was triggered, at least in part, by a Politico article reporting that his advisers were building an early reelection strategy around “dignified settings like the Oval Office and the Rose Garden” rather than his “rambunctious rallies,” in part to make Trump appear more traditionally presidential. The story, written by Gabby Orr, was published on March 8, but Trump didn’t read it until an aide handed him a printout of it just before the March 15 weekend and provocatively inquired, “Sir, you are now going to be more presidential?”
Few media narratives got under Trump’s skin more than the impression that his staff was managing him, and whenever this happened, Trump found a way to prove that he could not be managed. He vented about it to Corey Lewandowski, one of his trusted outside political advisers. “These guys are going to tell me how to communicate?” Trump said. “They’re going to tell me when I’m going to do a rally and when I’m not?”
Twenty-four
THE REPORT
Around noon on March 22, an otherwise quiet Friday in spring, Ed O’Callaghan got a special delivery at his Justice Department office. He was handed a heavy ream of paper bound by a clear plastic sheet on top and a durable black backing. The title: “Report on the Investigation into Russian Interference in the 2016 Presidential Election.” Robert Mueller had completed his probe, and here were his long-awaited findings, all 448 pages of them.
O’Callaghan, Bill Barr, Rod Rosenstein, and Brian Rabbitt, Barr’s chief of staff, dropped their plans for the day, walled themselves off from others in the office, and started reading. Their first thought was that there were more than four hundred pages and Mueller’s team had not redacted anything. They instead used footnotes to mark sensitive material learned in the grand jury, but it wasn’t clear precisely what Mueller’s team felt should be kept secret. The special counsel’s team had indicated in the March 5 meeting that they would identify that sensitive information, known as 6(e) material, which could be a cumbersome process. But Mueller’s investigators did not feel it was their role to redact, only to identify the material. Justice Department officials saw this as a failure by Mueller’s team to redact as promised, and this critical missing step would make it difficult to release the report quickly to the public.
The Barr team’s immediate priority was to wrap their heads around what Mueller wrote, so they skipped around the two volumes looking for his conclusions and summaries. Midafternoon they decided they should notify the public that the special counsel had transmitted his report to the attorney general, so the team drafted a letter to Congress. Barr wrote, “I am reviewing the report and anticipate that I may be in a position to advise you of the Special Counsel’s principal conclusions as soon as this weekend.” He also reiterated his intention to make the findings public, adding, “I remain committed to as much transparency as possible.”
Between four and five o’clock that afternoon, Rabbitt called White House lawyer Emmet Flood to let him know that the Justice Department had the report. He read Flood a draft of Barr’s letter to congressional leaders but did not tell Flood what Mueller’s report said or what his bottom-line conclusions were. He telegraphed one bit of good news: Mueller was not recommending any additional indictments. Flood relayed the news to Trump. A few minutes later, Stephen Boyd, the assistant attorney general for legislative affairs, hand delivered Barr’s letter to Capitol Hill, and it was almost immediately distributed to the news media. The world now knew that Mueller’s nearly two-year investigation was over, and his findings were in the hands of Barr.
Trump had already left for Florida that morning to spend the weekend at Mar-a-Lago. Flood and Pat Cipollone, believing that delivery of the Mueller report was imminent, accompanied him in case he needed lawyers close at hand and were added at the last minute to the Air Force One manifest for the 10:00 a.m. flight. But that Friday afternoon, the Trump team could do little but wait on Barr.
The president restrained himself from calling his attorney general to find out more, for once following his lawyers’ guidance about not communicating with Barr so as not to compromise the independence of the investigation. Trump’s team felt confident Mueller could not accuse Trump of any conspiracy to collude with Russians and was on shaky ground to accuse him of obstruction, based on the evidence they knew Mueller had compiled. They knew Mueller did not plan to indict Trump, a sitting president, and did not want to risk the negative political implications of preventing the Justice Department from making fully independent decisions. They knew the Democrats would want nothing more than to catch the president interfering with the end stage of the Mueller investigation.
In the weeks leading up to this moment, Barr had tried to maintain a healthy distance from Trump. He avoided too many visits to the White House for fear of appearing too chummy with the boss. But although Barr was new on the job, Trump and his team had full confidence in his judgment, in no small part because of Barr’s expansive view of presidential power and his June 2018 memo arguing that the obstruction of justice investigation into the president had been “fatally misconceived.” They also believed Barr had the will to fight to protect the president and his executive authority. Inside the White House, some aides nicknamed Barr “the Honey Badger,” a reference to a viral video in which a fearless badger climbs a tree to kill a snake, gets bitten by the snake, passes out, and then starts eating the slithering creature.
“It was always going to be Barr’s show,” one Trump legal adviser said. “Even if we wanted to be a puppeteer, why would we risk it? Emmet was not going to let stupid decisions be made at the end of this game. We were not going to snatch defeat from the jaws of victory.”
On March 22, Rudy Giuliani, Jay Sekulow, and Jane and Martin Raskin were scattered around the country, from New York to Nashville, and scrambl
ed to get back to Washington. They gathered the next day in the oversized conference room in Sekulow’s law offices on Capitol Hill, an 1880s pharmacy that had been converted into office space. The Maryland Avenue building featured a conference room with a massive mural of Washington. There, Sekulow, Giuliani, and the Raskins prepared for what could come. “We felt confident, but until you have it, you don’t have it,” one team member recalled.
All of them agreed there could be no finding that the president had engaged in collusion with the Russians. But they remained concerned about the other half of the probe. They thought it was possible the report might claim that Trump had broken the law and that the president would have been charged with crimes but for the Justice Department’s Office of Legal Counsel policy prohibiting prosecution of the president. The team did not like that scenario, but if Mueller were to accuse Trump of crimes, the president’s team had planned a counter-narrative. “We didn’t know how obstruction would happen,” the team member said. “We thought they might lay out the facts. . . . We just didn’t know how.”
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Inside the special counsel’s office, Mueller and his prosecutors eagerly awaited the debut of their investigative findings and the breaking of a sacred silence the team had maintained for the past two years. Finally, the copious evidence they had combed the globe to gather would be released in some form to the public. But the prosecutors on the team didn’t know how much Barr would ultimately decide to share right away, and they anxiously discussed what he might do.
In preparation for this moment, the two main teams—one working on Russian interference, the other working on obstruction of justice—had written the report with overarching summaries, which they hoped would give Barr something easy to share with the public before releasing the full report. They felt at a bare minimum he would release those.
A Very Stable Genius Page 41
