The atmosphere inside the Pentagon was rather unsteady, with officials still adjusting to the sudden exit of Mattis and the interim leadership of Patrick Shanahan, who had been the acting secretary for three months but still not nominated for the permanent post. Administration officials read Trump’s unwillingness so far to formally nominate Shanahan for what it was: a clever ploy to try to turn Shanahan into a yes-man and to keep him on his toes. By June, however, he would withdraw from consideration to be the permanent secretary amid reports of domestic troubles.
Several of the generals and admirals gathered for dinner at the White House had grave concerns about whether Shanahan, a former Boeing executive with little experience on the global stage, had the knowledge, experience, and gravitas to lead the department, with a budget of roughly $700 billion a year. Some of them had been quietly grousing to one another that Shanahan didn’t seem able to stand up to Trump, and noted that he had acquiesced earlier that year to the president’s demands to claim a national “emergency” and tap Pentagon funds for construction of the border wall.
At dinner in the State Dining Room, many of the faces gathered around the room would be retiring or moving to other posts in the coming months. One chose to use this opportunity to stand up to the president’s casual disregard for boundaries and the sacred rules of military justice.
Trump had been obsessed with the prosecution of the Navy SEAL Edward Gallagher, forty, a special forces operator accused of the savage murder of an Iraqi teen. Military prosecutors said Gallagher stabbed to death a seriously wounded Islamic State prisoner of war in May 2017 in a SEALs compound near Mosul and posed for pictures with the corpse. Trump had been watching the case closely, in part because of the sympathetic, pro-Gallagher coverage by the Fox & Friends host Pete Hegseth, a Trump booster and informal adviser to the president on veterans’ issues.
In addition, one of Trump’s biggest defenders throughout the Russia investigation, Congressman Devin Nunes, had been appealing to the president for leniency in Gallagher’s case. Trump had announced March 30 that he had intervened to have Gallagher moved to “less restrictive confinement” while he awaited trial, tweeting that he did so “in honor of his past service to our Country.”
Now at dinner with the nation’s senior military leaders, Trump asked whether they believed Gallagher had been unfairly persecuted. Wasn’t it pretty awful, the president asked, for a Navy SEAL to be accused of the crime of just doing his job, killing the enemy?
Trump turned to the army general Richard Clarke, who had just taken over as commander of the U.S. Special Operations Command, leading the elite teams whose members included Gallagher and others under investigation for misconduct on the battlefield. “What about Gallagher?” Trump asked.
The Uniform Code of Military Justice required Gallagher’s peers to serve as his judge and jury, with impartiality and without fear of pressure from above. It was improper for the commander in chief to talk about any case in a way that could appear to apply pressure to the military judge far lower down in the military’s chain of command. For a president to attempt to tilt the result of the proceedings would be like a Supreme Court justice discussing how he or she would decide a case to the lower-level judge presiding over the trial.
Clarke stammered a bit, looking for the right words to answer. Then Admiral John Richardson, the chief of naval operations, stepped in. He decided to be the one to take a bullet because he was just four months away from ending his four-year term. He didn’t have to worry about the president’s wrath, at least not as much as Shanahan or some of the others around the table.
“Sir, this is not the appropriate forum to talk about that,” Richardson told the president.
Trump was visibly annoyed and folded his arms across his chest.
“Okay,” the president said, leaving no doubt to those around the dinner table that he was pissed.
The dinner-table discussion of Gallagher ended awkwardly, with a lull of silence before someone brought up a new topic. But Trump remained fixated on the case. In May, The New York Times would report that he was seriously considering pardons for Gallagher and several other U.S. military members accused of war crimes, a rare presidential intervention that experts warned could undermine military law.
In June, Gallagher would stand trial in a military courtroom in San Diego and on July 2 would be found not guilty of murdering the ISIS captive, although the military jury would convict him of posing for photos with the dead fighter’s body. The next day, Trump would celebrate the ruling and claim partial credit for the outcome with a Twitter message directed at the Gallagher family: “You have been through much together. Glad I could help!”
Trump would intercede once more on Gallagher’s behalf, ordering the navy to penalize the military lawyers who prosecuted the war crimes case against him. “The Prosecutors who lost the case against SEAL Eddie Gallagher (who I released from solitary confinement so he could fight his case properly), were ridiculously given a Navy Achievement Medal,” Trump would write July 31 on Twitter, adding that he had directed Richardson and Secretary of the Navy Richard Spencer to “immediately withdraw and rescind the awards.”
The law permitted Trump to order the prosecutors be stripped of their medals, but there was little precedent for the move. Unlike the Medal of Honor, achievement medals are determined within the military and do not require a president’s endorsement. The presidential decree—made on Twitter no less—was yet another reminder for the Pentagon brass that Trump had no qualms about maximizing his power and intervening whenever he saw fit.
* * *
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The week of April 8, Washington was in a state of panicky anticipation for the release of Robert Mueller’s report. For the past couple of weeks, Justice Department officials had been carefully redacting portions of the 448-page document, but the public version was expected to drop imminently. Reporters were being told by their sources to be on standby.
Trump and his lawyers were being told the same. They had been wrestling with a major decision—whether to read the report before it became public. The normal answer for any attorney representing a client was a resounding yes. But Trump had to consider his lawyers’ fear that his critics could accuse him of getting the attorney general to redact portions that were particularly embarrassing to him before the document was publicly released.
“He could have said at any time, ‘I want to see the report.’ He didn’t do that,” one of the team members recalled about the president. “Everybody involved in that process was very concerned that Mueller’s report and the attorney general’s review and summary or release was viewed as being allowed to proceed without intervention. We wanted it to be clean. We didn’t want to give anyone an excuse to say we are sticking our fingers in.”
On the other hand, Trump’s legal team knew Mueller had delivered a monster of a document, which they jokingly called “a son of Starr report,” a reference to the 211-page document on Clinton investigations released in 1998 by independent counsel Kenneth Starr. The size of Mueller’s report made the Trump team anxious. The lawyers were expected to be prepared to respond to the report whenever it was released.
On April 11, Jane Raskin wrote a letter to Bill Barr explaining the Trump legal team’s belief that they had a right to read the report ahead of time. She cited the Justice Department’s policy that third parties who are not charged with a crime are entitled to ensure that their privacy and reputational interests are respected in Justice Department releases. She made clear that they merely wanted to read the document and did not intend to suggest any changes to it or request further redactions.
Barr agreed and told Jay Sekulow that his team should get ready to come over and read the report on April 15. But because the Justice Department’s final review took longer than expected, the Trump team’s review was pushed back a day. On the afternoon of April 16, Barr welcomed Sekulow, Rudy Giuliani, and Jane and Marty Raskin to his secure conference room on the sixth floor of the Justic
e Department’s headquarters to read Mueller’s work product.
The Trump team had developed a habit of reading their memos and correspondence aloud to one another to edit and refine the copy. So they decided they would try to read the Mueller report aloud. The scene became slightly comical. Marty Raskin was designated to read the first few pages of volume 1. But after reading a page, the team ditched the oral history reading.
“We’re like, ‘Forget it,’” recalled one team member. “It’s like you haven’t eaten for a week. Here’s a huge buffet in front of you. They give you amuse-bouche.”
The voracious lawyers began reading volume 1 but soon put it down. It didn’t implicate Trump. They quickly turned their focus to volume 2, which was a damning collection of evidence about Trump’s attempts to thwart the investigation. Though the scenes were unspooled in a gripping narrative, the legal analysis and explanations were difficult to follow.
“I had trouble getting through the first four pages,” said the team member. “It’s where they lay out why they aren’t going to reach a conclusion. The first dealt with the [Office of Legal Counsel] opinion. They recognized it was there and they were bound by it. They do an analysis of the opinion and whether they should even investigate this.”
The lawyers were stuck on the fourth page, reading it over and over again. This part dealt with Mueller’s justification for investigating Trump for two years even if he couldn’t prosecute him. It was a window into the special counsel’s strategy and legal reasoning. Mueller’s team explained that even reaching a decision about whether Trump had engaged in criminal conduct that would normally warrant prosecution would be as unfair as charging him, something they were prohibited from doing. The only fair solution, Mueller’s team wrote, was to document the evidence in a report that could be shared with the Justice Department and ultimately Congress.
But the president’s lawyers grew angry as they let this sink in. In their opinion, the report showed there was never any evidence that Trump engaged in an underlying crime, such as conspiring with Russians to interfere in the election, and so it was nearly impossible to conceive that he could be accused of obstructing a criminal probe. They thought, what was fair about investigating a president for the entirety of his presidency so far and then deciding not to determine whether the evidence amounted to a crime? The Trump lawyers firmly believed their client was innocent. His only “crime” was being a politician who felt shackled and slandered by being under investigation. As she read Mueller’s report, Jane Raskin thought, “This should never happen again.”
Mueller’s day of reckoning for the public turned out to be April 18. That morning, Barr, flanked by Rod Rosenstein and Ed O’Callaghan, strode to a lectern at the Justice Department’s press briefing room to hold a news conference moments before his office released the Mueller report to Congress and to the public. In his half an hour before the cameras, the attorney general said exactly what the president wanted to hear.
Barr reinforced Trump’s talking points that the report had found “no collusion,” even though, as the report stated, “collusion” was not a term in federal criminal law. He also tried to spin volume 2 as less damaging for the president than many other readers of the evidence would argue, and he even offered a defense, or at least a sympathetic explanation, for Trump’s potentially obstructive acts.
“President Trump faced an unprecedented situation,” Barr told reporters. “As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.”
An array of former federal prosecutors and Democratic lawmakers denounced Barr’s performance as a partisan farce and castigated him as a henchman. He was accused of serving as Trump’s defense counsel, not as the nation’s attorney general. But one person cheering him on was the president.
“I love this guy,” Trump told Chris Christie about Barr’s handling of the Mueller report. “He’s a warrior.”
Trump was thrilled with the report’s conclusions and with Barr’s protective moves but was furious with the news coverage of the report’s most derogatory scenes. Many of them were attributed in the footnotes to Don McGahn or to the notes kept by the then White House counsel’s chief of staff, Annie Donaldson.
Donaldson’s notes, scribbled rapidly on a legal pad, were the closest thing the Trump White House had to the Nixon tapes: a sort of diary guiding Mueller’s prosecutors through months of West Wing chaos and chronicling Trump’s attempts to blunt the investigation. Her words were unflinching and even humorous. “Just in the middle of another Russia Fiasco,” she wrote on March 2, 2017. In another entry, on March 21, 2017, Donaldson wrote of Trump, “beside himself” and “getting hotter and hotter.”
The morning of April 19, Trump was at Mar-a-Lago for the Easter weekend and was stewing over media coverage. Trump, who had long been suspicious of paper trails, tweeted, “Statements are made about me by certain people in the Crazy Mueller Report, in itself written by 18 Angry Democrat Trump Haters, which are fabricated & totally untrue. Watch out for people that take so-called ‘notes,’ when the notes never existed until needed.”
Trump seethed in particular over McGahn’s extensive cooperation with Mueller, which was clear given his ubiquity in the report’s sourcing. Giuliani attacked McGahn in a series of media interviews and argued that the White House counsel should have resigned if he thought what Trump was doing violated the law.
Other Trump advisers said they believed McGahn was being singled out unfairly by some in Trump’s orbit because of his past tensions with key figures, including Jared Kushner and Ivanka Trump. One of these advisers told Robert Costa of The Washington Post, “If anything, Don saved this presidency from the president. If Don had actually gone through with what the president wanted, you would have had a constitutional crisis. The president’s ego is hurt, but he’s still here.”
Trump escaped, at least for now, the justice so many legal professionals believed he deserved. In May, more than a thousand former federal prosecutors who served under both Republican and Democratic administrations signed an open letter stating that Trump’s conduct as documented in Mueller’s report “would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”
Yet in the summer months that followed, Democrats in the House would fail to generate sufficient momentum to begin impeachment proceedings based on the Russia probe. The White House counsel’s office would block their requests for records and testimony from scores of current and former Trump advisers under claims of executive privilege. More Democratic legislators would slowly speak out in favor of impeachment, but the fall would arrive without any meaningful congressional action in response to the devastating evidence the special counsel uncovered.
If Mueller believed Congress ought to pursue impeachment, he did almost nothing to help achieve that outcome. By refusing to answer questions about his findings until his July 24 House testimony, by offering up a 448-page report and expecting the public or even members of Congress would have the attention span to absorb its lawyerly analysis, Mueller fumbled the moment. He was too pure and too invested in the norms of an institution of yore, the Justice Department, whose core values and the public servants who upheld them had been under assault for two straight years.
“His silence, his telling people to just read the report, has allowed a guy like Trump and a disappointing guy like Barr to co
me in, and Barr knows Mueller and he knows that Mueller won’t fight back,” said Frank Figliuzzi, the former Mueller FBI colleague. The special counsel, he concluded, “ended up getting played. But I don’t mean that he should’ve done something different because it might turn out that history will look at Mueller and say the guy brought faith and credibility back to institutions and Barr and Trump could be dismissed by history. We don’t know where this is going. But in the moment, it looks like he was suckered and he lost the fight.”
* * *
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On June 18, it was ninety degrees, humid, and hazy in Orlando. Just sixteen miles down the road from Disney World, citizens of MAGA nation converged at the Amway Center early in the morning to obtain spots in the security line. People adorned themselves with “Make America Great Again” caps and red, white, and blue boas. They parked themselves under the shade of camping tents or in folding chairs, wheeled up coolers with beverages, and waited patiently for the superstar to arrive.
That night, Trump swooped in to officially launch his reelection campaign. As he was aboard Air Force One en route to central Florida, the capacity crowd of roughly twenty thousand inside the Amway Center was rapturous. Paula White, a pastor and televangelist who said she had a nearly two-decade relationship with the Trump family, delivered the opening prayer.
“I come to you in the name of Jesus,” White told the crowd. Quoting from scripture, she said, “We’re not wrestling against flesh and blood, but against principalities, powers, against rulers of darkness of this world, against spiritual wickedness in high places. So right now let every demonic network that has aligned itself against the purpose, against the calling of President Trump, let it be broken, let it be torn down in the name of Jesus, let the counsel of the wicked be spoiled right now. According to Job 12:17, I declare that President Trump will overcome every strategy from hell and every strategy from the enemy—every strategy—and he will fulfill his calling and his destiny.”
A Very Stable Genius Page 44
