THIRTY-SEVEN
Sidney Powell had a new idea to expand the power of the presidency: Trump could issue a presidential order to take control of the vote count. The states were rigged, the media was rigged. Trump had to act.
Powell laid out her strategy to Trump on the evening of December 18. She was joined by her former client and former national security adviser, Michael Flynn, who had just been pardoned by Trump, and former Overstock.com chief executive Patrick Byrne. The meeting was unplanned, with the three of them stopping by the White House that night for a supposed tour given by a low-level staffer they knew, only to be waved into the Oval Office by Trump.
Byrne, a business gadfly with a shock of red hair, had resigned from his company in 2019 after he acknowledged a romantic relationship with a woman later imprisoned in the U.S. for acting as an unregistered Russian agent.
He also claimed in a statement that the FBI had used him to engage in “political espionage” against Hillary Clinton and Donald Trump during the 2016 election.
“You have any idea how easy it would be for me just to leave on January 20th and get in Marine One and fly away?” Trump asked them. He seemed tired. “I’ve got my golf courses. I’ve got my friends. I’ve had a really good life.” But he said the presidency was stolen so he would fight.
The trio pitched the president on appointing Powell to be a special counsel to investigate the election, perhaps inside the White House counsel’s office or even inside the Justice Department.
Trump nodded. He seemed to take the idea seriously. He called in other advisers. Meadows and White House counsel Pat Cipollone discouraged the suggestion, as did other Trump campaign lawyers. They privately thought Powell’s ideas were insane, dangerous, and that she drew out the worst in Trump.
Trump did not close the door on the idea. He wanted action. Powell said he could seize voting machines. She said it was necessary since the machines had been manipulated by corrupt, anti-Trump forces.
Several lawyers heatedly said Trump could not do that. Eric Herschmann, an attorney and senior adviser in the West Wing, warned the president not to throw his political capital Powell’s way. It would be a waste.
“Sidney Powell promises and never delivers,” Herschmann said, looking at Powell, prompting Flynn and others to disagree.
“Lawyers,” Trump sighed, “I have nothing but lawyers that stop me on everything.”
“I’m very embarrassed by my lawyers and the Justice Department,” he added.
Trump looked at Powell. “At least she’s giving me a chance.” The siren song of declarative presidential action.
Trump called Meadows on speakerphone. Make Powell a special counsel, he said. Meadows dodged, showing support for Trump’s fight but making no promises.
“You got to do it the right way. You got to run it through the Department of Justice,” he said. “You can’t, you can’t just kind of order this up tonight.”
“I care about getting these machines,” Trump told the group. “I want to get these machines and I have the right to do so under the Act,” a reference to the National Emergencies Act, which formalizes emergency presidential powers.
FDR had used the act to address the Great Depression, and Truman had tried to use it as a means of countering a steel strike during the Korean War, but the Supreme Court eventually told Truman in a landmark case, Youngstown Sheet & Tube Co. v. Sawyer, that a president could not seize the steel mills, or any private property.
Trump’s campaign lawyers and White House counsel lawyers glared at each other. Seizing voting machines through executive action could have drastic consequences. How would you do it? With the military? In an interview with Newsmax the previous day, Flynn had floated “martial law” as an option.
Trump fumed. “I need lawyers on TV. I need people who go on TV. Sidney goes on TV. Rudy goes on TV.
“Get Rudy on the phone.”
Herschmann, Powell and Flynn began arguing.
Trump directed the White House operator to call Giuliani.
“Everyone should calm down!” Giuliani said on the speakerphone. He heard the yelling match.
There was a loud clanking and noise in the background. Trump asked Rudy about the noise. “Rudy? Is that you?”
Giuliani told his associates on his side of the call to quiet down. “I’m on a call.
“Do you want me to come over to the White House?”
Trump said yes. “Are you close?”
“Well, I’m in Georgetown.” He was having dinner at an Italian restaurant. “I can be over there in like 15 minutes. I’ve got a driver.”
“All right,” Trump said. “Come over.”
Trump turned back to the group in the Oval Office. Giuliani remained on the line. Trump looked at Powell. “Love her on TV,” he said. “She’ll make a good argument for us.” He spoke to Meadows, who was also calling in.
“I’m making Sidney a special counsel to the president. Mark, you get her the forms,” Trump said. “Give her the forms to onboard her.”
When Giuliani heard Trump’s instruction, he spoke up immediately. He took pride in being Trump’s main lawyer. What was this special counsel business? He did not like it.
“I’m on my way,” Giuliani said.
Trump said okay, then told the room the meeting would continue in the residence in about 30 minutes. Before he went upstairs, Trump turned to the trio. For this to work, he said, you’ve got to work well with Rudy.
After others left, Powell, Flynn and Byrne waited in the Cabinet Room for Giuliani to arrive before they joined Trump. When Giuliani was on speakerphone, Byrne could sense the former mayor was not happy about Powell trying to take charge. He was the legal boss. Byrne was hoping they could now have a conversation and figure out how to work together.
Once Giuliani arrived, still putting on his tie, it was apparent there would be no harmony. Giuliani gruffly told Powell she had to start looping him into her legal work. No more surprises. She was sharp in response: You never get back to me when I do. Read your texts.
Giuliani shook his head. Not true, he said. You’re the one keeping me in the dark!
“Don’t you talk down to me, Rudy Giuliani!” Powell said, nearly shouting.
The meeting in the residence never clicked. Giuliani and Powell would barely acknowledge each other. Powell was never made a special counsel.
That Monday, December 21, Attorney General Barr, who had announced a week earlier he would resign and leave in late December, told reporters there was no need for a special counsel, and that he saw no evidence of “systemic or broad-based” fraud during the election.
“If I thought a special counsel at this stage was the right tool and was appropriate, I would name one, but I haven’t, and I’m not going to,” Barr said, adding he would not appoint a special counsel to investigate Hunter Biden, either. Hunter Biden had revealed in December he was being investigated by federal prosecutors in Delaware.
Trump was irate. Don’t worry, Giuliani and others assured him, we still have another play.
Mike Pence.