In early June, the Mueller team prepared to oppose what it believed was soon to come: the president’s pardon of Michael Flynn, the bumptious and fleeting former national security advisor who had been indicted for lying to the FBI.
A frequent Trump riff was about whom he could pardon. His list included both contemporary and historical figures. Aides were urged to offer ideas about who could be added to the list. Jared sought to have his father, Charlie Kushner, pardoned; that effort went nowhere (Trump wasn’t a fan of Charlie Kushner’s). But Sheriff Joe Arpaio, an anti-immigration figure and Trump supporter, got a pardon. So did Scooter Libby, the Bush administration leaker whom President Bush, a frequent target of Trump derision, had failed to pardon, and so did Dinesh D’Souza, the right-wing author. Martha Stewart was a possibility. So was the corrupt former Illinois governor Rod Blagojevich, who was brazen and overweening in a Trumpian way. Trump pardons were less judicial corrections or acts of forbearance and kindness than statements of defiance.
But Trump needed constant reassurance about the extent of this power. He wanted to know just how absolute “absolute” really was. His lawyers went out of their way to assure him that his power was, indeed, truly absolute, thus reassuring him that he had ultimate control of his own fate: in a pinch, he could even pardon himself. At the same time, they urged him to keep his powder dry, at least for the moment. Everyone, they said, now understands that you have the power to pardon and are willing to use it, which sends the signal you want to send.
“It really is a get-out-of-jail-free card,” Trump proudly marveled to one frequent caller. “I am told there is nothing anyone can do if I pardon someone. I’m totally protected. And I can protect anyone for anything. I can totally pardon myself. Really.” Trump, said the caller, often revisited the topic.
For Trump, pardons had become something like the Nixon tapes. Here was a subject he had some deep feelings about: if Nixon had only burned the tapes, no problem. Likewise, if Trump simply pardoned everybody, no problem.
Hearing this kind of conjecture, Don McGahn worried about the fine line he walked. Was he merely explaining the pardon powers afforded the president or effectively counseling Trump on how to use these powers to obstruct justice? Pardons became yet another third-rail topic in the White House—everyone knew they did not want to have to recount a discussion about pardons before a grand jury or congressional panel.
Trump continued to convince himself that Mueller was an insult but not a threat. The White House senior staff, by contrast, was uniquely afraid of Mueller. There were various running office pool–type calculations of whether Mueller’s best case would be for obstruction, collusion, perjury, election fraud, or financial crimes connected to Trump’s Russian ambitions. Senior aides were most of all afraid of Mueller because they were afraid of Trump: nobody could have any reasonable confidence that he had not broken laws in multiple circumstances, nor did they have reason to believe that he had cleaned up after himself if he had. It was again that key element of his presidency: no one who worked for Trump had any illusions about him. “It’s Donald Trump” was the umbrella explanation for their twilight-zone existence and the existential threat they faced every day.
As alarmingly, there was still no formal process in place that would enable the White House to deal with everything that an investigation of the president involved. Mueller’s team began its work in May 2017; now a year had passed and, effectively, the president still had no real lawyers. There was no dedicated legal team, no deep litigation bench on the case, or cases, against him. Ty Cobb—who, after the ouster of John Dowd, shouldered all the blame, in the president’s mind, for the ongoing investigation—was out in early May. Now Trump had only Jay Sekulow, a right-wing advocacy lawyer not attached to a law firm, and Rudy Giuliani, his designated television defender. And even Trump seemed to understand that whatever public relations advantage Giuliani’s audacity might provide, he was likely to take it back almost immediately, drunk on a bid for further attention, or just drunk. Trump certainly wasn’t relying on either of his lawyers. Indeed, he continued to solicit advice from everyone—and therefore to potentially implicate everyone.
Every day was a minefield. Trump constantly thought out loud. He perhaps had no solely private thoughts, and certainly no editing mechanism when he invariably expressed what was on his mind. Everyone was therefore potentially included in a wide conspiracy. Everybody was privy to the details of a cover-up.
Staffers even feared that plotting among themselves to avoid becoming part of a cover-up—“I didn’t hear that” or “That’s a meeting you definitely want to stay out of”—might be construed as a cover-up in its own right. Hence, there developed a back-channel network of shared lawyers. Bill Burck, for instance, represented Don McGahn, Steve Bannon, and Reince Priebus. As a consequence, all three men could communicate under the seal of their lawyer’s privilege.
It was every man for himself. By the spring of 2018, the staff was experiencing the kind of panic you might not expect to see until all avenues and options had been exhausted, until the writing was clearly on the wall. Everyone had to acknowledge the real possibility that the Trump presidency would go down and take many people with it. Could the chances be as high as 50/50? Those were the odds John Kelly sometimes gave to friends; Kelly’s wife whispered that they were even higher. The nearly apocalyptic mood led virtually all of the senior players in the West Wing to contemplate contingency plans: When could they reasonably exit? Don McGahn, deeply depressed, found himself trapped because he felt honor-bound not to leave the job until someone else agreed to take it—and that was a hard sell.
Lawyer after lawyer was approached to join the White House counsel’s office specifically to anticipate an impeachment. Emmet Flood, one of the most experienced attorneys in the rarefied field of white-collar political defense, had turned down the job earlier in the year after demanding the kind of autonomy that Trump was unwilling or incapable of giving. A succession of other turn-downs—combined with yet another threat of his own to resign—finally gave McGahn the leverage to insist that Trump meet Flood’s demands. In May, Flood replaced Cobb, having been given assurances that, when fulfilling his responsibility to protect the interests of the presidency, he would have the autonomy he needed.
Unbeknownst to the president, McGahn, in late 2017, had begun to cooperate with the Mueller investigation. Bannon, aware of McGahn’s move, could not get enough of this particular irony. Trump was obsessed with John Dean, the White House staffer who had exposed the Nixon presidency; Trump did not seem entirely aware, however, that Dean, like McGahn, was the White House counsel. And Trump now seemed quite unmindful of how much McGahn had come to hate him—“a black hatred,” observed a McGahn friend.
Courtesy of McGahn, the Mueller team began to suspect that Trump, even though he had been advised to restrain himself, would move to pardon Flynn and thus try to deprive the investigation of a significant witness.
Bannon, in fact, believed that Mueller was in a far weaker position than the greater White House assumed. He thought Trump’s instincts, thus far effectively diverted, were right: Mueller was more afraid of Trump than Trump ought to be of him. Donald Trump might be the target of the special counsel’s office—a rich target—but he was also a lethal threat to it.
Trump had the upper hand, or at least he did for the moment. The president, still maintained his hold on Congress—and therefore his impunity. With the Republican majority in the House, Mueller was a paper tiger. He might be a bullet aimed at the president, but he lacked a triggering mechanism. He held the moral high ground but had no ability to defend it.
What’s more, Bannon, after his testimony before the special counsel earlier in the year, had come to doubt that Mueller had the goods. Beyond finding that here, in the Trump camp, were some of the sloppiest, most unsophisticated, stupidest people on earth—who, to say the least, had little or no sensitivity “to, shall we say, accepting foreign assistance,” as Bannon put it—what did the investigators have? Or, to put it another way, who did they have? Roger Stone, Carter Page, George Papadopoulos, Julian Assange?
Bannon was unimpressed: “No way you impeach the president over those dragoons.” They were hopeless flotsam and jetsam.
Obstruction? “Give me a break.”
With a Republican Congress in place, what Mueller needed was something that would undermine Trump with the something less than 35 percent of the electorate that had become fanatically his. As long as that support held, the Republican Congress, Bannon believed, would have to hold.
Shock and awe is what Mueller needed. Mueller had to give “the deplorables”—Bannon had adopted Hillary Clinton’s disparaging term as his affirmative and affectionate label—a compelling reason to reevaluate Trump. That is, he had to produce a smoking gun far worse than anything anyone thought Trump might have done, and that was a high hurdle. It was not going to get the special counsel anywhere merely to confirm what people already knew Trump to be. Tell me something I don’t know!
Bannon continued to advocate for firing Rosenstein and thereby waylaying Mueller. He worked his Greek chorus: Lewandowski, Bossie, Hannity, and Republican congressman and Freedom Caucus leader Mark Meadows. He also urged the Trump defense to follow the Clinton White House model, equating popularity with virtue. True, Bill Clinton’s approval was always above 50 percent and Trump’s nearer 40 percent, but Trump’s support was hard-core, remarkably so. In Bannon’s view, Trump was the most beloved president of his time—if, also, the most hated. Mueller, an ally of the people who hated Trump, was out to defy the will of the people who loved the president. That, Bannon believed, ought to be the fighting argument.
But the White House—in particular, Rudy Giuliani—seemed incapable of making a righteous case. Giuliani’s was at best a backhanded defense. In effect, the argument he made was, Yes, the president might be guilty, but because he was the president he was allowed to be guilty. (This was a variation on Trump’s own career refrain: yes, he might be a rotten son-of-a-bitch, but he was a successful rotten son-of-a-bitch.) Instead of discrediting the investigation, the White House, in its ambivalence, seemed to throw up its hands and once more acknowledge that Donald Trump was, for better or worse, Donald Trump. Say what you will, observed Bannon, there was actually a heavy dose of realism in the Trump White House, if not on the part of the president.
Even the most dedicated Trumpers certainly admitted that there was a lot of black-hole stuff about Russia. They believed Trump had an abiding good feeling for Putin, similar to what he felt for all men whose success he admired and whose money was greater than his own. They acknowledged that Trump was eager to be respected by Putin and might go out of his way to please him. They also understood that Trump, a sub-blue-chip borrower in the great age of Russian capital outflows, would, at the very least, have had to close his eyes to legal niceties to participate in this financing bonanza. And they certainly knew that Trump was not inclined to or capable of walking a meticulous line between private and public spheres.
What they yet found a hard time believing was that there was a plan, a scheme, a big picture. Donald Trump may have done any number of things that, given good sense and the letter of the law, he should not have done. But with his short attention span, inability to manage multiple variables, exclusive focus on his own immediate needs, and general disregard of all future outcomes, the notion of pinning a grand conspiracy on him seemed like a big stretch.
No, the Trumpers countered, this was just liberals and Mueller taking advantage of Trump being Trump, of a man who was always his own worst enemy. And you could defend Trump being Trump because he was the guy—even with his scuzzy associates, fantastic exaggerations, casual regard for the literal truth, and constant straddles of the line of the law—who had been elected, with all his flaws on view.
Hence, it wasn’t Trump who was conspiring, it was … Obama.
In spring 2018, the exotic “deep state” theory, long embraced by the president, finally came together in some half-cogent form. The Democrats believed that Trump had conspired with the Russians to fix the election. Well, the Trumpers believed that the Obama administration had conspired with the intelligence community to make it seem as if Trump and his people had conspired with the Russians to fix the election. It was not Trump and the Russians who had successfully stolen the election; it was Obama and his cohorts who had tried and failed to steal it.
The conspiracy against Donald Trump, as it was related by the most hard-core Trumpers, began in 2014, when Obama’s director of the Defense Intelligence Agency (DIA), retired General Michael Flynn, showed up at a spy meeting in Cambridge. (Trumpers would darkly note that Cambridge was where Christopher Steele, of the Steele dossier, was recruited to spy against Russia.) Most of the spies gathered for dinner in a university hall were cold warriors, wary of Flynn’s willingness to tolerate if not embrace Russians because of his personal belief that Iran was the actual geopolitical devil. From this point on, in the Trumpers’ view, there were intel eyes on Flynn. Indeed, it would be Flynn who helped bring Trump to a new appreciation of the Russian willingness to help oppose the radical Islamic scourge. That was the crux of the collusion case, such as it was, against Trump and company: it was the old-school, Russian-obsessed intelligence community against people like Flynn and Trump who appreciated our new enemies—the international terrorism cabal. In counter-espionage fashion, the spy world, taking advantage of the Trumpworld’s better disposition toward Russia, had in fact pushed the Trumpers in that gotcha direction.
Now, attempting to discredit Mueller, congressional Republicans pushed the Justice Department in late May to reveal exactly how it had come to target the Trump campaign. The name Stefan Halper surfaced, likely leaked by the White House.
In the Republican theory, Halper, an American in Cambridge, England, with close contacts to MI6, the British foreign intelligence arm, had, at the behest of the Obama administration acting through MI6, recruited two hapless Trump hangers-on, Carter Page and George Papadopoulos, into a plan to approach the Russians. This was the Trump side’s new narrative: the Obama side had engaged in entrapment.
With hooded eyes and an overcoat in need of replacement, the seventy-four-year-old Halper was yet another spy vs. spy player in Cambridge, where, in Bannon’s cryptic summation, “all worlds lead.” (Bannon knew Cambridge well: he and Halper walked the same streets as members of the back-office staff of Cambridge Analytica, the shady tech company with which Bannon was associated that had more or less unscrupulously acquired vast amounts of election metadata.) Indeed, Stefan Halper was a spy, a heavy hitter in the U.S.-UK spy world, who had been married to the daughter of a legendary CIA figure, Ray Cline, who was on the case during the Cuban Missile Crisis. And Halper was also a professional spy recruiter—a flytrap in Cambridge. Now, Halper conveniently bubbled up from the deep state to recruit several Trump stumblebums.
In Bannon’s view, the Obama White House and the intelligence community would of course have had close eyes on Trump during the campaign. Trump had been a suspicious character for years; how could responsible parties not take alarmed note of his sudden presence on the world stage? What’s more, he was certainly not going to get elected—as not only all the polls indicated, but as a confident Obama privately assured Democratic donors throughout the fall of 2016—so, even as a major party nominee, he did not have to be treated as a serious candidate. But to the extent that he was a candidate, he certainly seemed like a Manchurian one, a small-time crook who had been suspiciously elevated. So of course you would be covertly tracking him.
There it was, almost in plain sight: the Obama administration was running a counterintelligence investigation against a presidential candidate, albeit one more fake than real.
But while it might be sensible to run a modest intelligence operation that kept track of a crook with dubious connections to Russia—who, by a ridiculous fluke, just happened to be a major party’s candidate for president—the operation would become much harder to defend if the target actually became president. What had seemed prudent and responsible during the campaign would look, in hindsight, insidious and undemocratic.
“You would think that the deputy attorney general of these United States would be able to get his pen out and scratch a note that says, ‘Of course there are no documents related to the surveillance of a presidential campaign or the transition of the duly elected president of the United States’—signed, Rod Rosenstein,” said Bannon, outlining the case. “But”—Bannon suddenly clapped his hands—“he couldn’t, for obvious reasons. Gotcha!”
It was, once again, the paradox of the Trump presidency: he was so unsuited, if not unfit, for the office, such an assault on the established order, that all the defenders of this established order were of course compelled to protect it from him. But then he won the election, which conferred on him the legitimacy of the established order—or at least he believed it conferred that legitimacy on him.
Trump was not, however, wily enough, or tempered or patient enough, to demonstrate and secure that legitimacy. Rather, he simply insisted on it. The same person who before the election was regarded as illegitimate by, arguably, the majority of voters now demanded, stamping his feet, that he be seen as legitimate. His argument was a simple inversion: the establishment—the deep state—regards me as illegitimate and violated democratic principles to deny me the White House. But I won; hence, they, not I, are illegitimate.
Devin Nunes, then the chairman of the House Intelligence Committee, became the Republican Don Quixote of the expose-the-deep-state initiative, demanding that the Justice Department break protocols and reveal the details of its early investigation of Trump. The hope, or Hail Mary pass, was to show that the Justice Department’s actions, influenced by the Obama White House, were part of a fix-the-election conspiracy, or at least some muddy-the-waters dirty dealing—details of which were obsessively spelled out by Sean Hannity. This involved, in addition to Halper, two FBI agents, Peter Strzok and Lisa Page (lovers who had left a telltale trail of text messages about their contempt for Trump); former FBI director James Comey; former CIA director John Brennan; and former director of National Intelligence James Clapper. And contributing to this conspiracy were alleged abuses of the Foreign Intelligence Surveillance Court (FISA) and the Steele dossier, which the Republicans regarded as a Democratic piece of legerdemain and conspiracy mongering, and the corrupt basis for much of the case against the president.
To a degree, the Trumpers were correct. The powers that be had been so aghast at Trump personally, and at the peculiar and disturbing behavior of his campaign, and had responded to him so viscerally, that they had acted in ways they never would have acted toward a respectable candidate—or toward anyone they thought might actually win. But that did not change the fact that Trump was still Trump, and that virtually everything about him screamed that he ought to be investigated.
The inner circle of dedicated Trumpers—Bannon, Lewandowski, Bossie, Hannity—kept urging McGahn and the White House to join Devin Nunes and insist that Rod Rosenstein release all the files related to the Obama administration’s moves to investigate the Trump-Russia connection. Rosenstein could delay and evade congressional requests almost indefinitely, but he would not be able to ignore his boss, the president. Issue the order, the Trumpers pressed, and then, if he fails to comply, fire him.
McGahn, already a secret Mueller witness, resisted. He worried about the global release of confidential intelligence documents, and the further effects of a White House confrontation with the Justice Department.
At about this time, the peak counterconspiracy moment, Lewandowski and Bossie were rushing to finish their second book about the Trump administration, one that focused on the deep state’s efforts to undermine the president. Lewandowski and Bossie hired Sara Carter, a Fox News contributor and close Hannity colleague, as their ghost writer and sent her over to the Embassy to get further details on the conspiracy from Bannon. Certainly among the nimblest conspiracy provocateurs of the Trump age, Bannon spelled out the current narrative in powerful detail.
Still, Bannon felt obliged to warn Carter about the story that would shortly become the backbone of the Lewandowski and Bossie book Trump’s Enemies: How the Deep State Is Undermining the Presidency. “You do realize,” said Bannon, “that none of this is true.”
The significance of Michael Flynn to the Mueller investigation was that he was, despite his mere twenty-five days in office, a player—this in a world where Trump permitted no one, other than himself, to be a genuine player. There might not have been anyone whom Trump had so bonded with during the campaign. Indeed, Flynn was, in the earliest days of the transition, one of the soon-to-be Trump White House’s first official hires.
But now Flynn looked more and more like a smoking gun. At the direct behest of either Trump or Kushner—or, as likely, both—Flynn had reached out to the Russian ambassador during the transition and negotiated a separate peace around the Obama administration sanctions, or so the Mueller team seemed to indicate in its proposed obstruction indictment of Trump. An abiding historical regret for many Democrats was that Nixon had managed to get away with promising North Vietnamese negotiators working on a peace treaty in Paris that they would get a better deal if they waited for his administration to arrive in office. Here Trump and Flynn seemed to be up to similar dirty tricks.
What’s more, Trump’s apparent attempt to obstruct justice began with Flynn. Trying to deflect the FBI’s investigation of Flynn had sent Trump down the path to firing Comey, which was the spark that lit the Mueller investigation.
If the pardon came, the special counsel was ready to go into federal court and ask for an injunction barring Trump from pardoning Flynn. The problem, however, was that the president’s pardon power, just as Trump had been assured, was, practically speaking, ironclad.
“It appears likely,” the special counsel’s research on the topic concluded, “that the president can pardon his family members or close associates even for the purpose of impeding an investigation.” When tested, courts have held that the president’s pardon power “is plenary and absolute, with few exceptions.” And it appeared that, in fact, the president could probably pardon himself. It might be “improper,” in any reasonable understanding of basic standards of logic and propriety, but “a self-pardon is not expressly prohibited by the Constitution … If the president did not have the power to pardon himself, the expressio unius textualist reading says, the Framers would have added text specifically restricting the president’s ability to self-pardon.”
But having concluded that the pardon power was virtually unassailable, the Mueller legal team believed that Trump might yet present several unique exceptions to this power.
First, in the legal argument, Article II, Section 2, Clause 1 of the Constitution, which granted the pardon power, does offer two specific limitations. For one thing, the pardon power applies only to federal law, meaning that any state charges were excepted. For another, the power excludes anything to do with impeachment. The president can’t stop an impeachment, his own or anyone else’s, and he can’t stop the Senate from convicting a federal official after impeachment and as a consequence depriving him or her of office. But that’s it: otherwise, the pardon power was far-reaching.
Second, the special counsel’s research fastened on a 1974 Supreme Court case. Schick v. Reed, while supporting the broad pardoning power, added a qualification: exercise of the power is legitimate if it “does not otherwise offend the Constitution.” And in a 1915 case, Burdick v. United States, the Court invalidated a pardon because President Woodrow Wilson—who had pardoned a newspaper editor for any federal crimes he might have committed—had used this power expressly to negate the editor’s Fifth Amendment rights and thus force him to testify. The Court therefore viewed the pardon as an infringement of the editor’s constitutional rights. The research noted, however, that Burdick was the only instance where the Court had nullified a pardon.
Third, the president might issue a legal pardon, but by doing so, the team argued, he might himself commit a crime. The team’s support here was an op-ed article in the New York Times from July 21, 2017. Its authors, Daniel Hemel and Eric Posner, wrote: “If a president sold pardons for cash … that would violate the federal bribery statute. And if a president can be prosecuted for exchanging pardons for bribes, then it follows that the broad and unreviewable nature of the pardon power does not shield the president from criminal liability for abusing it.”
And, finally, the special counsel examined, in its legal plotting, what might be considered the mother of all disreputable pardons: Bill Clinton’s pardon, in the hours before he left office in 2001, of the financier Marc Rich, who had fled to Switzerland to escape charges of financial fraud, racketeering, and tax evasion, and who, not coincidentally, had contributed copiously to the Clinton campaign. In pardoning Rich, Clinton narrowly avoided prosecution himself for possible obstruction, bribery, money laundering, and other charges. The point here, grasping though it might appear, was that after Clinton’s pardon of Rich, federal prosecutors came very close to concluding that Clinton could be indicted for abusing his pardon power. In the end, the Justice Department chose not to go down that road. (The Rich pardon seemed also to be involved with diplomatic quid pro quos with Israel, where Rich was a likely Mossad asset.) But the fact that it was given serious consideration suggested that challenging a president for a self-serving pardon wasn’t outside the realm of possibility.
Still, a pardon of Flynn—and for that matter anyone else whose own legal peril might induce him or her to testify against the president—would be a clear instance of the president using his authority to remove himself from the reach of the law. Such a pardon would, in the key phrase of Schick v. Reed, “offend the Constitution.” Put simply, the president’s absolute pardon power was up against that other constitutional guarantee: no one was above the law.
This was the argument—the offense against the Constitution—that few, if any, of the constitutional and Justice Department lawyers apprised of this approach thought had a chance in hell. But the draft of the special counsel’s brief seeking to enjoin the anticipated presidential pardon of Michael Flynn tried to advance that argument with no apology or qualification:
“President Trump’s attempted pardon is unique and unprecedented,” read the draft. “Never before has a president so brazenly sought to obstruct an ongoing investigation by pardoning a defendant who is actively cooperating with law enforcement. What makes the president’s pardon even more unique, and farther beyond the bounds of constitutionally allowable behavior, is that the president himself is a subject of the investigation that he attempts to impede by pardoning this key cooperating witness.
“The presidential pardon power, though broad, is not absolute. It is limited both by the text of the Pardon Clause, which prohibits exercise of pardon power in cases of impeachment, and by the Constitution as a whole, which prohibits any act that violates or otherwise offends the Constitution, including by unduly encroaching upon other, coordinate branches of government or by undermining the public interest in purpose or effect. President Trump’s attempted pardon plainly violates both constitutional prohibitions.”
This was at best a long-shot strategy, but you used what you had.