Ex-White House Counsel Don McGahn Emerges as Key Obstruction Witness

Shannon Pettypiece
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Ex-White House Counsel Don McGahn Emerges as Key Obstruction Witness

(Bloomberg) -- Donald Trump’s former top White House lawyer, Don McGahn, emerged as a key witness in Robert Mueller’s investigation into whether the president obstructed justice, laying out in detail a road map of Trump’s failed efforts to halt the special counsel’s probe.

McGahn, who talked to investigators for some two dozen hours and appears more than 500 times in the report, described Trump’s actions and thinking around attempts to fire Mueller and pressure former Attorney General Jeff Sessions to intervene in the probe, as well as the ouster of James Comey and National Security Adviser Michael Flynn.

Mueller described McGahn as a credible witness with no motive to lie who had a "clear recollection" of events. Mueller used phone records and written notes of McGahn and his chief of staff to support his narrative.

McGahn left the Trump administration in October after a tumultuous tenure largely marked by his handling of investigations into the Russian election interference. He was credited with successfully advancing Trump’s judicial picks, most notably Brett Kavanaugh’s confirmation to the Supreme Court.

But as McGahn’s testimony to Mueller shows, he was frequently at odds with the president, primarily over his approach to the Russia investigation.

McGahn recounted Trump telling him that "Mueller has to go" and "you gotta do this. You gotta call Rod," referring to deputy Attorney General Rod Rosenstein. He also recalled Trump talking about "knocking out Mueller" and repeatedly saying that Mueller had a conflict of interest because of unpaid golf fees at a Trump course and the fact that Mueller had interviewed for the FBI director job.

On Saturday, June 17, 2017, McGahn was at home when he received a call from Trump, who was at Camp David, directing him to tell Rosenstein to remove Mueller. After the call, McGahn decided to quit because he didn’t want to “participate in events that he described as akin to the Saturday Night Massacre,” a reference to the 1973 Watergate scandal, when President Richard Nixon’s attorney general and deputy attorney general resigned after being ordered to fire special counsel Archibald Cox.

McGahn went as far as calling his lawyer, driving to the White House and packing up his office. McGahn told then-White House Chief of Staff Reince Priebus that Trump had asked him to “do crazy sh--” and that he was leaving.

McGahn was urged by Priebus and chief strategist Steve Bannon to stay on. He did, and showed up for work on the following Monday. Mueller determined there was “substantial evidence” that supports Trump directed McGahn to call Rosenstein and have Mueller removed.

When details of the exchange were made public, Trump asked McGahn to deny a New York Times report that the president had told him to remove Mueller, the report said.

“The president reacted to the news stories by directing White House officials to tell McGahn to dispute the story and create a record stating he had not been ordered to have the special counsel removed,” Mueller said in the report. “McGahn told those officials that the media reports were accurate.”

Trump then met with McGahn in the Oval Office and pressured him again to deny the story. The president questioned McGahn about why he’d apparently told Mueller about Trump’s effort to have him removed, and asked him why he took notes of their conversation.

"McGahn refused to back away from what he remembered happening and perceived the president to be testing his mettle," Mueller said.

Trump also tried to get McGahn to talk to Sessions about his recusal from Mueller’s investigation, but McGahn refused, saying Justice Department ethics officials had already weighed in. Bannon recalled that Trump was "as mad as Bannon has ever seen him" and screamed at McGahn about how weak Sessions was.

McGahn also aided Mueller in his investigation into the firing of Comey. McGahn said Trump thought Comey was acting like “his own branch of government.” Trump was “beside himself” over Comey’s congressional testimony in March 2017, according to notes from McGahn’s office, one of which read: “getting hotter and hotter, get rid?”

McGahn’s willingness to talk with Mueller was part of a White House strategy of cooperation early in the investigation. The administration offered interviews with key officials and thousands of page in documents. The goal was to speed the investigation -- and also provide legal cover for Trump to refuse to be interviewed by Mueller on the grounds that it wasn’t necessary.

Trump could have tried to keep McGahn’s testimony out of the public domain by asserting executive privilege -- a doctrine cited by other presidents who said it was needed to ensure they get confidential and candid advice from their advisers. That could have either stopped McGahn from being interviewed by Mueller or given the White House a reason to redact McGahn’s account in the report. Barr said that Trump chose not to assert executive privilege over any of the material.

Early on, McGahn seemed more willing to do Trump’s bidding. He was sent to the FBI to try to get Comey to state that Trump wasn’t under investigation. Dana Boente, who was designated to oversee the Russia investigation until Rosenstein was confirmed, recalled McGahn asking if there was a way to speed up or end the Russia investigation.

McGahn said Trump told him it would be the last straw if Comey didn’t clear him in congressional testimony scheduled for May 3, 2017. When Trump found out Comey hadn’t, he grew furious and let out his anger on Sessions over his recusal. Trump told McGahn that the perception that he was under investigation was hurting his ability to govern.

McGahn also was involved in the conversations about how the firing of Comey would play out, according to the report. He advised Trump against including language in the termination letter about the Russia investigation -- advice Trump didn’t follow.

According to Harry Sandick, a former federal prosecutor who’s now a white-collar criminal defense lawyer, McGahn’s testimony shows that Trump tried to create a false public narrative by instructing his lawyer to lie.

"The evidence of Trump’s obstruction of justice has been preserved for a time when the president can be charged," Sandick said. "Or perhaps for Congress to make its own decision."

--With assistance from Erik Larson.

To contact the reporter on this story: Shannon Pettypiece in Washington at spettypiece@bloomberg.net

To contact the editors responsible for this story: Alex Wayne at awayne3@bloomberg.net, Joshua Gallu, Laurie Asséo

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