The Daily - Robert Mueller’s Unlikely Witness

Episode Date: August 20, 2018

The New York Times has found that one of the White House’s own lawyers, Don McGahn, has cooperated extensively in the investigation led by the special counsel, Robert Mueller. And he has shared far more information than the president thought. Guest: Michael S. Schmidt, one of the reporters who broke the story. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, New Times reporting finds that one of the president's own lawyers, Don McGahn, has been cooperating extensively with the Mueller investigation and sharing far more information than the president knew. Why he did it. It's Monday, August 20th. Welcome to the teleconference service.

Please enter your access code, followed by the pound sign. The host has not yet arrived. Please stand by. You are now being joined to your conference. For a menu of... Hey guys, it's Mike Schmidt. Hey there. Hey, how are you?

Good, good. Can you hear me? I can. So I should record on my phone. Yeah. So I've got the recorder right under my mouth here. I mean, on the table. My elbow's on the table.

Yeah, this is like the MacGyver of daily episodes. Okay, here we go. Mike Schmidt, how did you first start to get the idea that Don McGahn, the president's White House counsel, the time, John Dowd and Ty Cobb, are eating lunch on the sidewalk outside of BLT Steakhouse, this restaurant right up the street from the White House. And they're sitting there talking about the most contentious issue at the time that they were dealing with, how to cooperate with the Mueller investigation. We're following some major developments in the Russia investigation. Members of President Trump's legal team are apparently divided over how much they should cooperate

with special counsel Robert Mueller's probe. What happens is that one of our reporters, Ken Vogel, is sitting next to them. happens is that one of our reporters, Ken Vogel, is sitting next to them. And these two lawyers are speaking so loudly that Ken realizes, huh, there's something pretty interesting I should be listening to here. And he starts taking notes on their conversation. This is a conversation he's not even supposed to be hearing at all anyway. Correct. It's September. Remember, Mueller was appointed in May. Mueller has asked the White House for documents, asking to interview officials, and the White House has to figure out what is its posture going to be. Right. And Dowd and Cobb had sold the president on a strategy to cooperate. They said, the more we cooperate, the sooner we can bring this to an end. We can

have this over by the end of the year. But the White House counsel, the top lawyer in the White House, Don McGahn, he has a totally different perspective on the cooperation issue. He does not want the White House to be an open book to Mueller. He thinks it sets a bad precedent for future presidencies. He thinks that this could damage the president. And these two lawyers who didn't see eye to eye with McGahn are sitting there talking about this. We only found that out because two of the president's top lawyers at the White House had lunch at a top Washington, D.C. steakhouse just blocks from the White House. And in earshot of a New York Times reporter, let's just say they were not being particularly discreet.

And they talk about McGahn in sort of a very skeptical way. Now, that New York Times reporter heard lawyers Ty Cobb and John Dowd talking loudly about White House counsel Don McGahn, Ty Cobb and John Dowd talking loudly about White House counsel Don McGahn, saying cryptically that, quote, he's got a couple documents locked in a safe. Of course, they're saying that he has documents locked in a safe, implying that he's hiding them. They say that he has a spy who's sort of trying to figure out what Dowd and Cobb are up to. I cannot believe how bumbling and how stupid these guys are. They are the most indiscreet attorneys I mean, I've ever heard in my life shouting in in popular Washington steakhouses, like problems that they have in front of New York Times White House counsel in front of New York Times reporters. That restaurant is a full block away from the

New York Times Washington Bureau. And so wow. It's a full block. And so McGahn learns through our colleague Ken Vogel's reporting that two other lawyers who represent the president and are grappling with the same questions about how to deal with a special counsel's investigation are, in a sense, talking about him in a way that makes him anxious. Correct. I guess one thing that might have alarmed him is the fact that he wasn't invited to that lunch. Yeah. He was not chummy with Dowd and Cobb.

He didn't like their style. He didn't agree with Cobb's strategy to cooperate. And what's going on at this point is that McGann's trying to figure out what he's going to do with the special counsel's office. He knows that Mueller wants's trying to figure out what he's going to do with the special counsel's office. He knows that Mueller wants to talk to him, and he's trying to figure out what to do. The president had encouraged him to cooperate, to go in and tell his story, but he didn't understand why the president was doing that. He's been there to counsel the president through all of these things as the president fired Comey, the firing of the national security advisor, Michael Flynn, the president's efforts to get

Jeff Sessions, the attorney general, to resign because the president wanted to put someone loyal to him in charge of the investigation. Why would the president encourage his lawyer, who was there for all of these events, to go in and tell all. So McGahn was so perplexed by this, he thought the president might be setting him up to take the fall in the obstruction investigation. And then he hears about this lunch and he says, man, this is not a good idea. I need to do something to protect myself. Mike, help me understand why sending McGahn in to talk to Robert Mueller and his team of investigators might be a way of setting McGahn up to take a fall. Why would he think that?

The problem is, at this point in McGahn's relationship with the president, there's not a lot of trust. Behind closed doors, the president is berating McGahn for all sorts of things, including some of the advice he had given him about the Russia investigation, about how to handle it. And what happens is that McGahn doesn't understand why the president is being so brutal to him one on one. And then at the same time time encouraging him to go in and talk. He doesn't understand what the president's motivations are. McGahn thought the president was setting him up to go in and explain why he gave the advice he did to the president. And then the president would say, look, I was just following the advice of my lawyer.

I was just doing what he said. And then they could pin it on McGahn. Hmm. He'll go talk to the Mueller investigators and say, here's how I advise the president on, for example, firing James Comey. And the Mueller investigators might turn around and say, oh, you told him to do that. It's your fault. Correct. The thing is, the logic doesn't completely track. But what does track is the fact that McGahn didn't trust the president. Got it. He's dubious of the whole thing. He doesn't understand what's going on around him. And he thinks there's a chance he could end up being pinned for the problem. So what he does

is he says, look, I got to look out for myself here. I've got to do everything possible to protect myself. I need to go in and be as cooperative as possible with Mueller. The man who may know the most about President Trump's actions in the White House and the legality of them is said to be cooperating extensively with special counsel Robert Mueller. On Saturday, the New York Times published an article detailing McGahn's cooperation with special counsel Robert Mueller's investigation. The White House counsel admitted to three voluntary interviews over the last nine months. Totaling around 30 hours in all.

And to help put that into perspective, a former Whitewater investigator told the New York Times that having access like this to a president's attorney would, quote, be like having the keys to the kingdom. So this White House counsel, Dom again, understands better than anyone how the legal system can work, especially at this level with an obstruction of justice investigation going on, and decides to use that knowledge to protect himself rather than the president he's been hired theoretically to defend. Well, the president has said, go in and tell all. This is a hoax.

As far as the investigation, nobody has ever been more transparent than I have instructed our lawyers, be totally transparent. I believe we've given them 1.4 million pages of documents, if you can believe this, and haven't used, that I know of, or for the most part, presidential powers or privilege. So we are hopefully coming to the end. The president's lawyers had given them the green light to go in and answer whatever questions they wanted. But the president's lawyers did that without knowing what McGahn was going to say. Or what McGahn was thinking and fearing.

Correct. The thing here is that McGahn did more than simply just go in and say, look, I'm here to answer questions and go through it. He leaned as hard as possible into his cooperation to prove to Mueller that he had nothing to hide and had done nothing wrong. Because you have to understand, he knows the history. He knows that John Dean pled guilty to conspiring to obstruct justice when he was the White House counsel under Richard Nixon. And he needs to take whatever measures possible to make sure he is not John Dean. So, Mike, what happens next? What does McGahn actually tell the special counsel as he starts to cooperate?

McGahn in November goes in with his lawyer, Bill Burke, to meet with Mueller's investigators. Wait, so the White House counsel has his own counsel, his own lawyer? Correct. As the Mueller investigation was heating up in the middle of last year, he hires his own lawyer to help guide him through it. Wow. So McGahn and his lawyer, Burke, go in and meet with the special counsel's office in November. And McGahn takes the investigators inside the room for the most crucial episodes that they are looking at on obstruction. What McGahn also does is he provides them with information about episodes they knew little about, like how the president tried to get McGahn to fire Mueller in the summer of 2017. Right. So there's just a handful of people who might have known that the president floated this

idea of firing Mueller himself. They might never have learned that, and certainly not at the level of detail, without the cooperation of someone inside the White House like McGahn. The president thought that McGahn was going to go in and sort of act as his personal lawyer and say to Mueller, hey, look, nothing wrong went on here. There's nothing to this. Let's go. I don't think the president appreciated what McGahn's cooperation would actually entail. appreciated what McGahn's cooperation would actually entail. McGahn could take them inside of what the president was doing, why he said he was doing them, as the Russia investigation was intensifying. So is McGahn doing this behind the White House's back? Or does the White House know he's going to these interviews? They just don't know the extent of what he's saying.

The White House knows that he's going in, but they don't know what he's going to say. And afterwards, they never got a full briefing on everything he talked about. So they have been in the dark on this until we reveal some of the things that he talks about. So the president is largely in the dark about what the White House counsel is telling the special counsel. I still don't think they appreciate the extent to which McGahn has cooperated. We don't know everything that McGahn did, but it's more than they think. Wow. So even after your reporting this weekend, Mike, you're saying the White House still doesn't understand the scope of what McGahn has told Mueller.

Correct. So how has the president reacted to this reporting that you and Maggie Haberman have done, establishing that the White House counsel has, in a sense, kind of gone rogue? President Trump attacked the New York Times in a torrent of tweets Sunday morning. Trump took to Twitter and attacked us. The failing New York Times wrote a fake piece today implying that because White House counsel Don McGahn was giving hours of testimony to the special counsel,

he must be a John Dean-type rat. But I allowed him and all others to testify. I didn't have to. I have nothing to hide. And have demanded transparency so that this rigged and disgusting witch hunt can come to a close. So many lives have been ruined.

The president writes over nothing. McCarthyism at its worst. Yet Mueller and his gang of Dems refuse to look at the real crimes on the other side. Media is even worse. The president's lawyers have taken to the air and said,

Don McGahn was the strongest witness for the president, meaning he completely gave testimony that said that the president didn't do anything wrong, which the president didn't do. He didn't do anything wrong. McGahn was a good witness for them and that there was nothing to hide. The special counsel has an eyewitness on whether or not the president obstructed justice, right? We don't know whether he did or not, but he has a potential eyewitness that either is exculpatory or is problematic for you. But doesn't that actually underscore the reason why the special counsel has to talk to the president?

Absolutely not. First of all, we have a good sense, obviously, of what Mr. McGahn testified to. I can figure it out from the problem is, is that the president's lawyers have never been given a full accounting of what he actually told Mueller. How do you say that? Good sense. Have you debriefed him? No, no. But Mr. Dowd has a good, good sense of it.

He talked to them at the time. So you don't know what Mr. McGahn, you don't know 100 percent of what he testified to? I think that through through through John Dowd, we have a pretty good sense of it. And John Dowd yesterday said, I'll use his words rather than mine, that McGahn was a strong witness for the president. So I don't need to know much more about that. Mike, is your understanding that the White House is kind of embarrassed by this story and by the situation that they find themselves in? And they're trying to make it seem like they were fully aware of all this. Or is it your sense more that they genuinely don't yet understand the problem here? There are two

things going on. One is that they're realizing that they do not understand the extent of what McGahn told Mueller. And as the president's lawyers, that is a bit embarrassing. The second thing that's going on is that there is a reckoning here about the earlier strategy of cooperation. As Mueller began his investigation last year, they did everything they could to cooperate because they thought they could bring an end to this very quickly. It's clear a year later that that has not worked. Mueller's still out there. He now has the cooperation of McGahn and others. The investigation obviously is not over.

If anything, it has intensified since then. And the president has taken on a new legal strategy, which is to attack Mueller. The days of cooperation are long over. And the president has taken on a new legal strategy, which is to attack Mueller. The days of cooperation are long over. So they look back and say, man, we did all that cooperation. What did that really help us with? Did that really move things along in a better place for us? Or did it just help Mueller further his knowledge of what was going on inside the White House and potentially build a case?

And that is precarious place to be. So ironically, McGahn thought this was a bad legal strategy all along, but he became potentially the most damning outcome of the White House using this strategy in how fully he ends up cooperating in the end. Correct. It sort of comes full circle. And now the White House looks back on that and says, maybe that wasn't the best idea. Will he continue to serve as the White House counsel? He's still the White House counsel now. And if Trump turned around and fired him today, would Mueller then turn around and say, was this a witness who the president was retaliating against? I don't know. In other words, could getting rid of McGahn be another potential instance of obstruction of justice? Look, McGahn is a chief witness in this.

So anything the president does related to him could be an issue that Mueller has to examine. an issue that Mueller has to examine. Thank you, Mike. Thanks for having me. We'll be right back. Here's what else you need to know today. If my clearances and my reputation as I'm being pulled through the mud now, if that's the price we're going to pay to prevent Donald Trump from doing this against other people, to me, it's a small price to pay. So I am going to do whatever I can personally to try to prevent these abuses in the future. And if it means going to court, I will do that. On Sunday, former CIA director John Brennan said he was willing to sue President

Trump to prevent the White House from revoking the security clearance of intelligence officials who upset the president by publicly criticizing him. Trump revoked Brennan's security clearance last week and is considering rescinding those of several more intelligence officials who have challenged him in media appearances. A lot of people hear the former CIA director accusing the sitting president of the United States of treason. That's a monumental accusation. Well, I think these are abnormal times. And I think a lot of people have spoken out against what Mr. Trump has done.

And maybe it's my warning training as an intelligence professional. I have seen the lights blinking red in terms of what Mr. Trump has done and is doing and the types of things that he's doing, I think I need to speak out. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.