The search for collusion

“The president wanted it over yesterday,” recalled Michael Bowe. “I believe he felt like any client wrongly accused: he thought he had nothing to hide and could end it by just walking down there, looking Mueller in the eye, and saying ‘I didn’t do anything. Tell me what you think I did.’ Or by finding the right person who Mueller trusted to say the same thing.” Trump was particularly upset by the effect the investigation — a topic of intense interest around the globe — was having on his ability to deal with foreign leaders. Presidents and prime ministers wanted to know what was going on in the United States and whether President Trump would remain in office and have the same influence as a president not under investigation. Trump told his team continually that the investigation was interfering with his ability to deal with foreign governments. He wanted it done with.

To do that, Trump sought to open up communications with Mueller almost instantly. “We were sort of being pushed to go talk to Mueller before Mueller ever wanted to talk to us,” Bowe said. “Our first conversation occurred before he had his first office.” It was an unusual start to that kind of investigation. Normally, the new prosecutor would open up, begin work, and months would go by before he would get in touch with the subject of his investigation. But Trump wanted his team talking to Mueller right away because he believed he did nothing wrong and wanted to confront and resolve any uncertainty immediately. “We were the ones banging on their door,” Bowe recalled.

As always, Trump believed differences could be talked out, adversaries could be charmed, and a deal could be made. But, as he soon discovered, that approach worked neither in Washington’s deeply partisan political culture nor in its highly politicized legal culture. As a businessman, Trump had been involved in many, many lawsuits. But he had never been under criminal investigation before. And he had certainly never been involved in a criminal investigation like the Mueller probe.

A meeting with Mueller was set for June 16, roughly a month after the special counsel was appointed. The idea was that Dowd, the former Marine, would have a good eye-to-eye talk with Mueller, the former Marine. “I kept making the point that Bob knows John,” said Mark Corallo, recalling a White House strategy session. “They’re not best friends or anything, but he knows him and respects him as a lawyer, and that’s important for Mueller.”

Trump was happy. “He is all about relationships,” Corallo said. Trump gave his blessing to a cooperative start. If the Mueller relationship could get off to a good beginning, maybe it could all be over sooner rather than later.

The meeting was held at Mueller’s temporary offices. The Trump team came with an offer: the president wanted the investigation completed quickly. Mueller wanted a lot of evidence from the White House. Trump would offer virtually unlimited cooperation in the production of evidence in order to get things over quickly. Doing so might avoid the long, grinding fights over access and privilege that often marked special counsel investigations.

“We made a bargain,” Dowd said, recalling the meeting. “Bob said to me, ‘I have no bias at all,’ and we accepted that. I told him that we had a lot of issues with Rosenstein and where this had come from, and the fact that the president was blindsided by his appointment. And we had problems with conflicts that they had. But we were putting that aside, we were not going to object. The president wants to get you the facts, but we’ll only do that if you’ll get it done.”

“And he said to me, ‘John, I don’t let any grass grow under me.’ We reached across the table, we shook hands, and I said, ‘Bob, we’re going to get you everything.’”

“They said they were going to move expeditiously,” Jay Sekulow recalled. “They had no desire to drag this out and put the country through a long process.”

Mueller said the sort of things that one says in get-started meetings. He said his door would always be open, and that he understood how the investigation was affecting the country and the president. With that, it was over.

The team then reported back to Trump. The lawyers told Trump they had confidence in Mueller, that they made their concerns known to him, that he understood them, and that he sought to reassure them about the partisan appearance of his lawyers. “I’m in charge,” Mueller told them. He, and not some headstrong Democratic partisan prosecutor, would be making decisions. “We all said we trusted Bob to ride herd on his staff,” Corallo recalled.

In the next few weeks, the two sides hammered out how, precisely, the cooperation agreement would work. (It was never written down — just a handshake deal.) Certainly, many documents that Mueller would want to see would be covered by executive privilege, or some other privilege. Why would Trump just turn them over? On the other hand, Mueller would not want to fight hand-to-hand over each document, which would take years.

Seeking to balance both sides’ interests, Trump and Mueller reached an informal understanding by which the White House would give documents to the special counsel without claiming privilege, but Mueller would limit the ways he used the material. The thinking was this: Mueller was in the executive branch. The White House was in the executive branch. The White House would hand over the material, one executive branch entity to another, without claiming any privilege — provided Mueller would agree that, if he intended to use the material outside the executive branch, say, to give it to Congress — he would first consult the White House.

The Trump team based its idea on a July 15, 2008, memo written by Michael Mukasey, at the time attorney general under George W. Bush. In 2008, Democrats had taken control of the House and were demanding that the administration turn over documents from the Valerie Plame CIA leak investigation that bedeviled the Bush White House from 2003 to 2007. The administration did, in fact, turn over a lot, but drew the line at interviews with the president and vice president. (House Democrats had made a particular villain of Vice President Dick Cheney and were hot to have information on him.) In the memo, Mukasey noted the long tradition of White Houses cooperating with criminal investigations — but not with Congress, a separate branch of government. Mukasey warned that while White House cooperation with the criminal investigation — the Patrick Fitzgerald probe — was good, submitting to Congress’s demands would be a bad idea.

“Were future presidents, vice presidents or White House staff to perceive that such voluntary cooperation [with a criminal investigation] would likely be made available to Congress (and then possibly disclosed publicly outside of judicial proceedings such as a trial),” Mukasey wrote, “there would be an unacceptable risk that such knowledge could adversely impact their willingness to cooperate fully and candidly in a voluntary interview.”

The Trump response to Mueller ran along similar lines. “The key was Mueller was within the executive branch and could be within privilege,” Dowd added. “So we had our protected pipeline to speed information to the office of the special counsel.”

Under Trump’s proposal, the White House would not have to go through each document page by page looking for privileged material — provided Mueller agreed to the White House’s conditions. “You can imagine what a nightmare it would be to take document by document and assert the privilege, because most of it was within [executive] privilege, and indeed the White House communications privilege,” said Dowd. “I thought it was a great idea. Ty Cobb got Bob’s and [top deputy James] Quarles’s promise that if they needed to use any of it publicly, they would come back to the White House.”

The deal led to an extraordinary transfer of documents and information to the special counsel’s office. For example, a White House official named Annie Donaldson, who was White House counsel Don McGahn’s chief of staff, took detailed, extensive notes on meetings that involved the president and the counsel’s office. Donaldson’s notes were a vivid, real-time look at what the president and his advisers said in key meetings that touched on the subject matter of Mueller’s investigation. They were voluminous — it would have taken hours to read them all — and they most certainly covered areas over which a president might legitimately claim privilege. Trump turned them over to Mueller. McGahn himself sat for more than thirty hours of interviews with the Mueller team. That’s a lot for investigators to demand from a high-ranking White House official, but McGahn did it because Trump did not object to the interviews going forward. Reince Priebus, Hope Hicks, Steve Bannon, K. T. McFarland, Jared Kushner, and others talked to the Mueller prosecutors at great length.

“Bob said on several occasions that he had never seen such cooperation,” Dowd recalled. “But that was the idea. We’re all pros. We all know each other. And the president, every time we gave them something, he blessed it. This wasn’t just one shot. We reported to him regularly, and he said, ‘Give it to them, we’ve got nothing to hide.’ We knew we were within the executive privilege pipeline.”

The president made sure that Mueller’s prosecutors never forgot that they should hold up their end of the deal. In the meetings between teams, the Trump side would often bring a message from the president, and each time, it went something like this: I respect what you are doing, but it is imposing on my ability to govern, particularly in foreign relations. They would recount an anecdote, sometimes containing sensitive information, of the investigation causing the president problems in dealing with foreign leaders. The conclusion was always the same: this needs to end as quickly as possible.

The arrangement represented Trump and his team placing an enormous amount of trust in Mueller and his prosecutors. After all, it was a fundamentally adversarial relationship. Mueller’s prosecutors might use the material to subpoena the president or even to indict him — that was, of course, against Justice Department policy, but it was publicly discussed at the time — or to create a road map for Congress to impeach him. Trump’s willingness to hand over evidence was a leap of faith.

“There was more trust in our relationship than in any in my entire career,” said Dowd.

The question of trust — that is, could Mueller and his team of prosecutors be trusted — was perhaps the most discussed issue on the Trump side in the early days. Not everyone agreed on Mueller’s worthiness of such trust. One of the skeptical ones was Jay Sekulow. “It wasn’t a personal thing,” he recalled. “I didn’t have the relationship with Mueller. I had met him probably three times in my life. This was John’s call. John had the experience and the relationship with him.”

On the other hand, Corallo, a Mueller fan from the Bush years, strongly supported the trust strategy. He even staked his position on it. “When I took this job, I said, ‘I won’t be a part of any personal attacks on Bob Mueller,’” Corallo recalled telling his colleagues on the legal team. “He’s a friend. I’m loyal. And I believe he’s going to do the right thing.”

Corallo paused a moment. “Now, in hindsight,” he continued, “maybe I was wrong.” Others would come to think that, too, as the investigation wore on.

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During the investigation’s early months, Mueller dived into the theory that the Trump campaign conspired or coordinated with Russia to fix the 2016 election — commonly known as collusion. Trump’s lawyers kept track of the witnesses Mueller interviewed first, and it was clear Mueller began chasing collusion from nearly his first day in office. The Trump team watched as Mueller looked at five possible episodes of collusion: 1) the activities of former low-level Trump campaign aide Carter Page; 2) the allegation that during the 2016 Republican National Convention, the Trump campaign “gutted” the GOP platform position on Ukraine to make it more palatable to Vladimir Putin; 3) the case of Michael Flynn, the short-tenured national security adviser; 4) the activities of George Papadopoulos, another former low-level Trump campaign aide; and 5) the infamous Trump Tower meeting of June 9, 2016. To that, Mueller added an episode in which the president assisted in the drafting of a statement Donald Trump Jr. made when the New York Times first reported the Trump Tower meeting. Even though it was a statement for the news media, not made to investigators, and not made under oath, Mueller investigated it as possible obstruction of justice. As 2017 wore on, Trump’s lawyers could see that Mueller was failing to establish that conspiracy or coordination had taken place; by the end of the year, the collusion theory had collapsed, even as the media continued to obsess about it. The Trump team had cooperated extensively with Mueller, the lawyers reminded the special counsel, and now, it was time for Mueller to hold up his end of the bargain and wrap up the investigation. Instead, Mueller moved in a new direction. From Obsession:

The change began in the fall of 2017. It was becoming clear to all involved that Mueller and his prosecutors were failing in the search for collusion and were shifting the investigation to a search for obstruction of justice. That meant the investigation would not only not be over by the end of 2017, but might go on for a very long time. Trump’s team remembered Mueller’s promise not to “let any grass grow under me” even as they watched the grass begin to grow under the special counsel.

The president himself was deeply concerned, and he continued to fret about the effect a continuing investigation would have on his ability to conduct world affairs. For example, on October 27, the AP reported that “Anders Fogh Rasmussen, the former NATO chief and adviser to Ukraine’s leader, said Russian President Vladimir Putin ‘must be laughing right now’ at how successfully he’s undermined Western democracy.” The next night, October 28, Cobb sent an email to Dowd and Sekulow. “Client just called,” Cobb said, referring to Trump. “TV saying Russia must be laughing — it’s killing him.”

It was just one more indication of how the investigation and surrounding publicity were diminishing Trump’s international influence and ability to govern effectively. “We have to keep this moving,” Sekulow responded to Cobb a few minutes later. “Keep letting Bob know there are consequences for the country. I know you all keep stressing that. It is real.”

A short time later, Dowd emailed the AP story to James Quarles. “Please pass to Bob,” Dowd wrote. “I know you are doing your best but this is what the president is putting up with ahead of his critical trip to Asia. Let me know if there is anything I can do to help accelerate your work.”

Three weeks later, Dowd sent Quarles another news story, “Russia Vetoes Independent UN Committee Probe of Syria Chemical Attacks.” Dowd added the message, “Jim, the President wanted you and Bob to know about this veto by Russia and there has been another chemical attack which will require action.” The message was clear each time: This probe is hampering the president. Prolonging it will make things worse. Please wrap it up.

What made the situation more bitter for the Trump team was that they could see that the collusion investigation was going nowhere. “By the end of November, first week of December, Bob was done,” recalled John Dowd. “He had exhausted all of the evidence and the witnesses. We knew it, and they knew we knew it. We knew all the facts, and we knew all the witnesses and all the documents. There was absolutely nothing there.”

“I think they knew early on they had no case,” said Jay Sekulow. “They were just fishing. It was obvious to us they had nothing. So they were going after these rather one-off events so that maybe they could concoct a story with a timeline. That just never materialized, because it didn’t happen.”

A meeting was scheduled for December 21. The Trump team’s position toward Mueller was going to be: it’s time for you to wrap this up. But that was not what Mueller had in mind.
“We can do the 21 December and hope we can talk about concluding this inquiry of the President,” Dowd wrote to Quarles on December 8. “From what we know, the facts demonstrate this cloud should be removed from his Presidency. He needs to do a full court press on the grave Russian threat without any question about his authority as the leader of this country on the world stage.”

Defense notes in preparation for the meeting began with the heading “Purpose: Conclusion of your inquiry of the President,” in bold and underlined. Later, there was a subheading, “End Game,” followed by two notations. The first was “Completion of witness interviews by December 22, 2017,” and the second was “Meeting with the [Special Counsel] before end of December 2017.” After that, “there is no basis to continue this inquiry and handicap this president,” the notes said.

When the meeting began, Dowd outlined the team’s position. “We said, ‘Look, we kept our end,’” Dowd recalled telling Mueller. “‘Are you going to hold up your end?’”

The next moment marked an enormous change in the course of the investigation. “Well, you know, if we’re going to square our corners,” Mueller replied, according to Dowd, “we ought to really talk to the president.”

A probe into collusion was one thing — an investigation into the actions of people affiliated in some way with the campaign. But a probe into obstruction of justice was something else — it was an investigation into the intentions of the president of the United States. The next year of the investigation was basically a fight over the president’s testimony.

Dowd started the defense right there on the spot. A 1997 District of Columbia Circuit Court ruling known as the Espy case — named for Mike Espy, who was Bill Clinton’s secretary of agriculture — held that prosecutors could not burden a president with questioning about just anything; they had to show that the information they sought from the president was both important and not available from any other source. Dowd remembered asking Mueller and his team what questions they had that only the president could answer, that met the standard under Espy.

“I never got an answer to that question,” Dowd said. “I probably put it to him nine times. But I never got an answer. …”

The phrase “square our corners” stuck in Dowd’s mind. “That’s when I first knew we were going to get the stall,” he continued. “And we were f—ed.”

For Dowd, as for the president, the meeting marked the end of the extraordinary level of trust the team had placed in Mueller. They had had a deal. Trump would turn over reams of potentially privileged information to Mueller, saving the special counsel months and possibly years of fighting over access. In return, Mueller would not drag out the investigation as others had done in previous Washington probes.

“We really relied on Mueller’s word,” Dowd recalled. “And he absolutely busted his word and played all sorts of games from then on. It was stunning to watch.”

The end of 2017 marked a “turning point,” Sekulow agreed. “It kind of put to bed the whole theory that this was going to end quickly.”

Byron York is chief political correspondent for the Washington Examiner and a Fox News contributor.