Update: An Obama-appointed federal judge, U.S. District Court Judge Ketanji Brown Jackson, ruled on Monday, Nov. 25, that former White House Counsel Don McGahn is not "absolutely immune” from speaking to the House Judiciary Committee, which has subpoenaed his testimony.
McGahn and the Trump Justice Department are likely to appeal the ruling. And while the judge said McGahn must show up, he may also refuse to answer some questions.
This report was originally filed on April 19.
(CNSNews.com) - In two tweets on Friday morning, President Trump complained that "Statements are made about me by certain people in the Crazy Mueller Report...which are fabricated & totally untrue. Watch out for people that take so-called 'notes,' when the notes never existed until needed."
Trump said some of the statements about him "are total bullshit & and only given to make the other person look good (or me to look bad)."
As the Mueller report makes clear (Page 113, Part II), President Trump was particularly angry at White House Counsel Don McGahn (a note-taker, whose recollections are frequently cited in the Mueller report's many footnotes).
The report says President Trump, after learning he was being investigated for obstruction of justice in June 2017, called McGhan twice and told him to have Mueller removed as special counsel; McGhan threatened to resign rather than carry out the order; and later, when the media reported that Trump had told McGhan to remove Mueller, Trump "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."
According to the Mueller report (and what follows is mostly direct quotations):
On June 14, 2017, The Washington Post published an article saying that the Special Counsel was investigating whether the President had attempted to obstruct justice.
That evening, at approximately 10:31 p.m., the president called McGahn on McGahn's personal cell phone and they spoke for about 15 minutes. McGahn did not have a clear memory of the call but thought they might have discussed the stories reporting that the President was under investigation. Beginning early the next day, June 15, 2017, the President issued a series of tweets acknowledging the existence of the obstruction investigation and criticizing it.
On Saturday, June 17, 2017, the President called McGahn again and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call [Deputy Attorney General Rod] Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.
On the first call, McGahn recalled that the President said something like, "You gotta do this. You gotta call Rod." McGahn said he told the President that he would see what he could do. McGahn was perturbed by the call and did not intend to act on the request. He and other advisors believed [that Mueller's conflicts of interest as alleged by Trump] were "silly" and "not real," and they had previously communicated that view to the President. McGahn also had made clear to the President that the White House Counsel's Office should not be involved in any effort to press the issue of conflicts.
When the President called McGahn a second time to follow up on the order to call Rosenstein, McGahn recalled that the President was more direct, saying something like, "Call Rod, tell Rod that Mueller has conflicts and can't be the Special Counsel." McGahn recalled the President telling him "Mueller has to go" and "Call me back when you do it."
McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein. To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein. McGahn recalled that he had already said no to the President's request and he was worn down, so he just wanted to get off the phone.
McGahn recalled feeling trapped because he did not plan to follow the President's directive but did not know what he would say the next time the President called. McGahn decided he had to resign. He called his personal lawyer and then called his chief of staff, Annie Donaldson, to inform her of his decision. He then drove to the office to pack his belongings and submit his resignation letter.
McGhan told the Special Counsel he decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre.
That evening, June 17, 2017, McGahn called both Priebus and Bannon and told them that he intended to resign. McGahn recalled that, after speaking with his attorney and given the nature of the President's request, he decided not to share details of the President's request with other White House staff. Priebus recalled that McGahn said that the President had asked him to "do crazy shit."
Priebus and Bannon both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and remained in his position. He had not told the President directly that he planned to resign, and when they next saw each other the President did not ask McGahn whether he had followed through with calling Rosenstein.
Around the same time, Chris Christie recalled a telephone call with the President in which the President asked what Christie thought about the President firing the Special Counsel. Christie advised against doing so because there was no substantive basis for the President to fire the Special Counsel, and because the President would lose support from Republicans in Congress if he did so.
The Mueller report said McGahn's "clear recollection was that the President directed him to tell Rosenstein not only that conflicts existed but also that 'Mueller has to go.'"
The report describes McGahn as a "credible witness with no motive to lie or exaggerate given the position he held in the White House." Also, "McGahn spoke with the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President's request."
In late January 2018, The New York Times reported that in June 2017 the President had ordered McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn had refused, saying he would quit instead. After the story broke, the President, through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel.
McGhan refused to deny it.
Then, on February 6, 2018, Chief of Staff John Kelly scheduled time for McGahn to meet with him and the President in the Oval Office to discuss the Times article.
According to the Mueller report, the President began the Oval Office meeting by telling McGahn that the New York Times story did not "look good" and McGahn needed to correct it. McGahn recalled the President said, "I never said to fire Mueller. I never said 'fire.' This story doesn't look good. You need to correct this. You're the White House counsel.”
In response, McGahn acknowledged that he had not told the President directly that he planned to resign, but said that the story was otherwise accurate. The President asked McGahn, "Did I say the word 'fire'?" McGahn responded, "What you said is, 'Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can't be the Special Counsel."
The President responded, "I never said that." The President said he merely wanted McGahn to raise the conflicts issue with Rosenstein and leave it to him to decide what to do. McGahn told the President he did not understand the conversation that way and instead had heard, "Call Rod. There are conflicts. Mueller has to go."
The President asked McGahn whether he would "do a correction," and McGahn said no. McGahn told the Special Counsel he thought the President was testing his mettle to see how committed McGahn was to what happened. Kelly described the meeting as "a little tense."
The President also asked McGahn in the meeting why he had told Special Counsel's Office investigators that the President had told him to have the Special Counsel removed. McGahn responded that he had to and that his conversations with the President were not protected by attorney-client privilege.
The President then asked, "What about these notes? Why do you take notes? Lawyers don t take notes. I never had a lawyer who took notes." McGahn responded that he keeps notes because he is a "real lawyer" and explained that notes create a record and are not a bad thing. The President said, "I've had a lot of great lawyers, like Roy Cohn. He did not take notes."
In its analysis, the Mueller report notes that the president's "repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully..."
And in examining the president's "intent," the Mueller report states:
Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn's account in order to deflect or prevent further scrutiny of the President's conduct towards the investigation.
Several facts support that conclusion. The President made repeated attempts to get McGahn to change his story. As described above, by the time of the last attempt, the evidence suggests that the President had been told on multiple occasions that McGahn believed the President had ordered him to have the Special Counsel terminated. McGahn interpreted his encounter with the President in the Oval Office as an attempt to test his mettle and see how committed he was to his memory of what had occurred.
The President had already laid the groundwork for pressing McGahn to alter his account by telling (White House aide Rob) Porter that it might be necessary to fire McGahn if he did not deny the story, and Porter relayed that statement to McGahn.
Additional evidence of the President's intent may be gleaned from the fact that his counsel was sufficiently alarmed by the prospect of the President's meeting with McGahn that he called McGahn's counsel and said that McGahn could not resign no matter what happened in the Oval Office that day. The President's counsel was well aware ofvMcGahn's resolve not to issue what he believed to be a false account of events despite the President's request.
Finally...the President brought up the Special Counsel investigation in his Oval Office meeting with McGahn and criticized him for telling this Office about the June 17, 2017 events. The President's statements reflect his understanding -- and his displeasure -- that those events would be part of an obstruction-of-justice inquiry.