Inside Trump’s two-year war on the investigations encircling him
WASHINGTON — As federal prosecutors in Manhattan gathered evidence late last year about President Trump’s role in silencing women with hush payments during the 2016 campaign, Trump called Matthew Whitaker, his newly installed attorney general, with a question. He asked whether Geoffrey S. Berman, the US attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several US officials with direct knowledge of the call.
Whitaker, who had privately told associates that part of his role at the Justice Department was to “jump on a grenade” for the president, knew he could not put Berman in charge because Berman had already recused himself from the investigation. The president soon soured on Whitaker, as he often does with his aides, and complained about his inability to pull levers at the Justice Department that could make the president’s many legal problems go away.
Trying to install a perceived loyalist atop a widening inquiry is a familiar tactic for Trump, who has been struggling to beat back the investigations that have consumed his presidency. His efforts have exposed him to accusations of obstruction of justice as Robert Mueller, the special counsel, finishes his work investigating Russian interference in the 2016 election.
Trump’s public war on the inquiry has gone on long enough that it is no longer shocking. Trump rages almost daily to his 58 million Twitter followers that Mueller is on a “witch hunt” and has adopted the language of Mafia bosses by calling those who cooperate with the special counsel “rats.” His lawyer talks openly about a strategy to smear and discredit the special counsel investigation. The president’s allies in Congress and the conservative news media warn of an insidious plot inside the Justice Department and the FBI to subvert a democratically elected president.
An examination by The New York Times reveals the extent of an even more sustained, more secretive assault by Trump on the machinery of federal law enforcement. Interviews with dozens of current and former government officials and others close to Trump, as well as a review of confidential White House documents, reveal numerous unreported episodes in a two-year drama.
White House lawyers wrote a confidential memo expressing concern about the president’s staff peddling misleading information in public about the firing of Michael Flynn, the Trump administration’s first national security adviser. Trump had private conversations with Republican lawmakers about a campaign to attack the Mueller investigation. And, there was the episode when he asked his attorney general about putting Berman in charge of the Manhattan investigation.
Whitaker, who this month told a congressional committee that Trump had never pressured him over the various investigations, is now under scrutiny by House Democrats for possible perjury.
A Justice Department spokeswoman said Tuesday that the White House had not asked Whitaker to interfere in the investigations. “Under oath to the House Judiciary Committee, then Acting Attorney General Whitaker stated that ‘at no time has the White House asked for nor have I provided any promises or commitments concerning the special counsel’s investigation or any other investigation,’ ” said the spokeswoman, Kerri Kupec. “Mr. Whitaker stands by his testimony.”
The White House declined to comment for this article.
The story of Trump’s attempts to defang the investigations has been voluminously covered in the news media, to such a degree that many Americans have lost track of how unusual his behavior is. But fusing the strands reveals an extraordinary story of a president who has attacked the law enforcement apparatus of his own government like no other president in history, and who has turned the effort into an obsession. Trump has done it with the same tactics he once used in his business empire: demanding fierce loyalty from employees, applying pressure tactics to keep people in line, and protecting the brand — himself — at all costs.
It is a public relations strategy as much as a legal strategy — a campaign to create a narrative of a president hounded by his “deep state” foes. The new Democratic majority in the House, and the prospect of a wave of investigations on Capitol Hill this year, will test whether the strategy shores up Trump’s political support or puts his presidency in greater peril. The president has spent much of his time venting publicly about there being “no collusion” with Russia before the 2016 election, which has diverted attention from a growing body of evidence that he has tried to impede the various investigations.
Julie O’Sullivan, a criminal law professor at Georgetown University, said she believed there was ample public evidence that Trump had the “corrupt intent” to try to derail the Mueller investigation, the legal standard for an obstruction of justice case.
But this is far from a routine criminal investigation, she said, and Mueller will have to make judgments about the effect on the country of making a criminal case against the president. Democrats in the House have said they will wait for Mueller to finish his work before making a decision about whether the president’s behavior warrants impeachment.
In addition to the Mueller investigation, there are at least two other federal inquiries that touch the president and his advisers — the Manhattan investigation focused on the hush money payments made by Trump’s lawyer, Michael Cohen, and an inquiry examining the flow of foreign money to the Trump inaugural committee.
The president’s defenders counter that most of Trump’s actions under scrutiny fall under his authority as the head of the executive branch. They argue that the Constitution gives the president sweeping powers to hire and fire, to start and stop law enforcement proceedings, and to grant presidential pardons to friends and allies. A sitting American president cannot be indicted, according to current Justice Department policy.
Trump’s lawyers add this novel response: The president has been public about his disdain for the Mueller investigation and other federal inquiries, so he is hardly engaged in a conspiracy. He fired one FBI director and considered firing his replacement. He humiliated his first attorney general for being unable to “control” the Russia investigation and installed a replacement, Whitaker, who has told people he believed his job was to protect the president. But that, they say, is Donald Trump being Donald Trump.
In other words, the president’s brazen public behavior might be his best defense.
Trump has moved on to a new attorney general, William P. Barr, whom Trump nominated for the job in part because of a memo Barr wrote last summer making a case that a sitting American president cannot be charged with obstruction of justice for acts well within his power — like firing an FBI director.
A president cannot be found to have broken the law, Barr argued, if he was exercising his executive powers to fire subordinates or use his “complete authority to start or stop a law enforcement proceeding.”
The memo might have ingratiated Barr to his future boss, but Barr is also respected among the rank and file in the Justice Department. Many officials there hope he will try to change the Trump administration’s combative tone toward the department as well as the FBI.
Whether it is too late is another question. Trump’s language, and allegations of “deep state” excesses, are now embedded in the political conversation, used as a cudgel by the president’s supporters.
This past December, days before Flynn was to be sentenced for lying to the FBI, his lawyers wrote a memo to the judge suggesting that federal agents had tricked the former national security adviser into lying. The judge roundly rejected that argument, and on sentencing day he excoriated Flynn for his crimes.
The argument about FBI trickery did, however, appear to please the one man who holds great power over Flynn’s future — the constitutional power to pardon.
“Good luck today in court to General Michael Flynn,” Trump tweeted cheerily on the morning of the sentencing.