In late January, one of President Donald Trump’s lawyers, John Dowd, gave the press a memo declaring that, based on a page full of numbers in the memo, the White House has provided “unprecedented” cooperation in Special Counsel Robert Mueller’s investigation. Dowd made his declaration as the White House mulled how to respond to Mueller’s request for an interview with the president, thereby laying the groundwork to deny the request. The logic would go like this: Trump doesn’t need to undergo an interview given the White House’s extensive cooperation.
Like so many claims made by the Trump White House, however, Dowd’s bold declaration of “unprecedented” cooperation with the special counsel is overblown.
Amid a mess of bold, bullets, and underlined text, the thrust of Dowd’s memo relies on two main data points. The first is that the White House has turned over “over 20,000 pages” to Mueller’s team — of which two-thirds pertain to former National Security Adviser Michael Flynn’s links to Russia and former FBI chief Jim Comey’s firing. And the second point is that “over 20 White House personnel,” as detailed in Dowd’s memo, “voluntarily gave interviews.”
Like so many claims made by the White House, Dowd’s bold declaration of “unprecedented” cooperation is overblown.
Those numbers don’t stack up all that impressively against the most recent special counsel investigation involving the White House. In late 2003, Patrick Fitzgerald, then-U.S. attorney for Chicago, was appointed special counsel to lead the investigation into the leaking of CIA Officer Valerie Plame Wilson’s name to Robert Novak and other journalists. The scope of that inquiry was much narrower than Mueller’s — it focused on events that transpired over just two months, June and July 2003.
And yet, aside from some key emails that went missing, President George W. Bush’s White House appears to have provided cooperation with Fitzgerald that compares to the Trump administration’s cooperation with Mueller — even before you get to whether the president would agree to be interviewed in the inquiry. (Mueller’s office declined to comment on the level of cooperation for this story because of the ongoing investigation.)
According to Peter Zeidenberg, who served as Fitzgerald’s deputy in the investigation, the Bush White House turned over much material voluntarily, although the special counsel may have followed up with a subpoena. “The White House was extremely forthcoming,” Zeidenberg recalled. “We had no issues whatsoever with their cooperation.”
The eventual prosecution in the Plame affair — against I. Lewis “Scooter” Libby, chief of staff to Vice President Dick Cheney — gives some insight into the scope of the Bush White House’s willingness to cooperation with the special counsel.
An early status report in Libby’s prosecution described the Cheney aide as having received 10,150 pages in discovery. Of those pages, 850 were classified and surely included reports involving Wilson and her husband, Joe Wilson, from the CIA. But much of the rest, based on what was eventually presented at trial, would have consisted of Libby’s own notes, emails, and reports from within the vice president’s office.
Herein lies another worthwhile contrast: Much of the information collected by Libby from investigators during his discovery pertained to dealings regarding the press. Among other elements of Mueller’s investigation, Trump would, by moving to avoid an interview, escape having to answer questions about his dealings with the press. Mueller is said to have taken an interest in the crafting of a false statement — that Trump reportedly played a direct hand in — about a campaign meeting between Trump’s son and a Russian lawyer. As long as Trump doesn’t take Mueller’s interview request, his perspective on the statement will remain hidden.
And there is much more history to expand on. Fitzgerald had not, however, only obtained notes and emails pertaining to Libby. We know this because Libby would go on to demand documents pertaining to other White House officials — including then-Deputy National Security Adviser Stephen Hadley and senior Bush adviser Karl Rove — making it clear that he only received a portion of the materials turned over by the White House.
In addition to Hadley and Rove, then-Communications Director Dan Bartlett and Press Secretary Ari Fleischer’s conversations with the press had been a close focus of the investigation. All that suggests the actual documentation produced by the White House had to have been comparable, if not significantly greater, in the Plame case than in Trump’s case.
The documents presented at the Libby trial also included incredibly sensitive documents. A later court filing made it clear that the White House contemplated invoking executive privilege over some of them. Among others, the documents introduced at trial included Libby’s notes of comments made by Bush in meetings, and even materials derived from the Presidential Daily Briefs (though the PDBs were turned over by CIA, not the White House).
The Testifying Officials
That’s just the document production in the Plame affair investigation. Dowd’s memo also boasts that “over 20 White House personnel voluntarily gave interviews.” The claim is unimpressive compared to Fitzgerald’s investigation.
The potential witness list for Libby’s trial included 25 then-current or former White House staffers, ranging from assistants in the Office of the Vice President up to the vice president himself. Not everyone on the list was interviewed by Fitzgerald; then-National Security Adviser Condoleezza Rice, for example, was not. And Fitzgerald aides Zeidenberg and Randall Samborn, the special counsel’s spokesperson, don’t remember a few more of the witnesses listed. Nevertheless, that still puts the number of White House personnel who had been interviewed in the neighborhood of how many White House figures have been interviewed in Mueller’s investigation.
Dowd’s memo boasts that “over 20 White House personnel voluntarily gave interviews.” The claim is unimpressive compared to Fitzgerald’s investigation.
Then there’s the question of the campaign and transition records, which are entirely separate from the White House both legally and organizationally. To make these documents fit into the framework of a comparison between the investigations, let’s pit these documents, collected during Trump’s transition, against Fitzgerald’s demands that the government produce documents from other agencies like the CIA and State Department. (The comparison here cannot be carried to completion, because Fitzgerald’s investigation included elements still obscured from the public, like what he collected investigating then-State Department Deputy Secretary Richard Armitage.)
Dowd’s memo starts with an impressive claim about the collection from the campaign: “In all, over 1.4 million pages of documents were produced to the Special Counsel by the Campaign.” The memo then goes on to describe how “over 28,000” pages got turned over to various congressional committees, amounting to some 12,540 documents total. Dowd explained that he gave copies of the documents handed over to the congressional committees to the special counsel as well.
Nowhere does Dowd account for where the 1.4 million page number came from. When asked, he said only that the number originated with the firm that handled the handing over of documents. It might refer to the “tens of thousands” of emails obtained by the Special Counsel’s Office directly from General Services Administration — which provides office space and communications equipment to presidents-elect during the transition period. It is worth noting that the Trump transition complained to Congress in December about GSA handing over its materials. What’s more, a source involved with those GSA emails (who asked for anonymity to discuss them) doesn’t know where that number comes from either. (Trump’s campaign lawyer, Ben Ginsberg, did not respond to a request for clarification.)
The President Himself
These dizzying numbers just serve as cover for the real distinction between the Trump White House response to being investigated and the Bush response: whether the president can manage an interview.
On Tuesday, the New York Times reported that Dowd, just weeks after claiming this White House has shown unprecedented cooperation, “wants to rebuff an interview request” from Mueller. Along with some legal bases for claiming that Trump should not willingly agree to an interview, Dowd and Trump’s other lawyers reportedly “are concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators.”
Compare that to the Plame affair leak investigation, when Bush sat for an interview in June 2004, and Cheney — who himself made some grossly false statements in his tenure — sat for one in May 2004 and a little-known follow-up that August. According to Cheney’s autobiography, “[T]he second session was conducted under oath so that [his] testimony could be submitted to the grand jury.” Zeidenberg, for his part, doesn’t remember any of those interviews requiring a subpoena.
Samborn, the Fitzgerald spokesperson who was famously reticent during the whole CIA leak investigation, offered an expansive rebuttal to Dowd’s claim that this White House has offered unprecedented cooperation. “Trump’s team can claim all the cooperation it wants, and whether justifiably so or not, it seems to me that it all gets negated, if at the end, he personally refuses to be questioned when so much substance depends on what he knew and did, as well as his state of mind.”
Any refusal to sit for an interview, Samborn said, was central evaluating the level of cooperation.
“That’s sort of the ultimate in noncooperation,” he explained, “especially after saying he looks forward to being interviewed and under oath.”
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