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COMMITTEE ON THE JUDICIARY,
U.S. HOUSE OF REPRESENTATIVES,
WASHINGTON, D.C.





INTERVIEW OF: DON MCGAHN




Friday, June 4, 2021

Washington, D.C.


The interview in the above matter was held in Room 2141, Rayburn House Office
Building, commencing at 10:05 a.m.



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Present: Representatives Nadler, Jackson Lee, Johnson of Georgia, Raskin,
Scanlon, Dean, Jordan, and Gaetz.
Staff Present: Perry Apelbaum, Staff Director and Chief Counsel; Aaron Hiller,
Deputy Chief Counsel; Arya Hariharan, Chief Oversight Counsel; Sarah Istel, Oversight
Counsel; Priyanka Mara, Professional Staff Member; Cierra Fontenot, Chief Clerk; Kayla
Hamedi, Deputy Press Secretary; Will Emmons, Professional Staff Member; Anthony
Valdez, Professional Staff Member; Steve Castor, Minority General Counsel; James
Lesinski, Minority Counsel; Betsy Ferguson, Minority Senior Counsel; Caroline Nabity,
Minority Counsel; Michael Koren, Minority Senior Professional Staff; Darius Namazi,
Minority Research Assistant; and Isabela Belchior, Legislative Director for Representative
Matt Gaetz.


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Appearances:



For DON MCGAHN:

ALLISON MCGUIRE
WILLIAM A. BURCK
QUINN EMANUEL URQUHART & SULLIVAN, LLP
1300 I Street NW
Suite 900
Washington, D.C. 20005

For the DEPARTMENT OF JUSTICE:

ELIZABETH SHAPIRO, COUNSEL

For the OFFICE OF THE FORMER PRESIDENT TRUMP:

SCOTT GAST



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Mr. Hiller. All right. We'll go on the record.
Good morning. I'm Aaron Hiller, deputy chief counsel for the House Judiciary
Committee, and I have the honor of kicking things off today.
This is a transcribed interview of former White House counsel, Donald F. McGahn.
Would the witness please state his name and formal position at the White House
for the record?
Mr. McGahn. I'm Donald McGahn. I was the counsel to the President.
Mr. Hiller. Thank you, sir. Thank you for appearing here today.
I will now ask everyone who is here in the room to introduce themselves for the
record. Remember to hit the "talk" button on your microphone. If you're not near a
microphone, speak real loud for the reporters, starting with Chairman Nadler.
Chairman Nadler. I am Jerrold Nadler, chairman of the Judiciary Committee.
Ms. Istel. Sarah Istel, counsel for House Judiciary Committee.
Mr. Hiller. Mr. Raskin, why don't we go with the members first?
Mr. Raskin. Jamie Raskin, member of the Judiciary Committee.
Mr. Johnson of Georgia. Hank Johnson, member of the Judiciary Committee.
Ms. Dean. Madeleine Dean, member of the Judiciary Committee.
Ms. Scanlon. Mary Gay Scanlon, member of the Judiciary Committee.
Mr. Jordan. Jim Jordan, Fourth District of Ohio.
Mr. Gaetz. Matt Gaetz, Judiciary Committee member.
Mr. Hiller. And now the staff present, please. Mr. Apelbaum.
Mr. Apelbaum. Perry Apelbaum, chief counsel, Judiciary Committee.
Ms. Hariharan. Arya Hariharan, chief oversight counsel, majority staff.
Mr. Emmons. Will Emmons, professional staff member, Judiciary staff.
Ms. Mara. Priyanka Mara, professional staff member, majority staff.


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Mr. Valdez. Anthony Valdez, professional staff member, majority staff.
Mr. Gast. Scott Gast, Office of the Former President Trump.
Ms. Belchior. Isabela Belchior. I'm with the office of Matt Gaetz.
Mr. Koren. Michael Koren, professional staff with Mr. Jordan's staff.
Mr. Lesinski. James Lesinski, Republican counsel.
Mr. Castor. Steve Castor with the Republican staff.
Ms. Ferguson. Betsy Ferguson, senior counsel, Republican staff.
Ms. Nabity. Caroline Nabity, Republican staff member.
Mr. Hiller. Thank you.
Ms. Jackson Lee.
Ms. Jackson Lee. Sheila Jackson Lee, representing Texas' 18th Congressional
District. Thank you.
Mr. Hiller. And here at the table.
Mr. Burck. William Burck, counsel for Don McGahn.
Ms. Shapiro. Elizabeth Shapiro, counsel for the Department of Justice.
Ms. McGuire. Allison McGuire, counsel for Don McGahn.
Mr. Hiller. Thank you, everybody.
Mr. McGahn, before we begin in earnest, I'm going to set some context and go
over the ground rules for the day.
The committee first issued a subpoena for Mr. McGahn's testimony on April 22,
2019. Mr. McGahn was scheduled to testify before the committee on May 21, 2019, but
did not appear at that time.
Pursuant to House rules, in order to carry over our request for Mr. McGahn's
testimony to the new Congress, the committee reissued its subpoena to Mr. McGahn on
January 11, 2021.


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In an attempt to resolve our suit to enforce that subpoena and compel that
testimony, the committee has reached an accommodation with the Department of Justice
concerning the format and scope of this interview. The full details of that agreement are
on file with the court. I will not read the whole thing here, but I'll get to the salient
details. We should discuss a few aspects of that arrangement before we begin.
First, members of the public, the press, and Members of Congress who are not on
the Judiciary Committee are not permitted to attend this interview. We will also try to
keep the staff in this room to a minimum. And the chairman has instructed us to enforce
this understanding.
Second, under the strict terms of the agreement, only committee counsel, private
counsel for Mr. McGahn, and counsel for the Department are permitted in this room.
However, as a courtesy to the former President and at the request of Mr. McGahn's
attorney, the chairman will permit counsel for President Trump to observe today as well.
I am instructed to remind counsel for both the current administration and the
former President that you are guests in this room, and I would ask that you please keep
this in mind as we proceed.
Out of fairness to our witness, we will try to keep any interruptions to a minimum.
If counsel for Mr. McGahn or the Department would like to register an objection, we will
pause the interview and attempt to resolve our disagreements quickly and quietly on the
side.
Third, at the conclusion of the interview, Mr. McGahn, the committee will make
the transcript available to you and to the Department for review prior to its publication.
The chairman notes that, in accordance with our agreement, all members and staff
present are required to maintain the confidentiality of that transcript until we are able to
make the document public.


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Under the terms of our agreement with the Department, today's interview will
cover the following topics, and I am quoting directly from the agreement here: one,
information attributed to Mr. McGahn in the publicly available portions of the Mueller
report and events that the publicly available portions of the Mueller report indicate
involve Mr. McGahn; and, two, whether the Mueller report accurately reflected Mr.
McGahn's statements to the Special Counsel's Office and whether those statements were
truthful, unquote.
To be clear, either side may ask Mr. McGahn any questions on any number of
topics, but within that agreed-upon scope, the Department will not raise any privilege
issues and the committee expects that Mr. McGahn will respond to questions in that
frame with direct and complete answers.
I'll pause for a moment to see if Mr. McGahn has any questions so far. Okay.
Thank you. Just a little more official business, and then we'll begin.
Our questioning will proceed in 60-minute rounds. The majority will ask questions
for one hour, and then the minority will have the opportunity to ask questions for an
equal period of time. We will repeat this back and forth for additional rounds as
necessary.
The interview will end at the discretion of the chair, provided that the majority
and the minority have had an opportunity to question you for an equal amount of time.
The majority and minority rounds are controlled by the chairman and ranking member,
respectively.
To maintain a clear record for the official reporter, there will be no interruptions
by individuals or members not authorized to ask questions. It is also important that we
do not talk over one another or interrupt each other if we can help it. Typically, we take a
short break at the end of each hour of questioning, but if you need an additional break for


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any reason, please let us know.
We will also break between majority and minority rounds in order to allow for
appropriate health and safety measures. As you can see, the physical layout of the room
is a little different than it normally is, in order to comply with health and safety guidelines
from the House Sergeant at Arms and the Attending Physician.
Mr. McGahn, an official reporter is taking down everything we say to make a
written record, so we ask that you give verbal responses to all questions. Do you
understand this? This is a test.
Mr. McGahn. Yes.
Mr. Hiller. Thank you, sir.
The committee encourages witnesses who appear for transcribed interviews to
consult freely with counsel if they so choose. You understand that you may consult with
your private counsel at any time, correct?
Mr. McGahn. Yes.
Mr. Hiller. Although this interview is not under oath, Federal law requires you to
answer questions from Congress truthfully. Do you understand this?
Mr. McGahn. Yes.
Mr. Hiller. That same obligation applies to questions posed by congressional staff.
Do you understand this as well?
Mr. McGahn. Yes.
Mr. Hiller. Witnesses who knowingly provide false testimony could be subject to
criminal prosecution under 18 U.S.C., Section 1001. Do you understand this?
Mr. McGahn. Yes.
Mr. Hiller. Is there any reason you are unable to provide truthful answers to
today's questions?


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Mr. McGahn. No.
Mr. Hiller. Thank you, sir.
As I noted earlier, we anticipate that our questions will receive complete
responses. If you do not understand a question, please say so. If you honestly do not
know the answer to a question or do not remember it, please say so and give us your best
recollection. If you learned the information from someone else, please inform us who, to
the best of your knowledge, might be able to provide a more complete answer to the
question.
Mr. McGahn, this is the end of my preamble. Do you have any questions before
we begin?
Mr. McGahn. No, no questions.
Mr. Hiller. Thank you, sir. Would you like to make any sort of opening statement
before we begin?
Mr. McGahn. No, but I appreciate you asking.
Mr. Hiller. All right. The majority will now begin its questioning with Ms. Istel.
The time is 10:15. The floor is yours.
EXAMINATION
BY MS. ISTEL:
Q
Mr. McGahn, thanks for being here.
A
Good morning.
Q
During my questions, I'll be referencing page numbers from the report.
Unless I specify otherwise, I will be referring to Volume II of the report. If at any point
you want to take a minute and read the relevant portion, just ask.
A
Okay. Is that what this binder is in front of me?
Q
Yes. The binder in front of you has the full Mueller report, and I believe your


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counsel has a copy as well. Let me know when you're ready.
A
I have Volume II in front of me.
Q
Great. I want to begin by asking you about the special counsel's
appointment. Do you recall a meeting in the Oval Office on May 17, 2017, during which
the appointment of the special counsel was discussed?
A
No. Is there something in the report that you're referencing?
Q
Let me direct --
A
You're throwing out a date more than 4 years ago, so I apologize. But May
17th and --
Q
Understood. It was an --
A
-- no context, it's tough to pick a date.
Q
-- important day, but --
A
Well, maybe.
Q
-- let me direct you to page 78 of the report, first main paragraph. It says:
The President learned of the special counsel's appointment from Sessions, who was on
with the President, Hunt, and McGahn conducting interviews for a new FBI Director.
Sessions stepped out of the Oval Office to take a call from Rosenstein, who told him
about the special counsel appointment, and Sessions then returned to inform the
President of the news.
Does that refresh your recollection?
A
It does, yes.
Q
As reflected in what I just read, during that meeting, the President learned of
the special counsel's appointment. Can you tell us the President's reaction to that
appointment?
A
Well, I think the report goes on to describe it in some detail.


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Q
I'm asking for your recollection of what the President's reaction was at the
time.
A
Well, again, you know, you're asking about something 4 years ago, but what
you've read in the report is accurate, and the next sentence is also what happened.
Q
What's the next sentence you're referring to, please?
A
It says: According to notes written by Hunt, when Sessions told the
President that a special counsel had been appointed, the President sunk back in his chair
and said, "Oh my God. This is terrible. This is the end of my Presidency. I'm fucked."
Q
Do you recall the President's tone when he said that?
A
His tone? I don't really recall his tone. Tone is subjective so tough to --
Q
Was he angry when he said that?
A
I don't think at this point it would be considered anger. I think he -- I think
he felt like, from my perception, that this was bad news.
Q
What was your understanding as to why he felt "this is terrible, this is the
end of my Presidency, I'm F'd," in response to the special counsel's appointment?
A
You'd have to ask him.
Ms. Shapiro. Can I interrupt? His answers need to be limited to what's in the
report because communications between executive branch officials are outside the scope
even in the event part of the agreement.
Ms. Istel. His answers need to be limited to information attributed to him and
events the publicly available portions of the Mueller report indicate involved Mr.
McGahn. He was present.
Ms. Shapiro. Excluding communications between executive branch officials.
Ms. Istel. But this isn't a communication. I'm asking him what he understood the
President to mean when he said that.


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Ms. Shapiro. Okay. Just so we're clear we're excluding those communications.
Fine.
Ms. Istel. Understood.
BY MS. ISTEL:
Q
I'll repeat the question.
A
Yeah, sorry.
Q
That's okay.
A
What's the question?
Q
What was your understanding as to why the President felt that the
appointment of the special counsel was, quote, "terrible, this is the end of my Presidency,
I'm F'd"?
A
Well, I think what he said speaks for itself. I'm not sure what I can add to
bring it to life more than what's on the page.
Q
Do you recall the President saying anything else during that meeting about
the special counsel's appointment?
A
Well, the report goes on and recounts other parts. He certainly had other
things to say, yes. It wasn't the end of the meeting.
Q
In the first paragraph on page 78, it says: The President became angry and
lambasted the Attorney General for his decision to recuse himself from the investigation,
saying, "How could you let this happen, Jeff?"
What did you understand the President to mean by that?
A
I think he meant what he said: How could you let this happen? "This," I read
"this" as --
Q
What did "this" refer to?
A
Say again? Sorry.


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Q
What did you understand "this" to refer to, the special counsel's
appointment?
A
Yes.
Q
Was it your understanding that the President believed that if Sessions had
not recused himself, the special counsel would not have been appointed?
A
I don't know what the President would have understood. I wasn't in his
mind. And this was -- you know, this was a meeting within a meeting. I think the report
explains this. We were in the process of interviewing a new FBI Director. So this wasn't a
regularly scheduled meeting with the usual mental preparedness to be on your toes. So it
was a fluid situation.
Q
Do you recall the President saying, "You were supposed to protect me," or
words to that effect when he got angry at Sessions?
A
You're reading from the report? Yes, there it is. Right. That's what he said.
Yeah.
Q
When the President said, "You were supposed to protect me," what did you
understand the President to mean? What did he want Sessions to protect him from?
A
Well, I think the next sentence in the report answers that question, where he
talks about the consequences of the appointment. And according to the report, he says:
Everyone tells me if you get one of these independent counsels, it ruins your Presidency.
It takes years and years, and I won't be able to do anything. This is the worst thing that
ever happened to me.
I think that's also responsive to your previous question as to what was in the
President's mind. I think the President told us very clearly what he was thinking.
Q
Do you recall the President telling Sessions that he should resign during that
meeting?


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Ms. Shapiro. Don't answer. Outside of the --
BY MS. ISTEL:
Q
Let me direct you to the report on page 79.
A
Yes.
Q
First paragraph.
A
Yes.
Q
What was your --
A
The report says: The President then told Sessions he should resign as
Attorney General.
Q
And it goes on to say that Sessions agreed --
A
The President may have said maybe he should resign. I don't -- you know,
that's not a direct quote, but that -- you know, that -- you know, going on 4 years' worth
of memory, that's -- I don't quibble with the syntax.
Q
But do you recall that?
A
I do recall. Yeah, I recall that exchange.
Q
And what was your reaction when the President said he thought Sessions
should resign?
A
Well, the discussion at that point was between the Attorney General and the
President. My reaction was as an observer. I didn't have a reaction at the time.
Q
You didn't have any reaction to the President saying to the Attorney General
in the Oval Office that he should potentially resign as a result of the special counsel's
appointment?
A
What reaction would I have had?
Q
Surprise, concern.
A
Oh, I thought you meant sort of -- some sort of statement or some sort of


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physical manifestation.
Q
No, your personal reaction at the time.
A
You know, it's not the sort of thing that happens every day. It's not the sort
of thing one would anticipate happening. It's one of these things that what went through
my mind was this is a rather historic potential moment here, where the President is
having a showdown with his Attorney General. That doesn't happen every day. They
don't teach you this in law school.
Q
Did you think that was an appropriate reaction to the appointment of the
special counsel?
A
Appropriate from whom, the President or Jeff Sessions?
Q
From the President.
A
I don't think in terms of appropriateness. As counsel, I try to remain neutral
in such things and try to play my role as a lawyer. So I don't really pass judgment on
appropriateness. I try to advise in real time.
Q
Well, as a White House counsel for the President, did you have any concern
with the President suggesting that his Attorney General should resign as a result of the
special counsel's appointment?
A
Certainly.
Q
What was your concern?
A
That the President was asking the Attorney General to step down.
Q
Why was that concerning?
A
Because the Attorney General is the Cabinet-level, Senate-confirmed head
law enforcement officer of the U.S. It's not an inconsequential moment.
Q
Were you concerned there could be any legal consequences if the President
asked the Attorney General to resign as a result of the special counsel's appointment?


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A
In that moment, potentially. I don't really recall specifically because things
happened very quickly. But it certainly was an important moment.
Q
What potential consequences could there have been?
A
Well, now you're asking me a different question.
Q
Yes.
A
Right. And you're asking me sort of for a legal conclusion and a legal analysis
of what could have happened and may have happened.
But what didn't happen was Sessions never actually left being Attorney General.
So all that is hypothetical as to what could have happened if Jeff actually resigned.
Q
But sitting there in your role as White House counsel, it was your
responsibility to advise the President of any potential legal consequences that could occur
as a result of him asking the Attorney General to resign, correct?
A
I don't agree with that.
Q
Why not?
A
I don't see it as my responsibility to advise in this circumstance. I mean, it's
certainly my job to be the counsel to the President, but this wasn't a situation where
there is any indication that there was an opportunity to offer said advice.
Q
So, as counsel to the President, you would not have advised him when you
saw him ask his -- suggest that his Attorney General should resign as to what potential
consequences that could occur from that?
A
I don't understand the question. You're sort of taking a live moment where
things happened very quickly and trying to put a very --
Q
I'm just asking --
A
-- cool gloss as if there was some --
Q
-- at the time --


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A
-- academic moment to have a long discussion of consequences of things
when that moment never occurred.
Q
Okay. So, at the time, you did not consider whether there could be potential
legal consequences to the President's action?
A
That's not what I said.
Q
Excuse me?
A
That's not what I said, I don't think.
Q
I'm asking you the question, sir, please.
A
Okay. Repeat the question.
Q
At the time, did you think there could be potential legal consequences for
the President's actions?
A
Certainly.
Q
What consequences could there be?
A
We'd have to find a new Attorney General would be the first problem. We
were struggling to find an FBI Director that very day -- not struggling; interviewing people.
Two, Sessions had recused from the matter.
Q
Why was that concerning?
A
Well, if he would be -- if he was recused from the matter, he wasn't in the
chain of command. So sort of hoisting him up as the one to remove, I guess the good
news there it wouldn't have affected whatever the FBI had been working on at the time.
So I guess there's a legal consequence in there somewhere. But my point is that --
Q
What legal consequence is in there somewhere?
A
Say again?
Q
You said there's a legal consequence in there somewhere. Can you just
explain to me what that legal consequence in there somewhere --


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A
It would be theoretical, I guess. The Attorney General resigns, and then,
from there, there could be various chains of events that could occur that raise other legal
issues.
And that's the thing about legal issues; they tend to come, you know, in waves and
down the road. But that's all hypothetical because Sessions actually didn't leave the job.
Q
In the days following the special counsel's appointment, did the President
express concern that Mueller had conflicts of interest that prevented him from serving as
special counsel?
A
Are you looking -- are you referring to something in the report?
Q
Page 80, first paragraph.
A
Okay.
Q
Under No. 2.
A
All right. Okay. So you're looking paragraph 2, bullet 2: In the days
following the special counsel's appointment, the President repeatedly told advisers,
including Priebus, Bannon, and McGahn, that Special Counsel Mueller had conflicts of
interest.
Yes. Yes.
Q
What was your reaction when the President suggested that Mr. Mueller had
conflicts of interest?
A
My reaction? Again, tough to put subjectivity into words. I think the report
gets into some of this. Are you looking at something? Is there something in the report
that reflects my reaction? Was there some reaction that's been attributed to me?
Q
I'm asking you about an event in which you were involved and if you recall
your reaction when the President said that.
As we just read, in the days following the special counsel's appointment, the


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President repeatedly told advisers, including you, that the special counsel had conflicts.
So I'm asking you about your reaction to that, if you recall.
A
The reaction was to listen to what he thought the conflicts were.
Q
I'm sorry. There was noise in the background.
A
It was to listen to what he thought the conflicts were.
Q
And when he explained those conflicts to you, what was your reaction?
A
Is my reaction memorialized in the report?
Q
I'll direct you to page 85, third paragraph.
A
Eighty-five, okay.
Q
It says: McGahn --
A
If you could, maybe if you can point me to where you're looking for the
question, I could speed it along and --
Q
Mr. McGahn, we're trying to ask you about these events.
A
Right.
Q
There are times when your exact testimony is written in the report. There
are other times where I will be asking you about an event in which you are depicted as
being present.
A
Okay.
Q
So I'll ask you, if you recall, to tell me what you recall.
A
Got it.
Q
If you need me to direct you to the report because you do not recall, I can do
so. But if you recall, please let me know.
A
Okay.
Q
Okay?
A
I'd appreciate it if you could direct me to the report, though. That could


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probably refresh my memory a little quicker.
Q
Happy to, but that said, I'm going to ask you some questions in which I'll first
ask you if you recall on your own.
A
Okay.
Q
Pursuant to the scope of the agreement, you are directed to answer our
questions completely and honestly to the extent they are within that scope. Okay?
A
Yeah. I hope you're not suggesting I'm not answering honestly.
Q
I'm just -- I'm asking you to answer if you recall. If you don't recall, then we
can go to the report. Does that make sense?
A
That makes sense.
Q
Great. Do you recall your reaction when the President told you that he was
concerned that the special counsel had conflicts of interest?
A
No.
Q
You don't recall at all your reaction when the President told you that, sitting
here today?
A
At what point did he tell me? You're blurring a lot of time with that
question.
Q
We're not blurring it. We've just read, sir, that, in the report, in the days
following the special counsel's appointment, which was on May 17th, the President told
his advisers, including you, that Mueller had conflicts of interest.
A
That's right.
Q
So we've just went over the dates.
A
You confirmed that. That's right.
Q
And now I'm asking you if you recall your reaction to that?
A
And my reaction was I wanted to hear what the conflicts were.


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Q
And when --
A
That's my recollection of my reaction.
Q
And when he explained those conflicts to you, which he believed were
conflicts, what was your reaction?
A
My reaction was some I think the Department had already addressed, and
others I didn't -- it wasn't convincing to me at the time that that was something that
would require some sort of ethical recusal or the like for Director Mueller.
Q
On page 85, it reads: McGahn and other advisers believed the asserted
conflicts were, quote, "silly," end quote, and, quote, "not real," end quote, and they had
previously communicated that view to the President.
Do you recall communicating to the President that you believed the asserted
conflicts were silly and not real?
A
The report is accurate, yes.
Q
Do you recall the President's reaction when you told him you believed the
conflicts were silly and not real?
A
To the best of my recollection, he didn't agree with me. I don't have a crisp
recollection beyond that.
Q
As you've just referenced, the Department of Justice also reviewed
Mr. Mueller's asserted conflicts of interest, correct?
A
Say again? Sorry, I couldn't hear.
Ms. Istel. I'd just ask everyone in the room to keep it down, if they can.
BY MS. ISTEL:
Q
The Department of Justice also reviewed Mr. Mueller's asserted conflicts of
interest, correct?
A
It's my understanding, yeah.


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Q
On page 81, second paragraph of the report, referencing from May 23, 2017,
it says: On May 23, 2017, the Department of Justice announced that ethics officials had
determined that the special counsel's prior law firm position did not bar his service,
generating media reports that Mueller had been cleared to serve.
Do you recall that the Department of Justice ethics officials had made that
determination?
A
I remember I became aware of it. I wasn't part of that discussion or part of
the decision, but I became aware, and I don't recall how, but DOJ had looked at at least
part of the ethics issues that the President had raised.
Q
Do you recall the President being aware that the Department of Justice had
made that determination?
A
I don't -- I don't recall. I don't recall if he had learned it or -- or -- I don't have
a recollection of that part of it, no.
Q
Let me direct you to page 81 of the report, second paragraph. It says: On
May 23, 2017, the Department of Justice announced that ethics officials had determined
that the special counsel's prior law firm position did not bar his service.
The next sentence goes on to say: McGahn recalled that, around that same time,
the President complained about the asserted conflicts and prodded McGahn to reach out
to Rosenstein about the issue.
Do you recall that?
A
Yes. I recall it to the extent that I can say what's in the report is correct. Yes,
the President wanted me to reach out to the Deputy Attorney General.
Q
What was your understanding as to why the President wanted you to reach
out to the Deputy Attorney General?
A
He wanted me to raise these conflicts of interest.


23
Q
Do you recall what specifically he wanted you to say to Mr. Rosenstein when
you reached out to him regarding the conflicts of interest?
A
Not in specific terms, no.
Q
Do you recall generally what he wanted you to say to Mr. Rosenstein about
raising the conflicts of interest?
A
Generally, one concern -- and the report reflects this -- that Director Mueller
had been a partner at WilmerHale. WilmerHale was also representing Paul Manafort and
Jared Kushner, and how could a partner from WilmerHale then take over an investigation
that may or may not concern, you know, those individuals in some capacity. And I think
this is what the report's referring to, that DOJ looked at that.
There was another issue about some sort of golf course dues. And that was not
something that -- and the report reflects this. It's not the sort of thing I think the counsel
to the President would raise. It's the sort of thing -- counsel to the President is an official
lawyer, represents the President in an official capacity. He's not the lawyer to raise a
conflict that sounds in a personal and/or business concern. That would be more for a
personal lawyer to raise.
And as the report reflects, that was my thought at the time that I conveyed. It's
not a White House issue. If the President wants to raise that issue, he'd be free to do so,
but a personal lawyer should raise that sort of personal and/or business conflict over
some sort of golf dues issue that he had with this Mr. Mueller.
Q
Let's break that down a little bit, if that's all right.
A
Okay. We can try.
Q
By this time in May 2017, you had previously conveyed to the President that
he should not communicate directly with the Department of Justice to avoid the
perception or reality of political interference in law enforcement. And I'm reading from


24
page 33 of the report.
Is that what you were referencing when you just testified that you told the
President that this was not a White House issue?
A
No. I think you're looking at the part of the report that talks about -- and I
have page 33 in front of me. I see you are reading it, but I didn't really -- I can't really see
exactly where you're reading it, and I'm not going to try to peek at your version in case
you have work product on there.
But where are you looking on page 33? Because 33 is earlier. That's not in May.
That's at the beginning of the administration.
Q
Right. So let me clarify.
A
That's a separate conversation and --
Q
Yes.
A
-- I don't want you to get the impression that either I or you are conflating --
Q
No, I'm asking. So let me rephrase.
A
Okay.
Q
By this time, in May of 2017, you had previously, on January 27th or around
that time, conveyed to the President that he should not communicate directly with the
Department of Justice to avoid the perception or reality of political interference in law
enforcement.
I'm asking if you reiterated that instruction to the President when he asked you to
reach out to Rosenstein about the conflicts issue?
A
I don't recall if I repeated the same conversation. We certainly had that
initial conversation in January, as the report indicates. Standard advice that I think all
White House counsels give even the President.
Now, the President is permitted to call the Department of Justice, right. So this is


25
more of a policy issue, not a hard-and-fast norm or law. Obviously, the Attorney General
serves in the executive branch at the pleasure of the President.
If the President wants to talk to the Attorney General or really anybody in the
executive branch, the President is certainly lawfully permitted to do so. But there are
prudential reasons developed over the years where all White House counsels and AGs
usually give advice that we ought not just randomly call DOJ. It ought to be in a process.
Q
In this particular instance, as reflected in the report on page 81, during that
conversation, you instructed the President that he should consult his personal lawyer --
A
Right.
Q
-- about concerns with Mr. Mueller's conflicts because this was not a White
House issue.
Can you explain why it was not a White House issue?
A
Because an alleged conflict of interest regarding a dispute over some sort of
golf membership or dues or whatever it was does not sound in the authority of the
President or the role of counsel to the President. It is something that Mr. Trump -- I'll call
him Mr. Trump on purpose to differentiate his personal role -- would be free to raise
through a personal counsel. If he feels that there is something where a conflict occurs, he
could certainly do that.
But it wasn't the job of the counsel to the President to raise that kind of conflict.
And it's the sort of thing that, if a counsel to the President raises that, I would probably be
here more in my personal capacity. You'd be asking me, why would you think the counsel
to the President could raise a business dispute? There would be no good answer to that
question.
So it was really me trying to color within the lines of role of counsel to the
President and advise the President as such that if he wants to raise that kind of conflict,


26
he's just talking to the wrong lawyer. He needs to talk to his personal counsel to raise
that.
Q
Well, you also said, Mr. McGahn, in footnote 539 on the bottom of that
page -- and I'll just read the full part of the report. It says: McGahn and Donaldson said
that, after the appointment of the special counsel, they considered themselves potential
fact witnesses and accordingly told the President that inquiries related to the
investigation should be brought to his personal counsel.
So it was a bit more than just the wrong attorney. There was another reason why
you felt that the President should not use you, correct?
A
Potentially, sure. At that point, we didn't know. But in an abundance of
caution, we assumed we could be fact witnesses. So I guess that could be a second
reason. But --
Q
You guess, or was that a second reason?
A
Well, the primary reason was I didn't feel comfortable raising what I saw as a
personal or business conflict on behalf of the President.
Q
I'm not asking whether --
A
His personal lawyer.
Q
-- it was the primary or secondary reason. I'm asking if you told the
President, as it says in the report, that inquiries related to the investigation should be
brought to his personal counsel --
A
Right.
Q
-- because you considered yourself to be a fact witness in the investigation?
A
That's certainly true, as far as it goes. I'm trying to answer your question,
though, in the moment of May 23rd.
Q
My question was just whether that was a reason.


27
A
The conversation between me and the President and what drove my advice
to the President was not that I was being a fact witness in that moment --
Q
Sir, I didn't ask you what drove your advice --
A
-- it was the nature of the role.
Q
I asked you if that was a reason and if that portion of the report was --
A
But I felt I answered that, and you chastised me for secondary or primary
reasons. I'm not understanding the question, I think.
Mr. Burck. It is asked and answered.
Ms. Istel. Understood. When he's saying the driving or secondary reason, I'll just
ask the witness to stick to the scope of the question. Thank you.
Mr. McGahn. But I'm entitled to my own answer.
Ms. Istel. Absolutely.
Mr. McGahn. Okay.
BY MS. ISTEL:
Q
Did you advise the President as to whether he personally could call
Mr. Rosenstein about the investigation?
A
I may have at some point in time. Do you have anything in particular? I
mean, I was on the job quite a while so --
Q
Understood. I'll direct you to page 81, bottom of the paragraph.
A
Okay.
Q
It says: Contemporaneous notes of a May 23, 2017, conversation between
McGahn and the President reflects that McGahn told the President that he would not call
Rosenstein and that he would suggest that the President not make such a call either.
A
I don't have a clear recollection of my conversation with the President, but I
can tell you my recollection at the time I talked to Mr. Mueller's team was much clearer. I


28
don't have any reason to disagree with what the report says, and I believe it to be
accurate.
Q
Do you recall why you would have suggested to the President --
A
Sorry. You dropped.
Q
Sorry. Do you recall why you suggested -- you would suggest to the
President that he not make such a call to Mr. Rosenstein?
A
Well, appearances matter in Washington. That's been always the case. And
if the President calls Rosenstein directly, one, you don't really know what his reaction is
going to be, "he" being Mr. Rosenstein; and, two, that would raise more questions than it
would answer and probably lead to other potential thornier issues as to why the
President would be calling.
So I think that's the reason any lawyer would give as to why they give that advice,
and it certainly applied here.
Q
Would you agree that it would also look like still trying to meddle in the
investigation?
A
Certainly. Certainly, it could look like that. It didn't mean the President was
meddling, but certainly it would be easily made to look that way.
Q
According to those same notes, you also told the President that, quote,
"knocking out Mueller," quote, would be, quote, "another fact used to claim obstruction
of justice," end quote. Do you recall saying that?
A
I have a vague recollection of that, but I don't have a crisp recollection,
sitting here today.
Q
Well, let me direct you to page -- the bottom of page 81, top of page 82.
A
Okay.
Q
It says: McGahn advised that the President could discuss this issue with his


29
attorney, but it would, quote, "look like still trying to meddle in the investigation," end
quote, and, quote, "knocking out Mueller," end quote, would be, quote, "another fact
used to claim obstruction of justice," end quote.
Does that refresh your recollection?
A
It does. I mean, I have the same vague recollection that this occurred. The
report to me, my recollection is it's accurate.
Q
Do you recall why you would say another fact used to claim obstruction of
justice? What other facts were you referring to?
Ms. Shapiro. That's attributed to --
Ms. Istel. I'm asking if he recalls.
Ms. Shapiro. The quotation that you recited was attributed to Ms. Donaldson. I
think you phrased your question in terms of it being Mr. McGahn's statement.
Ms. Istel. It's Ms. Donaldson's notes, which are contemporaneous notes.
Ms. Donaldson was Mr. McGahn's chief of staff. So she was recalling Mr. McGahn's
statements, and I'm asking if he recalls that.
Mr. McGahn. Right. She wasn't, though, part of the conversation with the
President. So to say they are contemporaneous notes, they are contemporaneous notes
of after the fact me reading out to her my recollection of what had just happened. So it's
not a direct quote of a direct quote, just so we're clear.
BY MS. ISTEL:
Q
Would she have written down anything that you didn't tell me her occurred?
A
Would she have what?
Q
Written down anything in her notes that you did not tell her occurred?
A
I doubt it. I don't have any reason to disagree with this characterization, no.
Q
Understood.


30
A
No, no. Not fighting on that point.
Q
Great. I'll just repeat the question since we had a brief interruption.
According to those notes, as taken by Ms. Donaldson, you told the President that
knocking out Mueller could be, quote, another fact used to claim obstruction of justice.
I'm asking, Mr. McGahn, if you recall what other facts you were referring could
constitute obstruction of justice?
A
Well, there was already a ton of news coverage over, you know, a number of
other issues, including the removal of the Director of the FBI, the Michael Flynn situation.
The report has -- I mean, you can read from prior to page 81 to 81, and that gives you the
list.
Q
Well, at the top of page 82 --
A
Just to be clear, it's not that I was saying that I thought there was
obstruction of justice or another fact, but it's to claim, right. I mean, these are all
allegations. And sort of the atmospheric --
Q
Understood.
A
-- part of the job is to advise not just on the strict contours of black letter law
but how people are going to perceive what black letter law may or may not be and how
they perceive your actions, right?
So I just want to emphasize that, you know -- because the way you emphasized
another fact, I want to make sure we're not saying different things here.
Q
Another fact used to claim.
A
Right.
Q
That is correct?
A
That's fair, yes.
Q
If you thought there was no basis or no argument on which that fact could


31
potentially constitute obstruction of justice, would you have advised the President that it
could be a fact used to claim obstruction of justice?
A
Possibly. I could have the view that something isn't obstruction and
wouldn't actually make the case, but also say someone else may think so. And it doesn't
really matter what I think because I'm not a prosecutor, and although I dabble in criminal
law, it's not really my specialty. So --
Q
But you were White House counsel at the time?
A
What's that?
Q
You were White House counsel at the time?
A
I was, yes. We established that at the beginning. Yes.
Q
As reflected in those same notes, you told the President -- as reflected in
those same notes by Ms. Donaldson, you told the President that his, quote, "biggest
exposure," end quote, was not his act of firing Comey, but his, quote, "other contacts,"
end quote, and, quote, "calls," end quote, and his, quote, "ask re: Flynn."
Can you explain what other contacts and calls you were referring to?
A
There was -- you know, again, you're putting me back 4 years and trying to
remember what was going through my mind. Reading this, my recollection is the point I
was making -- and I think it's rather clear -- removing Comey is something the President
had the authority to do, but the perception was the dinner with the Director, that was
alone. I think by this point, former Director Comey had managed to get out his -- sort of
his versions of these meetings. So there was a perception that there was something off
about these meetings.
The President had at other points -- and the report reflects this somewhere -- had
indicated he had called Comey directly. And so there were -- and ask re: Flynn I think
references the exchange that was in the news in the Oval Office where he had some sort


32
of discussion directly with Director Comey about Michael Flynn. So that's what that is
talking about.
And I guess -- I guess, because it's in shorthand, I mean, I guess it doesn't all say
that in the sentence, but that's shorthand for that -- those events.
Q
We'll get to the portion of the report reflecting Comey's termination a bit
later. But sticking on this sentence for a moment --
A
Okay.
Q
-- it says you told the President that his biggest exposure was not Comey but
his other contacts, calls, and ask re: Flynn. When you said "biggest exposure," exposure
to what?
A
I don't recall if I used the word "exposure" to the President. I'm assuming I
did with Annie. She probably accurately reflected what I said to her.
Exposure to this nebulous charge that was floating in the media of meddling or
otherwise getting in the way of whatever this investigation was. And the narrative at the
time, as I recall it, was that the removal of the Director of the FBI was its own problem. In
my view, that wasn't. That was within the President's power.
But the real issues were more around former Director Comey's recounting of
meetings, conversations he had with the President. That was more, as a lawyer, where I
was looking to alert the President. That's more -- that's more what people seemed to be
concerned about, right.
Q
Do you recall how you left that conversation with the President?
A
Do I recall what? Sorry.
Q
How you left that conversation with the President?
A
How I left that conversation? No, I don't recall. No. You rarely leave
conversations with President Trump. There's never really a good beginning, middle, and


33
end. It's just -- especially when you're the counsel. You're always kind of around. And so
I don't really have a crisp recollection of, you know, meeting adjourned sort of thing.
Q
Was it your understanding that President Trump understood that you would
not make the call to Rosenstein about the special counsel's conflicts?
A
Well, you know, I guess there were days I thought that was clear, but there
were other days it wasn't clear because it wasn't -- this wasn't the only time that he
raised the issue. So --
Q
During that conversation, did you tell the President that you would not make
the call to Rosenstein?
A
This is May 23rd?
Q
Yes.
A
Yes.
Q
About a month later, as reflected on page 84 of the report -- and I'll give you
a second if you want to get there.
A
Thank you.
Q
On June 14, 2017 --
A
Yes.
Q
-- The Washington Post reported for the first time that the special counsel
was investigating President Trump personally for obstruction of justice. Do you recall
your reaction to that reporting?
A
I don't recall my reaction to it, no. No.
Q
You don't recall your reaction, as a White House counsel, to learning that the
press had reported that the President of the United States was under personal
investigation by the special counsel?
A
I don't recall my subjective impression on the evening of June 14th about a


34
news report. No, I don't.
Q
Do you recall speaking to the President that evening?
A
I do recall speaking to him, yes.
Q
Can you describe that conversation?
A
I don't have a crisp recollection of it.
Ms. Shapiro. As reflected in the report.
Mr. McGahn. As reflected in the report, okay. Well, I think the report gives more
than I remember sitting here.
It was late in the evening. So it was around bedtime, and the report says about
10:31 p.m. That sounds right. It was certainly deep into the night.
It was the night before Neil Gorsuch's investiture at the Supreme Court. That was
one topic we discussed. And then I have a vague recollection of a discussion about the -- I
assume the news of the day, but I don't have a crisp recollection of that call other than
talking about the Gorsuch investiture and what else is reflected in the report about what
we have.
I do -- even when I spoke to Mr. Mueller, I didn't have a crisp recollection, and the
report reflects this. I think we may have discussed the story. We may have had a similar
discussion about calling Rosenstein and the like, and it could have been a repeat of the
May 23rd. But the May 23rd discussion was one of many discussions, as was the
discussion of June 14.
So, again, it's tough to really pinpoint particular conversations with President
Trump. It was not really his style to have scheduled discussions. Instead, it would be
much more fluid. And, you know, he would call, and you'd kind of just do your best to
keep up with him.
BY MS. ISTEL:


35
Q
I think what you're referring to is, in the report, you were not quite sure
when exactly the timing was of two calls. So let's just take a step back for a second. After
The Washington Post reported that the special counsel was investigating the President
personally, according to the report, the President called you at home twice and on both
occasions directed you to call Rosenstein and say that Mueller had conflicts that
precluded him from serving as special counsel. Is that accurate?
A
Where are we reading? Sorry. One more time.
Q
It's page 85, second paragraph, second sentence.
A
Well, this is -- I think this is a paraphrase and reaches a conclusion as to what
he directed me to do. The thrust of the President's direction was certainly to call
Rosenstein. It was to raise the conflicts and that Rosenstein needed to act because
Mueller had conflicts.
And given that Mueller had no other job other than to be special counsel, you
know, if he recused, he'd be -- that's the same as sort of saying he has to leave the
Department. So that sentence is accurate, but directed him kind of -- there's some facts
in there that the report then spells out in a little more detail, right.
So I think that's a conclusion of -- I read that more as a conclusion, not a separate
fact.
Q
We'll go into the details shortly, but you just said that sentence is accurate,
correct?
A
Right.
Q
So we'll go through those two calls, understanding that the timing of those
two calls you don't recall exactly, but you do recall two calls. Is that correct?
A
Right.
Q
Can you tell us what happened during the first phone call with the


36
President?
A
The first call that I remember -- and, again, I could be conflating this with a
call from --
Q
June 14th.
A
-- from June 14th.
Q
Correct.
A
Because the 14th was a -- I think that was a Wednesday. I think -- I think
justice Gorsuch's investiture --
Q
June 17th was a Saturday.
A
What's that?
Q
June 17th was a Saturday.
A
The 17th was a Saturday. I mean, that was certainly a Saturday. I was home
on the 17th. And I was home the night of the 14th because it was after hours. And I think
Thursday was Gorsuch's investiture. I don't remember dates; I remember events.
Q
Understood.
A
You know, what day of the week is Christmas? I don't know. It's Christmas,
right?
Q
December 25th.
A
But I do remember it was Saturday because that was not a usual day. And
the President, I think, my recollection, he was out of town at Camp David, as the report
reflects.
And I remember -- it could have been a voicemail the President was looking for me
that got me in, but I did talk to the President that day. And the first call was a
continuation, for lack of a better word, of previous conversations that repeated many of
the previous conversations, and the topic was conflicts and Mueller and advising


37
Rosenstein of conflicts.
And he wanted me to call Rosenstein and inform Rod that he had conflicts. And,
in the President's view, Mueller shouldn't be able to serve as special counsel because of
these conflicts.
Q
Sorry, can you repeat that? I couldn't hear you, the last sentence you just
said.
A
No way I can repeat that. I was doing my best. You can read back the
transcript.
Did the reporter get it? If the reporter got it, they can read back, and I can kind of
pick up, but to try to capture exact wording again I think is tough.
[The reporter read back the record as requested.]
Ms. Istel. Thank you.
BY MS. ISTEL:
Q
So I am just going to, for the record, so we have a clear picture, on page 85,
footnote 573 discusses the issue of the timing of the calls.
A
Does what with the calls?
Q
Discusses the issue of the timing of the calls.
A
Right, okay.
Q
And explains generally, I'm not quoting now but generally, that you recalled
two phone calls.
A
Right.
Q
The first phone call and a second phone call.
A
Right.
Q
It was unclear whether both calls occurred on June 17th or one call occurred
on June 14th and one call occurred on June 17th.


38
A
There was certainly at least one call on the 17th. I believe there was two.
But I don't really have a crisp recollection of --
Q
So, for purposes of your testimony, we'll just refer to it as call No. 1 and call
No. 2. Is that acceptable?
A
That's fair. Okay.
Q
Great. So, going back to the first call, you just testified what you spoke with
the President. Do you recall his tone of voice during that call?
A
Do I recall his tone? I do. It's tough to put into words. Give me a moment to
think about how to describe the tone.
Q
Take your time.
A
It may be easier to state the negative. He wasn't angry. He was certainly
focused. The tone certainly had an intensity to it.
Q
Was it your understanding that this was an urgent matter for the President?
A
Urgent is a word to be fair, yeah. I mean, more your word than my word,
but I'm trying to look for words so that's as good as any. Yeah, there was an intensity and
urgency, yes, in his voice.
Q
So you'd agree there was an intensity, urgency in his voice, correct?
A
Yes. Which is not uncommon, but yes.
Q
I'll ask the witness to --
Do you recall what exactly the President said to you on that --
A
I don't recall exactly, sitting here today, no. It was much crisper in my mind
when I was interviewed by Mr. Mueller's team.
Q
So, on page 85, third paragraph --
A
Yes.
Q
-- it says: On the first call, McGahn recalled that the President said


39
something like, "You got to do this. You got to call Rod."
A
He was urging me that, yeah, and used those words, yes.
Q
Okay. What did you understand him to mean when he said, "You got to do
this; you got to call Rod"?
A
My understanding was that I had to call Rod to tell Rod about the conflicts.
Q
Anything else?
A
Such as? I don't --
Q
Was it your understanding that you just had to tell Mr. Rosenstein about the
conflicts?
A
Well, I took it as more of a direction. And this is -- this is why this is
challenging here today because there is -- I mean, the President I think has publicly said
that his view was I was merely -- he was merely wanting me to call Rod and get Rod to
sort of police the conflicts or have Rod do it.
Candidly, I took it as a little more of a direction to press Rod harder on the
conflicts issue and to tell Rod that the President thinks this is a conflict.
Q
What was your reaction to the President's request?
A
Well, my reaction was -- I think I pushed back and said it's not really a good
idea, at least the first call. I probably said in one of the calls that I'll think about it, but I'm
not inclined to do it. But that would not be my exact words at the time.
And I really -- at that point really wanted to get off the phone because I didn't
want to continue having what had been the same conversation on more than one
occasion on something that, as counsel, I wasn't really comfortable doing, raising some
kind of personal or business conflict. So I was looking -- I was looking -- I think my
reaction was getting off the phone.
Q
What do you mean when you said you were not comfortable making that


40
call?
A
Not comfortable making it? The same reasons I stated before. It's not the
official counsel to the President's job to raise with the in this case I guess the Acting
Attorney General a conflict that sounds in business or personal reasons. That would take
me far out of the lane of my job. And given all the other atmospherics surrounding
conversations about Flynn with Director Comey and the like, it just, in my judgment as a
lawyer, this was not the right time to call Rod Rosenstein.
And I also had a concern I wasn't really sure how Rod was going to react. My fear
was if you pushed Rod too hard on the point, he -- if I conveyed the tone that I heard on
the phone from the President to Rod, Rod could do who knows what. He could resign
himself. Who knows what Rod would do.
So what I was not going to do is cause any sort of chain reaction that would cause
this to spiral out of control in a way that wasn't in the best interests, at least as a lawyer,
what I thought was in the best interests of my client, which was the President.
Q
When you said, "Who knows what Rod would do," what possible scenarios
were you considering?
A
He could resign.
Q
Why would he resign?
A
He may feel he was being -- he could take what he was being told as an
order, and he may not want to execute the order. And he may feel his options would be
ignore an order, which you really can't do if you serve in the executive branch. And if you
have an order that you don't think you can follow, your option is then to resign.
Q
Why would he not think he could follow that order?
A
Well, maybe he wouldn't want to do it. Maybe he didn't think Mueller had
conflicts. A lot of reasons you could ask Rod about, I suppose.


41
But, in my mind, the concern was Rod, maybe just as simple as he wasn't going to
be pushed around; he thought it was his decision. There's a myriad of reasons why Rod
could resign, but if he felt like he was being pushed to do something he didn't want to do
in a way that he didn't think was consistent with what his job was, he could tender a
resignation.
So, at that point, I was concerned that I would be putting Rod in a box and putting
him in a spot that would cause him to potentially go a variety of directions that would not
be in anybody's interest.
Q
Were you also concerned about making the call to Rod about the special
counsel because you could have been a potential fact witness?
A
Absolutely. Sure. I don't want to get caught up in an appearance that
somehow I was meddling in an investigation or I was a witness.
Q
Why would that lead to the appearance that you were somehow meddling in
the investigation when you were a witness?
A
Well --
Mr. Burck. I'm going to assert attorney-client privilege. I was attorney at the time.
I was advising him.
Ms. Istel. You were advising him not --
Mr. Burck. I'm not going to say what I was advising him about, but on that
subject, on that question, that will elicit attorney-client information. So I'm going to
direct him not to answer that.
Ms. Istel. At what point did you give him that advice?
Mr. Burck. I'm not saying what advice I gave him.
Ms. Istel. I'm not saying -- I'm just asking at what point in time you had that
conversation because, according to the report, you're saying that you spoke with him


42
after the first conversation with the President?
Mr. Burck. I don't know. I'm not going to say exactly when because I don't recall,
but it was contemporaneous representation at the time.
Ms. Istel. But if you hadn't spoken to him by the first conversation, then I can ask
Mr. McGahn as to why he did not think he should make the call to Rosenstein, correct?
Mr. Burck. Okay. You want to link it up to a specific --
Ms. Istel. I do.
Mr. Burck. Okay. That's fair. Which call are you talking about?
Ms. Istel. I'm talking about the first call. I know you spoke with him after the
second call. That's reflected in the report. I'm asking him about the first call.
Mr. Burck. Actually, I still -- because I was talking -- I was advising Mr. McGahn
prior to that period, and I believe that -- that that would call for attorney-client
information.
Ms. Istel. Can Mr. McGahn answer whether he, as an attorney himself, had an
understanding, absent from his advice he received from you?
Mr. Burck. Yes, yes. Yes, that's fair.
BY MS. ISTEL:
Q
Mr. McGahn, did you, as White House counsel attorney, have a concern,
absent your conversations with your personal counsel, as to why it would be problematic
for you, as a fact witness in the investigation, to call Mr. Rosenstein to have the special
counsel removed?
A
It certainly would confuse my role as counsel to the President with
potentially being a fact witness or sort of serving as a de facto personal lawyer.
So certainly --
Q
Can you explain what you mean by confuse your role?


43
A
Say again? Sorry.
Q
Can you explain what you mean by confuse your role?
A
Sure. Counsel to the President represents the President in his official
capacity, advises him on his authorities under the Constitution, statutes, other binding
norms, international law and the like.
Counsel to the President is not a personal lawyer who deals with personal or
business issues that may also affect the President as a person. And raising a conflict, it
sounded in those concerns, seemed to be outside the scope of what the counsel to the
President ought to be doing.


44

[11:06 a.m.]
BY MS. ISTEL:
Q
At the time, the special counsel was investigating the President personally
for obstruction-related events, correct? We just went through the Washington Post
report that --
A
Well, there's reports to that effect, but it's not like the Department of Justice
calls over and lets you know these things. So it seemed to certainly be in the air, and I
think there were news reports to that effect, yes.
Q
Were you perturbed by that phone call?
A
Yes.
Q
Why?
A
It was a conversation we'd had many times before. I thought I had been
clear on my views and my advice, but we were having the same conversation again and
again and again, coupled with the fact it was a Saturday and it -- you know, after the
investiture of Neil Gorsuch, I thought we were going to take a little pause over the
weekend and smile for once. But we did not smile; we continued wanting to talk about
conflicts of interest and Bob Mueller.
Q
What did you say to the President when he asked you to make that call?
A
One more time; sorry?
Q
What did you say to the President when he asked you to make that call?
Ms. Shapiro. Can I interject for a second? I just -- when you ask about -- he can't
talk about conversations with the President except as reflected in the report. So, when
you ask open-ended questions, I am worried that he will volunteer out-of-scope and
privileged information. So, if you could tie it to the report, it would avoid interruptions


45
like this.
BY MS. ISTEL:
Q
Page 85, bottom paragraph: "McGahn said he told the President that he
would see what he could do."
Do you recall saying that to the President?
A
Which part? Sorry. One more time? I think the answer is "yes," but I want
to make sure I'm reading the same sentence. Read it again, please.
Q
"McGahn said he told the President that he would see what he could do."
A
I did say that, yeah. Yeah.
Q
Did you intend to see what you could do?
A
No.
Q
Then why did you say that to the President?
A
I was trying to get off the phone.
Q
Bottom of page 85, top of page 86 of the report --
A
Uh-huh.
Q
-- it says, "McGahn was concerned about having any role in asking the Acting
Attorney General to fire the special counsel because he had grown up in the Reagan era
and wanted to be more like Judge Robert Bork and not 'Saturday Night Massacre Bork.'"
A
I did --
Q
Can you explain what you meant by that?
A
I did say that to Mr. Mueller's --
Q
You did.
A
-- Mr. Mueller's team.
This was sort of my Irish Blarney way of explaining what I tried to explain earlier,
that if I, as counsel to the President, called the Acting Attorney General and conveyed an


46
urgent message about the need for the special counsel to not be permitted to serve
because of conflicts, that could cause Rosenstein to think he was being ordered to do
something that he would find contrary to his oath of office.
And there's historical example of that happening. And when that happens, you
had a succession of resignations at the Department of Justice. I didn't want that to
happen, so I didn't call Rod.
My fear is, if I called Rod, given the atmospherics, given -- you know, I didn't know
Rod well at that point, but what I knew of him, my concern was he could potentially react
in a way that would cause him to potentially resign, and that would cause a chain reaction
that would be not in anyone's interest.
Q
Top of page 86, it says, "McGahn considered the President's request to be an
inflection point and wanted to hit the brakes."
Can you explain what you meant by "inflection point"?
A
"Inflection point," with that I meant a point of no return. If the Acting
Attorney General received what he thought was a direction from the counsel to the
President to remove a special counsel, he would either have to remove the special
counsel or resign.
We are still talking about the "Saturday Night Massacre" decades and decades
later. And, looking back, you always, as a student of history, wonder, could things have
gone differently if different people made different decisions? And here my thought was,
fast-forwarding, you know, what this is going to look like down the road.
This seemed to be an inflection point. It was time to hit the brakes and not make
a phone call to Rod to raise this issue that the President had continued to raise with me.
It seemed to me that it'd be easier for me to not make the call and take whatever heat or
fallout there would be than to cause, potentially, a chain reaction that I think would not


47
be in the best interest of the President.
Sometimes lawyers have to do things that their clients maybe don't like in the
moment, but you do them because, in your judgment as a lawyer, it's the correct thing to
do.
Q
Why, in your judgment as a lawyer, was this the correct thing to do?
A
Well, I can say what I just said. But my fear was, delivering that sort of
pressure onto Rosenstein, even if it was short -- and I use the word "pressure" to say,
even if it was short of a clear direction, could've caused Rod to react in ways that were
unforeseen and could've caused a major issue that would've been, you know, in
hindsight, you know, an inflection point.
Q
Can you just briefly explain for the record what happened in the "Saturday
Night Massacre"?
A
Explain what?
Q
For the record, what happened in the "Saturday Night Massacre"?
A
It's a matter of -- I mean, am I here to teach a history class or --
Q
Well, you said it was a historic moment, so I want to understand why you
made that comparison.
A
Well, when I was a boy, my father bought me a book by a person named
Archibald Cox on the Constitution. He actually had Archibald Cox sign it. He somehow
managed to meet Archibald Cox, and I have an autographed copy of a book from
Archibald Cox.
My dad also had Roy Cohn as a professor in law school, if you must know, but
that's a separate issue. He went to New York Law School, Mr. Chairman, but --
Q
We'll get there.
A
So I always had kind of an interest in this sort of thing. And then being a,


48
sort of, young conservative type, Judge Bork was a role model to me as well.
And what happened, to paraphrase the "Saturday Night Massacre," was, President
Nixon directed that the special counsel -- special prosecutor I guess they were called
then -- be removed, and he instructed his Attorney General to remove him. The Attorney
General refused and resigned. He tried to instruct the Deputy -- I think this was through
the chief of staff. Nixon didn't make the call directly; he had a member of his team make
the call. I think the Deputy Attorney General then resigned. And then Bork, as the next
man in the chain, as solicitor general, being the Senate-confirmed person, executed the
order.
Different than what we're talking about here. Let's not read too much into my
invocation of "Saturday Night Massacre," because the President never, for example, got
anywhere near ordering shutting down the office of Mueller. It was Mueller and conflicts.
There was no discussion about "end the whole thing" or "remove the entire thing." This
is different than what happened in the "Saturday Night Massacre." I think Bork actually
kind of locked the office up, and they had to disperse for a while.
And, you know, that's my understanding of what happened in the "Saturday Night
Massacre." And if a historian wants to quibble, that's fine. I'm not -- although I was a
history major undergrad, it's not really my thing anymore either.
Q
That's actually a very good recollection.
A
What's that?
Q
You got all the details right.
A
Great. I'm glad -- I'm glad I did. Trying to be complete and accurate.
Q
I appreciate that.
A
Yes.
Ms. Istel. We're actually going to stop there for this round. We've hit our hour


49
mark, I've just been told.
Mr. Hiller. Let's go off the record, please.
Ms. Istel. Off the record.
[Recess.]
Mr. Castor. Back on the record.
Mr. McGahn, my name is Steve Castor. I'm with the Republican staff. How are
you this morning?
Mr. McGahn. Morning. Well, all things considered, doing pretty good.
EXAMINATION
BY MR. CASTOR:
Q
By any stretch, the Mueller probe was thorough, correct?
A
I guess that's a fair characterization. I don't really have an opinion one way
or the other. It's very thick.
Q
It lasted 2 years, correct, approximately?
A
That sounds right, yeah. I don't remember the precise start and end points,
but it certainly had a lot of investigators and prosecutors and things, sure.
Q
Mr. Mueller, I think, was appointed on May 17th?
A
Sounds about right, yeah. I think we hammered that date in the earlier
session to remind me what happened then. Yes.
Q
And I think he turned over his final report on March 22nd, and the Attorney
General released his summary of the report on March 24th, 2019?
A
I think that's right. I was off the job by that point.
Q
Sure.
A
I was no longer counsel to the President. So it actually outlasted my almost
2-year tenure, almost. So yeah.


50
Q
And news accounts have chronicled that there was something like
$32 million spent by the --
A
If you say so. I don't have any reason to disagree with that, no.
Q
And the report is about 500 pages --
A
It's quite thick.
Q
-- divided into --
A
Yeah, there's two volumes, so the page numbers are tough. But it's a solid
phonebook worth of paper, yes.
Q
And, you know, on page 2 of the report -- I'm just going to read this; you can
read it as well -- you know, sort of a bottom-line conclusion: "The investigation did not
establish that members of the Trump campaign conspired or coordinated with the
Russian Government in its election interference activities."
Did that conclusion surprise you?
A
It didn't surprise me, no.
Q
In a summary letter that the Attorney General sent up to Congress, he said
that the facts did not support an obstruction-of-justice charge against the President, and
that was irrespective of the OLC opinion. That's a March 24th letter that the Attorney
General sent to Congress, not from the Mueller report.
A
I wasn't on the job at that point, so I wasn't really part of the official
government.
Q
And did that conclusion surprise you, that there wasn't an
obstruction-of-justice charge?
A
Well, you know, I wasn't privy to everything going on, so I don't know if I
could be surprised one way or the other. I know just what I know. And, you know, if I
had seen what I had thought was a crime being committed, I would have not been a part


51
of that. So, at least from my point of view, it wasn't a surprise, but I didn't know what I
didn't know.
Q
Right. But, from your vantage point, you didn't witness anything that you
considered to be criminal activity.
Ms. Shapiro. Sorry. Could I interject just for a moment? I just want to make sure
that the scope limitations are the same, correct? That the scope is limited to part one,
the information attributed to Mr. McGahn, excluding communications with the executive
branch?
Mr. Castor. Right. But we're also free to ask Mr. McGahn any question we want,
and he can respond as he will.
Ms. Shapiro. Okay, but I just want --
Mr. Castor. Yeah, we didn't negotiate -- we did not negotiate the scope
arrangement. We're not necessarily objecting to the scope arrangement, but if Mr.
McGahn feels that a question or Mr. Burck feels that a question is outside the scope and
doesn't want him to answer, that's fine, but, you know, asking him whether he was
surprised that at the end of the day Mueller didn't find any collusion or conspiracy with
Russia is certainly a fair question for the former White House counsel.
Ms. Shapiro. Right. It's just not tied to this scope, because it's not about an event
in which Mr. McGahn participated, as reflected in the report.
Mr. Castor. So, anyway, I'll just move on. I understand where you're coming from.
Ms. Shapiro. Okay.
BY MR. CASTOR:
Q
Mr. McGahn, your lawyer, Mr. Burck, was quoted in The Washington
Post -- and I have the article if you want it; I can read it to you --
A
I've heard of The Washington Post, yes.


52
Q
-- on August 7th, 2019.
I have copies if anybody wants it.
A
If you're going to ask me about it, maybe I can get a copy.
Q
Sure.
A
If you're not going to ask me about it, I don't need a copy.
Q
I'm just going to read one --
A
But since you have photocopies prepared, my guess is there will be a
question here.
Q
It's the second paragraph on the second page. This is a news account about
the litigation. And the part I'm referring to, McGahn's lawyer, Mr. Burck, said in a
statement that McGahn will abide by the President's instructions, and Mr. Burck said,
"Don does not believe he witnessed any violation of law" --
A
Your mike dropped out on the "is that correct."
Q
"Don does not believe he witnessed any violation of law." And I'm just
asking you if you --
A
Correct.
Q
And the President instructed Don to cooperate fully with the special counsel.
Is that correct?
A
That is correct.
Q
And, in fact, you did cooperate fully with the special counsel, correct?
A
Best of my ability, yes.
Q
How many interviews do you recall giving to the special counsel?
A
Certainly more than one. I don't have a crisp recollection. We did them at
different odd hours of the day to try not to interfere with business hours and the like. I
can think of -- well, one, two -- at least four, but I don't really have a crisp memory of how


53
many times with any certainty, but multiple.
Q
And the sum total of this is a big number of hours, correct?
A
Probably all told, yeah. Yeah.
Q
And, you know, if the President, if White House officials felt that there was,
you know, anything wrong, I mean, they certainly wouldn't have sent the White House
counsel over to fully cooperate, correct?
A
You wouldn't think so.
Q
And your intention when you showed up to Mueller's offices to cooperate
fully was to just, you know, answer all questions as completely and candidly as humanly
possible, correct?
A
As the President wanted.
Q
And, at the end of the day, I mean, this probe, you know -- and I think it's fair
to say that the President was frustrated by the pace of the probe and also by the origins
of the probe. Is that something you can concur with?
A
I think he's been very public about that.
Q
And --
A
I don't think you need me to confirm --
Q
Right.
A
-- what he has said a number of times publicly.
Q
And his frustration -- I mean, he's characterized it as a witch hunt. And a lot
of our members of the committee certainly feel that way.
And if you go back through some of the depositions and transcript interviews and
witness testimonies that have been taken, those frustrations have, you know, in fact,
been borne out. Would you agree with some of that?
A
I wouldn't disagree with it. I'm not really in the business of, you know,


54
judging the accuracy of rhetoric or that kind of thing. And it's not -- it's not like I'm still
living in the world of the Mueller report. So I don't really have a --
Q
Right.
A
-- view one way or the other. And, you know, I know the President told me
to cooperate. I went over, did the best I could. That's what I know.
Q
Right.
Director Comey, he testified here before us in December 2018?
A
Okay. If you say so. I wasn't here, but okay.
Q
And Director Comey told us -- and these transcripts have been published.
I'm not revealing any secret information here. But Director, you know, Comey told us
that, generally speaking, an FBI professional knows after a year whether he's got a case or
not, irrespective of Crossfire Hurricane. And he also said that by the time he left in May
of 2017 they didn't have a case; there was no evidence of collusion, no evidence of, you
know, any wrongdoing between the campaign and Russia.
Around the same -- you know, a little bit earlier, transcripts were released,
depositions, transcribed interviews conducted by the House Permanent Select Committee
on Intelligence on James Clapper, Loretta Lynch, Ben Rhodes, Sally Yates, Mary McCord,
Susan Rice, Samantha Power. And all of them testified that they did not have any
evidence of collusion or conspiracy between the Trump campaign and the Russian
Government.
Were you aware of those reports?
A
You mean the transcribed interviews and things? I --
Q
Well, just the reports that came out that, you know, James Clapper testified
to Congress.
A
Vaguely I guess I was aware. Yes.


55
Q
So it wasn't just President Trump that had, you know, concerns; it was
Director Comey, it was James Clapper, it was all -- you know, a long list of, you know,
adversaries of the President. Didn't have any firsthand evidence --
A
I would think their testimony speaks for itself on that point.
Q
And before you came to the White House, you served on the campaign,
correct?
A
I was -- I represented the campaign, yeah. I never actually was an employee.
I was in a law firm representing the campaign, yeah.
Q
And during your tenure working with the campaign, did you ever witness any
improper collusion or anything with a Russian?
A
Did I? Well, ordinarily -- I was assuming you were going to get to something
that might be attorney-client privilege, because I was in private practice. But the absence
of something, I guess, is not privileged. So, no, I didn't witness anything of the sort.
Q
Okay. So you didn't witness any wrongdoing? Any collusion?
A
No. Whatever "collusion" means, I don't think I witnessed anything that --
Q
Right.
A
-- could be remotely construed as collusion.
Q
And, absent attorney-client privilege, did anybody from the campaign ever
express concerns to you that there was, you know, some matter that needed to be looked
at for, you know, whether there was collusion or conspiracy with the Russians?
A
The collusion stuff really didn't take shape until after the President won the
election, to my recollection. I don't have any recollection of anybody, prior to him
winning -- now, I'm sure there was stray news articles or whatnot, but my recollection is
that I don't have any --
Q
Uh-huh.


56
A
-- recollection that would be responsive to your question.
Q
I want to turn to the Mike Flynn matter.
A
Okay.
Q
He was interviewed at the White House on January 24th. Peter Strzok and
Joe Pientka from the FBI came over to interview Flynn. Did you have any awareness that
interview was taking place before --
A
At the time?
Q
At the time.
A
No.
Q
And the first you heard about the interview was when Sally Yates came to
meet with you?
A
I believe that's right, yes.
Q
On January 26th?
A
Again, I'm not good at dates, but if that's -- are you looking at something in
the report? That may refresh my memory --
Q
Sure.
A
-- on a specific date.
Maybe page 31.
Q
It's page 31, right.
A
Right, 26th. That's when Attorney General Yates came over. Yeah.
Q
Yates with Mary McCord, another White House counsel lawyer met with
you. During the meeting -- this is from page 31, the first paragraph --
A
Uh-huh.
Q
-- "Yates said the public statements made by the Vice President denying that
Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially


57
compromised position because the Russians would know he had lied."
What else do you remember from that meeting?
A
Well, you know, reading the report, it refreshes my memory that that's when
Sally -- Attorney General Yates --
Ms. Shapiro. Excluding executive branch communications.
Mr. McGahn. Understood. Understood. But if it's in the report, that's okay for
me to remember that and then say it, right?
Ms. Shapiro. If it's in the report, yes, but excluding executive branch
communications.
Mr. McGahn. Okay.
Ms. Shapiro. I'm sorry.
Mr. McGahn. Okay.
She came over to talk about Flynn, as the report reflects. She informed me that
the Bureau had interviewed Flynn. I had asked her, I think my phrase was, "How did he
do," and by that I meant, was there an issue with truthfulness of his responses?
She wouldn't give me -- she wouldn't tell me the fine point of that answer, but she
did convey that they were similar to the statements that she had raised -- had just raised
with me in the conversation about statements that Flynn allegedly made to the Vice
President that were not necessarily accurate. So I took from that that if he repeated the
same things to the FBI there may be a potential issue there.
But my impression, as the report indicates -- and, again, my recollection was much
better at the time of being interviewed for the report than it is now. My impression at
the time was that they did not have Flynn on a 1001 charge. And by that, that's lawyer
shorthand for lying to the Bureau in the course of the interview. And that's the extent of
what I remember from that first meeting.


58
It wasn't the clearest discussion. It was, Attorney General came over, brought
Mary McCord. I do recall it was on the classified phone, so I took it as a serious matter. It
was in my office, which is a SCIF. You know, it was not -- and the lawyer that
accompanied me, I made sure he had his clearance. Early in the administration, not
everyone has clearances. So, you know, I took it as a serious matter.
So, you know, it was something that I was intently listening to, and then --
Q
Did Yates come in person, or was this on the phone?
A
She came in person.
Q
Okay.
A
She called first --
Q
Oh, okay.
A
-- and then she said, I need to come over and talk to you about -- I think she
may have -- I don't remember her characterization specifically, but I remember it was on
the high-side phone. And she came over to talk about something that -- by calling on that
phone, told me it was something she thought was serious.
Q
Okay.
A
Yeah.
Q
Were you aware at the time what they were investigating Flynn for?
A
Not really. No. No. It was less than clear. There had been some news
reports. I recall there was something about Turkey, but I just -- I don't remember the
details of Flynn, sitting here today, and I didn't really know the details then.
I was focused on trying to be counsel to the President. I'd just come off trying to
be counsel to transition. There's a lot of moving parts. I was not really able to --
Q
Okay.
A
-- focus 100 percent on every little coming and going of what the


59
newspapers were saying about Mike Flynn. So I was not particularly read in on any
details, and Yates was really the first one to bring me in the loop on --
Q
Okay.
A
-- the issue that you see in the report.
Q
But the conversations Flynn was having with Kislyak, I mean, that's official
business, correct, in conjunction with the transition?
A
Are you asking me as a lawyer, like, my view, like, legal -- that's kind of a
legal conclusion, is transition --
Q
Right.
A
-- official business or not. It is an official entity. Congress passed a law
creating an official transition --
Q
But he wasn't operating in his personal capacity?
A
You know, you're on transition. He was the incoming National Security
Advisor. There's a statute that creates the transition entity. GSA gives us office space.
That sounds like government to me.
Q
Right. But he --
A
That sounds like an official kind of thing.
Q
But he wasn't operating in a personal capacity --
A
I have no idea. I was not aware of what Flynn was doing with respect to
these calls. I learned all this after the fact. So I can't really speak one way or the other --
Q
Okay.
A
-- as to what he was doing or what capacity or any of that. I understand the
gist of the question, but I wasn't there, so I can't --
Q
Okay.
A
-- really offer a fact-witness perspective on that question.


60
Q
Okay. Were you surprised, though, that the FBI, you know, somehow made
their way in the White House and started interviewing him?
A
"Surprised" is a good word, yeah. Yeah. I mean, we had already been -- the
President had been sworn in. We were on the job. And, you know, I had thought the
protocol would've been some sort of courtesy notice to the counsel's office. And, you
know, if for some reason they didn't know me, I had other people on the job who had
been --
Q
Right.
A
-- Department of Justice alums, so they certainly would've had comfort with
somebody in the office. But, as far as I know, we had no heads-up at all that they wanted
to interview Flynn. So, yeah, "surprised" is as good enough a word as any.
Q
Director Comey, I think he, in an MSNBC townhall, said that he, you know,
thought he could get the agents in because the White House wasn't yet organized. I
mean, he admitted there was sort of a breach of protocol.
A
I think he did, yeah. Yeah. You know, my office was stood up. I had hired
my office. I think a press release had gone out. I had a number of folks, again, who had
worked at the Department. One even, I think, worked for Director Comey when he was
at the Department. So the phones worked; phone did not ring.
Q
Handwritten notes that came out during the course of the Flynn prosecution
and the unwinding of that case --
A
Uh-huh.
Q
-- you know, the FBI was recorded saying that the purpose of the interview
was to, quote, "get him to lie so we can prosecute him or get him fired."
Is that something that you think that the FBI ought to be using as a purpose or
predicate for an interview with the National Security Advisor?


61
A
Are you just asking me as a private citizen?
Q
Well, as the White House counsel. I mean, if the FBI has evidence that
there's a crime committed and that, you know, Lieutenant General Flynn was a witness to
it --
A
I don't think the FBI has decision rights over whether or not the President
fires his National Security Advisor.
Q
Yeah.
A
So I think that stands out as a goal that the Bureau -- seems to go beyond the
scope of what they --
Q
Right.
A
-- what we think they're doing. I mean, they're the Federal Bureau of
Investigation. That doesn't seem like part of an investigatory function.
Q
Right.
And so, I believe, going back to the January 26th meeting, Yates raised the Logan
Act with you. And, according to the report, you had, you know, one of the NSC lawyers
go look at this.
A
I had John Eisenberg take a look. He -- brilliant lawyer. He clerked for
Clarence Thomas. He had served at DOJ, I think in Office of Legal Counsel handling
national security issues. And although I had done some postgraduate/post-law-school
work on national security law, I thought it best to have my expert take a look.
Q
Uh-huh.
A
And, you know, I had him take a look at the potential legal issues that the
Attorney General had raised.
Q
Right. And, you know, it probably doesn't take somebody of John
Eisenberg's ilk to know that the Logan Act is not a frequently prosecuted statute, correct?


62
A
I think even I knew that no one really -- my recollection is, no one had ever
really been prosecuted under the Logan Act. There may have been one a long, long time
ago that fizzled out, but certainly in recent history that it was not something that I --
Q
Right.
A
I didn't have any recollection of any prosecutions under the Logan Act.
Q
So, if the FBI is coming in to interview Flynn based on the Logan Act, on one
hand, or they're coming in to interview Flynn because they want to get him to lie, either
one of those -- and those seem like the two options here -- either one of those is not an
honorable way to conduct oneself, you know, in terms of being a Federal agent
conducting a Federal investigation of the President's National Security Advisor. Is that
fair?
A
It's a fair view to have, I suppose.
Q
And so, going back to the President's concerns about the witch hunts, you
know, his concerns that Crossfire Hurricane was unfair, the Mueller report was unfair,
and now there's another data point where, you know, the rungs of government are
coming after one of his top advisors -- you know, he's not the chief of staff, he's not the
White House counsel, but National Security Advisor is certainly in that upper echelon of
most critical advisors to the President.
Isn't it fair to say that, everything we now know about the Flynn matter, the
President was right to be frustrated about what was going on?
A
Are you asking about something in the report, or are you asking me for my
own view of whether the President was justified in feeling that something was off?
Q
Well, the backdrop to a lot of this, you know, the Mueller -- the second part
of the Mueller report goes into these episodes. I mean, the whole second part, the whole
180-page, you know, obstruction report, you know, walk through these episodes. And


63
many of the episodes chronicled in the second part of the Mueller report, you know, deal
with things that ultimately never came to fruition and were, you know, against the
backdrop of the President just being frustrated.
Is that something you can concur with?
A
Like I said, I don't disagree with it. I don't know.
Q
For example, the second part of the Mueller report goes through -- and we
talked a lot about this in the first hour -- the President's concerns about Mueller's
conflicts and whether Mueller wanted to be removed. But, at the end of the day, Mueller
was never removed, correct?
A
That is correct. Mueller was never removed.
Q
And his office and his scope limitation was never -- he was never limited in
anything he could look at, correct?
A
That was up to the Acting AG, and Rod Rosenstein set that forth, and that
was never modified outside of his --
Q
Right.
A
-- decision rights.
Q
And anytime he needed his scope to be broadened, he would go to Rod,
correct? And, for the most part, I think news reports indicate Mr. Rosenstein granted the
scope broadening.
A
Based upon news reports, that appears to be correct. I wasn't privy,
obviously --
Q
Right.
A
-- to any of those discussions or part of them. I really have no way of
knowing whether the news reports are accurate or not. But --
Q
Right.


64
A
-- you are correct that I think there were news reports to that effect.
Q
But, you know, your role as White House counsel, I mean, you have the
obligation to think about the best interests of the President and the best interests of the
Office of the President, correct?
A
Right. Yeah.
Q
And the same goes for the chief of staff and the other, you know, senior
people. And a lot of the vignettes or episodes chronicled in the second part of the
Mueller report, you know, really deal with things that never came to fruition, correct?
I'm talking about the firing of Mueller, the not-firing of Mueller, the limiting of Mueller --
A
That's true. Right. Mueller was never removed.
Q
Uh-huh.
A
I take your point.
Q
You know, when news accounts came out that revealed that, you know,
perhaps you and the President were on a different page with whether he ultimately
wanted Mueller fired, you know, there was some discussion about whether you ought to
write a memo to the file, and, you know, according to the Mueller report, you weren't
comfortable doing that, and so you didn't, right?
A
Say it again. Sorry.
Q
There was, in the Mueller report, a discussion of how, when news reports
came out about the firing-of-Mueller story --
A
Right. That's in the report, yes.
Q
-- you know, your recollection or your view of whether the President wanted
you to ultimately fire Mueller and the President's view of that differed, correct?
A
Apparently.
Q
And he wanted you to write a memo about it, that the Mueller team looked


65
into --
A
It's in the report -- I remember -- I have a recollection of other staff coming
to me and saying that was the President's desire.
Q
Right.
A
Yeah. I don't recall the President ever telling me to do that directly.
Q
Okay. But, ultimately, no memo was ever created.
A
I never wrote a memo.
Q
Right.
A
That's correct. Right.
Q
Okay.
Another one of the episodes chronicled in the second part of the Mueller report
was whether, you know, the Attorney General would unrecuse himself. You know, the
Attorney General recused himself in March of 2017, and I think, you know, Dana Boente
then took over as the Acting Attorney General, and subsequently Mr. Rosenstein.
But nobody ever pressured the Attorney General to ever unrecuse. Is that
correct?
A
Well, I don't know if I know all the facts. I think there's a -- I have not read
the report in full. I've read --
Q
Right.
A
-- portions. But I have a vague recollection somewhere in here that the
President may have talked to Sessions about that or something. So I don't know if I could
really say conclusively. I --
Q
No, but from your perspective --
A
What I do know is, Jeff Sessions never unrecused.
Q
Right. And from --


66
[Audio malfunction.]
[Discussion off the record.]
BY MR. CASTOR:
Q
Your communications with Sessions, you never had a -- you never asked
Sessions to unrecuse, did you?
A
Once he recused, no, I never asked him to unrecuse.
Q
Okay.
Just going back to Lieutenant General Flynn's case briefly. Director Comey, in
testimony before --
[Audio malfunction.]
Mr. Hiller. Let's go off the record for 1 minute and try to resolve this.
Mr. Castor. Okay.
[Recess.]
BY MR. CASTOR:
Q
I just have a couple followup --
A
Sure.
Q
-- questions on the Flynn matter.
A
I think I'm here all day, so --
Q
Comey testified that he had authorized the closing of the Mike Flynn
investigation, you know, at some point before -- before -- Strzok and Pientka came into
the White House. Were you aware of that fact?
A
That he testified to that? I'll take your word for it.
Q
That he testified to it or that, in fact, they had made a decision to close the
Flynn investigation.
A
I recall that Flynn was under the impression it was going to be closed and he


67
thought the agents were telling him it was going to be closed. But I don't have
another -- I mean, I've never met Comey in my life, so he's never told me what he was
going --
Q
Fair enough.
A
-- to do with Flynn, because I've never actually spoken to him.
Q
Assistant Director McCabe also testified here. And he testified as well, that,
to the best of his recollection, our assessment by the middle of December of 2016 was
that we really had not substantiated anything particularly significant against General
Flynn.
Were you aware of that fact or --
A
Not at the time, not in December. But if McCabe said that in testimony, I
may have become aware of it at some point.
Q
Okay.
And then, after the middle of December, the early part of January --
A
'17? We're in '17 now?
Q
'17.
A
Okay. Thank you.
Q
-- there was an Oval Office meeting with the former President, the Vice
President, where the former Vice President, now President Biden, raised the prospect of
using the Logan Act to go after Flynn.
Are you aware of that?
A
I wasn't in the meeting. I wasn't at the White House, so --
Q
Okay.
A
-- I wasn't aware in real-time. I think I've heard that from news reports and
others, and you just told me. So I don't have any reason to --


68
Q
I mean, that came out during --
A
-- agree or disagree with what happened.
Q
-- the course of the Flynn prosecution --
A
Okay.
Q
-- that they had decided to close the case because they didn't have anything,
and then on January 5th there was a decision to possibly use the Logan Act to go after
Flynn.
When you communicated to Sally Yates in the second meeting you had with
her -- she came back on January 27th. Is that correct?
A
Correct, the next -- well, whatever the next day was. Yes.
Q
And did she come -- what was the purpose of that meeting?
A
I asked for the meeting --
Q
Okay.
A
-- to get further clarification.
Q
And did you --
A
It wasn't clear to me what -- I was going to call her "Sally" again;
apologies -- Attorney General Yates was really telling me in the first meeting. I thought I
got it, but there was still fuzziness as to what she was really asking me to do or not do.
Q
Okay. And what do you remember from that meeting?
Ms. Shapiro. Could you refer him to the report, please?
Mr. Burck. Could you please stay to the report?
BY MR. CASTOR:
Q
It's all on 31 and 32 of the --
A
I generally remember the meeting, but I don't -- yeah, I would appreciate
going to the report, because it's -- when you have multiple meetings on similar topics,