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Following the announcement of Brett Kavanaugh’s nomination on July 9, Trump had mostly seemed pleased with his choice—“he’s very safe,” Trump kept repeating, “big respect, slam dunk.” But toward the end of the summer he began to express reservations in some of his after-dinner calls. Here was one more instance of a president who often seemed to feel that his own White House was working against him. Somebody was feeding him doubts. One friend speculated that it might be his sister Maryanne Trump Barry, a now-inactive federal judge, even though she and her brother were not particularly close. But the message, wherever it came from, became a sudden irritant for Trump: there were no Protestants on the Supreme Court. “Did you know this?” he demanded of one friend.
Of the eight justices currently serving, all were either Jews or Catholics. Kavanaugh was also a Catholic, as was the runner-up choice, Amy Coney Barrett. There was some confusion about Neil Gorsuch, and Trump was offered conflicting views. But Gorsuch was certainly raised a Catholic and had even gone to the same Catholic school that Brett Kavanaugh had attended.
Can’t we find lawyers who aren’t Catholics or Jews? Trump wondered. Weren’t there any WASP lawyers anymore? (Yes, he was told—Bob Mueller.)
It seemed confounding to Trump that he hadn’t been aware of this new and remarkable fact about the Supreme Court. Inexplicably, the tide of history had turned, yet no one had noticed—or informed him.
“You had all Protestants and then in a few years none. Doesn’t that seem strange?” he ruminated. “None at all.” The nominally Presbyterian Trump went on: “But I can’t say, ‘I want to put a Protestant on the Court for better representation.’ No, you can’t say that. But I should be able to. You should be able to have the main religion in this country represented on the Supreme Court.”
Was this McGahn’s doing? Trump wondered, now deeply suspicious of the White House counsel. He was the White House point person on Supreme Court nominations; he was also a Catholic. Was McGahn packing the Court? Kavanaugh, like Gorsuch, had been preapproved by the Federalist Society, and Leonard Leo, the society’s key man, was (reportedly) a member of Opus Dei, the secretive, far-right Catholic organization. Trump said he had been told that Leo was in bed with the Vatican.
As though putting two and two together—a slow dawning—Trump started to focus on abortion. Here he was on thin ice: whenever the issue came up, after only a few sentences of discussion, he would often begin to waver. His now-standard right-to-life view would revert to his previous, pro-choice view. In late August, weeks after nominating Kavanaugh, Trump wanted to know: Was this guy part of a Catholic plot to abolish abortion?
Suddenly alive to the reality of a no-Protestant Court, he continued needing reassurance that Brett Kavanaugh was not just out to make abortion illegal. Kavanaugh, he was told, was a “textualist,” meaning he was primarily concerned with curbing the ever growing and, in the textualist view, unconstitutional authority of the administrative state. Abortion was far from his number one issue.
Still, as the White House staff prepared for what they assumed would be a harshly contested confirmation, Trump felt like he wasn’t getting the full story. This irritation fed into a larger theme that had surfaced during the Gorsuch nomination: Why wasn’t he being allowed to choose people he knew? He knew a lot of lawyers; why couldn’t he just pick one?
Almost every observer of Trump’s presidency agreed that the appointment and confirmation of Neil Gorsuch had been one of the smoother White House maneuvers. They also agreed that the reason it had been so smooth was that the White House—and Trump himself—had had very little to do with it.
During the campaign, the Federalist Society had produced a list of judges that it deemed acceptable for any open seat on the Supreme Court. All the choices were well vetted, reputable, and graduates of top law schools; all were judges who subscribed to textualist views and had not supported pro-abortion decisions. This became a no-fault Trump talking point during the campaign: if given the opportunity, he would nominate someone from the list. (This approach sharply contrasted to the campaign’s haphazard effort to come up with a slate of likely foreign policy advisers. That list was generated inside the campaign and included a largely random group of relative unknowns, notably Carter Page and George Papadopoulos, both of whom would later help ensnare the campaign and the future White House in the Russia mess.)
But no matter how solid the Federalist Society’s list or how well the selection of Gorsuch had worked out, Trump yet rebelled. This was a plum job; why couldn’t he give it to a friend? He may not be a lawyer, but he knew more than most lawyers. After all, he had hired and fired lawyers for almost fifty years. And in New York, this was standard operating procedure: you wanted judges who owed you.
Trump had pushed to nominate Giuliani (also, as it happened, a Catholic) as his first Supreme Court pick, but he was quietly talked down from this idea—Giuliani was pro-abortion. Now Kavanaugh, like Gorsuch, was presented as a done deal. There were runners-up, such as Barrett, but Kavanaugh was the McGahn-Federalist choice, the establishment choice. They had a clear plan: Kavanaugh would be rolled out over the summer and then hearings would begin right after Labor Day. The timing could not be better. Only weeks before the midterms, the Democrats would almost certainly take the bait and make a noisy, futile effort to obstruct the president’s choice. The president would ably defend his solid and upright nominee, a judge who was acceptable to the legal establishment. He would also deliver on his necessary promise to the base: a hard-core conservative and right-to-life Supreme Court justice.
That Kavanaugh would be confirmed at the height of the midterm election season was the invaluable bonus. Here was the golden message to conservative voters: no matter how much Trump might grate on you, you could depend on him to deliver a rehabilitated Court. With Justice Kennedy gone, Kavanaugh would push the Court firmly to the right—and there might well be two more appointments to come.
But now a sanguine Trump became a more truculent Trump. He wanted more choices. He wanted to add his people to the list. If push came to shove, he would need people he could depend on. Lest anyone miss the point, he pressed the issue: he wanted “a get-out-of-jail-free card.”
This then became the Trump focus. Given his myriad levels of personal exposure, the pursuit of the special counsel, and the prospects of a Democratic House barreling toward impeachment, he needed to know that Kavanaugh would protect him. Could McGahn and the others be sure Kavanaugh would have his back? Ever unsubtle in his desires, he pressed harder: Could they get a commitment from him?
Not a problem. Kavanaugh had already argued, Trump was told, that the office conferred a special status, that a sitting president was in effect exempt from personal legal culpability. (In fact, Kavanaugh, who had worked for Clinton prosecutor Ken Starr, had also argued quite the opposite during the Clinton investigation, and though he now seemed to advocate for a strong executive, the particulars still seemed fairly hazy.) Yes, Trump’s advisers repeatedly assured him, all the Trump-related questions that might come before the Court—about his business interests, about executive privilege, about his possible indictment—seemed quite safe with Kavanaugh.
The Kavanaugh nomination was a bright red flag for Andrew Weissmann and the Mueller team. Were the special counsel to proceed with an indictment of the president, the issue of presidential immunity would undoubtedly come before the Supreme Court and yield a decision that could be as consequential as Bush v. Gore or the case involving the Nixon tapes. Indeed, the decision might either secure Trump’s hold on the White House or unseat him. And if the Court came to that crossroads, what would be the Kavanaugh effect?
Almost from the beginning, Mueller’s team had assumed that the president’s fate, and quite possibly the fate of the special counsel’s investigation, would be decided by the Supreme Court. But now the constitutional issues that lay at the heart of the likely case would be considered by someone who appeared to have already made up his mind about presidential fallibility—and to have judged the president quite infallible. Assuming the Senate confirmed Kavanaugh, a near certainty given the Republication majority, the Court’s newest justice might provide just the sort of presidential exception that would render their investigation all but pointless.
But as the Trump team sought to make Kavanaugh the president’s fail-safe mechanism, Weissmann looked for ways to override the likely new justice and the protection he would probably offer the president. On the eve of the Kavanaugh hearings, the special counsel’s team gamed out what might happen if the Department of Justice demanded that Kavanaugh recuse himself.
This approach had virtue on its side, though not necessarily the law. If you were a judge and found yourself weighing the fate of someone about whom you might reasonably be biased—say if he had granted you a favor, like making you a judge—you ought to recuse yourself. This is what fair-minded judges did. If they did not, judges could be compelled to disqualify themselves through an appeal to higher courts. But although all judges in federal courts were subject to the same standards relating to conflicts of interest, it was less clear that this standard applied to justices on the Supreme Court—or, anyway, that there was someone who could enforce this standard on them.
The special counsel’s own review of the law here did not provide much room for optimism: “The Rules of the Supreme Court make no provision for the filing of recusal motions. Predictably, such motions are seldom filed, and we have found no instance of one being granted,” declared a research memo prepared for Mueller’s team. “And we are aware of no examples of the U.S. government filing a motion for the recusal of a justice.”
On the most basic matters of the law, the document was doleful: “The ethics code that generally governs the recusal decisions of federal judges—the Code of Conduct for United States Judges, promulgated by the Judicial Conference—by its terms does not bind the justices of the Supreme Court.”
Still—and here was the continuing argument of the special counsel—there was, in the law, no ultimate exception, no imperial option: “The federal recusal statute … by its terms applies to ‘[a]ny justice, judge, or magistrate judge of the United States.’ … Moreover, the decisions of the Supreme Court are clear that recusal is a fundamental matter of fairness and the appearance of justice, which implicates Due Process.”
Alas there was “no mechanism for appealing from a decision of a justice of the Supreme Court not to recuse him- or herself, nor any means of addressing the question to any judicial audience apart from the justice alone.”
Weissmann’s proposed Kavanaugh work-around appeared to be a bust. If Brett Kavanaugh became a Supreme Court justice, the Department of Justice could demand that he recuse himself from what might be the case of the century. But Kavanaugh could simply refuse—and that would be the end of it.
As the special counsel’s office weighed its options in the wake of the Kavanaugh nomination, so did the minority Senate Democrats. Their conclusion was that the Kavanaugh nomination could be derailed only by an attack on Kavanaugh’s personal rectitude. An email from one Senate staffer listed some of the Hail Mary issues that might block Kavanaugh: “Sexual or financial improprieties, drugs, violence and anger management issues, plagiarism, gambling debts.”
Throughout the summer, there was a low-level murmur about Kavanaugh’s Yale fraternity, Delta Kappa Epsilon. A generation before, similar murmurs had trailed the presidential candidacy of George W. Bush; he, too, had been a DKE member, and rumors about extreme alcohol abuse and sexually aggressive behavior followed him.
But it was Kavanaugh’s high school life that came to haunt him. Dianne Feinstein, the senator from California and ranking minority member of the Senate Judiciary Committee, confided to multiple friends that she had received a confidential letter containing allegations about Kavanaugh’s behavior one night during a prep school party. Kavanaugh’s accuser was a woman named Christine Blasey, who sometimes used her married name, Ford. A professor of psychology at Palo Alto University, she seemed credible and had a solid background. But she was fearful of coming forward; furthermore, Feinstein wondered if the single incident that Blasey Ford described would register with anyone. Feinstein wondered if the incident even should register. For weeks, Feinstein kept the letter under wraps.
The Kavanaugh confirmation hearings began on September 4. Initially, the hearings caused no great alarm for the nominee’s supporters. But Kavanaugh’s opponents were desperate, and after a series of leaks from Democrats on the Hill, Blasey Ford, whether she wanted to or not, became the designated weapon against the nominee. Forced out in the open, she described her one experience with Kavanaugh in an article published by the Washington Post on September 16.
The story she told took place in Maryland in the summer of 1982, when a small group of teenagers gathered one evening in one of their homes. Blasey Ford was then fifteen; Brett Kavanaugh, then seventeen, was a distant acquaintance, someone she had occasionally encountered in Montgomery County private school circles. That evening, according to Blasey Ford, as she went upstairs to look for a bathroom, a drunken Kavanaugh, with a drunken friend in tow, forced her into a bedroom, pushed her down on a bed, and jumped on her, pawing at her clothes and holding a hand over her mouth long enough for Blasey Ford to begin to panic.
Trump, it seemed, could not get enough of this story. “He pushed her down on the bed and that’s it?” How long had he held her down? Trump wanted to know. “Did he just fall on her and go in for a kiss? Or was it humping?”
When Trump was told that Kavanaugh’s friend Mark Judge, who Blasey Ford claimed was in the room, had written a book about his drunken exploits in high school, Trump whacked himself alongside the head. “What kind of idiots did you get me here?”
Then he went back to insisting that things would be going much better if he had chosen the nominee. “This is embarrassing,” he said. “Catholic school boys.” Which provoked a recollection of his exploits when he was seventeen: he hadn’t just stolen kisses, that was for sure.
As Blasey Ford’s story instantly came to dominate the news, Trump conceived quite a sudden level of dripping contempt for Kavanaugh. “He seems weak. Not strong. He was probably molested by a priest.”
As Kavanaugh was put more and more on the defensive, the nomination abruptly seemed imperiled. The White House and the Kavanaugh team nixed a possible CBS interview, believing that the nominee couldn’t hold up under hostile questioning. But by this point Kavanaugh needed to defend himself somehow, so the White House agreed to the promise of a soft interview at Fox, with the questions provided beforehand.
During this treacly sit-down on September 24, a defeated and self-pitying Kavanaugh said he was a virgin in high school and for a long time thereafter. Trump could barely believe it. “Stop! Who would say that? My virgin justice. This man has no pride! Man? Did I say man? I don’t think so.”
Trump seemed eager to cut his losses and move on. Only several bracing warnings by senior members of his staff highlighting the depressing effect that abandoning Kavanaugh would likely have on the Republican base in the midterms, now just weeks away, prevented the president from sending out a tweet dumping his nominee.
Adding to the turmoil, Ivanka was telling her father how poorly Kavanaugh was performing with women. He was doing serious damage to the Republicans’ chances in the coming midterms. Democrats could hardly believe it, but the Kavanaugh battle seemed to be turning, quite inexorably, in their favor.
Trump’s ire rose yet further when he learned that George W. Bush—among the politicians that Trump scorned most—had come to Kavanaugh’s defense, and that many Republicans believed it was Bush who was keeping the nomination alive.
“The drunks stick together,” said Trump. “If he’s a Bush guy, he’s not a Trump guy. It’s bull that we can depend on him. Virgin-man will sell me out.”
During the week of September 24, Blasey Ford’s public testimony seemed to hang in the balance. Would she show up or not? The suspense created a level of uncertainty and tension that seemed especially to annoy Trump—Blasey Ford was commanding all of the attention.
Lewandowski and Bossie, egged on by Bannon, were telling Trump that if he lost Kavanaugh or, worse, dumped Kavanaugh, he would lose not only the House in November but the Senate, too.
Trump seemed to find new resolve by focusing on Michael Avenatti, Stormy Daniels’s lawyer, and Ronan Farrow, a journalist whose stories often focused on sexual abuse, both of whom produced last-minute Kavanaugh accusers as Blasey Ford wavered in her willingness to testify. Avenatti’s accuser told a tale of teenage gang rapes in suburban Washington, D.C. Farrow’s accuser claimed she recognized Kavanaugh at a drunken party at Yale, and said he might have exposed himself to her.
“Pathetic,” Trump declared, and then digressed into considerations of whether Farrow was the son of Frank Sinatra, as his mother, Mia Farrow, had suggested he might be, or of Woody Allen, adding, in a further digression, that he knew both Frank and Woody.
As the accusations against Kavanaugh mounted, Trump seemed to identify more with his nominee, or to recognize that the fury toward Kavanaugh was directed at him, too.
“They are after me,” he said, as though proudly.
Once again in the fight, Trump had to be restrained from not leading the counterattack himself. His enforced efforts at something like judicious temperament were gut-busting to many in the White House and the subject of something like a silent White House pool: “When will he blow?”
When Blasey Ford again agreed to testify—her testimony now set for Thursday, September 27—Trump expressed further concern about whether Kavanaugh was capable of handling himself in a tense public situation. He began to pass instructions and advice: “Admit to nothing. Zero!” He wanted aggression.
In the days and hours before the testimony, Trump would call friends and repeat his now favorite theme: when he was accused, he toughed it out. He seemed to be polling everybody about how tough they thought Kavanaugh really was.
“I don’t think he’s that tough,” Trump would then conclude.
Through it all, there seemed to be an implicit recognition on the president’s part that what Blasey Ford had said was probably true. “If it wasn’t true,” he offered, “she would have claimed rape or something, not just a kiss.”
On the morning of the twenty-seventh, Trump watched Blasey Ford’s testimony in the residence before coming down to the West Wing. He was on the phone with friends almost the entire time. “She’s good,” he kept saying. He thought Kavanaugh was in “big trouble.”
That afternoon, watching Kavanaugh’s performance, he was deeply displeased. He seemed personally offended that Kavanaugh had cried during this testimony. “I wanted to slap him,” he said afterward to a caller. “Virgin crybaby.”
But he also claimed credit for the fact that Kavanaugh admitted to nothing. “You can’t even admit to a handshake,” he told the same caller. He digressed to “my friend Leslie Moonves,” the chairman of CBS, who had recently been under fire after a series of #MeToo accusations. “Les admitted to a kiss. He’s done. Forget about it. When I heard about the kiss, I thought, Done, finished. The only person who has survived this stuff is me. I knew you couldn’t admit to anything. Try to explain, dead. Apologize, dead. If you admit to even knowing a broad, dead.”
That evening, catching up to the coverage and seeing the strong Kavanaugh reviews on Fox, Trump’s views seemed to shift. “Every man in this country thinks this could happen to him,” he told a friend. “Thirty years ago you try to kiss a girl, thirty years later she’s back—boom. And what kind of person remembers a kiss after forty years? After forty years she’s still upset? Give me a break. Give. Me. A. Break.”
The next day, Jeff Flake, the lame-duck senator from Arizona, confronted in an elevator by tearful and hectoring Blasey Ford supporters and Kavanaugh opponents, threatened to withhold his confirmation vote unless the FBI conducted a further investigation.
“Flakey Flake,” Trump pronounced. But despite the setback he was feeling a certain confidence that Kavanaugh’s nomination would go through. “It’s a total bullshit investigation. Total bullshit.”
Four days before the scheduled confirmation vote—as the FBI conducted its further round of vetting—Trump attended a rally in Mississippi. By now he was full of swagger.
“‘I had one beer.’ Right? ‘I had one beer.’ Well … you think it was…? Nope! One beer. Oh, good. How did you get home? ‘I don’t remember.’ How’d you get there? ‘I don’t remember.’ Where is the place? ‘I don’t remember.’ How many years ago was it? ‘I don’t know.’ I don’t know. I don’t know. I don’t know. What neighborhood was it in? ‘I don’t know.’ Where’s the house? ‘I don’t know.’ Upstairs? Downstairs? Where was it? ‘I don’t know.’ But I had one beer. That’s the only thing I remember. And a man’s life is in tatters. A man’s life is shattered.”
Trump’s rudeness caught the tide: nothing was going to derail Kavanaugh’s nomination now.
On October 6, Brett Kavanaugh was confirmed by the full Senate, 50 to 48.
After the vote, Bannon was practically hooting with pleasure. “Don’t ever underestimate the Democrats’ ability to overplay their hand and fuck things up. Kavanaugh is the presidency.” Not only were the Democrats helpless in front of the nomination, they had revved it up into a make-or-break cause. Then, tasting victory, they had lost the fight in the final hour.
In Bannon’s view, Trump had pulled to his side the people who did not believe the Democrats and Blasey Ford, as well as those who did not think a decades-old two-minute tussle had anything to do with the price of beans. But Bannon also understood that Trump may have irretrievably lost every woman in the country with a college education.
Still, Sean Hannity had 5.8 million viewers on the night of the Blasey Ford–Kavanaugh hearing. “That’s a lot of fucking hobbits,” said Bannon.
For Bannon, it was a line-in-the-sand moment. The surging Democrats saw the coming election as a mortal game. Now the hobbits did, too. Pelosi’s people, sure of sixty additional seats in the House four weeks ago, were now privately cutting their estimates to thirty seats.
Bannon could hardly believe that the midterms were swinging back his way. “Finally, fucking finally, Kavanaugh has nationalized this election.”
He only wished that this was November 6 and not October 6. And he fervently hoped there would be no more exogenous events.