Over the weekend, Michael Schmidt and Maggie Haberman published a remarkable story in the New York Times chronicling White House Counsel Donald F. McGahn’s substantial cooperation with special counsel Robert Mueller’s investigation into Russian criminal election interference. McGahn had a ringside seat to many of President Donald Trump’s alleged efforts to impede that inquiry. The story paints a picture of McGahn’s alienation from the president and other members of the legal team, and the defensive measures he undertook as he believed he might be hung out to dry by President Trump. Apparently it took the president and other members of his legal team by surprise.
The legal avenues McGahn has pursued reveal a great deal about how he may be navigating profound tensions between his roles as White House counsel, as a potential defendant (even if framed by others), and as a government attorney who the president reportedly expects will remain personally loyal. McGahn’s chosen paths also reveal much about the White House’s view of the president’s exposure to criminal liability.
Almost a year ago, I told Business Insider “McGahn will be a fact witness to what Trump was saying at the time” with regard to James Comey’s dismissal. Back then, I was concerned about his ability to be effective in his role if sidelined. The Times reveals that McGahn spent some 30 hours over three sessions in interviews with the special counsel. That is an eye-popping amount of time. I can’t recall spending that much time deposing crucial witnesses in multibillion-dollar litigation cases.
I encourage people to read Bob Bauer’s reaction to this report. Having served as counsel to the president in the Obama White House, he is in a position to understand the myriad duties and tensions of that job at the level of seniority of those who interacted with the president on a daily basis. I would like to add a few further observations based on my experience as one of his lieutenants who was brought in, in part, for consigliere services once President Barack Obama faced a Republican-led Congress after the 2010 midterm election.
The levels of dysfunction in the Trump White House and its in-house legal advisers portrayed in the Times report are astounding. They range from the institutional to the professional to the personal. Organizational dysfunction is always negative, but it is especially damaging at the White House as well as in lawyer-client relationships. Here we appear to have both of these problems.
Legal doctrines designed to shield the White House from having to disclose information—such as executive privilege and attorney-client privilege—are always highly controversial. Even principled and valid claims of privilege will give rise to the hue and cry of stonewalling, cover-up, contempt, or obstruction of justice. But put aside that dynamic for a moment to consider the purposes of the privileges. They are designed to promote trust and candor in the relationship between a president and his senior legal adviser.
In United States v. Nixon, the Supreme Court explained the rationale for a qualified privilege shielding presidential communications from disclosure in common-sense observations about individual behavior: “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Similarly, it is basic black letter law that the purpose of an attorney-client privilege is to encourage clients to tell their lawyers the unvarnished truth, even if it’s ugly or incriminating. Bauer rightly observes that a government attorney-client privilege was likely ultimately unavailable as a legal matter to shield McGahn from grand jury testimony in light of Clinton-era D.C. Circuit precedent. However, the arguments certainly could have been made to limit the scope, or slow the pace, of Mueller’s inquiry.
In McGahn’s case, even in the absence of an assertion of executive privilege, the underlying concerns identified by the Supreme Court in Nixon have already been realized. President Trump has a personal legal team headed by private lawyers and a White House legal team to address official duties and institutional interests. Both the Times and Bauer correctly note that, in the final analysis, McGahn’s professional allegiances run to the office rather than its occupant. And it was prudent for McGahn to hire Bill Burck (who served as deputy White House counsel under President George W. Bush) as personal counsel. But the Times article goes a step further than McGahn giving evidence. Rather, it suggests that McGahn actually feared he was being set up by President Trump as a potential fall guy. And that McGahn took defensive measures to protect himself while remaining on the job as the president’s senior legal adviser. Adding context, the Times reports McGahn has derisively referred to Trump as “King Kong,” owing to McGahn’s dim assessment of Trump’s volcanic temper in the face of unwelcome news. That strikes me, asserted privilege or not, as a presidential adviser who might very well “temper candor with a concern … for their own interests to the detriment of the decisionmaking process.”
Of course President Trump represents the principal figure on the other side of the White House counsel relationship. As we have seen in other contexts, President Trump thinks in personal, rather than institutional, terms. The Times reports that President Trump has “questioned Mr. McGahn’s loyalty.” Further, it claims: “The president wrongly believed that Mr. McGahn would act as a personal lawyer would for clients and solely defend his interests to investigators, according to a person with knowledge of his thinking.” Personal loyalty to the president will put a White House legal professional in a bind if that president’s personal interests diverge from those of the presidency or the Constitution. The Russia investigation has clearly exacerbated that line of tension.
Another significant facet of the Times report on McGahn is what it suggests about the special counsel’s investigation into President Trump’s efforts to impede the Russia investigation. President Trump’s personal lawyers claim that a president cannot ever be guilty of an obstruction of justice statute where the conduct at issue relates to supervision of a criminal investigation. Some have even claimed that it was that functional immunity from legal liability for obstruction that prompted McGahn’s willingness to provide so much transparency into conversations in the inner West Wing sanctum. Marcy Wheeler offers another plausible theory: that McGahn may have greater personal exposure related to his role in the campaign and thus benefits from news coverage that assumes the key here is the obstruction investigation rather than Russian collusion or election law violations.
I disagree with the broad claim that the president cannot obstruct justice based on official acts. I am also mindful of Marty Lederman’s refrain that Mueller will not seek to indict a sitting president. However, it appears to me that McGahn and Burck share my lack of confidence in Trump’s foundational legal defense to an obstruction of justice charge. The Times reports that Burck “explained to others that he told White House advisers that they did not appreciate the president’s legal exposure and that it was ‘insane’ that Mr. Trump did not fight a McGahn interview in court.”
What’s more, if McGahn believed President Trump faced no criminal legal exposure for obstruction of justice—whether related to pressuring Comey to drop the Michael Flynn investigation, or firing Comey thereafter, or pressuring the attorney general to reverse his legally mandated recusal from the Russia investigation, or publicly expressing support for Paul Manafort as his jury entered deliberations, or revoking John Brennan’s security clearance because he was a classified witness to Trump campaign Russia contacts—then McGahn would not face derivative liability for serving as a conduit for those presidential acts. In other words, McGahn wouldn’t have the same need to undertake defensive legal measures if the obstruction case against Trump were meritless.
Moreover, the White House could have taken the position that the government attorney-client privilege should operate to preclude McGahn’s testimony. If there were no “potential criminal wrongdoing” at play in McGahn’s story, then the rationale of the D.C. Circuit ruling abrogating the government-attorney client privilege would be absent here. However, to be fair, it appears that the strategic decision to allow McGahn to be interviewed by the special counsel was made over McGahn’s objection or contrary to his advice.
At bottom, the news report is reminiscent of the old warning not to listen to what their lips say but look at the direction their feet are pointing. McGahn’s legal body language, according to the Times, appears to assign great legal jeopardy to the special counsel’s obstruction of justice investigation and potentially collusion, too.
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