Jurisprudence

Don McGahn Is No Hero

Don McGahn.
Don McGahn in Washington on April 13, 2018.
Alex Wong/Getty Images

On Monday, one of the central players in the Mueller report, former White House Counsel Don McGahn, received a subpoena to appear before the House Judiciary Committee. Since last week’s release of the special counsel’s report, McGahn has been portrayed almost as a hero for refusing to obey President Donald Trump’s commands that he obstruct the Russia probe by removing Mueller and fabricating evidence. But McGahn is no hero. While he refused to break the law for Trump, he also has espoused an extreme version of executive power that would prevent other administration officials from disobeying authoritarian commands from an out-of-control president. In fact, McGahn was the point person in Trump’s nomination of judicial appointments that prioritize obedience to the chief executive over the rule of law.

One theme that has emerged from the Mueller report is how various members of the Trump administration, like McGahn, managed to avoid a constitutional crisis by refusing to carry out some of the president’s outlandish and illegal orders. Those same administration officials have sought to appoint federal judges, including justices on the Supreme Court, who view fealty to the president as a requirement of the Constitution.

The Mueller report underscores the hypocrisy of this administration’s judicial appointments. The administration officials’ actions make clear why their judicial nominees have a misguided understanding of the president’s constitutional powers. And yet those same officials insist on appointing judges to the federal bench who will not allow senior executive officials to disobey presidential orders without consequence and will expand the scope of presidential power in concerning ways.

The Mueller report details several examples of senior administration officials refusing to carry out the president’s apparently unlawful directives. These disobedient officials are not career administration officials whom the president often describes as the deep state; the officials who refused to carry out the president’s orders are the staff the president chose himself.

For example, the Mueller report recounted how the president called “McGahn at home and directed him to call […] Acting Attorney General [Rod Rosenstein] and say that the Special Counsel … must be removed.” The report continues, “McGahn did not carry out the direction.” Trump later asked his former campaign manager Corey Lewandowski to tell then–Attorney General Jeff Sessions to announce that the special counsel investigation was “very unfair” to the president and that the president had done nothing wrong. Lewandowski “did not want to deliver the President’s message,” so he asked “senior White House official Rick Dearborn to deliver it.” But “Dearborn was uncomfortable with the task and did not follow through.” The president subsequently reacted to press reports that he had directed McGahn to fire the special counsel by ordering McGahn to “dispute the story and create a record stating he had not been ordered to have the Special Counsel removed.” McGahn said the reports were accurate and did not do so.

Again, though: McGahn, Lewandowski, and Dearborn are not heroes in this story. Far from it. But it is fair to say that their refusals to carry out the president’s orders avoided the more serious constitutional crisis that would have resulted if the president had removed the special counsel, or if the president had fabricated evidence about events that transpired. Senior executive officials’ ability to disagree with the president—and more importantly, to disobey him—is partially what preserved whatever remains of the rule of law in our constitutional system.

Yet these same administration officials, particularly McGahn, have gone out of their way to secure the confirmation of judges to the federal bench who would not allow senior executive officials to disobey presidential orders without consequence. The judicial nominations McGahn has shepherded, particularly Supreme Court Justice Brett M. Kavanaugh, have championed the so-called unitary executive theory. Under that theory, all officials who carry out executive tasks are exercising the president’s powers and must be directly accountable to the president. Because the officials are merely arms of the singular unitary executive, this theory maintains, the president must be able to direct their actions by firing officials for their insubordination or their refusal to carry out the president’s policies.

By relying on this unitary executive theory, the judicial nominees of this administration have invalidated the statutory restrictions on the president’s ability to fire the head of the Consumer Financial Protection Bureau, as well as the statutory restrictions on the president’s ability to fire the head of the Federal Housing Finance Agency. The statutes governing those agencies prohibited the president from firing the heads of those agencies merely because the agency heads disagreed with the president’s policy or order. And by relying on the unitary executive theory, this administration’s judicial nominees—including Kavanaugh—held that the president must be able to fire officials who refuse to carry out his orders. Otherwise, the nominees wrote, there would be a serious constitutional problem.

The Mueller report indicates that these nominees have it backward. There would be a serious constitutional crisis if an authoritarian-leaning president had the ability to fire his appointees for refusing to carry out his authoritarian-leaning orders. Imagine if the president directed the CFPB to pursue enforcement actions only against companies led by executives who criticized him, or ordered the FHFA to subsidize homes only in Republican-controlled districts. We would avoid a more serious constitutional crisis if the president’s appointees refused to follow the president’s orders. Yet, McGahn has helped put in place judges who would demand this sort of fealty to this sort of president.

Administration officials should understand this reality given their experience in this White House. Yet their judicial nominations and judicial nominees have made clear they do not. And our constitutional system and the rule of law are at risk because of it.