On March 20, 2017, FBI Director James Comey confirmed that the bureau was investigating connections between Russia and the Trump campaign. Seven weeks later, Trump signed a bizarre letter firing him. Who wrote it? More precisely, where is White House counsel Donald F. McGahn II?
As the president’s lawyer, McGahn’s daunting task is to keep Trump out of trouble while preserving and protecting the US Constitution. And from White House ethics compliance and the immigration travel ban to Mike Flynn and the Trump/Russia investigation, McGahn has served both his client and the country poorly.
Harvard Law Professor Jack Goldsmith, who worked in the George W. Bush administration, observes that McGahn is either incompetent or ineffectual. The result is the same. On a broad range of issues relating to the fate of American democracy, a question cries out:
Where is Don McGahn?
Conflicts of interest
McGahn is a Washington insider who has thrived in “the swamp.” After graduating from Widener Law School in 1994, he got a job at a politically connected law firm. From 1999 to 2008, he was general counsel for the National Republican Congressional Committee. In the early 2000s, he represented then-House Majority Leader Tom DeLay (R-TX), a one-man ethics scandal band. In May 2008, President Bush appointed McGahn to the Federal Election Commission, which McGahn then helped to paralyze. In 2013, he returned to private practice.
Now, all Trump conflict of interest roads run through McGahn. The White House counsel’s office is supposed to deal with ethical issues swirling around the president’s people. Perhaps Newt Gingrich’s December 2016 musings have become McGahn’s ultimate malpractice insurance policy.
“[The president] has, frankly, the power of the pardon,” Gingrich said of the burgeoning Trump administration conflicts of interest. “I mean, it is a totally open power, and he could simply say, ‘Look, I want them to be my advisers, I pardon them if anybody finds them to have behaved against the rules, period.’”
Since the creation of the independent Office of Government Ethics in 1978—in the aftermath of Watergate—presidential administrations have followed its rules and regulations. But in February 2017, deputy White House counsel Stefan C. Passantino wrote to OGE Director Walter Schaub that “many” of those regulations “do not apply to the Executive Office of the President.” Schaub responded that Passantino’s position was legally incorrect and troubling. To make matters worse, Trump has issued secret waivers exempting former corporate employees and lobbyists in the Trump administration from complying with ethics rules and eliminated public access to White House visitor logs.
Similarly, if McGahn is a restraining influence on the Trump family’s exploding business conflicts of interest, it’s not apparent. In a Feb. 8 tweet, Trump blasted Nordstrom for dropping his daughter’s fashion line:
The next morning, Kellyanne Conway—counselor to the president and herself a lawyer—followed up with a Fox & Friends appearance. “Go buy Ivanka’s stuff,” she urged. “I’m going to give it a free commercial here. Go buy it today everybody. You can find it online.” For that ethical violation, Conway received counseling from McGahn’s deputy, Passantino, as sales of Ivanka’s “stuff” soared to the “best performing weeks in the history of the brand.”
Like her father, Ivanka retains financial interest in her company, thereby creating a clear financial path for those seeking influence. Two months after the Nordstrom episode, she dined with China’s President Xi Jinping at Mar-a-Lago as her company won three Chinese trademarks that “include monopoly rights to sell her distinct brand of jewelry, bags, and spa services.” After that story broke, the outside lawyer advising Ivanka said that her client “will recuse from particular matters where she has a conflict of interest or where the White House counsel determines that her participation would present appearance or impropriety concerns.”
As for husband Jared Kushner’s conflicts, in late April, Trump spokesperson Hope Hicks assured the public that he “continues to work with the Office of White House counsel. . . .” to resolve them. Meanwhile, on May 7, Kushner’s sister, Nicole Meyer, used Jared’s proximity to the president in pitching potential Chinese investors for Kushner real estate projects. She even touted a fringe benefit: for an investment of $500,000 or more a path to US citizenship opened. A day earlier, Trump had signed a bill extending the controversial EB-5 visa program to which she referred.
Where is Don McGahn?
The travel ban
As federal courts declared the travel ban unconstitutional, Trump has repeatedly attacked the judges ruling against him. Harvard’s Jack Goldsmith observes that White House counsel is supposed to ensure interagency coordination on important legal policies, anticipate court challenges and, as necessary, persuade the president to refrain from actions that compromise the defense of those policies. After a chaotic rollout, the ban suffered decisive courtroom defeats and Trump’s rants worsened his litigation position. If McGahn didn’t anticipate the ban’s logistical and constitutional problems, Goldsmith writes, he’s incompetent. If he did anticipate them, but couldn’t persuade Trump to abandon a misguided course and subsequent tweets, he’s ineffectual. Based on the record so far, McGahn could be both.
No one with a legal degree and respect for the Constitution’s separation of powers could embrace the incendiary White House statement issued after Trump’s April 25, 2017 courtroom defeat on sanctuary cities, which included these passages:
“This San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk . . . Ultimately, this is a fight between sovereignty and open borders, between the rule of law and lawlessness, and between hardworking Americans and those who would undermine their safety and freedom.”
Nor should any attorney by silence or otherwise, condone Trump’s subsequent Twitter-fit.
Where is Don McGahn?
The Flynn affair
McGahn is at the center of the Mike Flynn scandals. On Jan. 26, 2017, Acting Attorney General Sally Yates informed him that Trump’s national security adviser was “compromised.” Pence and others were telling the American public that Flynn’s late December 2016 calls with the Russian ambassador had not covered newly announced US sanctions for Russia’s election interference. Yates told McGahn that such statements were not true. But for 18 more days, Flynn kept his job as national security adviser—the most sensitive foreign policy position. Only after reporters uncovered the truth did Trump fire him a few days later.
According to Sean Spicer, McGahn took Yates’ report to Trump: “When the President heard the information as presented by White House counsel, he instinctively thought that General Flynn did not do anything wrong, and the White House counsel’s review corroborated that.” But Yates had told McGahn that it wasn’t just Flynn’s lies. His underlying conduct was “problematic in and of itself.”
In a second conversation about Flynn on Jan. 27, 2017, McGahn asked Yates why it matters to the Department of Justice if one White House official lies to another White House official. Yates reiterated her concerns about Flynn’s underlying conduct and explained that Flynn’s lies made him vulnerable to Russian blackmail. The Russians knew that Flynn had lied and likely could prove it. With every new White House statement repeating the lie, Russia’s leverage over Flynn grew. Trump fired Yates four days after her first meeting with McGahn, but he kept Flynn as NSA for two more weeks.
It gets worse. McGahn had already dropped an earlier ball. Flynn’s attorneys claim that during the transition, they informed McGahn that their client—Trump’s national security adviser-designate—might have to register as a foreign agent for Turkey. When that news broke in March, Sean Spicer said it was “not up to the transition attorney” to follow up. But it was McGahn’s job to protect the president-elect and the country from a would-be national security adviser who might be violating the law as an unregistered foreign agent. In March 2017, Flynn registered retroactively—long after Trump fired him over the earlier scandal.
As Yates prepared to testify before a Senate subcommittee about the Flynn affair, Trump tweeted himself into those proceedings.
Where is Don McGahn?
The Trump/Russia scandal
As the Trump/Russia scandal got hotter, Trump tweeted a baseless diversion that he’d been “wiretapped” by President Obama.
Apparently, it became McGahn’s job to find supporting evidence where none existed.
Two weeks after Trump’s tweet, a McGahn underling (along with a former Mike Flynn protégé whom Trump had saved personally from reassignment by new national security adviser H.R. McMaster) supplied confidential documents to Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee investigating the Trump/Russia connection. Nunes, who had also been on Trump’s transition team, rushed to the White House and briefed Trump on documents that Trump’s own staffers had shown him.
Nunes then hinted publicly about a nonexistent bombshell, and Trump declared that Nunes’ revelation to him vindicated his false wiretapping allegation “somewhat.” A few days later, the press revealed that the entire episode had been a farce featuring a key player in McGahn’s office; Trump’s wiretapping claim was still bogus. Nunes recused himself as chairman of his committee’s Trump/Russia investigation.
When Trump fired FBI Director James Comey on May 9, his letter referred to conversations that supposedly exonerated Trump with respect to the bureau’s Russia investigation. That detour waived executive privilege. The stated reason for the firing was frivolous on its face: namely that prior to the election, Comey had made inappropriate public statements about the FBI’s investigation of Hillary Clinton’s email server—statements that Trump had praised as he exploited them to win the White House. It also relied on the recommendation of Attorney General Jeff Sessions, who had supposedly recused himself from the Trump/Russia and Clinton investigations.
Where is Don McGahn?
Someday in a setting he won’t enjoy, McGahn will probably have to answer that question—and many more—under oath. If so, he won’t be the first White House counsel to traverse that path. John Dean, his predecessor in the Nixon administration, knows how this could end: Sometimes it’s not the crime; it’s the cover-up.
The next installment in the series will consider White House Chief of Staff Reince Priebus and Vice President Mike Pence.
This post was first published on BillMoyers.com
Steven Harper blogs at The Belly of the Beast, is an adjunct professor at Northwestern University, and contributes regularly to The American Lawyer. He is the author of several books, including The Lawyer Bubble—A Profession in Crisis and Crossing Hoffa—A Teamster’s Story (a Chicago Tribune “Best Book of the Year”). Follow him on Twitter: @StevenJHarper1.