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| Don McGahn Served the White House, Not Trump | Don McGahn Served the White House, Not Trump |
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| Lawyers and constitutional scholars will pore over the Mueller report and will find much to debate and write about. I’m confident that I’m not the only White House counsel from a past administration to read it with particular attention to the details, less technical, that illuminated the extraordinary challenge within this presidency: the relationship between a president heedless of legal constraints and the government lawyers who answer to the public for the rule of law. | Lawyers and constitutional scholars will pore over the Mueller report and will find much to debate and write about. I’m confident that I’m not the only White House counsel from a past administration to read it with particular attention to the details, less technical, that illuminated the extraordinary challenge within this presidency: the relationship between a president heedless of legal constraints and the government lawyers who answer to the public for the rule of law. |
| This is the importance of Mr. Mueller’s account of the struggles between President Trump and his White House counsel, Donald McGahn. We should be grateful for Mr. McGahn’s resistance to presidential wrongdoing while appreciating that we may need to reconsider and revise the norms and expectations governing the role of lawyers, and the White House counsel in particular. | This is the importance of Mr. Mueller’s account of the struggles between President Trump and his White House counsel, Donald McGahn. We should be grateful for Mr. McGahn’s resistance to presidential wrongdoing while appreciating that we may need to reconsider and revise the norms and expectations governing the role of lawyers, and the White House counsel in particular. |
| The president directed Mr. McGahn to fire Mr. Mueller, and Mr. McGahn rightly refused. This is not a case where a president, agitated about a development, reviews his concerns with his counsel and solicits his best advice. Mr. Trump insisted on preposterous claims about conflicts that ostensibly disqualified Mr. Mueller and ordered Mr. McGahn to make sure that the Justice Department removed the special counsel from his post. Mr. Trump’s motives were clear: Only three days before, he had learned that an investigation into his possible commission of obstruction had begun. | The president directed Mr. McGahn to fire Mr. Mueller, and Mr. McGahn rightly refused. This is not a case where a president, agitated about a development, reviews his concerns with his counsel and solicits his best advice. Mr. Trump insisted on preposterous claims about conflicts that ostensibly disqualified Mr. Mueller and ordered Mr. McGahn to make sure that the Justice Department removed the special counsel from his post. Mr. Trump’s motives were clear: Only three days before, he had learned that an investigation into his possible commission of obstruction had begun. |
| Mr. McGahn had to threaten to resign to stop the president’s repeated insistence that he fire Mr. Mueller. Implored by senior White House staff members to stay on the job, he did, knowing he would be working for a president who had attempted to use him to end a federal investigation. | Mr. McGahn had to threaten to resign to stop the president’s repeated insistence that he fire Mr. Mueller. Implored by senior White House staff members to stay on the job, he did, knowing he would be working for a president who had attempted to use him to end a federal investigation. |
| When the story of Mr. Trump’s order and Mr. McGahn’s refusal to follow it became public, the president not only demanded that his White House Counsel deny the report. He also insisted on the creation of a false official record to substantiate the lie. He also had a staff secretary, Rob Porter, advise Mr. McGahn that he would be fired if he didn’t do what the president wanted. Once again, Mr. McGahn refused to comply. | When the story of Mr. Trump’s order and Mr. McGahn’s refusal to follow it became public, the president not only demanded that his White House Counsel deny the report. He also insisted on the creation of a false official record to substantiate the lie. He also had a staff secretary, Rob Porter, advise Mr. McGahn that he would be fired if he didn’t do what the president wanted. Once again, Mr. McGahn refused to comply. |
| The president called his lawyer a “lying bastard” but did not move to replace him. To say that this was an unhealthy relationship between a president and his White House counsel is an understatement. But the institutional issues are still more serious. | |
| For some time, there has been an active debate about whether the position of White House counsel is even viable. Critics have condemned it as a nesting place for presidential loyalists with law degrees who will tell the president exactly what he or she wants to hear. There is always the risk of that. The president can pick his own counsel. If he selects for loyalty, then he might suffer the consequences of having a committed political ally if, perhaps, not much of a lawyer. | For some time, there has been an active debate about whether the position of White House counsel is even viable. Critics have condemned it as a nesting place for presidential loyalists with law degrees who will tell the president exactly what he or she wants to hear. There is always the risk of that. The president can pick his own counsel. If he selects for loyalty, then he might suffer the consequences of having a committed political ally if, perhaps, not much of a lawyer. |
| Mr. Trump, in picking Mr. McGahn, did not wind up with a loyalist. Mr. McGahn made it commendably clear to the president that he was an institutional lawyer, not his personal lawyer, and that their conversations about matters before the special counsel were not privileged. But it became clear to him, as it did to James Comey, that the president expected “loyalty” higher than any obligation to the public. | Mr. Trump, in picking Mr. McGahn, did not wind up with a loyalist. Mr. McGahn made it commendably clear to the president that he was an institutional lawyer, not his personal lawyer, and that their conversations about matters before the special counsel were not privileged. But it became clear to him, as it did to James Comey, that the president expected “loyalty” higher than any obligation to the public. |
| The conflict over the order to fire Mr. Mueller was not the only occasion on which Mr. McGahn observed the president’s indifference to legal limits. He was also aware that in the face of the regulation that made the decision inescapable, the president would not accept Attorney General Jeff Sessions’s decision to recuse himself from the Russia investigation. The president even enlisted Mr. McGahn in the campaign to have Mr. Sessions “unrecuse.” Here again, Mr. McGahn relayed the message to the attorney general but did not push Mr. Sessions to reverse course. | The conflict over the order to fire Mr. Mueller was not the only occasion on which Mr. McGahn observed the president’s indifference to legal limits. He was also aware that in the face of the regulation that made the decision inescapable, the president would not accept Attorney General Jeff Sessions’s decision to recuse himself from the Russia investigation. The president even enlisted Mr. McGahn in the campaign to have Mr. Sessions “unrecuse.” Here again, Mr. McGahn relayed the message to the attorney general but did not push Mr. Sessions to reverse course. |
| The episode raises the question of the obligations of a White House counsel when he realizes that he is the lawyer for a fundamentally dishonest president who is ready to violate the criminal law to achieve self-interested or political ends. The counsel in these circumstances may have to consider what it means for him to remain in this post for a president who considers him a “lying bastard” for refusing to follow an unlawful order. | The episode raises the question of the obligations of a White House counsel when he realizes that he is the lawyer for a fundamentally dishonest president who is ready to violate the criminal law to achieve self-interested or political ends. The counsel in these circumstances may have to consider what it means for him to remain in this post for a president who considers him a “lying bastard” for refusing to follow an unlawful order. |
| Mr. McGahn perhaps stayed on in the belief that the larger objectives of the administration, like moving judicial nominations and achieving deregulation, were well worth pursuing. But that is a judgment more about the administration’s policy imperatives than the working conditions required for the maintenance of the rule of law in the presidency. | Mr. McGahn perhaps stayed on in the belief that the larger objectives of the administration, like moving judicial nominations and achieving deregulation, were well worth pursuing. But that is a judgment more about the administration’s policy imperatives than the working conditions required for the maintenance of the rule of law in the presidency. |
| The choice Mr. McGahn faced was unprecedented. He was not, for example, in the position of John Dean, White House counsel to Richard Nixon, who did testify against the president in the Watergate affair but who was an original party to the wrongdoing that ended that presidency. There has never been a suggestion that Mr. McGahn ever encouraged or participated in unlawful activities. | The choice Mr. McGahn faced was unprecedented. He was not, for example, in the position of John Dean, White House counsel to Richard Nixon, who did testify against the president in the Watergate affair but who was an original party to the wrongdoing that ended that presidency. There has never been a suggestion that Mr. McGahn ever encouraged or participated in unlawful activities. |
| In fact, Mr. McGahn acted appropriately and admirably to resist involvement in the president’s scheme to commit obstruction and cooperated truthfully and at length with Mr. Mueller’s investigation. The special counsel declared him a “credible” witness with no discernible motive to lie or exaggerate, and accepted his account over the president’s denials. | In fact, Mr. McGahn acted appropriately and admirably to resist involvement in the president’s scheme to commit obstruction and cooperated truthfully and at length with Mr. Mueller’s investigation. The special counsel declared him a “credible” witness with no discernible motive to lie or exaggerate, and accepted his account over the president’s denials. |
| But should a future White House counsel have a clear obligation to alert the Department of Justice when the president attempts to obstruct justice? Federal law mandates that department and agency employees alert the attorney general to “any information” that relates to “violations of federal criminal law” involving government officers and employees. The code of ethics for government service requires reporting of “corruption” to the authorities. The application of these requirements to the president’s White House counsel poses unique and difficult issues, but they need to be confronted. | But should a future White House counsel have a clear obligation to alert the Department of Justice when the president attempts to obstruct justice? Federal law mandates that department and agency employees alert the attorney general to “any information” that relates to “violations of federal criminal law” involving government officers and employees. The code of ethics for government service requires reporting of “corruption” to the authorities. The application of these requirements to the president’s White House counsel poses unique and difficult issues, but they need to be confronted. |
| And what does the discovery of the president’s lawless instincts — or the president’s belief that his lawyer is a “lying bastard”— mean for the counsel’s continued service? A lawyer in this situation could conclude that he should not serve such a president, or that, lacking a relationship of mutual trust and confidence, he cannot function in the role. Mr. McGahn was stuck working with a president who, pressuring his counsel to end an investigation and fake records about a presidential order, also admonished him for taking notes. “Lawyers don’t take notes,” he told Mr. McGahn, and Mr. Trump urged on him the role model of Roy Cohn, counsel to Senator Joe McCarthy. | And what does the discovery of the president’s lawless instincts — or the president’s belief that his lawyer is a “lying bastard”— mean for the counsel’s continued service? A lawyer in this situation could conclude that he should not serve such a president, or that, lacking a relationship of mutual trust and confidence, he cannot function in the role. Mr. McGahn was stuck working with a president who, pressuring his counsel to end an investigation and fake records about a presidential order, also admonished him for taking notes. “Lawyers don’t take notes,” he told Mr. McGahn, and Mr. Trump urged on him the role model of Roy Cohn, counsel to Senator Joe McCarthy. |
| This is unexplored ground. In the government of a president like Mr. Trump, a White House counsel faces unprecedented challenges, and we might reflect on options for answering them beyond the threat or act of resignation. | This is unexplored ground. In the government of a president like Mr. Trump, a White House counsel faces unprecedented challenges, and we might reflect on options for answering them beyond the threat or act of resignation. |
| Bob Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law and served as a White House counsel under President Barack Obama. | Bob Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law and served as a White House counsel under President Barack Obama. |
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