Top White House Lawyer Donald McGahn Sits At The Center Of Controversy

May 26, 2017
Originally published on May 27, 2017 7:59 am

Four months into the Trump administration, the president's lawyer needs a lawyer.

Intensifying investigations into Russian interference in last year's presidential election and ties between Russians and the Trump campaign have a lot of high-profile people in search of legal advice, if only out of an abundance of caution. And, two sources tell NPR, one of them is White House counsel Donald McGahn.

Experts said it is natural that McGahn would seek out legal expertise; he served as the lawyer for President Trump's campaign, which has come under scrutiny from the FBI and Congress. This week, Trump himself reportedly enlisted New York lawyer Marc Kasowitz, a self-described "tough guy" corporate litigator, to help him with legal issues related to Russia.

Several other figures inside and outside the White House have been lawyering up, expecting to be called as witnesses, even before the Justice Department named former FBI chief Robert Mueller to be special counsel for the agency's Russia probe last week.

That announcement has focused attention all over again on McGahn and his performance as White House counsel — a high-wire act in the best of times and one that requires an understanding of the Constitution, the scope of executive branch power, national security threats and, especially, damage control.

According to lawyers from both political parties, by those measures, McGahn is hanging on by a thread.

First, there's the legal work product. They point out that the president's travel ban executive order, blocked by the courts after a chaotic rollout, had inconvenienced thousands of airline passengers, had to be rescinded and was overridden. A second order was blocked, too, after judges cited statements by Trump and his advisers that signaled that an animus against Muslims had motivated the ban. Those cases are still moving through the appeals courts.

A separate executive order seeking to punish so-called sanctuary cities by withholding federal grant money has since been significantly narrowed by the Justice Department after judges and local politicians raised questions about its scope and legality.

Jack Goldsmith, a Republican and a veteran of the George W. Bush administration, has written a series of tweets and posts detailing McGahn's shortcomings in the White House this year for the website Lawfare.

"I was pretty hard on White House Counsel Donald McGahn in connection with the horrible roll-out of the Trump Executive Order on immigration, and his inability or disinclination to control the President's self-destructive attack on courts," Goldsmith wrote in February.

To that list, Goldsmith has since added the vetting of former national security adviser Michael Flynn and McGahn's apparently glacial response to warnings from the Justice Department in January that Flynn had been "compromised" by contacts and undisclosed payments from the Russians.

Sally Yates, the acting attorney general and Obama administration holdover who was fired by Trump after she refused to defend his travel ban, told Congress that she warned McGahn about Flynn but that he failed to take swift action. So, Yates said, she tried again — only to find that Flynn remained in his job longer than she did in hers.

"McGahn is reportedly 'an iconoclast bent on shaking things up,' " wrote Goldsmith, who now teaches at Harvard Law School. "Unfortunately for the President, that is not an attractive quality in a White House Counsel, whose main job is to ensure that the President and the White House steer clear of legal and ethical and related political problems."

Other lawyers, veterans of the Obama years, have expressed concern over contacts by the president and his chief of staff, Reince Priebus, with the FBI over the Russia probe and other sensitive topics. As a matter of course, those conversations are generally limited to a small number of people at the White House and the Justice Department, which guards its independence and tries to steer clear of politics in its law enforcement responsibilities.

"It's important that the White House counsel police, for lack of a better word, the lines of communication between the White House and the Justice Department," warned Obama White House lawyer Kathryn Ruemmler, in an NPR story after last year's election. "Under President Obama, those communications were restricted."

Now, those conversations will be picked over by Congress and even the special counsel, when it comes to what Trump told then-FBI Director James Comey in a series of meetings and chats this year before Comey was fired.

Others are noticing signs of trouble, too. "Yo, Where's Don McGahn?" asked a headline in The American Lawyer. "Clean Up on Aisle Trump," concluded the left-leaning magazine Mother Jones.

To be sure, five lawyers told NPR, it's not clear what kind of advice McGahn may be providing the president — or whether the president is listening to it. "Who knows?" one attorney said, adding that he is inclined to point the finger at the client as much as the lawyer.

The barbs come as something of a surprise for McGahn, who made his name in Washington defending politicians accused of ethical foot faults and helping campaigns navigate a thicket of laws and rules governing finances and donations.

The White House press office didn't respond to a request for comment from McGahn.

But Reginald Brown, a prominent Republican lawyer who worked in the George W. Bush White House counsel's office, offered praise for McGahn's hiring, calling it "exceptionally strong." The counsel's office operates like a small law firm, filled with about two dozen lawyers. McGahn's picks include a dozen graduates of Yale, Harvard and Stanford; seven former Supreme Court clerks; and 15 lawyers who clerked for other top appeals court judges.

Brown also took note of perhaps the Trump administration's most important legal accomplishment to date: the nomination and confirmation of Supreme Court Justice Neil Gorsuch.

"Gorsuch was probably the best choice Trump could have possibly made for the Supreme Court, and the quick rollout and vetting seem to have been handled with great skill," Brown said.

True enough, critics said, but they point out that much of the heavy lifting on the Supreme Court nominee was outsourced to Leonard Leo, the executive vice president of the conservative Federalist Society.

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The top lawyer in the White House has a challenging job in ordinary times. These are not ordinary times. Four months into the Trump administration, White House counsel Donald McGahn has had to contend with high-profile court cases, national security threats and a special counsel investigating Russian interference in the 2016 election. NPR's justice correspondent Carrie Johnson joins us in the studio.

Carrie, thanks so much for being with us.

CARRIE JOHNSON, BYLINE: My pleasure, Scott.

SIMON: Tell us about Don McGahn, if we could. He was the campaign's lawyer, right?

JOHNSON: He was. He built a career here in Washington representing a lot of politicians on campaign finance and ethics issues. One of his more prominent clients was Tom DeLay, the former House majority leader, a Texan better known as The Hammer.

SIMON: The Hammer.

JOHNSON: And Don McGahn was a bit of a hammer himself. He led the Federal Election Commission under President George W. Bush, and liberals on the commission have criticized him for trying to grind that oversight work to a halt. Don McGahn's also kind of an iconoclast. He played guitar in a band influenced by heavy metal and has a little bit longer hair than you'd see on most establishment Republicans these days.

SIMON: You spoke with lawyers from both political parties about Don McGahn. What are some of the things you've heard?

JOHNSON: Well, they've been kind of critical of his performance so far. They talk a lot about the executive orders on - President Trump's travel ban, trying to limit travel from - for people from six majority-Muslim countries. Those have been blocked by the courts. Also this past week, Attorney General Jeff Sessions significantly narrowed another of the president's executive orders, this one on sanctuary cities. Then, Scott, there have been problems with vetting, vetting high-level people in the White House, most notably former national security adviser Michael Flynn, who's now under investigation for undisclosed meetings and payments from people in Russia and Turkey.

And then, Scott, there's been a lot of concern about how Don McGahn has been policing contacts between the White House and the Justice Department. In past administrations, there's been a desire to protect the independence of law enforcement. But we know from Donald Trump's own statements that he had several chats and communications with James Comey, the FBI director he later fired. Comey has written memos about those conversations. We think those memos are likely to be evidence in whatever investigation the special counsel is doing on Russia and why James Comey was fired by the president.

SIMON: President Trump hired a personal attorney this week, presumably to give him advice about the Russian investigation. Are others in the White House lawyering up?

JOHNSON: A lot of people. In fact, two sources told me this week Don McGahn is going to need a lawyer himself. He's likely to be a witness in whatever investigation there is moving forward in Russia. Even if these folks have no legal jeopardy, it's really expensive and distracting for them to need legal advice. This happened under President Bill Clinton and President Ronald Reagan. It's likely to drag on for a long time.

SIMON: Don McGahn, to be sure, has defenders in Washington, D.C., who are very impressed by him. Aren't they?

JOHNSON: Yeah. You know, there's been a lot of praise in some circles for the people he's hired to work in the White House, the young lawyers working underneath him - seven former Supreme Court clerks, graduates from Ivy League law schools at the top of their game. And then there's this. It's hard to tell from outside the Oval Office whether Don McGahn is giving President Donald Trump all the right legal advice and President Donald Trump is just ignoring him.

One lawyer told me this week, it'd be shocking if Don McGahn hasn't been advising the president to stop tweeting derogatory comments about judges, to stop issuing veiled threats against his former FBI Director James Comey. The thinking is this president, who comes from the world of real estate and construction, doesn't have a lot of respect for lawyers and thinks he knows best.

SIMON: NPR's justice correspondent Carrie Johnson. Thanks so much for being with us.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.