Published by The Lawfare Institute
in Cooperation With
As Don McGahn prepares to leave his post as White House counsel some time this fall, it is not too early to take preliminary stock of his tenure. There is no one-size-fits-all model for the job, no standard measure for judging success. Each president chooses counsel as he or she pleases and for whatever role the particular chief executive has determined is required. The ranks of White House counsels have included litigators, ready to do battle over congressional investigations, along with others who had no special skills as defense lawyers but ran a tight ship, resolving daily legal issues and keeping scandal at bay. Some counsels needed and benefited from a long history and close relationship with their clients; others did just fine without them. Washington experience could be helpful, but was not, all cases, indispensable.
But for each of the lawyers, as for McGahn now, the evaluation of their performance is often unavoidably linked to the specific pressures on the administration they served. When President Jimmy Carter brought in Lloyd Cutler, he moved to reassure a Washington establishment uneasy about his inexperience. At a key point, Bill Clinton needed a counsel, Charles Ruff, who possessed the skills and standing to defend a president besieged by allegations of legal and ethical misconduct.
McGahn was the first counsel for a president who was only a recent member of the party who nominated him and who lacked any prior government experience—or even rudimentary grasp of institutional relationships, norms and limits. At the beginning of his presidency, Donald Trump’s relationship with the Republican congressional leadership he had attacked periodically during the 2016 presidential campaign was far from close. McGahn supplied a bridge of sorts between the White House and congressional Republicans: he came from within the Trump circle, having represented the campaign, but he also had an extensive background in Washington and with the institutional Republican Party. A campaign finance specialist, early in his career he represented House Republican political interests; later on, the Senate Republican leadership tapped McGahn to lead the bloc of Republicans representing their party’s interests on the Federal Election Commission. Trump may thought he was picking “his” lawyer for the White House Counsel. But McGahn had independent political strengths.
McGahn also seems to have had an understanding of the White House Counsel’s role that Trump has struggled to comprehend. According to press reports, he has seen himself as counsel to the office of the president and not a member of the Trump personal legal corps. Like Attorney General Jeff Sessions, he soon discovered that Trump did not agree with this definition of the role—at least not with the limits that definition imposed on the extent to which the counsel would do whatever the president asked or expected. The president reportedly “expected McGahn to fill a role he has depended on his entire life: an attorney like Roy Cohn, the late Sen. Joseph McCarthy’s chief counsel, who represented his interests above all.”
As a practical matter, there is inevitably some tension between any White House counsel’s duties to the presidency and the demands he or she faces from the particular president and senior staff for help with pressing problems. Typically laden with political and sometimes personal significance for a president, the most sensitive issues require the counsel to monitor closely the risks of slipping away from an institutional representation toward just protecting the Boss. Whether McGahn lost his footing in the early going, or needed time to develop a surer grasp of his institutional role, he did not always avoid involvement in the legal controversies that have plagued the Trump White House.
At the very outset of the administration, McGahn faced questions about the White Counsel office’s role in the mishandling of the fatal problems with the appointment of former National Security Advisor Mike Flynn, who quickly resigned and has since pleaded guilty for lying to the FBI about his contacts with the Russian government during the presidential transition. He also took some of the blame for the White House’s slipshod performance on the first executive order on immigration, better known as the travel ban: The debacle featured a memorandum from his office purporting to offer authoritative legal guidance that, as the U.S. Court of Appeals for the Ninth Circuit noted, it did not actually have the legal authority to issue. McGahn and his office later shared in the criticism of the botched vetting of former Staff Secretary Rob Porter, who held a temporary clearance long after information about his history of domestic abuse became available to the West Wing.
Nor could McGahn escape the reality that while White House counsel may endeavor to represent the office of the presidency, the office does not give orders—the president does. McGahn may have objected to the original draft of the letter that the president prepared with aide Stephen Miller to justify the firing of Jim Comey, but he did not block Comey’s dismissal and eventually assisted in the development of the public rationale for the firing. At the president’s insistence, McGahn also reportedly undertook to question Sessions about his decision to recuse himself from the Russia matter.
Over time, however, it became clear that Trump had a White House counsel who by political background and definition of mission would not reliably give him the “loyalty” the president famously demanded of Comey. Trump and McGahn clashed over Trump’s demand that McGahn arrange for the firing of Robert Mueller. The two have apparently engaged in shouting matches, which is almost certainly a first in the relationship of a president and White House counsel. They have not regularly spoken without others present; the president apparently harbors doubts about McGahn’s loyalty. McGahn and his personal counsel have similar doubts of their own, apparently concerned that the president and his lawyers may have been positioning McGahn to be the “fall guy” in the Mueller investigation. A New York Times report that the relationship of this president and counsel was “complicated” appears to have been an understatement.
But amid all the pressures and what the press routinely characterized as the “chaos” of the West Wing, McGahn developed an agenda for his office that played to his strengths. He focused on judicial nominations and de-regulation. He was instrumental to this institutional Republican agenda, working closely with his allies on Capitol Hill. McGahn was key to the bargain that Donald Trump’s party has been willing to live with: bear with this inexperienced, volatile and scandal-ridden leader for as long as possible to extract the advantages of unified party control of the government.
To maintain this bargain, there was much that McGahn, as a White House counsel, has been prepared to either overlook or accept that he could do nothing about. The president continues on his course of attacks on his own attorney general, the Justice Department, and the intelligence community. He is wedded to his compulsive tweeting, including ill-tempered and ill-advised commentaries on the Russia matter. It is hard to imagine that White House counsels from most recent administrations would have been willing to put up with a client unable to break himself of these reckless, self-destructive habits and so willing to display contempt for legal institutions and processes. The president’s conduct is objectionable and imprudent on a host of grounds, but it also makes it difficult—perhaps to the point of impossibility—for a White House Counsel to protect and reinforce norms important to the enduring institutional interests of the office. This was a part of the job—and a critically important one—that McGahn has been unable to do.
But a counsel might hang in there and just “tough it out” if he or she concludes that this is necessary in pursuing other priorities. McGahn, and his supporters in the Republican Party both in and outside of Congress, had those priorities—and McGahn had proved in his former role at the FEC that he could be effective in achieving clearly defined objectives. So he stayed. His commitment to the job under these conditions is all the more remarkable in light of news that he has interviewed at length with the special counsel and become a witness of consequence in the Russia matter.
In one respect, McGahn may have been an unusual White House Counsel whose primary constituency—the Republican Party, its congressional leadership and allied interest—lay outside the White House. Inside the West Wing, he could do no better than manage a troubled and tense relationship with the president.
Sens. Mitch McConnell and Chuck Grassley have responded to news of his impending departure with expressions of deep concern. Grassley even asked the president to stop him from leaving. Trump, for his part, seems quite willing to see McGahn go: He may have been quick to confirm his counsel’s departure, after the news first leaked out in an Axios report, to settle all question that he would soon be gone for good. In a later tweet, the president shifted to the suggestion it was his “decision” that McGahn’s time was up.
No such ambiguity was reflected in the response of Republican congressional leadership response to McGahn’s planned departure. Indeed, McConnell lauded McGahn as the best of the White House counsels he had known. If McGahn is not what the president would have preferred in a counsel to the Trump administration, McGahn has clearly succeeded to a significant degree as the chief White House lawyer in a Republican administration. He has had to pay a price for these victories: the personal cost to him of being drawn into the Mueller investigation, and the professional cost of running a White House Counsel’s office for a president who has a nakedly instrumental, if not wholly cynical, view of the rule of law and the role of lawyers.
But, like his party, Don McGahn has been prepared to cut the best deal he could. Judging the reviews from the Republican side of Capitol Hill, he has every reason to think it was a good deal indeed.