Executive Branch

The McGahn Cover Letter in Light of the Trump Tweet

Jack Goldsmith
Saturday, February 24, 2018, 1:00 AM

The Nunes memo was thoroughly debunked less than 12 hours after its publication.

(Photo: Wikimedia/Ad Meskins)

Published by The Lawfare Institute
in Cooperation With

The Nunes memo was thoroughly debunked less than 12 hours after its publication. The sources of this debunking transcended politics, and ranged from The Intercept and Marcy Wheeler to Paul Rosenzweig and David French. I want to focus here on two other writings related to the memo: The cover letter to the release of the Nunes memo written by White House Counsel Donald McGahn, and President Trump’s Friday morning tweet.

At 6:33 on Friday morning, about six hours before the release of the Nunes memo, President Trump tweeted:

This tweet, in a classically Trumpian way, expresses the opposite of the truth. The President does not believe the investigative process is “sacred”; he thinks the opposite. No one since Richard Nixon and J. Edgar Hoover, and possibly ever, has politicized law enforcement like Trump. The Trump tweet and the Nunes memo are part of the same concerted attempt to discredit the Mueller investigation, which is tightening a noose around the White House neck. They are joint efforts to derail the most sensitive and important investigation of the presidency since Watergate. The memo has succeeded in undermining itself and in revealing its crass political motivations, even before we get the competing Democratic response or more objective information about the FISA warrant in question. The President’s use of the tendentious memo for obviously opportunistic ends is bad enough. It is much worse because along the way he is doing long-lasting damage to trust in the FBI and the FISA process. (The shout-out to the DOJ and FBI “rank and file,” which excludes current DOJ and FBI leadership, is both phony and a slap at Wray and Rosenstein and possibly Sessions. And of course the President’s efforts to undermine DOJ and FBI continued yesterday after this tweet.)

If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.

Which brings me to McGahn’s cover letter. The letter is written to Nunes and Ranking Member Adam Schiff. It aims to give the President legal and political cover for approving the release of the Nunes memorandum. The first paragraph notes the House Intelligence Committee’s “determination that the release of the Memorandum would serve the public interest.” The second and third paragraphs interpret the Committee’s release of the memo to the President and vote to publish it as a “request for declassification pursuant to the President’s authority.” The fourth paragraph begins with this untruth: “The President understands that the protection of our national security represents his highest obligation.” It then states that with “input” from the intelligence bureaucracy, the President determined that declassification was appropriate because the public interest in disclosure outweighs any need to protect the information. Finally, the last paragraph seeks to distance the President from the memorandum. It notes that the memo “reflects the judgments of its congressional authors,” and says that the Executive branch stands ready to work with Congress “to accommodate its oversight requests.”

The letter is, to put it mildly, disingenuous. The implicit representation that the White House and Nunes are at arms length on this matter is false. So is the suggestion that the President does not share the memo’s perspective. The letter's invocation of “input” from the bureaucracy means, in context, that that bureaucracy did not support the letter’s release. The President does not think the protection of national security is his highest obligation, since he has been systematically trashing his national security organizations for over a year in order to serve the higher obligation of protecting himself and scoring points against his enemies. The President is not looking out for the public interest in releasing this memorandum; he is looking out for himself.

The White House Counsel’s job is to ensure that the President (among others in the White House) stays out of legal trouble and carries forth his duties in a lawful way. The Counsel also seeks to minimize the President’s law-related political troubles. A Counsel’s loyalty to the President is important, especially in the President’s worst moments.

We have to assume that when McGahn signed the letter yesterday, he knew of Trump’s early-morning tweet, and that he knew more broadly about how the President would seek to use the Nunes memo to further undermine and discredit the Mueller investigation, the FBI, and the intelligence community. Indeed, McGahn has been watching the President's efforts to do these things for a while, with greater proximity and insight than the public.

Against this background, the charitable view of McGahn’s letter is that he could not stop his client from releasing the memo, but tried to frame the release in traditional legal terms, to distance the President from the memo’s judgments, and to express implicit openness to work with the Democrats on a similar release (maybe) while at the same time making clear that the Executive branch views this process as extraordinary. In short, McGahn is doing his job with a tough client.

The less charitable view is that McGahn is now officially part of the President’s effort to stop Mueller at all costs, and to discredit the FBI and the intelligence community. (He has been for a while, on this view, but now it is official.) At some point in government, when one’s boss acts so extremely outside the realm of appropriate behavior in ways that are destructive to the government and not of service to the American people, one has to ask oneself whether to continue in the job. As I have written before, many considerations arise here, including personal principle and honor, and proximity to the President, which is a proxy for whether one is propping up the President’s behavior or not. To me those considerations argue for Rosenstein and Wray to stay on and do their jobs until fired. But close aides in the White House, I wrote, are “enabling and protecting the President, personally and politically.” On the less charitable view, this is what McGahn’s letter does. It chooses personal loyalty and political expediency over principle and service to the American people. (Or, also uncharitably, McGahn is choosing to remain in service to the President despite the enormous damage Trump is causing because doing so enables McGahn to continue the important work of selecting conservative judges and chopping down the regulatory state.) The view is not that McGahn is doing anything unlawful. It is that he is acting dishonorably, and is personally and ethically on the hook for Trump’s mendacious, institution-destroying efforts.

I don’t know which of these views is right, and it is possible that a mix of both explains what is going on here.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Subscribe to Lawfare