Published by The Lawfare Institute
in Cooperation With
The New York Times reports that White House Counsel Don McGahn has interviewed extensively with the special counsel, cooperating with the president’s consent but perhaps more extensively than President Trump may have anticipated. The result may be a further strain on what, according to the Times, was already a difficult working relationship. One source of the tension appears to be the president’s expectation of loyalty from a counsel who maintains a different view of his function—namely, that the White House counsel represents the office of the presidency and not the individual now occupying it.
It seems that relationship between lawyer and president is also, in this instance, infected with mistrust. McGahn and his attorney are reported to have concluded that he should go the extra mile and tell Special Counsel Robert Mueller all he knows out of a concern that the president might have been preparing to blame McGahn—and specifically, his “shoddy advice”—for any legal issues Trump faced over alleged obstruction of justice in the Russia matter.
While remarkable reporting in a number of respects, the Times account of the Trump-McGahn relationship leaves open or unclear a number of key points about the role and obligations of the White House counsel in these circumstances.
A White House counsel is not in a position to reject or ignore a special prosecutor's request for information relevant to an ongoing criminal investigation. The law on the fundamental point is clear. Precisely as the Times describes McGahn’s understanding of his role, the White House counsel is a government employee, not personal counsel to the president. Courts presented with the question have ruled that, in a criminal investigation, the attorney-client privilege does not shield a White House counsel from providing his or her evidence. Neither is executive privilege a safe harbor if the government can demonstrate need for the information and its unavailability from other sources.
The Clinton administration litigated and lost both privilege claims in defending against the independent counsel investigations. When the U.S. Court of Appeals for the D.C. Circuit ruled unanimously on the application of the attorney-client privilege, it did so in no uncertain terms:
To state the question is to suggest the answer, for the Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense.
This is not to say that, when called to interview with prosecutors, a White House counsel would agree to answer any and all questions. It falls to his or her attorney to negotiate an acceptable scope and focus for the interviews. In preparing for those discussions, the counsel and his or her lawyers can certainly take into account the constitutional and other reasonable concerns of the president’s personal counsel. The Times story does not provide detail about the extent to which McGahn’s own counsel consulted with the president and the president’s private counsel, except to report that the president raised no objection to the interviews. In the end, however, the White House counsel is a government employee called upon to negotiate in good faith the terms of cooperation with criminal justice authorities.
It is conceivable that McGahn could resist the interviews by drawing on the constitutional theory that Trump’s lawyers have been testing publicly—that there is no “evidence” for him to give because the case for which it is sought, presidential obstruction of justice, is constitutionally impermissible. This maneuver would stand little chance of success. Assuming that McGahn were willing to be the vehicle for a test of Trump's constitutional theory, he would have reason to doubt that he would prevail. A court would likely hold that the constitutional question was premature and not one for him to raise, and that at this stage of the proceeding, he must give testimony.
The entire episode serves yet again of a reminder of the potential hazards that accompany the benefits to the president of the institutionalized office of the White house counsel. The president has ready at hand in the West Wing dedicated counsel on a range of issues who can also serve as a force for channeling the legal resources throughout the executive branch in support of administration policies. In this respect, the counsel is truly, as often described, the “president’s lawyer.” But the counsel is not the “president’s lawyer” in the way that Trump apparently imagined that those lawyers he hired in the private sector were “his lawyers.” This is the irony of the counsel’s position: the very proximity to the Oval Office that distinguishes the role and accounts for so much of its value, can also present grave risks for a president in legal trouble.
Finally, what does it mean for a White House counsel to continue to attempt to function effectively in that role when he is also a highly consequential witness in a criminal inquiry involving the president—and when, the Times suggests, the counsel may have been suspicious the president had intended to set him up to “take the fall”? McGahn appears to have concluded that he can remain effective in support of the president, at least on the issues he has selected for focused attention: judicial nominations and regulations, and perhaps other issues outside the Russia matter. For his part, Trump may have decided that this is a situation he can—or, maybe for the time being, must—accept. It is also a situation without precedent in the history of the counsel’s office.