Published by The Lawfare Institute
in Cooperation With
James Comey famously does things his own way, and the Department of Justice inspector general has not approved. Having criticized the former FBI director’s handling of the Clinton email investigation, the inspector general most recently upbraided him for his use of “sensitive investigative information” in sounding an alarm about Donald Trump. The inspector general cleared Comey of public leaks of confidential information but found him in violation of his employment agreement and department policy. The Department of Justice declined to bring criminal charges. This does not conclude the Comey saga, of course, or the debate about the liberties he took with rules and norms to deal with extraordinary circumstances.
Yet, remarkable as his story is, Comey is only one of the senior lawyers in the Trump administration who made difficult and controversial choices in responding to the challenges of this turbulent and troubling presidency. In devising their responses, Special Counsel Robert Mueller and White House Counsel Don McGahn also had to contend with either rules or norms, or both, and decide which to break, bend or skirt. None “played it straight.” Each seems to have concluded that playing it straight was impossible in this presidency.
The decisions they made are open to reasonable disagreement. It is a healthy and important argument to have if it is assumed—as it should be—that other lawyers in future administrations, serving other presidents, may also find that neither the rulebook nor time-honored practice can settle for them the hardest questions of professional responsibility. The case of the Trump lawyers may be precedents of a sort.
But of what sort? Comey, Mueller and McGahn have all faced criticism for departing from the rules, flouting or dishonoring the norms, or—strikingly—being so conservative in their adherence to rules or “norms” that they did not do all they could to contain the unprecedented dangers of the Trump presidency. Often these criticisms fall out along party lines: In these cases, the politics of the critics, that is, the outcomes they favor, align neatly with their view of the quality of these lawyers’ decisions or the processes they followed in making them. A notable example is the difference in the reactions of Democrats and Republicans to Comey’s unconventional choices in fidelity to his “honest loyalty” ethic. He would infuriate one side of the partisan divide or the other, depending on whether he did what either was certain he should do. The polarized politics of the time eventually also caught up with Robert Mueller. Democrats sharply questioned why he declined to issue a finding on obstruction; Republicans objected that he, in fact, had gone rogue in this or that particular, including his explicit refusal to “exonerate” the president.
But politics is by no means the whole story. The arguments over how well these lawyers performed in their various roles also reflect the difficulty involved in deciding when rules and norms seem woefully inadequate to the task at hand and whether playing it straight can be a failure of nerve and a dereliction of duty.
To recap for these purposes the issues that these Trump administration lawyers faced:
Comey has written that he lost faith in the “system” in the course of serving in the George W. Bush administration and concluded that his personal ethical code compelled him to break the rules and defy the norms. This guided him in the Clinton email investigation and then again when Trump became president, the Russia matter exploded, and the president sought to exact a pledge of loyalty and a commitment to “let go” of the investigation of former national security adviser Michael Flynn. Comey fairly quickly withdrew into his inner FBI council and followed the lead of his honest loyalty ethic in dealing with Trump’s conduct. He declined to confront the president directly on these issues, or to raise his concerns with the White House counsel. He recorded disturbing conversations with the president in memos that he deemed personal and made use of them after his dismissal to provoke the appointment of a special counsel. He wrote a book and op-eds, and he became outspoken on Twitter.
The special counsel took actions far from strictly consistent with the letter or evident intent of the special counsel rules. He wrote a 400+-page report clearly intended for public dissemination and for Congress’s purposes in evaluating grounds for impeachment. Yet the regulations specify a confidential report to the attorney general, which the Justice Department defined upon adoption as a “limited reporting requirement,” with no specified role for the special counsel in guiding the Congress on impeachment. While the attorney general has full discretion under the rules to decide on the extent and shape of any public release, Mueller sent a letter—one that he no doubt knew would become public—to object to the way that Attorney General William Barr exercised that discretion in previewing the special counsel’s findings for the press. The rules call for the special counsel to explain his decisions to pursue or decline prosecution, but on the issue of obstruction Mueller opted against making any decision, relying on a broad and controversial reading of Office of Legal Counsel (OLC) opinions that a president cannot be indicted while in office.
But Mueller was not altogether silent on the question of the president’s culpability. He skirted the norm against unfavorable comment on uncharged conduct in stating that he could “not exonerate” the president of obstruction. He did so while laying out at length a contestable exposition of the applicable law that, on the facts that Mueller found, would strongly suggest that the president engaged in criminal misconduct.
Those eager to see Mueller give his authority an expansive reading were pleased with these actions. But they were also frustrated, and some enraged, by his refusal to make a “traditional prosecutorial judgment” on obstruction, to force the issue of the president’s and Donald Trump Jr.’s testimony, and to embrace and fully act on the House of Representatives’s request that he testify in some illuminating detail on his report and experience.
McGahn as a White House counsel served in a position that requires, as does any legal representation, mutual trust. The role is complicated by the counsel’s obligation to represent the president only in an official and not personal capacity. Donald Trump does not appreciate the distinction. So, time and again, McGahn evidently picked his battles.
McGahn reportedly recommended against the firing of Comey, but he also played his part in a botched public explanation, which disingenuously focused on Comey’s unfairness to Hillary Clinton in the email investigation. He complied with a presidential order to test Attorney General Jeff Sessions’s determination to recuse himself from the Russia investigation, but he did not attempt to force the issue with Sessions. When the president ordered him to accomplish the firing of Mueller, and then again directed him to deny receiving such an order, McGahn refused. In a move highly unusual for the White House counsel, he countenanced detailed note-taking by his chief of staff on conversations with the president, which he knew would become an official record and, potentially, evidence for the special counsel. He remained the president’s most senior legal adviser on the White House in the face of news stories that he was resisting inappropriate entreaties and directives from his boss.
With the exception of Nixon’s White House counsel John Dean, McGahn had the most extraordinarily troubled relationship with a president of any counsel ever to have served in that post. He nonetheless carried on in the job after it must have been clear to him that their relationship was in ruins. He and the president eventually had few direct discussions without others present. The president doubted his counsel’s loyalty; the counsel reportedly suspected the president of setting him up to be the “fall guy” in the Russia matter. After McGahn resigned, the president tweeted that he had been more inclined to fire McGahn than get rid of Mueller.
In sorting out the differences in these senior lawyers’ responses to Trump, the first question is whether their decisions could have been shaped or influenced by their various professional histories and experiences. Comey and Mueller were career law enforcement professionals committed to keeping their distance from partisan politics. McGahn was a regulatory lawyer with strong Republican ties who had represented his party’s interest in congressional campaigns and on the Federal Election Commission. Of the three, one (Comey) held a Senate-confirmed position during his time with the Trump administration. He also had previous experience throwing down the gauntlet on a major dispute with a president, as he did along with others, including Mueller, in forcing George W. Bush and senior White House staff to stand down from renewal of an unlawful national security surveillance program.
A special counsel like Mueller requires distance from the president and independence in his work, whereas the White House counsel works in close proximity and daily meetings with the president, and the degree of independence he may claim is different in kind from that of a special counsel. This raises the second question: How much did any of these variations in formal role matter?
Not much. It might be thought, for example, that the White House counsel—as the more “political” of the officials and a member of the president’s senior staff—would bend more to satisfy his boss’s demands. This was not always the case. McGahn seems overall to have been more concerned with institutional norms than Justice Department veteran Comey, who judged them less consequential in extraordinary circumstances than a personal ethic of “honest loyalty” to the truth as he saw it. In his conflicts with Trump, McGahn would periodically defend the line between the representation of the presidency and the personal interests of the president. Comey systematically subordinated formal institutional boundaries to a personal honest loyalty ethic. McGahn confronted Trump, by some accounts in shouting matches. Comey, who went into fierce battle with Bush, steered around direct personal conflict with Trump before he was fired.
As a confirmed official, Comey might have been expected after his firing to bring his concerns directly to members of Congress, but he chose instead to plant information with the New York Times to set into motion pressures for an independent counsel. Although known for going “by the book,” Mueller did not, in this case, hew closely to the text. He decided against a confrontation with the central figure in his investigation, the president, over the latter’s refusal to submit to an interview, and he did not observe the standard structures on a prosecutor engaging in free-form commentary on conduct that he did not charge.
There is no reason to question that, in all their choices, these individuals were acting, correctly, on the belief that they were servants of the public and not personal lawyers of the president. The distinction in practical terms is not all that easy to define or enforce. But they all concluded that Trump’s behavior required them to consider actions less likely, even inconceivable, in a “normal” presidency.
The Resignation Option
The option of public resignation as a matter of principle seems to have had little hold on the lawyers’ deliberations. Resignations defined the Saturday Night Massacre in the Nixon administration, when both the attorney general and the deputy attorney general resigned to protest the firing of Special Prosecutor Archibald Cox. The public response triggered impeachment resolutions and put intense pressure on the president to agree to a successor who proved as resolute and tough-minded as Cox. Resignation is not a weak option.
Comey could have resigned when he observed what he judged to be the president’s obstructive behavior rather than see how it all played out and quietly prepare for the worst. It was plain to Comey that Trump did not merely misstep in his first request of loyalty from Comey. This ethically rudderless president was who he was. Comey took his dissent more or less underground and waited things out. Had he resigned, he might have been able to make the public case, and to engage the Congress, without all the controversy over his methods. And, had he chosen this course, we would not have had the resulting inspector general investigation, which has served the president’s purposes in his attacks on his former FBI director.
For Mueller, the option of resignation may have been more complicated. He could have justified it as required by the president’s refusal to cooperate and his barrage of vicious, mendacious and often personal attacks on the special counsel and his team. The cost would have been high. The president would have faced an uproar, but he would have had the opportunity to scuttle or disrupt the investigation. Unlike Nixon, who acquiesced in the appointment of Leon Jaworski to replace Cox, Trump might have engineered or encouraged the replacement of Mueller with someone chosen to go easy on him. It is also not clear whether Mueller would have had more to say publicly upon resignation than when testifying before Congress on the release of his report.
Yet it is hard to discount the impact that Mueller could or would have had if he had spoken openly of the damage Trump was inflicting on the Department of Justice and the manner in which Trump was obstructing the work of the special counsel. These actions might have given a sharper focus and more immediacy to the debate over impeachment. It is always possible that Mueller, having no completed report to “speak for” him, may have been a more willing witness before the Congress.
Mueller chose to press on and complete his report, knowing that it was destined, in the parts relating to the president’s conduct, to be controversial, and he also surely must have anticipated that it could serve as the platform from which the president would falsely declare vindication. He also put out the facts he found and defined the legal issues, including those he did not resolve. While the special counsel regulations were crafted to omit any duty to identify potential impeachable offenses. Mueller brought them up anyway, by oblique reference: He explained that he needed to avoid a “traditional prosecutorial judgment” on obstruction in order to avoid preempting “constitutional processes.” Mueller seems to have decided that he gained more than he lost by pushing through to a formal conclusion to his investigation.
McGahn stayed on and weathered the host of pressures and conflicts that would have warranted resignation in a normal administration. Once McGahn clashed with the president over the Mueller inquiry and began documenting his conversations with Trump, the strains on what—at its most effective—is a confidential relationship of trust could only have been severe. McGahn seems to have concluded that he should remain in place to pursue the conservative agenda in the appointment of justices, and his base of support, somewhat unique for a White House counsel, resided in the Senate Republican leadership. Senate Majority Leader Mitch McConnell, not Trump, wanted him to stay, and McGahn stayed, and it was McConnell, not the president, who expressed great regret when at last the counsel resigned. Was it enough for the preservation of norms of the office that McGahn chose to fend off the worst of the president’s conduct, accepting a highly dysfunctional relationship, so that he could advance priorities of his party? Or was the choice he made so political in character that he leaves a debatable legacy for the office?
Making “Emergency” Exceptions to Rules and Norms
It might be accepted that there is some “break-glass” emergency exception to the rules and norms in a case like Trump’s. But if so, the next consideration is how far the latitude afforded by emergency extends—and who decides? The official who makes that judgment makes it up as he or she goes along. There is no “process” for the ad hoc exception: The choice is entirely individual and the actions taken, like the preparation of memos and notes, take place in the shadows, outside of the president’s (or other senior staff’s) view. Acts taken contrary to rules and norms remain official choices and inescapably raise the difficult question of when crafting an emergency exception serves the long-run interest of the norms or weakens them.
In Comey’s case, the expansiveness of his theory of honest loyalty, adopted by an official who has lost trust in the “system,” has no obvious limiting principle. It is not clear how this deeply personal ethic can explain or justify his decisions. Its persuasiveness depends, in the end, on the weight that is assigned to his good faith and long experience in government. To the question—“was Comey right to do what he did?”—the answer provided by his honest loyalty ethic is largely, “Yes, because Comey decided that he had no choice but to do it.”
Certainly, one defense is that the exception is necessary to call attention to the president’s disregard of rules or norms—and so must be consistent with protecting them. But, as Jack Goldsmith has pointed out, there is always the risk that Trump’s norm-busting has so far goaded his critics into violating rules and norms that, when it is all over, the road back will be arduous, if it is even still open.
“In the Event of an Emergency …”
In a less noticed portion of the inspector general’s report on Comey’s handling of classified information, there appears a footnote acknowledging that Comey had other options for bringing to the public and Congress’s attention his concerns about Trump’s conduct:
Comey was … free to speak publicly, without disclosing law enforcement information, about his views of the trustworthiness of the Department’s leadership, his belief that there needed to be a Special Counsel appointed, and his belief that comments made to him by President Trump, combined with Comey’s removal as FBI Director, were an effort to obstruct justice.
He could do all that as a private citizen after resignation or dismissal. The inspector general also noted that Comey was equally at liberty to raise these concerns with the Office of the Inspector General, the FBI’s Office of Professional Responsibility, the FBI Inspections Division or Congress.
Comey rejected all of these options and chose to act in violation of rules and policies, creating a host of problems for his cause. The inspector general argues that the example he set for other employees was “dangerous.”
What about Mueller? Did he have an option other than to split the difference when honoring rules and policies to a considerable extent, while also going his own way as he thought necessary? It depended on his objectives and priorities. He may have felt that he should do what he could to complete the assignment, and he clearly felt strongly about communicating to the public, in full, the results of his inquiry into Russian electoral interference. To do this, however, he had to trim his sails and accept that the president would not cooperate, nor would Trump’s eldest son. Like McGahn, Mueller had to give up a fair amount to achieve what he could. But he had choices.
For example. it was open to Mueller to request a formal OLC opinion on whether its position on nonprosecution of a sitting president precluded him from reaching a “traditional prosecutorial judgment” on whether the president committed obstruction, rather than concluding on his own that he could not. If the OLC opined that he could not make such a judgment, then it was the department, not Mueller, that would have closed off this path—and the department, not Mueller, would have been accountable. Congress (at least the House) might have focused on this issue in hearings.
Instead, Mueller made the call and took it on his own shoulders, significantly adding to the confusion about the final report and his understanding of his own role. Had he set aside the concerns expressed in his report about the “substantial delay” entailed in challenging the president’s rejection of an interview, Mueller could have moved to subpoena the president and litigated its enforcement. If the attorney general had blocked this action, the rules required notification to the Congress. None of these actions would have been inconsistent with the special counsel regulations or the ethical rules and norms governing prosecutorial conduct. And, as noted, he could also have raised all these issues if he had chosen resignation.
McGahn, too, had choices. He could have resigned when it was clear that he could no longer function fully as White House counsel when in constant conflict with Trump or when he had to resort to creating a defensive record of his conversations with the president. At least once McGahn threatened to resign but did not follow through, at the urging of the senior staff. But it is not up to the White House chief of staff, or members of Congress, to persuade a counsel to stay in place. It was up to Trump, and on all the public evidence, Trump would have been happy to see him leave. Trump did not act, it would appear, to avoid the political drama that this resignation would create. That more or less expresses all that is worth knowing of the reasons why a White House counsel in this kind relationship to the president should pack up and go. The refusal of a White House counsel to maintain this relationship would have been a powerful statement in its own right, even if it would have been costly to the Republican Party program on judicial nominations and other matters.
The Risks and Rewards of “Playing It Straight” in a Trump Presidency
For every one of these senior lawyers, playing it straight, or even straighter, would not have meant doing nothing to counter, temper or bring to public attention this president’s profoundly disturbing conduct on a host of issues. Rules and norms could have been more closely observed while warnings still sounded. This approach might have made them less of a political target.
Yet each of these officials concluded that the cost of holding fast to rules and norms was too high. What all this means for the future, if other officials in future presidencies confront the same pressures and look to the past for guidance, is impossible to predict. Nor, without knowing all the facts, is it easy or fair to judge too definitively the hard choices that a Trump-like leader forces on those in the positions in which Comey, Mueller and McGahn found themselves.
Will we ever know the facts on which to reach a fair, reasoned judgment on their actions? McGahn is unlikely to speak out; and Mueller has made clear that he won’t. Comey has already spoken and written a great deal, but his honest loyalty ethic is so personal to him that it holds little or no value to others in negotiating these types of issues.
So, the questions posed here will remain open to debate on the facts that we have: Is playing it straight an option in a presidency like this? Or is the only way to defend the rules and norms in an emergency to break or bend them?