Executive Branch

What’s Up With McGahn Revisionism?

Jack Goldsmith
Saturday, January 27, 2018, 4:47 PM

“[T]he WH Counsel seems to be renting out space in his office to the New York Times,” notes Bill Kristol in reference to the sympathetic New York Times story yesterday about White House Counsel Don McGahn’s efforts to “Corral Trump While Pushing G.O.P.’s Agenda,” on top of the Times story the day before on McGahn threaten

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“[T]he WH Counsel seems to be renting out space in his office to the New York Times,” notes Bill Kristol in reference to the sympathetic New York Times story yesterday about White House Counsel Don McGahn’s efforts to “Corral Trump While Pushing G.O.P.’s Agenda,” on top of the Times story the day before on McGahn threatening to quit rather than carry out Trump’s directive to fire Special Counsel Robert Mueller.

These are not the only McGahn-friendly stories in recent weeks. We’ve also seen revisionist stories about McGahn’s role in early-administration imbroglios.

Early last year, the Washington Post reported that on January 26, 2017, Acting Attorney General Sally Yates told McGahn that National Security Advisor Michael Flynn had misled senior administration officials about his phone conversation with Russian Ambassador Sergey Kislyak during the presidential transition. The next day, a follow-up story said that McGahn conferred with Yates “to try to glean more information,” and that “two officials familiar” with conversations among Trump, Bannon, Priebus, and McGahn stated that “the matter was viewed skeptically” within the White House. Moreover, then-Press Secretary Sean Spicer stated that after McGahn heard from Yates, McGahn “reviewed [the matter] and determined that there is not a legal issue, but rather a trust issue.” Spicer added: “When the president heard the information as presented by White House counsel, he instinctively thought that General Flynn did not do anything wrong and the White House counsel’s review corroborated that.”

This representation of events made it seem like McGahn had given the Flynn lies to White House officials only a cursory review before telling the President there was no legal problem. On that understanding, and especially based on Spicer’s statements, I and others were pretty critical of McGahn’s bad judgment.

As best I can tell, the McGahn revisionism began just after the Washington Post reported on December 2, 2017, that Special Counsel Robert Mueller had interviewed McGahn. In the Post the next day, and on CNN and CBS on December 4, new information more favorable to McGahn was made public. The stories appear to be somewhat differently sourced, and they are not all entirely consistent. But they all describe a McGahn-charitable version of the events between Yates and McGahn that (according to CBS) was “at odds in significant ways” with Yates’ version of events. They also added (in the CBS version) that “McGahn told the president that Flynn had given false answers to Pence and others, and thus should be fired.” Moreover, the Post and CNN stories say that McGahn advised the President after speaking to Yates that Flynn had not just lied to administration officials about the Kislyak meetings but also (according to CNN) “misled the FBI” or (in the Post version) given the FBI “the same inaccurate account” of the meeting as he had to White House officials such as Vice-President Pence.

These stories were important at the time because they implied that Trump knew that Flynn might have lied to the FBI when he asked then-FBI Director James Comey a few weeks later to go “let[] Flynn go.” But in retrospect they are also significant because they were the first wave of McGahn revisionism. The stories did not overtly contradict Spicer’s earlier suggestion about McGahn’s legal advice to the President, but they did portray McGahn as exercising more reasonable and better judgment than the early-2017 stories. Moreover, it is hard to believe that McGahn told the President in late January 2017 that Flynn may have misled the FBI (as we learned in December) and that Flynn faced no legal danger (as Spicer had earlier claimed). If (as even Trump lawyer John Dowd confirmed) McGahn told the President that Flynn may misled the FBI, then I very much doubt that Spicer’s account—that McGahn told the president there was no legal problem—is accurate. Expect more revisionism on this front.

A few weeks later Foreign Policy reported that the “White House turned over records this fall to special counsel Robert Mueller revealing that in the very first days of the Trump presidency, Don McGahn researched federal law dealing both with lying to federal investigators and with violations of the Logan Act.” It also reported that McGahn warned President Trump that Flynn might have violated these laws. At the time I discounted the accuracy of the story because it contained some internal suggestions that McGahn had not in fact done what the lede claimed, and also because it suggested that McGahn warned the President in powerful terms that Flynn had violated the Logan Act, a statute that for many reasons I doubt McGahn or the White House lawyers were too worried about. But the point for present purposes is that this story, too, was based on anonymous leaks that seem designed to revise public knowledge about McGahn’s role during the first crucial months of the administration and to put him in a better light than he have previously been portrayed.

Why have these stories started to appear in the last six to seven weeks? Why such a different account of what McGahn told Trump in late January 2017? Why leaks now about McGahn’s actions seven months ago to defy the President on firing Mueller? Why are we hearing now that McGahn was “fed up” with Trump last June? Why are we just learning that “McGahn has considered resigning on at least two occasions”? Is McGahn or a McGahn ally trying to set the record straight because of some development in the Mueller investigation? As Mueller’s interview of Trump approaches, are people in the White House trying to remind the President of the costs of a confrontation with or dismissal of Muller? Is McGahn setting the groundwork to leave the Administration, as Kristol and others speculate?

I suspect that we will find out soon.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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.

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