The day after Donald Trump fired Acting Attorney General Sally Yates over her refusal to defend his hastily conceived travel ban, the White House counsel, Donald McGahn, tried some damage control of his own. On the fly, he attempted to patch things up by amending the meaning of the slipshod executive order — which by then had already been blocked by the courts and unfurled untold chaos at airports nationwide. By issuing a memorandum to the departments in charge of enforcing the ban — McGahn called it “interpretive guidance” — he wanted “to remove any confusion” about the travel restrictions and make clear that they did not, in fact or by law, apply to legal permanent residents of the United States.
The courts weren’t exactly thrilled about McGahn playing Trump for a day. “The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments” implementing the ban, wrote a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit last February. McGahn’s words, no matter how official they looked on paper, carried no force of law.
From the early days of the Trump administration through the ongoing Robert Mueller investigation and the latest domestic abuse scandal roiling the White House, McGahn has been at the center of it all, freestyling legal advice and doing his best to insulate his client from liability and embarrassment of all kinds, to little effect. A common misconception is that the White House counsel represents the president, but the client is in reality the institution of the presidency — its interests, its policy goals, the integrity of its personnel, the processes by which all of these things are held together. Which would also include telling Trump no whenever he wants to do something that would harm his presidency. John Dean, Richard Nixon’s White House counsel during Watergate, told NPR last year that he saw his role as being “aware of what’s going on, so he can protect the office.”
But Trump only cares about protecting himself. And rather than sound the alarm about his excesses, as Dean did with Nixon, McGahn has been a soldier of the cause, happily carrying Trump’s water and serving as a kind of errand boy for him, no matter how grossly inappropriate the errand may be vis-à-vis his lawyerly role. Last week, the Washington Post reported that Trump deputized McGahn to pressure the Department of Justice to then pressure James Comey, the FBI director, to publicly exonerate him in the Russia investigation. McGahn failed in his efforts, but that’s largely irrelevant: The episode shows how compliant the White House’s chief legal officer has been in satisfying demands that, in the aggregate, could well amount to obstruction of an ongoing investigation. It’s no different from the time McGahn, at Trump’s request, implored Jeff Sessions to not recuse himself from overseeing a probe in which the attorney general was deeply, irreconcilably conflicted. McGahn also failed there, as he should have.
And so it is with the rest of McGahn’s public record, which is littered with instances of his providing a legalistic gloss to actions that more prudent attorneys would’ve flatly advised against. When the White House was caught in a tug of war with the Justice Department and the FBI over the release of a four-page set of talking points about the Steele dossier prepared by Devin Nunes’s staff on the House Intelligence Committee, it was McGahn who provided cover for the document’s declassification and release — while ignoring the staunch opposition to disclosure from Trump’s own law enforcement agencies. Jack Goldsmith, a former Office of Legal Counsel attorney under George W. Bush and now a law professor at Harvard, took McGahn to task for signing off on the stunt, suggesting in no uncertain terms that he is, at worst, an enabler rather than a public servant who cares about what’s best for the American people. “The view is not that McGahn is doing anything unlawful,” Goldsmith wrote in Lawfare, where he’s already offered his share of biting commentary about the current White House counsel. “It is that he is acting dishonorably, and is personally and ethically on the hook for Trump’s mendacious, institution-destroying efforts.”
That’s putting it mildly. McGahn’s failure to serve as an honest broker for Trump in the Nunes imbroglio is already exposing the Trump administration to skepticism from the judiciary, which has been dealing with a raft of litigation seeking documents related to the Russia investigation. Typically, the federal government resists disclosing these materials while a particular probe is ongoing, reasoning that disclosure could impair its law enforcement functions. But the release of the Nunes memo has created a strange universe where the Justice Department may not be able to object for long to releasing certain sensitive records, or even issue the stock blanket response refusing to acknowledge that the records exist. According to Politico, a federal judge overseeing one of these cases marveled at the mess that McGahn helped create. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation,” U.S. District Judge Amit Mehta said during a hearing last week in Washington. “This is a new frontier and it has an impact.” Talk about shooting your own government in the foot.
Then there’s the shameful Rob Porter affair — arguably McGahn’s biggest lapse in judgment yet, legal or otherwise. The New York Times’ Maggie Haberman has suggested that he, and not Trump’s chief of staff, John Kelly, should be the one bearing the brunt of the criticism for keeping Porter employed — an accused domestic abuser without a permanent security clearance who, as staff secretary, nonetheless had access to the nation’s most closely guarded secrets. In a normally functioning White House, the buck of that whole imbroglio should’ve stopped with McGahn. A lawyer with direct knowledge of how the Obama White House vetted personnel told New York in an interview that the White House counsel at the time would’ve prevented “on Day One” the hiring of anyone facing credible allegations that he laid hands on his two ex-wives. “That entire operation reported to the White House counsel,” the person said. “This is the only way to protect the White House,” the lawyer added. “What happened to Porter is exactly what happens when you put your head in the sand, because everything comes out.”
There is a reason why McGahn is still in his job though. For all of his baggage — which includes being a key witness in the obstruction and Michael Flynn portions of the Mueller investigation — he has given conservatives the biggest trophy of Trump’s chaotic presidency: The Supreme Court appointment of Neil Gorsuch as well as of a record number of federal appeals judges during the first year of the administration. Under McGahn’s watch, a number of patently unqualified judicial nominees have embarrassed the White House and ultimately withdrawn. But those who haven’t and have been confirmed represent his saving grace in this administration — atonement for his many sins as one of the worst, if not the worst, White House counsels in the history of the role. During a rare public speech at a conservative lawyers’ convention in November, McGahn seemed content with his performance on this front. “I’m very fortunate to serve a president who is very committed to what we are here, which is nominating and appointing committed originalists and textualists,” he told the crowd, using buzzwords that Justice Antonin Scalia liked to throw around for himself. “He’s made good on what he said.”