White House Counsel Don McGahn Finds Himself At Center Of Controversy
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In all the White House drama that occupies almost every news day - the firing of the FBI director, controversial travel bans, the Russia investigation - there is one name that's always present but hardly ever mentioned - Don McGahn. He's the White House counsel, the president's official lawyer, which puts him at the center of every legal decision made in the White House. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Don McGahn is walking in some impressive shoes as the White House counsel. Some of the most respected lawyers in the country have served in the position. But in contrast to most of his predecessors, McGahn was not widely known before taking the job, even in conservative Republican circles. Indeed, in some ways, he's an odd fit - or at least, like the president he serves, an unconventional one.
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SCOTTS NEW BAND: (Playing "Sweet Child Of Mine").
TOTENBERG: That's Don McGahn on guitar, a long-haired rocker in Scott's New Band, performing all over the mid-Atlantic for more than a decade until August 25, 2016. That's the day the Trump campaign announced McGahn would be its general counsel and the band simultaneously announced its retirement. If there's a single word that pops up repeatedly about McGahn it's iconoclast, defined in multiple dictionaries as, quote, "a person who attacks settled or cherished beliefs and institutions, a cynic, a nonbeliever."
That certainly is the role he played when Senate Republican Leader Mitch McConnell picked him to serve as one of three Republican members of the Federal Election Commission, the government agency charged with enforcing campaign finance laws. The three Democrats on the commission soon saw the GOP members voting in lockstep as never before. The result was a deadlocked commission that didn't enforce much of anything in campaign finance rules. That, at least, is what Democratic commissioner Ellen Weintraub says.
ELLEN WEINTRAUB: McGahn came in with the mission of trying to make the agency as ineffective as possible.
TOTENBERG: McGahn never tried to hide his antipathy for campaign finance regulation. In one infamous incident, he became so angry that he literally tore up the agency's rulebook and threw the pieces across the table at a Democratic commissioner. He may have led the charge, but even some Democratic election lawyers can see that he was doing what the congressional Republican leadership wanted. And he proved uncommonly good at it. Now he is in charge of dozens of legal issues at the White House, including making sure that the White House staff and the president's appointees across the government comply with the nation's ethics laws and regulations. Again, the FEC's Ellen Weintraub.
WEINTRAUB: My concern is that having seen the way McGahn seemed to really enjoy trying to find ways around the rules, I don't know what kind of advice somebody like that is giving.
TOTENBERG: Very good advice, replies Leonard Leo of the conservative Federalist Society.
LEONARD LEO: Don McGahn is the right person to be counsel to the president in this administration because he has the trust and confidence of Mr. Trump, because every day the White House counsel has to say no to the president. The counsel to the president just has to explain to his boss that either he can't do what he wants to do or he has to do it differently.
TOTENBERG: For this piece, NPR talked to more than a dozen people, including former White House counsels, Justice Department officials and McGahn's former law partners. What's striking is that most who know and like him, even Democratic lawyers, don't want to be quoted by name because they do business with the White House or the Trump business empire. The Federalist Society's Mr. Leo is one of the exceptions. He points to one of McGahn's signal successes, the appointment and confirmation of Judge Neil Gorsuch to the Supreme Court. Unlike the rest of the Trump administration rollout, the Gorsuch process was a no-drama affair executed flawlessly with Leo as the outside man and McGahn the inside man.
Indeed, part of McGahn's job is to supervise the vetting and choosing not only of Supreme Court nominees but nominees to fill some 130 vacancies on the lower federal courts, a number that is unusually large because Senate Republicans approved very few judicial nominees in the last years of the Obama administration. The prospect of McGahn's very conservative hand in these choices sends shivers of horror through many Democratic lawyers and some moderate Republicans as well. But the choices so far more than please the GOP conservative base from social conservatives to big business.
Less pleasing has been the handling of a significant number of legal issues in the White House. It's hard to determine how much of the blame for that goes legitimately to McGahn given the chaotic nature of the Trump presidency, but part of the job of the White House counsel is to prevent legal fiascos. Take the Trump executive order that barred people from seven predominantly Muslim countries.
After briefly paralyzing a number of airports here and abroad, the carelessly drafted order was struck down by five district courts and a federal appeals court. Eventually, the president signed a second executive order, which he now disdains as watered down. But that second order has also been blocked by the courts and is pending in the Supreme Court. Leonard Leo defends McGahn's handling of the travel bans.
LEO: Remember that the role of the White House counsel's office is simply to look at a proposed executive order and determine whether or not that order is legal on its face.
TOTENBERG: Former White House counsels from both parties disagree, arguing McGahn should have taken into account the problematic statements that Trump made during and after the campaign promising to ban Muslims, statements that have doomed the ban at least so far as, among other things, based on religious discrimination. Another aspect of McGahn's job is enforcing compliance with ethics rules, a job that has proved particularly nettlesome in this administration.
While former White House counsel say they always work closely with the Office of Government Ethics to ensure compliance with ethics laws throughout the government, the Trump White House has clashed repeatedly with the ethics office. Inside the White House, McGahn has assembled what both admirers and critics say is a crackerjack legal team of more than 30 lawyers, including former Supreme Court law clerks, people who've served in top Justice Department jobs, staff the Senate Judiciary Committee or practice in major law firms.
McGahn supporters say he is a standup guy taking the bullet when he has to in conversations with President Trump. For instance, when the first travel order was struck down and Trump tweeted an escalating series of attacks on the judiciary, Supreme Court nominee Gorsuch was quoted as telling senators privately that he found attacks on the judiciary, quote, "disheartening and demoralizing." Trump, according to knowledgeable sources, was furious, and McGahn defused the situation by taking the blame.
But as the Russian investigation has heated up, leading to the firing of the FBI director and the dismissal of the national security adviser, McGahn has grown increasingly uneasy about his role. His job, he knows, is to defend the institution of the presidency, not the president himself, and he is said to have pressed for the hiring of a private lawyer to represent the president personally during the ongoing investigations. In a White House filled with warring personalities, McGahn is something quite different, according to Leonard Leo.
LEO: Don McGahn has a nickname amongst some of us who know him, the quiet man, in the sense that he's not seeking glory. He's not seeking attention. He's trying to advise the president. And he's trying to do it in a way catastrophes are avoided.
TOTENBERG: But as another conservative McGahn friend put it, even if the great Justice Oliver Wendell Holmes were advising this president it wouldn't matter. Nina Totenberg, NPR News, Washington.
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SCOTTS NEW BAND: (Playing "Don't Stop Believing").
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