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Fairly or unfairly, the specter of the Watergate scandal increasingly hangs over the Trump administration. The parallels have been spurred by a drumbeat of events, among them the firing of the FBI director, the apparent attempt to enlist top intelligence officials to quash the Russia investigation and even the suggestion of taping in the White House. With a special counsel now investigating, NPR legal affairs correspondent Nina Totenberg reports on the man in the middle of it all, White House counsel Don McGahn.
NINA TOTENBERG, BYLINE: Forty-eight-year-old Don McGahn was in grade school when the Watergate scandal unfolded, sending top White House aides to jail and forcing President Nixon out of office. McGahn would grow up to be something of a split personality, half a shaggy-haired and accomplished guitar-playing rocker in a cover band and, at the same time, a partner in a straitlaced law firm, where he became an expert in poking loopholes in the campaign finance laws that were enacted in the wake of Watergate. A libertarian, he made his political bones as chairman of the Federal Election Commission, where he led the successful GOP effort to undermine disclosure requirements and foil most limits on campaign money raising.
A New Jersey native, his link to Donald Trump seems to have come through a politically connected uncle in Atlantic City who helped Trump establish and maintain his casinos there for more than a decade. Last summer, McGahn became the Trump campaign's general counsel. And after the election, he was named White House counsel, a position that puts him at the center of just about every legal and ethical controversy that concerns the president. And these days, that is not the most comfortable position to be in.
FRED WERTHEIMER: The great baseball player Yogi Berra once said, it's deja vu all over again.
TOTENBERG: Government ethics watchdog Fred Wertheimer is president of Democracy 21, an organization that works on government integrity, accountability and transparency issues.
WERTHEIMER: The smoking gun in the Watergate scandals was a White House tape in which President Nixon was caught laying out a plan to get the CIA to intervene with the FBI to block an FBI investigation. Here, President Trump has gotten dangerously close to the line of doing the same thing.
TOTENBERG: Indeed, at a Senate hearing last month, a clearly uncomfortable director of national intelligence, Dan Coats, refused to comment on news reports that the president tried to enlist him and the head of the National Security Agency in getting the FBI to shut down the Russia investigation. Senator Richard Blumenthal pressed the issue, asking Coats if he'd discussed the matter with the NSA chief, prompting an eight-second silence, followed by this.
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DAN COATS: That is - that is something that I - would like to withhold that question at this particular point in time.
TOTENBERG: Two weeks earlier, former acting Attorney General Sally Yates testified that she warned the White House counsel less than a week after President Trump was sworn in that Trump's national security adviser, Michael Flynn, was subject to blackmail by the Russians. She said she told White House counsel McGahn that the Justice Department had evidence Flynn had lied to the vice president when he denied having discussions last December with the Russian ambassador about sanctions that were then in place under the Obama administration.
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SALLY YATES: One of the questions that Mr. McGahn asked me was essentially, why does it matter to DOJ if one White House official lies to another White House official? And so we explained to him, to state the obvious, you don't want your national security adviser compromised with the Russians.
TOTENBERG: Despite the warning, Flynn wasn't fired until 18 days later. After Yates testified, however, President Trump fired FBI Director Comey. The president ultimately admitted he did it because of his dissatisfaction with the Russia probe and not, as the White House had originally claimed, because of Comey's conduct of the Clinton email investigation.
WERTHEIMER: The job of the White House counsel is, in part, to prevent and protect the president from getting into these dangerous situations.
TOTENBERG: Again, Fred Wertheimer.
WERTHEIMER: Now, one of two things is happening here. Either the White House counsel is out of the loop and doesn't know when these things are happening, or the White House counsel does know, and he either isn't trying to prevent it or can't prevent it.
TOTENBERG: Indeed, counsel McGahn's friends and associates say he's grown increasingly uneasy about his role and was relieved when President Trump hired a private lawyer to represent him in the ongoing investigations. McGahn knows that the White House counsel's office today is a very different animal from what it was in the early 1970s, at the time of the Watergate scandal.
Back then, the White House counsel's job was not nearly as important as it is today. There were just three lawyers in the office. Today, there are over 30. But most importantly, back then, there were no clear lines about the role of the White House counsel.
JOHN DEAN: During Watergate, I wasn't sure who my client was. Nixon thought I was his private lawyer as well as some kind of White House lawyer.
TOTENBERG: John Dean, President Nixon's White House counsel, went to jail in the Watergate scandal. He notes that in the aftermath, the American Bar Association enacted a new code of ethics making clear that the counsel to the president represents the institution of the presidency, not the president personally.
DEAN: He needs to be aware of what's going on so he can protect the office. And he should ask for that information.
TOTENBERG: But Dean observes there is no lawyer-client privilege requiring the White House counsel to keep secret anything he learns about personal wrongdoing. Indeed, he or she has an obligation to disclose misconduct. McGahn's allies say he is fully able to thread the narrow eye of that needle. Leonard Leo of the conservative Federalist Society has worked closely with McGahn over the last year.
LEONARD LEO: Sometimes, you're just going to have to make seat-of-the-pants determinations and judgments. Don does, I think, as good a job of that as any White House counsel has.
TOTENBERG: Boyden Gray served as White House counsel to President George H. W. Bush.
BOYDEN GRAY: I would say he's doing, I think, a pretty good job in the circumstances that he's inherited, with a White House that has a White House staff and many Cabinet who've never had an experience in government.
TOTENBERG: But John Dean has a warning.
DEAN: I saw in Watergate not only myself but others get across the line out of pure carelessness. And then, once across the line and realizing the problem, there was a doubling down, trying to make it work, which was even more foolish.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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