August 19, 2018


McGahn, White House Counsel, Has Cooperated Extensively in Mueller Inquiry (Michael S. Schmidt and Maggie Haberman, Aug. 18, 2018, NY Times)

 The White House counsel, Donald F. McGahn II, has cooperated extensively in the special counsel investigation, sharing detailed accounts about the episodes at the heart of the inquiry into whether President Trump obstructed justice, including some that investigators would not have learned of otherwise, according to a dozen current and former White House officials and others briefed on the matter. [...]

For a lawyer to share so much with investigators scrutinizing his client is unusual. Lawyers are rarely so open with investigators, not only because they are advocating on behalf of their clients but also because their conversations with clients are potentially shielded by attorney-client privilege, and in the case of presidents, executive privilege.

"A prosecutor would kill for that," said Solomon L. Wisenberg, a deputy independent counsel in the Whitewater investigation, which did not have the same level of cooperation from President Bill Clinton's lawyers. "Oh my God, it would have been phenomenally helpful to us. It would have been like having the keys to the kingdom."

Mr. McGahn's cooperation began in part as a result of a decision by Mr. Trump's first team of criminal lawyers to collaborate fully with Mr. Mueller. The president's lawyers have explained that they believed their client had nothing to hide and that they could bring the investigation to an end quickly.

Mr. McGahn and his lawyer, William A. Burck, could not understand why Mr. Trump was so willing to allow Mr. McGahn to speak freely to the special counsel and feared Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction, according to people close to him. So he and Mr. Burck devised their own strategy to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong. [...]

As the months passed on, it became apparent that Mr. McGahn and Mr. Burck had overestimated the amount of thought that they believed the president put into his legal strategy. Rather than placing the blame on Mr. McGahn for possible acts of obstruction, Mr. Trump has yet to even meet with the special counsel, his lawyers resisting an invitation for an interview. Mr. McGahn is still the White House counsel, shepherding the president's second Supreme Court nominee, Brett M. Kavanaugh, through the confirmation process.

Mr. Mueller, armed with Mr. McGahn's account, is still trying to interview witnesses close to the president. But the White House has a new lawyer for the investigation, Emmet T. Flood, who has strong views on privilege issues. When the special counsel asked to interview Mr. Kelly, Mr. Flood contested the request, rather than fully cooperate.


A White House counsel is not in a position to reject or ignore a special prosecutor's request for information relevant to an ongoing criminal investigation. The law on the fundamental point is clear. Precisely as the Times describes McGahn's understanding of his role, the White House counsel is a government employee, not personal counsel to the president. Courts presented with the question have ruled that, in a criminal investigation, the attorney-client privilege does not shield a White House counsel from providing his or her evidence. Neither is executive privilege a safe harbor if the government can demonstrate need for the information and its unavailability from other sources.

The Clinton administration litigated and lost both privilege claims in defending against the independent counsel investigations. When the U.S. Court of Appeals for the D.C. Circuit ruled unanimously on the application of the attorney-client privilege, it did so in no uncertain terms:

To state the question is to suggest the answer, for the Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense. 

This is not to say that, when called to interview with prosecutors, a White House counsel would agree to answer any and all questions. It falls to his or her attorney to negotiate an acceptable scope and focus for the interviews. In preparing for those discussions, the counsel and his or her lawyers can certainly take into account the constitutional and other reasonable concerns of the president's personal counsel. The Times story does not provide detail about the extent to which McGahn's own counsel consulted with the president and the president's private counsel, except to report that the president raised no objection to the interviews. In the end, however, the White House counsel is a government employee called upon to negotiate in good faith the terms of cooperation with criminal justice authorities.

It is conceivable that McGahn could resist the interviews by drawing on the constitutional theory that Trump's lawyers have been testing publicly--that there is no "evidence" for him to give because the case for which it is sought, presidential obstruction of justice, is constitutionally impermissible. This maneuver would stand little chance of success. Assuming that McGahn were willing to be the vehicle for a test of Trump's constitutional theory, he would have reason to doubt that he would prevail. A court would likely hold that the constitutional question was premature and not one for him to raise, and that at this stage of the proceeding, he must give testimony.

The entire episode serves yet again of a reminder of the potential hazards that accompany the benefits to the president of the institutionalized office of the White house counsel. 

Posted by at August 19, 2018 8:05 AM