On Saturday, August 18, 2018, The New York Times reported that White House Counsel Don McGahn has taken part in at least 3 voluntary interviews totaling 30 hours with Robert Mueller’s investigation team looking into the Russia probe over the past 9 months. He discussed a wide range of topics such as Donald Trump’s decision to fire FBI Director James Comey, National Security Adviser Michael Flynn’s ouster, and Trump’s public and private whining about Attorney General Jeff Sessions. According to the Times, McGahn fears Trump’s setting him up as a fall guy on potential obstruction of justice. And that he’d end up like his possible Nixonian counterpart John Dean who helped his boss cover up the Democratic Party headquarters break-in at the Watergate hotel. But he eventually flipped after Nixon fired him in 1973, secretly giving investigators crucial help while still on the job. Dean later pleaded guilty to obstruction of justice after striking a deal with the prosecution and received a prison sentence.
According to the New York Times report, two of Donald Trump’s original lawyers, John Dowd and Ty Cobb devised an “open-book strategy” for their client when the Mueller investigation began. The rationale behind this is obvious. After all, if Trump did nothing wrong, then he should be as cooperative as possible. Unlike his boss, while Don McGahn was dubious, he went along with the plan. And when the special counsel’s office asked him for an interview last year, he was “surprised” but complied when Trump and his lawyers gave him the go-ahead.
Not surprisingly, the report describes McGahn and his lawyer, William Burck as “stunned” at the Trump team’s willingness for him to talk to Mueller. So much they’ve developed a theory that McGahn’s being set up to take the blame for any possible illegal acts of obstruction of justice. So he and Burck decided to come clean with Mueller to demonstrate that he has nothing to hide. That McGahn is speaking with Mueller isn’t new, but to the extent he’s cooperating and his potential motivations for doing so are.
It’s not exactly clear that Donald Trump “appreciates the extent to which” Don McGahn has cooperated with Mueller. But you kind of have an idea he doesn’t appreciate it all that much. Yet, to Trump’s disappointment, McGahn doesn’t see himself as his boss’ personal lawyer. Rather, he sees himself as a protector of the presidency, not Trump. Besides, while McGahn has overseen Trump’s judicial appointments and deregulatory push at the White House, he has a distant relationship to his boss. According to the Times, the two men rarely speak. And when they do, chief of staff John Kelly and other advisers are usually present. And since McGahn calls his boss, “King Kong” behind his back, Trump has questioned his White House Counsel’s loyalty to him.
Nonetheless, as White House Counsel Don McGahn has had extraordinary access to Donald Trump and some of his most controversial moves. As the New York Times reported citing a dozen anonymous sources, McGahn has told investigators he knew of Trump’s role in firing FBI Director James Comey and repeated criticisms of Attorney General Jeff Sessions and his role in the Russia investigation before Trump hired outside counsel to deal with the matter.
To the surprise of no one, Donald Trump has been incensed by the New York Times report. For he raged about it on Twitter during the weekend. That same evening when the report came out, he tweeted, “I allowed White House Counsel Don McGahn, and all other requested members of the White House Staff, to fully cooperate with the Special Councel. In addition we readily gave over one million pages of documents. Most transparent in history. No Collusion, No Obstruction. Witch Hunt!” However, the Trump administration has been anything but transparent since we haven’t seen the guy’s tax returns. Trump has been fervently against the Mueller investigation since the very beginning and has gone out of his way to undermine it, including attempts to fire Mueller. In fact, McGahn threatened to quit when Trump considered firing Mueller last year and convinced his boss to work with the special counsel. And I don’t see Trump and his lawyers handing over a million document pages. On Sunday, he unleashed a string of angry tweets, calling the story “fake” and claiming he allowed McGahn and others to speak to Mueller in an effort to be transparent, “so that this Rigged and Disgusting Witch Hunt can come to a close.” Yet, given that the Trump administration is infamous for being one of the least transparent in presidential history.
Donald Trump then took specific aim at reporters Maggie Haberman and Michael Schmidt, referring to them as “fake reporters” and used them as an example of why the media has become the “Enemy of the People” as he often claims in his mass gaslighting. He also claimed that some members of the media called him to apologize and made a reference to the New York Times’ “disgusting new Board member.” While It’s not clear if he referred to the paper’s board of directors which both publisher A.G. Sulzberger and investor John Rogers, Jr. joined this year. Or its editorial board which tech writer Sarah Jeong was named to this month and who’s been attacked by right-wing activists alleging her of racism against white people. Let’s just hope it’s the former but given his decades-long racism, I strongly think he’s referring to the latter. Nonetheless, we must take Trump’s attacks of the media as gaslighting his base in to not believing negative coverage against him.
Nonetheless, the news of Don McGahn cooperating with Mueller has the potential to become a big deal. But it really depends on what McGahn told investigators and there are still a lot of questions about that. Even Donald Trump’s own legal team doesn’t seem all that sure if McGahn’s account hurts or helps their client. Yet, given that McGahn’s lawyers fully brief Trump’s legal team and how an angry Trump called him a “John Dean type ‘RAT’” on Twitter, my guess is the latter. Mueller and his attorneys know what McGahn told them and how it may or may not play into the obstruction of justice investigation. Yet, whatever it is, Mueller’s team isn’t giving any hints.
In the meantime, don’t assume that Don McGahn or that his testimony will help unseat Donald Trump like Dean’s did to Nixon. Trump expressly permitted his White House Counsel to speak to Mueller. Though his job legally obligated McGahn to testify since he represents the office of the president and works for the US government. So he couldn’t cite attorney-client privilege even if he wanted to. And if he refused, Mueller would’ve compelled him to do so. However, it’s notable the fact McGahn didn’t even try to avoid speaking with the special counsel, especially since the Trump administration is infamous for eschewing precedent. There are 2 possible reasons why he decided to simply comply with Mueller’s request. First, is that a futile court battle over his testimony would’ve made him look bad and raise suspicions that he and the White House have something to hide. Secondly, he might’ve seen little risk and even some reward in telling Mueller’s team about events that could constitute obstruction of justice.
Nor does it put Don McGahn in the clear. A former FEC commissioner, McGahn is a campaign finance expert and served as Donald Trump’s counsel 2016 election. In that capacity, he was presumably involved in the campaign’s hiring of British Cambridge Analytica employees. This raised the possibility of improper foreign contributions. McGahn may have known about the infamous Trump Tower meeting between a Russian lawyer and Trump campaign officials to get dirt on Hillary Clinton, a flagrant violation of campaign finance rules. McGahn might’ve even failed to rein in Roger Stone from the campaign as the latter allegedly bypassed election laws to seek Clinton dirt from foreigners. Since he has a long-time history with Stone and various dubious fundraising schemes, including those of Russian pay to plays dating back to his days as Tom DeLay’s attorney.
Whether Don McGahn has told any of the 2016 campaign to Mueller is a critical question. Citing Donald Trump as an unindicted co-conspirator in these alleged crimes may be Mueller’s strangest move. But since we don’t know, McGahn’s cooperation with the Mueller probe gives us a false impression of McGahn as a model of transparency with regard to the special counsel. The New York Times story over the weekend provides the White House Counsel with a publicity boost for its depiction of him as an honest broker with Mueller. But is he really? And it paints Trump as underestimating by the threat McGahn’s testimony on obstruction can pose to him at worst. In fact, Trump comes across as naïve about the investigation, which is an innocent deviation from his usual, panicked rage.
For now the New York Times story on Don McGahn may help Donald Trump’s public standing. Since it strengthens his claims of non-existent transparency and insinuates that McGahn has nothing to hide. However, the real test of McGahn’s candor will be if and when Mueller asks him to speak about the 2016 campaign. At that point, McGahn can invoke attorney-client privilege since he represented Trump at the time, which can trigger a genuine conflict with the special counsel.
Until then, keep in mind that Donald Trump and Don McGahn want us to think that Mueller has no reason to compel testimony, since they’re giving him everything he wants. Despite that it’s really not the case. Yet, by talking to Mueller about obstruction and publicizing these talks, McGahn doesn’t throw Trump under the bus, but may even strengthen the White House’s case amid looming conflict. Though he might’ve turned since no one else in the Trump administration knows what McGahn told Mueller either. Since such revelation has Trump extremely worried. But don’t get your hopes up.