As noted in a diary by HiVoter ( www.dailykos.com/... ) something significant got lost in the “shithole shitstorm” at the end of the week. What I find fascinating is that while the indictment handed down yesterday has links to Mike Flynn the case is independent of Special Counsel Robert Mueller’s investigation — the investigation and indictment have been handled entirely within the DOJ. Which means that once Hair Gropenfuhrer gets told about it Jeff Sessions is in for more public humiliation. I can hear the screaming now — “He’s supposed to be protecting ME!” and who knows what else. But his legal team has new cause for concern, as do all those GOP Congress Critters who have collectively decided to go all in on protecting Trump. IOW, it’s not just State level prosecutions that could ruin all their days but even Russia related prosecutions being handled by the DOJ under Sessions! True, there might be some type of technicality that lets Sessions claim he was hands off due to his recusal from campaign & administration related Russia matters. That might even be true. It also might be true as I argued last year that Jeff Sessions (in an attempt at self preservation) might turn out to be the linchpin that brings down Trump — and he’s already got enough legal worries without adding an additional element of Obstruction of Justice. Don’t think for a second Mueller wasn’t aware of DOJ’s investigation and indictment. Since Flynn is connected they for damn sure ran it by Mueller along the way and wouldn’t have unsealed the indictment with his approval.
However, while I’ve argued in the past that Sessions & Flynn are the ones with the most damaging (to Trump) knowledge I now wonder about Don McGahn. I’ll be honest. I didn’t know all that much about him until recently. But the recent revelation (again, lost in the shitstorm) that McGahn literally went to the DOJ at Trump’s behest to pressure Sessions not to recuse himself from the Russia investigation has surely placed him squarely in Robert Mueller’s crosshairs. Given his role in the events leading up to Sally Yate’s firing (I still maintain that’s the start of the Obstruction case — not events with Jim Comey) McGahn was going to be sitting down for a nice little chat with Team Mueller at some point. IOW it’s not like McGahn didn’t have concerns already. But IMHO there’s a reason why his name was floated this week as one of a couple of impending high-level White House departures (the other being H.R. McMaster) — something else lost in the storm.
I started wondering then (when the heading to DOJ to talk Sessions out of recusal) just how much McGahn might know that was damaging to Trump. As I’ve already said I think he had problems on the Obstruction of Justice case even before Trump ordered him on his DOJ field trip. But it’s only today that I started looking into his background. With so much flying around the whole Trump shit show I never paid much attention to him, and in fact prior to the transition when he was announced as the new White House Counsel I didn’t realize he was part of Trump’s team early on. Well, it didn’t take much looking online to learn differently! A simple check of not so good ole Wikipedia was an eye opener:
en.wikipedia.org/…
The entry refreshed my memory on why I’d at least heard his name before, but for purposes here the relevant part is this:
McGahn served as Donald Trump's campaign counsel during his 2016 campaign for president.[6] McGahn managed all litigation involving Donald Trump's 2016 Presidential campaign, and he successfully defeated numerous litigations and legal efforts to derail the campaign. Early in 2016, he stopped efforts to keep Trump off of the Republican primary ballot in New Hampshire by going to court and winning to ensure ballot access in a key primary state.[10] McGahn also assembled and oversaw the legal team that helped defeat the NeverTrump movement at the 2016 Republican National Convention, both in the RNC Rules Committee and on the convention floor.[11] Several weeks before the election, lawsuits were filed in four battleground states alleging voter intimidation and seeking to enjoin the Trump campaign from having observers at polling locations.[12] McGahn successfully managed and won these litigations.[13]
McGahn was heavily involved in the Trump campaign and there’s no telling just how many matters he was consulted on. Given his Libertarian leanings & penchant for pushing boundaries (more on that later) it’s not hard to imagine him putting in effort to make sure the campaign could get away with stuff. Including that rather significant rule change in the Platform at the GOP convention which many feel was one of the “quo” elements of the quid pro quo activities between Putin/Russia and Trump. Not being a lawyer I don’t know all the problems that will have to be overcome to pierce client privilege but I do know (and if I’m wrong I’m sure attorney’s here will correct me) that no privilege exists when an attorney is actively working with a client to commit a crime(s). In any case, McGahn has a lot of work to do to keep his ass out of jail and he’s not going to be able to effectively aid his own attorneys working to help him do so while also handling the duties of the White House Counsel’s Office. However, there’s more.
I also found an excellent piece from a year ago published by Slate:
www.slate.com/…
I noted earlier that I’d get into McGahn’s history of pushing boundaries. He and his boss are kindred spirits in that way. The problem though is McGahn has actual (and successful) experience actually mucking up the workings of government policy in actual, real legal/regulatory ways. As the article notes about him:
A man who has spent his career coming up with creative and aggressive ways to defy rules he did not believe were constitutional has been placed in charge of warning the president whenever he is about to cross an ethical or legal line.
Within the Slate article is a link to a piece in the Washington Post about McGahn becoming part of Trump’s team. The following passage, especially the last paragraph is instructive:
If his record is any guide, Mr. McGahn (pronounced Mc-GANN) will be a fierce proponent of the president’s executive authority to operate independently on a wide range of issues. One key question, however, is how strongly he will push back if Mr. Trump, a man who has defied many norms, seeks to cross into murky legal terrain, a number of associates said.(emphasis added)
He may be called on to defend Mr. Trump’s stances on issues like his business empire, his children’s role in his administration, his moves to roll back President Obama’s executive orders, his vow to bring back waterboarding or his threat to impose tariffs on companies moving abroad.
His legal fingerprints can already be seen in a number of positions Mr. Trump has taken since the election. Associates said he was most likely the source, for instance, for Mr. Trump’s assertion in an interview with The New York Times that he could maintain control of his business if he chose to because “the law is totally on my side, meaning the president can’t have a conflict of interest.” Mr. Trump’s contention was apparently based on an exemption for presidents and vice presidents codified by Congress in 1989.
It’s important here to emphasize what the accepted role of the White House Counsel’s Office is meant to be. As noted on Wikipedia “The Office of Counsel to the President was created in 1943, and is responsible for advising on all legal aspects of policy questions, legal issues arising in connection with the President's decision to sign or veto legislation, ethical questions, financial disclosures, and conflicts of interest during employment and post employment. The Counsel's Office also helps define the line between official and political activities, oversees executive appointments and judicial selection, handles Presidential pardons, reviews legislation and Presidential statements, and handles lawsuits against the President in his role as President, as well as serving as the White House contact for the Department of Justice.”
The scope is broad and all encompassing. The entry goes on to note “Although the White House Counsel offers legal advice to the President, the Counsel does so in the President's official capacity, and does not serve as the President's personal attorney.” ( en.wikipedia.org/... )
Of course, as has been noted seemingly every day this administration seems to go about ignoring or even destroying norms. And like his boss Don McGahn takes particular relish in doing so. McGahn is passionate about getting around obstacles including actual regulations & even laws he doesn’t agree with so what’s tradition and custom to a guy like that. The problem can be found in the seminal book about a man referenced in the title of this diary — Blind Ambition (by John Dean). Passion can, in the intense vortex of a Presidential campaign and especially in an actual Presidential administration turn to zealotry. And without realizing it legal lines have been crossed — or done so intentionally under the “the end justifies the means” rationale. I for one don’t find it remarkable that someone with a history of fervent belief engages in “the ends justify the means”, especially when one has made a career of figuring out how to bend the rules and get around actual regulations and laws — and frequently succeeding. Including getting some of them changed.
However the point here is that a White House Counsel is not supposed to be “the President’s lawyer” but rather to represent the Office of the President. His or her duty is supposed to be making sure the President and the rest of the White House staff’s actions comply with the law. There is a lot of ground to cover to keep things from getting off track & preventing problems instead of having to clean them up. As a fan of the old TV show West Wing the following scene comes to mind:
www.bing.com/…
McGahn seems ill suited for such a role. As the earlier referenced Slate article notes:
The fear shouldn’t be that Trump will steamroll McGahn but that McGahn, because of his personality and his ideology, will be inclined to help and encourage Trump to evade whatever rules he wants. Doing so and getting away with it, it seems, is exactly what McGahn loves about practicing law.
I really think the entire Slate article (as well as the links it contains) are worth your time to read. However, in case you don’t have time at the risk of violating fair use I’d like to note the article goes on to say:
it’s easy to imagine him being a bad influence on Trump: a friendly voice that tells him he’s right to feel indifferent toward the rules that govern his office, while providing him with assurances that it’ll be easy to get around them.
So let’s back up and take a look at the record. McGahn joins the Trump campaign in 2015.
- He was in on things early on, and even surprised a lot of people in DC by throwing in his lot with the Trump campaign in the early stages.
- He was involved in the convention, including rules and it’s not a stretch to say advising specific language in that oh so important and eyebrow raising (at the time) change in language in the platform (the one neutering the previous GOP position on Ukraine — and Russia in general if you extend the implications out.
- He remained in his role during the transition and had a hand in all sorts of high level stuff which we now know is fertile ground for Mueller.
- He was the person Sally Yates went to about Mike Flynn literally in the opening days of the new administration, and it’s murky at best whether he advised Trump to ignore her. It IS however worth noting he asked her a wholly inappropriate question about Flynn’s interview with the FBI (he had to have known better) which she quite properly refused to answer. And we now know he took active part (and again should have known better) in the attempt to get Jeff Sessions not to recuse himself from the Russia investigation.
- And finally, as I think about it it’s hard to believe that no one consulted him about that infamous June, 2016 meeting in Trump Tower or the legal technicalities of fostering the dissemination of all those hacked emails.
The more I think about it the more I wonder if, like John Dean before him he became so blinded to serving a candidate & eventual President he not only looked the other way, but actually aided and abetted wrongdoing — figuring either the ends justified the means or that they’d all get away with it. Or both.
I was old enough to understand Watergate when it happened. Like many I’ve sometimes been cautious about drawing too many comparisons. There are difference after all. Some better and some worse. But an overly ambitious White House Counsel who was so fervent in his desire to make what the President wanted to happen a reality, even if significant parts of doing so were illegal was what made John Dean such a crucial figure in the Watergate investigation. More importantly, eventually he decided he had to look out for himself and cut the best deal he could. I do believe Dean genuinely came to regret his role in that whole mess, and not just because he went to prison and was disbarred. My point however is that he was so devoted to Nixon and Nixon’s agenda he lost all perspective for too long a time.
Dean was however in a unique position as White House Counsel to be able to detail a lot of the inner workings of the Nixon White House and the goings on both with the events that led to Watergate and later the cover up. I’m beginning to think Don McGahn is in a similar position — a man who became a zealot and willingly crossed the line. In fact, I find it easy to believe because unlike Dean, the various links and passages I’ve noted show McGahn is used to getting away with blurring the lines and getting around “pesky” things like rules and laws.
However, he’s never faced an opponent like Robert Mueller, or frankly the team Mueller has assembled. I’m not saying he’s a bad or incompetent lawyer. On the contrary. However, he’s out of his league when it comes to the folks in the Special Counsel’s investigation. And from where I sit he’s about to be in the fight of his life to stay out of jail and retain his law license. I happen to believe it’s a fight he will lose, which means the question will be whether he goes down fighting or, as John Dean did decides it’s time to “pay the piper” and cut the best deal he can for himself. I’m starting to believe that I was wrong before and that it’s not Jeff Sessions (or Mike Flynn) who could be the linchpin (I wrote a diary about it last March but I’m not sure I’m allowed to link to my own prior diaries) — I think it might well be Don McGahn.
What I’d really love is for some journalist who has Dean on the air to ask him about McGahn, listing some of the stuff I mentioned earlier. And specifically pressing him on whether he sees McGahn as having fallen into the same trap he did. It would I think make for an interesting discussion.
For the moment, I’ll have to settle for hoping this diary winds up getting widely read and that people my own age (sixty) or older who remember Watergate will think it over and offer their own thoughts. If McGahn winds up being “John Dean 2.0” it won’t be the first time history has repeated itself.