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Don McGahn Has Not Turned on Trump

The White House counsel has figured out how to appear transparent without giving Mueller the information he needs.

Has Don McGahn turned on Donald Trump? On Saturday, the New York Times published a lengthy story suggesting as much, hinting that the White House counsel may have reached the limits of his loyalty to the president. Reporters Maggie Haberman and Michael Schmidt detail McGahn’s assistance to Mueller’s Russia probe, including 30 hours of voluntary interviews with investigators. Trump, they write, allowed McGahn to speak to Mueller’s team, though the president may not have grasped the extent of his cooperation.

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Haberman and Schmidt’s narrative is quite tantalizing, not least of all for its obvious parallels to former White House counsel John Dean’s testimony against Richard Nixon during Watergate. A closer examination of the Times piece, however, reveals that there is good reason to be skeptical that McGahn’s testimony will help unseat the president as Dean’s did. Haberman and Schmidt frame McGahn in an extremely favorable light, giving him far too much credit for ostensible transparency when it is not at all clear that his testimony will help Mueller. And they do so while intimating that obstruction of justice is at the heart of Mueller’s probe—an inaccurate assumption that buoys the dubious claim of McGahn’s full cooperation at Trump’s expense.

Perhaps the strangest aspect of Haberman and Schmidt’s story is what it does not mention. The reporters highlight the fact that Trump expressly permitted McGahn to speak to Mueller, a fact the president touted on Twitter after the article’s publication. But they fail to note that, in fact, McGahn is legally obligated to give testimony. As former White House counsel Bob Bauer notes in Lawfare, McGahn represents the office of the president, not Trump. He is an employee of the United States government, not personal lawyer to the president. For that reason, the courts have already concluded that the White House counsel cannot cite attorney-client privilege or executive privilege to avoid testifying about the president’s alleged malfeasance. Had McGahn refused to meet with the special counsel, Mueller could have compelled him to do so.

Still, it is notable that McGahn did not even try to avoid speaking with Mueller. Although the law here is settled, the Trump administration is not known for its respect of precedent; McGahn could have at least delayed the interview through a legal battle. There are two possible reasons why he apparently decided to simply comply with Mueller’s request. The first is that a futile court fight over his testimony would’ve made him look bad, raising suspicions that he (and the White House) had something to hide. The second is that he saw little risk—and even some reward—in telling Mueller’s team about the events that could constitute obstruction of justice.

It’s reasonable to infer that some combination of these two possibilities probably led McGahn to forego a privilege claim that he could have deployed to fight his legal obligation to testify about possible obstruction. Yes, he would lose, but more importantly, he would convey unscrupulous recalcitrance for no good reason. Haberman and Schmidt imply that Mueller has zeroed in on obstruction as a key aspect of his investigation. But while Mueller is no doubt interested in obstruction, there is little indication that he considers it a priority. To the contrary, the special counsel has already obtained four indictments and five guilty pleas involving conduct that has nothing to do with obstruction. He seems to be working his way through a criminal conspiracy of Trump’s associates, one that may turn out to feature the president in a leading role.

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True, in media appearances, Trump’s personal lawyers—particularly Giuliani and Jay Sekulow—have sought to depict Mueller as fixated on obstruction. That is because they recognize, correctly, that an obstruction charge against the president would go nowhere. According to Giuliani, Mueller is operating under the assumption that he cannot indict a sitting president. Even if Giuliani is lying, Trump’s lawyers have a backup argument that the president does not commit obstruction when he exercises his constitutional authority, even for illicit purposes. (They argue, for instance, that it should not matter why Trump fired FBI Director James Comey, because he has the power to terminate a subordinate executive-branch official.) These arguments might fare well in our increasingly Trumpy courts. At most, then, Mueller could advise Congress to impeach Trump for obstruction. Good luck with that.

In short, Trump’s legal advisers do not believe that obstruction-related inquiries can legally endanger the president. It’s no surprise, then, that McGahn would speak with Mueller’s team about the events that lie behind a potential obstruction charge. The bigger mystery is whether he spoke to the special counsel about matters beyond obstruction—specifically, about collusion between the Trump campaign and Russia, the actual focus of Mueller’s probe. Unfortunately, the Times report is maddeningly vague on this topic, stating only that “it is not clear” if Mueller asked McGahn about Russian collusion.

As Marcy Wheeler pointed out on Saturday, this single passage is the most telling in the whole article. There are, Wheeler noted, at least three ways in which Russian collusion might have involved campaign finance violations. McGahn, a former FEC commissioner, is a campaign finance expert, and he served as Trump’s campaign counsel through the 2016 election. In that capacity, he was presumably involved in the campaign’s hiring of British Cambridge Analytica employees, a move that raised the possibility of improper foreign contributions. McGahn may have been aware of the infamous meeting between a Russian lawyer and Trump campaign officials to get dirt on Hillary Clinton, running afoul of campaign finance rules. And McGahn may have failed to wall off Roger Stone from the campaign as Stone allegedly bypassed election laws to seek more dirt on Clinton from foreigners. (Mueller is keenly interested in Stone’s work for the campaign.)

Has McGahn spoken about any of these episodes with Mueller? That’s a critical question, because citing Trump as an unindicted co-conspirator in these alleged crimes may be Mueller’s strongest move. But we don’t know the answer, and the Times story conspicuously declines to tell us. It thus creates the false impression that McGahn is a model of transparency with regard to the special counsel. And that is almost certainly the reason why Haberman and Schmidt’s sources—including, most likely, McGahn himself—told them about the White House counsel’s vaunted “cooperation.” Saturday’s story provides McGahn with a publicity boost, depicting him as an honest broker with Mueller. And it paints the picture of a president who is, at worst, underestimating the threat that McGahn’s obstruction testimony could pose to him. Trump comes across as naïve about the investigation, a much more innocent look than his usual panicked rage.

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As the White House braces for a verdict in Paul Manafort’s trial and remains at an impasse over Trump’s hesitance to testify, the Times story can only help the president’s public standing. It strengthens his claims of transparency and insinuates that McGahn has nothing to hide. (A follow-up report that Giuliani does not know the extent of McGahn’s testimony makes the White House counsel look even more independent.) The real test of McGahn’s candor will arrive if, and when, Mueller asks to speak to him about the campaign. At that point, McGahn could raise attorney-client privilege, since he represented Trump at the time, triggering a genuine conflict with the special counsel.

Until then, it’s worth reading these stories of cooperation with a grain of salt. Trump and McGahn want us to think that Mueller has no reason to compel testimony, because they are already giving him everything he wants. And although it was not their intention, Haberman and Schmidt lay the groundwork for that position. By talking to Mueller about obstruction—then, apparently, publicizing those talks—McGahn did not throw Trump under the bus. He strengthened the White House’s armor ahead of the looming collision.