'The Quiet Man': The Powerful Conservative White House Lawyer In The Middle Of It All

Jun 6, 2017
Originally published on June 6, 2017 11:23 am

By day, Don McGahn is a straight-laced lawyer, but by night, he's a long-haired rocker.

In the White House drama that occupies almost every news day — from the firing of the FBI director, to the Russia probe, to the controversial travel bans — there is one crucial name that hardly ever is mentioned publicly: Don McGahn. He is the White House counsel, the president's official lawyer, and his job description puts him at the center of every legal decision made in the White House.

McGahn is filling some impressive shoes as the president's counsel. Some of the most respected lawyers in the country have served in the job, beginning in 1943 when President Franklin Delano Roosevelt created the office and appointed as its first occupant Sam Rosenman, a formidable New York lawyer and former judge who moved easily in the corridors of power.

McGahn, in contrast to most of his predecessors, however, is not widely known — even in conservative Republican circles.

Indeed, in some ways he is an odd fit, or at least, like the president he serves, an unconventional one.

Lawyer by day, rocker by night

McGahn's friends joke that he has something of a split personality. By day, a straight-laced lawyer, and by night, a long-haired rocker, the former guitarist for Scott's New Band, which performed all over the Mid-Atlantic states for more than a decade — until Aug. 25 of last year.

That day, two things happened: The Trump campaign announced McGahn as its general counsel, and the band announced it was retiring.

Now, McGahn finds himself the man in the middle, as the Trump administration lurches from one controversy to another, and as parallels are increasingly drawn — fairly or unfairly — to the Watergate scandal that sent top White House aides to jail and drove President Richard Nixon out of office.

If there is a single word most frequently used to describe McGahn, it is "iconoclast," defined in multiple dictionaries as a person who attacks settled or cherished beliefs and institutions, a "cynic," "nonbeliever" or "nonconformist."

That is certainly the role he played when Republican Senate Majority Leader Mitch McConnell chose McGahn to serve as one of three Republicans on the Federal Election Commission, the government agency charged with enforcing campaign-finance regulations. The three Democrats on the FEC soon saw the three Republicans voting in lockstep as never before. The result: a deadlocked commission that didn't enforce much in the way of campaign-finance rules. That, at least, is the view of Democratic Commissioner Ellen Weintraub.

"McGahn came in with the mission of trying to make the agency as ineffective as possible," she said.

McGahn, a libertarian, never tried to hide his antipathy for campaign-finance regulation. In one infamous incident, he became so angry that he literally tore up the agency's rule book and threw the pieces across the table at a Democratic commissioner.

He may have led the charge, becoming chairman of the commission in the process, but even some Democratic election lawyers concede that he was carrying out the wishes of the Republican congressional leadership. Still, he was uncommonly good at exploiting potential loopholes in the campaign-finance law.

Now, he is in charge of dozens of legal issues at the White House, including ensuring that its staff and the president's appointees across government comply with the nation's ethics laws and regulations.

Some see that as something of a "fox-in-the-chicken-coop" role for the former FEC chairman.

"McGahn seemed to really enjoy trying to find ways around the rules," Weintraub said. "I don't know what kind of advice somebody like that is giving."

Leonard Leo, executive vice president of the conservative Federalist Society, responded that McGahn is "the right person to be counsel to the president," because "he has the trust and confidence of Mr. Trump, and that's probably the most important skill or attribute."

Leo noted that in a job that often requires a fast legal opinion with little time to research, character and good judgment are essential — qualities that he said McGahn has demonstrated time and again.

"Every day, the White House counsel has to say, 'No' to the president, to explain to his boss that either he can't do what he wants to do, or he has to do it differently," Leo observed.

Parallels to Watergate

Ethics watchdog Fred Wertheimer contends that Trump's administration has "gotten dangerously close" to some of the problems that Nixon did in Watergate.

"The smoking gun in the Watergate scandals was a White House tape in which President Nixon was caught laying out the plan to get the CIA to intervene with the FBI to block an FBI investigation of Watergate," Wertheimer said. "Here, President Trump has gotten dangerously close to the line of doing the same thing."

Indeed, at a Senate hearing last month, a clearly uncomfortable director of national intelligence, Dan Coats, declined 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.

But when Sen. Richard Blumenthal, D-Conn., pressed the issue, asking Coats if he had discussed the matter with the NSA chief, there was an eight-second silence before Coats haltingly said he "would like to withhold that question at this particular time."

Two weeks earlier, former acting Attorney General Sally Yates testified that she warned McGahn, less than a week after Trump was sworn in, that Trump's national security adviser Michael Flynn was subject to blackmail by the Russians. She said she told McGahn that the Justice Department had evidence Flynn had lied to Vice President Pence about the nature of his discussions with the Russian ambassador when President Barack Obama was still in office.

Yates quoted the White House counsel as asking, "Why does it matter to DOJ if one White House official lies to another White House official?"

She said she had explained to him, "To state the obvious, you don't want your national security adviser compromised with the Russians."

Despite the warning, Flynn wasn't fired until 18 days later.

Shortly after Yates' public testimony in May, Trump fired FBI Director James Comey. The president ultimately admitted he did it, at least in part, because of his dissatisfaction with the Russia probe, and not, as the White House had originally claimed, because of Comey's conduct in the Clinton email investigation.

And this week, Comey's testimony on Capitol Hill has become one of those rare mega news events that is so high profile that at least one of the commercial networks, CBS, is planning to carry the testimony live in place of its usual entertainment fare.

"The job of the White House counsel is, in part, to prevent and protect the president from getting into these dangerous situations," said Wertheimer, president of Democracy 21, a group that advocates for ethics and transparency in government.

"One of two things is happening here," he contended. "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."

Although Trump, at McGahn's urging, has now hired a private lawyer to represent him in these investigations, the White House counsel just might be reading up on the Watergate scandals. After all, the 48-year-old McGahn was in grade school when revelations of those abuses of power riveted the country for nearly two years.

Back then, the White House counsel's office was a very different animal from what it is today. Back then, the job was not nearly as important. There were just three lawyers in the office then, compared to today's 30-plus. But most importantly, back then, there were no clear lines about the role of the White House counsel.

"During Watergate, I wasn't sure who my client was," said John Dean, who served as White House counsel to Nixon and went to jail for the role he played in Watergate. The president "thought I was his private lawyer, as well as some kind of White House lawyer," he adds ruefully.

Dean noted that in the aftermath of the scandal, the American Bar Association enacted a new code of ethics, which has been adopted nationally. It makes clear that the counsel to the president represents the institution of the presidency, not the president personally.

And yet, Dean added, despite this clear division of responsibility, the White House counsel "has got to be aware of what's going on, so he can protect the office," and to protect the office, the counsel "should ask for information."

The same rules apply to corporate legal counsel when a corporation's CEO is being investigated for his personal conduct, Dean observed. Moreover, he noted, there is no lawyer-client privilege requiring confidentiality in these situations.

If the White House counsel learns of wrongdoing, Dean said, he or she has an obligation to disclose the misconduct. McGahn's allies say he is fully able to thread the narrow eye of that needle.

"Sometimes you're going to have to make seat-of-the pants determinations and judgments," said the Federalist Society's Leo. "Don does, I think, as good a job of that as any White House counsel has."

For this story, NPR talked to more than a dozen people, including former White House counsels, officials from the Department of Justice and McGahn's former law partners. Strikingly, most of those who know and like McGahn — even Democratic lawyers — asked not to be quoted by name. The reason? They do business with the White House or the Trump business empire.

Leo is an exception. He points to one of McGahn's signal successes: the appointment and confirmation of now-Justice Neil Gorsuch to the Supreme Court. Unlike the rest of the Trump administration rollout, Gorsuch's confirmation process — with Leo as the outside man and McGahn as the inside man — was flawlessly executed, a no-drama affair. And the conservative effect on the Supreme Court will likely be profound.

Indeed, McGahn's job is to supervise not only the selection and vetting of Supreme Court nominees, but also the filling of some 130 judicial vacancies in the lower federal courts. That number is unusually large because Senate Republicans refused to bring to a vote many judicial nominees in the final years of the Obama administration.

The prospect of McGahn's very conservative hand in filling these court seats now sends shivers of horror down the backs of many Democratic lawyers, and some moderate Republicans as well. But so far, McGahn's choices have delighted the GOP conservative base, from social conservatives to big business.

Handling the travel ban and other problems

Less pleasing is the way the White House has handled a significant number of legal issues. It is hard to determine how much of the blame for that goes legitimately to McGahn, given the chaotic nature of the Trump presidency. But part of the job of the White House counsel is to prevent legal fiascos.

The first of these, the travel ban, was an executive order signed by the president a week after taking office. It initially and temporarily barred people from seven predominantly Muslim countries from entering the U.S. The order, written without consulting the relevant agencies, was so poorly drafted that it even barred green-card holders from returning home after visits abroad.

After briefly paralyzing a number of airports, both in the U.S. and elsewhere, the order was struck down by five district courts and a federal appeals court. Eventually, the president signed a second executive order, which he later characterized with disdain as "watered down." But that travel ban, too, has been struck down and is already pending at the Supreme Court.

Leo defends McGahn's handling of the travel bans. "The role of the White House counsel's office," he insisted, "is simply to look at the proposed executive order and determine whether or not that order is legal on its face."

Former White House counsels from both parties disagree. They argue that McGahn should have taken into account Trump's problematic statements made during the campaign, and after his election, promising to ban Muslims — statements that later doomed the ban as, among other things, based on religious discrimination.

McGahn is also tasked with enforcing compliance with ethics rules. That job has proved particularly nettlesome because of Trump's business empire — and the role his children play in that empire and in the White House. Also complicating McGahn's job is the fact that many of the individuals tapped for top administration jobs have never served in government, and their private businesses and holdings present potential or actual conflicts of interest.

While former White House counsels say that they always worked closely with the Office of Government Ethics to ensure compliance with ethics laws throughout the government, McGahn has clashed repeatedly with the ethics office.

Inside the White House, McGahn has assembled what both admirers and critics say is a crackerjack legal team of more than 30 lawyers, including former Supreme Court law clerks, former Justice Department officials, lawyers who staffed the Senate Judiciary Committee and former partners in prominent law firms.

McGahn supporters call him a stand-up guy, who is "taking the bullet" in conversations with Trump when he has to. For instance, when the first travel order was struck down and Trump tweeted an escalating series of attacks on the judiciary, Supreme Court nominee Gorsuch was quoted as telling senators privately that he found attacks on the judiciary "disheartening" and "demoralizing."

The comments were widely seen as an attempt by the nominee and his handlers to distance Gorsuch from Trump's remarks. Trump, according to knowledgeable sources, was furious — and McGahn defused the situation by taking the blame.

Role in climate-change withdrawal

McGahn has often in this young presidency found himself in the middle of big policy fights in the White House. Most recently, he advised Trump to withdraw from the Paris climate accord, telling him it could jeopardize the administration's deregulation of industry.

That position put him at odds not only with the secretaries of Defense and State but also the president's daughter Ivanka and her husband, Jared Kushner.

McGahn doesn't shy away from that kind of fight, his allies say. In a White House filled with loud and warring personalities, McGahn is something quite different, according his supporters.

"Don McGahn has a nickname among some of us who know him: 'The Quiet Man' — in the sense that he's not seeking glory, he's not seeking attention," Leo said. "He's trying to advise the president in a way where catastrophes are avoided."

A Democratic defender put it more bluntly, saying McGahn's problem isn't anything he has done. Rather, "it's his catastrophic client."

A conservative friend of McGahn's was yet more scathing, declaring that even if the great Justice "Oliver Wendell Holmes were advising this president, it wouldn't matter."

If McGahn agrees with any of those assessments, he keeps it to himself.

"I would say he's doing a pretty good job in the circumstances that he's inherited," said Boyden Gray, who served as White House counsel for President George H.W. Bush.

There are more problems than usual in the Trump administration, Gray notes, because so many White House staff and Cabinet members have little or no experience in government.

And the lessons of Watergate often seem lost on today's power players. Former Nixon White House counsel John Dean, who ended up behind bars for his role in Watergate, has a warning for this White House.

"I saw in Watergate," he said, "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."

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

RACHEL MARTIN, HOST:

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.

(SOUNDBITE OF ARCHIVED RECORDING)

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.

(SOUNDBITE OF ARCHIVED RECORDING)

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. Transcript provided by NPR, Copyright NPR.