White House Counsel Don McGahn won’t rein in Donald Trump.

The White House Counsel Is Supposed to Rein in the President’s Worst Impulses. Uh-Oh.

The White House Counsel Is Supposed to Rein in the President’s Worst Impulses. Uh-Oh.

The law, lawyers, and the court.
Feb. 21 2017 10:01 AM

The Enabler in Chief

The White House counsel is supposed to rein in the president’s worst impulses. That’s not Don McGahn’s style.

Don McGahn
Don McGahn leaves the Four Seasons Hotel after a meeting with Donald Trump and Republican donors on June 9 in New York City.

Drew Angerer/Getty Images

On Sept. 19, 2012, a highly unusual document appeared on the website of the Federal Election Commission, the agency responsible for enforcing campaign finance laws. The document was written by one of the agency’s commissioners, Donald McGahn II, who had proved to be a source of great turbulence at the FEC since George W. Bush appointed him to the bipartisan commission in 2008. Openly contemptuous of the agency and its attempts to regulate political spending, McGahn had led a defiant, libertarian—and largely successful—crusade to incapacitate it from within.

Leon Neyfakh Leon Neyfakh

Leon Neyfakh is a Slate staff writer.

McGahn’s 2012 memorandum concerned an advocacy group called the Hispanic Leadership Fund, which had sued the FEC in response to an unfavorable decision from the agency. The group wanted the FEC commissioners to give their blessing to a set of anti-Obama advertisements and to confirm in advance that the group wouldn’t be subject to disclosure laws. McGahn and the other two Republican commissioners had backed the Hispanic Leadership Fund’s position while the three Democratic commissioners had voted against it. Since procedural rules at the FEC require at least four votes for the agency to take any action, that deadlock meant the Hispanic Leadership Fund’s ads didn’t get the green light.

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The McGahn memo, which was filed as part of the HLF’s lawsuit, argued that the FEC—McGahn’s own agency—deserved to go down to defeat. It was a remarkable act of treachery, one McGahn amplified by showing up at the courthouse on the day of the hearing to monitor the proceedings. “It was completely outrageous,” said David Kolker, the attorney who was representing the FEC in the case. “He tried to sabotage us.”

It was a standout episode in McGahn’s campaign to make the FEC irrelevant—a mission he pursued during his five-year tenure as a commissioner by relentlessly voting to block the agency from investigating possible campaign finance violations. He acted, by all accounts, out of unapologetic conviction and ideology: As a First Amendment absolutist, he viewed most if not all rules and regulations related to campaign finance as unconstitutional attempts to restrict free speech. And as a leader of the Republican bloc at the FEC, he marshaled his deep knowledge of those rules and regulations to stop the agency from enforcing them. As Ellen Weintraub, McGahn’s chief rival at the agency, wrote in a recent op-ed in the Washington Post, the self-styled rebel bureaucrat made “an art form of devising byzantine arguments against investigating alleged wrongdoing.”

McGahn, who left the FEC in 2013, began a new job this year as White House counsel. The position makes him responsible for making sure the president doesn’t do anything illegal—a crucial and difficult task in a normal administration, and an essential one under Trump. Historically, the White House counsel has been one of the most influential people in the president’s orbit. According to The White House World, a book-length guide to the inner workings of the executive branch, “no paper goes in or out of the president’s office without the counsel’s review.”

A month into Trump’s presidency, McGahn has already faced several lifetimes’ worth of crises. There have been accusations of wrongdoing in connection with Trump’s business entanglements. Then there was the judicial dismemberment of his Muslim ban, and the stream of unanswered questions about what the president knew about his erstwhile National Security Adviser Michael Flynn’s conversations with Russian intelligence officers. Throughout the turmoil, McGahn has been a central, though under-the-radar, player. After the immigration order came down, it was up to him to issue “authoritative guidance” indicating that green card holders weren’t subject to the ban. And when since-fired Acting Attorney General Sally Yates needed to tell someone at the White House about the possibility that Flynn was lying, McGahn was the person she entrusted to receive the information and to decide what to do with it.    

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It’s unclear, at this point, what McGahn decided. It’s also unclear what he’s been doing in a larger sense—whether the controversies that have plagued the White House are the result of his poor judgment and decision-making or an indication that he lacks influence over his boss. Lurking in the background, however, is McGahn’s record as a defiant bomb-thrower who loathes unnecessary rules. Given his past actions, it seems at least possible that McGahn is sowing chaos not by accident, but by design.

When McGahn’s role in Trump’s campaign first came under scrutiny, the principal irony seemed to be that Donald “Drain the Swamp” Trump—a candidate who condemned super PACs and the influence of dark money in politics—had hired a guy who once represented Tom “King of the Swamp” DeLay and has called himself an architect of the post–Citizens United “campaign finance revolution.” It also seemed contradictory that Trump—who has advocated for “loosening” the libel laws, expressed a wish for the New York Times to be shut down and struck a deal with a TV company for friendly media coverage—was casting his lot with an outspoken advocate of free speech.

But there’s a more consequential irony in Trump’s decision to bring McGahn on as White House counsel: 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.

No journalist has confirmed exactly how McGahn and Trump met. Some in the legal community have speculated that the connection between the two men goes back to when McGahn’s uncle Paddy, a New Jersey power broker, helped Trump get his Atlantic City casinos off the ground. Although Trump and Paddy McGahn ultimately landed in a bitter court fight over money, Trump’s willingness to bring his old associate’s nephew into his inner circle suggests any hard feelings have faded away. As it happened, Don McGahn was one of the president’s earliest supporters. When he joined the campaign in early 2015, his decision to align himself with the renegade clown from Manhattan was reportedly viewed by his fellow Washington insiders with skepticism and even scorn.

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At least on a personal level, the alliance makes sense. Trump and McGahn seem to share an appetite for showmanship and provocation. Where the president enjoys performing in front of crowds—both adoring and hostile ones—his White House lawyer used to enjoy a mild notoriety in Washington for sporting shoulder-length hair, wearing jeans to the office, and playing guitar in a bar band. (In the Wall Street Journal, he was captured onstage playing the opening riff to “Paradise City” while wearing a shirt that says “Not Now, I’m Busy.”) Profiles of McGahn have tended to use the word iconoclast. When I spoke to David Kolker, the former FEC lawyer, he twice used the phrase “libertarian bad boy.”

“He’s just generally opposed to government regulation,” said Larry Noble, who served as general counsel of the FEC for 13 years. Given McGahn’s distaste for rules, Noble said, it’s hard to see him embracing the part of the job that involves teaching the president and the White House staff about ethics. “I think he brings to the White House a philosophy that these rules are unimportant,” Noble said.

The pairing of McGahn and Trump promises to be a volatile combo. On one side, there is a president who is utterly uninterested in the ethical dimensions of his actions. On the other is a lawyer whose instinct has always been to deny the legitimacy of rules as long as a plausible case could be made for doing so. In other words, the man tasked with telling the president “no” when he goes too far seems likely to tell him “yes” no matter how far he goes. Instead of a risk-averse guardian angel—what a White House counsel is supposed to be—Trump has a legal genie in a bottle prepared to deliver him the world.  

In a Times profile published in December, a law professor who had worked with McGahn on election issues said he couldn’t imagine him being a yes man to Trump. But that’s probably not the kind of failure this White House counsel will be susceptible to. 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.

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Despite his reputation as a freewheeling cowboy, McGahn has largely stayed out of the public eye even as the president’s other close advisers, such as Steve Bannon, Jared Kushner, Kellyanne Conway, and Stephen Miller, have become well-known characters in the Trump show. His absence has been so glaring that the American Lawyer recently ran a blog post under the headline, “Yo, Where’s Don McGahn?”

Harvard Law School professor Jack Goldsmith, meanwhile, who worked closely with the White House general counsel while serving in the Justice Department under the Bush administration, has argued that the bungled rollout of Trump’s immigration order suggested McGahn was either giving the president terrible advice or was simply being ignored.

Another possibility is that McGahn has been giving Trump exactly the kind of advice Trump wants to hear, and Trump has been happily following it. Judging by McGahn’s record at the FEC—former Obama counsel Bob Bauer recently wrote, in a column defending McGahn, that he sometimes “built implausible theories or advanced questionable arguments to block enforcement action”—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.

The cartoonish dysfunction that has plagued Trump’s administration so far suggests that whatever legal magic McGahn has tried to sprinkle over the president’s problems has not been working as advertised. Though the FEC is less than a mile from the White House, Don McGahn is now a very long way from home.

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