The former White House counsel’s emergence in the leak investigation seems to be less than meets the eye.
The former White House counsel’s emergence in the leak investigation seems to be less than meets the eye.
This is the fourth in a series of five columns on the recent revelations that the Justice Department, beginning in the Trump administration and continuing into the Biden administration, conducted investigations of leaks of sensitive information by government officials to members of the media. Those investigations reportedly involve subpoenas for communications records of several journalists, as well as other controversial information demands by investigators. Follow these links for the first, second, and third columns in the series.
P ace Jerry Nadler (D., N.Y.), the Trump nemesis who chairs the House Judiciary Committee, the congressional quest to compel testimony from Don McGahn, former president Donald Trump’s White House counsel, ended with a whimper. McGahn’s appearance before Nadler’s committee about three weeks ago was a dud: Heavily negotiated, it did not advance public knowledge about Trump’s actions during the Russiagate investigation beyond what had already been outlined in the Mueller report.
More surprising was the nearly contemporaneous revelation that McGahn’s communications were subpoenaed by the Justice Department even as he served as the top legal aide on the White House staff. Still, even that appears to be less than meets the eye: a story that would probably not be a story had it not arisen as news broke about Justice Department leak investigations, in which media communications were scrutinized in the effort to identify loose-lipped government officials.
It turns out McGahn concedes having been a source for a news report — but that was in connection with a trivial point about his own actions in the Mueller saga; it had nothing to do with the leaking of classified information.
The New York Times reports that a grand jury in the Eastern District of Virginia (EDVa) issued subpoenas to Apple for communications pertaining to accounts belonging to McGahn and his wife. Apple received the subpoenas on February 23, 2018, but the company did not notify the McGahns about them until last month. That’s because a federal judge authorized gag orders that barred Apple from alerting its customers.
Trump’s interactions with McGahn were occasionally stormy. As is often the case with former administration subordinates in that category, the former president’s diatribes against McGahn include the allegation that he played the Washington leak game. So . . . was the Trump Justice Department under Jeff Sessions, then the attorney general, investigating the administration’s own counsel?
Almost certainly not.
Sessions appears to have had a good working relationship with McGahn. Furthermore, Trump’s wrath over McGahn arose out of the Russia “collusion” investigation, for which (a) Sessions recused himself, and (b) McGahn cooperated with investigators at Trump’s own direction . . . only to have Trump later rail over how forthright McGahn had been. (The president never seemed to get that when a person has a legal privilege to decline cooperation, the options are to assert the privilege and refuse to cooperate or waive the privilege and cooperate fully — there is no “third way.”)
Those things aside, the most likely explanation is that the subpoenas served on Apple were only nominally from the Justice Department. They were probably issued by special counsel Robert Mueller’s staff.
Recall that, besides its focus on suspected (but never substantiated) ties between the 2016 Trump campaign and the Kremlin, Mueller’s investigators also examined whether President Trump obstructed their probe.
Paul Manafort, Trump’s campaign chairman, had been at the center of Russiagate. At around the time of the subpoenas to the McGahns, Manafort was indicted by Mueller’s team in the EDVa. (There were two Manafort indictments, one in EDVa and the other in the District of Columbia.) Mueller’s investigators are known to have extensively scrutinized Manafort’s communications. McGahn had been the lawyer for Trump’s campaign, so it makes perfect sense that Manafort would have been in communication with him for a variety of legitimate, benign reasons.
Thus the likelihood is that McGahn was not an investigative target at all. His Apple account, as well as his wife’s, probably came up in the examination of Manafort’s communications. Apple was no doubt subpoenaed as investigators undertook to identify the subscribers of email and phone accounts with which Manafort was in contact. This would be analogous to the situation we covered in the previous column in this series: that of Congressmen Adam Schiff and Eric Swalwell, who were probably not subjects of an investigation but were in contact with someone who was an investigative subject.
If the McGahn subpoena was connected to the Mueller probe, which involved a sensitive investigation and highly classified intelligence, that would explain why a judge would agree to issue gag orders that prevented telecom companies from alerting their customers.
The Times also floats the possibility that the subpoena could relate to an early 2018 controversy in which McGahn was embroiled: President Trump’s pressuring of McGahn to have Sessions fire Mueller over a purported conflict of interest. But the paper concedes that this is unlikely. McGahn declined to comply with Trump’s directive (which Trump then dropped); Mueller learned the details of the incident from McGahn’s extensive cooperation (again, at Trump’s direction), which included production of the White House counsel’s voluminous contemporaneous notes; and the unconsummated instruction to set Mueller’s removal in motion does not present the kind of circumstances that would trigger issuance of gag orders of the kind that Apple received.
The Mueller non-firing was, nevertheless, a matter of intense curiosity on the part of Chairman Nadler and other House Democrats, who hoped to impeach Trump on obstruction grounds despite the Mueller report’s having been, for them, a huge letdown.
Nadler attempted to force McGahn’s appearance in connection with the House’s impeachment investigation. The Justice Department properly took the position that, because he served as a top presidential aide and legal adviser, McGahn’s appearance presented significant executive and attorney-client privilege issues. The committee dubiously countered that these privilege claims could not withstand congressional information demands and that the Trump administration had waived any privilege by allowing McGahn to cooperate with Mueller. But the privileges at issue are rooted, in part, in constitutional separation-of-powers principles. They operate in the executive’s favor against the other branches, and the White House sensibly argued that they are not waived when privileged information is communicated within the executive branch but not outside of it. (Technically, a special counsel answerable to the Justice Department is part of the executive branch; Nadler’s committee, of course, is in the legislative branch.)
Nadler essentially struck out in trying to press the federal courts to enforce his committee’s subpoena to McGahn. As I detailed at the time, the most that can be seen as settled by the circuitous litigation was that former White House counsel might have been required to show up to a committee hearing. It was unclear, though, what would happen once he started refusing to answer questions on privilege grounds. The only thing that could be said for sure was that sorting this out would take a very long time.
Last year, in Trump v. Mazars, the Supreme Court reasoned that, while courts have the power to intervene in inter-branch squabbles, they should tread lightly, carefully weighing the burden on the presidency (including any constitutional privileges involved) against Congress’s purported investigative needs. As a practical matter, this means we’re back to square one: The two political branches must negotiate in these situations, as they had been doing for over two centuries before today’s congressional Democrats beseeched the judiciary to abet their pursuit of Trump’s financial records.
When Nadler recently boasted that, by finally securing McGahn’s appearance before the Judiciary Committee, the House had triumphed in a battle of wills against the executive, he was trying to make a sow’s ear look like a silk purse. In reality, not only did the Trump administration successfully ignore his subpoena, his fellow Democrats in the new Biden Justice Department merely let him save some face without conceding anything of substance. McGahn showed up, but only because the executive branch agreed to permit it . . . and only on the strict condition that the committee not ask about anything other than what was already publicly revealed in the Mueller report.
So, although the media naturally gave his testimony some sunshine, it was uneventful. McGahn told lawmakers what he’d told Mueller: Trump wanted to fire Mueller, McGahn thought it was a terrible idea, and in the end nothing happened. There was talk about what might happen if, Saturday Night Massacre-style, Trump had become insistent and started firing subordinates who refused to carry out an order to terminate the special counsel. McGahn was prepared to resign, but it never came to that. In the familiar scenario, Trump fulminated, but he relented.
McGahn thus told the committee he was “disappointed” by the former president’s claim that he (Trump) never suggested removing Mueller. In January 2018, when the Times and Post reported on the aborted effort, Trump pressured McGahn to deny that it had happened, but McGahn refused.
The former White House counsel further recounted that, even as Trump greenlighted his cooperation with Mueller, the president chided his counsel for having taken copious notes of his encounters with Trump, which were then shared with the prosecutor. Presidential subordinates, Trump believed, are supposed to leave the boss room for plausible deniability. Taking notes, he pointed out, was something Roy Cohn would never do — a reference to the late, infamous New York City lawyer who was something of a mentor when Trump was a young real-estate tycoon. McGahn told the committee that this was not the first time “the ghost of Roy had come into the Oval Office” during his tenure, so he just shrugged, not believing president’s “point [was] worth responding to.”
McGahn made clear that he did not believe Trump obstructed the investigation in the legal sense of that term, but that firing Mueller could have made it look as if he were obstructing. That would have damaged the administration’s capacity to govern, thus undermining the project to fill judicial vacancies with talented young conservative constitutionalists. That was Trump’s signature achievement, for which much gratitude is owed to McGahn, who spearheaded it on the White House end of Pennsylvania Avenue.
It turned out that Don McGahn was, indeed, a source for the Washington Post. When the news broke in early 2018 that Trump had pressured him to set Mueller’s firing in motion, McGahn was one of the unidentified “people familiar with the episode,” who clarified to the Post that he had not communicated his threat to resign directly to Trump. That, obviously, was not a leak of classified information — which is what the Justice Department was investigating when it issued the controversial subpoenas we’ve been covering in this series. There is no reason to believe McGahn has any involvement in those investigations.