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Promoted from the diaries by streiff. Promotion does not imply endorsement.
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Don McGahn was White House Counsel until President Trump hastened his departure in 2018. McGahn features prominently in the Mueller Report released this week. In my view, the Mueller Report reflects poorly on McGahn, and contrasts with his successful work on judicial nominations. President Trump waived attorney-client privilege and encouraged McGahn to fully cooperate with Mueller, but what McGahn told Mueller reveals that McGahn had made very serious errors as White House Counsel.

As best I can tell, the critical time period was around June 17, 2017. Trump telephoned McGahn and said (per McGahn’s recollection), “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel” (see Mueller Report, Volume 2, pp. 86 and 117). Trump later disputed that this was exactly what he said, but let’s suppose Trump said something very close to that. Of course, Deputy Attorney General Rod Rosenstein would have had to fire Mueller if Rosenstein agreed with Trump that there was a serious conflict of interest. The quoted sentence does not sound like an order to agree that there were conflicts. At most, it sounds like an order to fire Mueller if Rosenstein agreed there were conflicts.

So, what did McGahn do? He did not ask the President to clarify, he did not carry out the order, he did not warn the president that the order could be considered illegal, he did not tell the president that he was defying the order, and he did not resign in protest. This is the antithesis of what a White House Counsel is obliged to do.

Even if Trump had clearly ordered Mueller fired without relying on any purported conflicts of interest, that very likely would have been well within the president’s authority. And, as volume one of the Mueller Report plainly shows, the whole investigation of Trump collusion with Russia to win the 2016 election was so baseless that not even an aggressive team of federal prosecutors would even bring charges, much less win the case. Trump very reasonably believed that the purpose of the Russia investigation was to delegitimize his presidency.

On September 5, 2018 the New York Times published an extraordinary and anonymous opinion piece titled, “I Am Part of the Resistance Inside the Trump Administration; I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.” McGahn denied writing the opinion piece. Maybe so, but his actions seem to have been much alike.

UPDATE (May 12, 2019): Here’s a transcript of Attorney General William Barr’s testimony to the Senate Judiciary Committee on May 1, 2019 in which Barr addressed Trump’s discussion with McGahn about Mueller’s purported conflicts of interest, and Trump’s later request that McGahn rebut a New York Times report that Trump had given an order to fire Mueller:

[T]he president later said that what he meant was that the conflict of interest should be raised with Rosenstein but the decision should be left with Rosenstein. On the other end of the spectrum, it appears that McGahn felt it was more directive, and that the president was essentially saying, “Push Rosenstein to invoke a conflict of interest to push Mueller out.” Wherever it fell on that spectrum of interest, the New York Times story was very different. The New York Times story said flat out that the president directed the firing of Mueller; told McGahn “Fire Mueller.” Now, that — there’s something very different between firing a special counsel outright, which suggests ending the investigation, and having a special counsel removed for conflict, which suggests that you’re going to have another special counsel.

The New York Times has another article dated May 10, 2019 titled “White House Asked McGahn to Declare Trump Never Obstructed Justice.” According to the Times, McGhan declined that request, even though “Mr. McGahn had told investigators that he believed the president never obstructed justice.” Very strange.