Don McGahn Served His Own Interests, Not the President’s

(Bloomberg Opinion) -- Lawyers are not supposed to disclose conversations with their clients, at least not without a fight over attorney-client confidentiality. Senior presidential advisers aren’t supposed to discuss consultations with their boss, at least not without first asserting executive privilege. Yet we now know, thanks to the New York Times, that White House Counsel Don McGahn has been cooperating with Robert Mueller’s investigation of Donald Trump. Why is the world of normal procedures being turned upside down?

There’s a technical answer; and then there’s the deeper logic (or illogic) behind it: the bizarre nature of decision-making in the Trump presidency.

There’s also a lesson for future White House counsels: They should be obligated to warn the president that their own testimony may harm the presidency. McGahn should have done this. If he didn’t, that would be a serious conflict of interest.

The technical explanation of why McGahn hasn’t been bound by attorney-client confidentiality or executive privilege is that his client and boss waived both privileges. That can happen, legally speaking, because both forms of privilege in this instance belonged to President Trump, not McGahn. The client owns attorney-client confidentiality, not the lawyer. So the client can decide to allow his lawyer to speak freely. Ditto for executive privilege, which can be waived by the president.

The deeper explanation for the McGahn interviews is that Trump’s decision to waive privilege is itself genuinely bizarre.

There seems to be some uncertainty on whether Trump’s waiver was made with full understanding of the consequences. Trump unsurprisingly tweeted that he knew exactly what he was doing:

Yet McGahn’s own lawyer, William Burck, apparently told some of Trump’s advisers that the decision to allow McGahn to be interviewed by Mueller without a fight over privilege was “insane.” That suggests Trump cannot really have understood the full meaning of the interviews.

Indeed, the New York Times article suggests that Trump didn’t understand that McGahn wasn’t his personal lawyer who would simply argue on his behalf, but rather the lawyer for the presidency. If so, that would be further evidence of his confusion.

If the waiver was part of a conscious “hide nothing” strategy, it’s still pretty strange. There are independent, good reasons that a White House counsel shouldn’t be speaking about presidential decisions to an investigation.

For example, even if, as Trump insists, he had nothing to hide, it still sets a bad precedent for the White House counsel to be interviewed so extensively without a subpoena. How, after all, can a lawyer provide good counsel to a president when he’s testifying on matters that might implicate the president in serious wrongdoing?

Don’t take my word for it. In a remarkable essay, Bob Bauer, who served as White House counsel under Barack Obama, asked: “What does it mean for a White House counsel to continue to attempt to function effectively in that role when he is also a highly consequential witness in a criminal inquiry involving the president?”

Bauer is clearly worried about what the situation means for the office of the White House counsel. It is “without precedent in the history of the counsel’s office,” he wrote.

That’s putting it mildly. Although the White House counsel is a government lawyer who owes his duty to the presidency and to the president acting in his official capacity, the counsel’s office couldn’t function without confidentiality.

Even if McGahn weren’t a lawyer, he’d still be presidential adviser whose conversation would be protected by executive privilege. In the past, presidents of both parties have tried to defend executive privilege as a matter of principle, and in defense of the office.

Maybe Trump doesn’t care about the privileges of the office, but he has a further reason to protect executive privilege: He will have to assert it in order to avoid being subpoenaed himself. So it’s especially weird that he would choose not to assert the privilege with regard to McGahn.

All this leads to the lesson for the future: McGahn should have himself told Trump not to let him be interviewed. The interests Trump has in McGahn not speaking to Mueller aren’t only personal. There are strong institutional reasons. McGahn’s job is to stand up for those interests.

Thus McGahn was genuinely put in a conflict-of-interest position by the request from the special counsel. Personally, he had reason to agree, so he doesn’t look guilty. But in his job he should have put the presidency above his own interests. Not Trump in his personal capacity, but the office itself — his true client.

Future White House counsels take note. When you’re asked to act against the long-term interests of the office, tell your client not to let you.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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