The New York Times reports that White House Counsel Don McGahn has interviewed extensively with the special counsel, cooperating with the president’s consent but perhaps more extensively than President Trump may have anticipated. The result may be a further strain on what, according to the Times, was already a difficult working relationship. One source of the tension appears to be the president’s expectation of loyalty from a counsel who maintains a different view of his function—namely, that the White House counsel represents the office of the presidency and not the individual now occupying it.
It seems that relationship between lawyer and president is also, in this instance, infected with mistrust. McGahn and his attorney are reported to have concluded that he should go the extra mile and tell Special Counsel Robert Mueller all he knows out of a concern that the president might have been preparing to blame McGahn—and specifically, his “shoddy advice”—for any legal issues Trump faced over alleged obstruction of justice in the Russia matter.
While remarkable reporting in a number of respects, the Times account of the Trump-McGahn relationship leaves open or unclear a number of key points about the role and obligations of the White House counsel in these circumstances.
A White House counsel is not in a position to reject or ignore a special prosecutor’s request for information relevant to an ongoing criminal investigation. The law on the fundamental point is clear. Precisely as the Times describes McGahn’s understanding of his role, the White House counsel is a government employee, not personal counsel to the president. Courts presented with the question have ruled that, in a criminal investigation, the attorney-client privilege does not shield a White House counsel from providing his or her evidence. Neither is executive privilege a safe harbor if the government can demonstrate need for the information and its unavailability from other sources.
The Clinton administration litigated and lost both privilege claims in defending against the independent counsel investigations. [Continue reading…]