HOUSE_OVERSIGHT_021143.jpg

3

LAWYERS

There was a running sweepstakes or office pool for the unhappiest person in the White House. Many had held the title, but one of the most frequent winners was White House counsel Don McGahn. He was a constant target for his boss’s belittling, mocking, falsetto-voice mimicry, and, as well, sweeping disparagements of his purpose and usefulness.

“This is why we can’t have nice things,” McGahn uttered almost obsessively under his breath, quoting the Taylor Swift song to comment on whatever egregious act Trump had just committed (“. . . because you break them,” the song continues).

McGahn’s background was largely as a federal election lawyer. Mostly he was on the more-money, less-transparency side—he was against, rather than for, aggressive enforcement of election laws. He served as the counsel to the Trump campaign, arguably among the most careless about election law compliance in recent history. Before joining the Trump administration, McGahn had no White House or executive branch experience. He had never worked in the Justice Department or, in fact, anywhere in government. Formerly an attorney for a nonprofit affiliated with the Koch brothers, he was known as a hyperpartisan: when Obama’s White House counsel, Kathy Ruemmler, the previous occupant of McGahn’s office, reached out to congratulate him and to offer to be a resource on past practices, McGahn did not respond to her email.

SIEGE 39

One of McGahn’s jobs was to navigate what was possibly the most complicated relationship in modern government: he was the effective point person between the White House and the Department of Justice. Part of his portfolio, then, was to endure the president’s constant rage and bewilderment about why the DOJ was personally hounding him, and his incomprehension that he could do nothing about it.

“It’s my Justice Department,” Trump would tell McGahn, often repeating this more than dubious declaration in his signature triad.

Nobody could quite be certain of the number of times McGahn had had to threaten, with greater or lesser intention, to quit if Trump made good on his threat to fire the attorney general, the deputy attorney general, or the special counsel. Curiously, one defense against the charge that the president had tried to fire Mueller in June 2017 in an effort to end the special counsel’s investigation—as the New York Times claimed in a January 2018 scoop—was the fact that Trump was almost constantly trying to fire Mueller or other DOJ figures, doing so often multiple times a day.

McGahn’s steadying hand had so far helped avert an ultimate crisis. But he had missed or let slip by or simply ignored a number of intemperate, unwise, and interfering actions by the president that might, McGahn feared, comprise the basis of obstruction charges. Deeply involved with the conservative Federalist Society and its campaign for “textualist” judges, McGahn had long dreamed himself of becoming a federal judge himself, but given the no-man’s-land he occupied between Trump and the Justice Department—not to mention Trump’s sometimes daily attacks on the DOJ’s independence, which McGahn had to accept or condone—he knew his future as a jurist was dead.

* * *

Fifteen months into Trump’s tenure, the tensions between the administration and the Department of Justice had erupted into open conflict. Now it was war—the White House against its own DOJ.

Here was a modern, post-Watergate paradox: the independence of the Justice Department. The DOJ might be, from every organizational and statutory view, an instrument of the White House, and, as much as any other agency, its mission might appear to be driven by whoever held

HOUSE_OVERSIGHT_021143