Whose Lawyer is he, Anyway?

August 19th, 2018

McGahn’s Weird Ethical Boundaries

Today I read that Don McGahn, our White House Counsel, is attracting spitballs for talking to Grand Inquisitor Mueller. At first, I didn’t understand the fuss. After all, White House Counsel is a government job, and from the title, one would think he was the attorney for the White House, not the president. If that’s true, then he shouldn’t be worrying about Donald Trump’s personal accountability or the accountability of any of his underlings. Those people would not be his clients.

I checked the all-knowing (!) Wikipedia, however, and I found that the WHC’s job (“White House Counsel” is so hard to type) is to “advise the President on all legal issues concerning the President and his Administration.” That’s very broad. It would appear to encompass efforts to impeach or prosecute the president or anyone who works for him.

Wikipedia also says the WHC is not supposed to get involved in the president’s “personal” legal affairs.

I’ll just say it. I don’t care if other lawyers say I’m stupid. I believe it is impossible for the WHC to “advise the President on all legal issues concerning the President and his Administration” without getting involved in the president’s personal legal affairs. It will not always be possible to disentangle them.

What if the president is indicted or threatened with indictment by a partisan prosecutor, based on things the president did in the course of his duties? Is the WHC supposed to sit on his hands with a sock in his mouth? I don’t think a good lawyer would be able to stand that. A threat to the president that may result in impeachment or conviction in court is certainly a threat to the administration itself and to the institutions of the White House and executive branch.

If Barack Obama had molested a 12-year-old, the WHC could have stayed out of it with no qualms. But what if one of his male aides had sued him personally for sexual harassment on the job? Hmm. That would be tied very tightly to the safety of the entire administration, and it could raise constitutional issues. It could be an attempt at voter nullification (like the frivolous attacks that drove Sarah Palin to quit), and the power to vote is a pillar of our political system. Is that purely personal?

Here’s what I think will happen. We will find out more about what Don McGahn said to Mueller’s flying monkeys, and it will turn out that McGahn did his best to walk a thin line between representing Donald Trump the president, plus his administration and the executive branch, and Donald Trump the man. Prosecutors being what they are, it will turn out that Mueller’s goons asked a lot of improper questions that were relevant only to things that were not closely tied to Trump’s presidential activities, and it will also turn out that McGahn refused to divulge anything.

I don’t know, but I’ll bet Trump would not want a government lawyer representing him with regard to personal problems. Government lawyers tend to be mediocre (judges in particular are notorious for their stupidity), and Trump can afford the best. On the other hand, he did pick Michael Cohen, and he is also relying on Rudy Giuliani, who seems to have forgotten how to practice law.

Place your bets, and we’ll see how good a fortune-teller I am.

More

Looks like I am not alone in wondering about the obligations of the government lawyers surrounding the president. Chris Christie has opined.

Chris Christie may be annoying, but he is also extremely sharp, and he was a federal prosecutor. That means he knows what Mueller is trying to do, because he used to do it to people, himself. Christie says Trump’s legal team is “C-level.”

Christie says Ty Cobb and John Dowd, who handled things early on, waived privilege unnecessarily. That’s malpractice, people. It’s a major thing. Christie thinks McGahn is now obligated to reveal things he could otherwise have kept to himself.

Alan Dershowitz also piped up. He is more gentle than Christie, saying Trump’s lawyers made “a tough call” that didn’t work out.

Dershowitz may be a legal genius (if such a thing exists), but Christie is no lightweight (oops), and unlike Dershowitz, he was a career attorney, not a professor who occasionally appeared in court.

Interesting stuff.

Well. Interesting for legal matters. That’s like saying “more interesting than a test pattern.”

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