In an article written by Michael Schmidt and Maggie Haberman on August 18, the New York Times reports that White House Counsel, Don McGahn, “has cooperated extensively in the Mueller inquiry.” That headline would lead most reasonable people to conclude that McGahn is providing damaging information about the President to Special Counsel Robert Mueller. A close examination of the article reveals otherwise. Unfortunately, in today’s day and age, headlines are everything.
The article does not contain specifics about any of the subjects McGahn reportedly discussed with Mueller’s team. The article reports that McGahn gave the Mueller team at least three interviews, totaling 30 hours. The article characterizes the information McGahn shared in these interviews as providing “a clear view of the President’s most intimate moments with his lawyer,” but leaves it at that.
{mosads}According to the article, McGahn spoke to the Mueller team about the President’s “comments and actions during the firing” of former FBI Director James Comey; the President’s “obsession with putting a loyalist in charge” of the Russia investigation; and the President’s “attempts to fire” Mueller. Again, the article does not provide any specifics, but suggests McGahn gave the Mueller team “a mix of information both potentially damaging and favorable to the President.” What is the damaging and favorable information?
The only reference in the article to McGahn’s actual statements to investigators is that he never saw the President “go beyond his legal authorities.” Is that not game over? It is fair to say a more accurate headline would have been, “White House Counsel cautions investigators that Mr. Trump never exceeded his authority.” Clearly McGahn is not testifying against the President—and that would be the case if he spoke to investigators for 300 hours instead of 30.
Who leaked this story to the New York Times? Obviously not the President or his legal team, given the inferences the article raises. I am not suggesting it was done by Mueller’s team either, but the answer really does not matter now that the story is out. The President’s legal team must deal with the unsupported inference that McGahn gave the Mueller team damaging information about the President.
It is important to keep in mind that McGahn was permitted to speak with the Mueller team only because the President allowed it and did not assert attorney-client or executive privilege. Wouldn’t a President with something to hide claim privilege and do everything possible to keep White House Counsel from talking to Mueller? The President did just the opposite. He took the unusual step of allowing White House Counsel to speak freely. The President’s legal team made the reasonable decision to allow McGahn to meet with Mueller, with the expectation that full cooperation would bring a quicker end to the investigation.
Where pundits go wrong is comparing this situation to that of John Dean. Dean was White House Counsel during the Watergate scandal, about which I am intimately familiar because I am a former Watergate assistant prosecutor. John Dean was concerned that his superiors in the White House would make him a scapegoat and put the entire blame for the Watergate cover-up on him.
Per his tweets, Dean further spread the unsupported speculation that McGahn is testifying against the President.
The President, in his own unique way, called out the article for suggesting McGahn was a “John Dean type rat.”
While I would not use those words, I think the President is correct in saying Don McGahn’s position is totally different from the one John Dean put himself in. They are not comparable. John Dean was involved in criminal activity. He participated in the payment of hush money to some of the Watergate burglars. He then pled guilty to obstruction of justice related to the cover up surrounding the Watergate break-in.
In contrast to John Dean, there is nothing to suggest that McGahn has any criminal exposure or that he has information damaging to the President. If McGahn has information proving or suggesting that the President obstructed justice, he would have ethical and legal problems that would likely require his resignation as White House Counsel.
Contrary to the inference raised by the article’s headline—and it is worth re-stating— McGahn told Mueller’s team that the President never went “beyond his legal authorities.” During this time of enflamed passions, the public should be focused on proven facts, not unfounded comparisons to past scandals and their participants.
Jon A. Sale was an assistant special prosecutor to Archibald Cox and Leon Jaworski during the Watergate investigation. He served as assistant U.S. Attorney for the Southern District of New York and the District of Connecticut, and as chief assistant U.S. Attorney for the Southern District of Florida. He is now of counsel and one of the co-chairs of the national white collar and government investigations practice group in the Miami office of Nelson Mullins Broad and Cassel.