Trump Didn’t ‘Allow’ McGahn to Testify

Over the weekend, the New York Times broke quite the blockbuster story.

The White House counsel, Donald F. McGahn II, has cooperated extensively in the special counsel investigation, sharing detailed accounts about the episodes at the heart of the inquiry into whether President Trump obstructed justice, including some that investigators would not have learned of otherwise, according to a dozen current and former White House officials and others briefed on the matter.

In at least three voluntary interviews with investigators that totaled 30 hours over the past nine months, Mr. McGahn described the president’s fury toward the Russia investigation and the ways in which he urged Mr. McGahn to respond to it. He provided the investigators examining whether Mr. Trump obstructed justice a clear view of the president’s most intimate moments with his lawyer.

So far, the defense from the president has been that he “allowed” McGahn to testify. In his interview with NBC’s Chuck Todd on Sunday, Rudy Giuliani suggested that was in the interest of transparency, given that McGahn could have claimed either executive or attorney-client privilege. But that rests on the idea that the White House counsel serves as the president’s lawyer, which isn’t true. Here is former White House Counsel Bob Bauer on this matter:

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.

Since Trump believes that the FBI and the Attorney General are there to protect his interests rather than serve the cause of justice, it should come as no surprise that he would assume the same thing about the White House counsel’s office. McGahn’s job, however, is to defend the presidency, not the president. If Trump had tried to stop him from talking to the special prosecutor, Mueller could have compelled him to do so.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.