As a businessman, Donald Trump has long leaned on lawyers to fix messes. As a president, he’s giving his top White House lawyer an epic cleanup job.
White House counsel Don McGahn is navigating the president through a Senate investigation into his associates’ ties to Russia, the latest allegation that Trump himself leaked highly classified information to Russian officials in the Oval Office, the sudden firing of a FBI director and Trump’s suggestion that he may be taping conversations — to name just a few legal flare-ups of the past week.
The workload is piling up by the day for McGahn, a longtime Republican campaign lawyer and former commissioner at the Federal Election Commission, who already had been amassing power inside the White House by shaping major hiring and policy decisions on everything from Cabinet picks to the Paris climate talks to a regulatory rollback. Some former associates and other government lawyers are questioning whether navigating the legal and political fallout from the president’s actions is too much for McGahn to handle.
The White House counsel should be “putting out fires, not starting them,” said Ellen Weintraub, a FEC commissioner who served alongside McGahn from 2008 to 2013, his only other federal government experience. “He was a chaos agent at the FEC. One hopes he is not a chaos agent at the White House.”
McGahn’s fitness for the job is a significant matter because his office of roughly 26 attorneys provides the administration with the intellectual underpinning for its most significant decisions: from the military strikes in Syria to the legality of the travel bans and immigration executive orders to the vetting of political appointees and policing of conflicts-of-interest. So far, the White House has a mixed track record on these decisions, which fall under McGahn’s purview and many of which are outside his areas of past legal work.
“The evidence seems strong that McGahn has exercised bad judgment during his brief tenure as White House Counsel,” Jack Goldsmith, former assistant attorney general under President George W. Bush, wrote in a series of scathing blog posts about McGahn’s effectiveness.
McGahn’s starring role at the White House came into sharper relief last week. He was among the tiny group of advisers involved in the initial discussions leading up to the Comey firing, according to two sources familiar with the situation. That move has caused huge political headaches for the White House. Some House Democrats say the president may have obstructed justice by firing the head of the FBI in the middle of its investigation into Russian interference in the 2016 election.
McGahn and the White House press office did not respond to requests for comment.
The counsel’s central role in the handling of the ouster of former National Security Adviser Michael Flynn also came to light last week, when the former acting attorney general, Sally Yates, testified before the Senate Judiciary subcommittee. There, she described a handful of exchanges during which she alerted McGahn to the fact that Flynn could be compromised by the Russians. It then took the White House 18 days to fire Flynn.
"One of the questions that Mr. McGahn asked me when I went back over the second day," Yates told the senators, "was essentially, why does it matter to DOJ if one White House official lies to another White House official?"
On a daily basis now inside the West Wing, McGahn is flexing his power on both personnel and policy decisions — despite problems the Comey and Flynn firing brought for the White House.
His friends and fellow lawyers say he’s well-equipped to play a leading role as a trusted legal and political adviser.
“McGahn is involved in everything. I am not exaggerating,” said longtime friend Randy Evans, chairman of the Republican National Lawyers Association. “When you prove to be a reliable voice, who not only gives good legal answers but also good political ones, that is increasingly what happens. You get called on more and more.”
On hiring, McGahn must approve every lawyer within each agency’s general counsel’s office, down to the most junior member. This gives him ties to a “remarkable number of lawyers in the executive branch,” said Michael Toner, a former FEC chairman and partner at the law firm of Wiley Rein who has also known McGahn for years.
McGahn handpicked Alexander Acosta as the next labor secretary after Trump’s first selection, Andy Puzder, withdrew from the process following allegations of domestic abuse.
He even has his fingerprints on picking an independent energy regulator, pushing for a former colleague from his law firm, Kevin McIntyre of Jones Day, who co-leads the firm’s global energy practice, to join the Federal Energy Regulatory Commission. This group regulates regional electricity markets and interstate natural gas infrastructure.
Outside the executive branch, McGahn is moving to radically reshape the entire judicial system by hand selecting over 100 judges to fill lower court vacancies. That’s a move past White House counsels like C. Boyden Gray also undertook during President George H.W. Bush’s term, though not with the same level of autonomy McGahn has enjoyed.
“McGahn’s influence on judgeships is very substantial,” said Newt Gingrich, former speaker of the House and informal adviser to the president. “Trump is a guy who likes to win, and he likes people around him who win. Getting so much praise on the judgeships from conservatives makes Trump happy and makes McGahn look good.”
McGahn also shepherded Neil Gorsuch through the Supreme Court confirmation process, one of the longest-lasting policy moves a president can make and one of the few highlights of Trump’s first 100 days in office. This helped to earn him a reputation as one of the “grown-ups” within the administration, said one person close to the White House.
In recent weeks, McGahn’s imprint on policy has also started to become apparent.
McGahn played a central role in the closed-door debate over whether to withdraw from the 2015 Paris climate change agreement. During a pair of recent meeting with administration aides, McGahn privately raised concerns about the legal implications of remaining in the accord, arguing it could give Trump’s opponents fodder for their inevitable legal challenges to the EPA’s efforts to undo President Barack Obama’s climate change regulations.
State Department lawyers and administration officials who support staying in the agreement were aghast at McGahn’s legal interpretation, and they fear it could signal that Trump will ultimately pull out.
He’s also taken a leading role in pushing the administration’s efforts to examine and trim back the federal government’s broad array of regulations, according to Leonard Leo, executive vice president of the Federalist Society who took a leave to advise Trump on the Supreme Court and worked closely with McGahn on the confirmation fight. “Every White House counsel has enormous influence, and Don McGahn is no exception to that,” Leo said.
Back in March, McGahn told Time he specifically handpicked some members of his legal staff for their expertise in federal laws and regulatory agencies. “A number of people in the office actually have sued the government over regulatory over reach, and have won,” he said.
“I don’t see anything unusual in what he is doing,” said Gray when asked how this White House counsel’s office compared to earlier ones. “He has got a good team, and he was able to do some of what he has done because he was quick to assemble that team.”
Andrew Restuccia and Darius Dixon contributed to this report.