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My Man, Don McGahn: The Smartest Lawyer in Trumpland

Vivia Chen

August 22, 2018

HqdefaultI know you're still trying to digest all that news about Michael Cohen and Paul Manafort, but let's not forget the recent fuss about White House counsel Don McGahn.

Believe it or not, McGahn is beginning to grow on me. Sure, I've accused him of being an ethics disaster, a ruthless careerist and a dreadful, awful White House counsel. But I now realize that he's so much more. For starters, he's emerging as one of the smarter—if not the smartest—lawyer in Trump's orbit. I mean, he's definitely more lawyerly and normal than Rudy Giuliani, Michael Cohen or Marc Kasowitz.

But before we get into the McGahn mystique, let's pause to consider some of the revelations in that New York Times article that detailed how McGahn "cooperated extensively" with special prosecutor Robert Mueller's investigation into the Russian probe. I won't go into all the gory details, so permit me to tell you what jumped out at me from the Times' piece:

- First, isn't it adorable that McGahn calls Trump "King Kong" behind his back? The Times says he gave Trump the moniker "to connote his volcanic anger." I bet Trump has his own nickname for McGahn, and it's far more vivid.

- Second, wasn't it generous of Trump to give McGahn the top White House legal job even though McGahn went to a no-name law school?  "His lack of a degree from a top law school bothered Mr. Trump," reports The Times. (McGahn got his law degree from Widener University's Commonwealth Law School, which is ranked #143 in U.S. World News & Reports. I know that's scraping the bottom of the pickle barrel, but, hey, at least it's ranked!)

 - Third, how refreshing that Trump's original lawyers (John Dowd and Ty Cobb) for the Mueller probe were so uncynical. They decided to cooperate fully with Mueller, allowing him to interview McGahn, because they thought it would bring a speedy end to the investigation. Apparently, "they took Mr. Trump at his word that he did nothing wrong and sold him on an open-book strategy," according to The Times. 

Wow. Imagine having such faith in a savvy opponent and a client who's known to be a congenital liar! They sure don't make lawyers like that anymore.

We can analyze the wisdom of Dowd and Cobb's tactics until the cows come home, but let's get back to McGahn. You'll have to read the entire Times article to understand how McGahn and his lawyer William Burck decided to cooperate with Mueller, but the bottom line is this: They feared that Trump would throw McGahn under the proverbial bus. Reports the Times: 

They began telling associates that they had concluded that the president had decided to let Mr. McGahn take the fall for decisions that could be construed as obstruction of justice, like the Comey firing, by telling the special counsel that he was only following shoddy legal advice from Mr. McGahn.

Despite what Rudy says, no one knows for sure what McGahn told Mueller. The only thing that's coming out loud and clear is that neither Trump nor McGahn trusts/likes/respects each other.

Which leads to this overwhelming question: Why is McGahn still at the helm of the White House counsel's office? 

I think McGahn is hanging on for two reasons. First, he's trying to make himself over as the un-Trump so that he can be more palatable to the outside world. Even without Trump throwing him under the bus, McGahn's finger prints can be spotted on some unsavory episodes—like his decision to ignore Sally Yates' warning about Michael Flynn and his role in the Comey firing, plus the countless ethics violations of the administration.

Second, I think McGahn loves the job—namely, the way he gets to play God. Like Jeff Sessions, the other thorn in Trump's side who won't quit, McGahn is wielding powers beyond his wildest dreams. By all accounts, he's the decider on Supreme Court nominees, and he's credited with the smooth confirmation process for Neil Gorsuch. And, now, of course, he's overseeing Brett Kavanaugh's nomination to the High Court.

Despite his controversial role in the Trump administration, I doubt McGahn is sweating that clients will run away from him. He had a lot of super conservative clients (among them was the National Rifle Assiciation), and they're probably fine with him. My bet is that he can probably go back to his former firm Jones Day anytime. (Elie Mystal of Above the Law has some keen insights on this.) Everyone knows that Trump is a handful, so who's going to hold his minions accountable?

So, it's the power that must be intoxicating to McGahn. After all, how often does a graduate of Widener Law School get to sit in judgement of top graduates of Harvard or Yale law schools for the highest position of the judiciary and decide the fate of a nation?

 vchen@alm.com

Twittter: @lawcarerist

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About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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