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Yo, What Happened to Don McGahn?

Vivia Chen

February 13, 2017


First, let us all pause for a moment of silence for Sean Spicer, the White House spokesperson. Not only does he have to get behind a podium almost daily to defend President Trump about the size of his crowds and other silliness, but he's also being mercilessly mocked by Melissa McCarthy, who plays him on Saturday Night Live. Even though his press briefings now rival soap operas in TV ratings, Spicer clearly isn’t enjoying the ride.

Poor Spicer. Why is he getting all the heat, when he’s just delivering the message from the Trump administration?

Which brings me to someone who should bear responsibility but seems weirdly off the radar: Donald McGahn, the White House counsel.  (We asked the White House to comment about McGahn, but have not received a reply.) A Beltway insider, McGahn hails from Jones Day's Washington office (before that, he was a partner at Patton Boggs) where he's developed an expertise in election law and represented politicians charged with ethics violations, including former House Majority Leader Tom DeLay.

Clearly, McGahn is no ethics virgin. But he seems missing in action when it comes to the ever-mounting conflicts of interests involving this presidency. Where was he when Kellyanne Conway told viewers on TV (with the White House logo behind her!) to buy Ivanka's products? When Trump lashed out at Nordstrom for dropping Ivanka's fashion line? Or when Melania sued a British tabloid claiming she lost millions of dollars to cash in on her celebrity (read "First Lady") status because the paper accused her of having once worked as an escort?

Folks, these aren't "subtle" conflicts involving the First Family, but big, glaring, bald-faced ones.  Someone seems not to be doing his job, so let's ask who should be on the hot seat.

"The White House counsel in any administration is accountable for ethical lapses, and should help White House senior staff avoid unforced errors that harm the President’s agenda," says Boies Schiller partner Michael Gottlieb, a former associate White House counsel under President Obama. "Conway’s public endorsement of the Ivanka Trump brand was just that—an unforced error that could have been easily avoided."

Typically, the White House counsel briefs senior officials about potential conflicts from the get-go. "During the Obama administration, there was a serious push in the first few weeks to counsel senior staff on compliance with federal laws and regulations," says Gottlieb.

How much of that took place in the Trump administration is an open issue. For instance, in the aftermath of Conway's exhortation to buy Ivanka, Spicer said, "Kellyanne has been counseled." There was a lot of speculation what "counseled" meant: Was she reprimanded? Sent to her room to think about her actions? Offered therapy? But to me, it sounded like she was getting an ethics 101 class for government officials. Belatedly.

Was that just an oversight by McGahn and his staff? Maybe. Maybe not. Indeed, according to a Dec.12, New York Times profile, McGahn believes that Trump's businesses can coexist with his role as president, leading the real estate mogul to say, "the law is totally on my side, meaning the president can’t have a conflict of interest." (Please, will someone explain to me why the president is exempt from conflicts of interest laws?)

But Gottlieb, the former Obama counsel, is not unsympathetic to McGahn. "He is in a really tough position. It is fair to hold the White House counsel accountable for ethical lapses, but it’s also fair to ask whether his ultimate client will listen to and follow legal advice when it is inconvenient."

So who knows what's going on? Is Trump just not listening to his lawyer? Or is McGahn telling Trump to push the ethics envelope? In any case, I wish McGahn would speak up and own this mess.

Getting back to Spicer: Maybe we shouldn't pick on him so hard. But that doesn't mean Melissa McCarthy should stop what she's doing.

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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: [email protected]

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