What to make of the White House counsel’s cooperation with Mueller

The New York Times reports that White House Counsel Don McGahn was interviewed for something like 30 hours total by Robert Mueller’s team. According to the Times, President Trump agreed to have McGahn questioned by Team Mueller without conditions or limitations.

I have several observations about the Times’ article. First, the decision not to object to the interview of McGahn, or at least try to negotiate ground rules and limitiations, strikes me as a monumental blunder.

The Times says Trump consented because his first team of criminal lawyers wanted to collaborate fully with Mueller. They believed their client had nothing to hide and that they could bring the investigation to an end quickly.

This was a serious miscalculation. It doesn’t matter for these purposes whether you believe your client has nothing to hide. What matters is whether the prosecutors believe this. Prosecutors, by their nature, seldom have that belief. In this case, moreover, it should have been obvious that Mueller and his partisan team never believed Trump has nothing to hide.

Nor was having McGahn talk for hours and hours reasonably calculated to bring Mueller’s investigation to a quick end. On the contrary, it was always likely to provide the prosecutors with new pieces of information to check out and new angles to pursue. You don’t curtail an investigation by feeding it.

It’s not clear that Trump and his lawyers could have prevented Mueller from interviewing McGahn. The White House lawyer is not Trump’s lawyer — whatever Trump might think — so the attorney client privilege doesn’t apply. However, executive privilege might. Trump’s lawyers should have asserted it, and anything else they could assert with a straight face. If nothing else, doing so probably would have limited the scope of Mueller’s inquiry.

The Times claims that McGahn, stunned by Trump’s willingness to have the interview take place, suspected that Trump consented in order to make McGahn the fall guy. I don’t whether this is true. But McGahn must have wondered why intelligent lawyers and an intelligent president were acceding to a carte blanche interview.

Second, I have no doubt that McGahn answered Team Mueller’s questions fully and honestly. I’m confident he wouldn’t sacrifice his reputation, not to mention risk criminal jeopardy, in order to cover up for Donald Trump.

There’s a good chance McGahn didn’t think his answers would place Trump in jeopardy (see below). But either way, McGahn was going to answer honestly and let the chips fall where they may.

Third, it seems unlikely that McGahn’s answers can form a valid basis for alleging criminality by Trump. The Times reports:

Mr. McGahn gave to Mr. Mueller’s investigators, the people said, a sense of the president’s mind-set in the days leading to the firing of Mr. Comey; how the White House handled the firing of the former national security adviser, Michael T. Flynn; and how Mr. Trump repeatedly berated Mr. Sessions, tried to get him to assert control over the investigation and threatened to fire him.

In the absence of truly extraordinary circumstances, asking the Attorney General to assert control over a crucial investigation, and threatening to fire him (but not doing so), is surely not obstruction of justice. Neither is firing Michael Flynn, regardless of how it was handled.

Apparently, Team Mueller sees possible obstruction of justice in the firing of Mueller’s former comrade-in-arms, James Comey. I don’t know how this exercise of presidential authority could be obstruction, given that (1) Comey told Trump he had found no evidence of unlawful conduct by the president and (2) the firing of Comey did not shut down the Russia investigation and was never likely to.

The Times says Team Mueller asked McGahn about his discussions with Trump regarding firing Mueller himself. No doubt. But Trump hasn’t fired Mueller. Thus, while the conversations about this subject must have been interesting, they are not the stuff of justice obstruction.

McGahn himself reportedly doesn’t see criminality in the president’s exercise of his authority to take such action as firing Comey and pressuring Jeff Sessions to engage in the Russia investigation. According to the Times:

Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.

I’m not sure whether that last clause is what McGahn told investigators or the Times’ editorializing. But there’s nothing particularly murky about the president’s authority to fire his FBI director and his national security adviser, or to pressure his attorney general to lead a key investigation.

Fourth, although it’s unlikely that McGahn’s answers can form the basis for valid allegations of criminality by Trump, Team Mueller may well have obtained information it will use to allege criminality. It’s likely that, during all of those hours spent questioning McGahn, Mueller’s team obtained nuggets with which, creatively, to spin out claims that Trump violated this or that law. I’m pretty sure that, at a minimum, they obtained politically embarrassing nuggets to include in their report.

This brings me back to my first point. Trump and his lawyers should never have consented to McGahn’s interview with Mueller’s team.

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