Below is my column in The Hill newspaper on the departure of White House Counsel Don McGahn. Trump is now strongly suggesting that he may allow Attorney General Jeff Sessions to remain but only until after the approaching November elections. At that point, the situation could change rapidly and dangerously with a divided Congress. With the expected departure of both McGahn and Sessions, the next chapter appears a paraphrase of Dick the Butcher in Henry VI ”The first thing we do, let’s
kill fire all the lawyers.” Obviously, much will depend on their replacements but Sessions’ removal (and the reason for the removal) is far more problematic.
Hunter Thompson once remarked that “going to trial with a lawyer who considers your whole lifestyle a crime in progress is not a happy prospect.” President Trump seems to be actively seeking a happier prospect after the November midterm elections.
Trump announced on Twitter that White House counsel Don McGahn would be gone in a matter of weeks, reportedly a surprise to McGahn, who expected to leave but had not settled on a departure date. At the same time, sources say Trump has returned to his earlier internal demands for Attorney General Jeff Sessions to be sacked. Both McGahn and Sessions have clashed with Trump over the Russian investigation, including his push to fire special counsel Robert Mueller.
Trump’s changing of his two top legal figures could represent a more aggressive strategy following midterm elections. It also could represent a far more dangerous stage for the administration. The changes would occur just as current investigations move into a new phase, including a possible Democratic takeover of the House of Representatives. Trump could be looking at immediate calls for his impeachment and most certainly will face a flurry of investigations under a Democratic leadership.
A president clearly is entitled to a White House counsel of his choosing and, despite the criticism, there are good reasons why this might not be a bad time for McGahn to depart. McGahn gave 30 hours of testimony to Mueller and could be in an increasingly difficult position as both a key witness and White House counsel. If Congress or Mueller move aggressively after Nov. 6, McGahn would have to make decisions on disclosures and privilege assertions that directly relate to his own testimony or actions. Or, like Sessions, he would have to recuse himself from critical decisions. He even could be cited as a witness against the president. Trump will need an unencumbered White House counsel who can advise him without reservations or conflicts.
While Trump often seems to confuse the White House counsel with his personal counsel, presidents historically have appointed loyalists to the position. It is a delicate balance between trust and competence. Some White House counsels, like Charles Colson for Richard Nixon or Alberto Gonzales for George W. Bush, were criticized as too closely tied to those president as opposed to the office.
The first White House counsel, then called special counsel, took office in 1943 with Samuel Rosenman under Franklin Roosevelt. Since that time, their quality and turnover have varied greatly. Bill Clinton set the record with six different White House counsels. Lyndon Johnson was second, with five, followed by Richard Nixon and Barack Obama, with four each.
Presidents have a right to choose their counsel, but the same is not true about the attorney general. While presidents have put allies in charge of the Justice Department, it is not solely their choice, as attorneys general must be confirmed by the Senate. Senators of both parties likely would demand an assurance from any replacement for Sessions that Mueller will be allowed to finish his work unimpeded.
The problem is that the replacing of Sessions could create some immediate difficult issues. Absent the conflict in the attorney general, there would be no reason why Deputy Attorney General Rod Rosensteinshould be the ultimate authority over Mueller. Indeed, I have long objected to Rosenstein continuing in that capacity since he is a key witness in the controversy surrounding the firing of James Comey, as well as other aspects of the Russia probe. The investigation could then be put under the supervision of the new attorney general, who would make the decisions as to any expansion of Mueller’s mandate and and other issues.
It is a new level of complication that neither Trump nor the country should welcome. The question is what would be achieved beyond a better working relationship, which is not insignificant, but is an insufficient reason, at this time. Trump would be insane to appoint someone to fire Mueller or derail the investigation. The Senate is unlikely to approve such a person, and the move could put his entire presidency at risk. If there is not going to be a material change, why add to the optics of obstruction?
The best option is to keep Sessions in place. While the two men have a poor relationship, Sessions has been effective in pushing Trump’s agenda at the Justice Department outside of the Russia investigation. In this sense, Trump could take a lesson from Bill Clinton. He clearly disliked and distrusted Attorney General Janet Reno, who ordered the investigation of his administration. But he swallowed hard and kept Reno in place to avoid an act that would have been viewed as retaliatory and obstructionist.
Trump clearly does not fully appreciate what either McGahn or Sessions did for him and his administration. McGahn has been credited with standing firm against Trump’s reported desire to fire both Mueller and Sessions. In doing so, he may well have protected Trump from both impeachment and even indictment in refusing to fire Mueller and others. The same is true of Sessions. He did the right thing in recusing himself, upon the recommendation of career officials at the Justice Department. His ethical action preserved the integrity of the investigation and, potentially, the legacy of the Trump administration if no crimes are found.
Yet, Trump’s rhetoric stands in sharp contrast to his actual actions. It is to Trump’s great credit that he allowed such significant access to his White House counsel without a court challenge, including significant document and testimonial productions. It is almost universally omitted in coverage, but the Trump administration has been far more transparent in this investigation than many of its predecessors. If Trump’s tweets are disregarded, his record of action is largely cooperative in waiving privilege arguments and producing evidence.
Trump would be wise to follow his past course of conduct rather than his ongoing rhetoric. He has a legitimate interest in a new White House counsel to take the reins during the next phase of this investigation. Conversely, he should not change his attorney general. In the end, there is no “happy prospect” likely to be found on the other side of the midterm election. However, there are far, far worse prospects.