After the New York Times reported that White House counsel Donald McGahn had spent 30 hours with special counsel Robert S. Mueller III and his team, the Trump spin machine came up with two (both false) responses: 1.) We know what he said, and what he said was helpful; 2.) It’s only because President Trump was so forthcoming (or his attorneys so dim) that McGahn got to cooperate. Wrong, and wrong.
Let’s begin with the assertion that Trump knows what McGahn said. It didn’t take NBC News’s Chuck Todd very long to blow away that canard:
RUDY GIULIANI: … First of all, we have a good sense, obviously, of what Mr. McGahn testified to, I can figure it out from —
CHUCK TODD: How – wait – how do you say that “good sense,” have you debriefed him?
RUDY GIULIANI: No, no, but Mr. Dowd has a good sense of it, he talked to them at the time.
CHUCK TODD: So you don’t know what Mr. McGahn, you don’t know 100% of what he testified to Mr. Mueller?
RUDY GIULIANI: I think that through, through John Dowd, we have a pretty good sense of it and John Dowd yesterday said, I’ll use his words rather than mine, that McGahn was a strong witness for the president, so I don’t need to know much more about that. Also, they don’t need to know what the president’s going to say because the president has said it and we’ve told them that we would stipulate that what the president has said is the president’s true belief that he did nothing wrong, that he wasn’t involved in collusion, that he wasn’t involved in obstruction and they have yet to propound a question to us, give us a question, where there is not an answer to it already by the President of the United States. So the only reason they could possibly want the President of the United States is because they’re desperate for some kind of charge they can hang their hat on. They don’t have collusion or conspiracy, as Brennan pointed out, and they don’t have —
CHUCK TODD: How, how do you know that? You say this always so definitively, how do you know they don’t?
RUDY GIULIANI: I know they don’t because (laughs) look, this whole McGahn thing leaked from them. If they had, if they had some kind of evidence that there was collusion or there was obstruction, don’t you think it’d have been leaked? I mean, they leak everything else.
In short: They have no idea what McGahn said. The Times reports today, “Although Mr. Trump’s lawyers have little idea what Mr. McGahn told investigators, they said on Saturday and Sunday that Mr. McGahn had helped the president.” Well, if they have little idea what he said, then obviously they don’t know if it helped or hurt.
The assertion that “lawyers made a mistake” or “Trump was just being transparent” in letting McGahn testify is largely hogwash. Constitutional scholar Larry Tribe tells me: “There is no attorney-client privilege for communications between the president and counsel for a government entity like the office of the presidency. That is of course McGahn’s role, in contrast with Giuliani’s.” Had Trump’s lawyers asserted an attorney-client privilege, Mueller almost certainly could have obtained a subpoena and gotten a court to compel McGahn to testify. Failing to make a losing argument isn’t bad lawyering; it’s competent lawyering.
Likewise on executive privilege, “A limited executive privilege does exist for certain kinds of exchanges between the president and various advisers, potentially including McGahn, but U.S. v. Nixon held that a grand jury’s need for evidence in a pending criminal matter would overcome that privilege unless there exists a military secrets or national security justification for withholding the information sought,” Tribe explains. “Here there exists no such justification. It follows, ironically, that the office of the presidency may contribute to this president’s downfall.”
Former White House ethics counsel Norman Eisen concurs: “The attorney-client privilege of the presidency in criminal cases was largely eliminated by the Clinton-era cases In re Grand Jury Subpoena Duces Tecum and In re Bruce R. Lindsey. In the former, the Eighth Circuit rejected White House assertions of the privilege as to documents created during meetings with the president and First Lady. … Then the D.C. Circuit made a similar ruling in in In re Lindsey, forcing a White House lawyer to answer grand jury questions about the Lewinsky case and noting ‘the public’s interest in uncovering illegality among its elected and appointed officials’ and ‘transparent and accountable government.’ ”
Now, one can always make a stab at pursuing a weak legal argument, buying some time. And perhaps some lawyers would have tried to put off the inevitable. Former federal prosecutor Renato Mariotti offers, “I’d fight because even a 20 percent chance of success is worth taking.”
Eisen acknowledges: “[Ty] Cobb as the inside White House lawyer and [John] Dowd as the outside Trump lawyer could have forced the special counsel to litigate these issues. No one can guarantee what the outcome would’ve been. Perhaps a court would have found that the exigency of a criminal investigation of others that existed in the Nixon case was not present here.” However, he says that as a former White House lawyer, “I understand the criticism. They made a judgment, one that is often correct, that full cooperation would make the case go away. Here because of the powerful evidence of obstruction, that did not work. I am not, however, prepared to criticize it, because it was the right thing to do and the patriotic thing to do.”
In short, Trump and his team now say they should have made a losing argument to derail an investigation into obstruction of justice. You see the problem with that reasoning. In any event, the media should stop repeating the fable that had Trump only been tougher and his lawyers more aggressive, McGahn would have been blocked from cooperating.