The White House counsel plays a critical role in modern administrations. She or he, at a minimum, is expected to perform four tasks. First, the counsel must ensure that executive staffers and nominees comply with ethics requirements. Second, the counsel should provide legal advice that properly balances the current President’s short term political interests, the Executive Branch’s long term prerogatives and the public good. Third, it is generally good practice for counsels to refrain from participating in substantive policy debates; if they do not, other executive branch aides may lose confidence in the counsel’s professional objectivity and suspect that her legal positions harbor political bias. White House counsels are lawyers, not clients. Finally, the counsel must solicit and coordinate agency perspectives when formulating legal opinions.
Our Commander-in-Chief will only be as effective as his lawyers permit him to be. Nearly four months into Donald Trump’s presidency, it is unclear, though, whether his White House Counsel, Don McGahn is up for the job. One could argue that the blame for Michael Flynn’s resignation, the White House’s lackluster approach to ethics clearance and the recent immigration executive order fiasco lies at McGahn’s feet. A brief overview will illustrate this point.
Before Mr. Trump’s inauguration, Michael Flynn’s lawyers informed McGahn that Flynn and his consulting firm, Flynn Intel Group, had provided lobbying, public relations and research services for a Dutch corporation, Inovo BV, during the campaign. Inovo is owned by Ekim Alptekin, a Turkish businessman, with close connections to Turkish President Recep Tayyip Erdogan. After receiving this notification, McGahn did not take further action, despite the fact that it is rather unusual for a top national security official to work for a foreign state’s benefit. Indeed, Flynn’s actions may have been influenced by Turkish officials because his firm publicly supported the extradition of Fethullah Gulen, a cleric suspected of fomenting a coup d’etat, back to Turkey. Since the 1990s, Gulen has resided in Pennsylvania because the Clinton, Bush and Obama administrations all determined that the coup charges were meritless.
Flynn did not violate any federal statutes because his consulting firm properly registered its activity under the Lobbying Disclosure Act (LDA). McGahn did not know about the LDA registration, however, which means that he should have forced Flynn to disclose his activities under the Foreign Agents Registration Act (FARA). FARA requires U.S. firms that provide services principally benefiting foreign governments, to disclose their work to the Justice Department. Correctly resolving this matter could have alerted senior administration officials about Flynn’s previous business activities as well as the likelihood that he could be compromised.
McGahn’s ethics compliance blunders extend beyond Flynn, though. On February 9, Kellyanne Conway, special counsel to the President, appeared on Fox & Friends in a tight frame between the official White House seal and the American flag urging viewers to “go buy Ivanka [Trump’s] stuff” because “it’s a wonderful line.” This endorsement violated two federal regulations and two standing ethics Executive Orders issued under George H.W. Bush and Trump, himself, prohibiting officials from using public office for personal enrichment. Indeed, the federal government’s handbook on ethics violations lists commercial endorsements as a per se violation of ethics rules. This problem is compounded by the fact that the President has decided to retain ownership interests in his global and national businesses while temporarily handing over control to his children. The White House counsel is responsible for ensuring that Trump complies with ethics rules and that the public is aware of this compliance. Because most of the counsel’s job deals with ethics compliance, McGahn’s effectiveness, or lack thereof, can be assessed on this factor alone.
McGahn’s mistakes are not simply internal. After U.S. District Court Judge James Robart enjoined the Trump administration from enforcing its immigration executive order, Trump took to Twitter to question Judge Robart’s competence, attack the judiciary’s independence and blame judges for national security threats. McGahn did nothing to stop Trump’s tweet storm. Three things are also troubling here. First, the Executive Order was issued quickly without proper agency coordination and a media strategy. Second, the tweets were counterproductive because courts usually defer to the executive’s national security claims. Antagonizing judges will only make it harder for them to rule in his favor and trust the President’s integrity, truthfulness and motivations. Third, McGahn improperly tried to influence litigation over the Executive Order’s meaning by issuing a memorandum directing agency heads to not apply it to Green Card holders — a move that he was not authorized to perform. If the White House wanted the courts to uphold the Executive Order, its behavior did not suggest that.
McGahn has also failed to properly brief President Trump on the contents of the Executive Orders he has signed. Trump, for instance, was reportedly not told about an Executive Order provision placing Steve Bannon on the National Security Council. Substantive matters aside, Presidents, at a minimum, must have accurate reports summarizing the documents they approve.
What are we to make of this? Harvard Law School Professor Jack Goldsmith suggests two answers. First, McGahn could be incompetent and we are witnessing a series of serious lapses. This explanation is unlikely, though, because McGahn worked in high level positions for the Republican Congressional Campaign Committee and the FEC for the past 15 years and both positions require attention to detail and extensive familiarity with ethics rules. What is more likely, is that McGahn is unable to properly advise President Trump because others have his ear, Trump does not feel the need to seek prior legal advice or McGahn’s personality does not mesh well with others in the administration. Whatever the reason, the White House needs to find a solution sooner rather than later.
Contact Habib Olapade at holapade ‘at’ stanford.edu.