WASHINGTON — U.S. President Donald Trump is claiming his White House lawyer, Don McGahn, was representing his interests, and following his orders, when he voluntarily testified before the special counsel in multiple sessions.
And former administration officials said it’s unlikely that McGahn would still be serving in his top position in the administration if he had actually shared incriminating information about the president with Robert Mueller’s team.
“I can’t imagine that McGahn would still be White House counsel if he had produced any damaging information,” said Mark Corallo, a former spokesman for the president’s legal team. “He’d have resigned.”
But the New York Times’ revelation that McGahn has spoken to Mueller’s team for more than 30 hours over the past nine months has lawyers baffled — and noting that McGahn could have still filled in crucial blanks for Mueller, even if he didn’t hand over anything that could jeopardize his boss.
“The person most cloaked in privilege is McGahn,” said Ross Garber, a criminal defense attorney who served as the in-house counsel for former Connecticut Gov. John Rowland. “That relationship is sacrosanct. And the notion that that person has spent that much time with investigators and potentially waived privilege is a pretty big deal.”
Garber said that it’s particularly notable that McGahn had multiple meetings with the special counsel, and in between those sessions went back to his day job in the White House. “They’ve in a way turned him into an undercover operative in the White House,” Garber said. “and it’s his lawyer.”
The New York Times, citing a dozen current and former White House officials, said McGahn had offered Mueller extensive details regarding whether Trump obstructed justice, including the president’s comments about his firing of FBI Director James Comey, the pressure he put on Attorney General Jeff Sessions to take control of the Russia investigation, and the possibility of firing Mueller.
Trump on Sunday continued to insist that he was the one who authorized McGahn’s cooperation and that the White House lawyer had nothing incriminating to offer up.
“The failing @nytimes wrote a Fake piece today implying that because White House Councel Don McGahn was giving hours of testimony to the Special Councel, he must be a John Dean type “RAT.” But I allowed him and all others to testify – I didn’t have to. I have nothing to hide …” Trump tweeted. “… and have demanded transparency so that this Rigged and Disgusting Witch Hunt can come to a close. So many lives have been ruined over nothing – McCarthyism at its WORST! Yet Mueller & his gang of Dems refuse to look at the real crimes on the other side – Media is even worse!”
Trump, one former administration official said, at the beginning of the administration did not immediately grasp the difference between the White House lawyer and his personal lawyer. He expected McGahn to fill a role he has depended on his entire life: an attorney like Roy Cohn, the late Sen. Joseph McCarthy’s chief counsel, who represented his interests above all.
But McGahn’s job is to protect the office of the president, not Trump the individual.
Tensions between Trump and McGahn have long run high. In one meeting with Mueller earlier this year, McGahn described an encounter with an angry Trump badgering him to publicly dispute a January 2018 New York Times story that said the president ordered him to fire Mueller, according to a person familiar with the issue.
McGahn also told Mueller how the president tried without success to get his then staff secretary Rob Porter to warn McGahn that he could be fired if he didn’t deny that Times article, the person said.
Despite the fact that McGahn has knowledge of intense encounters, some said his extensive cooperation with Mueller was part of the go-along-to-get-along strategy of Trump’s prior legal team, comprised of Ty Cobb and John Dowd, who promised that their good working relationship with Mueller would speed up an investigation that was taking a toll on the president’s psyche and the work of the administration.
William Burck, McGahn’s lawyer, on Saturday directly linked the White House counsel’s interviews with Mueller to a decision by Trump to not assert executive privilege over their conversations.
“President Trump, through counsel, declined to assert any privilege over Mr. McGahn’s testimony, so Mr. McGahn answered the Special Counsel team’s questions fulsomely and honestly, as any person interviewed by federal investigators must,” Burck said.
But as the special counsel has shown no sign of reaching an end point imminently — despite what the White House has said was a high level of cooperation in terms of documents and interviews with staffers — the strategy has changed.
“The Trump team is taking a different position in relation to the special counsel,” said attorney Alan Dershowitz, the retired Harvard Law School professor whose legal arguments attacking the legal grounds for Mueller’s investigation have been extolled by the president. “They’re being much tougher and litigating everything. They’ve given up on the idea that the Special Counsel will end the investigation quickly if they cooperate.”
Former New York mayor and current Trump lawyer Rudy Giuliani on Sunday reinforced that stance, arguing that Trump should not sit down for a Mueller interview because the special counsel may try to trap him in a supposed lie, even though “truth isn’t truth.”
“When you tell me that, you know, he should testify because he’s going to tell the truth and he shouldn’t worry, well that’s so silly because it’s somebody’s version of the truth. Not the truth,” Giuliani told Chuck Todd on NBC’s “Meet the Press.”
“Truth is truth,” Todd responded.
“No, it isn’t truth,” Giuliani said. “Truth isn’t truth.”
Giuliani also said that Dowd had reassured Trump allies on Saturday that McGahn “was a strong witness for the president” during his testimony.
Dershowitz, however, said the jury was still out on how significant McGahn’s extensive conversations with Mueller’s team will turn out to be. “An act innocent in itself may form part of the tapestry,” he said. “You don’t know until you see what the whole jigsaw puzzle looks like. He may have filled in some gaps. They may not be incriminating, but they may form part of the jigsaw puzzle.”