Conservatives rattled by floated names for WH counsel position

The imminent departure of White House counsel Don McGahn has raised questions about what direction President Trump will go with his choice of a successor and has stirred some agitation among conservatives over whether the president will continue to stay focused on the judiciary.

Two names that have floated as possible successors to McGahn are members of Trump’s legal defense team and are seen as more geared toward battling with special counsel Robert Mueller or a Democratic-controlled House than shaping the federal judiciary to be more conservative.

A former Senate GOP aide said there had been some conservative pushback to Emmet Flood, a member of Trump’s legal team who advised former President Clinton during the 1998–1999 impeachment process. Flood is seen as a defense and impeachment specialist, but his commitment to conservative legal principles and finding and recommending textualist and constitutionalist judges is less known.

Another name floated is Pat Cipollone, a former Justice Department lawyer and veteran litigator who has advised Trump’s legal team on Mueller’s investigation into Russia’s election interference. Cipollone’s commitment to recommending judges who pass muster with the Federalist Society and other conservative groups is unclear.

The fact that two lawyers involved in Trump’s legal defense are on the shortlist to replace McGahn is a sign that the president is looking for a counsel well-equipped to fight off any possible indictment from Mueller or subpoenas from the House, should Democrats take back the lower chamber in the midterm elections.

There’s also a chance that Democrats would pursue impeachment proceedings if they capture the House.

McGahn’s biggest impact as White House counsel has been to help Trump fulfill his promise to pick conservative judicial nominees. The president has won rave reviews from the right in that area, most notably from Senate Majority Leader Mitch McConnell (R-Ky.).

John Malcolm, the director of the Meese Center for Legal & Judicial Studies, said McGahn “focused like a laser on appointing constitutionalist-, textualist-oriented judges,” adding, “I can only hope his successor does the same.”

Malcolm said he does not “know enough about Emmet Flood other than by reputation to comment” on how he might go about recommending judicial nominees to Trump if appointed White House counsel.

“He’s certainly a very experienced inside-the-Beltway operative who has served presidents in very sensitive roles on both sides of the political aisle,” Malcolm noted. “Everything I hear about the guy is that he’s whip-smart and he’s somebody like Don McGahn [who] likes to keep his head low and operate behind the scenes, which speaks well of him.”

But the fact that Flood defended Clinton, a Democratic president, may call into question his commitment to conservative politics. He also worked for the White House Office of Legal Counsel under former President George W. Bush, and he clerked for conservative Justice Antonin Scalia and represented former Vice President Dick Cheney against a lawsuit filed by former CIA official Valerie Plame.

Cipollone is someone else who is seen primarily as a litigator. He’s a former Justice Department lawyer who specializes in commercial litigation.

Rudy Giuliani, who has served as the public face of Trump’s legal team, has endorsed both Flood and Cipollone as “an excellent choice” for White House counsel, according to The Washington Post.

But Cipollone is less known in Washington’s conservative legal circles.

Some conservatives would be more comfortable with another name that has been floated, Makan Delrahim, the assistant attorney general for the Justice Department’s Antitrust Division. He served as GOP counsel on the Senate Judiciary Committee during some of the bitterest fighting over Bush’s appellate nominees and is well-connected with conservative legal intellectual heavyweights. 

With Justice Neil Gorsuch on the Supreme Court and Judge Brett Kavanaugh expected to join him there before the election, Trump has already done a lot to shape the ideological balance of the judiciary.

In addition, the Senate has confirmed 26 appellate court judges, a record for the first two years of a presidency.

A second former Senate GOP aide said, “McGahn is certainly much closer to this world than those other guys,” referring to members of the Federalist Society who include many of the country’s most respected conservative legal thinkers.

“Trump’s efforts have clearly been directed at reassuring about his candidacy and his presidency, and McGahn was a key part of that. It will be interesting to see moving forward how that relationship works with his departure from the White House,” said James Wallner, a former Senate Republican aide who formerly served as the Heritage Foundation’s vice president for research.

“It doesn’t appear like you’ll have another Supreme Court vacancy before the presidential election, and you’ve also had a Senate very focused on confirming a number of circuit and district court nominees in the first two years,” Wallner added.

He said that Trump could be “looking for somebody with a different skill set.”

If Democrats take back the House, Wallner noted that “you’re going to be facing more investigations.”

“The White House counsel presumably would be concerned with questions of executive privilege,” he added. “An attorney who is very well-versed in the judicial selection process may not necessarily be one who’s well-versed in these other areas of responsibility.”

A White House spokesman did not respond to a request for comment.