During much of this week’s Supreme Court confirmation hearings before the Senate Judiciary Committee, a Trump administration official who few people could name and even fewer people would recognize sat quietly in the hearing room. It was Donald McGahn, the counsel to the president and one of the most important advisors in the West Wing of the White House.
McGahn’s obscurity belies the importance of his position and the significance of his accomplishments. The job of the president’s counsel is never an easy one. Times of dynamic change — such as those I witnessed as deputy counsel to President George W. Bush in the days after 9-11 or other seasons of profound legal and regulatory changes, such as the present administration — make it perhaps the most challenging public legal job in the world. McGahn has thus far skillfully met these challenges and done so in a way that should earn high praise from conservatives.
{mosads}He was instrumental in the nomination of Judge Neil Gorsuch to the Supreme Court, perhaps the highpoint of the administration so far. Contrary to the claims of Senator Schumer, the president did not “outsource” his Supreme Court pick to external organizations. He sought advice from trusted sources close to him, including McGahn.
Eminently qualified and personally appealing, Gorsuch has frustrated Democratic attempts to tar and feather him the way they have previous conservative jurists. He also stands poised to bring a textualist vision to the Court, ensuring that at least four justices respect the rule of law and separation of powers.
In addition to that high-profile nomination, McGhan has also assembled an impressive team of attorneys to guide the implementation and defense of the administration’s priorities. In addition to the excellent choice of Jeff Sessions as Attorney General, he has consistently selected lawyers of outstanding ability and commitment to president’s agenda. Foremost among these is Noel J. Francisco, President Trump’s nominee for Solicitor General.
One of the most successful litigators in the country, Francisco is a superb pick to make the administration’s case before the Supreme Court. McGahn was also behind the selection of Courtney Simmons Elwood as General Counsel of the Central Intelligence Agency. A former clerk for Chief Justice William Rehnquist, an associate counsel to the president, deputy counsel to the vice president, and deputy chief of staff and counselor to the attorney general, she brings impressive experience to the challenging job.
There is also John J. Sullivan, the likely nominee for Deputy Secretary of State, who served as deputy general counsel to the same department during the George W. Bush administration, as well as deputy secretary at the Department of Commerce.
Finally, Trump selected Brent McIntosh as general counsel for the Department of the Treasury. McIntosh, who clerked for two federal court judges, worked in the U.S. Department of Justice during the George W. Bush administration, and was also associate counsel to the president, deputy assistant to the president, and deputy staff secretary. If an early criticism of the administration’s picks was that they didn’t have enough White House experience, that cannot be said of this group. This is an impressive group of attorneys well-placed to guide the agencies they’ve been nominated to serve, and it was McGahn who identified them for the positions.
Finally, in relation to specific policy concerns, McGahn promises to be a key figure in the Trump administration’s effort to restore the protections of the constitutional separation of powers to what has become known as the “administrative state.”
In a recent interview with Time, McGahn explained his reservations concerning the administrative state on constitutional grounds: “Article I is the Congress, Article II is the president. Article III are the courts. And then there’s this administrative state, combining all three. … They make the law, they enforce the law, and then they decide who violates the law, destroying the constitutional separation of powers that was designed to protect individual liberty.” That’s as conservative an articulation of the separation of powers as has come out of the White House in a generation.
To be sure, Mr. McGahn has had his challenges, receiving some media attention in connection with several crises in the first months of the new administration. Critics have blamed him and his office for distractions from swift accomplishment of the administration’s core priorities. But what must be remembered is that it is the stuff of good lawyering to be at the scene of a crisis, and that rarely means the crisis was precipitated by the lawyers.
They are there, quietly, as Donald McGahn has been, to solve problems and offer solutions. For that, he deserves considerable credit and recognition.
Tim Flanigan is the former Deputy Counsel for President George W. Bush and Assistant Attorney General to President George H.W. Bush.
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