Unlike with his personal lawyers such as Rudy Giuliani and his predecessors, President Trump probably doesn’t have an attorney-client privilege with his White House lawyer. That means he likely couldn’t ultimately block his White House counsel, based on attorney-client privilege, from being subpoenaed or interviewed by special counsel Robert Mueller. Put simply, White House counsel Donald McGahn represents the Office of the President, not the president individually.
Still, the president could try to assert executive privilege to stop the White House counsel from disclosing their communications to the prosecutor. That privilege is a little tricky, nuanced and not absolute (just look at Presidents Nixon, Clinton and Bush), and such an assertion might put more of a cloud over the presidency. But it could perhaps muzzle the White House counsel and accomplish what attorney-client privilege does not.
{mosads}Even if the prosecutor would try to defeat the executive privilege in the courts, saying it doesn’t apply when criminal conduct is implicated, the president likely could tie the issue up for a significant period of time. And for this president, time is on his side. As you can see, with all that has surfaced since the first day of his presidency, Donald Trump is still standing.
Though the president might be afraid that asserting executive privilege would suggest he has something to hide, even this president could credibly argue he is doing so to protect the “institution” of the presidency. After all, the White House counsel represents the office, not the man, and future presidents need the support of this president in sustaining an important constitutional precedent. The argument would be that it is a slippery slope, to enable a precedent that allows a prosecutor to invade the Oval Office and shine a light on confidential conversations between the president and the White House lawyer.
All this said, why did President Trump and, presumably, his personal lawyers at the time (who have moved on) give McGahn the ultimate hall pass to allow Mueller to interview him for, as The New York Times reports, 30 hours? Did they think that McGahn would put this president’s best foot forward on every subject about which he might be questioned? Did they think that the president would be better served by McGahn, an obviously more credible deponent than President Trump himself, setting out the president’s story on all the issues on which McGahn had knowledge during his tenure in the White House?
Maybe McGahn (or his counsel), for one reason or another, had led the president or his personal lawyers to believe that his account of his Oval Office consultations with President Trump was better than it would turn out to be when he was actually questioned by Mueller.
Yes, we are told, McGahn and his personal counsel wanted McGahn to be interviewed, fearful that the president was setting him up as a potential fall guy for any alleged misconduct, such as the president’s firing FBI Director James Comey. But that is McGahn’s motive; what’s the president’s? Why would any client want a lawyer — even if he were the most ardent, zealous and loyal lawyer possible — to tell all to “the enemy” (and President Trump certainly considers Mueller his enemy)?
Even though the president’s running commentary about the Russia investigation is scattershot and disjointed, his former personal lawyers, who have considerable experience and ability, apparently allowed McGahn’s interview without counseling a constitutional challenge to such interviews. And so, assuming the president’s private lawyers knew just what McGahn knew, they concluded that — hard as it might be to believe — McGahn would not “hurt” the president if interviewed. Perhaps the information was downright exculpatory; if not, perhaps they thought he could put a pretty face on it. Alternatively (and again hard to imagine), they may simply have concluded that a claim of executive privilege would be worse for their client, the president. Indeed, McGahn’s attorney says his client’s interviews didn’t incriminate the president at all.
We may never know why President Trump released McGahn to talk — 30 hours is a long time, indeed, and there is no indication McGahn isn’t still talking. Mueller is correctly tight-lipped, so we can anticipate no explanation from him, even if he knows why McGahn was handed to him. Ty Cobb and John Dowd, the president’s able personal lawyers who presumably counseled the waiver, will take their secrets about it to the grave — the attorney-client privilege will always apply to their conversations with President Trump.
In one of his many tweets, the president said he waived privilege because he had nothing to hide. And perhaps that is the point. The truth is, if just about any other president were to allow his White House counsel free rein to speak to prosecutors investigating the administration or the president himself — as is surely what’s under way — the president’s conduct would be applauded. The editorial boards of The New York Times and The Washington Post, in particular, probably would be the most fervent in offering praise. The public would conclude that the president indeed has nothing to hide, and his willingness to release the White House counsel to tell all would be valuable proof of it.
But not so here; neither the public nor the commentators can understand it, nor are they likely to give President Trump credit for allowing this to happen. After all, in perhaps the soundbite of the year, this president’s current personal counsel went on television and boldly announced that “truth isn’t truth” — apparently arguing, though inarticulately, that there often are contrasting versions.
Finally, as an added thought: Mr. Giuliani argues that since McGahn has come forward, there’s no longer a need for Mueller to interview the president. Yes, Mueller now has McGahn’s “version” of the truth, but is that the truth? Maybe it is, but how can we know unless Mueller and his staff directly hear the president’s version? Hasn’t Mr. Giuliani argued against himself?
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”