Donald McGahn speaking in Washington on Dec. 12. Credit: Diego M. Radzinschi / ALM

Inside the White House, Donald McGahn personally took part in episodes Special Counsel Robert Mueller III scrutinized as part of an investigation into whether President Donald Trump sought to obstruct the Russia investigation. Outside the White House, he has found himself in litigation with the House, resisting a subpoena for his testimony in the impeachment process.

It has all made McGahn, the former White House counsel, among the most fascinating figures in the Trump era.

On Thursday, in rare public remarks, McGahn steered clear of the drama that has swirled around him, instead speaking broadly about his view of the White House counsel's role while recounting the occasional arm-twisting that came with congressional dealings, including his aggressive quest to shape the federal judiciary.

Appearing at the fourth annual Sidley Austin Forum alongside a pair of former Obama White House counsels—Bob Bauer, a professor at the New York University School of Law, and Latham & Watkins partner Kathryn Ruemmler—McGahn stressed that his former Trump administration role was to represent the institution of the presidency and protect executive authority.

"It's not a personal lawyer," he said.

Later, McGahn said the White House counsel's role is to "represent the president's views."

"No question about it—not be a check on his views or say, 'Well, you know, the Senate really thinks that it has a larger role than you think, sir.' No, that's not your job at all. You're a lawyer for the president."

McGahn rejoined the law firm Jones Day in March after stepping down in late 2018 as Trump's White House counsel. His successor, Pat Cipollone, has spearheaded the White House's refusal to cooperate with the House impeachment inquiry, penning letters—widely derided as "barely lawyered"—that have criticized Democrats and asserted that they "seek to overturn the results of the 2016 election and deprive the American people of the president they have freely chosen."

For his part, McGahn is still involved in the broader Trump stonewall effort, having obeyed the president's command not to speak with House Democrats as part of the impeachment process. In early January, the U.S. Court of Appeals for the D.C. Circuit will take up the House effort to enforce a subpoena targeting McGahn. He's represented in that case by William Burke of Quinn Emanuel Urquhart & Sullivan.

McGahn enjoyed Republican majorities in the House and Senate during his nearly two-year tenure, a stretch in which he oversaw the Trump administration's deregulatory agenda and frenzied push to fill vacancies on the federal bench, including a pair of Supreme Court seats.

On Thursday, McGahn underscored the White House counsel's view that the president is the "ultimate decisionmaker" for judicial nominations, downplaying the role of individual senators in those selections.

"Now  I'm back to representing many of these senators, so they're going to hate when I say this,  but I have to get in trouble with somebody here today," he said.

McGahn's relationship with Trump grew fraught after then-Attorney General Jeff Sessions refused to recuse—against the president's wishes—from the Russia investigation. Later, the two clashed after Trump asked him to fire Mueller, with the president backing down only after McGahn threatened to resign. McGahn would become a key witness in the Mueller probe.

On Thursday, McGahn said that, "if anything, I'm known for a sort of mutual candor with clients," but made no clear reference to his cooperation with the Mueller probe or pushback against Trump.

McGahn and Ruemmler spoke of the frustrations that can come with congressional interactions, particularly for those entering the White House counsel's role from the executive branch.

Kathryn Ruemmler speaking in Washington. Credit: Diego M. Radzinschi/ ALM

Ruemmler, who came to the Obama White House from the Justice Department, said her executive branch experience made her "very much used to dealing with, you know, facts," drawing laughter from the crowd. She said dealings with Congress could be "absolutely maddening," recounting a conversation with a U.S. senator who at once praised but refused to support an Obama judicial nominee.

Her comment sparked an animated exchange, with McGahn saying how he would have pushed to flip the senator's stance.

"I guess that's where I'm different. I would have said, 'That's what you think today.'"

"You didn't need 60 votes, thank you very much," Ruemmler responded, referring to a Senate rule at the time requiring 60 votes to confirm judicial nominees. Former Sen. Harry Reid eventually struck the rule, deploying the so-called "nuclear option" in the face of Republican filibustering of Obama nominees.

"That's correct. … Thank you, thank you Sen. Reid for that one," McGahn said. (Ruemmler said Senate Majority Leader Mitch McConnell, a Kentucky Republican, "would have changed the rules in a second" if he were in the same position.)

McGahn said later that, in his interactions with lawmakers, he would take what he termed a "I know how to get your vote" mindset.

"I came at it from much more of that point of view, particularly dealing with senators on confirmation issues, because that's not polite tea with the queen," he said. "That tends to be raw, who-has-the-most-votes wins kind of stuff, so you have to think that way."

This week, Trump secured his 50th federal appeals court appointee, after the Senate confirmed Lawrence VanDyke to a seat on the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.

 

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