Why Would Don McGahn (and His Lawyer) Cooperate in a Piece Claiming He Cooperated with Mueller (on Obstruction)?

As I laid out here, the latest NYT obstruct-a-palooza on Don McGahn “cooperating” with Robert Mueller spins what is probably a lawyer covering his own legal jeopardy with a claim of full cooperation.

But why did he (and his lawyer, William Burck) cooperate in it? Why spin a fanciful tale of being disloyal to your boss, even if it’s just to blame him for it before he blames you?

The most obvious answer is he’s trying to convince Mueller he’s not responsible for the legal shenanigans of (as the NYT continues to spin it) the obstruction of the investigation, or of the legal shenanigans of Trump generally.

There may well be an aspect of that, though I wouldn’t want to be (and hope I’m not) in a position where my legal jeopardy relied on how successfully I could spin Maggie and Mike, even if I were as expert at doing so as Don McGahn is.

A better answer may lie in this observation from my last post:

By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Consider: the story Maggie and Mike (and Don McGahn’s lawyer) spin is that Don McGahn let Trump bully him around on some issues in early 2017, which led to some things that might look like obstruction of justice. An unfortunate occurrence, surely. But McGahn might be forgiven for fucking things up in early January 2017. After all, he was new to the whole White House Counseling thing; he had never worked in a White House before. Beginner’s mistake(s), you might call the long list of things he fucked up at the beginning of his tenure, which Maggie and Mike nod to but don’t describe in full resplendent glory.

His relationship with the president had soured as Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.

Don McGahn’s skills, it turns out, lie elsewhere.

While he has bolloxed most of the things White House Counsels are supposed to do (like keeping the White House out of legal and ethical trouble), he has had unsurpassed success at stacking the courts. I doubt there’s an ideological Republican in the country who isn’t thrilled with McGahn’s success at stacking the courts.

Update: Case in point.

Indeed (this becomes important in just a bit), McGahn’s success at stacking the courts is one of the biggest reasons why Republicans in Congress put up with the rest of Trump’s shit. Being President, for many Republicans, isn’t about governing; it’s about stacking the courts.

It turns out, though, that McGahn had another job before he became an expert court-stacker. For decades, Don McGahn has been one of the Republican party’s key campaign finance lawyers.

That’s how he grew to be close to Trump when, as Maggie and Mike describe,

McGahn joined the Trump team as an early hire said to like the candidate’s outsider position.

Don McGahn had come to prominence in the party at the NRCC and was rewarded for it with a seat on the FEC, where he made campaign finance more slushy.

But probably not slushy enough.

Here’s where Maggie and Mike’s failure to get an answer for whether longtime Republican campaign finance expert Don McGahn has been questioned about his role in the conspiracy with Russians to win the election (not to mention their failure to pin down when his third interview with Mueller’s team took place, after he happily revealed when the first two did) becomes important.

Don McGahn might be forgiven for bolloxing up the White House Counsel job. He was new at that (and he was busy, anyway, stacking the courts).

But at least three of the areas where Mueller’s team might find a conspiracy with Russia (or other foreigners) to win the election involve campaign finance issues — Don McGahn’s expertise. Those are:

  • Whether knowingly employing British Cambridge Analytica employees without getting them proper visas constitutes illegal foreign influence?
  • Whether accepting a Trump Tower meeting with Russians offering dirt on Hillary Clinton constitutes accepting a thing of value?
  • Whether the campaign was sufficiently firewalled from the  dodgy shit Roger Stone was doing (which has been a focus of the last six months of Mueller’s time)?

My wildarse guess is that campaign finance expert Don McGahn might find a way to finesse hiring foreign Cambridge Analytica employees. My wildarse guess is that campaign finance expert Don McGahn could claim ignorance about the illegal details of the Trump Tower and other foreign influence peddling meetings.

My wildarse guess is that campaign finance expert Don McGahn did not sufficiently firewall Stone off from the campaign. Especially given that he was involved in both incarnations of Stop the Steal — the effort to stamp down a convention rebellion, and the effort (which worked in parallel to a Russian one) to use claims of a “rigged” election to suppress Democratic voters. Especially given that he was loved in the Republican party for leaning towards slush over legal compliance.

Given how central campaign finance violations are in any question of a conspiracy with Russia, it is malpractice for Maggie and Mike to publish a story without determining whether — after being grilled by Mueller’s team for two days last fall about whether he fucked up White House Counseling — McGahn has more recently been grilled extensively about whether he fucked up campaign finance, the thing he got hired for in the first place. The thing he’s supposed to be an expert in.

But Maggie and Mike believe Trump is only being investigated for obstruction, so seeding a big puff piece with them is a sure bet you won’t get asked about your obviously central role (or not) in any conspiracy involving campaign finance.

That’s just part of a potential explanation for why Don McGahn (and his lawyer) would seed a big puff piece with Maggie and Mike, making it look like McGahn had cooperated a lot on something he was never an expert in — White House Counseling — but remaining utterly silent on whether he cooperated on something he is undoubtedly an expert in (even if he tends to prefer slush to law). Better to get in trouble for cooperating on the stuff Trump and his lawyers have been successfully distracting with for the last six months rather than cooperating with prosecutors on a case about conspiring with Russian spies to win an election, the stuff that will elicit cries of Treason and with it badly tarnish the Republican party.

Then there’s this, the last great court-stack. Numerous people have noted, but Maggie and Mike did not, even while noting that McGahn is in the middle of a SCOTUS fight:

Mr. McGahn is still the White House counsel, shepherding the president’s second Supreme Court nominee, Brett M. Kavanaugh, through the confirmation process.

William Burck, McGahn’s lawyer, is his partner-in-crime in his last great court-stack.

When Trump (presumably based on the advice of his chief court-stacker, Don McGahn) nominated Brett Kavanaugh to the Supreme Court, people (including Mitch McConnell) warned him of the danger of nominating someone with such an extensive paper record. Nevertheless, Republicans started with an assumption that that record would be made public. Until July 24, when Republicans had a private meeting and realized they had to suppress Kavanaugh’s record as White House Staff Secretary.

It is not surprising then, that on July 19, 2018, while discussing preparations for Judge Kavanaugh’s confirmation hearing, Senator Cornyn — the Majority Whip and a senior member of the Judiciary Committee — said that the production of documents Judge Kavanaugh had “generated . . . authored…or contributed to” during his tenure as White House Staff Secretary should be produced to the Committee.  He stated that it “just seems to be common sense.”

However, less than a week later, following a White House meeting with you on the records production on July 24, the Republican position abruptly and inexplicably shifted.  Since that meeting, Senate Republicans refused to request any and all documents from Judge Kavanaugh’s three years as White House Staff Secretary, regardless of authorship.  Immediately after the meeting, Senator Cornyn described requesting any Staff Secretary records as “a bridge too far.”  Days later, Chairman Chuck Grassley submitted a records request to the National Archives and Records Administration (NARA) and omitted any of Judge Kavanaugh’s records as Staff Secretary.

Since then, William Burck has taken time away from representing Don McGahn and Reince Priebus and Steve Bannon to personally suppress lots of Kavanaugh’s records as White House Staff Secretary. And Chuck Grassley has moved up Kavanaugh’s confirmation process to make sure that some of production being slow-rolled by Don McGahn’s lawyer will not be release before Kavanaugh gets a vote on a lifetime appointment.

There’s clearly something in Kavanaugh’s record as White House Staff Secretary that might lead Susan Collins or Lisa Murkowski to vote against Kavanaugh — or make the entire nomination toxic in time for the mid-terms.

Mind you, whether Don McGahn’s failures on the topic he is supposed to be an expert on, campaign finance, contribute to getting the President’s lackeys indicted for a conspiracy may not directly relate to his last great hurrah in stacking the courts, solidifying a regressive majority on SCOTUS for a generation and with it adding someone who will suppress this investigation.

Then again it might.

Most Republicans, I suspect, will one day become willing to jettison Trump so long as they can continue stacking the courts. Trump, one day, may be expendable so long as McGahn’s expertise at stacking the court holds sway. At that level, McGahn’s political fortunes may actually conflict with Trump’s.

But not if he (and his lawyer) fuck up the last great court-stack. Not if they get blamed for failing on McGahn’s area of expertise — campaign finance — and in so doing lead to a delay in and with it the demise of the Kavanaugh confirmation.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 


31 replies
  1. Trip says:

    HOLY SHIT. What a great piece, Marcy!
    JFC, Mueller better expose all of these corrupt assholes and soon.

    • Kai-Lee Klymchuk says:

      Agreed. Stellar work. With Stone’s time in the barrel coming and all, this seems very apropos.

    • SpaceLifeForm says:

      Not all (before midterms). Just enough to derail Kavanaugh.

      Something like some dirt on some SJC members.

  2. bond says:

    Donnie McGahn wants to walk and he doesn’t give a shit about Trump. If he tells the correct stories to Mueller he might make it work. Someone has to turn off the lights when – fingers crossed – Donnie is taken out in leg irons.

  3. Joe F says:

    I fear Kav’s confirmation is inevitable—unless someone from NARA leaks something that’s truly toxic. But even then ….. the GOP is just hellbent on controlling SCOTUS, and for good reason: it’s their firewall.
    Best we can hope for is, get him on record, under oath, on his past activities and then when the truth comes out, force him off the bench. Remember Abe Fortas!

    • SpaceLifeForm says:

      The Kavanaugh coverup:

      Federalist Society


      Despite what he told colleagues in 2001, when Kavanaugh filled out his Senate Judiciary Questionnaire on July 20, 2018, he wrote that he had been a member of the Federalist Society since 1988 without any gaps in membership.

      The Federalist Society has played a prominent role in recommending judicial picks to the Trump administration. White House Counsel Don McGahn even announced a revised list of potential nominees to the Supreme Court in a 2017 speech to the group.

    • SpaceLifeForm says:



      Leo played the decisive role in the appointments of Justice Alito (whom few people had heard of before Leo first promoted him), Chief Justice Roberts, and Justice Gorsuch—as well as in the unprecedented stonewalling of would-be Justice Merrick Garland.

      Ironically, while trying to downplay the Federalist Society’s influence, White House counsel Don McGahn, the point man on judicial nominees, managed to confirm it.

      “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges,” McGahn said at a Federalist Society event last year. “That is completely false. I’ve been a member of the Federalist Society since law school, still am, so frankly it seems like it’s been in-sourced.”

      After reports that JCN spent $17 million to defeat Garland and promote Gorsuch, Sen. Sheldon Whitehouse asked Gorsuch about its work at the justice’s confirmation hearing. “There’s a small group of billionaires who are working very hard to influence and even to control our democracy,” Whitehouse said. “They set up an array of benign sounding front groups to both organize and conceal their manipulations of our politics.”

      [So many dots]

    • SpaceLifeForm says:

      Old (pre-y2k) fascist dots (long):


      From Network to Policy

      In the face of clear evidence of the Federalist Society’s pervasive ideological bent, Volokh and other spokespersons expect us to believe that the organization has no desire to convert its ideology into legislative, judicial or political action. Volokh has claimed that the Society’s charter “is to create discussion, not to lobby,” and Assistant U.S. Attorney General and Society member Viet Dinh has described the organization merely as “a forum for discussion of law and public policy from both sides.” [77] Although the Federalist Society does sponsor debates and does not lobby or file briefs in the mold of a traditional advocacy organization, it is evident that the Society does aggressively promote its ideological point of view.

      [Note footnote number 77. Long. You have been warned. Mega dots]

    • SpaceLifeForm says:

      From link above:

      As a former Supreme Court law clerk has observed, membership in the Society “became a prerequisite” for law students seeking clerkships with many Reagan judicial appointees, as well as for top positions in the Justice Department and the White House. [119]

      [Believe that is still the case today]

  4. Tony Raymond says:

    This is a brilliant piece!

    Talk about a guy who should have known better.  McGahn was an arrogant ass at the FEC.  He tried to undermine the law at every opportunity.

    A complete party hack. Uninterested in the consequences of unfettered, hidden $$$ in campaigns.

    Thank you, again, for this great piece.

  5. Anura says:

    These days I think it makes more sense to view mainstream media as reality TV. Part of what makes the story so entertaining to their audience is the mystery of whether this is a witch hunt or a legitimate investigation; you need to maintain doubt and also avoid alienating your audience. It was the same with Benghazi and the buttery males; if reality news media presented the facts plainly then if would have barely been a story sans the whole abusing investigative powers for political gain thing.

  6. Ggovic says:

    I had so many questions when the NY Time’s article came out today and slowly they are getting answered by the excellent work done by a few people, like you and several other great threads/articles that I read up on concerning McGahn.  I haven’t delved into the campaign finance part yet to fully comprehend his role and Stone’s.

  7. earlofhuntingdon says:

    Brett Kavanaugh was born a GOP insider.  He grew up in upper middle class Metro DC.  His father was a lobbyist and president of a trade association, who retired with a $13 million goodbye kiss.

    He went to Yale College and Yale Law, where he joined the FedSoc.  His basketball partner was the FedSoc’s faculty sponsor.  He clerked for three judges (two is rare), including Kennedy at the Supremes, and then with Ken Starr when he was Solicitor General.  He followed Starr to his white shoe firm in DC. He worked with him under various guises until he joined the WH. 

    Always the prince, never the king, always in Cheney-like support roles, and an arrogant sod, he must have been chomping at the bit for a place to rule.

    During his several years in the BushCheney WH, he was trying to prove he deserved his “first break,” his objectively absurd appointment to the DC Court of Appeals.  A dozen years as prince-in-training is great for networking, but it makes him unqualified to sit on the federal appellate bench.  It does, however, make him privy to a lot of secrets, and gave him the opportunity to offer written advice about them.

    Kavanaugh’s sophomoric humility does little to hide that he has the arrogance and ambition of a cardinal.  To prove his worth, he would have offered aggressive advice:  about abortion, civil rights, business regulation, relations with Congress, executive and war powers.  I suspect he’s left a paper trail that would make the Powell Memo look like the Sermon on the Mount.

    • earlofhuntingdon says:

      To reinforce the point about Kavanaugh the insider, his wife, Ashley Estes Kavanaugh, worked for George W. Bush when he was governor of Texas, worked on his campaign, and followed him to the White House, where she met her future husband.  She then worked for his “presidential center”.  Bush quipped that he arranged their marriage.

      Among his other roles, Kavanaugh spent three years as staff secretary to the president.  He would have read what came across his desk, especially given that Shrub liked to read about as much as Donald Trump.

      Two things that implies: Kavanaugh worked closely with and crafted his written advice for the de facto president, Dick Cheney, and his staff – David Addington and Scooter Libby.  Ultra-hardliners all.  Brett would have wanted to show he was one of them.  Apparently he did.  Apparently, they’re still behind him.

      [Would that the Democrats had such multi-generational planning.  They seem content to rely on their octogenarians.]

    • orionATL says:

      “kavanaugh was a born gop insider”.

      so was neil gorsuch.

      they both had those foo-foo party pedigrees.

      no free-thinking flakes wanted for this job.

  8. Belacqua says:

    A wildarse guess of my own: while I suspect Marcy has the general context right, this seems to me the specific raison d’etre for the NYT article, at least as far as McGahn and Burck are concerned:

    Mr. McGahn and his lawyer, William A. Burck, could not understand why Mr. Trump was so willing to allow Mr. McGahn to speak freely to the special counsel and feared Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction, according to people close to him. So he and Mr. Burck devised their own strategy to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong.

    At any rate that’s the only bit of the piece that really seems to mark an new stop on the pro-McGahn revisionism tour that Jack Goldsmith noted in January. As Marcy notes, McG’s “cooperation” with Mueller hardly counts as news. But the fact that the White House Councel—Er, Counsel—feels he’s being set up by the president, and feels he needs to say so in public, is another matter entirely.

    If that’s right, then the next question is, Why? Why would Burck believe it important to circulate the story that McGahn is afraid of what the president’s about to do to him?

    Again, I suspect Marcy’s absolutely right that it has to do with McG’s own (fear of) criminal exposure. She’s also probably right that he’s not so dumb to expect that spinning the NYT is a sure way out of that trap.

    But while I don’t doubt that Cambridge Analytica, the TT meeting, or Stone might play into McG’s fears, for my part I suspect his current panic has more to do with the reason Marcy mentioned in her other post on the NYT article, namely, the Flynn firing. After all, throughout the lead-up to that firing it was McGahn who was advising Trump and Priebus and everyone else about Flynn’s (and the WH’s) potential legal exposure, and it was McG, as Marcy notes, who likely has some exposure of his own for that effort.

    If, as seems likely, the Trump team kept the Russian conspiracy a fairly tightly held matter, and if, as we know, Trump and everyone else involved were not eager to speak openly about that conspiracy after the fact—especially to someone who, though a senior advisor, was never part of the inner circle, and who does not have an absolute duty to attorney-client privilege—then isn’t it plausible that McG would have been advising Trump about Flynn without having a full grasp of what it meant? Might not he have been thinking about Flynn’s Kislyak calls in the (limited) context of the (unenforced) Logan Act, rather than as the payoff of a deeply compromising quid pro quo? To put it a little roughly, might McGahn have thought he was advising on a potential obstruction matter, when in fact it turned out to be a key moment of a conspiracy?

    If that’s true, then you could see why McG would be so nervous—especially once he found out just how wide was the abyss underneath him, which revelation may, per Goldsmith, have corresponded with his first Mueller interview—about being hung out to dry by Trump. And you could see why it would be worth his while to plant a public flag about how he’s been used by the president. In other words, he’s not pushing his story despite the risk of picking a fight with the president: picking a fight with the president, so as to put daylight between them, might very well be part of the strategy.

    But again, that’s just a wildarse guess.

  9. NJrun says:

    Great piece. It’s obvious McG is spinning some baloney to the Times, it’s nice to read something about why.

    The court is the key for the GOP. Trump is in this for the graft, most of the Republicans in Congress want a court that will allow them to maintain control even when they have a minority of votes. North Carolina and West Virginia are instructive.

    Back in September 2016, John Boehner spoke at a commercial real estate conference I attended in DC. Someone from a large NYC company (that had lawsuits against Trump) got up and noted how everyone in NY knew how untrustworthy Trump is, and asked how Boehner could support Trump given that.

    Boehner said, “The only thing that matters is the Supreme Court.” He also said that there would be people around him to stop him from doing anything stupid, which clearly turned out to be spectacularly wrong.

    Another questioner asked Boehner whether he had spoken to Trump, and he replied, “How do you talk to a man who was born with no ears?”

    Still, the Supreme Court fix has been in. Republicans have embraced the devil to get it. Without a crushing electoral defeat of the GOP this fall, our democracy is on the line.

    • koolmoe says:

      Trump is in this for the graft

      This is, in my opinion, the core of all Trump’s motivation – how can he fleece as much money from the presidency as possible? I’ve always suspected that, and seen examples of it, from politicians on the left and right during my life…but Trump is the first I’ve seen where it appears to be the primary, everlasting, and driving motivation. Everything he seems to decide is all about how he (and his) can enrich themselves.

  10. orionATL says:

    i not a fan of presidential impeachment and conviction, but i am a fan of judicial impeachment,
    especially where it involves misrepresenting one’s record to congress – which is what the last four republican sc justices have done or are doing.

    if the republicans get away with suppressing kavanaugh’s written record, then fine, impeach and convict when and if dems regain congressional power. to do that, however, dems need to start creating a noisy public record now, but, alas, they seem to have a monumental reluctance to persistently criticize as a party any of the major trump/republican actions.

  11. Mitch Neher says:

    Suppose that Jared Kushner revised his SF 86 on April 6th, 2017, because he was getting feedback from his friends about the FBI background check based on his previous SF 86 applications. Suppose that the FBI then did a second round of background checks based on Kushner’s revised SF 86 in which he admits a meeting with Veselnitskaya. Once again, Kushner gets feedback from his friends about the FBI background check Round 2. Maybe Kushner then concludes that he and Trump Jr. have little choice left but to leak the first of the several “limited hangout” versions of the Trump Tower meeting to the NYT on or shortly before July 8th, 2017.

    Who else would have known about the Trump Tower meeting before July 8th, 2017? Well, obviously the four Russians who attended the Trump Tower meeting knew about it before the NYT found out. When did Don McGahn find out about the Trump Tower meeting? Would McGahn have had anything to do with Kushner’s revised SF 86s in which he admitted the meeting with Veselnitskaya? Would the FBI agents conducting the background check on Kushner have had any conversations with McGahn before April 6th, 2017, when Kushner revised his SF 86s?

    I still think that there’s something really fishy about Trump’s semi-private conversation with Putin at the G20 Spouses’ Dinner on July 7th, 2017, the day before the public disclosure of the Trump Tower meeting to the NYT. What if the Russians had a hand in forcing Kushner and Trump Jr. to leak the several, successive versions of the “limited hangout” to the NYT? I’m asking because I “wish” there were a way for Mueller and his shop to crack that damage-control cover-story wide open and pick it apart but good. Maybe Don McGahn could be of use to Mueller on that count. I know wishing is ineffective, but is wishing allowed, anyway?

  12. pdaly says:

    The Michael/Maggie NYT article from 8/18/18 was “amended” on 8/19/18, indirectly, by a new piece this time by Maggie/ Michael. On the 19th they reference their piece from 18th as ‘as the Times reported’ and DO finally write that McGahn as White House counsel is counsel for the White House and definitely NOT the President’s personal attorney. Why not just write an addendum to the original article?

    Nevertheless, on the 19th they still push the ‘Special Counsel Mueller will possibly send a report of his findings to Congress’ by hiding behind quotes of people ‘knowledgable about the investigation.’
    Maggie/Mike manage to ignore the communication Mueller is ALREADY doing by way of indictment and indictment and plea deal, etc.
    They’re still sticking with obstruction. No mention about WH conspiracy or defraud, yet.

    The NY Times is going to have to write another addendum…

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