The decision by President Donald Trump’s legal team to allow White House counsel Don McGahn to talk to special counsel Robert Mueller without restrictions was made in part because the lawyers calculated they did not have a good legal standing to prevent it and because it fit with the strategy to be cooperative with the investigation, according to sources who sought to explain McGahn’s extensive interviews.
The sources said that even though McGahn has talked to special counsel investigators – for some 30 hours – the Trump administration could still seek to prevent details of the testimony from being released publicly by asserting executive privilege on relevant elements of the report.
McGahn’s lawyers believe his cooperation includes any potential grand jury inquiry, a source familiar with the matter said, but it stops there and blocks Congress or any civil litigators from gaining access to the information. That was the White House posture for former chief strategist Steve Bannon, who spoke with Mueller’s team but used executive privilege to shield himself from answering certain questions posed by congressional investigators.
McGahn has not been asked to go to the grand jury, according to the same source, but the Trump legal team thinks there would be a resistance.
“There would be a battle over the use of McGahn’s information,” one source said, explaining that McGahn was allowed to speak with Mueller with privilege remaining in place over the use of the information.
Some legal experts are critical of the legal strategy arguing that the team could have – at the very least – tried to limit the scope of Mueller’s questions and that by agreeing to waive privilege, without knowing how McGahn might answer some questions, McGahn’s interviews will ultimately be beneficial to Mueller.
Steve Vladeck, a CNN Supreme Court analyst and law professor at the University of Texas, said that by allowing McGahn to talk, it would be hard to argue that he can’t talk to the grand jury to discuss the very same information. In other words, McGahn’s privilege was waived by talking, according to Vladeck.
Trump’s legal team would try to argue that Mueller is part of the executive branch himself and stopping “intra executive” conversation is difficult. But, according to Vladeck, the fact Mueller has subpoena power means he shouldn’t be seen that way.
There is some disagreement over how much the Trump team knows about the cooperation. This was part of the wider strategy to be cooperative at the outset with documents and access, in order to argue there was no need to talk to the President. But another source said the decision to fully cooperate was done without looking at all the documents.
According to sources, McGahn attorney William Burck and Trump attorney John Dowd did debriefings so Dowd knew what McGahn said and there’s no worry about McGahn going rogue. Additionally, Burck represents multiple people from the White House counsel’s office, so the President’s legal team believes they have a good handle on whatever narrative came from those testimonies. But according to another source familiar with the matter, McGahn’s attorney did not give the President’s lawyers a full accounting of what was said to the special counsel and it was not requested.
The Trump legal team’s confidence that McGahn didn’t provide incriminating information stems in part from the fact McGahn would have faced an ethical requirement to resign his post if he believed a crime had been committed.