Editor’s Note: Michael D’Antonio is the author of the book “Never Enough: Donald Trump and the Pursuit of Success” and co-author with Peter Eisner of “The Shadow President: The Truth About Mike Pence.” The opinions expressed in this commentary are the author’s. View more opinion articles on CNN.
The former White House counsel – and, according to CNBC, the most cited witness in Robert Mueller’s report – Don McGahn may have heeded the President’s demand that he not testify before the House Judiciary Committee, but McGahn’s background and willingness to defy the President’s questionable requests in the past, hints at the notion that he possesses some moral strength. However, until he speaks, we only know that he is less vulnerable than others when it comes to the President’s methods.
Devoted to political ideals (in his case libertarianism) and educated at Notre Dame, Widener University and Georgetown, McGahn’s background reflects the kind of intellectual rigor that makes him Trump’s opposite. Part of the Washington legal elite, his pre-Trump experience placed him among the more devoted advocates for the institutional Republican Party.
Well-established in what might be called the permanent governing class, McGahn has moved in and out of law, government, and partisan politics. This would make him suspect among Trump’s more rabid drain-the-swampers, and it does indicate a certain devotion to the kind of bureaucratic careerism that makes Washington a golden goose for well-connected lawyers.
This devotion is also indicative of someone who is reluctant to break norms in the way Trump does – a recognition of a future in politics beyond four or eight years. Presidents come and go. People like McGahn stay for a lifetime, just as long as they play by the rules.
McGahn, you will recall, refused the President’s orders to help push Mueller out of his post as the special counsel investigating Russia’s attack on the 2016 election, which favored Trump.
In the summer of 2017, Trump was angry about Deputy Attorney General Rod Rosenstein’s handling of the Mueller team and tried to enlist McGahn in getting rid of the special counsel. In one conversation, Trump allegedly told McGahn, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” Later in the day he contacted the White House counsel again to say, “Mueller has to go. … Call me back when you do it.”
In a tweet, President Trump denied asking McGahn to fire Mueller.
This month, CNN reported that sources said that Trump asked McGahn to declare that the President didn’t obstruct justice but that the former White House counsel refused.
As Mueller reported, McGahn and others in the White House knew that Trump was upset that he didn’t have a tough-guy lawyer like the infamous and scurrilous Roy Cohn who was his personal attorney for years. That he wanted the White House counsel to play this role was clear. So was the danger that would arise if McGahn acquiesced.
Eventually disbarred by a New York State court, Cohn first gained infamy as chief henchman for Senator Joe McCarthy during his persecution of government officials during the 1950s. After leaving Washington in disgrace he made a new career in New York representing, among others, organized crime figures and businessman Trump. Trump used him to intimidate foes, and potential foes. Trump, according to a New York Times profile, kept a photo of Cohn and took it out to show people the kind of attorney he employed.
More recently an exasperated Trump asked White House officials, “Where’s my Roy Cohn?”
As Mueller reported, Trump was troubled by signs that McGahn was, if anything, a kind of anti-Cohn. During one exchange preserved by the special counsel Trump reportedly noticed McGahn jotting notes and said, “What about these notes? Why do you take notes? Lawyers don’t take notes, I never had a lawyer who took notes.”
The report said “McGahn responded that he keeps notes because he is a ‘real lawyer’ and explained that notes create a record and are not a bad thing.”
To which Trump replied, “I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.”
Always fact-resistant, Trump has long sought to control what others know about everything from his behavior to his financial conditions, which explains his predilection for imposing non-disclosure agreements on employees and his determination to keep his tax returns secret.
A real lawyer like McGahn, who knew his client was the office of the President and not the person of Donald Trump, held to the lawyerly habit of note-taking because he knew that documentation could be in the public interest.
On a personal level, McGahn had his own interest in notes that would protect him from peril as the President was clearly intent on obstructing the Mueller investigation.
It’s to McGahn’s credit that he refused to accommodate Trump, and at one time packed up his office because he thought he would have to resign over the President’s criminal suggestions.
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The judiciary committee’s request for his testimony presents another test of his values, and his response will establish his place in history. That he bowed to the White House and stayed away does not mean the matter is settled. Indeed, if he had jumped to testify he might have been seen as too eager and thus, suspect.
Turns out that McGahn, who is cool to Trump’s hot and reserved in the face of the President’s chaos may be playing his own game, in order to protect himself and, perhaps, our democracy.