By Tom Schoenberg and Shannon Pettypiece, Bloomberg Businessweek
In August, White House lawyer Ty Cobb made a bold prediction — the cloud cast by the Russia investigation that President Trump hired him to handle would soon lift. If special counsel Robert Mueller’s probe into Russian election meddling was still haunting the White House by Thanksgiving, Cobb would be “embarrassed,” he told Reuters, and “worse” if it went past the end of the year.
Seven weeks later, meeting that ambitious timetable looks increasingly difficult. After initial delays, Cobb is finally clearing through a backlog of requests from Mueller for documents and information, according to two people familiar with the investigation. Mueller could make additional document requests and is only now getting around to scheduling interviews with White House staffers, which could take months.
Still, Cobb is optimistic. “I’m working dutifully to get this concluded as quickly as possible and hopeful that can be by the end of the year,” he says.
An added complication for Cobb is the friction he’s been having with Trump’s White House counsel, Donald McGahn, whose priorities have clashed with Cobb’s on several fronts. Tensions have been building since Cobb joined the White House this summer. He initially sought to use some lawyers from McGahn’s staff, yet McGahn balked, says a person familiar with the investigation. Cobb had to build a team from scratch and was left with the impression that McGahn was being unhelpful.
Another person says McGahn was only trying to protect his attorneys, who could be called as witnesses in the Mueller investigation and end up in the awkward position of having to pull documents on themselves, leading to potential obstruction accusations.
The two eventually resolved their feud over resources. Cobb now has seven employees, including people brought in from the outside, IT workers, and several staffers he was able to get from McGahn’s office with the help of Chief of Staff John Kelly.
One condition of Cobb coming onboard was that he would report to Trump directly, not to McGahn. Any disagreement between the two over legal strategy, or which documents to turn over, would be settled by Trump, according to a person familiar with the arrangement. So far Trump hasn’t had to weigh in.
While Cobb seeks to have the probe resolved as quickly as possible, McGahn wants to cooperate with Mueller while ensuring that decisions made now don’t box in Trump down the road or bind future presidents, says a person familiar with the investigation. McGahn’s lawyer, William Burck, says his client hasn’t tried in any way to block Cobb’s efforts.
In addition, McGahn has emerged as a potential key witness in Mueller’s probe. McGahn was Trump’s chief lawyer during the campaign and has had a front-row seat to many of the controversies Mueller is interested in. He was the first person in the White House to be alerted by the U.S. Department of Justice that then-national security adviser Michael Flynn could be compromised by the Russians. That meeting was followed by an 18-day period before Flynn’s firing, a gap that remains unexplained and that Mueller will likely want to fill in.
McGahn later had a prominent role in the firing of FBI Director James Comey, advising Trump against sending a termination letter described by a person who had seen it as emotional, impolite, and provocative. McGahn’s recollection of Trump’s thinking at the time could be grist for determining whether Comey’s departure was tied to a refusal to drop the Flynn probe, which could be the basis for an obstruction-of- justice charge.
McGahn recently hired Burck, who’s also representing former White House Chief of Staff Reince Priebus. Mueller has indicated to the White House that he wants to interview McGahn, though a meeting has yet to be scheduled, according to a person familiar with the matter.
In other circumstances, McGahn would enjoy two protections under the law: executive privilege and attorney-client privilege, which allow his communications with the president to remain confidential. But as a result of rulings from the last two big White House investigations—Watergate and Whitewater—McGahn is potentially exposed to Mueller’s questioning, especially if confronted with a subpoena to appear before a grand jury. “In the face of a grand jury subpoena, there is no attorney-client privilege for government lawyers,” says Michael Forde, a corporate lawyer in Chicago who wrote a law review article examining privilege issues during the Whitewater investigation.
Both the Nixon and Clinton administrations tried and failed to block government investigators from reaching into the White House to gather evidence of wrongdoing. In Watergate, the U.S. Supreme Court ruled that a subpoena to review White House tapes of conversations between President Nixon and his chief advisers, including his White House counsel, John Dean, prevailed over the importance of keeping presidential communications confidential.
After Watergate, the White House counsel came to be seen as representing the Office of the President, not the person occupying it. Dean is a potential cautionary tale for McGahn. He ended up pleading guilty to obstructing justice, served time in a federal facility, and was disbarred. “It’s pretty clear that for anyone on the government payroll, the claim of privilege is pretty shaky, particularly with grand juries,” says Dean, 78.
The ability for presidents to speak confidentially with their White House lawyers was curtailed even more during the Clinton administration as Independent Counsel Kenneth Starr won a series of rulings that gave him access to White House aides and notes. Clinton lost his attempt to shield his deputy counsel, Bruce Lindsey, from being summoned to the grand jury to discuss his conversations with the president about Monica Lewinsky.
Even before the Russia probe, McGahn, a former head of the Federal Election Commission, was presiding over a chaotic operation. “There is one job for a White House counsel, and that is to impose discipline,” says Walter Shaub, the former head of the Office of Government Ethics who resigned in July out of frustration with what he said was the Trump administration’s lack of concern for ethics. Shaub was irritated, for example, when McGahn’s office submitted paperwork for political nominees to him that was incomplete or out of date.
McGahn’s best strategy might be to cooperate enough in his interviews with Mueller that he avoids getting put in front of a grand jury, where he won’t have access to his attorney. If the White House chooses to challenge a Mueller subpoena for McGahn, they’ll likely wind up in court.
“Our experience was once it gets to litigation, the courts are very focused on letting the investigation go forward,” says Timothy Armstrong, who worked in the White House counsel’s office during the Clinton administration. McGahn’s ability to navigate all this will define not only his legacy, but also the future of Trump’s presidency, says Nicholas Allard, dean of Brooklyn Law School.
“Don McGahn can be a hero, a goat, or sacrificial lamb,” he says.
—With Greg Farrell
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