New York Times reporters Michael S. Schmidt and Maggie Haberman wrote a lengthy piece full of anonymous sources comparing President Trump to disgraced former president Richard Nixon and speculating that White House counsel Donald McGahn cooperated with the Robert Mueller special counsel investigation during “at least three voluntary interviews with investigators that totaled 30 hours over the past nine months” because he was “[w]orried that Mr. Trump would ultimately blame him in the inquiry.”
Without interviewing McGahn, the Times claims that McGahn privately gave Trump the pejorative nickname of “King Kong” and that McGahn was “determined to avoid the fate of the White House counsel for President Richard M. Nixon, John W. Dean, who pleaded guilty to conspiracy to obstruct justice in the Watergate scandal. Mr. McGahn decided to fully cooperate with Mr. Mueller. It was, he believed, the only choice he had to protect himself.”
The Times implies that Trump’s legal strategy surrounding the Mueller probe wasn’t well thought out.
“For a lawyer to share so much with investigators scrutinizing his client is unusual,” The Times claims. “Lawyers are rarely so open with investigators, not only because they are advocating on behalf of their clients but also because their conversations with clients are potentially shielded by attorney-client privilege, and in the case of presidents, executive privilege.”
The Times fails to mention an important aspect of executive privilege identified by The Wall Street Journal editorial board:
“Mr. McGahn is not Mr. Trump’s personal attorney, so attorney-client privilege isn’t at issue. But as White House counsel Mr. McGahn represents the Presidency. He is a careful enough lawyer to advise Mr. Trump that agreeing to answer Mr. Mueller’s questions would waive executive privilege.
“And the Times reports that Mr. McGahn’s attorney, William Burck, said on the record that Mr. McGahn cooperated only after Mr. Trump waived any privilege claim. This, in turn, meant that Mr. McGahn would have to answer all of Mr. Mueller’s questions. Once privilege is waived, Mr. McGahn couldn’t decide to answer, say, what Mr. Trump told him about Attorney General Jeff Sessions but refuse to discuss the President’s state of mind when he fired James Comey at the FBI. Without invoking privilege there is no legal basis for Mr. McGahn to refuse to answer a question.
“This isn’t what you’d expect if Mr. Trump is leading a coverup. Richard Nixon and Bill Clinton fought extensive legal battles with prosecutors over executive privilege. Mr. Clinton invoked privilege to block aides Bruce Lindsey and Sidney Blumenthal from testifying to Ken Starr’s grand jury.Yet when Mr. Trump doesn’t invoke privilege for his White House counsel, he gets no credit.”
The Journal reported that it’s no wonder Trump later tweeted: “I allowed White House Counsel Don McGahn, and all other requested members of the White House Staff, to fully cooperate with the Special Counsel. In addition we readily gave over one million pages of documents. Most transparent in history. No Collusion, No Obstruction. Witch Hunt!”
I allowed White House Counsel Don McGahn, and all other requested members of the White House Staff, to fully cooperate with the Special Counsel. In addition we readily gave over one million pages of documents. Most transparent in history. No Collusion, No Obstruction. Witch Hunt!
— Donald J. Trump (@realDonaldTrump) August 18, 2018