As Don McGahn departs from his job as White House counsel, I’m reminded of an interview I had a few weeks back with Yale Law School Professor Bruce Ackerman, one of the most astute observers of the presidency I know.
I asked him what his number one post-Trump reform would be, and he didn’t hesitate for a second. “Abolish the White House counsel,” he said.
Ackerman, who has been eloquent about the danger to our constitutional system presented by an uncontrollable, bloated executive branch – see his 2013 book, The Decline and Fall of the American Republic – considers the modern White House Counsel’s Office ground zero for the continued expansion of executive power.
“They’re the ones who are the source of one after another ‘creative interpretation’ that build on each other from term to term — always in the same direction,” Ackerman said. They see their job not as neutral legal advisors, but as trying to create the best legal case for the president, he said.
“That’s not the rule of law.”
“One ‘creative opinion’ is the basis for the next,” he said. “This is a one way ratchet.”
As a result, the outlines of what Ackerman calls “executive constitutionalism” are not determined by the Supreme Court, but by a few dozen not particularly experienced, but very smart and extremely loyal lawyers, who are completely replaced with every new president.
Unburdened by institutional memory, fueled by ambition, “they can create very imaginative opinions,” Ackerman said.
But isn’t abolishing the office a bit dramatic? No, says Ackerman.
In fact, the president’s lawyer is supposed to be the attorney general, who oversees a vast staff of long-serving legal experts with institutional memory. The Office of Legal Counsel (so badly abused by Dick Cheney) is housed there, specifically charged with acting as constitutional counsel to the entire executive branch, and primarily the attorney general and the president.
Unlike the attorney general, the White House counsel doesn’t require Senate confirmation, can’t be held accountable by congressional committees, and operates with no transparency.
(I recently found a 2016-era White House Transition Project document on the White House Counsel’s Office, which quoted Carter administration attorney general Benjamin Civiletti stating in 1999 that “the White House Counsel’s Office is an abomination, structurally inefficient, lots of potential for conflict because of its political nature. If the president has a trusted person who can give him confidential advice, keep that person out of government.”)
Ackerman points out that the counsel’s office – like many of the other trappings of the imperial presidency – is a 20th century invention.
“Such a person never existed until Franklin Roosevelt,” Ackerman notes.
Nixon’s counsel, John Dean, was the first to have a staff. According to one accounting, Lloyd Cutler, in 1980, had six lawyers working for him. Fred Fielding, in 1986, had around 10.
Last March, the White House announced the names of 26 lawyers working for McGahn, for a total of 27.
Ackerman said he saw a big turning point in the use of the White House counsel’s office during the Obama administration – particularly when Obama decided he didn’t need congressional authorization to keep bombing Libya or when he expanded the battle against terrorism to the Islamic State in Iraq and Syria.
As Charlie Savage reported for the New York Times in June, 2011:
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations….
Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Ackerman started calling for the abolition of the counsel’s office long before Trump. Here he is arguing the position in 2009, in Slate.
Working out of the political hothouse of the West Wing, the person serving as White House counsel will require remarkable backbone to resist pressure to rubber-stamp legally problematic aspects of the president’s policies.
Ackerman wrote then that Gregory Craig, Obama’s first counsel, “may well possess the requisite integrity.” But as I wrote for the Huffington Post in 2010, then-chief of staff Rahm Emanuel quickly pushed Craig out in order to more easily make legal calls on political grounds.
So far, at least, the most outrageous legal assertions about the Trump White House have come from his private, rather than White House lawyers. John Dowd and Jay Sekulow wrote the letter asserting that a president was literally incapable of obstructing justice, not Don McGahn.
McGahn, in fact, has had a complicated relationship with Trump. On the one hand, he’s been an unflinchingly loyal fighter for stacking the bench with far-right judges and justices – it was he who talked Trump out of letting the FBI conduct a reasonably broad inquiry into the sexual assault allegations against Bret Kavanaugh, instead ordering a sham investigation that gave Republican senators cover to confirm him.
At the same time, McGahn has been caught bragging about his role in restraining the explosive boss he called “King Kong” in private, has been a key witness in Robert Mueller’s investigation into Trump campaign collusion with the Russians — and found out about his upcoming resignation via a Trump tweet
So the key question hanging over McGahn has less to do with creative legal arguments, and everything to do with whether he kept Trump from criminally obstructing justice — or aided and abetted him.