Trump’s White House counsel faces unusual challenges – Politico
Donald Trump’s White House counsel faces a tough job—and one whose profile is growing higher by the minute.
D.C. lawyers and sources close to the transition told POLITICO Monday that Trump appears all but certain to tap election lawyer Donald McGahn, who served as his campaign lawyer and is advising the transition, for the top West Wing legal job.
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But, when it comes to resolving the conflict of interest questions swirling around the president-elect’s business empire, Trump may well find he needs a White House oracle or perhaps a White House magician.
The most urgent task facing Trump’s White House counsel: setting up a “blind trust” to manage Trump’s business holdings in the U.S. and abroad. The messy out-of-the-gate assignment also highlights how the president’s lawyer often has to be attuned to considerations that aren’t strictly legal.
“I don’t think you can just learn this on the job….Having a working understanding of how the White House works and how it intersects with the rest of government I just think is essential,” said C. Boyden Gray, who served as counsel to President George H.W. Bush.
“You need to have someone who’s had to live in the intersection of the White House, agencies, Congress and the press and media,” said Gray. “That means somebody who has been in the political process. It doesn’t have to be someone from Washington, but people with only corporate law experience, I don’t think that’s a good idea.”
Craig Holman of Public Citizen said the demands will be unusually fierce on Trump’s counsel: “If Trump goes ahead with a White House counsel rooted in ideology and partisanship as opposed to the actual skills of the law and strength of experience with the government, Trump is moving quickly toward what I see could be the most scandal-ridden administration in recent memory. A competent White House counsel could lessen that damage.”
Among those turning up the spotlight on the White House counsel job are President Barack Obama and several of Trump’s allies. In two recent press conferences and an Oval Office meeting with Trump, Obama has gone out of his way to repeatedly underscore the importance of having a solid chief lawyer in the West Wing.
“When I met with the president-elect, I suggested to him that having a strong White House counsel that could provide clear guideposts and rules would benefit him and his team because it would eliminate a lot of ambiguity,” Obama said while at a summit meeting in Peru Sunday.
Trump’s team is also using the counsel’s position as an assurance of rectitude.
“No matter what decisions are made….they’re all going to be run through counsel,” Trump’s pick for White House Chief of Staff, Reince Priebus, said Sunday on NBC’s “Meet The Press.” “There’s a White House Counsel’s Office that will be there, that will be issuing opinions and these matters will all be dealt with. They’ll all be dealt with accordingly.”
White House counsels often fall into two camps: close friends of the president or veteran Washington hands. The leading contender for the counsel’s position under Trump, McGahn, doesn’t appear to fit squarely into either category.
McGahn’s uncle, Patrick “Paddy” McGahn, was a longtime lawyer for Atlantic City casinos, including Trump’s. The connection would appear to have conferred some fondness for the nephew, but for a couple of confounding facts: Trump fired the elder McGahn in the early 1990s and wound up suing him for allegedly flagrantly overbilling his legal fees.
Don McGahn’s government resume is a limited one. He served as counsel to the National Republican Campaign Committee before being tapped for the Federal Election Commission by President George W. Bush in 2008. On the panel, McGahn pushed aggressively for fewer campaign finance restrictions. McGahn spent about five years at the FEC, including a stint as chairman, before going back to private practice in 2013.
Former White House lawyers have described the learning curve in the job as a steep one. That’s particularly true for those entering with little government experience, like Bernard Nussbaum, a former corporate and securities law litigator who served as President Bill Clinton’s first White House counsel. President George W. Bush’s early counsel appointees Alberto Gonzales and Harriet Miers were also seen as being picked primarily because of their allegiance to the president.
Seasoned veterans tapped for the job in recent decades include Fred Fielding, who served Bush and President Ronald Reagan, Lloyd Cutler, who served Clinton and President Jimmy Carter, and Ab Mikva, a former judge and Congressman, who served Clinton.
Legal insiders say if Trump is aiming to pick someone of similar stature, he could look to A.B. Culvahouse, a former Reagan counsel who helped Trump with his vice presidential vetting process and has reportedly also aided the transition. It’s unclear whether Trump discussed the White House counsel’s slot with Culvahouse. Culvahouse and Trump aides declined to respond to requests for comment.
The counsel’s job involves three main components, former White House lawyers said: vetting potential judicial and executive branch nominees, addressing national-security related legal questions, and setting and enforcing ethics rules. The latter area could be the most problematic because of Trump’s far-flung business holdings and because, as Trump has observed, many of the government’s ethics rules don’t apply to the president or vice president.
“My kids will run it …They won’t talk to me,” Trump told “60 Minutes,” referring to his businesses. “Now, the laws are very soft on this whole matter. I don’t have to do anything,”
For the moment, Trump is facing a torrent of news stories reporting on potential conflicts involving his Washington hotel, his meetings with Indian business partners and whether his children, who will be taking over his businesses, should join his meetings with foreign leaders.
Trump’s aides have promised a “blind trust” or something akin to it, that will address these concerns, which they acknowledge are unprecedented.
“It’s a truly unique situation where you have an international business person that has done incredibly well in life, that is now going to work toward focusing 24/7 on being president of the United States and setting up a system — a legal system to shield himself from any and all conflicts,” Priebus told NBC Sunday.
However, lawyers who’ve handled similar issues say that won’t be easy.
“A blind trust is not the be all and end all. It doesn’t help very much and, in some circumstances, it doesn’t help at all,” Gray said. “I don’t know what the solution is because hanging out there, no matter how you cut it—it’s the name.”
“You have a much more challenging unwinding to do to institute the blind trust and truly insulate this president from real or perceived conflicts of interest,” said another GOP lawyer who worked in the White House counsel’s office and asked not to be named. “The perception is in some ways more important because he’s really not under the coverage of all of the ethics laws. So, the perception is incredibly important.”
Since Trump’s blind trust probably won’t be completely blind, the White House may need to take unorthodox measures to address the conflict concerns, the former White House lawyer said. That could include being more transparent about decisions, particularly on foreign policy issues.
“They might need to give more classified briefings to the Hill to assure them that the perceived conflicts have been challenged by White House counsel,” the lawyer said.
There are still more wrinkles. Casinos generally have to inform state officials who their true owners are, so Trump may always know that certain properties are his even if he never discusses the issue with his children. And a clause in the Constitution prohibits U.S. officials from receiving most benefits from foreign governments, although enforcing that against a president wouldn’t be easy.
In the end, the exemption the president enjoys from conflict-of-interest laws puts even more pressure on the incoming counsel, because he or she could offer the final stamp of approval on all kinds of Trump-related business dealings.
“Clearly, ethics is going to be the issue with the Trump administration much more so than any previous one,” said Nancy Kassop, a SUNY political science professor who interviewed a series of former presidential lawyers. “I think this administration is going to be a real test of the counsel’s office. It will be a much busier place than it has been in the past with so many potential conflicts of interests and also dealing with a president who’s not familiar with the governmental process….Daunting is a good word.”