When White House counsel Don McGahn exits the West Wing this fall, he will leave with a record number of judicial appointments and a favorable relationship with both President Trump and the career attorneys investigating his administration.
“Don McGahn’s a really good guy. He’s been here now, it will be almost two years, and I have a lot of affection for Don,” Trump told reporters on Wednesday, hours after announcing the latest personnel change.
What’s far from certain is whether McGahn’s eventual successor will leave with the same high praise and accomplishments.
His departure comes as the president intensifies his attacks on Justice Department employees, weighs an interview with special counsel Robert Mueller, and prepares for a potential “blue wave” in the midterm elections that could open the floodgates for ethics investigations by a newly-elected Democratic congressional majority.
A source familiar with the president’s thinking said he has yet to decide on a replacement for McGahn, who for months has told confidantes he hopes to be succeeded by Emmet Flood. The former Clinton administration official was appointed to the White House legal team earlier this summer in a move largely orchestrated by McGahn.
Flood has mostly focused on the federal probe into Russian election meddling, which has led to indictments and guilty pleas from associates of the president. Because Flood oversaw issues related to executive privilege during his two years in the White House counsel’s office under former President George W. Bush, critics previously said his appointment likely foreshadowed a shift away from maximum cooperation with Mueller among the White House legal team.
Issues involving executive privilege could soon become the bulk of the job for whomever replaces McGahn, particularly if the Mueller probe stretches on past the November midterm elections.
The president has spent months wavering on whether to sit for an interview with the special counsel. He told the Wall Street Journal earlier this month he worries about subjecting himself to a possible perjury trap, despite previously claiming an interview would be harmless since he has “nothing to hide.”
Trump’s legal team has argued that “executive privilege,” or the authority a president has to withhold information in the public interest for reasons related to confidentiality, should protect him from testifying even if he is subpoenaed by the special counsel.
Depending on the special counsel’s demand for a presidential interview, and Trump’s decision on granting one, the situation could escalate to a court battle where court proceedings and a defense strategy would fall on the newly-appointed White House counsel.
But the ongoing federal investigation into Russian election interference and possible collusion between Trump associates and the Kremlin might also take a backseat to congressional document requests and inquiries if Democrats resume control of the House this fall. Party leaders have hounded their GOP colleagues for months, demanding investigations into all kinds of alleged ethics violations — from lavish furniture purchases to overseas investments — by White House officials and members of the president’s cabinet.
“Elijah Cummings with the House Oversight Committee gavel is Donald Trump’s worst nightmare,” a former House Democratic aide told the Washington Examiner. “He is methodical, he is disciplined, he is impossible to intimidate. And I think he is going to go through every single thing Republicans have refused to investigate. He will control that and have the subpoena power.”
“Since the beginning of the Trump administration, Republicans have stymied Democratic efforts to investigate the administration and ferret out government waste, fraud, and abuse and I think with Cummings as chairman you would see vigorous oversight,” the aide added.
A former Trump administration official told CNBC earlier this month that the White House is “prepared to handle whatever,” particularly if Flood takes over once McGahn leaves.
“Flood has experience and respect in Washington and handled very high-profile oversight matters and congressional inquiries,” the person said.
But that didn’t stop top Republicans from voicing concerns on Wednesday about McGahn’s forthcoming departure. The current White House counsel is expected to leave as soon as Supreme Court nominee Brett Kavanaugh secures confirmation in the Senate.
“I hope it’s not true McGahn is leaving White House counsel,” Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, wrote on Twitter, adding that Trump “can’t let that happen.”
Senate Majority Leader Mitch McConnell, R-Ky., described McGahn as “the most impressive White House counsel” he’s seen during his decades in Washington.”
“His departure from the White House, whenever that may be, would be a big loss for the Trump administration and the country,” McConnell said.
The White House did not respond to questions on Wednesday about the timeline for naming McGahn’s successor. However, outspoken Trump lawyer Rudy Giuliani told Time that Flood would be “an excellent choice” and already gels with the president and staff.
“[Trump] does have an excellent relationship with Emmet Flood. From the very beginning, they sort of hit it off,” Giuliani said.
