Presidential power gets a booster shot, no matter Robert Mueller's view

US President Donald Trump | File photo
President Donald Trump was never called to account for a Saturday night massacre. Nor was he called to testify before Special Counsel Robert Mueller.

That’s in part because of a deft maneuver by Donald McGahn, whose actions as White House chief counsel were among the more significant disclosures in the newly released Mueller report. McGahn flatly refused to take any step to remove Mueller as Trump fumed over the Russia investigation in his first year as president.

And when the special counsel’s team asked about that and other presidential deliberations, McGahn obliged. Trump’s lawyers cleared the way for people in the White House to speak to Mueller, as part of their strategy to provide prosecutors with everything they needed short of interviewing the president himself. McGahn chose to lay it all out for Mueller’s team.

Even though McGahn frequently butted heads with the president before he left the White House last year, he appears in these and other ways to have saved Trump from himself and helped preserve, if not strengthen, the executive power of the Oval Office. Years from now, he may be remembered as much for his success sidestepping legal spats with Mueller that could have carved limits on presidential authority as for his signature move -- orchestrating a conservative shift in the nation’s judiciary up through the Supreme Court.

From the moment the special counsel was named, legal observers anticipated legal challenges such as a subpoena to the president that could build to a constitutional crisis. Trump’s legal team pressed for the president to answer questions in writing rather than in person, and carried the day. After all, Mueller had a trove of documents that had been handed over voluntarily, but also unfettered access to McGahn about some of the most sensitive topics in the White House.

“The way this unfolded left a lot of legal and constitutional questions completely unresolved,” said Michael Koenig, a former Justice Department prosecutor. “No court has weighed in on any of this stuff.”

Should such issues rise to the nation’s courts in the future, the bench is firmly stocked with adherents of an expansive view of the president’s power.

"If Mueller had forced the issue, it is possible that it would have weakened the presidency by generating court decisions adverse to the president’s position and creating a clearer legal boundary of presidential power that would probably be narrower," said Keith Whittington, a politics professor at Princeton University.

Unitary Executive

It’s the right outcome for those who believe in the unitary executive theory of presidential power, a wing of the Republican party that includes U.S. Attorney General William Barr. Adherents have fought against what they describe as the “administrative state” and embraced the concept of robust presidential authority.

Barr explained his view of executive authority in an unsolicited memo last June to Deputy Attorney General Rod Rosenstein that considered Mueller’s investigation of a possible obstruction case against President Trump. Barr criticized the special counsel’s obstruction theory as “fatally misconceived,” and wrote that a president should not be accused of obstruction for decisions made while exercising the powers of the office, such as firing personnel.

As Attorney General, Barr concluded there was no obstruction case when he was privately presented with Mueller’s findings and announced that to the nation.

That was not the finding of Mueller’s team. The Mueller report made public Thursday carefully drew no conclusion on whether Trump obstructed justice, citing Justice Department policy not to charge a sitting president. But it knocked down the argument in Barr’s earlier memo and the one by Trump’s lawyers that the president couldn’t be charged with obstruction stemming from the exercise of powers granted him under Article II of the Constitution. (Pointedly, Mueller’s team said a president could be held accountable by Congress and that he could be charged after leaving office.)

Trump’s lawyers had pointed to the firing of FBI Director James Comey, saying the power to hire and fire such an appointee is specifically reserved for the president by the Constitution.

Mueller’s team disagreed, citing Supreme Court precedent to say the “Constitution does not categorically and permanently immunize a president for obstructing justice through the use of his Article II powers.” Instead, citing the separation of powers doctrine, Mueller wrote that it is up to Congress to protect official proceedings “from corrupt, obstructive acts regardless of their source.”

Congressional Power

Barr’s branch of the Republican party came to power during the Reagan Administration, just a few years after President Richard Nixon resigned in disgrace over the Watergate scandal. In the wake of that scandal, Congress’ power grew at the expense of the executive branch, said Christopher Kelley, who teaches political science at the Miami University in Ohio and specializes in presidential power.

McGahn, a former Republican commissioner of the Federal Election Commission, joined the Trump campaign and later became the top White House lawyer, a position that represents the office of the presidency rather than the person. Because of his role on the Trump campaign, he was recused from legal matters related to Mueller’s investigation, which opened the way for Ty Cobb and others to handle the probe.

The belief in a unitary executive, with broad authority to carry out all executive functions assigned by Article II, underpins McGahn’s conduct described in the Mueller report, Kelley said.

"The public image of Don McGahn is different from how he appears in the report,” said Kelley. “McGahn wasn’t just some lackey or yes-man. He had a center guiding him. And where he believed that guidance led him, he went, and where the guidance told him not to, he would not go."

In March of 2017, McGahn badgered then-Attorney General Jeff Sessions about his decision to recuse himself from what was then the FBI’s investigation into Russian election interference. That is consistent with the unitary executive view, Kelley said. Sessions’ recusal deprived the president of his rightful authority to have his own person leading the nation’s Justice Department.

Three months later, McGahn said he ignored Trump’s order to contact to Rosenstein and have Mueller fired. Firing Mueller, he later testified, would have been comparable to Nixon’s “Saturday Night Massacre” of 1973, when the attorney general and deputy resigned rather than fulfill an order to fire the special prosecutor at the time. Nixon’s solicitor general, Robert Bork, did the deed, but the episode damaged Nixon as well as the office of the presidency.

The Nixon shadow loomed large. McGahn, who has since returned to the law firm Jones Day, told investigators that "he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not ‘Saturday Night Massacre Bork.’”

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