Interesting legal points

Former Clinton White House Counsel, Bob Bauer, weighs in on the NYT story regarding Don McGahn.

A White House counsel is not in a position to reject or ignore a special prosecutor's request for information relevant to an ongoing criminal investigation. The law on the fundamental point is clear. Precisely as the Times describes McGahn’s understanding of his role, the White House counsel is a government employee, not personal counsel to the president. Courts presented with the question have ruled that, in a criminal investigation, the attorney-client privilege does not shield a White House counsel from providing his or her evidence. Neither is executive privilege a safe harbor if the government can demonstrate need for the information and its unavailability from other sources.

The Clinton administration litigated and lost both privilege claims in defending against the independent counsel investigations. When the U.S. Court of Appeals for the D.C. Circuit ruled unanimously on the application of the attorney-client privilege, it did so in no uncertain terms.

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This is not to say that, when called to interview with prosecutors, a White House counsel would agree to answer any and all questions. It falls to his or her attorney to negotiate an acceptable scope and focus for the interviews. In preparing for those discussions, the counsel and his or her lawyers can certainly take into account the constitutional and other reasonable concerns of the president’s personal counsel. The Times story does not provide detail about the extent to which McGahn’s own counsel consulted with the president and the president’s private counsel, except to report that the president raised no objection to the interviews. In the end, however, the White House counsel is a government employee called upon to negotiate in good faith the terms of cooperation with criminal justice authorities.

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This is the irony of the counsel’s position: the very proximity to the Oval Office that distinguishes the role and accounts for so much of its value, can also present grave risks for a president in legal trouble.

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For his part, Trump may have decided that this is a situation he can—or, maybe for the time being, must—accept. It is also a situation without precedent in the history of the counsel’s office.

  Lawfare Blog

Pretty much everything about Trump in the White House is unprecedented. (Or as he once famously said, "unpresidented".)