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Jones Day Will Probably Take Don McGahn Back, But They Shouldn’t

I mean, I wouldn’t hire McGahn back until he could pass the MPRE, but I have standards.

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Don McGahn (Photo by Drew Angerer/Getty Images)

UPDATE 8/29/18: President Trump has made it official. Don McGahn is leaving after the Kavanaugh confirmation hearings.

The headline news from this weekend is that White House Counsel, Don McGahn, has cooperated extensively with the Mueller investigation. For a man who demands loyalty, Donald Trump seems to inspire about as much loyalty in his henchmen as Skeletor did.

Given Donald Trump’s instincts to, you know, obstruct justice, letting the man often ordered to obstruct justice on Trump’s behalf free rein to talk to the special counsel was probably a tactical error by Trump’s legal team.

The report in the New York Times indicates that McGahn was concerned he would be set up to take the fall for Trump’s obstruction. McGahn should be worried about that. He might only be a hatchet man, but hatchet men also face punishment when the wheel comes back around.

As Cristian Farias pointed out in New York Magazine earlier this year, Don McGahn is already well on his way to being known as the worst White House counsel of all time. He has been unable or unwilling to impose even basic legal standards on this White House. He does what other men would refuse and entertains what better men would decry.

But the fact that he is cooperating so extensively with Mueller indicates that McGahn is, in fact, a rat: not necessarily in the “betrayal” sense, but in the “I ain’t going down with this sinking ass ship” sense. The Times report shows that McGahn intends to survive the Trump administration. He has sacrificed his reputation in service of Trump, but he doesn’t appear to be willing to hand over his bar license.

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Any long game McGahn might be playing will eventually lead him back from whence he came, back to Jones Day. We had reports earlier this year that McGahn was trying to figure out when he could get back to his old job at the firm. Some sources said he’d be out by this summer. With that deadline passed, others speculate that he’ll hang on to the midterms and then quit.

My operating assumption is always that the Mueller people don’t leak, so any information that gets out is out because Trump or a Trump stooge thinks they benefit from it. Here, it would make sense to me that McGahn himself leaked that he’s been talking, to anger the impulsive president to trigger the firing that lets McGahn go back to Jones Day.

But why would Jones Day want Don McGahn back? What client is going to say, “You’re putting Don McGahn on my case? The disgraced White House counsel who helped the president obstruct justice, ratted him out to save his own skin, and presided over the most corrupt White House in history? SIGN ME UP! I’d be honored to pay his fees.”

I know that Jones Day has made the strategic decision that ingratiating itself to this White House is worth the profile. I know they’re banking on being able to say, “We’ll serve anybody in power, even the Nazis,” and having most lawyers nod and agree that taking on terrible clients is just part of the game. And I know they’re probably right in their assessment. Rich and powerful people are not in the habit of punishing each other for lacking moral and ethical standards.

But does competence mean literally nothing? McGahn isn’t just compromised by his association with a racist fascist crimelord… he’s also shown his ass as a terrible freaking attorney. How does the first travel ban get within 10 feet of his desk without be set aflame? How does Tom Price happen? How does Rob Porter happen? How does the Devin Nunes memo happen? How does Jared and Ivanka happen?

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McGahn has been an epic disaster at his job. How does Jones Day just stick his name on a corner office and say “welcome home”? CAN THEY MAKE HIM TAKE THE MPRE AGAIN JUST TO CHECK?

Of course, they’ll have him back. And 10 years from now, McGahn will slurping oysters with some prospective client, talking about how his close personal relation with Supreme Court Justices Neil Gorsuch and (probably) Brett Kavanaugh is the kind of insider representation that you can get at Jones Day.

This town needs an enema.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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