When Don McGahn first arrived at the Federal Election Commission in July 2008 as a shaggy haired, guitar-playing campaign finance lawyer, his casual appearance masked his carefully crafted plans for the sleepy agency charged with regulating campaign finance.
As a new commissioner, McGahn—now President Donald Trump’s top White House lawyer—quickly consolidated power. He persuaded the two other Republican commissioners to vote in lockstep with him, essentially deadlocking the agency’s decision-making. And he ostracized two of the FEC’s Democratic commissioners so much that they rarely spoke to the Republicans. McGahn once grew so irritated with one Democrat that he ripped out pages of a rule book and threw them at her during a meeting. He aggressively questioned and sometimes belittled career staffers and attorneys, according to 10 former FEC officials and staffers; the general counsel, the agency’s top staff lawyer, quit after McGahn tried to curb the power of the legal staff.
Today, the FEC ranks as the worst small agency to work for in the federal government, according to an annual survey done by the nonpartisan Partnership for Public Service. But from a strategic perspective, McGahn’s approach worked. In just five years, he ground the FEC to a slow crawl, with fewer disciplinary actions and fines at a time when 501(c)4s and super PACs flooded the political system with dark money. To longtime staffers, former FEC officials, and campaign finance and good-government experts, McGahn’s tenure seemed like part of a broader Republican-sanctioned strategy to defang the agency. That could be why Senate Majority Leader Mitch McConnell handpicked him for the job.
“It was pretty clear what he thought of the agency—that he did not believe it should exist,” one former FEC staffer says.
“I don’t think anything he does is fly by the seat of his pants,” is how another former FEC staffer describes McGahn. “There is a mission and reason why he would take that position.”
Even top Democratic lawyers acknowledge that McGahn’s tenure was one of the most consequential in the agency’s history. “He was the most significant commissioner to ever serve,” says Robert Bauer, one of the Democrats’ top campaign finance lawyers and former White House counsel to President Barack Obama. “He came with the capacity to control three votes on a six-member commission. He set the tone and a relentlessly ideological direction and went about this very aggressively.”
This article is based on interviews with more than a dozen former FEC staffers, former FEC officials, campaign finance lawyers and friends of McGahn’s, many of whom requested anonymity to speak more openly about the most powerful lawyer in the administration. Neither McGahn nor the White House responded to requests for an interview or comment for this article.
McGahn, for his part, has always been proud of his bomb-throwing FEC legacy. “I think it was Gene Simmons from KISS who said, ‘There’s no such thing as bad publicity,’” he told the trade publication Campaigns & Elections in 2013, a few months after leaving the agency. “I beat [good-government reformers] at their own game.”
“The more they screamed, the more I knew I was doing the right thing,” he added.
Years later, McGahn’s FEC tenure is instructive as he settles into his role as the White House counsel, advising President Trump on conflicts of interest, national security, executive orders, campaign finance, regulations and, most recently, Trump’s pick for the Supreme Court, Neil Gorsuch. McGahn took the lead in vetting Gorsuch and was the only staffer to sit in on Trump’s meeting with the judge in Trump Tower in mid-January, giving McGahn a leading role in perhaps the longest-lasting decision of Trump’s presidency.
In just a month, McGahn has also found himself caught up in the early controversies of Trump’s presidency. As counsel, he is responsible for advising the White House on the drafting of executive orders, like Trump’s immigration and refugee ban, which has been frozen by a flurry of successful lawsuits. And McGahn, a powerful yet typically under-the-radar figure, played a starring role in last week’s biggest White House scandal, when Americans learned that the Justice Department’s acting attorney general at the time had personally warned him in late January that Trump’s national security adviser, Michael Flynn, was susceptible to bribery following private conversations he had had with Russia’s ambassador to the United States before Trump’s inauguration. McGahn concluded “there was not a legal issue,” according to White House press secretary Sean Spicer. But within weeks, when it became clear Flynn had misrepresented his conversation with the ambassador, Trump dismissed him, after just 24 days on the job. The whole episode raised questions about McGahn’s effectiveness in looking out for the president and administration.
Critics of McGahn, like former George W. Bush administration lawyer Jack Goldsmith, have faulted him for not acting faster. “The multiple ethics problems swirling around the White House are squarely McGahn’s responsibility,” Goldsmith wrote in a blog post, concluding that the legal “screw-ups” in the White House so far have been largely about “McGahn’s substance and style.”
Disrupting the FEC, an arcane agency that few Americans understand or care about, is one thing. Disrupting the institution of the White House would affect a much broader swath of America. The question now is whether McGahn will slow down Trump, acting as an internal set of checks and balances and a legal and ethical compass in the White House, or if he will capably encourage Trump’s own worst instincts to act impulsively, with little regard for process or precedent. The evidence from McGahn’s time at the FEC, and his first few weeks at the White House, suggests that he will serve more as the latter. At the FEC, at least, he was, as one former senior official puts it, “a one-man wrecking crew.”
McGahn’s preferred operating style at the FEC—working with loyalists, pushing a deregulatory agenda, and battling insubordinates and colleagues who disagreed with him—might foreshadow what he now could do in the White House, only with a much larger and more powerful platform. This scares critics of his FEC career, who argue that he can be as much of a bully as his new boss.
“McGahn will embolden Trump,” says a former FEC official. “He is not going to be a truth teller. He’s going to be an enabler.”
McGahn arrived at the FEC in July 2008, ironically in the middle of the presidential campaign of Republican Senator John McCain, a longtime champion of campaign finance reform. McGahn, after all, had a very different take on money in politics, arguing that spending on campaigns is a key element of free speech protected under the First Amendment. It was a philosophy he had come to after years in the legal trenches, fending off campaign finance inquiries and problems on behalf of clients at the law firm Patton Boggs; running his own law practice; as an attorney for the House Republicans at the National Republican Congressional Committee; and even defending the former Republican Majority Leader Tom DeLay, who was forced to resign from the House in 2005 after being indicted for violating election law.
Along the way, McGahn developed strong ties to Capitol Hill leadership, as well as a practitioner’s understanding of how campaign finance laws can help or hurt campaigns and candidates. McGahn believed the government often overstepped its bounds in enforcing these laws, especially at the FEC’s six-person, appointed bipartisan commission, which was created in the wake of Watergate to better police money in the political system. “Having been a lawyer with the experience of defending people before the commission, I understood what it was like to deal with the FEC from that perspective,” he said in his Campaign & Elections interview. “I thought the place was in much need of some due process.”
Once he arrived at the agency, McGahn wasted little time in imposing a more standard Republican, even libertarian, orthodoxy, arguing for less everything—regulation, disclosure and fines. Where he differed from past conservative commissioners was in his discipline and strategic thinking that brought the Republicans together into a singular voting bloc, while the Democratic commissioners were less organized and ideologically aligned.
With regard to one FEC complaint, for instance, the Republican commissioners argued that it was not a violation of campaign finance law for a wealthy friend of GOP presidential candidate Mitt Romney’s to spend $150,000 in 2007 to privately fly Romney campaign volunteers from Utah to Boston for a phone-a-thon fundraiser—a case that seemed like a slam-dunk violation to Democrats because it violated the so-called in-kind contribution limit. In another instance, McGahn and his fellow Republicans argued that a complaint against Freedom’s Watch, a 501(c)4 founded by Bush administration alumni, should be dismissed—even though the group had failed to disclosure its donors; the complaint, Republicans argued, did not contain enough evidence to show that the money had been donated expressly to influence elections. McGahn and another Republican commissioner even once wrote an opinion in favor of Trump, arguing that one of the real estate mogul’s websites could accept money from corporations without limits during the 2012 campaign because Trump himself had never officially filed paperwork to run for office or become a candidate.
Republicans all over town applauded this vision and the way they believed McGahn reined in an agency run amok. “I think he views his role there, not as wanting to piss people off, but as resurrecting the proper procedure,” says a Republican who is a close FEC watcher. “Bureaucrats should not overly regulate that type of speech.”
To allies, McGahn could be interesting, unconventional company, several sources said. Not many D.C. lawyers have long hair and a collection of guitars, or used to play rock band gigs at Dewey Beach in Delaware on the weekends. But for career FEC staffers, many of whom believed in the agency’s regulatory mission, McGahn’s disdain for the FEC was disheartening and made it difficult for them to do their jobs.
It was in a meeting with Ellen Weintraub, a Democratic commissioner and McGahn’s strongest adversary, that he grew so frustrated during an argument over rules and statutes that he ripped out the pages of a rule book and flung them toward her to make his point. The two dozen or so staffers in the room all sat there poker-faced, several attendees later remembered—an incident that staffers still gossip about today. “He was pissed—and that was pretty par for the course,” one former FEC staffer says. “The guy is a showman.”
Perhaps the biggest public blowup during McGahn’s tenure came in the summer of 2013, when the agency’s top lawyer publicly and abruptly resigned. Anthony “Tony” Herman had come to the FEC for a job as its general counsel from the white-shoe law firm Covington & Burling, looking to cap off his career with a stint in public service. By the time he arrived at the FEC, however, the staff “was pretty beaten back and intimidated by McGahn,” one former FEC official told me.
Then, in one of his final moves at the FEC, McGahn sought to revise the agency’s dull-sounding “enforcement manual”: a document that determined how the FEC worked with other agencies, how its lawyers investigated its complaints—generally how it did business. It was a chance for McGahn to formalize many of the subtle tweaks to FEC processes that he had been making. With one change, for instance, McGahn wanted to make sure the Office of General Counsel, the FEC’s top lawyers, including Herman, could not consult with outside agencies like the Justice Department to share tips and information without the approval of the politically appointed commissioners. Good-government types saw this as a huge power grab to limit the staff’s ability to gather information, while Republicans saw it as another move to stop the FEC’s overreach. In another tweak, McGahn wanted to prevent FEC lawyers from even Googling news stories about cases they were investigating; extra information from candidate websites, YouTube videos and business databases—sources many FEC believers felt were crucial to their work—overstepped the agency’s authority, McGahn argued.
Herman, the general counsel, was so shocked by these proposals that he resigned and returned to his law firm. (He declined to comment about his resignation.) And although the deadlocked commission never officially approved McGahn’s version of the enforcement manual, the document itself showed outside observers exactly how far he wanted to go in reshaping and, some say, downgrading the FEC.
“In his mind, if he can rig the way it works from the get-go, that is the real fix,” says one former FEC staffer who worked closely with McGahn. “Rather than having to be the judge at the end of the day, let me go to the source of the problem and not let it out of the gate. That was something he would often say—‘the process is the penalty.’”
McGahn got to know his new boss, Trump, during the campaign, when he was the Trump team’s lawyer; according to the New York Times, the two were introduced by David Bossie, a top Trump campaign aide and president of Citizens United, the group behind the famous 2010 Supreme Court campaign finance ruling. McGahn and Trump also share an awkward family connection, since McGahn’s uncle worked for Trump in Atlantic City in the 1980s before that relationship soured.
Now, in his new role at the White House, McGahn won’t be focused solely on ethics and campaign finance, but the in-your-face style he honed at the FEC already seems apparent. It’s one thing, however, to be an iconoclast or gadfly on a six-person commission at a second-tier agency; it’s entirely another to act that way as the top legal adviser to the president of the United States. The stakes are higher now and McGahn will come under far greater scrutiny.
Friends of McGahn’s say his role at the FEC required him to act more confrontationally and so does not necessarily foreshadow the way he will behave as he counsels the president. “He was the decision maker at the FEC, and there was a clash of ideas. That was the role he was supposed to play,” argues Leonard Leo, executive vice president of the Federalist Society who has known McGahn for years.
Still, from the Supreme Court pick to the immigration executive order to the administration’s policing of conflicts of interest, longtime McGahn observers say they’re already seeing hints of the ways he fought inside the FEC and signs that he is starting to exert his influence.
For instance, when Trump said leading up the inauguration that, legally, he did not have to divest his business holdings, FEC watchers called it “vintage McGahn”—a move that pushed the precedent as far as it could go without breaking the law. Decisions about how to handle conflicts of interest, after all, emanate from the White House counsel’s office. “The idea that conflicts-of-interest laws don’t apply to the president? That has got to be Don,” says one former FEC official.
Same for the administration’s refusal to back down from its controversial immigration and refugee ban, which has been stalled by several state judges and the 9th Circuit Appeals Court. It was vintage McGahn, say former FEC staffers and officials, to have Trump keep pursuing the idea so vigorously, even as evidence mounted that it was not working out as planned. While Steve Bannon and Stephen Miller, Trump’s top strategist and policy adviser, played key roles in drafting the order, it fell to McGahn to try to salvage it legally. In early February, he clarified in a memo that key parts of Trump’s original order no longer applied to green-card holders—a way to backtrack while still trying to save face. The Trump administration is planning to unveil another version of this order this week, and McGahn has taken over the process of drafting it, according to Leo.
McGahn has also taken the lead on ensuring that the Supreme Court nomination goes smoothly—from personally shepherding Gorsuch to meet-and-greets on Capitol Hill to meeting with conservative leaders in the White House to discuss ways they should support the nomination. And already, he and his team are vetting people behind the scenes for the more than 100 other judicial vacancies this White House hopes to fill, Leo says—moves that could reshape the court system.
At the White House, McGahn has brought on several conservative colleagues from his former law firm, Jones Day. And Republican campaign aficionados have cheered McGahn’s ascent; they consider him a highly competent lawyer who shares their political ideology and will help Trump create the smaller government of Republicans’ dreams. But to Democrats, like Ellen Weintraub, who still serves as an FEC commissioner, he is the worst possible pick for the White House counsel’s job—especially for a president with no government experience and a complicated web of international business interests. “The last time McGahn’s job was to regulate corruption, he instead gleefully paralyzed the agency charged with enforcing the law,” Weintraub wrote in a December op-ed in the Washington Post.
Even less ideologically driven FEC staffers wonder aloud how effectively McGahn will do in the White House counsel job—or if he will just help Trump justify his actions and bat aside criticism. Case in point: The episode involving Flynn, which McGahn knew about for a few weeks before the White House took any action. That move publicly backfired on the administration and created fresh questions about its close ties to Russia. For former FEC staffers critical of McGahn’s tenure at the agency, it was another instance of McGahn not doing enough work to backstop a fledgling administration.
Leo, McGahn’s friend, argues that is par for the course for the president’s lawyer. “Hell, that is what lawyers do. They put out fires for a living,” Leo says. “You’re only likely to see the White House counsel when there is a crisis, but that does not mean he is responsible for it.”
A former FEC lawyer saw it differently: “He is a bomb-throwing enabler,” the lawyer says of McGahn. “I can hear him telling Trump, ‘There are no ethics rules that apply to you.’ … McGahn is willing to make arguments to get what he wants, even if he thinks they are not plausible.”