To put the point in mildest terms, Ellen Weintraub and Don McGahn do not get along. When they served together on the Federal Election Commission, their mutual hostility was well enough known, and their time apart since Mr. McGahn left the agency does not appear to have eased the tension – – certainly not on Commissioner Weintraub’s side, and probably not on Mr. McGahn’s. Now Ms. Weintraub has published an op-ed in The Washington Post, arguing on the basis of her experience with Don McGahn that he is not fit to be the next White House Counsel.
How McGahn will perform in his current job might be judged as Commissioner Weintraub suggests, by putting the weight she does on a particular reading of his record at the FEC. Or, on a different view, a distinction could be drawn between Mr. McGahn’s past and future roles, and a different standard of evaluation could be adopted for the work now ahead of him. In choosing the first of these alternatives, the Commissioner may be incorrectly framing the question of McGahn’s suitability as White House Counsel and directing attention away from what is more relevant in assessing the role and performance of that Counsel in the incoming Administration.
Part One: McGahn at the FEC
Ms. Weintraub’s condemnation of the future White House Counsel rests on three independent critiques that seem to flow somewhat together in her telling of their history: McGahn’s temperament, his role in leading fellow Republican Commissioners, and the reasonableness of his legal positions in particular cases.
Ms. Weintraub contends that McGahn is “intransigent,… [and] hostile to other points of view… For this reason, among others, she sees him as having set a bad example of leadership. It is difficult to know whether the intransigence or hostility she experienced reflected their strained relationship or was made worse by it. Was Don hard-charging and often unyielding–his tongue periodically sharper, and his advocacy more pugnacious, than necessary? That may well be: There is no reason to doubt that Commissioner Weintraub found that to be the case. It is less clear how to extrapolate from her experience with McGahn at the FEC to the job he will do as White House Counsel.
The Commissioner takes on this issue by suggesting that McGahn came to the FEC to disable it, not to responsibly administer the law. Here it seems that she is charging McGahn with an irresponsible definition of his mission–deregulation– that originated elsewhere, in a mandate from the Republican leadership of the Congress.
There is a long history of congressional pressure for the appointment of Commissioners with dependable perspectives on the constitutional limits of regulation and the reasonableness of specific statutory interpretations. The story is an old one and often told. By and large, Democrats have been more committed to a broader construction and more energetic application of the law, Republicans even before McGahn have strongly favored more permissive readings of the rules, more insistence on what they judged to be the constitutional limits.
And the Republican party and its congressional leaders could be fierce in advancing their positions. They pressed successfully for the nomination of one Commissioner who wrote a book expressing the view that the 1970’s federal campaign finance reforms were in material respects, in both design and enforcement, incompatible with the First Amendment. Republican Commissioners who appeared to their party excessively friendly to regulation found themselves, in two notable cases, denied re-nomination for another term–one of whom had been renominated, only to see his nomination withdrawn after having irritated a senior Republican Senator. The Democrats’ engagement with the agency has been less dramatic. Still, early in the agency’s history, they put out to pasture a Commissioner who voted to expand the rights of corporations to solicit contributions to their political action committees: he then sued the President of his own party to protect his seat from a recess appointment. Staebler v. Carter, 464 F. Supp. 585 (D.C. 1979)
This is not a defense of the various ways in which ideological and political conflict have, to some degree inevitably and at times very regrettably, affected the agency’s performance. Nor is this to say that McGahn’s tenure did not represent an escalated, more disciplined phase in the Republican program of deregulation. But he was hardly the principal or only culprit in the sad tale the Commissioner relates. She notes, for example, that the Republicans serving with McGahn voted with him time after time: they acted as a bloc. She fails to mention that the tone of the exchanges among the Commissioner did not improve with the departure of McGahn. Various Republicans in recent years have reacted to sharp Democratic criticism by charging their colleagues across the aisle with “grandstanding” and “recklessness” and setting “new lows” in their media commentaries. Don McGahn was not among the authors of these statements.
If the Republican leadership had not been able to tap McGahn for the mission, they would have found another. The FEC wars go on without him.
Commissioner Weintraub does charge McGahn with deficient respect for “separation of powers”, and she suggests that if McGahn could give congressional mandates in campaign finance so pinched a reading, he could show the same disregard for the legislature in the course of his service as the president’s lawyer. Here the Commissioner may be missing a key point about the difference in the roles. McGahn is a libertarian Republican, suspicious of government power, and it is that power over private political action that seemed to agitate him. That was the issue–an executive branch agency nose-to-nose with parties or PACs or other political actors on matters affecting speech and association–and not the allocation of constitutional authority between the branches.
And during the period of McGahn’s tenure, he had the Supreme Court’s jurisprudence running in his direction. This was a Court, after all, that in Citizens United endorsed the dark view, expressed by Justice Kennedy for the majority at the time, that the FEC exercises “power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.” 558 U.S. 310, 335 (2010). He took the point and ran with it, but it was there to be picked up and run with.
To illustrate her points, the Commissioner notes various cases in which McGahn led the Commission to positions that she considers grossly unreasonable. She is by no means wrong in all cases. There were occasions when Mr. McGahn led a Republican bloc that built implausible theories or advanced questionable arguments to block enforcement action or the institution of what would have been useful rulemakings. On other occasions, he and his colleagues had a decent case to be make for their position but then overstated the strength of their position and showed little interest in looking for middle ground.
But this Republican and Democrat standoff has persisted since McGahn left. So it is not all about McGahn, not even primarily about McGahn, and the strange and troubling case of the FEC does not have much to offer about the counsel that he would provide to the next president and and the legal advisory process he would run for the White House.
Part Two: The White House Counsel in the Trump Administration
On December 15, President-Elect Trump will be announcing the steps he will be taking, or not, to resolve the conflicts of interest presented for the conduct of his office by his and his family’s national and global businesses. On this subject, he has spoken only generally and unclearly. He has suggested that presidents are not at all subject to conflict of interest regulation–which is not quite right–but he has committed to address in some way the concerns that have been raised. Since that time, Mr. Trump has concluded that he should retain his credit as Executive Producer of The Apprentice, and along with it, his financial stake in the show. Family members running his business have been involved in his transition, including meeting with heads of state. Yesterday, in a press interview, Mr. Trump suggested that they could remain active in the management of the business but not “do deals.”
It is possible that, come December 15, Mr. Trump will disclose that he intends a highly technical resolution of the issue, meeting his clear legal obligations and only those. For the rest, he might work out an arrangement that costs him and his family as little as possible while putting in place something to answer his critics.
This will be a key early test of the President-Elect as custodian of the powers of his office–his respect for limits in instances where it is less the law, and more good judgment and respect for norms and public appearances, that protects against abuse. Mr. Trump leads an executive branch whose employees must heed “Basic obligations of public service,” which provide, among other things, that:
—Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
–Employees shall not hold financial interests that conflict with the conscientious performance of duty.
—Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
—An employee shall not…solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee’s agency, or whose interests may be substantially affected by the performance or nonperformance of the employee’s duties.
—Employees shall not use public office for private gain.
—Employees shall act impartially and not give preferential treatment to any private organization or individual.
—Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
And then, with respect to each of these obligations, and more broadly: “Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part.”
In the administration of this appearance standard, the rules provide that “whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.”
The President does not have to comply with all of these injunctions: he can, for example, accept gifts, provided that they are not bribes. As a leader of the executive branch, there is a question of how far he would take the leeway to disregard the ethical principles he would demand that all those working for him follow.
It may be that there are grounds, none of them especially compelling, to exempt a president from technical requirements arising out of these principles. But an exemption from the law is not the same as an invitation to the president to engage in what the rules would otherwise prohibit his subordinates from doing . It just puts in the president’s hands a choice to be governed by his sense of the appropriate limits and requirements of his office.
The announcement planned for December 15 should shed a clear light on Mr. Trump’s choice. It should provide detail on the structure selected for the management of these conflicts–and the ethical principles or theory informing the choice of that structure. This means that, beyond what the President-Elect chooses to say himself for general public consumption, it will be important that through written materials, in the form of a White Paper or other formal document, and then with opportunity for the press to follow up with questions to his advisors, the Administration’s position is fully elaborated.
For example, some have suggested that if the family remains involved with the business, they address particular issues, such as those arising from foreign business transactions, by bringing them on a case-by-case basis to the attention of the White House Counsel or the Office Legal Counsel. How will this reporting obligation be defined and enforced? With what level of public transparency? To what extent will the Congress and the public be apprised of the WHCO or the OLC’s understanding of the breadth or limits of the Emoluments Clause in limiting these foreign sources of investment or business income? On what basis would the President-Elect determine that he can address these issues by simply refraining from active management with full ongoing participation in the profits, or leaving his children in charge of the business but not “doing deals”? To what extent does the President-Elect believe that his latitude in remaining involved in his business interests, as in The Apprentice, affects a commitment to the release of his tax returns this coming April?
These are the issues in process and substance that will allow for a reading of the incoming Administration’s way of doing the government’s business, that is, by the distance Mr. Trump puts between that business and his own, and of the accountability he accepts as Chief Executive for that decision. The White House Counsel-designate will be most senior advisor on these issues now and in the future. Of course, the Counsel only advises while the President ultimately decides. Yet this is still the better direction in which to look when assessing the next White House Counsel’s performance than turning back to Don McGahn’s part in the years-long saga of the Federal Election Commission.