As the joke goes, if President Trump walked on water, the New York Times story would be headlined “Trump can’t swim.”
Well, it’s no joke. Over the weekend, the Times did pretty much the same thing. Here are the basic facts they had to work with: President knows he did nothing wrong and, in the name of transparency, instructs White House lawyer to cooperate fully with special counsel on “Russia” probe. White House lawyer does so, testifying for over 30 hours in 3 sessions over 9 months as special counsel, presumably, asks different versions of same questions over and over and over. (This is how depositions typically go, to try to catch witness in evolving testimony or inconsistency.) After all that, nothing from deposed White House lawyer attests to wrongdoing by President. President also has been completely responsive to special counsel’s request for documents, providing 1.4 million of them. President did nothing wrong. President has nothing to hide. End of story.
Oh, no it’s not. Not when it’s the New York Times spinning the story.
Here is the Times’ version of those facts: White House lawyer (and his own personal lawyer) couldn’t understand why President would want him to be so forthcoming and thought President might be setting him up to take blame for any charges of obstruction that might arise. White House lawyer did everything possible to cooperate with special counsel as a strategy to protect HIMSELF from charges of obstruction. President was mixed up and mistakenly thought White House lawyer would be acting as his personal attorney and thus would protect HIM. (This from a NYT source “with knowledge of [President’s] thinking.” As if.)
It might be good here to explain the difference between a White House attorney, such as Donald F. McGahn II (the one in this story) and Trump’s personal attorneys, such as Rudy Giuliani and Jay Sekulow. Trump’s own attorneys represent him personally, as an individual, and look out for his legal interests, while White House attorneys are looking out for the office of the Presidency itself. Often those interests mesh, but not necessarily. A personal attorney might protect the client by asserting attorney-client privilege, while a White House attorney would protect the office by invoking executive privilege. That’s it, pretty simple. It’s highly unlikely that President Trump does not understand the difference between the two. And attorneys failing to make that distinction clear would be, it seems to me, guilty of legal malpractice.
The NYT story does admit that McGahn “cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities...” Wow, talk about not fitting the chosen narrative. That’s probably why they buried it deep inside –- I’d put it right up top –- and qualified it by characterizing the limits of executive power as “murky.”
McGahn’s lawyer released a statement that said, “President Trump, through counsel, declined to assert any privilege over McGahn’s testimony, so Mr. McGahn answered the special counsel team’s questions fulsomely and honestly, as any person interviewed by special investigators must.” Seems pretty straightforward to me. Incidentally, the Word Of The Day is “fulsomely.”
The President tweeted: “I allowed White House counsel Don McGahn, and all other requested members of the White House staff, to fully cooperate with the Special Counsel. In addition we readily gave over one million pages of documents. Most transparent in history. No Collusion, no Obstruction. Witch Hunt!” Also: “The Failing New York Times wrote a story that made it seem like the White House Councel [sic] had TURNED on the President, when in fact it is just the opposite - & the two Fake reporters knew this.”
Rudy Giuliani (Trump’s personal lawyer) used the word “deftly” to describe the NYT’s way of shading the idea that McGahn (the White House lawyer) “cooperated extensively,” pointing out that if McGahn hadn’t been able to answer honestly that no authority was exceeded by the President, he would have had the integrity to resign at the time he first knew of the illegality. (I could mention that this level of cooperation is a 180-degree turn from the policy of the Obama administration, which slammed the door shut on inquiry to the point where then-Attorney General Eric Holder was held in contempt of Congress. And none of them resigned. But I digress.)
Former assistant special Watergate prosecutor and former special assistant attorney to the U.S. attorney general (whew, these titles!) Jon Sale spoke with FOX News’ Arthel Neville on Sunday, explaining that Trump had the power to exert executive privilege if he was concerned about what McGahn might say. “He allowed and encouraged Mr. McGahn and about 30 other people connected to the White House to go in and fully cooperate,” Sale said, and added that when people see that McGahn “cooperated extensively, there’s a rush to judgment, and people are assuming that means he’s incriminating the President. Not necessarily.” He made it clear that he’s speaking objectively, not as an advocate for the President, but said he could “understand the President’s impatience” with the length of the investigation after he’d been so forthcoming. He also seconded what Giuliani had said, that McGahn “would have legally and ethically had to resign” if he’d been aware of any illegal conduct on the part of the White House involving the President. Otherwise, he would have been a part of criminal activity.
So, from that perspective, the likelihood is that McGahn’s open and honest testimony served the President well. The New York Times could just say that. Except that they...just...can’t.
Thanks to the Washington Times for providing some balance.