Michael Flynn’s implosion as National Security Advisor followed news that, in late January, former Acting Attorney General Sally Yates told White House counsel Donald McGahn that Flynn misled Vice President Mike PenceMichael (Mike) Richard PenceSean Spicer: After Trump's year 1, GOP poised to dominate again in 2018 Cornyn: Senate GOP tax plan to be released Thursday Pence to visit site of Texas church shooting on Wednesday MORE about the extent and content of Flynn’s communications with the Russian ambassador.

McGahn conveyed this information to President Trump. According to White House spokesman Sean Spicer, Trump asked McGahn to investigate, and McGahn concluded that Flynn’s conduct raised no “legal issues.” That legal advice appears highly suspect. Apart from any potential Logan Act violation, Flynn’s misleading communications with Vice President Pence and responses to the FBI may implicate 18 U.S.C. § 1001, the prohibition on making false statements to the federal government.

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The White House failed to take any action against Flynn for two weeks—until multiple sources leaked to the media the nature of Flynn’s conversations with the Russian ambassador. Once the facts became public, the demise of Flynn’s brief, tumultuous tenure swiftly followed. How could White House counsel have let such an embarrassing episode play out?

 

Where was White House counsel?

Legal observers, including Jack Goldsmith, posit explanations ranging from the critical and sympathetic to, at worst, pejorative. But, at this point, it doesn’t matter why McGahn failed to manage the Flynn crisis. The concern is that, at such an early stage in the Trump administration, White House counsel appears ill-equipped to perform his role. For the administration to survive, let alone thrive, McGahn needs to dramatically re-define his role, get help, or (for self-preservation) get out.

White House counsel is a tough job in any administration. But if one of White House counsel’s primary responsibilities is to avoid, or at least minimize, scandals, the accelerating rate of bad news headlines does not bode well for McGahn.

An extraordinary rebuke

The rushed and ultimately failed immigration executive order also reflected poorly on McGahn’s office. The Ninth Circuit's extraordinary decision, among other things, highlighted that White House counsel almost certainly lacks authority to unilaterally amend an executive order, no authority makes the White House counsel’s interpretation of an executive order binding on executive branch officials, and “The White House counsel is not the President, and he is not … in the chain of command … of the Executive Departments.” That’s not language you see every day.

Which brings us to the sordid, yet easily avoidable, Ivanka-Nordstrom incident. On Feb. 8, the official White House Twitter account, @POTUS, retweeted Donald TrumpDonald John TrumpDems win from coast to coast Falwell after Gillespie loss: 'DC should annex' Northern Virginia Dems see gains in Virginia's House of Delegates MORE’s personal rant against Nordstrom for scaling back his daughter’s clothing line. The following day, Kellyanne Conway magnified the error when, in her official capacity, she enthusiastically, but inappropriately, promoted Ivanka’s merchandise. When asked, Sean Spicer flippantly dismissed Conway’s inappropriate behavior. The @POTUS handler, Conway, and Spicer all appeared painfully unaware that government ethics regulations prohibit the use of public office for private gain or the endorsement of products. That’s on McGahn, too.

Conscience of the White House?

Historically, as the White House’s conscience, counsel’s office provides a focal point for managing ethics and compliance issues and vetting personnel throughout the Executive Office of the President (EOP). Contrast that with the Office of Government Ethics (OGE), which is responsible for government-wide policy and has been ignored and disparaged by the Trump transition team and, now, the administration.

Specifically, common training, routinely provided to new government officials, should have prevented these violations. And once an unfortunate violation occurred, swift and firm intervention by White House counsel could (and should) have obviated the subsequent exchange between the Congressional oversight committee, the OGE, and White House counsel regarding further investigation and potential disciplinary action against Conway.

Trump’s Jan. 11 press conference made clear that, with regard to conflicts of interest, his aspirational behavioral standard—his benchmark for compliance—would be whatever he could get away with. When the president brags that he is unencumbered by the well-developed and familiar rules that govern public servants, mandate transparency, and constrain self-dealing, McGahn needs to define what standards—if any—the administration respects or aspires to.

So far, McGahn appears sanguine, if not complicit, with the president’s so-called ethics team, comprised of Sheri Dillon, a tax attorney; George Sorial, a long-time Trump ally associated with Trump University and its $25 million fraud settlement; and, most recently, Bobby Burchfield, a high-profile litigator. If McGahn can’t—or won’t attempt to—convince the president to resolve his most egregious conflicts and rein in his most base instincts, how can McGahn hold the line on lesser officials?

Culture and public service ethics

Successful compliance and ethics programs don’t simply work around rules and defend institutions from attack. They aspire to create a principled institutional culture, a top-down ethos, where “doing the right thing” comes first. White House counsel must remind executive officials—in the name of public service (or even corporate) ethics and compliance—that their words and actions can undermine respect for the nation’s highest office.

It’s no surprise that the Trump family doesn’t appreciate the necessity to end its lease with the General Services Administration to operate the Trump International Hotel. Nothing inherent in running a closely-held, family-owned business—in which self-promotion and self-enrichment are lifelong, cultural, tribal norms—prepared Trump to grasp even the most rudimentary aspects of public service ethics. When the president, his family, and staff aggressively promote hotels, golf courses, or clothing, raise initiation fees and restaurant prices, and drive government event traffic to Mar-A-Lago to mingle with Trump customers, that’s business as usual.

That doesn’t serve the White House’s, or the nation’s, best interests. Fundamental culture change is necessary. White House counsel needs to educate, cajole, and guide the president and his staff to embrace a public service ethic.

Canaries in the coal mine?

Of course, Trump may simply blame McGahn for the administration’s problems, deem him expendable, and throw him under the bus. Until then, we imagine McGahn’s West Wing as a coal mine, with scandals as dead canaries piling up around his feet, confronting one of the legal profession’s most vexing decisions.

Is it time to clean the air, keep digging, or simply get out before it’s too late?

Steven L. Schooner is the Nash & Cibinic Professor of Government Procurement Law at the George Washington University Law School. He previously served in the White House Office of Management and Budget and the U.S. Department of Justice.

Kathleen Clark is Professor of Law at the Washington University in St. Louis and a leading expert on government ethics.


The views expressed by contributors are their own and are not the views of The Hill.