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Don McGahn's successful White House tenure leaves a legacy that will endure for decades

Don McGahn's successful White House tenure leaves a legacy that will endure for decades
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Though he will leave his post as White House counsel this fall, Don McGahn’s positive impact on this administration and country will last for decades to come. Indeed, Don McGahn will have been the most consequential White House counsel in history.

Long before Donald Trump was the Republican Party’s nominee, McGahn saw the opportunities that a Trump presidency would present in a deregulatory government, reining in an out-of-control federal bureaucracy and reshaping the federal courts for a generation.

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And as White House counsel, McGahn put his vision into action and policy, achieving some of the Trump presidency’s most high-profile accomplishments. Even those conservatives who prefer a different presidential style have rallied around the substantive achievements of the president’s legal and regulatory policies, a credit to McGahn.

 

Having previously run a federal agency, the Federal Election Commission, McGahn understood how bureaucracies resist any threat to institutional power. McGahn’s experience informed the administration’s strategy to remove power from unelected bureaucrats and return it to the duly elected representatives of the people.

Within a week of taking office, the president issued an executive order requiring two regulations to be cut before a new regulation could be promulgated and that the net cost of any new regulations to the federal budget be zero.

This elegantly simple policy helped the Trump administration cut excessive regulations that have been strangling American business and industry. These cuts have led to the record economic growth we are currently experiencing.

Additionally, McGahn was the intellectual force behind the decisions to change legal positions taken by the Obama administration in litigation over ObamaCare, compulsory unionism, redistricting, and regulatory overreach by the Equal Employment Opportunity Commission. Those changes led to further administration successes in limiting the power of the unelected bureaucracy and protecting workers and business from federal overreach.

But McGahn’s most lasting legacy will be his work on the federal judiciary.

In early 2016, McGahn conceived the idea to let the American people know what kind of judges a President TrumpDonald John TrumpJoaquín Castro: Trump would be 'in court right now' if he weren't the president or 'privileged' Trump flubs speech location at criminal justice conference Comey reveals new details on Russia probe during House testimony MORE would nominate to the Supreme Court of the United States. At McGahn’s instigation, the Trump campaign publicly released a list of names that Trump would consider to replace the late Justice Antonin Scalia. The original list contained 11 names and ultimately expanded to 25.

The names on the list identified exceptionally well-qualified individuals who were well known to be originalists and textualists in the mold of Scalia and Justice Clarence Thomas. Like Scalia and Thomas, these individuals would interpret the laws as written rather than try and impose their personal views through judicial opinions. There was also a decidedly libertarian trait embedded in the list, a McGahn signature.

The announcement of this list was political genius as it reassured the Republican base as well as conservative intellectuals, helped Trump win the Republican nomination, and has led to the confirmation of Justice Neil Gorsuch to the Supreme Court. That appointment is arguably the administration’s highest profile success and the one likely to have the most lasting legacy.

It also led to the nomination of Judge Brett Kavanaugh, who was added to the list last year, to the Supreme Court to replace retiring Justice Anthony Kennedy. If Kavanaugh is confirmed, it will be another administration success attributable to McGahn’s vision and stewardship.

While Supreme Court nominations might garner the most attention, the impact of the administration’s nomination of originalists and textualists to the lower federal courts will resonate for a generation or more. McGahn is the intellectual force behind these nominations and strategy. The confirmation of such judges to the federal judiciary is a substantial accomplishment for which he deserves credit.

McGahn has accomplished much in the nearly two years that he has served as White House counsel. As the president has tweeted, he is grateful for McGahn’s service. Likewise, the American people should acknowledge the far-reaching legacy of Don McGahn and be grateful for his dedicated service. His successor has enormous shoes to fill.

David A. Warrington is vice president for election education of the Republican National Lawyers Association and Of Counsel at Kutak Rock LLP.