President Donald Trump and his allies are debating the value of political loyalty versus legal credentials in their search for a new White House counsel, a crucial decision ahead of a potential onslaught of congressional scrutiny following the midterm elections.
Trump is “counting down the days” until the departure of his current lead White House lawyer, Don McGahn, with whom he has clashed, according to a former White House official. The longtime Trump legal adviser is set to leave upon the expected Senate confirmation later this month of Supreme Court nominee Brett Kavanaugh.
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But Trump has not settled on a successor. The obvious candidate is Emmet Flood, an elite Washington lawyer respected by members of both parties for his expertise in handling Capitol Hill scrutiny and someone who could help stock the depleted ranks of the counsel’s office with top legal talent.
Four sources close to the White House, including two former administration officials, said they believe Flood will get the job.
Still, some members of the president’s inner circle — including his daughter Ivanka and son-in-law, Jared Kushner, are urging Trump to consider a more reliable political loyalist, even if that means settling for a lawyer with a less formidable reputation in Washington legal circles.
The decision will help shape the president’s political and legal response should Democrats gain majority of one or both Houses of Congress in November. Democrats are certain to barrage the White House with subpoenas and other demands for information and testimony that will require virtually round-the-clock legal work. Protecting Trump and his aides from crusading Democrats as the 2020 presidential campaign kicks into gear will require shrewd legal tactics.
Flood’s admirers say he’d be ideal for that high-pressure role. He’s a former White House lawyer who helped President George W. Bush fight back against Democrat-led probes and also served as an attorney to President Bill Clinton during his impeachment proceedings. Flood also knows Trump’s White House well, having managed its response to the Russia investigation since May.
“Emmet would be the perfect White House counsel for these times given his intellect, experience and work ethic,” said Ty Cobb, who served for just less than a year in the same White House job that Flood currently has dealing with responses to special counsel Robert Mueller.
But aggressive Democratic oversight could also place political demands on the top White House lawyer that some Trump allies worry could make him uncomfortable. The president’s bare-knuckles political style, especially with his own reelection campaign in full swing, could put Flood in a difficult spot if Trump insists on the lawyer going public with more forceful pushbacks. Flood keeps a low profile in Washington, shunning cable TV and op-eds, and has never been known as a combative political partisan.
A source familiar with the deliberations said Trump recently discussed the job with Flood though he didn’t directly extend an offer. Flood signaled he’d take the promotion as long as he had control over his hiring decisions.
But Flood has shown hesitation too. He initially turned down his current job in early 2017 because Trump was then relying mainly on his longtime personal attorney, New York-based Marc Kasowitz. That reluctance, according to the source familiar with the deliberations, has planted doubts about his commitment to Trump that may be an obstacle to the president asking him to replace McGahn.
Another important subplot surrounding the president’s decision: more than a dozen original hires from the start of the Trump administration have left the counsel’s office. Of McGahn’s four top deputies, only one remains, and that person handles national security matters.
Washington lawyers say Flood would be able to bring in top talent to fill those jobs. But that could be harder if Trump picks someone else with less white-collar experience.
Others in the running include Pat Cipollone, a former Justice Department lawyer who handles commercial litigation at a Washington law firm; Brian Brooks, general counsel at Fannie Mae; and Bobby Burchfield, a prominent GOP lawyer who the Trump Organization tapped after the 2016 presidential election to assist with the company’s business and ethics conflicts connected to its founder and CEO moving into the White House.
“Without a doubt, the identity of the White House counsel will have a direct bearing on the recruitment of top flight lawyers who will be willing to work on oversight — and possibly an impeachment inquiry,” said Robert Bauer, a former Obama White House counsel. “It will not help this recruitment if the counsel is not someone with strong professional standing and reputation, who clearly has the skills and authority within the West Wing to effectively lead an office faced with these issues.”
Several sources close to Trump’s White House strongly endorsed Floor and Cipollone.
Jay Sekulow, one of the president’s personal attorneys, issued a statement last month, calling Cipollone a “brilliant attorney.”
“If selected by the president, he would make an outstanding White House counsel,” Sekulow said in a statement that noted he had worked with him “and can attest to his skill, integrity and knowledge of the law.”
Others are more skeptical about his credentials, however. “You wonder: Is he the guy to come in in this supercharged environment?” said the source familiar with the president’s deliberations.
Trump is making a last-ditch spree to save the GOP majority, but his White House is also feeling the pressure on how to respond on the oversight front should Democrats win big this November — in taking back the House majority for the first time since 2010 and perhaps even gaining control of the Senate.
Experts in handling congressional-White House oversight interactions say it takes a deft hand to deal with politically charged demands for documents and testimony. And while Trump will have the power to assert executive privilege when he doesn’t want to turn over materials or allow a staffer to testify, he also will be hard-pressed to negotiate and find accommodations when possible to avoid unnecessary showdowns.
“Having lived through the Clinton experience, it will be intense,” said Neil Eggleston, a top Democratic lawyer who served two stints assisting the Clinton White House and who was tapped by Obama for the White House counsel job. “And it will be intense not just for the White House counsel, but for the building generally.”
Past White Houses have generally bulked up on personnel ahead of coming congressional investigations. Obama’s legal team expanded to more than 40 as it handled GOP queries on everything from the 2012 attack on a U.S. diplomatic compound in Benghazi, Libya, to the controversial federal gun-trafficking program known as “Fast and Furious.”
The George W. Bush White House legal team grew from a dozen lawyers in its early years when the GOP largely held the levers of power in Washington to reach a peak of about 30 after Democrats won back Congress in the 2006 midterms.
Even the White House counsels themselves have reflected a president who is forced to play defense with lawmakers. Bush’s first two top lawyers were friends and loyalists without white-collar experience: Alberto Gonzales and Harriet Miers. But the Republican president shifted to a more aggressive posture in 2007 by hiring Fred Fielding, a former White House counsel under Ronald Reagan and deputy counsel to Richard Nixon.
Obama’s first two White House lawyers were Greg Craig, an expert on national security matters and Bauer, his 2008 campaign attorney. Bauer gave way not long after Republicans took control of the House in the 2010 midterms to Kathryn Ruemmler and later to Eggleston, both attorneys with significant backgrounds handling investigations.
Trump’s White House legal team also wasn’t originally structured to deal with the kinds of oversight demands that would come from a Democratic majority in Congress. Many of the aides McGahn initially hired in January 2017 were brought on for their policy expertise — not white-collar criminal investigations.
Even if he gets the promotion, Flood wants to be sure he can remain “focused” on defending Trump from Russia-related investigations, said the source familiar with the president’s deliberations.
“The most important thing facing this president from a legal perspective is the Mueller investigation and potential oversight by the Congress and [Flood] wants to make sure he’s still able to focus on that and not be drawn into other important things,” the source said.
With the midterm election still two months away, Trump has some time to fill the ranks — though the lame duck and transition periods into the next Congress will be key in establishing the right tone.
Experts in White House oversight warn that whoever gets the job faces a tough slog — especially knowing going in that they’ll be working for a temperamental president who has a long history of ignoring legal counsel and shuffling through attorneys.
“You really have to think twice about taking this job,” said Jack Quinn, a former Clinton White House counsel who handled pent-up GOP oversight demands after Republicans ended a generation of Democratic congressional control in the 1994 midterms. “You have to take a deep breath and do some soul searching before jumping into that kind of situation.”
Eliana Johnson and Andrew Restuccia contributed to this report.