Executive Power

McGahn Should Have Preempted the (Latest) Flynn Mess

By Jack Goldsmith
Saturday, March 11, 2017, 2:43 PM

Over at Daily Beast I explain why I think White House Counsel Don McGahn should have discovered and fixed Michael Flynn's foreign agent problems long before Flynn became National Security Advisor. The main argument:

McGahn’s office thus would have been in charge of screening the incoming National Security Advisor for conflicts of interest and related ethics issues. It was incumbent on McGahn, who knew about Flynn’s foreign agent issue, to raise the issue with Flynn, to uncover all of the facts, and to counsel Flynn on whether and how he might resolve the issue before he assumed his very important White House post on January 20. McGahn failed in all of these duties.

The alarm bells should have gone off long before Trump became President, when McGahn—a senior transition advisor to the President-elect and soon to be named White House Counsel—learned about the foreign agent issue for the first time in early November. A wise attorney in that vital position would have immediately taken affirmative steps to determine how Flynn’s possible involvement with a foreign government might affect his role as an advisor to the President-elect during the 10-week transition period. Indeed, normal vetting processes should have made Flynn’s failure to disclose his possible relationship with the Turkish government during the months before the election, while serving in an advisory role to candidate Trump, as disqualifying for the position as National Security Advisor.

I also think, as I explain, that this episode helps resolve the question whether the many problems on McGahn’s watch (some of which I have noted here and here and here) are a result of a difficult client or simply McGahn's incompetence:

[The] failure to vet Flynn properly in the face of many bright flashing warning signs lies with McGahn and no one else. “Don has a brilliant legal mind, excellent character and a deep understanding of constitutional law,” said President Trump in announcing his appointment as White House Counsel last year. Perhaps so, but he is not yet using these talents to serve the President well.