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What we know about Don McGahn’s cooperation with the Mueller probe

Another member of President Trump's team has been working with special counsel Robert Mueller, according to the New York Times. White House counsel Don McGahn has reportedly shared detailed accounts about events at the heart of the investigation. Amna Nawaz reports, and Judy Woodruff talks with former deputy independent counsel Solomon Wisenberg and former White House counsel Kathryn Ruemmler.

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  • Judy Woodruff:

    The string of attacks coming from the president's Twitter account continued today with a now familiar target, the Mueller investigation, or, as Mr. Trump claims, the witch-hunt.

    Amna Nawaz begins our coverage with the latest pushback.

  • Amna Nawaz:

    It's not the first time President Trump's advisers have made headlines attempting to defend his version of the truth.

  • Kellyanne Conway:

    Sean Spicer, our press secretary, gave alternative facts to that.

    That's why we feel compelled to go out and clear the air and put alternative facts out.

  • Jay Sekulow:

    So I think it's very important to point out that in a situation like this, you have, over time, facts develop.

  • Amna Nawaz:

    But the latest comments this weekend from the president's lawyer Rudy Giuliani continued his team's latest strategy to undermine special counsel Robert Mueller's investigation by muddying the waters around Trump's past statements and potential future ones under oath.

  • Rudy Giuliani:

    When you tell me that he should testify because he's going to tell the truth and he shouldn't worry, well, that's so silly, because it's somebody's version of the truth, not the truth.

    He didn't have a conversation about…

  • Chuck Todd:

    Truth is truth. I don't mean to go like…

    (CROSSTALK)

  • Rudy Giuliani:

    No, it isn't truth. Truth isn't truth.

  • Amna Nawaz:

    Today, Giuliani took to Twitter to clarify, saying his statement — quote — "wasn't meant as a pontification on moral theology," but instead, he went on, referred to the — quote — "classic he said/she said puzzle."

    The question of the president's cooperation with the Mueller probe remains. But a New York Times report this weekend revealed another member of Trump's team has been working with the special counsel. In at least three interviews, totaling more than 30 hours, White House counsel Don McGahn reportedly shared detailed accounts about events at the heart of the Mueller investigation.

    President Trump responded in a series of tweets today, calling Mueller disgraced and discredited, claiming McGahn met with Mueller's team "only with my approval, for purposes of transparency," and dismissing the entire investigation as a rigged witch-hunt.

  • President Donald Trump:

    Mr. Mueller is highly conflicted.

  • Amna Nawaz:

    Continuing his persistent public attacks of the probe.

  • President Donald Trump:

    I say it again, that whole situation is a rigged witch-hunt.

  • Amna Nawaz:

    But the special counsel's investigation has already yielded a series of indictments, including 13 Russian nationals as conspirators in 2016 election interference, 12 Russian intelligence officers for election-related hacking.

    It's also led to guilty pleas from former National Security Adviser Michael Flynn, former deputy campaign chair Rick Gates and former campaign aide George Papadopoulos, who could face up to six months in prison, according to a new sentencing recommendation from Mueller's team.

    The special counsel's work also led investigators to examine the finances of Michael Cohen, President Trump's former personal lawyer, who multiple reports say could face criminal charges by the end of the month.

    But it's the bank and tax fraud case against former campaign chairman Paul Manafort, whose fate now rests with a jury, that could set the tone for Mueller's work moving forward, and whether or not the president will meet with him at all.

    For the "PBS NewsHour," I'm Amna Nawaz.

  • Judy Woodruff:

    We take a closer look at the White House counsel's cooperation with the Mueller probe now with Solomon Wisenberg. He was deputy independent counsel during the Whitewater and President Clinton's sexual misconduct investigation. And Kathryn Ruemmler, she was White House counsel for President Obama.

    And we should note, for the record, she currently represents a witness in the special counsel investigation.

    Welcome back to the program to both of you.

    Let me start by asking you both to clarify the role of, what is the White House counsel's set of responsibilities, Kathryn Ruemmler, to you first, in contrast to a president's personal attorneys?

  • Kathryn Ruemmler:

    The White House counsel is there to provide the president with advice, legal advice, sometimes policy advice, sometimes communication advice, about really the limits of his authority as president.

    And so the White House counsel has no role to play in advising a president on his particular personal legal issues. That really is a role for his personal lawyer and not for the White House counsel.

    It's important to remember that the White House counsel is a government official. They are paid by the U.S. government, paid by the taxpayer. And their duties and obligations fundamentally are to the Constitution and to the office of the presidency and the American people.

  • Judy Woodruff:

    Sol Wisenberg, would you add or subtract anything from that?

  • Solomon Wisenberg:

    Not at all. I couldn't say it any better.

    The only area in which a White House counsel has some kind of — other executive privilege — like any other executive officer, there is potential executive privilege when you talk about a White House counsel.

    There is also an intermediary privilege. If a White House counsel is conveying information from the president to the president's personal lawyer, and vice versa, that and that alone would be privileged. And the case that decided that is In Re Lindsey, Bruce Lindsey, in the D.C. Circuit back in '98, when our shop was up and running.

  • Judy Woodruff:

    Sol Wisenberg, staying with you for a moment, how significant is it, then, this report that Don McGahn spent upwards of 30 hours with the Mueller investigative team answering questions in this Russia probe?

  • Solomon Wisenberg:

    Well, I think it's very significant. I would have loved to have 30 hours to question Bruce Lindsey. We had to go up to the appellate court to get him to talk to us at all, and that is where that case comes from.

    But what we don't know is what he is saying. That is just speculation. I think that something that is being not realized or not commented on enough is that the president's right, he didn't have to let Don McGahn go in. John Dowd and Ty Cobb didn't have to. They could have asserted executive privilege, but they said go on in.

    And I think the reason they decided to do that is because when they were the lawyers, they saw this as basically a case about collusion/criminal conspiracy involving the Russians and the people in the Trump campaign, and they thought Trump had nothing to worry about.

    Now we see that Bob Mueller apparently has a very broad view of obstruction of justice, and there might be some real second thoughts about whether or not they should have sent McGahn in.

  • Judy Woodruff:

    Kathryn Ruemmler, how do you see this? Do you see it as a decision that was made under one set of circumstances, now the circumstances have changed?

  • Kathryn Ruemmler:

    I really don't.

    This is an issue I disagree with pretty strongly. I think that, after the Lindsey case that Mr. Wisenberg referred to, and, frankly, after the U.S. vs. Nixon case, what the courts have widely recognized is that executive privilege is a qualified privilege, meaning that it gives way to and certainly can give way to a criminal — duly authorized criminal investigation.

    And so here, as a practical matter, I don't think that Mr. McGahn had much of a choice at all but to go in and answer the questions. He is a fact witness in a criminal investigation. And he certainly could have refused to do it voluntarily and forced the Mueller team to subpoena him to the grand jury. But I have no doubt that they would have taken that step.

    And, you know, generally lawyers advising clients would prefer an informal interview setting, as opposed to a grand jury setting. When a witness is questioned in the grand jury, defense counsel cannot be present in the room. So you have a lot less visibility and control over the dynamics of the questioning and the answering.

    So I think that the idea that this was a big strategic decision is probably not quite right. And, you know, I think Mr. McGahn, along with other White House officials who presumably have answered questions of Mr. Mueller, did so because, practically, they didn't have a huge amount of choice.

  • Judy Woodruff:

    Sol Wisenberg, what about that, the argument that he didn't really have much choice?

  • Solomon Wisenberg:

    Well, I would say there are two points I would make.

    It's true you have U.S. vs. Nixon, but there is a case from 1977 in the D.C. Circuit. That is the controlling law, In Re Sealed Case.

    And it is not a cakewalk, necessarily, to overcome executive privilege. Special counsel can't just say, I'm doing — I'm running a grand jury investigation. And there is a real question with Bob Mueller whether he even has the right under his charter to even litigate questions of executive privilege.

    However, if you are the president and the president's team, do you really want to be seen as invoking executive privilege, particularly that early in the investigation, when McGahn went in? I think it looks terrible.

    And so I don't completely agree with Kathryn. I think the law isn't quite as strong as she suggests, but really there hasn't been a lot of litigation on it.

  • Judy Woodruff:

    Well, let's move on just quickly to what we know, Kathryn Ruemmler, of what this investigation amounts to so far.

    From what you have read, from what you know, what do you glean that Robert Mueller has at this point?

  • Kathryn Ruemmler:

    Well, let me say, just based on what is publicly available, I don't think that we know really much of anything.

    I think that the information that has come out of the special counsel's investigation has not come from the investigators themselves. It's largely come through, you know, witnesses or other people sort of on the periphery of the investigation talking about, you know, questions that they may have answered or trying to surmise what areas the special counsel is focused on.

    And I just think we really don't know. We have — we don't have any way of giving sort of, you know, credible predictions about where he might ultimately be headed with this investigation.

  • Judy Woodruff:

    Sol Wisenberg, how do you read what you know so far, what you have seen so far?

  • Solomon Wisenberg:

    I think Ms. Ruemmler's point is outstanding.

    I can guarantee that you 50 to 75 percent of what Mueller is working on, we don't know. And 50 to 75 percent of what you see in the press is wrong.

    However, on the issue of whether or not there is a criminal conspiracy between people in the Trump campaign and the Russians, we can make educated guesses based on the plea documents that we have seen so far. And none of those plea documents indicate that there is an obstruction case.

    But to be continued. Maybe Mueller is keeping that under wraps. But, typically, if you have somebody who is pleading, in the plea papers, it's called either a statement of facts or a factual basis. I think Mueller calls it statement of the offense. The person talks about what he or she did.

    And if you look at those documents with respect to Papadopoulos, with respect to Flynn, even with respect to Gates, you don't see an obstruction narrative there. So I do think we can make intelligent guesses.

  • Judy Woodruff:

    Fifteen seconds.

    Kathryn Ruemmler, do you see it the same way?

  • Kathryn Ruemmler:

    Well, I would differ a little bit, in saying that I think the obstruction facts, to the extent that there are some — and I'm not suggesting that there are — but I think they would postdate those prior plea agreements.

    So I'm not sure how much we can glean from that.

  • Judy Woodruff:

    Well, for sure, we are all keeping our eyes on all of it.

    Kathryn Ruemmler, Sol Wisenberg, we thank you both.

  • Solomon Wisenberg:

    Thank you.

  • Kathryn Ruemmler:

    Thanks, Judy.

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