The FRONTLINE Interviews
Jason Zengerle
Political Correspondent, GQ
Jason Zengerle is a political correspondent for GQ and The New York Times Magazine. He has reported extensively on the Supreme Court.
This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 10, 2019. It has been edited for clarity and length.
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The Creation of the Federalist Society
Give me the early days, if you can, of the Federalist Society, to the extent that you know what they are.
Well, the Federalist Society was founded by law students at Yale and at the University of Chicago, conservative law students who felt out of place.In those law schools, on those campuses, they were very liberal.They were sort of looking for like-minded people, almost kind of a safe space that they could have to exist as conservatives on these campuses.And their first faculty advisers were Antonin Scalia, who was a professor at University of Chicago, and Robert Bork, who was a professor at Yale.
And quickly the chapter started spreading, not just from Chicago and Yale but to some of the other Ivy League schools, other schools.And it was a networking group.It was a chance for these students to meet like-minded conservatives, realize they weren’t alone at these campuses, and just network and meet people.I think for people who felt that the American Bar Association was too liberal, this was kind of a space they could go to that fit their ideological mindset.
When I read about those first meetings, and they get together, and they realize it’s like finding people from Ecuador or something, right?
Yeah.(Laughs.) One of us.You could see each other across the room, and you realized you weren’t all alone.
So you can imagine that it is the starting gun for something, for a lot of young conservative attorneys in America, a starting gun for where they want to be, and a territory they can be in, and make some real headway in the government.
Yeah.I mean, I think that, you know, conservatives, they recognized that they had a project in mind.They had a judicial project in mind, and they believed that American law schools were just irredeemably liberal, and that was why they were creating these lawyers and these judges who would produce these liberal rulings in the civil rights movement, things like that.They wanted to counteract that, and they wanted to establish a conservative beachhead at these law schools with the idea that, from that beachhead, they could then eventually go on into the profession and into the courts, become judges, and achieve some balance to push back on what they viewed as a sort of a liberal institution in the courts.
Ideology and Supreme Court Nominations
It’s interesting.Some of the people we’ve talked to have said, you know, that even Republicans who were picked by Republican presidents were not conservative in the way we think of them as conservatives now; that it was really few and far between, in terms of people who were getting on the courts who were becoming judges, that were actually really conservative.
Yeah.I mean, the Republican presidents did not have an ideological litmus test for their judicial picks.And I think Democratic presidents would say as well that they didn’t have an ideological litmus test.It just happened that the majority of the people they were picking from were sort of more liberal than not, because of the nature of law schools.At least that’s what conservatives believed.
And a lot of conservatives kind of looked at these Republican presidents who had picked these judges who turned out to make these fairly liberal rulings, you know, whether it was [Earl] Warren, whether it was [Warren] Burger, their courts, lower-court judges.And I think Reagan was sort of the first Republican president who really made a point of trying to put ideologically conservative legal minds on the bench.
For somebody like Scalia and Bork, the ideas that they had, how dramatically different were they from what the courts’ opinions had been and what the justices who were getting on the court had?
They were very different.They were aggressively conservative.They were, you know, originalists.They were a minority view in the academy and even more of a minority view on the bench.It was a new way of thinking about these things that had not previously been really represented on the federal bench.
What kind of territory were they in, that they were interested in, that was different than what the court had been finding and the territory that it had been in?
They profoundly disagreed with a lot of the decisions made by the Warren court and the Burger court.They felt that the court was overreaching, that it was legislating and not actually making judicial rulings, and they wanted to bring an end to that.
So from the beginning, what did they know they need, and how do they acquire it as a group?
Partly they just need manpower.They need to actually build up a cadre of conservative lawyers who can get the training, get the credentialing, get the connections that they can eventually use to rise in the profession, if not actually making it to the courts themselves, making it to law firms, making it to law schools where they can teach people.It was just a question of actually bodies at a certain point.
The Legacy of the Failed Bork Nomination
…This management of nominees has, by now, taken hold, and it is reaction, I suppose, to Bork.It hadn’t really happened in quite the same way.It’s almost like a political campaign in lots of ways.
Yeah.Yeah.No, I mean the Democrats got there first with Bork.I mean, the Republicans were not expecting what Democrats did to Bork.And Republicans will always say the Democrats fired the first shot.I mean, it is really remarkable, when you talk to some of these people in the world, in the conservative legal world, who, a lot of them were, you know, probably in their 20s in law school at the time.I mean, the Bork hearings were a seminal moment for them.It was just kind of a searing experience for them, what happened to Bork, who they believed was a hero, how unfairly they thought he was treated by Democrats.I mean, it really—so many of the people we look at today and talk about as being extremely important in this world, Bork was kind of—that was a touchstone for them, what happened to him.
Leonard Leo and the Federalist Society
Tell us who [Leonard Leo] is.
Leo was a law student at Cornell, graduated from Cornell, got a clerkship in D.C., came down.He had been active in the Federalist Society at Cornell as a student.And that was back, though, when the Federalist Society was really just kind of almost a debating society on law school campuses.The Federalist Society offered him a job in Washington to try to build up their Washington presence, which they didn’t really have one, and Leo took it and ran with it.He was able to take what had been kind of an academic group merely on these law school campuses, and really make it a player in terms of the politics of Washington, I mean in terms of placing Federalist Society members in Capitol Hill offices, getting them clerkships, and really sort of building it into what it is today.
His traits?What are his character traits?What’s his skill set?
He’s a networker.His skill set is schmoozing and connecting people.He is excellent at maintaining connections and forging new connections and introducing people to other people, and he’s at the hub of the network.Everything runs through Leonard Leo.
Fundraising?
He’s quite good at it.You know, I mean maybe it’s not the heaviest lift in the world.There are a lot of conservative groups and businesspeople who are sympathetic and enthusiastic—sympathetic toward him, enthusiastic about the Federalist Society’s legal project, in terms of rolling back regulations and the like, so they support it for that reason.But Leo is quite good at monetizing their support.
The Modern-Day Federalist Society
What has happened to this little campus group that puts it wherever it is, at that moment, as the dawning of Trump, just before Trump?
The Federalist Society has kind of become the de facto sort of legal wing of the Republican Party.Every mainstream Republican politician, even, you know, conservative—far right and center right, moderate—they all look to the Federalist Society for guidance in terms of who should be on the bench.They’d become …almost like a think tank, in some ways, for Republican politicians in terms of how they should think about judicial issues, how they should think about the court.You know, George W. Bush relied on the Federalist Society quite heavily for his judicial picks for Supreme Court and lower courts.Every Republican running for president will, you know, sidle up to Leonard Leo and try to develop a relationship with him and reassure the Federalist Society that he or she would kind of follow their lead in terms of who they would put on the bench.They’ve just become kind of a credentialing arm of the Republican Party when it comes to judges.
And the evolution of the ideology?I mean, obviously, the clout is increasing by the number of people and who they are.Is there a change going on in terms of the way they view the court and they view the law?
Yeah, there is.You know, I think when the Federalist Society was originally started, the dominant philosophy was one of judicial restraint, which was a reaction to the Burger and Warren courts, which they thought were too aggressive in their rulings, and were usurping the authority of the legislature and the executive branch.They were legislating from the bench.The conservative philosophy was judges should not be just sort of willy-nilly overruling majority-enacted laws.[They should] just be more restrained in their rulings.
At the same time, while that was the dominant philosophy, there was kind of a rump faction of conservative law professors, conservative lawyers who were part of the Federalist Society who favored a more aggressive approach.They were libertarians.They subscribed to originalism, as did other Federalist Society members who favored judicial restraint.But they favored a more aggressive brand of originalism, and they believed that the courts should not be reluctant to strike down laws that departed from the original intention of the Constitution.It was almost like a judicial activism for conservatives.
So is that the dominant ideological feature of the organization by 2016?
By 2016 it is, because of what happened in 2012.Because of the Roberts decision in the Obamacare case.John Roberts was a conservative judge.He was appointed by a Republican president.His nomination was signed and sealed and stamped by the Federalist Society.I mean, he was one of their own.And they finally get to this moment where they're going to overturn Obamacare.They have a majority on the court.This is what they’ve been working toward—I mean, obviously, Obamacare is a relatively new piece of legislation, but they’ve been working toward this moment for, you know, 20 or 30 years.And Roberts loses his nerve, as far as they're concerned.He was reluctant to overturn this majority-enacted law.
And there were members of the Federalist Society who had been, I think, reluctant to join the sort of the libertarian originalism camp.But once Roberts did that …it pushed them over in that direction.And then that was a real tipping point within the larger conservative legal movement.Folks who had been kind of a rump faction, not quite fringe—I mean, moving more and more to the mainstream, and becoming more and more powerful and vocal on law school campuses, they hadn’t quite achieved that same level of power in the political world.But the Obamacare decision, I think, was a real tipping point.And from that point on, they were ascendant and eventually, I think, in the majority.
Can you give me a sense of numbers?
We’re not talking about that many people.I mean, the Federalist Society, I think, is 70,000 members.But, you know, it’s the people who come to the annual meeting every year at the Mayflower Hotel.It’s the people who are really active in it.You're talking, I don’t know, 500, 600, and, you know, within that group, there are certainly people who are more influential than others, and people who kind of follow their lead.But it’s a very elite group.I mean, it’s not a huge mass-member organization.
How important [is the Federalist Society] to politicians like Mitch McConnell (R-Ky.)?
Extremely important, and I think for ideological reasons.I mean, there's nothing sinister there.I mean, I think he agrees with their projects.You know, he has, I think, sort of pretty deep-seated beliefs about the judiciary and the legal system, which line up quite well with the Federalist Society.He’s extremely close to Leonard Leo.He’s extremely close to other members.… I don’t think the Federalist Society is influencing Mitch McConnell.I think he would have gotten there without the Federalist Society.But they're allies.
Yeah.
The Death of Justice Scalia and Mitch McConnell’s Gamble
So it’s 2016.Scalia dies, surprisingly, I guess February.
February, yeah.
And McConnell comes out and says, “We’re not going to entertain; we’re not going to hold hearings; we’re not going to vote on anybody this particular sitting president brings forward.”Is this consistent with the Federalist Society kind of approach and idea of how to operate in a moment like this?
No, it’s not.I mean, it’s not, because it’s not adhering to precedent.I mean, McConnell invented a rule, basically.I mean, he made up this rule that, you know, we can't confirm a Supreme Court nominee in the same year as a presidential election.He just kind of made this thing up to justify the situation.You know, I think the Federalist Society believes in norms and believes in institutions.What McConnell was doing was breaking these norms, disregarding these norms, you know, really sort of harming the institution of the Senate.I think, from a philosophical standpoint, it probably was not consistent [with] what the Federalist Society believed.From a political standpoint, it was perfectly consistent.
And what were the stakes for McConnell and the conservatives making a bet like this, or a gamble like this?
I mean, the stakes couldn’t have been any higher.McConnell was, you know, breaking all precedent.He was violating the rules.He was doing something that could really harm the Senate.But there were two factors at play.One was just the court itself.He didn’t want there to be a [Democrat]-appointed Supreme Court justice replacing the most conservative justice on the court in Scalia.But number two, I think McConnell recognized the politics of the situation, and he saw how keeping that seat open could have an impact on the elections, both the presidential elections and some of the Senate elections in 2016; that if you kept that seat open, it would motivate Republican voters in a way that it wouldn’t motivate Democratic voters and that it would be a real boon to Republican candidates, both for the presidential race and the Senate races, to have that on Republican voters’ minds.
But of course the likely candidate to win, at least in terms of the conventional wisdom, was Hillary Clinton, a progressive Democrat, in the fall.He’s really rolling the dice.
Yeah, he’s rolling the dice.But at the same time, it’s an interesting counterfactual, right?I mean, Obama picks Garland because Obama continues to believe, even at that late date in his presidency, that he can reason with Republicans.Even though Republicans—even though McConnell has signaled that he’s not going to consider anyone Obama nominates, Obama still picks someone who he thinks can get Republican votes.I mean, he’s a moderate.He’s old.Obama picked Garland because he thought he was going to be able to peel off Republicans, and they would vote, and they would approve Garland.
So I think partly what McConnell was thinking was, even if Hillary did win, she would likely just nominate Garland.And if she won, I mean, the really devious thing that would have been interesting was, if Hillary had won, and McConnell and the Republicans in the lame duck were worried that she would nominate a more liberal jurist than Garland, they could have confirmed him during the lame duck.And I think Democrats would have been in a tough position there.
Almost everybody we’ve talked to, they say this is one of the great shocking moments in the contemporary history of the management, the delivery of people to the Supreme Court of the United States; that this is a, you know, super, star this moment, underline, highlight this scene, because it’s going to have all kinds of ramifications.
Yeah, it’s totally unprecedented.And I think you can make the argument that, without it, Donald Trump doesn’t win the White House.
Say why?
Because a big problem that Trump had was getting mainstream Republican voters to support him and to buy in.And I think there were a lot of Republican voters, there were a lot of Republican leaders, a lot of Republican intellectuals, a lot of politicians, a lot of voters who did not like Donald Trump, but when presented with a black or white choice—if you elect Hillary Clinton, you're going to get a [Democrat]-appointed judge on the court; if you elect Donald Trump, you're going to get a Republican-appointed judge on the court—they were willing to hold their nose and vote for Trump because it was just so clear-cut.It wasn’t a hypothetical; it wasn’t, “Well, there might be an opening during Trump’s presidency, and he would likely appoint a conservative to the court.”It was: “If Trump wins, we’re going to fill this seat.If Hillary wins, she’s going to fill this seat.Which one do you want?”And I think that was really determinative for a lot of Republicans.
Donald Trump’s Nominee List
…So about a month later, Trump is in Washington, meets with McConnell, heads to Jones Day with [White House Counsel] Don McGahn in tow, and [former Sen.] Jim DeMint (R-S.C.) coming over.
And Leonard Leo.
Create for me that scene, the circumstances, and what happens inside the Jones Day law firm.
Well, it’s Trump’s first visit to Washington as a presidential candidate.And at this point, you know, he’s sort of plausibly the frontrunner in the Republican primaries.But still, there's a lot of skepticism about him in Washington among establishment Republicans, a lot of distrust.And McGahn puts together this meeting at Jones Day for Trump to meet some establishment Republicans.And it’s still—it’s not sort of, you know, a lot of establishment Republicans.The Heritage Foundation is there.They're pretty conservative.
But one person who decides to attend is Leonard Leo.And Leo is about as establishment as you can get.And they go around this table in the Jones Day conference room, and everybody kind of says what they're there for, and Leo brings up the courts, and that’s why he’s there.Before the meeting, McGahn and Leo had talked some.
I’ll go back even a little bit further.When Trump was starting to run, one of his aides tried to set up a meeting between Trump and Leo.And this aide, his name was Sam Nunberg.He approached Leo at some event and said: “Mr. Leo, you know, Mr. Trump is a conservative now.You're not going to believe how good he’ll be for your issues.I’d really love for you to get a chance to sit down and talk to him.”And Leo just kind of blew him off.The meeting never happened.
And I think that was, you know, reflective of what Leonard Leo thought of Donald Trump and his presidential candidacy.But by the time of this visit to Washington in March of 2016, Trump had become not only a plausible candidate, but quite possibly the frontrunner, and Leo’s thinking about Trump had evolved.I think not only did Leo feel like he needed to do business with Trump, and he needed to actually develop some kind of relationship with him in case he was the Republican nominee—I mean, that’s sort of the Federalist Society’s job, right, to advise the Republican nominee, to advise a Republican president.
But I think beyond that, I think Leo, maybe before other people, he saw the opportunity that Trump presented.In some ways, you know, although Leo was quite close with a number of other Republican candidates, whether it was Jeb Bush or Marco Rubio or Ted Cruz—I mean, Ted Cruz was his good buddy.Cruz clerked for [William] Rehnquist.You know, he’s been part of the Federalist Society for years.You would think that Cruz would be the best the Federalist Society could ever hope for a Republican president.
But I think Leo saw in Trump someone who could be even better than that, precisely because Trump didn’t know anything.He was a blank slate that the Federalist Society and Leonard Leo could kind of impose their philosophy on, and he would accept it.So at this meeting, before the meeting happened, McGahn and Leo had had a conversation, and McGahn told Leo that Trump wanted to put out a list of possible Supreme Court nominees to replace Scalia.And this was kind of unheard of.I mean, traditionally, candidates for president and then presidents themselves, they keep the list of potential Supreme Court justices very close to their vest, because they don’t want to give the opposition a chance to start digging into these people’s records, to start, you know, vetting them, digging stuff up on them.It’s really—it’s a pretty closely held secret.
Trump, though, had a completely different idea.He was in a position where he really needed to convince conservatives and convince Republicans that he was going to be a reliable conservative when it came to the courts.This was not something he had any track record on.It was certainly not something he’d ever thought about.But he realized, especially with Scalia’s death, that this was going to be a really important issue in the Republican primaries …and probably in the general election, and he needed to show that he would pick a conservative to take Scalia’s place.
Donald Trump didn’t even know who any conservative judges were, but he knew that the Federalist Society knew who they were.And he, through McGahn, asked Leo to come up with a list of names, a short list of potential Supreme Court justices.So Leo, whose whole job it is to come up with these lists, came to the meeting with, you know, a piece of paper in his vest pocket or in his suit jacket pocket, and after the bigger meeting in the Jones Day conference room, he and McGahn and Trump had a private meeting.Trump asked him for the list, and Leo turned it over to him.And I believe he had eight names on it.
Trump’s first reaction was: “I actually wanted a dozen.Can I get some more?”And Leo said, you know, “We’ll try.”And I think he eventually added a few more names to the list after the meeting.
Why?Because of the optics of Trump wanted a longer list?
I think, yeah.… A dozen was a nice, nice number for him.That was the number he was fixated on.And Leo, I think, did eventually add some names.And the list grew longer and longer.But Leo, I think—and it’s funny.Leo, you know, he tells the story of this meeting now, and he really talks up Trump’s insights in the judiciary.You know, they had this conversation about, I think Trump asked him, was Souter as bad as they said he was, and then sort of asked him some general questions about the court, that showed Trump had some kind of inkling about what, you know, conservatives thought about the Supreme Court.And they went back and forth about that.I think they talked some about the Obamacare decision.
Trump asked a question about whether state Supreme Court judges, if their rulings were the final ruling, and Leo explained that sometimes they are, sometimes they aren’t.It depends on if the case involves the U.S. Constitution or not.And he asked Trump why he wanted to know.And Trump said that, as a businessman, he understood how seriously you take a decision when it’s the final decision, and therefore he wanted to sort of have an understanding of how a state Supreme Court justice thinks about this.
And Leo told me that that was the most interesting and insightful and intelligent conversation he’d ever had about the courts with a presidential candidate, which, you know, is hard to believe, considering how many conversations he’s had with presidential candidates, especially those who are really sort of deeply versed in matters of the courts.But I think he, you know, he sort of recognized the need to flatter Trump, and I think he, you know, he was able to play to Trump’s ego in some ways to sort of get on his good side.
Trump goes over to the Trump Tower after that meeting and sort of tells the press that he’s got a list, and it’s—
And it’s by the Federalist Society.I mean, it couldn’t have been more sort of transactional and transparent, basically.Conservatives were worried that Donald Trump was not going to pick a conservative to replace Scalia.Donald Trump doesn’t even know any conservative judges to select, so he goes to the Federalist Society and says, “Give me a list.”They give him a list.He comes back with the list.He says, “The Federalist Society has a list; I'm going to pick from this list.”And that reassures conservatives.
…They must have been dancing in the aisles at the Federalist Society for this.
…I mean up until Trump, even though the Federalist Society was very influential, Republican presidents didn’t sort of do their bidding.They didn’t take every suggestion they made, because the Republican president, they were weighing a lot of different forces.There were a lot of competing forces.There were questions about, you know, whether the person could be confirmed and all sorts of trade-offs and the like.I mean, the Federalist Society doesn’t really consider those things.They want to hit triples and home runs with these selections, and that wasn’t always what Republican presidents necessarily wanted to do.But with Trump, he’ll do whatever the Federalist Society says.
So on election night, McConnell certainly—Trump wins, of course.McConnell holds the Senate, but he also gets a special bonus prize, which is the realization that from that list is going to come a new Supreme Court justice.And this backlog—I mean, he’s been playing this game, this slow-walking game with Obama about appeals court judges and district judges and everybody else.That is going to be unleashed, and a lot of conservative justices and judges are going to make it out into the states.
Yeah.I mean, Garland was obviously an extreme event—I mean, holding open a Supreme Court seat.But it was just the capstone of what had been a years-long effort by McConnell during the Obama administration to stymie Obama’s judicial appointments.I mean, they were able to keep a number—there were so many judicial vacancies under Obama that he was unable to fill, because McConnell was able to get Senate Republicans to sort of march lockstep and oppose them.
And when Trump wins, not only do you have this open Supreme Court seat, you have, you know, over 100 lower-court vacancies that you now have the opportunity to fill.And you know, I mean, it’s funny.I was talking to a McConnell adviser who was saying, you know, it’s not hard to find qualified conservative legal minds to go to the federal bench; the hard part is actually having places to put them.And that’s what McConnell was able to do.He created these vacancies that they were then able to rush people into.
And who are these people?
They're Federalist Society members.A lot of them are young.They're people who went to, you know, top law schools, who had clerkships with, you know, very prominent conservative judges, who went to work in good law firms.They're extremely well-credentialed.But they're—the Federalist Society is almost like a cradle-to-grave organization now for conservative lawyers.You know, you get into law school, and then they’ll take care of you for the rest of your career.You're part of this network, and they bring you along at each step, and they each introduce you to mentors, and they connect you to colleagues.And these are people who were kind of getting groomed for these jobs.So they're all people that Leonard Leo knows.
I mean, Leonard Leo’s job is to, and the Federalist Society’s job is to find these people in law school, you know, identify smart, promising candidates, and then groom them and bring them along, and make sure that, at every step of their career, they're kind of moving toward this goal of eventually getting on the bench.
Fabulous, Jason, because it’s almost like the minor leagues, getting ready for the major leagues.
It’s totally—yeah, it’s very much.I mean, they literally refer to it as a farm system.
Really?
Yeah.
…By the way, speaking of a deep bench, Roberts, [Clarence] Thomas, [Neil] Gorsuch, [Brett] Kavanaugh, all seal-of-approval Federalist Society people, right—
Mm-hmm.
—on the court?
…I think the Federalist Society probably regrets the Roberts seal of approval they gave him.But yeah, there's no—I mean, no Republican Supreme Court justice since Thomas, I think, has been without the Federalist Society’s seal of approval.And, you know, especially—and since Roberts, I think they’ve been more, more explicitly aligned with the Federalist Society.
I mean, I think during Roberts’ confirmation hearing, there was an issue about whether he belonged to the Federalist Society.I believe he said he didn’t.Then some Democrats said he did, and it was a controversy.But Roberts is the last Republican-appointed Supreme Court justice who would try to distance himself from the Federalist Society.I mean, you know, [Samuel] Alito was a member in good standing.Gorsuch certainly, Kavanaugh.I mean, these are people who speak at the Federalist Society annual meeting.They are proud of their Federalist Society affiliation.They wear it on their sleeves.And that’s just going to be par for the course for any Republican-appointed Supreme Court Justice from here on out, I think.
Don McGahn’s Influence on President Trump’s Court Picks
Help me understand Don McGahn.Who is he; his relationship to the Federalist Society; what he takes with him into the White House Counsel’s Office from the Federalist Society?
So McGahn was an elections law lawyer and a campaign finance lawyer, or campaigns lawyer in Washington.And he was a very good one.He was one of the more prominent Republican campaign lawyers in town.But, you know, in the Federalist Society world, election law lawyers, campaign lawyers, like they're not movers and shakers, because the kind of—their legal practices is fairly mundane, kind of technical.It’s not very intellectual.I think a lot of Federalist Society members kind of fashion themselves as, you know, great thinkers.… I mean, the part of the legal world in which those people have the greatest kind of impact has to do with constitutional law.These are people who, you know, went to the top law schools, who had clerkships on either top appellate courts or on the Supreme Court, who work at major law firms and have their own appellate practices.You know, they're arguing cases before the Supreme Court.Someone like Ted Cruz would be a good example of that.
That was not Don McGahn.I mean, McGahn went to Widener, which is a second-tier law school.He was very successful in Washington as a campaign lawyer, and he was a member of the Federalist Society, because, you know, if you're a Republican lawyer in Washington, you're going to be a member of the Federalist Society.But he was not someone who was rubbing elbows with Leonard Leo.He was not someone who was sort of at the head table at Federalist Society events.He was kind of a rank-and-file member.
But he was a very good election law lawyer, and when Donald Trump was running for president, that was one area that his campaign advisers thought they really needed to get top talent.You know, Trump was very cheap with his campaign, but one place where he was willing to spend money was on his campaign’s lawyer, because I think he knew that, especially in the primaries with his Republican opponents, they would be coming after him on questions about campaign finance, you know, questions about his business, and he wanted to make sure that he had a top lawyer to handle all those things, and make sure that all the i’s were dotted and all the t’s were crossed.
So McGahn was one of the best guys.And Trump was willing to pay for him, which he was really not willing to pay for much campaign talent.So McGahn took the job with Trump, and you know, it was a bit of a gamble on McGahn’s part.I mean, he was a pretty credentialed lawyer in this world of campaigns and election law, but he went to work for Trump and, you know, did a good job, and actually developed a bit of a rapport with Trump.Trump sort of appreciated the job he was doing, appreciated his loyalty.
And when Trump was elected, he offered to make McGahn White House counsel.You know, I think even though McGahn was, you know, a partner at Jones Day, he was a very successful lawyer, I don’t think he ever dreamed that he would be White House counsel.His résumé did not really sort of fit with past White House counsels.
But, you know, Trump was such an outsider, and he wasn’t exactly—he didn’t have a lot of—there weren’t a lot of people wanting to work with him necessarily.But he knew McGahn, and he gave McGahn the job. And, you know, McGahn then, in terms of filling out the White House Counsel’s Office, he hired a lot of Federalist Society people, people who did have the résumés.I mean, you know, McGahn himself might have gone to Widener, but all the associate White House counsels, they all went to Harvard and Yale and Chicago.These were people who actually probably would have worked in any Republican White House.McGahn sort of turned that office into an office that resembled what it was under George W. Bush, or H. W. Bush.
It was really like one of the only parts of the White House that didn’t have that kind of Star Wars cantina bar feel to it.I mean, it wasn’t a bunch of misfits.It wasn’t a bunch of sort of, you know, people who never could have worked in the White House except for any other president [sic].It was a fairly sort of traditional Republican operation, and therefore, especially in the Trump White House, it really stood out for kind of being like a real island of competence.There was so much just kind of dysfunction everywhere else in the White House, but the White House Counsel’s Office was actually fairly, fairly smoothly run.
And in part because of that, you know, and then for other reasons as well, Trump invested an unprecedented amount of authority in McGahn and the White House Counsel’s Office when it came to judicial selections.I mean, typically in most White Houses, Republicans or Democrats, the process of picking judges is done by a bunch of different people.I mean, in the George W. Bush administration, they actually had a committee made up of people from the White House Counsel’s Office, the Office of Legislative Affairs, the Office of Political Affairs and the Justice Department, and you sort of crowdsourced these discussions and these nominations.
…Kavanaugh is himself a perfect example of the farm system.It takes him from A-ball to Double-A ball to Triple-A ball, and now he’s ready for the majors, right?
Yeah, yeah, no.I mean, it’s perfect.I mean, you know, Yale is kind of A-ball, and then the Bush White House is, you know, Double-A, and then D.C. Circuit is Triple-A. I mean, he’s sort of moving at every step, and you know, he’s very much part of that world.He’s been kind of bred for this.
But he is a “swamp” creature.He is Yale.He is a Bushie.
That’s the bigger problem with Trump, is that he was a Bushie.I think Trump probably liked the Yale part.I mean, Trump—and the funny thing is, although Trump probably didn’t think about this much before, he didn’t care about it, he does love credentials, and he loves the idea of these Ivy League lawyers.You know, I think he likes the idea of being able to sort of put them in place, you know.It’s sort of—he’s picking them.
“They work for me.”
Exactly, yeah.But, you know, but he’s very impressed by their credentials.He wants them to have good credentials.So I think the Bush thing was a problem for him, because he’s suspicious of anyone who’s part of the Bush world.And that was a problem with Kavanaugh.But I think all the other stuff, especially, you know, his educational background, I think, was a plus.
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