Former National Security Advisor Michael Flynn’s possibly criminal failure to register last year as a foreign agent is but the latest of many White House ethics lapses in the first seven weeks of the Trump presidency. Responsibility for this problem—like so many others in the young Trump presidency—lies at the feet of White House Counsel Donald McGahn.
This week’s imbroglio began with Flynn’s registration on Tuesday with the Justice Department as a foreign agent under the Foreign Agents Registration Act. The statute requires anyone who acts as “an agent of a foreign principal” to disclose that fact to the Justice Department so that the government and the public can evaluate his or her statements and actions in that light. On Tuesday Flynn registered his consulting firm, Flynn Intel Group, for the $530,000 of work it did last year for a Dutch firm owned by a Turkish businessman with ties to Turkey’s President Recep Tayyip Erdogan. The registration acknowledged that the firm’s work “could be construed to have principally benefitted the Republic of Turkey.”
One question now is whether Flynn’s failure to register last year violated the disclosure law, which could result in a $10,000 fine or up to five years in prison. But another important question is how Flynn could become Trump’s National Security Advisor without the disclosure and resolution of such an obvious conflict of interest.
Which brings us to McGahn. According to the Washington Post, Flynn’s attorneys “informed the incoming White House legal counsel during the transition that Flynn might need to register with the government as a foreign agent.” The White House said yesterday that McGahn was not aware of the details of Flynn's work but did advise Flynn that his personal lawyer should determine whether registration was appropriate. The AP and the Washington Post reported that Flynn's attorneys spoke a second time with an unnamed White House attorney about the matter after the inauguration.
These events represent extraordinary lapses by McGahn in the vetting Flynn for the National Security Advisor position. The White House Counsel “has special responsibility for legal and ethics compliance within the West Wing,” notes Barack Obama’s White House Counsel, Bob Bauer. “She may have to advise on a wide range of areas,” Bauer added, “but a bedrock responsibility is ensuring the adherence to law and ethics standards by the President and the staff.”
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.
It remains possible, though hard to imagine, that McGahn had a good reasons for leaving it to Flynn to resolve the registration issue and for not pursuing the conflict-of-interest matter during the transition when Flynn was about to be named National Security Adviser. If so, the White House should make clear those reasons immediately.
But this would not be the first time that McGahn has acted questionably related to Flynn’s tenure as National Security Advisor. He also did so in advising President Trump that Flynn’s misleading representations to administration officials about his phone conversation with Russian Ambassador Sergey Kislyak raised no legal issues but only issues of trust.
Nor is this the first ethics compliance failure on McGahn’s watch. The Director of the Office of Government Ethics warned McGahn soon after the election that he was not following standard ethics protocols in the vetting of cabinet officials. And the many subsequent ethics failures in the White House—the latest of which was the poor counseling and mere slap on the wrist concerning Kellyanne Conway’s pitch to buy Ivanka Trump’s clothing and accessories—are McGahn’s responsibility.
McGahn also bears some responsibility for other White House cockups ranging from the first Immigration Executive Order fiasco to President Trump’s inadequate briefing on the details of the Executive Order concerning the organization of the National Security Council.
McGahn’s many failures help one appreciate the vital role that the White House Counsel normally plays. Ensuring compliance with the ethical and legal rules, and insisting on strict adherence on processes designed to flesh out potential problems related to these rules, are crucial to protecting the President and the White House from politically damaging controversies that detract from the President’s ability to accomplish his goals.
Many are surprised that McGahn has so poorly served the President in such a short period of time. His government experience on the Federal Election Commission and his selection of a truly impressive cadre of A Team attorneys for the White House Counsel’s Office led me and others to conclude that the problem might be with the client, President Trump, rather than with his attorney.
But 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.
Jack Goldsmith is a professor at Harvard Law School, a senior fellow at the Hoover Institution, and a co-founder of Lawfare. He served as an Assistant Attorney General from 2003-2004. @jacklgoldsmith.