It wasn’t until Sept. 27 of this year when millions of Americans received their introduction to Don McGahn.
“Turn to your left,” Sen. Dick Durbin, D-Ill., told Supreme Court nominee Brett Kavanaugh, who was testifying before the Senate Judiciary Committee about allegations of sexual misconduct, “in the front row, to Don McGahn, counsel to President Donald Trump. Ask him to suspend this hearing and nomination process until the FBI completes its investigation of the charges made by Dr. Ford and others.”
McGahn, White House counsel until last week, sat just over Kavanaugh’s left shoulder, in the front row, and just out of the camera shot beamed to millions of rapt Americans who tuned in to watch the extraordinary hearing, during which Kavanaugh and the woman who accused him of sexually assaulting her in 1982, Christine Blasey Ford, testified.
A largely unknown figure, McGahn, 50, played a key role in Kavanaugh’s confirmation process, appearing alongside him during courtesy calls with senators and at Kavanaugh’s confirmation hearing at the start of September, where he faced a litany of questions from the Senate Judiciary Committee’s 21 members.
After he faced allegations of sexual misconduct by three separate women, Kavanaugh’s confirmation hung in the balance.
But it was McGahn who, with President Trump and Senate Majority Leader Mitch McConnell, R-Ky., was crucial in ultimately pushing Kavanaugh’s nomination across the finish line.
McGahn’s legacy as White House counsel will include the confirmations of two Supreme Court justices — cementing a conservative majority on the high court — and dozens of lower court judges.
During the course of the Trump administration, it’s largely been Trump and McConnell who have been the faces of the GOP’s success with reshaping the federal judiciary. But McGahn completes the trifecta, playing a more behind-the-scenes role.
“I think Don will go down as one of the greatest White House counsels ever,” Michael McGinley, former associate counsel who assisted with the judicial selection process, said. “He was able to move the ball and demonstrate a level of integrity and good judgment and toughness. When I think of Don, I think of integrity and fortitude and clear thinking, and there are no better qualities for a White House counsel than those.”
A former commissioner on the Federal Election Commission, McGahn was no stranger to Trump when he was tapped to lead the White House Counsel’s office.
McGahn joined the businessman-turned-politician’s presidential campaign in 2015, serving as its lawyer.
Trump then hired McGahn to serve as White House counsel. McGahn has held the position ever since, but will soon be departing his post.
While McGahn has had many issues on his plate, including special counsel Robert Mueller’s Russia investigation, he has also overseen the process that has led Trump to appoint 84 judges to the federal bench, including two Supreme Court justices and 29 circuit court judges.
For McGahn, the focus on judicial appointments started long before Trump ever occupied the White House.
While delivering the Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in November, McGahn recalled a phone conversation he had from Iowa with a representative from the conservative legal group, who wanted to speak about judicial selection.
The Trump campaign, McGahn told the official, was working on drafting two lists of possible judicial nominees.
“The first list, we want mainstream folks, not a big paper trail,” he told the Federalist Society crowd. “The kind of folks that, you know, will get through the Senate and will make us feel good that we’ve put some pragmatic folks on the bench.”
The second list, he said, would include “some folks that are kind of too hot for primetime.”
“The kind that would be really hot in the Senate, probably people who have written a lot, we really get a sense of their views, the kind of people, you understand, the kind of people that you know make some people nervous,” McGahn continued.
The first list would go in the trash, he said, while the second list of nominees would head to the Senate “because I know Leader McConnell is going to get it done.”
McGahn reassured the Federalist Society crowd then that Trump was “very committed to what we are committed to here, which is nominating and appointing judges that are committed originalists and textualists.”
To conservatives, Trump has followed through on that commitment, with assistance from McConnell and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa.
“The judicial nominees, probably more than any other policy initiative, have been incredibly popular across the board for conservatives and libertarians,” Carrie Severino, chief counsel of the conservative Judicial Crisis Network, said. “This is an area the president has really excelled in, and Don McGahn’s leadership is a big part of making that happen.”
As White House counsel, McGahn’s top two priorities were judicial appointments and deregulation, McGinley, the former associate counsel, said.
And McGahn was intentional with the way in which he built the White House Counsel’s Office and who he hired, a person familiar with the judicial selection process said. That included hiring a blend of litigators, which contributed to the way the office approached judicial appointments.
“He built a very important White House Counsel’s Office that was housed by people who had a really good grasp on the importance of appointing originalist and textualist judges and who understand the importance of respecting and enforcing limits on government power, particularly when it comes to the administrative state,” Leonard Leo, who served as an outside adviser to the White House on judicial selection, said.
Leo, an executive vice president at the Federalist Society, said the process implemented by the Trump administration is different from that employed by previous presidents.
“Judicial selection in this administration has been more centralized in the White House Counsel’s Office than in past administrations,” he said.
A White House official said making judicial nominations a process driven by the White House Counsel’s Office, rather than by the Office of Legislative Affairs for example, helped ensure it remained a priority.
“If you’re negotiating and horse trading, things get compromised,” the official said.
In selecting nominees, the White House Counsel’s Office seeks input from a variety of parties and, depending on the courts, relies on input from home-state senators, with consultation heaviest for district court nominees.
McGinley said McGahn tried to speak with every single senator, though not all of them wanted to talk to him.
In some instances, the consultation with home-state senators led to unanimous confirmation of nominees.
During the Senate Judiciary Committee’s consideration of two nominees to the 7th U.S. Circuit Court of Appeals, for example, Durbin thanked the White House Counsel’s Office for consulting with him and Sen. Tammy Duckworth, D-Ill., regarding the vacancies.
But in other instances, senators and the White House failed to reach agreement.
That was the case with vacancies on the 9th U.S. Circuit Court of Appeals, which the White House announced three nominees from California to fill.
Sen. Dianne Feinstein, D-Calif., accused the White House of moving forward with nominees without consulting her.
But in a letter to Grassley, McGahn said the White House tried to negotiate with Feinstein and Sen. Kamala Harris, D-Calif., to no avail.
“We have spent nearly two years attempting to engage constructively with the senators regarding the growing number of judicial vacancies tied to California,” he wrote, according to reports. “In fact, we have made more attempts to consult and devoted more time to that state than any other in the country.”
McGahn said he met with Feinstein several times, but said Harris, to the contrary, “has refused to engage with the White House at any level, whatsoever on the issue.”
The White House official said some senators are more willing to work with the Trump administration than others, but noted McGahn worked to cultivate relationships with senators and strengthen existing relationships with McConnell and Grassley.
“Don is a believer in this effort, and he’s open about it, talked about it, written about it, and been a force in this area,” the official said.
As McGahn left the White House, he’ll have played a direct role in the confirmations of two Supreme Court justices, Neil Gorsuch and Kavanaugh.
Kavanaugh’s confirmation process, though, proved to be far more bitter and contentious than Gorsuch’s.
Before Kavanaugh testified during the remarkable Senate Judiciary Committee hearing about the allegations at the end of September, he spoke privately with McGahn, the Wall Street Journal reported.
McGahn urged Kavanaugh to let senators see his true feelings about the accusations, sources told the Journal, advice it Kavanaugh appears followed through on.
During the hearing, Kavanaugh delivered a raw and emotional testimony, and forcefully denied the allegations against him.
The Senate eventually confirmed Kavanaugh to the Supreme Court in a close 50-48 vote this month.
“He assembled a very effective team of people inside the White House and Justice Department to shepherd through the nomination,” Leo said of McGahn. “He was a very important sounding board for the nominee and he basically made sure that the president’s enthusiasm for this nominee manifested itself in a highly effective strategic operation that involved communications and outreach to key senators and very careful messaging.”
Trump officially announced McGahn’s departure in August via Twitter and said his White House counsel would be leaving “shortly after” Kavanaugh’s confirmation.
The tweet sparked disappointment from top Republicans on Capitol Hill.
“I hope it’s not true McGahn is leaving WhiteHouse Counsel,” Grassley tweeted to Trump after his announcement. “U can’t let that happen.”
McConnell, meanwhile, called McGahn the “most impressive White House Counsel during my time in Washington.”
Trump confirmed this month that McGahn’s successor would be Pat Cipollone, a commercial litigator and former Justice Department attorney.
Despite McGahn’s departure, the White House is expected to continue charging forward with judicial nominees.
“A good manager always leaves his house in order after he leaves it or as he leaves it, and certainly McGahn has done that with the White House Counsel’s Office,” Leo said. “A successor should be able to pick up on what they’ve done pretty easily.”
But McGinley said McGahn’s replacement has big shoes to fill.
“No one is going to be able to replicate Don because he’s a unique breed,” he said. “He’s just such an incredible lawyer and is just so good at what he does and has great judgment and political sensibilities. He combines all the factors into one, and that’s really hard.”
