WASHINGTON — Don McGahn, the Trump White House’s top lawyer and unassuming architect of the president’s mission to dismantle huge swaths of federal government, is planning to quit this fall. President Trump announced the news Wednesday morning in a tweet, saying McGahn would leave “shortly after the confirmation (hopefully) of Judge Brett Kavanaugh to the United States Supreme Court.”
White House Counsel Don McGahn will be leaving his position in the fall, shortly after the confirmation (hopefully) of Judge Brett Kavanaugh to the United States Supreme Court. I have worked with Don for a long time and truly appreciate his service!
— Donald J. Trump (@realDonaldTrump) August 29, 2018
Much of the coverage of McGahn’s decision has zeroed in on his interactions with the Justice Department and Special Counsel Robert Mueller in relation to the ongoing investigation into Russian interference in the 2016 election. Trump and McGahn have frequently clashed with regards to the DOJ and Mueller: In the early months of the administration, Trump told McGahn to convince Attorney General Jeff Sessions not to recuse himself from Russia-related issues — something McGahn was unable to do, infuriating the president. Trump also reportedly asked McGahn last year to fire Mueller, but McGahn said he’d resign before doing so and Trump backed off. More recently, the New York Times reported that McGahn had sat for 30 hours of interviews with Mueller’s team, which apparently took Trump’s personal lawyers by surprise.
It’s tempting, then, to view McGahn’s imminent departure as the behavior of a White House counsel who had fallen out with the president or overstayed his welcome. But there’s another way to interpret McGahn’s decision — namely, that he’d accomplished nearly everything he set out to do and could leave the White House victorious.
On Tuesday evening, the Senate confirmed seven new district judges to lifetime terms on the bench. The total number of Trump-appointed judges confirmed by the Republican-run Senate is now 60. That number could grow by dozens more before the end of the year, with Brett Kavanaugh, whose confirmation campaign is McGahn’s last assignment. If Kavanaugh is confirmed, the Supreme Court will have five fiercely conservative judges who could usher in an era of pro-business, anti-regulation and anti-union jurisprudence not seen for generations.
As Rolling Stone recently reported, the Trump administration’s crusade to stock the courts with conservative ideologues may be its most lasting achievement. President Trump has already put one justice on the Supreme Court, and it’s possible he could appoint one or two more during his first term alone.
At the appeals court level — the “de facto Supreme Court to the vast majority” of Americans, in the words of Sen. Dianne Feinstein (D-CA), where judges hear 59,000 cases every year — Trump and his team appointed more judges than any president in his first year in office since the appeal courts were founded in 1891. Trump is on pace to flip as many as three of the 13 appeals courts before his first term is over. And while Senate Democrats have slowed the pace at which Republicans could confirm district court judges, it now appears, with another eight nominations scheduled for next week, that the logjam has broken.
These judges are young, conservative and handpicked by McGahn with help from his allies at the Federalist Society for their belief in the doctrines of originalism and textualism. They are all in the vein of Justice Clarence Thomas and the late Antonin Scalia and will now spend much of their lives reshaping the American judiciary and the law. “Whatever anyone wants to say about President Trump, he was very explicit about which judges he wanted, and he’s gone about appointing them,” Michael Gerhardt, a law professor at the University of North Carolina-Chapel Hill, told Rolling Stone during the reporting of the aforementioned story. “He made a promise and they’re keeping it.”
Soon after McGahn was named counsel in late 2016, he got a call from Senate Majority Leader Mitch McConnell (R-KY) who stressed how much the new administration could do in reshaping the courts. “The impact that this administration could have on the courts,” McConnell later told Time, “is the most long-lasting impact we could have.”
When McGahn had previously thought about quitting, it was McConnell who reportedly urged him to stay and to continue their push to confirm as many judges as quickly as possible. Now, at the time of McGahn’s departure, one out of seven appellate court judges is a Trump appointee, with one justice already on the Supreme Court and another on the way.
This, more than anything, is McGahn’s legacy as White House counsel.