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ANALYSIS

Kavanaugh confirmation is White House counsel McGahn's 'last stand'

White House counsel Donald McGahn sits behind Judge Brett Kavanaugh during a Senate Judiciary Committee hearing in September, 2018.

JOE GROMELSKI/STARS AND STRIPES

By ROBERT COSTA | The Washington Post | Published: October 4, 2018

WASHINGTON — White House counsel Donald McGahn grumbled to his friends in late August that his expected exit this year from the West Wing was announced by President Donald Trump on Twitter — without even a warning.

"Don was surprised and a little annoyed, but eventually he shrugged it off," according to a person close to McGahn who was not authorized to speak publicly. "It seemed like the last little bump in the road."

But there was a car wreck ahead.

McGahn's final bit of business before departing was to get Brett Kavanaugh seated on the Supreme Court. It was a prize — moving the court further to the right, potentially for decades — that made his final months in the White House worth their trouble.

Now, Kavanaugh's nomination is in doubt over sexual assault allegations made by Christine Blasey Ford and others — and McGahn is desperately working to save it from collapse.

McGahn — 50, low-key and known for his dark humor — has been in bunker mode, working nearly nonstop to save the nomination by serving as both lawyer and crisis communications adviser to Trump and Kavanaugh, often being the rare person who will speak bluntly to both men.

"Don believed in the potential of Trump's candidacy early and signed on early, so he has a lot of leeway. The president doesn't forget that — and Don's a survivor," former Trump adviser Sam Nunberg said.

Tempers have flared in the fallout over the allegations against Kavanaugh, both inside the administration and on Capitol Hill, where McGahn's handling of the FBI's investigation of Ford's claims have sparked sharp questions from both parties about its scope and the extent to which the White House is limiting the probe.

Kavanaugh's fate could become clear Thursday after senators are expected to review the FBI report on the allegations against the judge.

Trump, who has had several shouting matches with McGahn over the ongoing Russia investigation during their time together in the White House, has fumed to associates as Kavanaugh has struggled that McGahn pushed the nominee on him and that he barely even knows the federal judge, according to a White House official and three Republicans involved in the discussions.

Those frustrations about Kavanaugh's bid — which Trump at times privately calls McGahn's pet project and a too-kind overture to the GOP establishment that has been his foe and foil — have begun to spill out.

"I don't even know him. I met him for the first time a few weeks ago. So it's not like, 'Oh, gee, I want to protect my friend,'" Trump said of Kavanaugh this week at a Mississippi rally.

Kavanaugh, meanwhile, remains reliant on McGahn for guiding him through the thicket of mounting allegations and trusts him as a fellow traveler of Washington's elite conservative legal circles. Before joining the White House, McGahn was a partner at Patton Boggs and later at Jones Day.

But Kavanaugh, too, has had tense moments with McGahn. Kavanaugh's allies have wondered behind the scenes whether McGahn's confidence was shared throughout the rest of the White House, the three Republicans said, adding that talks over the judge's media strategy have been strained.

So were prep sessions for Kavanaugh's Senate hearing last week. Kavanaugh grew unhappy with the personal questions being thrown his way as McGahn and others looked on, a White House official said.

One Trump ally, who was not authorized to speak publicly, said McGahn is the person who has had to "bring Kavanaugh back to reality" and remind him of the brutal political and media challenges facing him, at once urging him to fight on but also "to not expect anything but problems."

Friends say McGahn is driven by his desire to oversee the confirmation of a second Supreme Court justice before he leaves, as well as his own partisan anger toward the Democrats for their tactics. The person close to McGahn said the White House counsel was instrumental in urging Kavanaugh to be combative and raw during his opening statement before the Senate Judiciary Committee last week.

The bond between the two men, the friends add, is more than transactional or political. McGahn is Kavanaugh's generational peer, and shares his Irish roots, Catholic faith and conservative ideology. Their resumes also both include stints in George W. Bush's administration. McGahn chaired the Federal Election Commission and Kavanaugh was Bush's staff secretary.

McGahn, who has declined interviews throughout the confirmation process and largely stays in his wing of the White House, has kept a tight grip on the FBI's further probing of the allegations against Kavanaugh, serving as the liaison to the Justice Department and the "explainer in chief to senators," as one Senate Republican adviser described McGahn's role, making and taking calls.

Sen. Jeff Flake, R-Ariz., a critical undecided vote, told CNN on Wednesday that McGahn has been his point of contact ever since calling for a delay on Kavanaugh's confirmation vote until the FBI was completed with its updated background check.

Sen. Chris Coons, D-Del., who helped broker a deal with Republicans to secure the limited FBI investigation, spoke by phone with McGahn on Sunday, pressing him on the breadth of the probe.

At Kavanaugh's hearing last week, McGahn's name was front and center as millions watched on television, as Sen. Dick Durbin, D-Ill., asked Kavanaugh to "turn to your left in the front row to Don McGahn" and "tell him it's time to get this done — an FBI investigation is the only way to answer some of these questions."

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, jumped in and said, "This committee is running this hearing, not the White House, not Don McGahn."

The Kavanaugh episode is one of many crises where McGahn has been thrust into the middle. Like other current and former Trump aides, McGahn has met on multiple occasions with special counsel Robert Mueller's team, for dozens of hours. Earlier in the year, White House Chief of Staff John F. Kelly and McGahn faced scrutiny over how they handled allegations of spousal abuse against Rob Porter, who resigned as staff secretary on Feb. 7.

More broadly, Kavanaugh's trials have prompted a reckoning for the conservative establishment in Washington that has deep networks on Capitol Hill and in the judiciary, and has become empowered with McGahn at Trump's ear.

Trump has seen more than 60 of his nominees for federal courts confirmed, many of them being drawn from the community of lawyers who know McGahn or Senate Majority Leader Mitch McConnell, R-Ky. — or are on the radar of the Federalist Society, a conservative legal group run by Leonard Leo, an informal Trump adviser.

"I don't think we've ever seen the equivalence of the Federalist Society in any administration prior, either Republican or Democratic," said Walter Dellinger, a former acting solicitor general for Bill Clinton. "You have the White House, Federalist Society, and Senate leadership working together in an unprecedented way . . . The president effectively outsourced his picks for the court."

Justice Neil Gorsuch's relatively smooth confirmation last year was celebrated by conservatives — nationally and in Washington, in particular — as an indicator of their influence. Gorsuch was a graduate of Georgetown Preparatory School in Maryland and the son of the first female administrator of Environmental Protection Agency, who served in the Reagan administration.

But Kavanaugh's nomination has been seen in more personal terms by the conservative legal set. He is a longtime resident of suburban Maryland and also a Georgetown Prep alum as well as part of the tightknit group of former senior aides to George W. Bush, who has made calls to senators to boost the nominee.

The tumult around Kavanaugh has also frayed nerves to the point of conspiracy theories being promoted. Prominent conservative lawyer Edward Whelan, president of the Ethics and Public Policy Center and Kavanaugh's friend, took a leave of absence last month after casting doubt on Ford's allegations with widely-criticized tweets that insinuated another person could be responsible for the sexual assault she alleged Kavanaugh committed while the two were in high school.

"This isn't just a McGahn thing. It's about the D.C. network of conservative lawyers, all of the former clerks and friends who were more or less lobbying for Kavanaugh," said Ramesh Ponnuru, a fellow at the American Enterprise Institute, a conservative research group. "That's what has set Kavanaugh apart, unlike the others who were in the mix for the court and couldn't compete with that, like Amy Coney Barrett," a lesser-known federal judge in Indiana who was on Trump's shortlist.

Ponnuru said that elite conservative legal network, even if rattled, would likely remain a force in Trump's Washington.

"It could strengthen the emotional pull for the president with them, if Kavanaugh gets on the court and is a solid conservative jurist as people have been saying he would be," Ponnuru said. "He'd see the attacks as unfair, not as a reason to lose confidence in [McGahn] or the Federalist Society."
 

White House counsel Donald McGahn and Zina Bash, one of Judge Brett Kavanaugh's former law clerks, sit behind the Supreme Court nominee during a confirmation hearing in September, 2018.
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