“You say you want a revolution,” the loudspeakers screech, as a sea of cellphones, held aloft by cheering fans, record the scene. Donald Trump, in a dark suit and shiny tie, strides onstage. He waves, gives a thumbs-up, a grin spreading across his face.
It is Tuesday, February 9, 2016. Trump has just won the New Hampshire primary, buoying his candidacy after a second-place finish a week earlier in Iowa. He is here to address supporters—and a nationwide TV audience—from his campaign office in Manchester. “Well, you know, we all want to change the world . . . ,” sings the voice of John Lennon. “But when you talk about destruction—” And then the music stops, and Trump begins to speak.
He is surrounded by his family: Melania, whose diamond-studded belt buckle sparkles on her all-black outfit, to his right; Ivanka and Jared to his left; lesser relatives arranged on either side. Behind Trump, a small band of advisers shuffles onto the platform, taking their places between the Trump clan and a row of six American and New Hampshire flags at the rear of the stage. It was Trump’s idea to get his inner circle up here,1 to make it look more like a professional operation. As Don McGahn moves into position—behind and slightly to Trump’s right—he bumps one of the gold-tasseled flags, causing it to sway.
Klieg lights shine on Trump, and his shadow partly darkens his lawyer’s visage. McGahn stands, hands clasped in front of him, and alternates between licking his lips, swiveling his head back and forth, and staring straight ahead with what might be a grimace.
Lies spill from Trump’s mouth. Federal economic data is bogus. France’s gun control laws make it a haven for terrorists. A wan smile is on McGahn’s half-shadowed face. “Political hacks” negotiate American trade deals, Trump declares. McGahn swallows, looks down at his feet. “We’re going to build a wall,” Trump promises. McGahn grins, his teeth bared, appearing uncomfortable.
Trump complains about how much money is sloshing around campaigns, how candidates are beholden to special interests. It is a phenomenon that his lawyer helped perpetuate, and now McGahn’s smile vanishes behind pursed lips. Trump bemoans the opioid epidemic ravaging New Hampshire, attributes it to drugs coming across the Mexican border. McGahn, whose employer represents Purdue Pharma, which caused this epidemic, applauds politely.
“I am going to be the greatest jobs president that God ever created,” Trump bellows, wagging his index finger, and McGahn seems almost to laugh, like he can’t decide whether to take this guy seriously.
Then the speech ends, and “Revolution” comes back on, and this time the song plays through. As Trump steps off the stage, Lennon sings: “But when you talk about destruction, don’t you know that you can count me out.” McGahn is still up there as the cameras stop recording.
At this point, unless you were a senior partner at Jones Day, or a political junkie, it was possible to work at the firm and not realize it was working for Donald Trump—the representation wasn’t something the firm had been bragging about. A couple of partners told me they’d been watching Trump’s raucous New Hampshire victory speech, and out of the corner of their eyes they spotted something familiar. They looked, did a double take, and sure enough, their colleague was up onstage. To some, this was the moment it became clear that the firm had hitched its wagon to Trump. Even if he lost—which everyone expected—Jones Day was staking its reputation on this unpredictable character. These lawyers were apoplectic, even as they grasped for silver linings of McGahn’s onstage appearance. “This is where you find Jones Day partners—at the front of things,” one partner said, half-heartedly.
Folks inside the Trump campaign were puzzling over McGahn. He had become a fixture, traveling with the candidate, advising him on matters beyond the law. It wasn’t normal to have an outside lawyer occupy such a central position. Then again, there was nothing normal about the Trump campaign. It had a skeleton staff, practically zero national operation. Some dyed-in-the-wool Trumpies initially viewed McGahn, with his long history in D.C. and his job at a giant law firm, as the embodiment of the corporate sleaze that oozed through the swampy capital. But as time passed, and McGahn remained devoted to the cause, their views shifted. They could tell McGahn was enduring dirty looks from his colleagues in the legal profession. Yet he was toughing it out. Most important, Trump himself was chummy with McGahn. And in the Trump orbit—much like inside Jones Day—everything hinged on what the top guy thought of you.
McGahn by now had his eyes on a very big prize. Trump was emerging as the front-runner for the Republican nomination, and he was not burdened by strong views on many of the major issues of the day. One of the blank spots on the Trump canvas involved the appointment of federal judges. This was a topic dear to McGahn—and his tabula rasa candidate offered a rare chance for the lawyer to stamp his own beliefs onto the agenda of a leading presidential contender.
McGahn’s judicial philosophy consisted of a preference for smart, young, conservative judges who would rigidly hew to the letter of the law and the Constitution as it was written in the late eighteenth century.2 He was completely in synch with the views of the Federalist Society, and this was not an accident. McGahn had been a member of the society since his time as the president of Widener law school’s chapter. At Patton Boggs, he’d hung a framed Federalist Society certificate on his office wall—quite the conversation starter with the firm’s liberal lawyers.3
In January 2016, McGahn had traveled with the Trump team to Iowa for its caucuses. Word reached McGahn that Jonathan Bunch, the Federalist Society’s head of external relations, was looking to speak to someone at the campaign. McGahn called Bunch from his hotel room overlooking downtown Des Moines.4 Bunch explained that the group was surveying the major candidates and wanted to know if the Trump camp had given much thought to the sorts of judges he might nominate if elected.
“We actually have someone on the campaign who’s going to help us out, with a lot of experience on this,” McGahn replied. He was about to unspool a practical joke that showed how well he understood the psychology of conservative activists—and how his role was much more than counseling the campaign on mundane matters of election law.
Who? Bunch asked.
“It’s John Sununu,” McGahn deadpanned. Sununu had been George H. W. Bush’s chief of staff, and he was widely viewed as responsible for Bush having nominated David Souter to the Supreme Court. Souter had turned out to be a centrist, and conservatives had never forgiven Sununu. Bunch gasped, then went silent. “Well, it’s good that you have someone helping,” he eventually managed.
McGahn kept going. The campaign, he said, had asked Sununu to come up with a list of moderate pragmatists with no paper trail, “the kind of folks who will get through the Senate”—judges like Souter, in other words.
Another long pause.
McGahn finally told Bunch he was kidding. Someone like Sununu wouldn’t get anywhere near the Trump operation, McGahn said. “You have nothing to worry about with us.”
On a brisk Monday in March 2016, several dozen Republicans showed up at Jones Day’s Capitol Hill office for lunch.5 Senators Jeff Sessions and Tom Cotton were there. So were a clutch of congressmen—and their old leader, Newt Gingrich. The Federalist Society’s Leonard Leo came, as did the president of the Heritage Foundation and a handful of lobbyists. McGahn had organized the meeting, getting Jones Day’s approval to use the building as the venue for a political event. He instructed everyone to enter through the underground parking garage, where reporters wouldn’t see them.6 Gingrich disobeyed, walking up the wide stone steps, past the rough-to-the-touch limestone griffins, and entering through the ceremonial front door, “to assure he would be seen by the media,” as the Washington Post put it.7
McGahn had convened this session to help Washington’s conservative establishment gain comfort with the Republican Party’s unorthodox front-runner. The idea was that Trump would deliver brief remarks and then open it up to questions. Because the gathering was private, there would be no need for grandstanding.
It had been only a few weeks since Justice Scalia’s sudden death. Mitch McConnell had made clear that the Senate would not hold a vote on anyone Obama nominated to replace him. The next president, therefore, would get an immediate vacancy to fill on the Supreme Court. McGahn and Trump had plotted about how to use this unforeseen development to shore up conservative support for his candidacy. Today they would roll out the first phase of their strategy.
After Trump spoke for a few minutes, Leonard Leo invited him to talk about judges. “Why don’t I put out a list publicly of people who could be the sort of people I would put on the Supreme Court?” Trump suggested.8 The room—and Leo in particular—reacted with joy. If Trump would publicly commit, in writing, to selecting Scalia’s replacement from a preapproved list, well, that would do a lot to assuage conservatives’ concerns about a guy who had previously supported abortion rights. Leo and others started throwing out names of judges who would receive the Federalist Society’s unqualified backing. “The List” was born.*
The meeting lasted a bit more than an hour.9 Afterward, Republicans marched out the front entrance of Jones Day’s building onto Louisiana Avenue. Reporters were waiting. “It was all about making America great again,” a Republican congressman, Chris Collins, explained, with Jones Day’s logo and façade serving as a backdrop.10 Trump headed down Pennsylvania Avenue to the Old Post Office building, which his company was transforming into a hotel. At a press conference there, he discussed the Jones Day gathering. “It was a beginning meeting with a lot of the most respected people in Washington,” Trump said. “They can’t believe how far we’ve come. A lot of people wouldn’t have predicted that.”11
The final list of potential Supreme Court picks would take months to come together—a team led by McGahn and Leo obsessively read all of the candidates’ court opinions12—but it would become a crucial turning point for Trump’s campaign. “The list reassured a whole lot of Republicans . . . that, OK, maybe he was doing fundraisers for Schumer four years ago, but looks like he may be OK on something that’s really important to us,” Mitch McConnell would explain years later.13 The creation of The List, he added, “became the single biggest issue bringing our side in line behind him.”
It was thanks, in no small part, to Jones Day.