Trump's lawyers hope Emmet Flood won't replace White House counsel Don McGahn, so he can keep fighting the Mueller probe instead

  • President Donald Trump's legal team hopes Emmet Flood won't replace Don McGahn as head of the White House counsel's office, CNBC has learned from a person close to the president's legal team.
  • The president's lawyers would prefer Flood remain in his position as one of the lead attorneys fighting against special counsel Robert Mueller's probe.
  • Trump's lawyers see Flood, who advised President Bill Clinton during his impeachment, as a critical piece in their strategy to fight any attempt by Mueller at issuing a subpoena for the president to appear before a grand jury.
 White House lawyer Emmet Flood (C) arrives to attend a briefing with members of the so-called 'Gang of Eight' at the U.S. Capitol May 24, 2018 in Washington, DC. 
Mark Wilson | Getty Images
 White House lawyer Emmet Flood (C) arrives to attend a briefing with members of the so-called 'Gang of Eight' at the U.S. Capitol May 24, 2018 in Washington, DC. 

President Donald Trump's legal team hopes Emmet Flood will not replace Don McGahn as head of the White House counsel's office, CNBC has learned from a person close to the president's legal team.

The president's lawyers believe Flood should remain in his position as one of the lead attorneys fighting against special counsel Robert Mueller's probe, according to this person, who asked not to be named disclosing a confidential conversation.

The White House counsel spot will soon be open. Trump announced on Twitter this week that McGahn will be departing the administration in the fall. Since then, members of the president's legal team have privately acknowledged that they would prefer to see Flood stay put as a member of their unit, according to a person with direct knowledge of the matter.

Various reports have pegged Flood as a likely replacement for McGahn.

Trump's lawyers see Flood as a critical piece in their strategy to fight any attempt by Mueller at issuing a subpoena for the president to appear before a grand jury, the person said.

Read more: Trump accuses NBC News' Lester Holt of 'fudging' tape of interview about Comey firing

Flood, who advised President Bill Clinton during impeachment proceedings, has done extensive preparation to combat a Mueller subpoena, including assembling his own staff and drafting legal arguments against such a move by the special counsel, the source added. Flood has also been meeting almost weekly with Trump's personal attorney Jay Sekulow, this person said.

At the moment, the Trump legal team has no immediate plans to expand. The lawyers have not discussed adding Abbe Lowell, attorney for the president's son-in-law, Jared Kushner, or adding William Burck, former White House chief strategist Steve Bannon's legal representative in the Russia investigation, according to people familiar with the deliberations. Burck also represents McGahn and former White House chief of staff Reince Priebus.

The Washington Post, citing a Trump advisor, reported that the president had said, "I need a lawyer like Abbe." Lowell declined to comment to the Post.

However, Rudy Giuliani, another of Trump's legal advisors, and Sekulow are leaving the door open to beefing up their team if Democrats take control of Congress this fall and move ahead with articles of impeachment, according to sources.

It's unclear whether the argument by Trump's lawyers to keep Flood where he is has resonated with the president, or if it will sway his opinion about who will next lead the White House counsel's office.

White House press secretary Sarah Huckabee Sanders did not return a request for comment. Giuliani declined to comment, while Sekulow did not respond to an email request for comment before publication.

Legal experts agree that Flood becoming the next White House counsel could be a gamble to a legal strategy that has involved publicly admonishing Mueller's efforts. Trump's lawyers have also been privately arming themselves with counterarguments against possible subpoena efforts by the special counsel's office and steps to impeachment by a Democratic Congress.

"I appreciate the argument that this guy is your guy and you would rather not move him to the White House counsel's office. If you move him to the White House counsel's he's no longer the president's lawyer," veteran defense attorney Randy Zelin said. "I think you are gambling making him counsel to the White House, especially if you believe the Democrats will somehow back down from impeachment" because of Flood's history working with them in the past.

Flood's resume includes working with high-profile government officials from both sides of the aisle.

In addition to his efforts during Clinton's impeachment, he also worked as the lead lawyer for President George W. Bush's White House counsel's office during his second term.

He also defended Vice President Dick Cheney against a civil lawsuit brought against him and other administration officials by Valerie Plame, the former CIA operative whose identity was leaked to the press by Cheney's former chief of staff, Scooter Libby. Trump pardoned Libby earlier this year.

Flood joined Trump's legal team in May, after White House attorney Ty Cobb announced his retirement.