Why Trump Can’t Hire An Attorney.
The Legal and Ethical Challenges of Representing This President Are Daunting.
On March 22d, John Dowd, the lead attorney for Trump’s Russia investigation resigned. For reasons discussed below Trump’s long time personal attorney Michael Cohen, who arranged and paid for the Hush Agreement with porn star Stormy Daniels, is also no longer able to represent Trump. Since then there have been a steady parade of announcements of new attorneys joining the team, who then back out at the last moment, and of attorneys who have turned down working for Trump.
There are likely many reasons for this, not the least of which is that Trump is a stupid ass who not only consistently disregards his attorneys’ advice, but also publicly humiliates them (one need look no further that Trump’s repeated humiliation of his own Attorney General). Thing is, attorneys are used to having asses for clients, it’s kind of an occupational hazard. It usually takes more than that. The truth is that working for Donald Trump can be legally dangerous for anyone, but particularly for an attorney.
As we discuss this let’s start with a very basic principle. Attorneys cannot break the law. They cannot break the law even when representing their clients. This includes conspiracy. An attorney may not perjure or suborn perjury. If an attorney conspires with a client (say the President) to help that client lie to investigators (say Mueller) then the attorney is guilty of the crime conspiracy to make false statements. That’s a felony. If an attorney intimidates or influences potential witnesses, that is witness tampering and the attorney can go to jail. If the attorney gives his client advice on destroying evidence, or in anyway helps him do so, the attorney is guilty of obstructing justice and can go to jail. Ditto if the attorney helps to create false or misleading documents. As it turns out a Bar Card is not a get out of jail free card.
On top of run of the mill legal issues, there are also a host of attorney ethical rules. Violating them may not land an attorney in jail, but it can cause the attorney to lose his license to practice law.
To illustrate these challenges I’m going to present a few examples of Trump attorneys and how they may face legal and ethical concerns.
I found the timing of John Dowd’s quitting Trump’s Russia defense legal team suspicious. Dowd’s resignation came as negotiations were underway with Mueller for an interview with Trump. Dowd was long known to be against Trump talking to Mueller, but why? There were also rumors that Trump really wanted such a meeting.
If Trump told Dowd he intended to lie to Mueller then Dowd’s arranging a meeting with Mueller to do it would make Dowd guilty of conspiracy to make false statements to the Special Counsel, a felony. If Trump insisted Dowd make such arrangements Dowd’s only option would be to resign, which he did.
Cohen’s story creates a dizzying array of legal and ethical issues. Cohen is Trump’s longtime friend and personal attorney. It was Cohen who just days before the election negotiated a Hush Agreement with porn star Stormy Daniels and paid her, supposedly $130,000 out of his own funds, in consideration for remaining silent about an affair that Trump and Cohen insist never happened. Skipping over the many reasons why this contract is not valid, Cohen has numerous legal and ethical issues placing him at risk.
- Campaign Finance Law Violations. This is pretty simple. If Cohen was not repaid by the Trump Campaign his payment to Daniels was an in kind campaign contribution far in excess of the $2,700 maximum an individual may give. If he was repaid then it was an illegal use of campaign funds.
- The Hush Agreement Cohen negotiated and entered into was part of a conspiracy to cover up the crime of adultery.
- The Hush Agreement provided for the destruction of evidence that may have been relevant in pending cases by other accusers of the President.
- The Hush Agreement was to prevent a potential witness from providing testimony that may have been relevant in pending cases by other accusers of the President, also known as witness tampering.
- If Cohen’s dubious claim he never informed the President of the Hush Agreement is true, then he violated ABA Model Rule 1.4 regarding essential communications to clients.
- If Cohen’s dubious claim he alone paid the hush money to Stormy Daniels is true, then he violated ABA Model Rule 1.8(e) prohibiting a lawyer from providing financial assistance to a client (with certain inapplicable exceptions).
- Cohen may no longer ethically represent Trump in the Stormy Daniels case. Why? Because (for many of the above reasons) he is a potential witness in the case. Per ABA Model Rule 3.7 a lawyer cannot be advocate in a case where he may be a substantive witness.
- To expand on the prior point, Cohen is not only a witness to the case, he is a party to the case. Per ABA Model Rule 1.7 a lawyer cannot represent a client where the lawyer has a potential adverse interest to the client. Because Cohen is potentially adverse to Trump he probably cannot represent Trump at all on anything.
- As explained here, Cohen authored an agreement he knew was fraudulent.
A not so familiar name, though it should be. On July 8, 2017 the NY Times reported that Trump’s son, Donald Trump Jr. met, on June 9, 2016, with a Russian lawyer known for opposing the Magnitsky Act, which blacklists Russian human rights abusers. Putin retaliated by banning Americans from adopting Russian children. The meeting was not previously disclosed. Emails leading up to the meeting later showed the Russians promising Trump and Kushner dirt on Hillary Clinton gained from her emails.
Trump Jr., responded by releasing a statement claiming the meeting was all about the adoption issue. This dishonest response would later become the focus of investigation itself as questions arose as to who wrote it. It would later be reported that President Trump himself dictated it, overruling recommendations of White House counsel for a more forthcoming response.
That White House Counsel was Mark Corallo who urged are more forthcoming response arguing the emails between Trump Jr, Kushner and the Russians would eventually come out. In a conference call Hope Hicks allegedly said the emails “will never get out.” This left Corallo with the belief that Hicks may be obstructing justice, so he made contemporary notes about it and resigned less than two weeks later. He too would later cooperate with Mueller’s investigation.
It took only another day for Corallo to be right and Hope Hicks dead wrong. Not only would the emails she said would never come out be released, the NY Times already had them. Trump Jr., released them himself the next day (on July 9, 2017) to preempt the NY Times story.
In regards to Trump’s current attempts to hire legal counsel, a familiar pattern has emerged. Big firms and lawyers express initial enthusiasm, after all who would not want “Counsel for the President of the United States” on their resume? They get far enough in to read the case file and realize what will be required of them. They talk to other lawyers, perhaps some named here, and realize what will be required of them.
They conclude this kind of bullet on their resume is not worth it.