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Trump Will Be a Nightmare Client for His Legal Dream Team
Posted on May 30, 2017
By Bill Blum
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Donald Trump has lawyered up. He’s engaged New York über-litigator Marc Kasowitz, who routinely charges $1,500 per hour, to help him contend with the rapidly expanding federal probes into alleged Russian interference in the 2016 elections and possible Russian collusion with the Trump campaign.
From a legal standpoint, the decision to retain Kasowitz is a no-brainer. With the appointment of Robert Mueller as special counsel to oversee the Justice Department’s criminal investigation of Russian meddling, Trump is potentially in deep trouble. He may even be accused of obstruction of justice related to his May 9 firing of former FBI Director James Comey and, depending on future political developments, may wind up facing serious calls for impeachment. Although White House Counsel Don McGahn can represent the interests of the presidency as an institution in the Justice Department’s investigation, as well as related and ongoing House and Senate hearings, he cannot represent Trump himself.
Kasowitz is a logical choice to defend the president. The attorney-client relationship between the two men is wide-ranging and goes way back. Among other matters, he has represented Trump on bankruptcy and divorce issues, as well as the recently concluded Trump University fraud cases. In 2006, he filed a defamation action on Trump’s behalf against biographer Timothy O’Brien. Last October, he threatened to bring a libel complaint against The New York Times for publishing interviews with two women who said Trump had sexually harassed them.
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Kasowitz has at least some familiarity with the workings of the Russian economy and government. Apart from Trump, his current client list includes one of Russia’s largest state-run banks—Sberbank—which has hired him in connection with a complex federal fraud lawsuit pending in New York.
As the Russia probes accelerate, Kasowitz is expected to add lawyers with expertise in federal criminal law and procedure to the president’s legal team. Once assembled, the team, according to Fox News, will join a White House “war room” of “lawyers, surrogates and researchers” led by Trump adviser Steve Bannon to “respond, rebut and refute bad press and legal issues emanating from” Mueller’s investigation.
But as talented and tough as Kasowitz and his colleagues may be, they’ll have their hands full representing the president. The legal mandate Mueller has been given is extremely broad. As explained by Deputy Attorney General Rod Rosenstein in a May 17 press release and an accompanying DOJ appointment order, Mueller will be empowered to explore “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and … any matters that arose or may arise directly from the investigation.” In other words, Mueller, who in addition to being a former federal prosecutor, ran the FBI from 2001-2013, will be able to look into just about everything, including possible obstruction by Trump.
Jousting with Mueller will be a daunting task for Trump’s attorneys, and it will be made all the more so by the persistent spate of ever-shifting news leaks from inside the administration and the intelligence community. The legal team’s stiffest challenges, however, may not come from Mueller, but from Trump himself.
As one of my mentors remarked decades ago at the outset of my legal career, “The practice of law would be a lot less stressful if there were no clients involved.” Although said jokingly, the remark was meant to convey the importance of maintaining “client control,” especially in high-stakes trials and negotiations. The last thing lawyers want, whether they’re fresh out of law school or have established themselves as pillars of the profession, is a rogue retainer who runs off at the mouth or, in the age of social media, dispatches angry and inculpatory pre-dawn tweets.
This is particularly true when it comes to the prospect of shielding the president against obstruction charges arising from the Comey firing. Whatever Trump’s attributes as a leader or a business tycoon, self-control is not among them. The idea of exercising caution and restraint runs counter to his narcissism and macho self-image. In a political campaign, swagger and arrogance may be assets. In a legal setting, they are more often than not just the opposite.
Like other crimes, the offense of obstruction involves both an act or course of conduct (in legal jargon referred to as the “actus reus”) and an accompanying intent, or mental state (the “mens rea”). The relevant federal laws are found in Title 18, sections 1501 through 1521, of the United States Code. In all, the code sets out 21 separate obstruction crimes.
Of particular significance to Mueller’s investigation is section 1505, which makes it a felony to “corruptly, or by threats … or by any threatening letter or communication” to influence, obstruct or impede, or attempt to influence, obstruct or impede, any pending proceeding before a federal agency or Congress. Other sections outlaw the same conduct in relation to judicial proceedings. Still others proscribe the intimidation of witnesses in judicial, administrative and congressional proceedings. Violation of the obstruction laws is punishable, in some instances, by prison sentences of up to 20 years.
Section 1515 defines the intent required for an obstruction conviction, instructing that the term “corruptly,” as used in Section 1505, “means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”
For Trump, the course of conduct that has brought him into the crosshairs of the obstruction laws was the dismissal of Comey, who until his discharge was leading the FBI’s Russia investigation, and on the eve of his firing had sought additional funding for the probe from the Justice Department.
In and of itself, as some Trump supporters have noted, there was nothing unlawful in the act of letting Comey go. The FBI director, although appointed to a 10-year term, serves at the pleasure of the president. In 1993, President Bill Clinton dismissed William Sessions as director for alleged financial improprieties, marking the only other time in the bureau’s history (it was founded in 1908) that such a firing occurred.
But while Trump clearly had the authority to dispatch Comey, the decision carried potential adverse consequences. Presidential prerogatives notwithstanding, the firing could amount to obstruction if done to derail the Russia probe. This is where the president has proved to be his own worst enemy.
The initial reason given for Comey’s firing, as set forth in separate letters signed by Trump and Attorney General Jeff Sessions on May 9 and in a legal memo prepared by Rosenstein, was implausible, even embarrassing, but far from incriminating. Taken together, the documents asserted that Comey was sacked because he had violated FBI and Justice Department procedures in his handling of the Hillary Clinton email inquiry and because he had lost the confidence of rank-and-file members of the bureau.
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