Veterans of past White House scandals from Watergate to Plamegate have an important message for Team Trump: It’s time to think about lawyering up.
In the past week, a Senate committee began issuing subpoenas in its investigation into Russian contacts with President Donald Trump’s staff and other associates during the 2016 election campaign and transition, while the FBI continues its own criminal investigation. Trump himself fired FBI director James Comey, and then said in the aftermath of that decision that the Russia probe was “made up” and appeared to threaten Comey on Twitter.
“There’s obviously a risk here,” said Washington white-collar defense attorney Robert Luskin. “And that’s not any kind of judgment on [Trump’s] personal integrity or absence of it, but the apparent fact he doesn’t seem to be very sensitive about norms and about risks.”
It’s an axiom of Washington scandals that the cover-up tends to be worse than the crime—and it’s lower- or mid-level people who wind up getting caught in the worst legal trouble, usually for tangential offenses like perjury or obstruction of justice.
The ancillary stuff, like a forgotten meeting or a discarded document, can cause the most serious problems for staffers navigating the unfamiliar, expensive and high-stakes world of grand juries, subpoenas and congressional hearings, where the prospects of perjury or obstruction of justice charges can be filed for both unintended slip-ups or intentional attempts to cover up for a superior.
“The thing you worry about in a process like that is you just make a mistake and it appears more than it is,” said Rep. Sean Maloney, a New York Democratic lawmaker who served as staff secretary for President Bill Clinton during his final two years at the White House amid congressional impeachment proceedings. “We’re all human beings. If someone asks you questions for two or three hours it’s easy to make a mistake.”
At least some of the people who joined the Trump administration were aware of the legal risks. “I had folks who joined the administration ask that question, which should tell you something,” said Luskin, who previously represented President George W. Bush’s senior political adviser Karl Rove during the investigation into the leak of CIA agent Valerie Plame’s identity, as well as a pair of senior officials during the probe of Clinton’s Whitewater land deals.
A few of the central players in the Trump investigations already have counsel. Former campaign manager Paul Manafort, whose work in Ukraine is under review, has a lawyer, as does former White House national security adviser Michael Flynn, who last week was served with a subpoena by the Senate Intelligence Committee. Their attorneys did not respond to requests for comment.
Longtime personal Trump tax attorneys from the firm of Morgan, Lewis & Bockius sent Senate investigators a letter last week detailing some of the president’s business interests tied to Russia. A spokeswoman from the firm declined comment.
John Dean, the former Nixon White House counsel who went to prison for four months because of his role in Watergate, said he didn’t expect Trump’s staffers at this early stage of the investigative process to have already started hiring attorneys. But he said that can change quickly.
“It’s something that happens in every White House when the contagion has started spreading,” he said. He predicted the lower-level employees, including otherwise innocent secretaries and other aides who have gotten up-close interactions with the president and his senior aides, may not see the need to call for an attorney until they’ve been identified as potential witnesses. “They’re primarily driven by fear, fear of the unknown and not wanting to make a mistake,” he said.
But Dean added that some people delay retaining counsel because they think it makes them look bad. “If my history watching Watergate and what happened is any indication, the guiltier they are, the later they get lawyers,” Dean said. “They don’t want to either admit it in their own mind or they think they can tough it out. They think hiring a lawyer is an admission of guilt. And that’s foolish.”
The White House did not respond to a request for comment about whether individual staffers have retained counsel. “The entire White House staff is hard at work implementing the president’s agenda for the American people,” said press secretary Sean Spicer.
Outside observers say the signs are growing that Trump’s staff may want to start lining up legal advice, even if it’s only for preliminary discussions.
“If they have information that indicates contact with Russians or attempts to interfere they better damn well,” said former FBI agent Lewis Schiliro, who spent 25 years at the FBI before retiring in 2000 as head of the New York field office. “That’s a pretty serious thing.”
Along with the criminal subpoenas, House Oversight and Government Reform Committee Chairman Jason Chaffetz last week requested the Justice Department inspector general examine Trump’s firing of FBI director Comey; the Treasury Department is reportedly going to be sharing records with Senate investigators on Trump’s financial dealings with Russia and beyond; and calls keep coming from Capitol Hill Democrats to the White House to retain all documents related to ongoing criminal probes.
Looming legal proceedings can shadow interactions among staffers, exacerbating existing tensions and infighting.
“I don’t know how they’re getting anything done, including the people who are much lower down and have jobs with nothing to do with this,” said Amanda Kane, a former associate counsel in the Obama White House. “It’s a very small, insular environment there.”
But others said that an investigation can sometimes serve as a rallying point for staffers. “It’s a weird thing. I think you just keep doing your job. You try to stay focused and you believe in the mission,” said Maloney, the former Clinton staffer, who later worked for New York Democratic Gov. Eliot Spitzer during the governor’s prostitution scandal.
“What really gets you through is the relationships with your colleagues,” said Maloney. “You make friends for life and it’s because you’re going through the crucible together.”
Trump in recent days has publicly tried to stick to his agenda. Last week, his press aides opened their daily briefings talking about an executive order on cybersecurity and his government’s response to an accident at the nuclear waste cleanup side in Hanford, Washington. The president is also preparing for his first international trip next week. On Twitter, he pointed to a recent trade move involving U.S. beef exports to China that he declared was “REAL news!”
With a friendly Republican Congress, the Trump White House so far isn’t facing an independent prosecutor like Kenneth Starr, who investigated the Clintons’ Whitewater deal and his relationship with intern Monica Lewinsky. As Luskin put it: “I have to say compared to the Clinton years that this is a walk in a f—— park.”