The legal interests of President Donald Trump and his aides are dramatically diverging as special counsel Robert Mueller expands his probe into possible obstruction of justice – and as the president ratchets up his attacks on the investigators.
While Trump’s personal attorney, Marc Kasowitz, recently told White House staffers they can rely on him, rather than hiring their own lawyers, some of the people closest to Trump aren’t taking that advice.
Vice President Mike Pence, a likely witness as the investigation focuses on Trump’s firings of both White House National Security Adviser Michael Flynn and FBI Director James Comey, made the most public break yet in Trump’s innermost circle this week by confirming he’s retained a prominent Virginia GOP attorney to represent him.
“Pence hiring a lawyer tells the White House staff two things – they’re all potential witnesses in this investigation and don’t listen to Marc Kasowitz,” said Adam Goldberg, a former Clinton White House crisis communications official.
The president is no stranger to civil suits from his years in the Trump Organization, but veterans of past Washington scandals and attorneys close to the case cautioned that a special counsel investigation is very different. In this instance, the president’s personal attorney has a clear conflict of interest and can’t legally represent White House aides, so any staff who follow his suggestion are vulnerable if they get swept up in the rapidly-expanding special counsel and congressional investigations.
“I just worry staffers in the White House will feel that it’s a test of their loyalty to Trump whether they’re willing to follow Kasowitz’s wishes. That could be very dangerous to them,” said William Jeffress, a white-collar attorney who represented Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby, in the CIA leak investigation. “I kind of feel sorry for them in a way.”
More White House staffers are likely to hire lawyers and splinter off as the president’s response to the investigation grows increasingly aggressive. Trump on Friday further inflamed the controversy surrounding the Russia probe with a morning Twitter post that both acknowledged he’s under investigation for firing Comey and also for appearing to attack his own deputy attorney general for launching the investigation in the first place.
“I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt,” the president tweeted.
Trump’s tweet, coming at the end of week where the president’s surrogates have openly mused about potentially firing special counsel Robert Mueller, stands in stark contrast to a wave of important developments on the special counsel front.
Mueller’s office confirmed for the first time Friday its been hiring prosecution staff, with 13 lawyers already on board and, according to spokesman Peter Carr, “several more in the pipeline.” An attorney for Trump’s presidential transition team also sent a memo Thursday to a wide circle of aides and volunteers telling them to save all documents related to the Russia issue and specifically singling out materials involving five individuals who worked on the 2016 effort: former campaign manager Paul Manafort and advisers Carter Page, Rick Gates, Roger Stone and Flynn.
Michael Cohen, another longtime Trump personal lawyer, on Friday also officially named his outside counsel: Washington-based attorney Stephen Ryan. That flurry of activity – punctuated by Pence tapping former Virginia Attorney General Richard Cullen as his personal attorney – should serve as a clear signal that other Trump staffers should be looking beyond Kasowitz for advice, according to White House scandal veterans and lawyers close to the Russia probe.
“It’s almost unimaginable that the words ‘you don’t need a lawyer’ can come out of a lawyer’s mouth,” said Peter Zeidenberg, who served on the DOJ special prosecution team during the Bush-era leak investigation and is now a partner at Arent Fox.
Even those who think Kasowitz means well have their doubts. “If you’re not a lawyer and you don’t know lawyers you’re going to think Kasowitz is giving you good advice,” said Lanny Davis, a former senior Clinton White House adviser. “There’s not a single lawyer who’d not be worried about having a lawyer say you don’t need a lawyer. I’m sure Kasowitz doesn’t think it’s a conflict. I’m sure he believes he can give everyone good advice. He’d say our interests are all in alignment here. No, they’re not.”
Personal attorneys representing White House staffers were flummoxed after the New York Times reported last week that Kasowitz had suggested the Trump staffers didn’t yet need to hire their own lawyers.
“I think he’s on very thin ice advising folks who are not his clients whether or not they need counsel,” said an attorney close to the Russia probe. “That’s certainly not something that I or any other experienced white-collar practitioner would do in similar circumstances.”
Some of the attorneys reached out to their White House clients after the Times article published and reiterated their warnings – even to the point of avoiding Kasowitz entirely. “Under no circumstance are you to speak to him. If you’re approached, please give him my name and have him call me,” said the lawyer close to the Russia probe.
For Trump, the outsourcing of his legal advice to Kasowitz makes sense because of a Clinton-era legal precedent that protects his communications under attorney-client privilege – something he’d have far less control over if he was using White House counsel lawyers. But Trump staffers aren’t afforded the same protections with Kasowitz. What’s more, staff who don’t have lawyers but work with Kasowitz are putting themselves in jeopardy – legally and politically.
“If you’re a White House staffer who knows complicated facts that may implicate them or make them look bad you’re not going to put your trust in Marc Kasowitz to make you come out looking the best,” said Goldberg, who served as a special associate counsel to Clinton during the Monica Lewinsky scandal. “His interest is making sure the president comes out looking the best. This is one of the many reasons its masochistic to have a White House rapid response operation run by the president’s personal attorney. It’s consistent with the president who puts his own interests ahead of everyone else’s, including the presidency.”
Jane Sherburne, a former Clinton White House lawyer, said Trump staff who don’t have lawyers and keep talking with Kasowitz “may be at risk of making decisions or enabling the creation of a record without having fully understood the potential consequences for them.”
“Even as Kasowitz may suggest their interests are aligned with Trump’s, he is not in a position to evaluate that for the staff and they would be wise to get independent professional advice about their own risk,” she explained.
Attorneys close to the Russia probe said they were also bothered by the arrangement Trump has established where all media inquiries about the Russia probe go to Kasowitz and longtime GOP strategist Mark Corallo. It’s an unprecedented set up that essentially outsources a key function of the White House to a personal attorney and outside press adviser who are representing Donald Trump, not the interests of the White House or the office of the presidency.
“My impression is this is supposed to be temporary,” said a white-collar lawyer familiar with the arrangement. This source noted Trump White House officials are aware of the Clinton-era model for crisis management, where media inquiries remained inside the White House and where the president’s personal lawyer played less of an all-encompassing role in the overall strategy.
“The problem with the plan is they’ve got a temporary situation with Kasowitz that could become permanent,” the lawyer said.
Staffers without legal counsel also could put themselves at risk by speaking with the president’s lawyer and exposing them to charges of improper witness collusion – even if that’s not what they’re doing. In a typical scenario, defense lawyers working with the White House will establish a structure to talk among each other and share information – which would be subject to privilege protections and also ensures things aren’t shared without permission. Attorneys close to the Russia probe said nothing of the sort has been established yet in the Trump White House.
“If he is talking to them without assurances it leaves them unprotected,” Jeffress said.
Corallo and the White House did not respond to requests for comment about their current arrangement.
Some Trump allies, meantime, are shrugging off suggestions that they find independent legal advice. “That’s very nice to start distrust within the White House. I don’t give a shit,” said former Trump campaign adviser Sam Nunberg.
The White House, he said, “should be happy” that Trump has brought on board his longtime lawyer. “He’s the perfect attorney for this. He’s not someone who cares about his relationships in D.C.,” Nunberg said. “He’s one tough SOB.”