On Bad Lawyering in Presidential Scandals Past and Present

Almost two decades ago, a few short months after being hired as an editorial writer by the Washington Post to write high-minded legal-affairs editorials on those important questions that arise in the life of our nation, one of the present writers found himself confronted by Monica Lewinsky—and her outrageous first lawyer, William Ginsburg:

"I kissed that girl's inner thighs when she was six days old—I said, ‘Look at those little polkas,' " says lawyer William Ginsburg of his client, Monica Lewinsky, in the March 2 issue of Time magazine. In the same article, this most grandiloquent of attorneys complains that "the only jobs [Lewinsky's] been offered [recently] are talk-radio crap and posing nude," and he frets that "she's also worried about dating." After all, "Who's going to go out with her?"

Ginsburg's concern about his client's job prospects and dating life are merely the latest and most extreme instances of the penchant he has displayed—since catapulting himself to national prominence—for saying almost anything about Lewinsky. It is a penchant that would be merely an amusing sideshow to the presidential scandal were Lewinsky's legal strategy—and hence her lawyer's role—not so central to the investigation of President Clinton.

The comments began at the outset of the scandal, when Ginsburg used violent metaphors to describe Lewinsky's relationship with both the president and Starr. If "the Office of Independent Counsel has no substantial evidence or reason to go after Monica Lewinsky, they're ravaging her," he told ABC's "Nightline." "If it's true she had some sort of relationship with the president, then she's being ravaged."

Ginsburg had, in his outrageous way, a profound effect on the life of this country. His antics at the outset of the Lewinsky investigation helped ensure that Lewinsky did not secure a quick immunity deal with Independent Counsel Kenneth Starr. This led to a lengthy, months-long, standoff between the White House and the Independent Counsel that gave the Clinton forces time to regroup and counterattack in a fashion that proved devastating for Starr and arguably saved the Clinton presidency.

Ginsburg’s clownish service to Clinton’s presidency, however, came entirely at the expense of the interests of his actual client, who was left in jeopardy and exposed to public ridicule for months before competent counsel eventually secured her a deal similar to the one offered her on day one.

Really bad lawyering in high-profile national scandals can matter a lot.

Fast forward to this week.

If you’re a bomb-throwing president whose inability to control your own outbursts has gotten you in trouble, who has trouble telling the truth, who has a more general impulse control problem, and who is not wise to the ways of Washington, you’d probably want in a lawyer a careful, Washington-savvy operator with great credibility in the bar, in the press, and on Capitol Hill. You’d want someone whose word carries weight. You’d certainly want someone who would never make your problems worse by, say, throwing bombs of his own or issuing statements that turned out not to accurately reflect the public record. You wouldn’t choose a lawyer who would compound your errors and lies with errors and lies of his own.

You wouldn’t want, in other words, a lawyer who—as Ginsburg did for Lewinsky—made a bad situation worse.

Unless, that is, you were President Donald Trump, whose choice of outside counsel—Marc Kasowitz—is looking increasingly Ginsburgian in his public utterances. There are differences, of course. Kasowitz isn’t clownish, as Ginsburg was. He isn’t making bizarre remarks—for example, about kissing his client’s inner thighs. And he is doing some things that Ginsburg did not do: for example, issuing public statements on key factual matters that are apparently untrue. The differences aside, however, Kasowitz has, in his few short weeks on the job, let’s just say, not been of service to a client who desperately needs legal help managing his own disasters, not a lawyer who is generating new ones for him.

Unlike many of the lawyers who have reportedly declined to represent Trump, including Ted Olson, Paul Clement, and Mark Filip, Kasowitz has no experience in executive branch lawyering. Rather, he is a New York corporate attorney with a long history representing Trump in a variety of matters, ranging from real estate to an ultimately failed libel suit filed against a Trump biographer. His firm’s website describes him as “the toughest of the tough guys.” He also reportedly represents a bunch of clients with, you guessed it, ties to the Kremlin.

Kasowitz, like Ginsburg, comes from a different legal culture than the one he has now entered. Ginsburg was a medical malpractice attorney from California. Kasowitz comes from the rough and tumble world of New York real estate litigation. In that world, Kasowitz is a kind of a implementer of Trump’s broad strategy of using the law and the threat of litigation—whether merited or not—as a cudgel in business, a means of intimidating those in your way. The Washington legal culture of scandal management works differently. It is not sensitive to price; unlike a business competitor, you can’t outspend the federal government when it is committed to pursuing a high-stakes investigation. It is sensitive to public opinion. And reputational damage to the client matters a great deal more when the client has congressional and voter relations to maintain than when the only thing that matters is who wins, who pays, and how much.

This is clearly causing problems. The New York Times has just released a story detailing Kasowitz’s rocky first few weeks advising Trump:

His visits to the White House have raised questions about the blurry line between public and private interests for a president facing legal issues. Mr. Kasowitz in recent days has advised White House aides to discuss the inquiry into Russia’s interference in last year’s election as little as possible, two people involved said. He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.

Such conversations between a private lawyer for the president and the government employees who work for his client are highly unusual, according to veterans of previous White Houses. Mr. Kasowitz bypassed the White House Counsel’s Office in having these discussions, according to one person familiar with the talks, who like others requested anonymity to discuss internal matters. And concerns about Mr. Kasowitz’s role led at least two prominent Washington lawyers to turn down offers to join the White House staff.
…

Since asserting influence in the White House in recent weeks, Mr. Kasowitz has discussed establishing an office on White House grounds in the Eisenhower Executive Office Building, where much of the president’s staff works, according to multiple people familiar with the deliberations. Such an arrangement would have Mr. Kasowitz and his team frequently crossing paths with potential witnesses.
…

Partly because of concerns that Mr. Kasowitz is undermining the White House Counsel’s Office, at least two veteran Washington lawyers — Emmet Flood, a partner at Williams & Connolly, and William A. Burck, a partner at Quinn Emanuel — rejected offers to join the counsel’s office to help represent the administration in the Russia inquiry, according to people familiar with the hiring discussions, although they may yet represent individual White House officials.

Other noted criminal defense lawyers have similarly rejected offers to join Mr. Trump’s private legal team because of a range of uncertainties, including how much control Mr. Kasowitz exercises over his client, whether their advice would be secondary to his and whether Mr. Trump would pay legal bills. Besides Mr. Kasowitz, Mr. Trump’s personal legal team includes his partner, Michael J. Bowe, and Jay Sekulow, a Washington lawyer who specializes in free speech and religious liberties.

Kasowitz’s lack of experience with this sort of investigation has been very much on display in Trump’s response to Comey’s testimony. So far, Kasowitz has made two public statements on the testimony of former FBI Director James Comey—one released the day of Comey’s testimony, and which Kasowitz also read essentially word-for-word at a press conference in New York, and one released the following day.

The first thing that jumps out about Kasowitz’s statements is how uncareful they are. The statements contain notable spelling, grammatical, and formatting errors. None of these is an egregious sin, but they are also not the work product of a high-class firm representing the President of the United States in a high-stakes legal matter. And they turn out to be telling.

Because literacy aside, the substance of both statements is, well, Ginsburgian in its incompetence. This is significant because the Clinton lawyers and public messaging professionals ultimately defeated the Starr investigation by winning a sustained messaging war—something Ginsburg helped give them time to do. Kasowitz, if his initial performance is any guide, does not seem up to the battle.

The first statement boldly contradicts Comey’s sworn testimony; it declares that Trump “never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey ‘let Flynn go.’” It also insists that, “The President also never told Mr. Comey, ‘I need loyalty, I expect loyalty’ in form or substance.” Fair enough. This is going to be a he-said-he-said situation.

But the statement also takes issue with Comey’s description of his decision to disclose to the New York Times, through a friend, the contents of an unclassified memo documenting Trump’s suggestion that he drop the Flynn investigation. And it does so in a fashion that Kasowitz simply cannot support.

To review, in an exchange with Senator Susan Collins, Comey stated:

COLLINS: And finally, did you show copies of your memos to anyone outside of the Department of Justice?

COMEY: Yes.

COLLINS: And to whom did you show copies?

COMEY: I asked—the president tweeted on Friday, after I got fired, that I better hope there’s not tapes. I woke up in the middle of the night on Monday night, because it didn’t dawn on me originally that there might be corroboration for our conversation. There might be a tape. And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.

Comey was dismissed on Tuesday, May 9. On May 12—which was, as Comey said, a Friday—the President sent his now-famous tweet threatening that he had “tapes” of his conversations with Comey. The New York Times story on Comey’s practice of taking notes on his conversations with Trump, which reported the existence of a memo documenting the Flynn exchange, was published the following Tuesday, May 16. From Comey’s testimony here, the timeline seems clear: Comey “woke up in the middle of the night” on Monday, May 15 and asked a friend, who has now been identified as Columbia Law Professor Dan Richman, to disclose the contents of the memo to the Times, which published the story—by Michael Schmidt—the next day. The following day, May 17, Deputy Attorney General Rod Rosenstein appointed Robert Mueller as special counsel.

Yet in his statement, Kasowitz declares: “Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory” (sic).

The problem is that Kasowitz’s statement appears inconsistent with the public record—not just with Comey’s testimony, but the rest of the public record as well. Julie Davis, a White House reporter for the Times, quickly noted that Kasowitz’s statement did not map to the Times’ reporting: