Published by The Lawfare Institute
in Cooperation With
By all accounts, White House Chief of Staff John Kelly understood that he needed to restore order to White House operations. He probably doubted that he would have to remind the lawyers for the president to refrain from discussing the most sensitive legal affairs of Mr. Trump over a sidewalk lunch at a local restaurant, and within earshot and snapshot of an audience that included New York Times reporters. The Times refers to this as an “indiscretion” on the part of the lawyers, John Dowd and Ty Cobb. It’s a generous way of framing the blunder. In Washington, the defense of indiscretion usually involves an appeal to youth, as in “youthful indiscretion.” Neither Dowd nor Cobb is a youngster.
Both of these experienced lawyers are familiar with and presumably fully appreciate their professional ethical obligations to take reasonable measures to safeguard client-confidential information. BLT Steak DC, where they conversed so freely, is located next door to the Times. It is not reasonable to take a table there, much less anywhere, and engage in discussions of an exquisitely privileged nature. It is so unreasonable that it might be asked: Was it the unique delivery of a leak, a conversation that they intended to be overheard, in which they both advertised a commitment to cooperating with Special Counsel Mueller and asserted that White House Counsel McGahn did not share it? Cobb rather pointedly, and apparently loudly, professed that his team was opposed to “hiding anything.” But McGahn was “very conservative with this stuff and even “got a couple documents locked in a safe.”
And yet it is hard to see how an elaborate and juvenile bit of theater like this would serve any conceivable purpose. There are easier means of leaking, most of which do not make the leakers look foolish and, as lawyers, in default of their professional obligations. The consideration of more hidden motives and of convoluted scheming just comes to mind naturally when the behavior is bizarre. So far, the commentary assumes that this is how things go on the Trump legal team.
Then there is the matter of what appears to have been revealed in their conversation. The reported conflict between White House Counsel Don McGahn and Mr. Cobb over the scope of cooperation with the Mueller investigation exposes the deep conflicts of official responsibility and private interest in the White House’s and the President’s management of the Russia matter. These conflicts can only be exacerbated by poor organization of the legal team.
While Mr. Cobb reportedly came to the White House to coordinate the challenging public-private dimensions of the Administration’s response to Russia, it appears that he is functioning more as the President’s personal defense lawyer. The Times suggests that his focus is the protection of Mr. Trump, on “steering the investigation away” from him. For his part, Mr. McGahn is apparently struggling to defend the presidency’s institutional equities. This inevitable tension between the public and private interests is the source of conflict between the two lawyers, and yet each is a government lawyer charged with advising Mr. Trump in the public interest, not his own, when deciding on the information that will be provided to Mr. Mueller.
The Times reports that Mr. Cobb, in his capacity as special counsel, has independent access to the president. This might work if both McGahn and Cobb collaborated with a clear understanding of their respective missions. But the Times also gives us reason to believe that the two lawyers do not get along. Cobb apparently suspects Mr. McGahn of planting spies on his team and keeping information from him. McGahn did not want Cobb hired in the first place. So the White House Counsel may not, and probably does not, have confidence that Cobb would keep him apprised of the content of his conversations with the president. Perhaps this absence of communication explains Mr. Cobb’s belief that McGahn has resorted to the use of “spies.” This means for all practical purposes that, on Russia-related matters, the president has two White House counsels very much at odds with each other, if not at war.
McGahn is also in the very difficult position of navigating these conflicts while also a witness in the Russia matter. He is now for this purpose separately represented by counsel. This personal interest poses the question of how easily, in fact or in appearance, he can separate his interests from those of others in managing questions of the information provided to, or withheld from, the Mueller investigation. We can’t know the extent of the problem, or judge the solution that Mr. McGahn has devised, without more facts. But it is a problem and it cannot help matters.
In the meantime, Mr. McGahn is looking for guidance on whether, in his testimony, he will be working within the limits of attorney-client or executive privileges that the president may choose to invoke. To whom will the president look for guidance on this issue? If Mr. Cobb has any say, then someone apparently serving primarily the president’s personal legal interests will influence the resolution. As a White House Counsel, Mr. McGahn will have cause for concern about the source of that advice.
It is intriguing and on the whole reassuring that, as he declared at his public lunch, Mr. Cobb is committed for the moment to full cooperation with the Mueller inquiry. Accordingly to the Times, he has concluded that at this time, this is the best available defense for Mr. Trump. Mr. McGahn is reportedly worried about setting institutional precedents that could undermine established presidential privileges and prerogatives in both this case and others. It is his role to worry about such issues and to raise these questions.
These considerations only go so far, however. Presidents wisely adjust, qualify and negotiate as compelling needs dictate, and in the Russia matter, Trump faces a set of questions that implicate profound legal and national security interests. His lawyers are well aware that in circumstances like these, beginning with the Nixon tapes case though the Clinton era litigation over the application attorney client, courts are quick to disallow or trim overbroad assertions of privilege. The most robust protection of the executive often involves doing all that can be done to avoid confrontation with the courts over these issues.
This is a consideration that by now should have assumed great weight in this White House. Beginning immediately after the election, from the failure to act quickly on Acting Attorney General Yates’s warning about General Flynn, to the sequence of events leading to the firing of Jim Comey, the Administration should have learned the limitations of the defensive crouch from which impulsive and short-sighted decisions have been made. Mr. Trump’s lawyers should surely have this experience in mind and draw on it in advising the president.