Executive Branch

The President and His Lawyers

Bob Bauer
Monday, March 12, 2018, 7:00 AM

There are numerous lawyers in the news in the case (or cases) of Donald Trump, and their stories tell a tale about how this president views the law and the role of his legal advisers.

Photo: Flickr/The White House

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There are numerous lawyers in the news in the case (or cases) of Donald Trump, and their stories tell a tale about how this president views the law and the role of his legal advisers. Two particular stories—involving White House counsel Don McGahn and personal lawyer Michael Cohen—show what the president expects from his counsel. In others, the president has taken the different route of ignoring legal counsel altogether. None of what emerges from these reports is reassuring about the rule of law in this government. And it is not helpful to the president as he contends with the special counsel’s investigation.

According to the New York Times, in late January, the president demanded through an intermediary that McGahn publicly deny the earlier Times report that Trump had ordered McGahn to arrange for the firing of Special Counsel Robert Mueller. The messenger was reportedly former staff secretary Rob Porter, who advised McGahn that failure to do as requested could lead to his dismissal. Later, McGahn and the president disagreed over whether any such directive had been issued. But McGahn did not release the denial requested by Trump. Ordered to lie, under threat of being gotten “rid of,” he seems to have resisted.

This was apparently not the only time that, on a major issue, the president and his counsel resorted to a roundabout line of communication, using others to serve as emissaries. The Times also reports that when McGahn threatened to quit over the order to fire Mueller, he did not convey this intention directly to the president. He told other staff, and the president did not know about it (or so Trump now reportedly says).

Something here seems amiss: A counsel who so objects to the president’s conduct that he would resign over it would normally have that conversation with the president himself—and not have him hear it from others. Perhaps McGahn concluded that his intent was somehow most effectively filtered to the president through others. Or he thought he could most safely proceed this way, sparing him the outbreaks of savage temper Trump has reportedly displayed and that has been directed at his counsel and his attorney general. How Trump and McGahn deal with each other is—to put the point gently—complicated, if it not dysfunctional.

But the crux of the problem seems to be the president’s failure to accept that it is the counsel’s responsibility to advise him of limits—legal constraints—on what he wants. Lawyers are his “staff,” like any other: He wants their personal loyalty, which, as he understands it, can mean that they must ignore or work around legal and ethical limits on the pursuit of his personal and political wishes. A leading example is the president’s refusal to accept that his attorney general was required to follow Justice Department regulations in recusing himself from oversight of the Russia investigation.

Meanwhile, Trump’s personal lawyer, Cohen, has been busy in court successfully seeking an arbitrator’s ruling that, under a nondisclosure agreement, adult film actress Stormy Daniels must remain quiet about her alleged affair with Donald Trump. Cohen has claimed that he acted on his own in entering into this agreement and arranging for Daniels to be paid $130,000 in return for her silence. His claim that the president did not know of the agreement is hardly credible. Whatever may have happened in the days before 2016 election, when the nondisclosure agreement was signed, it is inconceivable that Cohen launched his recent legal action without the consent of a client—a “David Dennison,” as described in the agreement.

One would have every reason to suspect that “Dennison” is Cohen’s longtime client Donald Trump. White House Press Secretary Sarah Huckabee Sanders appears to have been fully briefed on Cohen’s maneuvering on behalf of “Dennison,” implying that the president had “won” the arbitration. And one individual also named in the nondisclosure agreement, identified there as “Angel Ryan,” appears to be Jessica Drake, another adult film actress, who has publicly alleged that she was the victim of harassment by Donald Trump. It will come as a major surprise if by some chance it turns out that Dennison is someone other than Trump.

Assuming that Cohen is representing Trump in this matter, he is evidently prepared to do as instructed and to absorb the responsibility that the president disclaims. He will have lied about Trump’s involvement. By comparison, McGahn comes off better in standing his ground in refusing to deny reports of the order to fire Mueller. Of course, Cohen is a personal lawyer and McGahn represents the president only in his official capacity. But it appears that in both cases, Trump sought to have his counsel lie outright for him. The distinction between the personal and political is not one that much impresses Donald Trump, if he recognizes it at all.

Trump also seems to believe that he can direct his lawyers from behind a veil, minimizing his own accountability. According to the Times report, the president communicated the instruction that McGahn fire Mueller through Rob Porter. It is unusual in the extreme for a president to interact with his counsel in that fashion, especially on a matter of acute sensitivity. The Times now reports that the president later denied that he had ever issued the order and, when confronted with McGahn’s insistence that he had, fell back on the claim that he could not remember. The entire arrangement with Michael Cohen is built much the same way. If he is indeed representing Trump in the Stormy Daniels matter, Cohen supposedly acted on his own initiative without the president knowing about it, even as he was the beneficiary of his personal counsel’s work.

Then there is the matter of legal advice that the president declines to follow. The Times also reports that Trump asked his former Chief of Staff Reince Priebus to assess his experience with the special counsel: The president wanted to know whether Mueller’s investigators had been “nice.” This was one but not the only instance in which, the Times reports, the president “has ignored his lawyers’ advice to avoid doing anything publicly or privately that could create the appearance” of obstruction. He also pressured McGahn to lie about the order to dismiss Mueller, which was reportedly a subject of the White House counsel’s own interview with the Mueller team.

Executive-branch lawyers can do their work only if certain bedrock conditions are met. One is adherence to dependable process of some sort for building legal advice into the decision-making process. The other is an understanding of the lawyers’ role. Trump has little feel or use for process, a limitation that has become apparent, from the development of the first travel ban, through the tweeted announcement of his intention to bar transgender Americans from military service, to his appearance in the press room on Friday to tout—without preparation or any briefing of relevant foreign policy and national security staff—the invitation to meet with North Korean leader Kim Jong Un. The president has exhibited a lack of understanding of the lawyers’ role and sees them as serving an enabling function—just making it possible for him to do what he wants. And often when they don’t do as he desires on the issues he cares about most, Trump instinctively resorts to threat and bullying, as he has publicly done in the case of Jeff Sessions.

In his memoir “Crazy Rhythm,” Leonard Garment, Nixon’s longtime political associate and eventually a member of his Watergate legal defense, recalled that Nixon had told him two years before becoming president: “You’re never going to make it in politics, Len. You just don’t know how to lie.” The future unfolded all too predictably. Garment had little reason to be surprised when the president suggested that his advisers fabricate a tape cassette to cover for a lie he had told. But Garment stayed on. He decided he would “hang in, doing the best I could for a man I considered a friend and an extraordinary leader.” McGahn and Sessions will have to decide whether this judgment is possible for them—or, if not, whether this is a professional relationship they can abide, and the costs of which they are prepared to pay, in order to accomplish other goals that “hanging in” will allow them to pursue.

Trump’s attitude toward law, and his use and abuse of lawyers, are distinguishing features of his presidency, which may well help bring it down. While prosecutors such as Robert Mueller investigate crimes and not people, they also consider whether the individuals who come into their sight in the course of an investigation have illicit intent or motive. Character unavoidably enters in this judgment. By now it is clear, to the special counsel among other others, that this president has a purely instrumental view of lawyers and of the law. Or maybe even worse: Senior staff have told at least one reporter that one of the ways to “get Trump to do something” is to tell him that “the lawyers would never allow it.”

Of course, a president with this relationship to lawyers chooses as he pleases—and for his own reasons—when to bring them in and when to leave them out. Although there were plenty of lawyers ready to help when Don Jr. considered what to say publicly about the Trump Tower meeting with Kremlin emissaries, the president decided that he and his son would produce on their own the false accounting later released to the public. The Washington Post reported sources as stating that Trump was “acting as his own lawyer, strategist and publicist, often disregarding the recommendations of the professionals he has hired.” There you have it: no respect for process, no understanding of the role, with the bad result that follows. This is probably not the only instance in the entire Russia episode in which Trump has charted his own course.

It should be noted in all fairness that Trump does seem to like Michael Cohen. He has little use for the rest of his lawyers, except as they show more of Cohen’s can-do spirit. Yet it is worth recalling that the last president to have his personal lawyer arrange for hush money was Richard Nixon.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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