The President “Lawyers Up”: Constitutional Duty and Private Interest, Part II

An earlier posting questioned how Donald Trump as both President and client will manage the conflict of public responsibility and private legal interest in the Russia matter. The inquiry into Russia interference in the U.S. election exposes the President and his associates to legal and political risk. The President must find a way to disregard that risk in attending to his constitutional—and, in this matter of national security, urgent—duty to support the congressional and Mueller investigations all the way through.

For any President in this position this would be hard to pull off. Donald Trump is not built for the challenge: this is a man who is finding it hard to separate himself from his private business or to refrain from tweeting as his emotions move him. Now he is lawyering up, and the personal defense will get in the way of the discharge of his duties. For Trump, the pressures to first save himself may prove overpowering.

The press secretary has now announced that on “all matters” relating to the Russia investigation, the press should refer their questions to the private counsel. It is not entirely clear how far the White House has shut itself off from the press on this topic. It may be proposing to keep specifically away from questions with the issue of obstruction at their core. Or, more generally, as the Spicer comment seemed to indicate, perhaps the entire subject of “investigations” is now off limits and must give way Mr. Trump’s personal legal concerns.

The lawyer for Mr. Trump will not, of course, make himself routinely available to the press. He will not come to the briefing room for regular Q and A. The Russia matter is now openly moved to the realm of private Trump legal interests.

The Character of the Conflict

The obstacles that these interests put in the path of disinterested presidential performance seem insurmountable. To prove that he or his campaign or associates have committed no offense, Mr. Trump and his legal team will be highly motivated to contest the very suggestion that Russia interfered in the election. He is not required to dispute any Russian connection to the hacking, but political and legal defense is improved if he can cast doubt on the Putin regime’s direct role and intentions.

And, of course, that is what he is now doing—notably, even in the period immediately following his retention of private counsel. On May 31st, the President tweeted out the accusation that the former CIA and FBI Directors have been lying about Russian actions and purposes: