Donald Trump at a campaign rally in 2016. (Michael Candelori via Wiki Commons)
The daily Trump-Comey-Flynn imbroglio and its potential legal ramifications for President Donald Trump suggest it may be time—or past time—for the embattled president to “lawyer up,” veteran white-collar defense lawyers say.
Although all of the facts surrounding the FBI’s Russia investigation, Trump’s firing of FBI director James Comey and the role of former National Security Adviser Michael Flynn are not publicly known, the president’s recent conflicting statements and tweets pose legal difficulties for him down the road, those lawyers said.
“He doesn’t seem to understand that there really honestly could be a criminal case here,” said former federal prosecutor Julie O’Sullivan of Georgetown University Law Center. “He needs someone sitting next to him saying, ‘Please don’t do that. You’re getting more and more into trouble.’”
And here’s more advice from the defense bar: Trump also should be cautious about what he says to lawyers in his White House Counsel’s Office. A 1998 decision by the U.S. Court of Appeals for the D.C. Circuit—In re Bruce R. Lindsey—held there is no government attorney-client privilege to withhold information related to a federal criminal offense.
The appeals court noted that the Supreme Court in United States v. Nixon held “even the constitutionally based executive privilege for presidential communications fundamental to the operation of the government can be overcome upon a proper showing of need for the evidence in criminal trials and in grand jury proceedings.”
Peter Zeidenberg, an Arent Fox partner, put it this way: “You would think the advice he would be getting right now from his staff or White House counsel would be identical to what he would be getting from his own personal lawyer—quit tweeting and quit talking about this stuff—and revert to the same boilerplate that every administration in my lifetime has used: ‘We’re cooperating fully with the investigation and look forward to seeing the results,’ and not say anything else.”
Matthew Kaiser of Washington’s KaiserDillon said, “It’s probably time for the president to hire a criminal defense lawyer to begin to prepare to defend him. But more than that, he should hire a lawyer and listen to his advice.”
Kaiser continued: “Whatever the impact of the president’s habit of speaking freely on Twitter for global or national politics, if he keeps doing what he’s doing he can easily tighten the noose around his neck. The rules have changed for the president; he needs someone who can counsel him on how to act now. Whether there’s a lawyer in America who can exercise that kind of control over this client is an open question.”
Other criminal defense attorneys who have government investigation experience offered similar advice. “Any time you’re embroiled in a separation-of-power dispute as we have, you’re well advised to get a personal lawyer,” one defense lawyer said. Another attorney said the hiring of outside counsel provides “prophylactic protection.” Conflicting statements “can come back to look like one or many are inaccurate statements. Multiple statements in dynamic investigations are challenging whatever the underlying facts are.”
It’s not just the president who might want private counsel. White-collar defenders told Politico this week that Trump’s staff ought to consider seeking their own counsel.
Trump either personally or professionally—through the Trump Organization—has worked with firms including Morgan, Lewis & Bockius, Jones Day, Kasowitz Benson Torres and Seyfarth Shaw. Trump’s White House counsel, Donald McGahn, was a Jones Day partner who served as the general counsel to his presidential campaign. A team from Morgan Lewis worked on tax and ethics issues for Trump.
Trump’s daughter, Ivanka Trump, is represented by Wilmer Cutler Pickering Hale and Dorr’s Jamie Gorelick. Wilmer partner Reginald Brown is advising Paul Manafort, President Trump’s former top campaign adviser. Over at Covington & Burling, partner Robert Kelner is representing Flynn himself as he navigates the “Wild West” of congressional investigations.
A message to the White House press office was not immediately returned Wednesday.
Trump on Wednesday, delivering the commencement address at the U.S. Coast Guard Academy in New London, Connecticut, suggested he would not back down in the face of mounting criticism.
“You will find that things happen to you that you do not deserve and that are not always warranted,” Trump said. “But you have to put your head down and fight, fight, fight. Never, ever, ever give up. Things will work out just fine.”