(Diego M. Radzinschi)
Did President Donald Trump expose himself to obstruction of justice charges in the unfolding scandal involving former FBI Director James Comey?
If anyone has an opinion on that burning question, it’s the country’s pool of former federal prosecutors. Many of them are loudly making their opinions known—out of political conviction, or to gain publicity, or both. But some ex-prosecutors at big corporate defense firms are keeping mum, concerned that the consequences of speaking out could harm or alienate their clients. “If you have a client who will need to make arguments to [the] Justice Department, you don’t want to make an enemy of the Justice Department,” explained one quieted former prosecutor, who asked not to be named in this story.
Another anonymous ex-prosecutor said his own unwillingness to speak publicly had nothing to do with potential reprisals under the Trump administration. He wouldn’t have wanted clients to see him discussing a White House scandal during the Clinton or Obama years either, the attorney said.
“That is the last thing they want, their lawyer pontificating about stuff like this,” he said, referring to Comey’s firing and to the president’s alleged effort to halt an FBI probe into ex-national security adviser Michael Flynn’s Russia ties.
Other former prosecutors, appointed by both Democratic and Republican administrations, said a reticence to speak out on its own suggested a threat to the criminal justice system’s credibility.
“That alone indicates a chilling effect,” said Matt Orwig of Winston & Strawn, a former U.S. attorney in Dallas who served under President George W. Bush.
Robert Mintz, the managing partner of McCarter & English’s Newark, New Jersey, office, said many of his fellow ex-prosecutors seemed more than happy to be quoted on Trump’s prospects. But Mintz, who was an assistant U.S. attorney for the District of New Jersey, said he’d let more evidence surface before saying too much.
“I think this is premature at this point to make any predictions about where this is going. Too much information is missing, and so much of the information is hearsay. There really has to be additional fact gathering,” Mintz said.
Paul Coggins of Locke Lord, a former U.S. attorney for the Northern District of Texas who served under President Bill Clinton, said Trump changed the calculus with his own statement to NBC’s Lester Holt that Comey’s firing was related to Russia.
“It is clearly within the power and the purview of the president to dismiss the FBI director,” Coggins said. But if that action was tied to an effort to halt an investigation of the collusion between the Russians and the Trump campaign, he said, it raises the spectre of obstruction of justice. “Ordinarily the difficulty would have been in proving his intent,” Coggins said.
Orwig agreed, saying, “There is a lot of evidence about the president’s intent.”
(Coggins and Orwig were speaking before The New York Times and others reported that the president also pressured Comey in February to drop an investigation into Flynn’s Russia connections.)
Coggins contrasted Trump’s public statements about Comey’s firing with the successful effort to defend former Texas governor and current Secretary of Energy Rick Perry against charges related to his conduct in state office.
In 2014, a grand jury indicted Perry, a Republican, on two felony counts of abuse of power related to a threat to withhold funding from a Democratic district attorney with authority to investigate the governor’s office. Perry ultimately prevailed, largely because prosecutors had not persuasively presented evidence of Perry’s motives for firing the DA, Coggins said.
Even though he was a Democrat and he supported the DA’s public corruption unit, Coggins said he signed an appellate brief in support of Perry’s defense because he didn’t want to see the criminalization of politics.
On the flip side, Coggins and others are now wary of the politicalization of criminal justice, which may be one reason they’re speaking their minds.
“It could be some in my firm don’t want to talk. But I’m a firm believer that you have to ask for forgiveness after the fact,” Coggins said.
Copyright The American Lawyer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.