On Oct. 21, there was a news report that President Donald Trump would be personally providing a legal defense fund of several hundred thousand dollars for White House staffers and campaign aides in need of legal representation, see https://tinyurl.com/y9vymxx8. Unless you are living under the proverbial rock in the proverbial cave, you know that these staffers and aides need lawyers to represent them in the investigations of the Trump campaign’s alleged collusion with Russia during the 2016 presidential election. With Trump’s promise to pay their fees, staffers and aides facing potential legal bills well beyond the reach of their government paychecks can breathe a sigh of relief. The president has their back. Or does he?

Putting aside the question of whether this pledge of support is just a passing whim which will never actually occur, the pledge of legal fees from Trump raises numerous questions. First, to be clear, the payment of legal fees by a third party is not uncommon and is not, on its face, unethical. In the context of criminal investigations, it is not unusual for family members or friends to pay fees for an individual in trouble. In white collar cases, which often begin with government investigations of companies, rather than individuals, the company employer may choose to indemnify its employees and commit to paying all the legal fees. In Delaware, home to many large corporations, state law provides for both permissive and mandatory indemnification of directors and officers. See  8 Del. C. Section 145 (c) (“To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorney fees) actually and reasonably incurred by such person in connection therewith.”).

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