If President Trump wants to protect his own interests as the FBI and Congress move forward with investigations of possible ties between the Trump campaign and Russian officials, he should hire a private lawyer to advise him, according to six lawyers with experience in the sort of mushrooming Washington probes that have enveloped Trump.
The president might suffer political fallout from bringing in his own lawyer, these experts said, but President Trump should be receiving advice from a lawyer who represents him, not the White House. White House counsel represent the institution of the presidency, not Donald Trump himself, much as corporate general counsel represent their company and not CEOs.
Moreover, under legal precedent from the investigation of President Bill Clinton, President Trump’s communications with White House lawyers may not be shielded by attorney-client privilege. Only an attorney working for Trump can give the president unvarnished, unconflicted advice without fear it will become public.
Lawyers said the president needs his own counsel regardless of whether he is facing potential criminal liability for his responses to the Russia investigation. On Tuesday, the New York Times broke the news that fired FBI director James Comey supposedly memorialized a conversation in which President Trump asked him to shut down the FBI’s investigation of former Trump National Security Adviser Michael Flynn.
Reuters independently confirmed the Times account. Democratic lawmakers have said the president’s reported conduct raised questions about whether Trump was attempting to obstruct justice. On Tuesday night and Wednesday, House and Senate committees issued demands to the White House and the FBI for documents related to communications between the bureau and President Trump, including memos written by former director Comey.
“The President is in dire need of a criminal defense lawyer and a congressional investigations lawyer immediately,” said former prosecutor Kirby Behre of Miller & Chevalier in an email. Behre and other lawyers said an experienced adviser would begin by explaining the legal consequences of President Trump’s freewheeling statements and tweets.
“He is flunking all the rules of crisis management,” said a Washington lawyer involved in several White House investigations who spoke anonymously. “He needs a sophisticated lawyer who has dealt with cases at the intersection of criminal law and politics.”
White House lawyers have a duty to protect the interests of the presidency even when those interests diverge from the president’s individual concerns, said Savannah Law School professor Andy Wright, a former associate counsel to President Obama. So, for instance, White House lawyers might be reluctant to defend direct communications between the president and Justice Department officials about an ongoing investigation. Previous presidential administrations have strongly discouraged such communications for fear of tainting federal probes.
Moreover, said Wright and other lawyers, the president can’t be sure advice he receives from White House lawyers will remain confidential. In 1998, the District of Columbia Circuit Court of Appeals ruled in In re Lindsey that White House deputy counsel Bruce Lindsey could not assert attorney-client privilege to avoid testifying before a grand jury investigating President Bill Clinton's administration. “The Office of the President is a part of the federal government,” the appeals court said. “Neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense.”
“As a practical matter, Trump won’t get the benefit of privilege if this ever goes to a grand jury,” said Wright.
It’s worth pointing out that President Clinton brought in private counsel, David Kendall of Williams & Connolly, early in the Whitewater probe, before the appointment of independent counsel Ken Starr. He also called on Robert Bennett, now of Hogan Lovells, in civil litigation brought by Paula Jones. Both David Kendall and then White House counsel Charles Ruff defended Clinton in impeachment proceedings.
Of course, President Trump will only benefit from a private lawyer if he listens to that lawyer’s advice. Former Justice Department prosecutor Beth Wilkinson of Wilkinson Walsh & Eskovitz said the president’s previous litigation conduct may discourage defense lawyers from taking his case. She cited Trump’s out-of-court comments about the judge overseeing the Trump University fraud litigation as an example.
“That shows the difficulty of having a client who won’t listen,” Wilkinson said.
The lawyers I spoke with said they have not heard Trump is looking for private counsel. One who spoke on background said president may be weighing the political downside of hiring his own lawyer.
One way to mitigate the fallout might be to bring in someone from outside the Washington white-collar bar, such as a former U.S. attorney general or retired federal judge. One lawyer proposed that Trump even cross the aisle and hire a Democrat to represent him.
I reached out to lawyers who have previously represented the president, Daniel Petrocelli of O’Melveny & Myers, Trump’s counsel in the Trump University case, and frequent outside counsel Marc Kasowitz of Kasowitz Benson Torres. Neither responded to my emails.
I also didn’t hear back from former attorney general and retired federal judge Michael Mukasey, who has publicly defended the president on many occasions. At a Federalist Society event today in Washington, Mukasey said it would have been inappropriate for Trump to have asked Comey in an informal manner to drop the Flynn case, though he said the president has the power to order investigations to cease.
A Reuters reporter asked White House spokesman Sean Spicer on Wednesday if the president planned to hire his own lawyer. Spicer said he would tell her if there were updates.