Donald Trump has no real lawyers. Or, to put it more precisely, he has no lawyers capable of representing him as he navigates Robert Mueller’s ever more perilous Russia probe.
Last Thursday, John Dowd, one of the president’s personal attorneys, resigned in part because Trump would not take his advice. On Sunday, we were told that Trump’s newest potential attorney, Joe diGenova—who frequently pretends to be Trump’s lawyer on Fox News and has championed the “deep state/witch hunt” narrative Trump so enjoys—will not be able to work for the president due to a conflict of interest. Same goes for diGenova’s wife, Victoria Toensing. (In reality, the issue between the president and diGenova and Toensing was less a conflicts problem than a chemistry one.)
The president’s other great TV defender, Alan Dershowitz, says he is retired and has no interest in joining the team. On Monday, Dan K. Webb, another big-name criminal defense lawyer, turned down the president’s overtures, as did one of Webb’s law partners. And Ted Olson didn’t just decline the opportunity to serve on Trump’s legal team: The Republican wonder-lawyer also told Andrea Mitchell that the “turmoil” in the White House was “not good for anything,” then revealed to Mother Jones’ David Corn that nobody in D.C. appeared keen to take a White House gig. On Wednesday, CNN piled on, reporting that major D.C. firms are staying far away; Talking Points Memo’s Josh Marshall posits that female partners may be behind those firms’ no-Trump policies.
Trump, as he often does, is living in a different reality. On Sunday, the president tweeted, “Many lawyers and top law firms want to represent me in the Russia case…don’t believe the Fake News narrative that it is hard to find a lawyer who wants to take this on. Fame & fortune will NEVER be turned down by a lawyer, though some are conflicted.”
Leave it to this president to insult the last attorneys in America who might take him on as a client by suggesting they will hold their noses and do anything for money. It turns out, even those guys are busy.
All these defections and brush-offs leave Trump with his personal lawyer, Jay Sekulow—an attorney with no background in criminal law—working full time on the Russia probe. On Wednesday, Reuters reported that one of the attorneys helping Sekulow is Andrew Ekonomou, a little-known former prosecutor with a doctorate in medieval history. Ekonomou, who helped Sekulow represent Jews for Jesus in a case that came before the Supreme Court in 1987, told Reuters that while he hasn’t worked on anything all that big recently, he “prosecutes a lot of murders for the DA” in Brunswick, Georgia.
And that’s about the extent of the legal firepower Trump has in his standoff with Mueller. Donald Trump wants his own personal Roy Cohn. In reality, he can’t even hire a Lionel Hutz.
The ongoing and increasingly worrying problem for Trump is that he has lived for so long in the world of rich-man business-mogul law that his conception of lawyers and lawyering is badly skewed. He genuinely believes that attorneys like Michael Cohen—who is now embroiled in a wrestling match with a pugnacious Stormy Daniels and her lawyer—and Marc Kasowitz—who has represented Trump in litigation ranging from his divorce and bankruptcy proceedings to the Trump University lawsuit—can handle any type of legal proceeding. (Kasowitz left the president’s legal team in June, but there are rumors that Trump is contemplating bringing him back.) What’s really new here isn’t so much that no serious lawyer wants to work for Donald Trump; we’ve known that for more than a year. The revelation is that corporate America is built less on a formal system of laws and rules and norms than on an elaborate and expensive set of mechanisms for getting around that formal system.
In New York Real Estate Land, Multiple Divorce Land, and Repeated Bankruptcy Land, one can string together a lifetime’s worth of mandatory arbitration clauses, nondisclosure agreements, prenups, and frivolous lawsuits. The only legal system Trump can comprehend—and the only legal system the Cohens and the Kasowitzes are good at navigating—is one that consists entirely of loopholes and workarounds. That system, which runs on threats and intimidation and huge sums of cash, has made a lot of men who look and sound like Donald Trump obscenely wealthy. It is, like it or lump it, the American way.
Not every lawyer in Trump’s circle practices rich white guy law. Sekulow lives in Alito Land—that is, he channels Justice Samuel Alito’s efforts to grant special constitutional protections to evangelical Christians (especially those who want to discriminate against women and minorities). Those who reside in Alito Land know that judicial confirmations matter more than just about anything else. These lawyers are hatched in a Federalist Society lab to fight for judges who will reject abortion rights, marriage equality, and the separation of church and state.
Sekulow spent most of his career at the American Center for Law & Justice, a conservative advocacy group founded by Pat Robertson. As the ACLJ’s chief counsel, he defended school prayer and government subsidization of religion while attacking laws protecting abortion access. Under Sekulow’s leadership, the ACLJ has attempted to block the “Ground Zero Mosque” and lobbied against the legalization of homosexuality and abortion in Africa.
In one sense, Sekulow is Trump’s most productive attorney. He routinely defends the president on TV—including on channels other than Fox News—and has enlisted several ACLJ associates to pitch in behind the scenes. At least four attorneys connected to the organization, among them the aforementioned Andrew Ekonomou, are helping Sekulow handle Trump’s legal affairs, including his response to the Russia probe. It’s not at all clear, though, what material contributions Sekulow and pals have made to Trump’s ongoing legal defense. Politico reports that Sekulow handles “research on constitutional issues,” a vague portfolio that probably doesn’t help Trump respond to Mueller’s requests and subpoenas or the very real management of risk around the president’s proposed testimony before the special counsel.
Sekulow may spend a lot of time attacking Mueller on the air, but his ability to manipulate the court of public opinion doesn’t necessarily translate into effective legal advocacy. His strategy appears to be straightforward: Drag out the investigation through intransigence, and intimidate Mueller by suggesting Trump will fire the special counsel if he goes one step too far. It’s become obvious, though, that Mueller isn’t cowed by this kind of bluster. As white-collar criminal defense attorney Jacob Frenkel told Bloomberg, “This is entirely about a play to popular opinion and nothing to do with substantive legal issues or influencing a trial.”
If Trump is sticking with Sekulow because he can’t get anyone better, then why is Sekulow standing by Trump when every other lawyer on the planet is either abandoning ship or rooting for the iceberg?
One possibility is that Sekulow’s interests may not align neatly with those of his client. Sekulow has argued 12 cases before the U.S. Supreme Court, virtually all of them vehicles to promote evangelical causes. He frequently lost those cases, but that’s not really his fault; in modern times, the high court has been unwilling to demolish the separation of church and state or overturn key precedents protecting abortion access. But if Trump replaces one liberal justice—say, Ruth Bader Ginsburg—with a conservative, that could change. If that’s indeed Sekulow’s motivation, then it’s fair to say he’s staying on as a purely transactional matter: He needs the president to remain in power so the ACLJ can finish his work.
It seems quite possible, then, that Sekulow’s goal is not necessarily to help absolve the president, but instead to keep the probe tamped down for as long as possible. If Mueller reveals Trump is a criminal, the president may lose the capital he needs to push through more judges. He could even lose his office. Mike Pence would certainly like to appoint more justices in the mold of Alito, but he would enter the presidency with vastly diminished power. The end of Mueller’s investigation could thus mark the end of the Federalist Society’s takeover of the courts.
Robert Mueller doesn’t practice rich white guy law, and he didn’t cut his teeth in Alito Land. He comes from Serious Criminal Law Land, which adheres to precedents and principles over and above what powerful men can contract around. Mueller, James Comey, Rod Rosenstein, Andrew McCabe, and the myriad lawyers who have said “no” to Donald Trump are, on balance, Republicans and small-c conservatives. But they don’t believe the rule of law exists to enrich their bosses, and they don’t believe you can buy or bully your way out of that fact.
Trump doesn’t know how to deal with Serious Criminal Law Land. He can’t keep anybody from that world on his payroll, and nobody from that world is eager to tag in now. That’s why he’s kept his “fixer”—Michael Cohen—and glommed onto the likes of Jay Sekulow.
Why wouldn’t serious criminal lawyers rush to take a seat at Trump’s counsel table? One after the other has said that the notion of representing a man who doesn’t take legal advice, insists he is his own master legal tactician, and is likely to fire you at 5 a.m. in a tweet is not a smart career move. Ted Boutrous, a prominent lawyer at Ted Olson’s firm of Gibson, Dunn & Crutcher, told CNN that the president is a “notoriously difficult client who disregards the advice of his lawyers and asks them to engage in questionable activities.” Lawyers, especially inside-the-Beltway lawyers, trade in decadeslong relationships that put courts and law before any one case. The prospect of blowing up a lifetime of professional goodwill for a three-week stint working for a ticking time bomb of potential liability probably isn’t an attractive prospect.
Bob Bauer, who served as White House counsel in the Obama era, told us that lawyers “are understandably wary of Trump as a client: he has unreasonable expectations (Fire Mueller! Tell Sessions to ignore the recusal rules!), he abuses them verbally, interviews their replacements behind their backs, and to top it off, the kind of lawyer he likes should be prepared to advance personal funds and tell tall tales to cover up extramarital trysts.” Bauer added that, on the pro side, “it is probably a memorable professional experience.” Also, “they might even get the chance to testify before a grand jury.”
Perhaps that’s the simplest answer to the mystery of Trump’s missing lawyers. Work for the president, and you might soon wind up in front of a grand jury getting grilled by Bob Mueller. That might make for exceptional reality television. It doesn’t look so good on a résumé.
