Jurisprudence

Trump’s Lawyers Can’t Be His Enablers

What the president’s attorneys should be asking themselves as they decide whether to stay on or quit.

Don McGahn.
White House Counsel Don McGahn speaks during CPAC on Feb. 22 in National Harbor, Maryland
Alex Wong/Getty Images

On last week’s episode of Slate’s Supreme Court podcast Amicus, Dahlia Lithwick spoke with Bob Bauer about the relationship between presidents and their lawyers, and between this president and his lawyers. Bauer, who was White House counsel to President Barack Obama during 2010 and 2011, is a professor at New York University School of Law, a partner at the law firm Perkins Coie, and the author of the books United States Federal Election Law and Soft Money Hard Law: A Guide to the New Campaign Finance Law. A transcript of their discussion, which has been condensed and edited for clarity, is below.

Dahlia Lithwick: I thought we could start with the very basic question of what the White House counsel does all day, and how is that different from the other lawyers who are in the president’s orbit?

Bob Bauer: The White House counsel represents the executive office of the presidency or to put it more simply, he represents the presidency. Now of course he’s appointed to the position by a particular president with a particular program, and so in some respects it’s impossible to say that the White House counsel doesn’t represent the particular president who appointed him and whom he serves on a day-to-day basis. But he’s a government lawyer. For someone like Don McGahn, his obligation is to represent the institution, and that’s tricky because he represents an individual who almost certainly thinks of himself as the client. But he’s a government attorney. He represents the interests of the public.

Can you give me a concrete historical example of how that tension manifests?

When John Dean was President Nixon’s White House counsel, he wrote a memorandum in which he talked about various functions the White House counsel could perform, most of which—for example, helping provide clearances for executive branch appointments—are fairly standard and continue to this day. But he also volunteered the White House counsel’s support for the enterprise of looking into the backgrounds of Nixon’s potential opponents in his re-election campaign in 1972. Now that was very important to Nixon, but the White House counsel doesn’t function as a support to the president in his political capacity. He functions in support of the president and advises the president solely in his official capacity.

But that requires a president who understands the difference between his personal attorney and his divorce attorney and his White House counsel and his attorney general. One of the things that you wrote this week that was striking to me was, this is a president who just—maybe in part because he comes up through New York real estate—wants all his attorneys to be guys who just fix stuff, right?

Yes, I think there’s a decent amount of evidence to support the view that the president views his lawyers as he views every single other member of his staff, which is as individuals who are supposed to deliver the goods. They’re supposed to give him the answer that he wants and clear away the obstacles he doesn’t want to have to deal with. To put it in its crudest terms, he wants “yes people” in that job.

Now, I’m not saying he never listens to a lawyer. I suppose that if a lawyer were to say to him, “If you do X, you’re almost certainly going to land in jail for the rest of your life,” you know, the president might pay attention to that. But overall, the sense that you have is that the president doesn’t have any appreciation of the professional responsibility of the lawyer to advise him as an independent professional, which means just by definition the lawyer can’t give the president what he wants. It’s not bona fide legal advice if it’s tailor made to the president’s wishes.

In your column, you compared the president’s personal lawyer, Michael Cohen, who couldn’t say no when he was asked to deflect and lie for the president, to Don McGahn, who refused when he was asked to put out a false statement about Robert Mueller’s possible firing, which he was evidently asked to participate in. Is that a function of who those people are or is that a function of their role as lawyers, one as a personal lawyer for the president and one who answers at some level to the responsibilities of being White House counsel?

Without speaking to how Michael Cohen views his job, because I don’t know Michael Cohen, I would say the problem occurs on two levels. The first is that even a lawyer to someone in their personal capacity has to draw certain limits—has to be prepared to say no. And then the second problem is managing the pressures from somebody who doesn’t understand the role of a lawyer and not yielding to that client’s demand for a “yes” answer.

In McGahn’s case, he has to meet the additional requirement of being a public servant. Michael Cohen isn’t. Although again, even as a personal lawyer it’s not as if Cohen is entitled to throw everything out the window to get the president what he wants. The canon of ethics certainly call on lawyers to be zealous in the representation of their clients, but there are canons. There are ethical limits even on the zealousness of the representation, on the lengths to which lawyers will go to satisfy their clients.

You wrote this in your piece, and I’d like you to unpack it: “Trump’s attitude toward law, and his use and abuse of lawyers, are distinguishing features of his presidency, which may well help bring it down. While prosecutors such as Robert Mueller investigate crimes and not people, they also consider whether the individuals who come into their sight in the course of an investigation have illicit intent or motive. Character unavoidably enters in this judgment. By now it is clear, to the special counsel among other others, that this president has a purely instrumental view of lawyers and of the law.”

Clearly, to the extent that Mueller is investigating actions by Donald Trump, he’s looking at the facts that raise questions about whether those actions comply with the law. In every case, there’s a question of intent. Was there willfulness? Was there mens rea?

Prosecutors develop a picture of the person whose conduct is being investigated. And when the time comes to think about those questions of intent—to make the close calls or to try to decide between Version A and Version B—that picture becomes relevant. It shades or colors in some way how they’re going to interpret the behavior of the person whose actions they’re investigating.

What we have is a president who had his White House counsel threatened for not lying publicly about whether or not he’d been given an order to fire Bob Mueller. We have a president who has publicly berated his attorney general for complying with the requirement that he recuse himself under DOJ regulations from the Russia investigation. We have a president who has openly pressured his attorney general to undertake investigations into his 2016 political opponent Hillary Clinton.

So you have a president whose respect for law is—I’ll put it kindly—very much in doubt. It’s just hard to see how in a case where the president’s motives and intent are inevitably going to be presented, that this isn’t going to work very much against him in the final assessment by prosecutors.

You talked in your piece about Leonard Garment. He was Richard Nixon’s longtime political associate, and he eventually became a member of the Watergate legal defense team. You talk about him deciding to stay on because he thinks of Nixon as an “extraordinary leader” and a friend. How do you balance the tension between your love of this office, your dedication to the executive branch, and your dedication to this person? How do you slip and slide your way through that tension when you genuinely believe that you’re doing this because of some higher calling?

It’s not easy. We’re all human. I suppose the term that comes to mind and the trap you wouldn’t want to fall into is being an enabler. At some point, a lawyer has to be very honest with himself or herself and ask the question, am I, by hanging on, actually accomplishing something that is productive and consistent both with the interests of the institution and with my professional responsibility, or have I become an enabler? Am I simply here 75 percent of the time to basically allow something I don’t approve of to go on—that’s inconsistent with the public interest to go on—even if 25 percent of the time I express some concern, I take the White House chief of staff aside and I tell him I’m worried about it and then I let it drop if nothing happens? So, I’ve satisfied myself that I’ve expressed my concerns, by being open that I’m worried about something, but then I just go on with an institution, with an arrangement, with a culture, and with frankly an employer who is engaged in activities that I as a lawyer should not be enabling. And that’s a very hard issue to face.

Where it really collapses in the White House is if the White House itself suffers from a rancid culture. So that not only do I have the problem that I have with the president, but I have nowhere else to turn—no other allies in the building like the chief of staff to bolster my efforts to maintain a professional posture toward the president.

If a lawyer looks at all of that and recognizes that the role has become fundamentally an enabling role, then I honestly don’t believe that he or she can defend staying there any longer. I don’t know the facts right now of the different wars that the current White House counsel has fought—how many he’s won that we don’t hear about, how many he’s lost that we do hear about—so I don’t know what his batting average is. Those are the questions that I’d be surprised if he wasn’t asking himself. And I think that at the end of the day that’s what lawyers cannot ultimately be and remain good lawyers: They cannot become their clients’ enablers.

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