On Wednesday night, Trump lawyer and former New York City Mayor Rudy Giuliani appeared on Sean Hannity’s show with quite a revelation. Giuliani stated that Trump repaid his lawyer, Michael Cohen, the $130,000 Cohen had paid to the adult film star Stormy Daniels, which may have been a violation of campaign finance law. (It also didn’t jibe with Trump’s previous words on the matter; it turns out that the president may not have been telling the truth.) Moreover, Giuliani’s comments, which seem to have been worked out in advance with the president, have raised larger questions about his role on Trump’s legal team and the moral morass that everyone who gets near the president seems to find themselves in.
To talk over the ethical issues surrounding Trump and his current and former legal team, I spoke with Deborah L. Rhode, a professor of law and director of the Center on the Legal Profession at Stanford. During the course of our conversation, which has been edited and condensed for clarity, we discussed how far lawyers are allowed to go in helping their clients, whether Trump’s lawyers have an obligation to be honest to the public, and what they should do if Trump enlists them in trying to fire Robert Mueller.
Isaac Chotiner: Can I record this call?
Deborah L. Rhode: Yes.
When you’re talking to a legal professor of ethics, you have to make sure to ask.
You know, I’ve talked to the Wall Street Journal and the Times today, and they didn’t ask.
You can’t trust the fake news media.
I guess that’s right.
According to Rudy Giuliani, Michael Cohen, acting as the president’s attorney, was essentially paying someone off for Trump and then getting repaid by Trump for it. If true, is that something that is common, and are there any ethical problems with it?
There are enormous ethical problems with it. It is not common practice to dole out money as a retainer for a lawyer to have him pay off people without your knowledge. Especially for activities that you deny engaging in—that is, the relationship with Stormy Daniels. If the point of this payment was to ensure her silence in the runup to the election, that’s a campaign violation. It’s a violation of campaign laws if it isn’t reported. It doesn’t matter whether it’s campaign money or not if it’s Trump’s money. [If] he reimburses the payment, or [if] he is giving Cohen a retainer that is meant to cover things like this, that needs to be reported.
OK but are there ethical issues with doing large things for your client like that—
Absolutely! Lawyers are agents for their clients. The clients are the ones who make the substantive decisions about the objectives of representation. I think it’s ludicrous to think that it’s business as usual that you would negotiate a payment for silence without talking about that with your client. That’s your client’s call to make, and lawyers’ authority in representation generally, according to the ethical rules, extends to matters involving tactics, not the ultimate objective.
One question I have been wondering about with Giuliani and Trump’s lawyers: Obviously, lawyers have a duty to get their client off, or to give their client the best representation they can.
Within the bounds of the law, which is an important qualifier in this context.
Does a lawyer have any higher duty to tell the truth in public?
A lawyer is an officer of the court and can’t make false and fraudulent representations in the course of his professional conduct.
Does going on TV and maybe lying count as professional conduct? Or is it only when it’s in the context of the courtroom?
It’s not just in the context of the courtroom. The bar’s ethical rules have been very clear that you’re a lawyer 24 hours a day. Even things that you do in your personal life, if they exhibit dishonesty, can be grounds for disciplinary action.
The Trump administration has basically been saying that this is an attack on attorney-client privilege. What is the line where your conversations will no longer be privileged?
If you are advising your client in a way that fosters criminal or fraudulent activity, privilege doesn’t cover those communications. So that’s a well-recognized exception.
Is there a sense in the legal community that this is dangerous ground and the bar should be extremely high for looking into any communication between lawyers and their clients?
The bar is high. We don’t know what kinds of representations were made to a judge to authorize that search of Cohen’s offices and home. It’s extremely unusual, but apparently, at least according to the information I’ve seen, there was good reason to believe that he was in the process of destroying relevant evidence. And in those circumstances, it’s clearly appropriate to do what was done here and to go to the judge and have the judge make arrangements for a separate group of lawyers to review the matters at issue, to make sure that lawyer-client privilege is not inappropriately breached. The judge took that step. I also think it’s worth pointing out that [Giuliani’s] characterization of this as a “storm trooper” raid isn’t even consistent with what Michael Cohen said. [He] said the agents were polite and behaved appropriately within the bounds of the law.
Robert Mueller is apparently looking into whether Trump thought about firing him as part of the obstruction charge. And there was a report that Don McGahn, the White House counsel, had threatened to resign if Trump tried to fire Mueller. If Trump is looking to his lawyers for advice on something like whether he should fire Mueller, and you are a lawyer giving advice about that and something like that could be a crime, would that be a legal issue for you, potentially?
I would assume that Trump’s lawyers have, at this juncture, given him a pretty full set of facts about what constitutes obstruction of justice and are trying to keep him on the right side of the line.
If in fact firing Mueller could be a crime, at least perceived by the special counsel …
Well, they should resign.
So, is that an ethically dangerous position for a lawyer to be in, even if it is in the form of legal advice to your client?
The ethical rules are quite clear that lawyers should feel free to give advice not just on legal technical issues but on the broader ethical, moral, and social considerations that may well inform a client’s decision. It’s certainly, I think, appropriate to counsel your client not just on what the legal grounds of an obstruction-of-justice charge are but also what the implications would be. If your client declines to follow your advice, and the matter is, as the [ABA] Model Rules [of Professional Conduct] put it, a matter that’s “repugnant” to you, and not one pending before a tribunal, you’re perfectly within your rights to withdraw from representation.
Something tells me Rudy Giuliani’s not about to withdraw.
Yeah, well, I think his bar for what’s repugnant is pretty high.