Over the weekend, the New York Times reported that Donald Trump is considering a preemptive pardon for a Navy SEAL named Edward Gallagher, who has been charged in military court with murdering a captive and shooting two unarmed civilians. This week, meanwhile, a judge ruled against Trump in a lawsuit, which he’s filed as a private citizen, that seeks to prevent Deutsche Bank and Capital One from turning over his financial records to congressional investigators.
As it turns out, the same lawyer—Marc Mukasey, son of former Attorney General Michael Mukasey—is working on both cases. On Wednesday, as the military-affairs site Task and Purpose reported, he was even working on them at the same time:
Appearing via telephone, Mukasey — a longtime law partner of Rudy Giuliani and the son of a former attorney general for President George W. Bush — had to drop from the Gallagher hearing after about 15 minutes since it conflicted with court proceedings in New York related to the release of Trump’s banking records.
“I’m a trial lawyer,” Mukasey told Task & Purpose in a phone interview. “I represent the president in court and I represent Eddie Gallagher in court.”
This seems like … a bit of a conflict of interest for … someone? At the least, it’s a reminder that Trump does not have a stellar record of enforcing ethical boundaries involving his relationships with lawyers: According to federal prosecutors, he directed former personal attorney Michael Cohen to carry out an illegal hush-payment scheme during the 2016 election; the Mueller report documents his effort, as president, to get former White House Counsel Don McGahn to end the special counsel’s Russia investigation (and, later, to get McGahn to deny that Trump had done so); the report also includes descriptions of contacts between Trump’s personal attorneys and individuals like Cohen, Paul Manafort, and Michael Flynn that could conceivably constitute witness tampering; and on Monday we learned that Cohen told lawmakers that Trump attorney Jay Sekulow encouraged him to lie to Congress about the dates the Russia Trump Tower project was being considered. This latest episode seems like another opportunity for presidential malfeasance.
According to professor David Luban of Georgetown Law, though, there’s nothing technically wrong with the Trump-Gallagher-Mukasey arrangement. Luban says that while the situation “smells horrible” and raises the possibility that individuals seeking pardons from Trump could essentially use his personal attorneys as their lobbyists, there don’t appear to be any specific ethical rules forbidding it. Said Luban: “If the president was a judge, he would have to recuse himself from the Gallagher case because his impartiality could reasonably be questioned. But there is no requirement that presidential pardon power be wielded impartially. Nothing except political backlash would prevent the president from pardoning his own family members if they got into legal trouble.” (There could be post-hoc remedies in cases of abuse: Other experts have argued that a president could be prosecuted if he used his pardon powers with intent to obstruct justice or as the reward for a bribe, and Congress could vote to impeach. But there are few restrictions on who pardons can be issued to in the first place.) Luban further says he doesn’t believe that Trump’s role as the head of the branch of government that’s prosecuting Gallagher constitutes the kind of “directly adverse” collision of interests that would preclude Mukasey from representing both men. (For his part, Mukasey told Task and Purpose that he has not asked Trump to pardon Gallagher.)
So—alarming, and rife with the potential for abuse, but probably not technically forbidden. Great!