In the latest addition to Donald Trump’s mounting legal problems, attorney Timothy Parlatore has just announced his resignation from the former president’s legal team. Parlatore said he was forced to resign because it was impossible to work with co-counsel Boris Epshteyn. Per Parlatore, Epshteyn “did everything he could to try to block us” from speaking to Trump, and was “not very honest with the client.” Why Mr. Epshteyn, a longtime Trump aide, former corporate lawyer, and political commentator with no apparent criminal defense experience is calling the shots for Team Trump in multiple monumental white-collar criminal investigations remains a mystery, although one can guess from the Parlatore quote that it is because he tells Trump what he wants to hear.
Parlatore’s departure follows that of Evan Corcoran, a Trump lawyer who resigned from the Mar-a-Lago investigation after being compelled to testify in the grand jury against his client in the classified documents matter. Despite resigning from the Mar-a-Lago investigation, Corcoran will remain counsel to the former president in other investigations. Corcoran has it wrong.*
As a white-collar criminal defense attorney for four decades, I cannot fathom how any attorney who has testified in a grand jury investigation of a client can remain that client’s lawyer. Justice Department attorneys did not subpoena Corcoran after randomly pulling his name from the phone book. He was subpoenaed because the DOJ must have had substantial evidence involving him in the criminal conduct of his client. Otherwise there would be no way to successfully litigate the matter over many months to break the attorney-client privilege under the “crime fraud” exception.* Unless the DOJ and the judges who upheld the invocation of the “crime fraud” exception are widely off the mark, there are only two probable outcomes: The attorney becomes a witness against the client or is indicted as his co-conspirator.
In grand jury testimony, the lawyer/witness must be careful not to expose himself to charges of perjury, while the lawyer’s own underlying conduct is also under scrutiny. How can the client retain full confidence in the lawyer when the client cannot really know whether the attorney provided damaging evidence that will be used to put him in jail? How does the client know whether the attorney protected his own interests instead of those of the client? In the Corcoran situation, how does providing testimony that may help a prosecutor indict his client in one matter not destroy the attorney-client relationship in all matters? Inherently, the lawyers’ need to protect themselves necessarily conflicts to at least some material degree with their obligation to protect their client. This conflict seriously undermines a relationship that requires full disclosure, mutual confidence, and a shared determination to always have the client’s interests the top priority.
In short, once a subpoenaed lawyer fails in their attempts to do everything legally possible to preclude needing to testify, there is no choice but to terminate the attorney-client relationship.
Thus, the overall takeaway from Parlatore’s exit is that Team Trump can now be called Team Turmoil. In addition to losing Corcoran and Parlatore, one can expect that Joe Tacopina, Trump’s attorney in the E. Jean Carroll civil assault litigation, will soon be gone, although in his case, not voluntarily. Whether any of these three new Trump legal exiles will join their prior Team Trump colleagues who abandoned ship in making public, negative analyses of their former client’s defense team and his chances of successfully defending himself—such as former top Trump White House lawyer Ty Cobb, who predicted that his former client “will go to jail”—remains to be seen.
In any event, given the extraordinary number of Trump lawyers who have either been pushed or have jumped out of the former president’s defense window, we can now add a malfunctioning defense team to the former president’s legal problems that I previously identified in Slate. We begin with Trump’s astounding inability to testify on his own behalf. Indeed, the degree to which his deposition testimony was used as a battering ram against him in the Carroll trial, and his hysterical rants and unintended admissions at a CNN town hall event that likely had his attorneys contemplating self-immolation, greatly underscore the point. In addition to this severe personal limitation, we can add a number of predictably wrongheaded tactical decisions, including recommending Eastern District of New York Judge Raymond Dearie to be the Mar-a-Lago Special Master and the problematic selection of Joe Tacopina as lead counsel in the Carroll case. As Special Master, Dearie gave the DOJ most all of what it wanted while giving Team Trump nothing but well-justified criticism. As lead defense lawyer in the disastrous Carroll trial, Tacopina’s bombastic performance was roundly criticized by the media, and by his client after the verdict.
While each manifests itself in different ways, all of these impediments to the former president’s ability to defend himself emanate from the same source: Donald Trump. As my former law partner Ken Kaplan and I used to say when dealing with difficult clients, “you can often protect a client from the government, but you can never protect him from himself.” With this reality in mind, we can surely expect additional self-inflicted wounds to emerge as the investigations wrap up and the pressure on the former president increases.
Correction, May 26, 2023: This article originally misstated that Timothy Parlatore had been subpoenaed to appear before the grand jury under the “crime fraud” exception. He appeared willingly.