Donald Trump has lawyered up. He’s engaged New York über-litigator Marc Kasowitz, who routinely charges $1,500 per hour, to help him contend with the rapidly expanding federal probes into alleged Russian interference in the 2016 elections and possible Russian collusion with the Trump campaign.
From a legal standpoint, the decision to retain Kasowitz is a no-brainer. With the appointment of Robert Mueller as special counsel to oversee the Justice Department’s criminal investigation of Russian meddling, Trump is potentially in deep trouble. He may even be accused of obstruction of justice related to his May 9 firing of former FBI Director James Comey and, depending on future political developments, may wind up facing serious calls for impeachment.
Although White House Counsel Don McGahn can represent the interests of the presidency as an institution in the Justice Department’s investigation, as well as related and ongoing House and Senate hearings, he cannot represent Trump himself.
Kasowitz is a logical choice to defend the president. The attorney-client relationship between the two men is wide-ranging and goes way back. Among other matters, he has represented Trump on bankruptcy and divorce issues, as well as the recently concluded Trump University fraud cases.
In 2006, he filed a defamation action on Trump’s behalf against biographer Timothy O’Brien. Last October, he threatened to bring a libel complaint against the New York Times for publishing interviews with two women who said Trump had sexually harassed them.
The ties between Trump and Kasowitz extend beyond law to politics. In December, Trump appointed one of Kasowitz’s former partners, David Friedman, as ambassador to Israel. In addition, former Connecticut Sen. Joe Lieberman, who now holds a senior counsel position in Kasowitz’s firm, was among those Trump initially considered to replace Comey. Lieberman subsequently withdrew from consideration for the position due to concerns over conflict of interest.
Kasowitz has at least some familiarity with the workings of the Russian economy and government. Apart from Trump, his current client list includes one of Russia’s largest state-run banks—Sberbank—which has hired him in connection with a complex federal fraud lawsuit pending in New York.
As the Russia probes accelerate, Kasowitz is expected to add lawyers with expertise in federal criminal law and procedure to the president’s legal team.
Once assembled, the team, according to Fox News, will join a White House “war room” of “lawyers, surrogates and researchers” led by Trump adviser Steve Bannon to “respond, rebut and refute bad press and legal issues emanating from” Mueller’s investigation.
As talented and tough as Kasowitz and his colleagues may be, they’ll have their hands full representing the president.
But as talented and tough as Kasowitz and his colleagues may be, they’ll have their hands full representing the president.
The legal mandate Mueller has been given is extremely broad. As explained by Deputy Attorney General Rod Rosenstein in a May 17 press release and an accompanying DOJ appointment order, Mueller will be empowered to explore “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and … any matters that arose or may arise directly from the investigation.” In other words, Mueller, who in addition to being a former federal prosecutor, ran the FBI from 2001-2013, will be able to look into just about everything, including possible obstruction by Trump.
Jousting with Mueller will be a daunting task for Trump’s attorneys, and it will be made all the more so by the persistent spate of ever-shifting news leaks from inside the administration and the intelligence community. The legal team’s stiffest challenges, however, may not come from Mueller, but from Trump himself.
As one of my mentors remarked decades ago at the outset of my legal career, “The practice of law would be a lot less stressful if there were no clients involved.”
Although said jokingly, the remark was meant to convey the importance of maintaining “client control,” especially in high-stakes trials and negotiations. The last thing lawyers want, whether they’re fresh out of law school or have established themselves as pillars of the profession, is a rogue retainer who runs off at the mouth or, in the age of social media, dispatches angry and inculpatory pre-dawn tweets.
This is particularly true when it comes to the prospect of shielding the president against obstruction charges arising from the Comey firing. Whatever Trump’s attributes as a leader or a business tycoon, self-control is not among them. The idea of exercising caution and restraint runs counter to his narcissism and macho self-image. In a political campaign, swagger and arrogance may be assets. In a legal setting, they are more often than not just the opposite.
Like other crimes, the offense of obstruction involves both an act or course of conduct (in legal jargon referred to as the “actus reus”) and an accompanying intent, or mental state (the “mens rea”). The relevant federal laws are found in Title 18, sections 1501 through 1521, of the United States Code. In all, the code sets out 21 separate obstruction crimes.
Of particular significance to Mueller’s investigation is section 1505, which makes it a felony to “corruptly, or by threats … or by any threatening letter or communication” to influence, obstruct or impede, or attempt to influence, obstruct or impede, any pending proceeding before a federal agency or Congress.
Other sections outlaw the same conduct in relation to judicial proceedings. Still others proscribe the intimidation of witnesses in judicial, administrative and congressional proceedings. Violation of the obstruction laws is punishable, in some instances, by prison sentences of up to 20 years.
Section 1515 defines the intent required for an obstruction conviction, instructing that the term “corruptly,” as used in Section 1505, “means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”
For Trump, the course of conduct that has brought him into the crosshairs of the obstruction laws was the dismissal of Comey, who until his discharge was leading the FBI’s Russia investigation, and on the eve of his firing had sought additional funding for the probe from the Justice Department.
In and of itself, as some Trump supporters have noted, there was nothing unlawful in the act of letting Comey go. The FBI director, although appointed to a 10-year term, serves at the pleasure of the president. In 1993, President Bill Clinton dismissed William Sessions as director for alleged financial improprieties, marking the only other time in the bureau’s history (it was founded in 1908) that such a firing occurred.
But while Trump clearly had the authority to dispatch Comey, the decision carried potential adverse consequences. Presidential prerogatives notwithstanding, the firing could amount to obstruction if done to derail the Russia probe. This is where the president has proven to be his own worst enemy.
Derailing the Russia probe is where the president has proven to be his own worst enemy.
The initial reason given for Comey’s firing, as set forth in separate letters signed by Trump and Attorney General Jeff Sessions on May 9 and in a legal memo prepared by Rosenstein, was implausible, even embarrassing, but far from incriminating. Taken together, the documents asserted that Comey was sacked because he had violated FBI and Justice Department procedures in his handling of the Hillary Clinton email inquiry and because he had lost the confidence of rank-and-file members of the bureau.
Since then, Trump’s story has unraveled, largely because of his own statements and actions. As summarized in a detailed timeline posted on the Moyers & Company website, to understand the unraveling, it’s necessary to go back to Jan. 27. On that date, in a one-on-one White House dinner held at Trump’s request, a mere seven days after his inauguration, Trump asked Comey for a personal pledge of loyalty. Comey declined, offering a pledge only of honesty.
Three days later, Trump fired acting Attorney General Sally Yates, who was in charge of the DOJ pending the Senate’s vote on Sessions’ nomination, for refusing to defend Trump’s Muslim travel ban in court. Before her dismissal, Yates had also informed McGahn that former national security adviser Mike Flynn had lied to Vice President Mike Pence about his conversations in December with Russian Ambassador Sergey Kislyak concerning the possible easing of U.S. sanctions. Yates believed such conversations rendered Flynn susceptible to Russian blackmail.
On Feb. 14, Trump again met with Comey at the White House, along with Pence and Sessions, whom the Senate had confirmed on Feb. 8. As detailed in notes Comey reportedly prepared immediately after the meeting, Trump asked Pence and Sessions to leave the Oval Office, then said to Comey: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy.” Comey demurred.
On March 2, Sessions recused himself from further involvement in the Russia and Flynn investigations because he had failed to disclose his own contacts with Kislyak during the campaign at his Senate confirmation hearing.
On March 7, Flynn filed long-overdue registration documents with the Justice Department, disclosing that between August 2016 and the November election he had received $535,000 for lobbying work as a foreign agent that could have benefited the government of Turkey. The late registration added to the tangle of legal difficulties Flynn faced for allegedly lying to Pence about his contacts with Kislyak, and concealing his receipt of $45,000 from the television network RT (formerly Russia Today) in 2015 for a trip to Moscow to deliver a speech.
In the early morning hours of March 20, just before Comey testified in front of the House Intelligence Committee, Trump sent out a tweet, asserting: “The Democrats made up and pushed the Russian story as an excuse for running a terrible campaign.” In his testimony, Comey publicly confirmed the FBI investigation and added that he had no information supporting Trump’s claim that his offices had been wiretapped on orders of Barack Obama prior to the election.
In late March, Trump reportedly asked Director of National Intelligence Daniel Coats and National Security Agency Director Michael Rogers to publicly deny that there is any evidence of connections between Trump’s team and Russia. They declined.
On April 25, Rosenstein was confirmed by the Senate as deputy attorney general by a vote of 96-4. Given Sessions’ recusal, Rosenstein took charge of the Russia probe.
According to the Washington Post, in the week leading up to Comey’s dismissal, Trump continued to stew over Comey’s testimony. Finally, on May 8, he met with Pence, McGahn, chief of staff Reince Priebus and other top aides, including Steve Bannon and Jared Kushner, to map out a strategy for canning Comey. Later that day, he instructed Sessions and Rosenstein to come up with an acceptable legal justification.
In the immediate aftermath of Comey’s dismissal, the White House managed to stay on script. Press secretary Sean Spicer, counselor to the president Kellyanne Conway, and Pence all maintained in TV and press interviews that Comey had been fired on the Justice Department’s recommendation.
On May 10, however, Deputy Attorney General Rosenstein broke rank, threatening to resign if the administration didn’t take steps to correct the misimpression that he had initiated Comey’s firing.
A day later, Trump seemingly obliged, telling NBC News anchor Lester Holt in a prime-time interview watched by millions that he had decided to release Comey before asking Rosenstein to draft his memo. “Regardless of the recommendation, I was going to fire Comey, knowing there was no good time to do it,” Trump stated. “I said to myself … you know this Russia thing with Trump and Russia is a made-up story.”
It has since been reported that on May 10, in his now-infamous White House meeting with Kislyak and Russian Foreign Minister Sergey Lavrov, in which he allegedly shared classified intelligence about Islamic State, the president also discussed Comey, telling his visitors, “I just fired the head of the FBI. He was crazy, a real nut job. I faced a great deal of pressure because of Russia. That’s [now been] taken off.”
On May 12, at precisely 5:26 a.m. EST, Trump typed out another tweet, warning that “James Comey better hope there are no ‘tapes’ out there of our conversations before he starts leaking to the press.”
On May 17, Rosenstein named Mueller as special counsel. And on May 23, the first reports of Trump’s hiring of Kasowitz began to circulate.
As Mueller’s investigation gathers steam, the central legal question facing Trump will be whether he acted with the “corrupt” intent required for obstruction in his dismissal of Comey. Thus far, as the above timeline suggests, the president has provided good reason to believe that he did, with words straight from his own mouth and Twitter account.
It will be of little avail to Trump or his attorneys to argue that he cannot be guilty of obstruction unless and until hard evidence of a criminal nature is produced that anyone connected with his campaign or presently working in the executive branch actually colluded with the Russians. Construed in its most favorable light, Trump’s position appears to be that there is no such evidence, and that as a result, the Russia probe has lacked merit from the outset, and he did nothing wrong in saying that the inquiry should be concluded.
Such arguments likely will fail for a variety of reasons: First, there need not be conclusive evidence of a completed crime before an investigation begins. Some criminal probes—and Mueller’s is one, as his mandate explicitly states—are exploratory in nature. Moreover, there is already cause to believe Flynn may have violated laws prohibiting the making of false statements for failing to disclose the money he earned from RT while applying for his most recent security clearance. And then there are the lies Flynn allegedly told to Pence, and possibly the FBI, about the nature of his interactions with Kislyak.
Kushner and Sessions, too, may be on the hook for failing to list their Russia contacts on their security-clearance paperwork. Late last week, The Washington Post reported that Kushner had become a focus of the FBI’s inquiry for proposing to set up a secret channel of communication with the Russian government in December, using Russian intelligence facilities.
More fundamentally, however, even if no hard evidence emerges that Flynn or anyone else close to Trump did anything amounting to outright collusion with Russia, the fact remains that the DOJ and the FBI, as well as Congress, are conducting official investigations. No one, not even the president, has the authority to obstruct them.
Unless his lawyers place a muzzle on him, there is little reason to think the president will hold his tongue and refrain from making additional provocative statements going forward. Upon returning Saturday from his first international trip, he launched another 5 a.m. tweet-storm, ranting that the “leaks coming out of the White House are fabricated lies made up by the #FakeNews media.” Trump’s lawyers reportedly have told him to limit his tweets, as they may one day be used against him.
Will Trump, faced with ever-increasing scrutiny, pay attention and somehow find the discipline to remain silent? Or will he continue to lash out and possibly follow up on his dismissal of Comey with an attempt to fire Mueller? Will he turn on his associates out of fear that they might turn on him first?
Will Trump, faced with ever-increasing scrutiny, pay attention and somehow find the discipline to remain silent?
We may soon be hearing echoes of the debate from the Bill Clinton-Monica Lewinsky scandal over whether a sitting president can be indicted for a crime. Although the weight of scholarship on the issue is that presidents must be removed from office before they can be criminally prosecuted, the issue remains constitutionally unsettled. Clinton, it may be recalled, assented to a plea bargain on the last day of his second term in office, admitting that he gave misleading testimony in the Paula Jones civil case about his affair with Lewinsky, agreeing to accept a five-year suspension of his Arkansas law license and to pay a $25,000 fine. In return, independent counsel Robert Ray, who had replaced Ken Starr, agreed not to seek an indictment.
But there is no debate that obstruction of justice may form the core of articles of impeachment lodged against a president. Obstruction charges were the primary infractions cited in the impeachment articles drafted against both Clinton and Richard Nixon.
None of this, of course, is by any means a foregone conclusion. And in hiring Kasowitz and other high-powered private legal talent to shield him, Trump may well put together a dream team of attorneys. Still, even a legal dream team may be unable to save a nightmare client from himself.
This column was originally published by Truthdig.com