It has been tempting to delight in Trump’s recent struggles to find a qualified lawyer willing to take him on as a client.
Respectable lawyers naturally shy away from a client who does not pay his bills, refuses to follow legal advice, lies compulsively, taints the reputations of all around him, and is facing a catastrophic legal denouement. Leaving Trump lawyerless may hasten his demise. But a lawyerless Trump may be far more dangerous. Trump threatens the survival of the institutions of our democracy. Lawyers make those institutions work. They channel disputes — ranging from payoffs to porn actresses to constitutional battles over separation of powers — through institutions that enforce the rule of law. Without good lawyers, the forces of chaos that Trump so heartily embraces dominate.
From the beginning, Trump has failed to attract top legal talent. While those around him signed up elite Washington lawyers, Trump brought in his New York favorite, Marc Kasowitz, who quickly proved out of his depth in D.C. Trump adopted the Bill Clinton model of hiring a team of outside lawyers to represent him personally, while members of the White House Counsel’s office represented the office of the presidency. He settled on John Dowd and Jay Sekulow as personal lawyers and Ty Cobb to lead his White House Counsel defense, along with White House Counsel Don McGahn. Sekulow was an ideologue associated with support for religious liberty at the expense of nearly every other right and a frequent Fox News contributor. Dowd and Cobb were both D.C. veterans with criminal experience. Dowd had a reputation for making loud and sometimes profane statements. Cobb had an impressive mustache.
Cobb set to work undermining his credibility by repeatedly promising Trump that the Russia investigation would end soon – by Thanksgiving, then by the end of the year. The generous interpretation of these statements posits that he was working his client, keeping him from doing intemperate things by promising a quick exoneration. Cobb’s representations were laughable to anyone paying attention to the ever-expanding investigation. Cobb has also advised cooperation with Mueller’s team in the production of documents and making White House staff available for interviews. This approach has not always pleased the combative Trump. Cobb’s standing with Trump cannot be good and rumors abound that he and McGahn will leave soon.
Dowd finally quit last week. His relationship with Trump suffered from communication errors. First, he claimed credit – implausibly – for a Trump tweet that suggested Trump knew Michael Flynn had lied to the FBI before he fired him and before Trump asked FBI Director Comey to back off of his investigation of Flynn. He took credit only after commentators noted that the tweet buttressed concerns that Trump had obstructed justice. In a recent tweet, Dowd urged an immediate end to the investigation and stated that he spoke for Trump. After the tweet received criticism, he clarified that he had not spoken for Trump. Oops.
Dowd resigned shortly after Trump announced the addition of Joseph diGenova (and possibly his wife Victoria Toensing) to his legal team. The announcement appeared to be the last straw for Dowd and the final expression of Trump’s loss of confidence in Dowd. It also demonstrated Trump’s flawed TV-reliant approach to personnel. Sekulow announced diGenova’s hiring before Trump met him and his wife. Trump reportedly admired diGenova’s ludicrous Fox News denunciations of the conspiratorial FBI. When he finally met the couple, he concluded he lacked chemistry with them. The hiring fell through. Oops, again.
Dowd’s departure left Trump’s personal defense in the hands of Sekulow, who lacks the experience to orchestrate a defense to a major criminal investigation. Trump, therefore, has been searching frantically for representation and facing repeated rejections from leading lawyers. Trump has defiantly tweeted that there are plenty of eager lawyers who cannot resist the fame and fortune promised by representing him. Increasingly, that appears untrue. Trump’s personality and the toxic and chaotic White House climate he has created make joining his team seem suicidal.
Lawyers are expected to take on clients who may be guilty and may have done reprehensible things. The profession encourages that and politicians generally withhold consequences (so long as the lawyer is not an African American civil rights lawyer – see Debo Adegbile). Chief Justice John Roberts famously represented a murderer in private practice before being confirmed to the Supreme Court.
But Trump’s vulnerabilities extend far beyond his legal culpability. He is impetuous and undisciplined, prone to say or tweet whatever half-formulated, self-serving thought pops into his head. He does not take advice. He lies constantly. He does not respect the institutions of law. He exhibits no loyalty to those who serve him and he sours on the hired help regularly. He sullies the reputation of almost everyone who comes into his orbit. And he doesn’t pay his bills. As a client, he is a recipe for disaster who will engender multiple crises of professional responsibility for any lawyer representing him. While representing a president can be a ticket to success, the odds are much greater that any lawyer foolish enough to take on Trump as a client will emerge with a damaged brand. No lawyer should be criticized for refusing to do so.
The country, however, needs a highly capable and honest – albeit foolish – lawyer to step forward. While Trump may not follow his counsel’s advice strictly, he should at least be forced to take it into account before misbehaving. Without the constraint imposed by a strong, independent legal voice, Trump will fight Mueller and the Russia investigation outside the law and in the public arena. He will do everything possible to drag the FBI, Department of Justice, grand jury, and courts into the gutter with him. He will further sully the notions of truth and impartial justice and preach contempt for the law and Constitution. People who think Trump poses an existential challenge to the rule of law should be pulling hard for a brave, experienced, honest, A-list lawyer to step up. Trump will head for the gutter in any event, but the right lawyer will slow his – and our – descent.
Trump’s decision whether to speak voluntarily with Mueller will present a litmus test by which to measure any new lawyer. No capable, experienced criminal defense lawyer will advise Trump to agree to speak with Mueller. The risks are great for anyone facing Trump’s potential jeopardy, but they are overwhelming for Trump. Trump knows far less about the subject matter of the investigation than Mueller and his team, who have been scrutinizing documents and questioning witnesses for almost a year. Trump will not prepare. He thinks he can bluster his way through an interview. He will be caught off guard and he will lie. Or, equally dangerous for him, he may blurt the truth. If a new lawyer joins the team and allows Trump to sit voluntarily with Mueller, we will know that Trump has not obtained the representation he needs.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.