(The opinions expressed here are those of the author, a columnist for Reuters.)
By Alison Frankel
NEW YORK, (Reuters) – President Trump and his longtime personal attorney Marc Kasowitz are supposedly looking for a few good lawyers to round out the president’s defense team as Congress and special counsel Robert Mueller push ahead with investigations into potential ties between the Trump campaign and Russian officials. Over the weekend, Fox News reported that the White House plans to install presidential adviser Steve Bannon atop a “war room of high-powered lawyers, surrogates and researchers.”
For many, receiving a call to help the president would be an honour. “Most lawyers would be flattered,” said Washing-ton white-collar specialist William Taylor of Zuckerman Spaeder – a Democrat who has not been contacted by the White House. “Good lawyers don’t make moral judgments as to the worthiness of their client’s cause,” Taylor told my Reuters colleague Karen Freifeld.
But joining President Trump’s war room won’t be an ordinary engagement. The White House is already having trouble recruiting candidates for Justice Department jobs, according to a report Sunday from Politico’s Josh Gerstein. Serving the president himself is arguably an even more ticklish gig.
With that in mind, here are some of the questions the president’s would-be lawyers ought to ask themselves before they sign on.
- WILL IT BOTHER YOU IF THE PRESIDENT DISREGARDS YOUR ADVICE?
It is by now a cliché that President Trump’s own tweets and revelations – including the assertion that axed FBI director James Comey told him he wasn’t under investigation, a vague Twitter threat to Comey about tapes of their meetings, and disclosures to NBC’s Lester Holt and to Russian officials that the president fired Comey because of the Russia investigation – have created far more potential legal headaches than they’ve resolved. The president’s advisers have so far failed to silence the boss. Can you succeed where others have failed?
And considering how the president has previously dealt with advisors who have expressed disagreement with him, are you willing to risk being fired for confronting your client about sabotaging his own interests?
- CAN YOU WORK WITH MARC KASOWITZ?
Donald Trump has relied on Marc Kasowitz for more than a decade, beginning with the Kasowitz firm’s restructuring of Trump’s Atlantic City debt in the early 2000s.
Since then, Kasowitz himself has represented the president in some of his biggest legal battles, including a high-profile defamation suit against unauthorized biographer Timothy O’Brien and billion-dollar litigation against Hong Kong and U.S. majority partners whom Trump, a minority partner, accused of selling a valuable piece of New York real estate on the cheap.
Trump lost both cases but has nevertheless returned to Kasowitz time and again if he needs a legal pitbull, such as when Kasowitz sent threatening letters to the New York Times over its reports during the campaign on Donald Trump’s 1995 tax return and on women accusing Trump of unwanted sexual advances. (Trump did not follow up on threats to sue the New York Times.)
Kasowitz is a Big Law renegade who managed to build his own successful law firm, in part by taking on clients and cases that presented conflicts for established white-shoe shops. According to the most recent American Lawyer tally of law firm financials, Kasowitz Benson Torres grossed nearly $235 million in 2016, with partners taking home an average $1.85 million.
Though Kasowitz has teamed up with other firms from time to time – notably with Patterson Belknap Webb & Tyler on behalf of the monoline insurer MBIA and with Quinn Emanuel Urquhart & Sullivan in mortgage-backed-securities litigation for the Federal Housing Finance Agency – he didn’t get where he is by deferring to other people’s judgment.
Lawyers who know him say he steers his firm and his cases with a very firm hand, not unlike Trump’s own style of running his business.
Kasowitz is not known as a white-collar defense expert or an old Washington veteran, though he can call on partners at his firm with experience in both arenas.
Kasowitz Benson partner Edward McNally, for instance, is a former Manhattan federal prosecutor with experience at Main Justice, Homeland Security and the White House Counsel’s office under President George H.W. Bush.
Former U.S. Senator Joseph Lieberman, who withdrew as a leading candidate to take Comey’s job as FBI director after the president hired Kasowitz, is senior counsel at the firm. (Reuters has reported that McNally is a contender to become the U.S. attorney in Manhattan; that could present a complication if he is to serve on the president’s defense team.)
If Trump’s defense team brings in additional lawyers from outside of Kasowitz Benson, those lawyers will have to figure out their place in a hierarchy of presidential advisers. Kasowitz already has Trump’s loyalty. A new lawyer will have to earn it.
- CAN YOU WORK WITH STEVE BANNON AND THE PRESIDENT’S POLITICAL ADVISERS?
One potentially consequential difference between President Trump and previously embattled presidents Richard Nixon and Bill Clinton is that Trump is not a lawyer, mindful of the risk of accidentally waiving attorney client privilege.
Precedent from the Watergate and Whitewater investigations, moreover, has left the president’s communications more vulnerable than ever to exposure.
It’s going to be tough to keep a bright line between the privileged legal communications of Trump and his lawyers and non-privileged, political strategizing in the Bannon-run war room. And whose counsel will the president value more?
- HOW WILL YOUR WORK FOR THE PRESIDENT AFFECT YOUR FIRM?
Presumably, if you’ve attracted the president’s eye, you are a big-name partner who is bringing in a lot of business to your firm. Is your firm prepared to sacrifice your book of business for the sake of President Trump’s defense?
If history is a guide, this investigation will run for at least a year or two. That’s a long time to be out of circulation (along with whatever partners and associates you commandeer to help with the president’s case). Your clients may not appreciate being ditched and, depending on their politics, may not be happy about the reason you’re bailing on their cases.
Similarly, taking on the president’s defense may not be popular with other lawyers in your firm. According to OpenSecrets.org, lawyers and law firms were notably tepid in their financial support for the Trump campaign, contributing less than $1.8 million, as opposed to nearly $40 million to Hillary Clinton’s campaign.
Open Secrets does not distinguish between contributions from plaintiffs and defense firms, but those numbers don’t suggest a lot of lawyerly love for the president. In addition, some 15,000 lawyers wrote to then President-elect Trump, calling on him not to appoint Bannon as a chief adviser.
One of the lawyers President Trump has reportedly considered, Theodore Olson, practices at Gibson Dunn & Crutcher, where prominent partner Ted Boutrous has been an outspoken critic of the president’s immigration policies and attacks on the media.
Another of the lawyers mentioned as a possible member of Trump’s defense team, Paul Clement of Kirkland & Ellis, has already seen his career disrupted by representing a conservative cause; back in 2011, he resigned from King & Spalding over his defense of the House of Representatives in a challenge to the now-overturned Defense of Marriage Act.
Political cases cost money, create internal schisms and invite controversy on law school campuses where big firms recruit new associates – generally unwelcome complications for risk-averse law firms.
With Kasowitz, President Trump already has a skilled lawyer for the Russia probe. At his best, Kasowitz is as smooth an advocate as you’ll find in the courtroom and, at a minimum, he will be well-supported by other lawyers in his own firm. The Kasowitz firm obviously takes enormous pride in counting Donald Trump as a longtime client.
But it looks like we’re going to have to wait and see who else is willing to enlist in the president’s war room.