Another member of the Nixon Watergate legal team, Leonard Garment, seemed to have appreciated this distinction between public and private interests, even though, unlike St. Clair, he had a long history with Nixon and considerable affection for the late president. As he recounted in his memoirs, he shared Nixon’s deep distrust of the motives of his implacable foes. He suspected that the Watergate prosecutors and congressional investigating teams were out to “bleed Nixon to death” and to “nail” him.
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But when Garment had legal judgments to offer, on the scope of executive privilege or on the question of whether the president would commit obstruction of justice by burning the incriminating White House tapes, he refused to blink at the legal realities. He would have no part of Nixon’s readiness to falsify evidence. And when Garment decided that Nixon’s position was beyond repair—that he had suffered a “fatal erosion of presidential authority”—he concluded that he should advise the president to begin considering resignation.
Garment was on the inside, while St. Clair was the “outside” lead lawyer, but the ethical issues were the same for them, even if they were heightened for the government lawyer. Rule 2.1 does not apply only to attorneys working out of the West Wing on the public dime. Both Garment and St. Clair had the same compelling, ethical reasons to provide advice and to structure a defense built on more than “purely legal considerations.”
It is especially problematic for the president’s legal team to operate on assumptions common to the representation of the average criminal defendant when its defense must address the president’s exposure in both the regular law-enforcement and constitutional impeachment processes. At issue are Trump’s legal problems on leaving office and, more immediately, his chances of holding on to it. His lawyers cannot be unconcerned with evidence that may develop of the “fatal erosion” of their client’s “presidential authority.”
An additional ethical challenge for these lawyers is the degree to which, by their silence or active connivance, they will stand by as this president fires off grossly irresponsible tweets in his own defense. Trump has consistently urged the Department of Justice to prosecute his critics and made baseless accusations about the motives and conflicts in the office of the special counsel. Most recently, the president has been making veiled threats against the family of a key witness in the Russia investigation, his former lawyer Michael Cohen.
Trump’s lawyers have the professional independence and ethical responsibility to do what they can to divert him from this path, or any other, that leads to serious harm to the nation’s democratic processes and institutions. If, because Trump is a hard client to manage, they fail in the attempt, they are not obligated to support a dangerously self-interested defense that their client may prefer without regard to the relevant “moral,” “social,” and “political” factors that a president should consider. A fixation on doing whatever it takes to win is the luxury of criminal lawyers who do not represent a president.