Trump’s Lawyers Need to Worry About More Than Winning

A fixation on doing whatever it takes to prevail is the luxury of criminal lawyers who do not represent a president.

Jonathan Ernst / Reuters

In a remarkable series of interviews, the president’s most public lawyer, Rudy Giuliani, put on a show of unconventional lawyering. He quoted Donald Trump on the extended history of his mid-campaign negotiations with Russia over a hotel project in Russia. He quickly backtracked and restated the startling disclosure as a “hypothetical.” He wouldn’t say what the president told him, he admonished a reporter; the communications were confidential, and “I’m his lawyer.”

But then Giuliani promptly related the president’s “recollections” on the subject. At another point, he seemed to suggest that whatever hope he had for a healthy legacy as a former prosecutor and mayor of New York City might be dashed by a late-life turn as a liar for Trump. And even his decisions about the interviews he would grant, and when, seem surpassingly haphazard. He recently took a call from The New Yorker’s Isaac Chotiner, and gave an interview, on his way to the shower.

This is not the first time that the president’s lawyers’ unusual behaviors have turned heads. Giuliani was not yet a member of the legal team when two of its members chatted about the Russia case loudly over lunch, within steps of the offices of The New York Times, and then found their comments reported in the paper. If this was strange, so was the tweet that one of the lawyers claimed he sent out in the president’s name, on the reasons for his firing of FBI Director James Comey, which caused his client all sorts of trouble.

The bad press fed by these behaviors has mostly been taken up with the question of whether, by the prevailing standards of good criminal-defense work, the president’s legal team is doing the best job for its client. The supposition is that the best defense is the one celebrated in film and lore: “getting the client off,” winning the case. Giuliani and his lawyers are seen as falling short of that standard of sound legal representation. They are criticized for harming their client’s chances of winning.

Less pronounced in this commentary is the broader responsibility that lawyers might recognize in representing the president of the United States. Because Trump is not just any criminal defendant, the performance of his lawyers in this episode will not be judged solely by whether his lawyers can claim to have won or lost. The case, and so necessarily the representation itself, is laden with lasting consequences for the public interest. While the president has the final say on how his defense is shaped and managed, his lawyers have an independent role to play and decisions to make—and these are not defined by the narrowest possible constructions of what is best for Trump as their client. The choices confronting these lawyers invariably present the question, Is what may be appropriate and generally expected in the defense of any client involved in a criminal investigation acceptable in the representation of the president of the United States?

The rules of professional responsibility do not provide detailed guidance, but the Model Rules do authorize lawyers to advise clients with appropriate reference to “moral, economic, social, and political factors that may be relevant to the client’s situation.” The explanatory comment accompanying the rule concedes that “a lawyer is not a moral advisor as such,” but that “moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”

A lawyer representing the president in a criminal case is not obligated to take any of these nonlegal factors into consideration. But the lawyer for the president would seem to be among those who, in making strategic judgments, would have the most compelling reason to look beyond their client’s narrowly construed personal legal interests.

Lies told by the president or by his lawyers in defending against prosecutors or impeachment erode public confidence in the government and further inflame America’s partisan divide. The best possible case for the client need not be a tapestry woven out of outright falsehoods. A constitutional defense can be more or less responsibly drawn, with short-term interests balanced against the longer development of the law governing presidential immunities and privileges. It matters how Trump’s lawyers are readying a robust challenge to protect against the disclosure of evidence on a claim of executive privilege. They have important judgments to make in sculpting their theory of presidential immunity from obstruction of justice.

When the prominent trial attorney James St. Clair came to represent Richard Nixon in the final stages of his Watergate agonies, he took the position that he was representing the office of the presidency and not the president. He told astonished lawyers in the White House, “I’m going to deal with this as a straight lawsuit, not as a political problem.” Whether he succeeded in these more high-minded aims is open to dispute. Certainly the prosecutors he tussled with took issue with what they thought was a lack of cooperation with their investigative efforts. But then again, he was their professional adversary, and it is unlikely they would have taken kindly to any aggressive, even if appropriate, measures he adopted in the president’s legitimate defense.

St. Clair was at least sensitive to what The New York Times described at the time as “the broader question [of] whether the lawyer for the president of the United States should proceed with the single-minded goal as a lawyer for a defendant charged with a common crime, the goal of ‘getting the client off’ however he can.” The Times pointed to the predecessor of current Rule 2.1, which counseled, “The advice of a lawyer to his client need not be confined to purely legal considerations.” It was not suggested that a president’s lawyers were relieved of the responsibility to mount an energetic defense, giving their all in providing the “zealous advocacy” that is also an ethical command. But a critical difference lies in how they choose, craft, and present their arguments. A representation can be conducted with the requisite zeal and commitment, but also within the boundaries set by considerations identified by Rule 2.1.

So when Giuliani states, as he did, “I’m a criminal lawyer. I am not an ethicist,” he is speaking accurately, but seemingly discounting the importance of this wider professional responsibility. His further suggestion that he might foresee a legacy rewritten to reflect repeated lies for Trump suggests that he is experiencing some disquiet on this score.

Of course, lawyers argue with all the materials in hand, and sometimes it is to the president’s advantage for his lawyers to argue a version of the “public interest.” When Jay Sekulow, another lawyer for the president, recently took to Fox to excoriate BuzzFeed and other media outlets for ignoring facts so that they could indulge their hatred for Trump, he argued that objectionable or unethical press practices are damaging not only to Trump, but also “to the office of the presidency and the entire country.” This sensitivity to the public interest is promising, but not only as a defense-team talking point. What is in the public interest is not, of course, necessarily or even consistently in the client’s. It may also clash with what the client mistakenly believes the defense of his interests requires.

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.

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.