The president has many lawyers. (“Too many!”, according to the president.) Even for ardent followers of politics, it can be hard to keep them all straight. But understanding the roles of the various attorneys involved in presidential politics is essential to reading the news these days. It means one thing for Rudy Giuliani, a private attorney who represents President Trump personally, to make statements about North Korea policy; it would be much more significant if the same words came from the White House counsel, Don McGahn. To help you make sense of it all, here is the Masthead guide to the president’s lawyers.
Who’s Who of Trump’s Lawyers
By Caroline Kitchener
President Trump receives legal advice from a lot of different people. Some are government officials who work for the White House; others are private citizens who work for Trump personally. I asked Rosie Gray, who covers politics for The Atlantic, to walk through their roles and relationships to the president.
The White House Counsel
Don McGahn: The top lawyer at the White House. A former federal election commissioner and counsel for the Trump campaign, McGahn was appointed by the president at the beginning of Trump’s term. As White House counsel, McGahn gives advice about legal issues related to the presidency.
Other White House Lawyers
- Ty Cobb: White House special counsel—until the end of the month. (Not to be confused with Robert Mueller, the prosecutor investigating the Trump campaign’s ties to Russia). Cobb was hired in July 2017 to manage the Russia investigation within the White House, but, according to The New York Times, he has clashed with McGahn, to whom he does not report. Cobb has repeatedly claimed that the Russia investigation is nearing its end. “People have interpreted that as an attempt to calm the president down,” Gray said. On Wednesday, Cobb announced he was retiring.
Emmet Flood: When Cobb steps down at the end of May, Flood will join the White House. He’s best known as Bill Clinton’s private attorney during his impeachment proceedings. “The line that has gone into people’s stories is, ‘He’s an impeachment lawyer,’” Gray said. While no one knows for sure how Flood’s approach to the Russia investigation will differ from Cobb’s, “the thinking is that it could be more aggressive,” Gray said. As a government employee, Flood, like Cobb, may not be able to claim attorney-client privilege in representing the president (more on that below).
Trump’s Personal Lawyers
John Dowd: Trump’s top personal attorney until he resigned at the end of March. Trump pays personal lawyers such as Dowd to represent his private interests, as opposed to the government’s. According to The Washington Post, Dowd and Trump agreed that it was time for Dowd to step down. Trump reportedly didn’t approve of Dowd’s approach to the Russia investigation, and Dowd was frustrated that Trump wouldn’t take his advice.
Jay Sekulow: Trump’s top personal lawyer following Dowd’s resignation. Chief counsel at the American Center for Law and Justice, Sekulow is widely known as a conservative activist and a “Fox News talking head,” according to Gray.
Rudy Giuliani: Hired in late April to join Trump’s personal legal team. Giuliani, an old friend of Trump’s, is coming on as a “short-timer” to make television appearances, and to try to re-establish a working relationship with Mueller, according to The New York Times. In a recent segment of Hannity, Giuliani revealed that Trump reimbursed another attorney, Michael Cohen, for the $130,000 payment Cohen made to Stormy Daniels in exchange for her silence during Trump’s presidential campaign.
Michael Cohen: Trump’s longtime legal advisor, whose work for Trump predates the presidency. “Technically he is a lawyer,” Gray said. “But it’s not clear how much legal work he does for Trump, versus how much he just acts as a fixer.” In the past, when Trump or his businesses have been in legal trouble, Trump has called Cohen. “He makes stuff go away,” Gray said. He has also recently come under federal investigation.
Why Does a President Need Private Lawyers?
By Karen Yuan and Abdallah Fayyad
Bill Clinton had them, too. We report on what sets government lawyers like the White House counsel apart from the private attorneys.
Unlike President Donald Trump’s private attorneys, the White House counsel is responsible for representing the office of the presidency—not necessarily the individual who occupies that office. Even Ty Cobb, the White House special counsel who vocally defended the president, regularly described himself as working for the country, not one man. That’s why a president personally facing serious allegations may feel compelled to bring in private attorneys to represent him.
Trump’s personal attorneys represent him almost like any other client. Robert Bennett represented then-President Bill Clinton against the private lawsuit filed by Paula Jones. According to Bennett, he did “what an attorney usually does”: interview the client, discuss a defense strategy, and represent him in court proceedings. Bennett said the mystique surrounding Special Counsel Robert Mueller’s investigation is actually par for the course. “It’s pretty standard that you don’t know everything the prosecutor knows. I didn’t know a lot of things [independent counsel] Ken Starr knew.”
What isn’t so standard is the presidential attorney’s dual role as a lawyer-spokesman. Bennett said Clinton had asked him to be his media spokesperson. “That’s a difficult thing to juggle,” Bennett said, because he had to carefully maintain attorney-client privilege while talking about the case on television. But he felt his job was easier than Trump’s attorneys, because he was usually the only one speaking in public. “Trump’s lawyers are in a much more difficult position because he keeps talking and isn’t consistent.”
The White House counsel’s purview is much wider than that of a personal attorney, who is usually retained for a specific case. The counsel advises the president on exercising presidential powers, like executive orders or war authorization, and is responsible for overseeing the judicial nominations and appointments process. The latter, not the Russian probe or any of the lawsuits Trump faces, has seemingly been Don McGahn's top priority. “One area that [Republicans] are claiming is their biggest success to date—and it is—is the rapid rate at which the Trump administration is filling in judicial vacancies on the lower federal courts,” said Nancy Kassop, a law professor at the State University of New York at New Paltz. This is distinct from Cobb’s role as White House special counsel, which focuses on the Russian investigation.
It’s unusual for a president to hold his White House counsel at arm’s length, as Trump seems to do with McGahn. “It’s a pretty intimate relationship between president and counsel—or at least it was,” said Neil Eggleston, who served as President Obama’s fourth and final White House counsel. “I saw the president every day. I was in most major meetings.” The counsel often sees his or her role as guiding the presidency, including saying no to the president when necessary. As Lloyd Cutler, former counsel to Jimmy Carter and Clinton, told Kassop in an interview, the counsel needs to be “willing to stand up to the president, to say, ‘No, Mr. President, you shouldn’t do that for these reasons.’”
That doesn’t guarantee the president will follow or even seek advice. Gerald Ford did not consult his counsel before deciding to pardon Richard Nixon. Eggleston surmised that the counsel’s conversations with Trump were uniquely challenging. “The times I talked to [Obama] were about things like policy risk and litigation risk, and not things like, should we fire the person doing an investigation into the administration?” McGahn reportedly refused Trump’s order to fire Mueller.
Trump’s behavior, and the attention demanded by the Mueller probe, have led McGahn’s role to depart from his predecessors’. Historically, “no piece of paper, no person, went in or out of the White House without some knowledge of the White House counsel,” Kassop said. The counsel would screen the president’s guests and correspondence to avoid conflicts of interest. “That’s probably not as true any longer because, as we know, this president is very interested in getting access from just anyone, and so a lot of people bypass the White House counsel,” she added.
The role of McGahn and Trump’s personal attorneys diverge most sharply over the Russia investigation. Court decisions since the Clinton administration have established that the president likely does not enjoy attorney-client privilege when talking to the White House counsel—though this has yet to be tested in the Supreme Court. That’s because the role of the counsel, as a government employee, is not to protect the president himself, but to further the interest of the presidency as an institution. And other government lawyers like Cobb may not be able to claim attorney-client privilege either.
“McGahn is in this very unusual circumstance,” Kassop said. He has had to give testimony to Mueller about conversations he’s had with Trump, since he is unable to claim those conversations were privileged. “He’s essentially a witness against the president.”
Today’s Wrap Up
Question of the day: What other legal questions about the presidency would you like answered?
What’s coming: In 1968, the Kerner Commission made a sweeping indictment of racial oppression in America. On Wednesday, we ask what could have happened had the commission’s recommendations been followed.
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