WASHINGTON – President Donald Trump, whose combative instincts are to lash out and never retreat, appears to be shaping a legal team in his own image. His clear directive: Fight, fight, fight.
In aggressively worded statements and confrontational TV appearances, Trump’s personal lawyers and newly hired proxies have shown themselves more than ready to defend him in the manner to which he is accustomed – with arguments seemingly aimed at public opinion as much as at warding off any actual legal threat from prosecutors.
The legal team, like the president, has come out ready to hit hard, even if not always quite accurately.
“The president has not been and is not under investigation,” lawyer Jay Sekulow has declared repeatedly the past few days, only to add to the statement Monday that he didn’t know for certain if that was true. “The legal team has not been notified,” he said on CNN.
The Trump team’s style makes for a study in contrasts when compared to the seasoned group of prosecutors and criminal law experts working under Robert Mueller, the tight-lipped, respected ex-FBI director. To make it even more difficult, their client’s public statements often threaten to undercut their work.
“I don’t care who Trump hires. There’s no reason to think he’s going to listen to legal advice,” said Washington defence lawyer Peter Zeidenberg. “Good luck trying to represent him.”
It’s too early to say for sure what legal strategy his team will settle on, especially since the full contours of the probe aren’t known and no public allegations have been levelled by investigators. But two avenues appear clear so far: The lawyers are prepared to paint Mueller’s investigative team as somehow politically motivated, or too aligned with the interests of fired FBI Director James Comey; and they will argue the president didn’t illegally exert pressure on the investigation.
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Already, they’ve floated the idea that Mueller could be biased because some members of his investigative team have made campaign contributions to Democrats and because Mueller interviewed for the FBI director’s job after Trump fired Comey.
Attacking the idea that the president tried to obstruct the investigation also seems key. Comey did tell Trump he was not personally under investigation, but that was before the director was fired. Comey has since said he suspects the circumstances of his firing will be scrutinized by Mueller, putting pressure on Trump’s supporters to deny any illegal intent – critical to an obstruction of justice case. Some suggest his actions were wholly legitimate, based on ignorance rather than malevolence or on anger at an FBI director who would not repeat publicly his private reassurances.
“If you can prove that there was something there and the president knew about it, then the obstruction case looks far stronger,” said Washington attorney Justin Dillon. “But if it’s just, he’s acting impetuously because he doesn’t like having himself or his friends investigated for something he genuinely believes he didn’t do, then I think that’s a much harder case for obstruction.”
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Whether Trump himself is under investigation at this stage also is still unclear. On Friday, he seemed to confirm news reports that he was, tweeting, “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt.” Pressed by TV interviewers, Sekulow declared that Trump was not being investigated, then tried to walk that back, at least slightly, saying there had been no such notification.
That lack of formal notification wouldn’t be unusual in the early stages of an investigation. Federal prosecutors sometimes, but not always, advise an individual if he is at risk of being charged or is the subject of an investigation. Prosecutors early on also are generally focused on understanding how a particular circumstance unfolded, rather than in pursuing a particular target.
One thing’s for certain: Even with Mueller’s team working in silence, declining to discuss or confirm the most basic details, Trump’s team is determined to make his case in public. That may be an understandable approach in such a high-profile matter, though not always an advisable one.
“My constituents are prosecutors, judges and juries,” said criminal defence lawyer Bill Jeffress. “When you became a sort of talking head and spokesperson – a PR person basically – you lose credibility and you confuse your role. I think that’s a tough thing for a defence lawyer.”
While total silence won’t work, a more measured public approach may be prudent, Dillon said.
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“He probably can’t say nothing, but I think he should say as little as possible – and it should be so boring that it makes for bad copy,” he said.
“Boring” seems out of the question. Take Mark Corallo, the conservative public relations veteran who currently serves as a spokesman for Marc Kasowitz, Trump’s longtime personal lawyer who now leads his defence team. The New York Times reported Monday that Corallo’s recent tweets have included praise for Mueller and a suggestion that Vice-President Mike Pence should be the Republican nominee in 2020.
Though several Trump associates have hired more conventional attorneys from the elite ranks of Washington-region litigators – son-in-law Jared Kushner has turned to Jamie Gorelick, a former deputy attorney general in the Clinton administration, and Vice-President Mike Pence has retained veteran Richmond, Virginia, defence lawyer Richard Cullen – the Trump defence team has a decidedly different pedigree.
Kasowitz heads the group despite his lack of deep experience in Washington or in criminal defence. Well known in the Manhattan business circles that Trump inhabits, Kasowitz has a reputation as a bare-knuckles court brawler.
At the president’s urging, he has been on the offensive, casting doubt on Comey’s character and raising questions about whether the former FBI director inappropriately disclosed sensitive material.
Trump has also retained Sekulow, who has been the face of the legal team on TV – though he, too, has an untypical background, having largely specialized in religious liberty claims.
The White House recently bolstered the legal team’s credentials by hiring former prosecutor John Dowd, who may be best known for investigating allegations of improper gambling by baseball player Pete Rose. He also represented Sen. John McCain in the 1991 “Keating Five” scandal for which McCain was ultimately exonerated after being accused of improperly meeting with bank regulators on behalf of a campaign donor.