During the past two years, did you have the same reaction as I often did – that President Trump’s lawyers must have been constantly pulling their hair out when they learned about some of his tweets and decisions?
There’s a popular assumption that lawyers and clients generally are in sync, but we know that often this isn’t the case. Indeed, there often are intense conflicts between lawyers and clients. It’s not unusual for clients to be very frustrated with their lawyers, sometimes with good reason. And lawyers often complain about unreasonable clients.
Former White House counsel Donald McGahn obviously thought that he had a client from hell. Technically, Mr. McGahn represented the Office of the President and not the particular incumbent, but Mr. Trump was the one driving the train.
In the Mueller investigation, Mr. McGahn testified that the president had asked him to “do crazy shit,” like directing him to have Mr. Mueller fired. McGahn refused to lie by denying that the president asked him to fire Mueller. (This is PR 101. MRPC Rule 4.1(a) states: “In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.”)
President Trump asked Mr. McGahn, “Why do you take notes? Lawyers don’t take notes. I never had a lawyer who takes notes.”
“McGahn responded that he keeps notes because he is a ‘real lawyer’ and explained that notes create a record and are not a bad thing.”
“The President responded, ‘I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.’”
In case you’re unfamiliar with Mr. Cohn, here’s a brief primer. Early in his career, he was the legal henchman for one of the worst villains in American history, Senator Joseph McCarthy. A Washington Post article described Mr. Cohn as a tough lawyer later in private practice who frequently represented Mr. Trump, showing him “how to exploit power and instill fear through a simple formula: attack, counterattack and never apologize.”
Eventually, the law caught up with Mr. Cohn. “In 1986, a five-judge panel of the Appellate Division of the New York State Supreme Court disbarred Cohn for unethical and unprofessional conduct, including misappropriation of clients’ funds, lying on a bar application, and pressuring a client to amend his will,” according to his Wikipedia page.
Despite all the work that Mr. Cohn did for him, Mr. Trump ultimately showed that loyalty was a one-way street with him. He took advantage of Mr. Cohn’s services as a ruthless fixer when it suited him and then abandoned Mr. Cohn as soon as he didn’t need him anymore. A Washington Post book review described their falling out. “In 1984, Cohn, a closeted homosexual who frequently denounced gays, fell ill with an HIV infection. ‘As Cohn struggled to stay alive, Trump pulled back from his friend for a time.’ Cohn was ‘miffed by Trump’s apparent betrayal,’ the authors write, quoting Cohn: ‘I can’t believe he’s doing this to me. Donald pisses ice water.’”
Michael Cohen was Mr. Trump’s Roy Cohn for a while. In February, Mr. Cohen testified that he “threatened or intimidated people at Trump’s request, including reporters, probably 500 times over the decade he worked for him.” As Mr. Trump was cutting Mr. Cohen loose from his orbit, Mr. Cohen had a change of heart, testifying about Mr. Trump’s deceptive and apparently illegal business practices. Threatening tweets from Mr. Trump followed (and preceded) Mr. Cohen’s testimony.
I haven’t seen reports that Mr. McGahn used Cohn-like intimidation tactics. He did help Mr. Trump politically, engineering the installation of many Federalist Society members in the federal courts, including Brett Kavanaugh. Following the publication of the Mueller Report, with multiple citations of Mr. McGahn’s damaging testimony, he became the target of a barrage of Mr. Trump’s tweets.
See a pattern?
A lesson for lawyers: choose your clients carefully.