Government

Trump Is Driving His Lawyers Towards An Ethical Quandary

Refusing to take his attorneys' advice could put those attorneys in a bad place.

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Donald Trump (Photo by Win McNamee/Getty)

I can imagine non-lawyers saying that Donald Trump’s lawyers are already ethically compromised. Representing a petty despot who demands fealty to himself and not the law is never easy.

But, plotted against the global historical stage, representing Trump is an easy ethical call. Lawyers represent the profession very well when they represent the worst among us. And there have been many lawyers who have nobly decided to represent terrorists, deposed despots, and Nazis.

The problem for Trump’s lawyers isn’t that Trump is a bad guy (again, global history speaking), it’s that he’s maybe the worst client alive today. He goes on television and admits to crimes he’s committed. He insults judges and the actual judiciary. His children admit to cover-ups on Twitter. He lies all the time; he is actually incapable of speaking without lying. And he doesn’t listen to advice.

This last point is currently vexing Trump’s legal team. They have told him that he should not agree to speak with Robert Mueller in connection with his investigation into Russian collusion. If subpoenaed, they’ve advised him to invoke his Fifth Amendment right against self-incrimination. This is really solid legal advice. It’d be legal malpractice to advise Trump to speak to Mueller.

Trump, doesn’t seem to care. CNN reports:

One person familiar with Trump’s thinking said — in addition to believing he is entirely innocent — part of what’s fueling the President’s willingness to participate is his belief that he has experience with lawsuits and testifying under oath from his time in the real estate business…

“He’s basically saying that I’m wide open as a book. I’ve done absolutely nothing wrong and I’m willing to say so under oath,” former White House communications director Anthony Scaramucci told CNN’s Jake Tapper Tuesday. “So again, I still think that that is on the table.”

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His team is trying to get the “he really believes he is entirely innocent” line out there, because it protects them, his legal team. You can ethically represent a client who believes he’s innocent, even if all the facts and evidence points to his guilt. You can certainly represent a client who thinks his actions, however objectively criminal they are, were not in fact wrong.

But what you can’t ethically do is allow somebody to knowingly lie to the grand jury or court. That crosses a line. If Trump believes any of the shady dealings he’s had with Russia over the years are not criminal, so be it. But if Trump’s intention is to just sit in front of Mueller and lie about stuff for hours, his lawyers can’t allow that. Ethically, they have to quit (or ask permission to quit) before they… SUBORN PERJURY. That’s how the profession is supposed to work.

For all we know, we’ve already seen lawyers do this in connection with the Russia probe. You might remember that a couple of weeks ago, lawyers for Manafort aide, Rick Gates, suddenly quit the case. There are a lot of potential reasons for abruptly leaving your client, but one of them is certainly “this fool is about to lie to federal prosecutors and I can’t be a part of that life, fam.”

Everybody is telling Trump that talking to Mueller is a “perjury trap.” I think that’s a mistake. A perjury “trap” is when you trick a cooperating witness into making irrelevant misstatements because they’re not good at carefully tailoring their answers to sometimes deeply personal questions.

“How many hours have you spent on PornHub?”
“2”
“2?”
“Maybe 3.”
“Our records indicate… 247 hours in the new year alone.”
“Oh no.”
“Ladies and gentleman, this man has lied about his sexual deviance, just like he’s lying about being a treasonous un-American who doesn’t clap during the State of the Union.”
“What?”
“The prosecution rests!”

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That’s a perjury trap. Trump is not going to get “tricked” into lying… his actual STRATEGY might be to just lie his way through the deposition with Mueller. He’s literally lied and obfuscated his way into the most powerful elected office in the world. What in the world would make him think he can’t lie his way out of this inquiry?

But if you are Trump’s lawyers, you can’t let him do that. If he insists, you have to remove yourself from the case. That is a basic ethical requirement. You can represent the worst people on the planet, but you can’t knowingly help them lie.

For Trump’s lawyers, nothing more, or less, than their professional integrity is on the line.

Trump wants to talk to Mueller despite lawyers’ concerns [CNN]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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