White-Collar Crime

Now John Dowd May Have Criminal Exposure? Can These Guys Do Anything Right?

If the New York Times is right, John Dowd may need a lawyer of his own.

By Joe Patrice on April 11, 2018 12:42 pm

John M. Dowd (screenshot via YouTube)

Remember when John Dowd was supposed to come in and be one of the president’s “smart” lawyers? We’d just come off the disastrous Marc Kasowitz turn, where Trump vested a real estate lawyer with the highest-stakes white-collar criminal case in decades, and Dowd and Ty Cobb were going to right the ship.

Then those knuckleheads went out to lunch and breezily discussed case confidences in front of reporters, Dowd claimed he penned a presidential tweet that laid out all the elements of obstruction, and Ty Cobb flung him under the bus. They eventually had to bring in Jay Sekulow because even Moe looks smart when you have a Curly.

Dowd’s since left the team, ostensibly because Trump’s gotten increasingly hostile toward the Mueller team, but his Trump problems may not have ended with his resignation. In an insightful piece in the New York Law Journal, Stroock & Stroock’s Joel Cohen explores the possibility that John Dowd may have exposed himself to his own daylight FBI raid. The crux of Cohen’s examination is a New York Times report published March 29 claiming that John Dowd reached out to both Paul Manafort and Michael Flynn to intimate to them that Trump could ultimately pardon them.

Dowd denies this.

But Cohen explores what it would mean if the Times report really is accurate. And what it would mean is Michael Cohen wouldn’t be the only Trump lawyer with FBI problems:

But assume, solely for purposes of this article, that it is correct. The message would presumably be clear: “hang tough;” don’t cooperate with Mueller and you’ll never see the inside of a jail. Yes, when Trump pardoned Sheriff Joe Arpaio, who had been convicted of criminal contempt, it was controversial, but it did not appear that Trump told Arpaio, in any way, “go ahead and violate the court’s ruling and I will protect you.” But let’s surmise. Whether “fronting” for the president or not—what if Dowd did communicate to these then-targets, now- defendants, that they should hold their tongues in exchange for quid pro quo pardons? Not explicit; subtle. Knowing they could expect a pardon might be enough.

It’s not a scenario that lends itself, thankfully, to a perfectly comparable set of facts. There aren’t many subjects of a criminal investigation in American law with the power to issue pardons. But the possibility of a pardon — held out to someone facing a possible criminal charge — feels a lot like a bribe, and we definitely have cases dealing with that:

True, a citizen’s right to invoke the Fifth Amendment when questioned by the authorities is known even by schoolchildren (or anyone who has ever watched TV). So one would think, for example, that if my friend and I rob a bank, it would be entirely appropriate for me to tell him that if the FBI comes a knockin’ he should simply “take five,” and there will be no consequences for me in doing so (beyond, of course, the robbery itself). Not necessarily so. I would be telling my friend to clam up harboring a “corrupt motive”—i.e., to protect my own self from incrimination—and the courts have said that might constitute the crime of obstruction of justice. Generally and cf., U.S. v. Cioffi, 493 F.2d 1111 (2d Cir. 1974) cert den. 419 U.S. 917 (1974). While the constitutional privilege against self-incrimination is an “absolute right,” one who “bribes, coerces, forces or threatens a witness to claim it, or advises with corrupt motive the witness to take it” obstructs justice. Cole v. U.S., 329 F. 2d 437 (9th Cir. 1964) cert den. 377 U.S. 954 (1964).

Cohen points out that this liability extends to an attorney making the offer on behalf of a client, pointing to a pair of cases dealing with attorneys pushing co-defendants to not cooperate with the government. Both cases turn on whether or not the lawyer was doing so to protect their primary client, concluding that if that was the motivation, it passes the “corrupt motive” threshold.

So here we are with Dowd. He says he never communicated any offer of a pardon, explicitly or otherwise. The Times has sources claiming otherwise. Presumably Manafort and Flynn know the answer and Flynn, at least, has Mueller’s ear. If there’s anything to the Times report, we should find out in due course.

Does this all sound like mob lawyer stuff? Yeah. But, as the raid on Michael Cohen’s office made clear, that’s where we are these days — digging into the murky corners of precedent we never thought we’d need to know to discuss a sitting president.

When the Criminal Lawyer Shields the Client [New York Law Journal]

Earlier: Maybe Ty Cobb Just Doesn’t Get This Whole ‘Client Confidentiality’ Thing
John Dowd Has The BEST Explanation For How Trump Didn’t Admit To Obstruction
That Sound You Heard Was Ty Cobb Throwing John Dowd Under The Bus