Here’s the problem with being a defense lawyer: It’s hard — not impossible, but hard — to be better than your client.
It now looks like Trump lawyer Rudy Giuliani is again out on his accustomed limb. A recent BuzzFeed story alleged that President Donald Trump directed his fixer Michael Cohen to lie to Congress about when negotiations for a Moscow Trump tower ended. Giuliani leaped to the president's defense, claiming he was “100 percent certain” that Trump hadn’t told Cohen to lie.
SIGN UP FOR THE THINK WEEKLY NEWSLETTER HERE
On the other hand, according to the timeline that Giuliani has variously presented in numerous TV interviews, those negotiations persisted until the November election — longer than Trump has ever admitted. This is also well past the point at which Trump began expounding his pro-Russia foreign policy. Giuliani is now walking it back, saying his comments were just “hypothetical.” New explanations, new legal exposure.
Let’s observe a moment of silence for poor Giuliani — and for the 17 other lawyers the White House reportedly recently hired to defend Trump against the coming onslaught.
At the end of January, longtime Trump confidant Roger Stone was indicted and arrested. Once again, Giuliani is the first Trump defender out of the box. “Another false statement case? God almighty,” Giuliani said, according to the Washington Post. He seemed marginally chastened though. “They do have some false statements,” he allowed. “You shouldn’t do that.” Then, he rallied, insisting, “The president is safe.”
Let’s observe a moment of silence for poor Giuliani — and for the 17 other lawyers the White House reportedly recently hired to defend Trump against the coming onslaught from the special counsel and the Democratic-controlled House of Representatives.
True, some people will find these attorneys hard to feel sorry for. But they are going to run into many, many troubles, general and specific. In extreme scenarios, all kinds of clients can ask lawyers to do all kinds of illegal things — which, if the lawyers are at all sane, they won’t. Clients can also plan to perjure themselves and ask their lawyers to help them do it. Which the lawyers won’t if they are even minimally self-protective.
More commonly, clients will supply their lawyers with accounts of what the clients did and did not do in the case at hand — and the lawyers will know or suspect that the clients aren’t telling the truth.
Why? A defendant may think he or she is smarter than the lawyer and can pull the wool over the lawyer’s eyes. Or, said defendant may be madly, truly, deeply in denial. Or, a defendant may be under instructions from someone else or may be just plain afraid.
To get a reasonably accurate story out of a client like this, a lawyer may use a variety of tools — blandishments, guile, invocations of authority, appeals to the fear of God. Whatever works. In one case I know, a lawyer had a client who was working for a foreign government. The client had no intention of spilling the beans to anyone — including his lawyer — though keeping quiet was going to mean even deeper trouble. In fact, he was avoiding situations in which he’d be totally alone with the lawyer.
So, the lawyer set up what he billed as a purely family dinner, with the client and his sister. But the sister loved her brother and understood that the lawyer had to be fully armed. The dinner conversation was, in fact, social. Midway through the meal, however, the sister got up with a smile and said to the lawyer, “He’s all yours.” Then she walked out of the restaurant. The lawyer and the client were left sitting at the table alone.
The lawyer then started work, attacking the account that his client had given him and everyone else. Ultimately, the lawyer (who was good at what he did) managed to piece together what was, more or less, the truth. The exercise was unpleasant — and the true story, once known, caused an international incident. But it was necessary. If you don’t know the actual facts, you can’t prepare for the attacks on the story that are bound to come.
This is true in general. It is especially true if the client is a political figure. Because politicians have their own expertise in manipulating public communications, they are likely to think that they are much better at the game than their legal mouthpieces.
It is even more true if the client is a U.S. president. A president is usually surrounded by jealous aides trying to undermine the lawyer’s authority. Other official trappings persuade the chief executive of both his communications genius and his imperviousness to ordinary legal jeopardy.
It is most true of all when a presidential defendant is a person whose sense of what did or did not happen is determined by what benefits him at any given moment.
It is most true of all when a presidential defendant is a person whose sense of what did or did not happen is determined by what benefits him at any given moment.
During Watergate, President Richard M. Nixon gave his attorneys more than their share of legal heartburn by treating the crisis as a political matter in which the lawyers couldn’t play a critical role. He not only excluded them from key strategic decisions, he deprived them of knowledge of primary facts — like the existence of the Oval Office taping system.
Still, Nixon was himself an experienced lawyer who, in the end, had a clear view of legal realities. When the courts told him that his tapes were not protected by executive privilege, he knew that the rules required him to comply.
Decades later, President Bill Clinton became embroiled in the Paula Jones case. He faced the prospect of not only testifying, but having his blood drawn as evidence. Clinton tried to get himself the best arrangements possible for doing these things, but there’s no record of his having tried to kick over the table completely. He knew the rules and complied.
This time, in contrast, we have a president whose reactions to such rules are massively unknown and unknowable, with a record that includes attacks on the U.S. judiciary. His lawyers may have to exert executive privilege in the face of legal problems that Nixon’s lawyers could not have imagined.
So, when you watch Giuliani’s circumlocutions and seeming confusion, be charitable. People have taken to saying that his legal skills are rusty. Some of them clearly are. But other litigators’ instincts don’t fade. Among them is the instinct for triangulation: Knowing where the inconsistencies and intransigence are and talking in a way that seeks to avoid them or make them plausible.
That’s a lot of what we see Giuliani doing: trying to follow and justify presidential statements and positions that make no legal — or even factual — sense.
We have very little idea of how much Giuliani knows about what Trump knows. All we know is what it means that Giuliani signed up to work for Trump and hasn’t yet quit.
Let’s see how the new White House lawyers hold up to the same punishment.
